A 8 5 7 4 9 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY -- A TEEATISE ' ON THE POWER AND DUTY AEBITEATOE AND THE LAW OF SUBMISSIONS AND AWARDS; APPENDIX OF POMS, AND OF THE STATUTES RELATING TO ARBITRATION. FRANCIS RUSSELL, ESQ., M.A., BARRISTER-AT-LAW. THIRD EDITION. " Esto "bonus miles, tutor bonus, arbiter idem Integer," Juv. 8 Sat. 1. 79. LONDON": V. & R. STEVENS, SONS, & HAYNES, 26, BELL YARD, LINCOLN'S INN. H. SWEET, 3, CHANCERY LANE. 1864. LONDON : BKADBURY AUD EVANS, PEINTEKS, WHITETEIAES. 0^ I PKEFACE TO THE THIRD EDITION. During the last few years the subject of arbitration has become of increased importance. The provisions of the Common Law Procedure Act, 1854, under which whatever can be ranked as matter of account not convenient to be tried by a jury, may be decided by arbitration, have been carried out largely into practical effect. Many questions which have been raised respecting these and the other enactments of the same statute relating to arbitration have recently received judicial decision ; and it is satisfactory to observe that the tendency of the Courts is to extend the beneficial operation of the Act, and to apply as far as may be one uniform rule to all kinds of arbitrations both at law and in equity. It is believed that all these decisions, as well as all the new cases bearing on the law of arbitration generally, will be found noticed in the present edition. Much care and attention have been employed to render the work complete in this respect, and it is hoped that no authority expounding or illustrating any valuable principle has escaped observation. In order to allow of insertion of this large mass of new matter, and at the same time to keep the treatise within reasonable bulk, it has been found necessary to condense into a smaller compass a good deal of what was formerly written. IV PREFACE TO THE THIRD EDITION. Some new precedents of awards, prepared by eminent counsel, have been, by tlieir kind permission, added. They will aflford useful patterns for the guidance of arbitrators in framing awards in analogous cases. In the Appendix of Statutes all the recent legislative enactments on arbitration down to the present time have been inserted. Among them are to be noticed the new Railway Companies Arbitration Act, 1859, which contains a complete code for the regulation of arbitrations between railway companies ; and the Local Government Act, 18C3, under which an arbitrator has not only to settle the amount of compensation to be paid for the injuries which private persons may receive from public works designed by local boards, but also to decide whether the works are to be carried out at all. No pains having been spared to render the treatise useful, the Author humbly hopes that it may receive at the hands of the Public and the Profession the same kind reception that has been accorded to the two earlier editions. F. RUSSELL. 3, Tanfikld Court, Temple, 19 April, 1864. EXTRACT FEOM THE PEEFACE TO THE EIEST EDITION. The present treatise is divided into three parts. In the second, or principal part, the author has endea- voured to set forth an exposition of the law of arbitration, so far as it concerns the arbitrator's powers and duties, and to arrange it so as to show him, how he may best exercise the one and perform the other. It treats also of the privileges and liabilities of an arbitrator. To these objects the inquiry was originally intended to have been confined : but as the arbitrator's functions vary materially with the varying terms of the submission to refer- ence, it was found incumbent to enter into a more detailed investigation respecting the submission : and the result of that research, so far as it primarily affects other parties than the arbitrator, has been prefixed in the first or pre- liminary part, in the hope of assisting parties to select that mode of arbitration best suited to their particular circumstances. The third part, respecting the effect of awards, and the modes of enforcing and setting them aside, was added from a desire to make the work in a measure complete as a VI EXTRACT FROM THE treatise on awards, as well as on arbitrators. Unfortunately this part of the subject has far exceeded the contemplated limits. A variety of Precedents and of Forms of Proceedings relating to Arbitration has been subjoined in the Appendix of Forms. In this Appendix, for the sake of convenient perusal and selection, a large number of clauses capable of being bene- ficially introduced into submissions is collected together under Form I. : so with regard to awards, clauses showing the modes of awarding on a great variety of matters, are all comprised under Form LXXIV., the first under the head of awards. There are also contained forms for proceed- ings as to references respecting the compensation to be paid to persons whose lands are taken under the authority of Parliament for the purposes of a Eailway or other Public Undertaking. For many forms in the Appendix the Author has to express himself indebted to the kindness of legal friends, and to the courtesy of the ofiicers of the courts of law, and more particularly of Mr. Hill and Mr. Kemp of the Rule Office of the Court of Queen's Bench ; and he wishes espe- cially to acknowledge his obligations to Mr. P. W. Eogers, of the Registrar's Office of the Court of Chancery, for afford- ing him much valuable information on points of Chancery practice, for furnishing him with various forms used in Chancery in proceedings connected with arbitrations, and for kindly drawing up the tabular statement of the modes of enforcing awards in Equity, which appears as Form CXV. Recent legislation having so widely enlarged the field of PREFACE TO THE FIRST EDITION". VU arbitration, especially by means of The Lands Clauses Consolidation Act, 1845, The Railways Clauses Conso- lidation Act, 1845, The Companies Clauses Consolida- tion Act, 1845, and The Public Health Act, 1848, it has been thought advisable to add, in a further Appendix, the arbitration clauses of those Acts, and the other principal Statutes and sections of Statutes relating to Arbitration. CONTENTS OF THE TREATISE. PAET THE FIRST. CHAPTER I. WHAT MATTERS MAY BE REFERRED TO THE DECI- SION OF AN ARBITRATOR SECTION I. MATTERS AFFECTING THE CIVIL INTERESTS OP THE PAKTfES . 3 1. Civil rights of the ]mrties 3 Matters concerning personal chattels or personal wrongs 3 Matters concerning real property .... 4 Questions of law 4 Actions and suits ....... 4 Not matters illegal 5 Future use of property 5 Future differences 5 2. Matters referred by statute 5 Compensation for lands taken for or injured by railways, &c. ....... 6 Compulsory reference of actions on matters of account 7 Expenses of prisoners ...... 7 Differences between Postmaster-General and Rail- way Company 8 Part I. CH. I. CONTENTS OF THE TREATISE. Part I. CII. I. Disputes between Masters and "Workmen . PAGE 8 Matters concerning Savings' Banks and Benefit Building Societies 8 Bankrupts' and Insolvents' Estates . 8 Joint Stock Companies 8 Ecclesiastical property . . . • . 9 Small debts ....... 9 3. Civil jjroceedings at Quarter Sessions 9 Matters of appeal 9 4. Suits in Divorce Court 10 Terms of separation ..... 10 SECTION II. ERS OF A CKIMINAL NATTTKE n Not felonies 11 Misdemeanors 11 Where remedy by- action criminal matters refer- able 11 Indictments for conspiracy .... 12 assault 13 nuisance .... 13 perjury 13 non-repair of highway 13 Compromise after conviction .... 14 Presentment before Commissioners of Sewers . 14 Indictments before Quarter Sessions . 14 Consent of court to reference of indictment 14 CHAPTER II. WHO MAT REFER MATTERS TO ARBITRATION 15 SECTION I. PERSONS INTEEESTED IN THE SUBJECT MATTERS 1 . Parties capable of disposing of their rights 2. Femes covert 3. Husband and Wife 15 15 16 17 CONTENTS OF THE TREATISE. PAGE Part I 4. Infants 18 en. n. 5. Partners and parties with joint interests . . . . 19 6. Corporations sole and aggregate 21 7. Parties interested added 22 SECTION II. PEESOIfS NOT INTEEESTED IK THE SUBJECT MATTEES . . 23 1. Authorized agent . 23 2. Attornies and Solicitors 25 3. Counsel '. . 27 4. Executors and Administrators 29 Personal liability 30 Admission of assets by referring .... 30 5. Trustees 32 6. Committee of a Lunatic 32 7. Public officer 32 XI SECTION III. PEESONS EMPOWEEED TO EEFEE BY STATUTE . . . . 1. Assignees of Bankrupts and Insolvents .... Reference, admission of assets ... . . Reference by bankrupt Liability of assignees . . . . . . 2. Savingi Banks and Friendly and Benefit Building Societies .... .... 3. Promoters of Public Undertakings and Railways 4. Ecclesiastical and Collegiate Corporations, concerning their lands 5. Masters and Workmen, concerning their trade 33 33 33 33 34 35 38 39 40 xu CONTENTS OF THE TREATISR. Tart I. OH. III. CHAPTER III. HOW MATTERS MAY BE REFERRED TO ARBITRATION PACE 41 SECTION I. OF SUBMISSIONS IN GENEEAL 1. General qualities of a submission . . . . No particular form requisite 2. What is a reference to a^-hitration Intention of parties to bind themselves Who are arbitrators .... 3. Talcing collateral secu7'ity to enforce the award Warrant of attorney .... Rule to deliver possession pursuant to awai-d Conveying lands to arbitrator on trust . 4. Arbitration j)ending cannot be pleaded 5. Staying 'proceedings contrary to reference Under Common Law Procedure Act, 185 1 In what cases action will be stayed 41 41 42 42 42 43 44 44 45 45 45 46 46 47 SECTION II. OF SUBMISSIONS BY PAROL, AGREEMENT IN WRITING, OR DEED . 49 1. Parol submission 49 2. Submission by agreement in writing not under seal . 50 3. Submission by bond 51 4. Submission by deed 53 5. Disadvantages of suhnissions which cannot be made rules of court 53 SECTION III. OF SUBMISSIONS BY CONSENT WHICH MAT BE MADE RULES OP COURT BY STATUTE 1. Hfect of the statute 9 c& 10 W. III. c. 15 Construction of the statute .... 2. What references tvithin the statute Not parol submission ..... Cause and all matters referred .... Cause referred by agreement Not indictment .... 54 54 55 57 57 57 57 59 CONTENTS OF THE TKEATISE. PAGE 3. What a sufficient consent clause under the statute of William in. 59 4. Effect of the Common Law Procedure Act, 1854 . . 61 Submission may be made rule unless contrary intention appear 61 Xlll Part I. OH. III. SECTION IV. OF AGREEMENTS TO EEFER EUTTTEE DISPUTES TO AEBITEATION . 62 1. Effect as a submission of an agreement to refer future disputes 62 2. Effect in km of an agreement to refer future disputes . 63 No plea to action , 63 3. Effect in equity of an agreement to refer future dis- putes 65 No specific performance ...... 65 No plea in equity 65 4. Effect of the Common Laio Procedure Act, 1854 . . 66 On failure of parties judge may appoint arbitrator . 66 Party may appoint his arbitrator to act alone . . 67 SECTION V. OF AN AGREEMENT IN THE SUBMISSION NOT TO PROCEED AT lAW OK EQUITY 68 1. Effect in laio of an agreement not to sue . . . . 68 Enforced by action, setting aside proceedings, and attachment ........ 68 No plea on equitable grounds .... 69 Prohibits arrest of judgment . . . . . 70 And motion for judgment non obstante veredicto . 70 2. Effect in equity of an agreement not to sue . . . 70 SECTION VI. OP SUBMISSIONS MADE IN A CAUSE AT COMMON LAW 1. Forms of submissions made in a cause . 2. Submission by rule of court 3. Sitbmission by judges order . 72 72 73 73 XIV CONTENTS OF THE TREATISE. Tart I. CII. III. 4. Submission by order of Nisi Prius Taking verdict subject to reference . Damages in action limited by verdict Withdrawing juror or discharging jury- Referring other matters with the action . Reference on the " usual terms " 5. Setting aside a submission made in a cause . For fraud, mistake, or bad faith 6. Amending a submission made in a cause 7. Altering terms of reference without altering submission Enlarging particulars of demand Allowing plea to further maintenance of action 8. Submission in a cause a stay of i^roceedings 9. Submission in a cause a discharge of bail Sureties in replevin ...... 10. Enforcing submissions made in a cause . By attachment ....... The award how enforced .... 11. Compulsory reference of action for matters of account Under the Common Law Procedure Act, 1854 After writ ....... On trial by judge Clause as to costs ...... SECTION VII. OF JUDICIAL AND STATUTABLE SUBMISSIONS NOT MADE IN A CAUSE AX COMMON LAW 1. Submission by order of Equity Stay of proceedings in equity 2. Submission in Bankruptcy 3. Submission by record . .... By recognizance ...... 4. Submission by order of a County Court 5. Submission by order of Quarter Sessio7is . 6. Submissions under the Lands and Railways Consoli- dation Clauses Acts Compulsory on demand of party Submission should be limited to compensation . Appointment of arbitrator the submission Appointing one arbitrator to act for botli . Costs of reference ...... CONTENTS OF THE TREATISE. XV 7. Some other siibmmions hy statute . Under the Companies Clauses Act Concerning prison expenses . Between Masters and Workmen By private Act of Parliament PAGE 98 Part I. CH. iir. 98" 98 99 99 SECTION VIII. OF PROCEEDINGS OTS THE STJBMISSIOlf WHEN ONE PAETY HAS PEETENTED AN AWAED BEING MADE . . . .100 1. Remedy hy action and attachment .... Preventing award being made breach of submission Revocation a breach of submission 2. Motion for costs under the submission . Clause to give costs when award wilfully prevented Court no power without the clause No power where award made .... 100 100 100 101 101 102 102 PAET THE SECOND. pakt II. CHAPTER I. Ch. I. PAGE THE OFFICE OF ARBITRATOR 105 SECTION I. OF WHO MAT BE AN AEBITRATOE 105 "When interest disqualifies 106 Arbitrators by statute . . , . . . 107 SECTION II. OF THE MORAL QITAIITIES REQUISITE m AK ARBITEATOa . .108 Integrity and impartiality requisite . . . . 108 SECTION III. OF THE FRINCIPLES BY "WHICH THE AKBITRATOR. SHOTTtB BE GTJIDEB ■Whether bound to decide according to law Legal and equitable authority Taking moral questions into consideration When power beyond law 110 111 112 113 113 CONTENTS OF THE TREATISE. xvu CHAPTER II. OVER WHAT MATTERS THE SUBMISSION GIVES THE ARBITRATOR JURISDICTION Part II. PAOE Ch. ir. 115 SECTION I. OF THE EFFECT OF PA.ETICULA.K TEEMS TO EEFEK PAETICTJLAR MATTEES 115 All matters in difference 115 All matters in the cause . . . . . , ,117 SECTION II. OF THE STJBJECT ITATTEES, WHETHEE JOINT OE SEVEEAL . All matters between the parties, or any of them 121 121 SECTION III. TIP TO WHAT DATE MATTEES IN DIFFEEENCE MAT AEISE Cause referred, up to date of writ Further claims by special provisions General reference, up to date of submission Future, contingent, and periodical claims 122 122 123 123 124 CHAPTER III. THE DURATION OF THE ARBITRATOR'S AUTHORITY 126 SECTION I. OP THE DTJEATION OF THE AEBITEATOE'S AtTTHOElTT WHEN NOT ENLAEGED OE EETOKED 126 1. WJien the submission prescribes no time within which the award is to be made 126 Within three months by Common Law Procedure Act, 1854 127 2. WJien the submission prescribes a limited time for making the award 129 Award must be made within the time . . .129 Limit under the Lands Clauses Consolidation Act . 130 6 Xviii CONTENTS OF THE TREATISE. Part II. CH. III. 3. Authority of the a7-hitrator determined hy making the aivard 131 Arbitrator cannot alter award when made . . . 131 Cannot make new award except under statute, when first award bad 132 SECTION II. ENLAEGING THE TIME FOE MAKING THE AWARD 1. Enlargement of the time hy the a7-hitrator No implied power to enlarge .... Enlargement must be made within original period How enlargement should be made . Enlargement by umpire not enlarge arbitrator's time Enlarging time under the Lands Clauses Act . 2. Enlargement of time hy consent of the parties . Enlargement by consent a new submission . . Enlargement under the Common Law Procedure Act, 1854 3. Enlargement of time hy the courts of law Statutory power of the Court .... 4. Enlargement hy the court under the Common Law Procedure Act, 1854 5. Enlargement of time hy a court of equity . 133 133 133 133 135 137 137 137 137 138 139 140 142 143 SECTION III. OF EEYOKING THE AEBITEATOe's ATJTHOEITY , . . .143 1. Revocation hy covimon laiv at the will of a party . . 143 Submission at common law revocable until award made 145 Revocation breach of submission . . . . 146 Justification for revoking ..... 146 2. Revocation hy leave of the court 147 Revocation prohibited without leave of court by statute ......... 147 To what cases the statute applies .... 147 Effect of the Common Law Procedure Act, 1854 . 148 When leave will be granted ..... 149 County Court submission . . . ... 151 Submission under the Lands, Railways, and Com- panies Clauses Acts . . , , . . 152 CONTENTS OF THE TREATISE. XIX 3. Revocation in eqvitij at the tvill of a fariy . 4. Revocation hy hanhruptcy Bankruptcy no revocation .... 5. Revocation hy insolvency 6. Revocation by marriage of a female 2}arty 7. Revocation hy the refusal to act or death of the arhi trator Eevocation by disagreement of two arbitrators Appointing new arbitrators by statute, on death refusal, or incapacity . . . . . 8. Revocation hy the death of a party Death of a single party a revocation . . . Of one of several parties .... Clause for preventing death from revoking sub- mission ........ PAGE Part II. 152 cu. IV. 153 153 155 155 156 156 157 158 158 159 161 CHAPTER IV. THE POWER AND DUTY OF THE ARBITRATOR BEFORE MAKING THE AWARD 163 SECTION I. OF TEOCEEDINGS IK THE KEFEKENCE . 163 1. Serving the submission on the arbitrator . . . . 163 Procuring and serving the order of reference . . 163 2. Power of the arbitrator to regulate the proceedings in the reference . . . 164 To determine how reference to be conducted . . 164 To fix time and place of meeting . . . . 164 The exercise of his discretion when reviewed by the court 165 Ordinary course of a reference . .... 166 Performing condition precedent to hearing the case 168 Under the Lands and Railways Clauses Acts . . 168 3. Enforcing the attendance of witnesses . . . . 169 Statutory provision for compulsory attendance . 169 Practice obtaining order for witness to attend . 170 Statute not extend to equity 171 2 XX CONTENTS OF THE TREATISE. Tart II. OH. IV. 4. Effect of the Common Law Procedure Act, 1854 Whether s. 7 be of general application . 5. Parties attending the arbitrator 2^ruileged from arrest How far privileged during adjournments 6. Examination of the witnesses on oath Statutory provision empowering the arbitrator to swear them ....••• AVhen evidence by affidavits admissible . 7. Duty of tlie arbitrator to hear the evidence Awarding without hearing evidence, bad Hearing one side only .... When arbitrator may refuse to hear evidence . Discretionary to view premises . Closing case too hastily .... 8. Power of the arbitrator to call for documents . 9. Duty of the arbitrator to receive no evidence unless both 2)arties are present Arbitrator should not receive private commuuications Eeferring back award for irregular examination Waiving objection to irregular conduct of the arbitrator Parties may waive objection by their conduct . Arbitrator's course to cure an irregularity . When arbitrator empoiuered to proceed ex ixirte Implied power ...... Party wilfully neglecting to attund . Party attempting to revoke .... Arbitrator must give notice that he means to pro ceed ex parte ...... 12. Duty of the arbitrator in deciding points of evidence Arbitrator is bound by the rules of evidence . His decision on points of evidence not open to review Refusing evidence as to a particular claim not a mere mistake of evidence . . . . . Party retaining right of objecting to evidence . 13. Duty of the arbitrator when empowered to amend Amending the record on terms .... 14. Power of the arbitrator to make or decline to make an award Court no power over ai-bitrator ... 15. Closing the case Arbitrator may re-open case when closed Requiring matters in difference to be stated in writinir 10. 11. P;\ OE 172 173 175 175 175 177 178 178 178 179 180 181 181 183 184 184 186 188 188 190 190 191 191 191 191 193 193 193 193 195 195 195 196 196 197 197 197 CONTENTS OF THE TREATISE. XXI PAGE Part II, 16. When arbitrator abozU to aivard tvrongly . . . 198 og^ iv_ Set right iu law by the court on rule to revoke . 198 17. Stating a case, or trying an mue pending the reference 198 Case or issue under the Common Law Procedure Act 198 SECTIOX II. OF THE ARBITEATOr's DELEGATING HIS AXTXHOfilTY . . . 198 1. Power of the arbitrator to adopt the opinion of another 198 Arbitrator may not delegate his power of judging . 198 Arbitrator may adopt an opinion . . . .199 Power to call in a valuer . . . ... 200 2. Duty of the arbitrator in taking an opinion as to a matter of fact 201 Arbitrator should examine scientific adviser as a witness ........ 202 3. Duty of the arbitrator in talcing an opinion on a point of law 202 Arbitrator may consult counsel as to framing his award ......... 203 May take counsel's opinion on a case . . . 203 4. Power of the arbitrator to delegate a ministerial act . 204 SECTION III. OF THE DUTT OF JOINT ARBITRATORS 204 1. Power of two arbitrators to appoint umpire . . . 204 2. Disadvantages of reference to several arbitrators . . 205 Arbitrators should not act as agents of parties appointing ........ 205 Two arbitrators appointing a third . . . 205 Judge appointing a third . . . . . . 205 3. Duty of all the arbitrators to act 206 They may not delegate the decision to one of them- selves 207 All the arbitrators must act together. . . . 208 All shoiild execute award together .... 209 Appointment of umpire, when a condition precedent to acting ........ 209 4. Duty of the arbitrators when award by less than all valid 209 AU the arbitrators must have opportunity of j udging 2 1 xxu CONTENTS OF THE TREATISE. Pakt II. OB. IV. Two may act if third refuse to concur Under the Lands, Railways, and Companies Clauses Acts Death, refusal, or incapacity, of one of the two What a refusal to act ..... P'.OE 210 211 211 212 SECTION IV. OF THE TJMPIKE 1. By whom an umpire is to be appointed Power of arbitrators to appoint Appointment under the Lands, Railways, and Com panics Clauses Acts Appointment by judge under Common Law Pro cedure Act, 1854. . . . , . 2. When the arbitrators should ap2yoint the umpire When under the Common Law Procedure Act, 1854 When under the Lands Clauses Consolidation Act 3. How the arbitrators are to choose an umpire By choice not chance ... . . Unless parties consent ..... Appointing second umpire if first refuse Appointment must be as directed in the submissiua Appointment by Railway Commissioners . . . 4. Commencement and duration of the umjnre's authority Commencement from the disagreement of the arbi- trators Commencement from the expiration of the arbi- trator's period Commencing subject to defeazance before time out What a disagreement of the arbitrators Umpire's power to enlarge before disagreement Umpire no authority when arbitrators award on part ....,.., Duration of umpire's authority .... Enlargement by the court .... Duration of umpire's authority under the Lands Clauses Act , From what date the umpire's three months com- mence ....... Railway Companies Arbitration Act, 1859 . 5. Poiver and duty of the umjnre .... Same as of the arbitrator's .... 213 213 213 214 215 217 219 219 220 220 221 222 223 223 223 223 223 224 225 226 226 227 227 227 228 229 230 230 CONTENTS OF THE TREATISE. Umpire must rehear case unless it be otlierwise agreed ......... Umpire under tlie Lands Clauses Act . . . Joint award by arbitrators and umpire . XXlll PACK Part IL CH. V. 230 231 232 CHAPTER V. THE DUTY OF THE ARBITRATOR IN FORMING HIS AWARD . . . . • 233 SECTION I, OP THE FORMAL EEQUISITES OF IHE AWARD .... 234 1. Making the award 234 The award must comply with the submission . . 235 All arbitrators must sign together . . . . 235 2. Publishing the aioard 236 Publication to the parties 236 3. Delivering the award 237 4. Stamping the aivard 239 No stamp on award on compulsory reference of action 240 No stamp on certificate ...... 243 SECTION II. OF THE FORM OF THE AWARD Any words expressing a decision an award No recitals necessary, what advisable False recitals not vitiate award Certificate instead of award . 243 243 244 245 246 SECTION III. THE AWARD MtTST BE ENTIRE Separate certificates in two actions 247 248 XXIV CONTENTS OF THE TREATISE. Part II. oil. V. SECTION ly. THE AWAKD MUST BE FINAL 1. Effect of clause " ita quod fat de prcemissis" . Intent — to have all matters decided 2. Aioard void if a matter left undecided 3. Effect of awarding mutual releases 4. Bule awarding de prcemissis 5. Award de 2'>rcemissis, genei'al finding presiivied final 6. Award de prcemissis, particxdar finding presumed final 7. Whether matter presumed decided when award silent In what cases silence a decision. 8. Conditional award 9. Award in the alternative 10. Aivai'd reserving or delegating judicial ctuthoriti/ Arbitrator no power to reserve or delegate authority Except delegating taxing costs to the Master . H. Aivard reserving or delegating ministerial dtity Arbitrator may delegate ministerial acts When reservation of power to settle deeds good 248 248 249 251 257 258 259 261 263 265 266 268 269 269 271 271 271 273 SECTION V. THE AWAED MUST BE CEETAIN . 275 1. Whcd certainty requisite 275 2. Certainty as to the amount aioarded .... 276 3. Certainty as to costs awarded 279 4. Award when presumed certain . . . . .281 5. Certainty as to general directions 283 SECTION VI. THE AWARD MUST BE MUTUAL . . 285 SECTION VII. THE AWAKD MUST BE POSSIBLE AND CONSISTENT . . . 288 Finding for same party on inconsistent issues . . 290 CONTENTS OF THE TREATISE. XXV SECTION YIII. THE AWAED HOW ATTECTED BY A MISTAKE OF THE AKBITBATOR 1. Wheii the aioard is good on its face No distinction between lay and legal arbitrator Mistake in law and fact 2. Effect of extrinsic statements hy the arbitrator showing a mistake on his part 298 Whether admissible to impeach the award . . 298 3. Inquiry hy the court of the arbitrator s grounds of award 302 4. When the award sets forth the grounds of decision . 304 Whether court will review them .... 304 5. Stating case under Common Laiv Procedure Act, 1854 305 6. Duty of the arbitrator when empoioered to raise a point of law 306 Clause, when compulsory, when enabling . . 306 Statutory power 306 Arbitrator should state facts, not evidence . . 306 Awarding conditionally on the court's decision . 308 SECTION IX. TnE AWAED, THOUGH BAD IN PAET, WHEN GOOD EGR THE BEST 311 1. When the bad part of the award is separable . . 312 2. When the bad p)art of the award is inseparable . . 317 Award void, when bad part inseparable or affecting the rest 317 PAGE Part II. on. vr. 292 292 292 293 CHAPTER VL THE DUTY OF THE ARBITRATOR IN AWARDING ON THE CAUSE OR SUIT REFERRED . . .323 SECTION I. OP DISPOSING OP THE CAUSE WITHOUT DECIDING IT . . . 324 When award good though cause not decided . . 324 Award of a nonsuit not final , . ... 324 Award of a stet processus 325 XXVI CONTENTS OF THE TllEATlSE. Part II. en. VI. SECTION II. OF AWARDING ON THE CATTSE WHEN COSTS ABIDE TIIE EVENT . 325 1. The arbitrator must decide the cause tvhen costs abide the event 325 Award of a stet processus, bad .... 325 2. What a sufficient decision before the new rules for taxing costs 326 3. Deciding cause referred before issue joined . . . 328 4. Awarding on the issues since the new rules as to costs . 329 Arbitrator must award on each issue, substantially or specifically 329 Whether a general verdict a finding on each issue . 334 Awarding on pleas of payment and set-ofi" . . 335 On specific claim in general event . . . . 336 On one defence in a double plea . . . . 336 SECTION III. OF AWARDING AN ENTRY OF A VERDICT . 1. WJien arbitrator empowei^ed to atvard a verdict Power not implied, how given 2. Duty of the arbitrator in awarding a verdict . In ejectment 3. Effect of an unauthorized award of a verdict . 337 337 338 339 340 341 SECTION IV. OF THE DUTY OF THE ARBITRATOR IN AWARDING DAMAGES . 343 Award for plaintifl' must give damages . . . 343 Limit of amount of damages 345 SECTION V. op AWARDING AN ENTRY OR ARREST OF JUDGMENT . 1. Power to direct entry of judgment No implied power ...... Awarding judgment on a demurrer . 2. Power to decide on judgment non obstante veredicto Awarding damages non obstante veredicto . 349 349 349 349 350 350 CONTENTS CF THE TREATISE. XXVU No power in court or arbitrator to order judgment non obstante veredicto ..... 351 3. Power to direct arrest of judgment .... 352 No power to award arrest of judgment . . . 353 Part II. ou. vir. SECTION VI. OF AWARDING ON A STJIT IN EQUITY Directing suit to be dismissed, sufficient When arbitrator only as the master 353 353 353 CHAPTER VII. THE DUTY OF THE ARBITRATOR IN AWARDING AS TO COSTS 353 SECTION 1. or THE aebiteatoe's power and duty in awarding costs 1. Wliat are costs of the cause, reference, and award . Costs of umpirage ...... 2. The jMwer of the arbitrator over costs Implied power over costs of cause . Not of reference or award ..... On compulsory reference of action Costs under the Lands, Railways, and Companies Clauses Acts, and Railway Companies Arbitra- tion Act Duti/ of the arbitrator in awarding costs When arbitrator to fix amount of costs Arbitrator may apportion the costs Can only give common costs .... Should not specify in the award amount of his own charges 4, Uffect of awarding payment of the costs of the cause Same costs payable as on a verdict . 355 355 357 358 358 359 359 359 360 361 362 363 364 367 367 XXVIU CONTENTS OF THE TREATISE. Part II. CII. VIII. SECTION II. OF THE PO"WEE AND DTJTT OP THE AEBITEATOE "WHEN COSTS ABIDE TriE EVENT 1. Poiver of the arbitrator when costs abide the event Arbitrator no power over the costs 2. M'liat the event when the costs of the cause only abide the event Event is the event of the award as to the cause Arbitrator must decide the cause separately With separate damages ..... 3. Wliat the event when the costs of cause and reference abide the event Event usually general event of award No costs, award finding part for each Costs of causes abiding event of each cause 4. Efect of tJie award when costs abide the event . Award same effect as a verdict Reference before verdict, costs different from refer ence after verdict ...... 5. Supporting award defective in finding as to costs . 368 368 369 370 370 370 370 371 372 372 374 375 375 377 380 SECTION III. OF THE DtTTT OF THE AEBITEATOE CFETIFY FOE COSTS WHEK EMPOWEEED TO Power to certify should be given to arbitrator . Certifying cause fit to be tried before a judge . For costs of special jury No distinct subject matter of complaint in each count ..... Action brought to try a right Arbitrator must certify in the award 381 381 382 382 383 383 384 CHAPTER VIII. "WHAT DIRECTIONS MAY BE GIVEN IN THE AWARD . 385 SECTION I. OF DIRECTIONS TTNDEE THE GENEEAL POWEES OP THE AEBI- TEATOE ......... 386 CONTENTS OF THE TREATISE. XXIX PAOE 1. What hind of satisfaction may he directed . . . 386 Whether arbitrator may award other than money . 387 "When special directions valid .... 388 Ordering indentures to be cancelled . . . . 390 Directing securities to be given up ... 390 Arbitrator may not direct unlawful act . . . 391 2. Directions as to payment of money 391 Arbitrator should direct payment . . . . 391 Fixing time, place, and mode of payment . . 391 Setting off cross claims ...... 392 Directing payment by an executor .... 394 Directing payment to wife only . . . . 395 3. Directions as to 2^ayment of interest .... 395 4. Directions in cases of partnership 396 Awarding dissolution of partnership . . . 396 Awarding on the debts and credits of a firm . . 396 Appointing a receiver 398 Settling terms of dissolution of partnership . . 399 Awarding right to sue in partner's name . 400 Awarding in restraint of trade . . . 400 5. Directions as to giving an indemnity .... 400 Arbitrator may award an indemnity when necessary 400 When settling terms of dissolution of partnership or purchase of property ..... 402 6. Directions as to executing releases 402 Arbitrator may award releases .... 402 7. Directions as to executing conveyances . . . . 404 Arbitrator must specify nature of conveyance . 404 Need not draw conveyance ..... 404 Directions as to costs of preparing it . . . 405 Part II. CH. VIII. SECTION II. OF DlEECTIOIirS UNDER A POWER TO AWARD WHAT SHALL BE DONE 405 1. Whether clause to say what shall be done compulsory . 405 2. Directions as to what to he done held valid . No objections open on the merits Instances of valid directions .... Directions as to what shall he done held void . Awarding a verdict without power Instances of directions void for uncertainty Duty of arbitrator in awarding on scientific matters 40S 408 409 413 413 413 414 XXX CONTENTS OF TIIE TREATISE. Part II. ClI. IX. SECTION III. OF DIRECTIONS AS TO ALLOTTING LANDS . . . , .416 1. Directicms under Inclosure Acts 416 2. Directions in making paHition of lands . . . 417 Powers of commissioners of partition . . . 418 Arbitrator making partition must award convey- ances 418 SECTION IV. OF DIRECTIONS AFFECTING STRANGERS TO THE SUBMISSION 1. Directing a payment to he made to a stranger . Void unless for party's benefit Whether benefit need appear on the award 2. Directing a stranger to do an act . . . . Void unless stranger bound to comply When stranger merely ministerial Party submitting on behalf of a stranger . 3. Directions affecting a stranger'' s property . Excess of authority and void . . Good if conditional on stranger's consent . 418 418 419 420 421 422 423 423 424 424 425 CHAPTER IX. THE AWARD UNDER THE LANDS CLAUSES CONSOLI- DATION ACT, 1845 ....... 427 Duty of the arbitrator . . . . . , 427 Whether arbitrators can go beyoud claim . . 428 Arbitrator not to try title, but to assume it . , 428 Arbitrator not to try whether claim well founded . 429 Under Sewers and Public Health Acts reference only as to amount . . . . . . 430, 434 Test when land is injuriously affected . . . 431 Arbitrator not to consider excuse for non-payment 433 How to assess compensation 434 Damage from severance ..... 434 Compensation for necessary and probable damage . 435 No second enquiry if unforeseen damage arise . 437 Arbitrator has no right to set out approaches . 435, 438 Duty of arbitrator as to costs of reference . . 439 CONTENTS OF THE TKEATISE, XXXI Kecitals in award .... Delivery of award to promoters . Compelliag promoters to take up award Auuexins: declaration to award PAGR 441 442 442 442 Tart II. en. xr. CHAPTER X. THE AWAED EEFERRED BACK TO THE ARBITRATOR 444 HOW AWAEDS AEE EEPERKED BACK Clause in submission to refer back Power under Common Law Procedure Act, 1854. Applies to references by consent or compulsory On what motions an award will be referred back For what causes Award good on face not sent back for mistake arbitrator Unless admitted by arbitrator Limit of time for application DUTY OF THE ABBITRATOK "WHEN AWAKD EEFERRED BACK Arbitrator's powers revived by reference back Power over costs of second reference Limit of time for making second award Duty of arbitrator as to hearing evidence Award sent back for special purpose . Mode of framing second award 444 444 445, 451 445 445 446 448 448 449 452 452 452 452 452 453 455 CHAPTER XL THE PERSONAL INTERESTS OF THE ARBITRATOR SECTION I. OF THE AEBITRATOE's EIGHT TO EEMXTNEEATIOlSr . . . . Whether arbitrator can sue for his fees . Whether remedy for fees by attachment or rule of court ... Retaining award till fees paid ..... Costs of attorney di-awing award .... Fees on award under the Lands Clauses Act 45G 457 457 457 458 458 459 XXX 11 CONTENTS or THE TREATISE. Taut II. en. M. SECTION II. OF THE LIABILITY OF THE AEBITEATOK AT LAW 1. Liability in respect of fees ..... Reviewing arbitrator's charges by the court Whether liable to action for withholding award No attachment against arbitrator refusing to refund excessive fee ..... . Action for money had and received lies for the excess paid 2. Liability for misconduct or in respect of the award Whether action lies against arbitrator for corrupt award ....... Mandamus to arbitrators to appoint umpire under statute ........ Misconduct a misdemeanor under the Lands and Railways Clauses Acts, &c. Award directing a trespass, whether action lie against arbitrator ...... 3. Liability of the arbitrator when a stakeholder Holding chattel to abide event of award . Bankruptcy of party depositing it . To whom arbitrator should deliver the chattel . Party awarded against cannot maintain trover 459 459 459 460 460 460 461 461 461 461 462 462 462 462 463 464 SECTION III. OF THB LIABILITY OF THE AEBITKATOR IN EaUITY . . . 464 Arbitrator made defendant to a bill to set aside award may demur 465 Unless charged with gross misconduct . . . . 465 Corrupt arbitrator condemned in costs . . . 466 SECTION IV. OF TESTIMONY BY THE AKBITRATOE 1. The arbitrator called as a witness May decline to state grounds of award . May prove admissions made by the parties 2. Voluntary statements by the arbitrator Whether arbitrator should state to a party the grounds of his award ..... Affidavits by the arbitrator .... 3. When the ai-bitrator is a barrister .... Not usually make an affidavit Refusing explanation to a party Inquiry of the arbitrator by the court . 467 467 468 469 470 470 471 472 472 473 474 PAET THE THIED. CHAPTER I. PAOE EFFECT OF THE AWARD 475 1. The award a Jinal Judgment in law and equity . . 476 2. Infect of a colorable award . . . . .477 3. Effect of an award on matters in difference not hrouglit forward ......... 478 4. Effect of an award on some special matters . . 480 5. Effect of an award to transfer properti/ . . , 481 6. Effect of an award on the parties and strangers . . 485 7. Effect of an award on a party hankrupt . . . 487 8. Effect of an aivard on the attorney s lien for costs . 488 9. Effect of an award under the various hinds of sub- missions ......... 491 10. Effect of awards under particular statutes . .491 11. Effect of altering an award . . . . , . 492 12. Effect of a defective award ..... 493 Part III. XXXIV CONTENTS or THE TREATISE. Part III. CH. II. CHAPTER 11. PERFORMANCE OF THE AWARD PAGE 495 SECTION I. WHAT A STTTTICIENT PEUFOEMANCE OF THE AWARD Party bound to take notice of award Award must be substantially performed As far as is lawful and possible 495 496 496 496 SECTION II. PEEFOEMANCE OF AN AWAED DIEECTING THE EXECTJTION OF A DEED 499 Whether request to execute necessary . • . 499 Who to prepare and tender conveyance for execution 499 What sufficient authority to agent to demand . 501 CHAPTER HI. THE AWARD AS A GROUND OF ACTION OR DEFENCE AT LAW 504 SECTION I. now TO ENFOECE AN AWAED BY ACTION 1. An award a ground of action . . . . When action only remedy 2. Enforcing aivard hy assumpsit . . . . 3. Enforciny award hy debt on the award . 4. Enforcing award by debt on the arbitration bond 5. Enforcing award by covenant .... 6. Enforcing award by action on the case . 7. Points of practice in actions to enforce aivards Interest recoverable on sura awarded . , 505 505 505 506 507 508 509 511 511 512 CONTENTS OF THE TREATISE. XXXV SECTION II. HOW TO STATE AN AWAED IN PLEADING PAGK lyj^^j. Ill, CH. in. . 512 1. Averments in pleadings stating an award . . . 512 Indebitatus count on the award . . . .519 2. Averments in pleadings, stating an award in debt on an arbitration bond 519 SECTION III. THE EFFECT OF AN AWAED AS A PLEA 522 When award must be pleaded ..... 522 When plea of award without performance valid . 523 Award a bar when accord and satisfaction a bar . 524 SECTION IV. HOW TO ANSWEE IN PLEADING AN AWAED PLEADED 1. Traversing the submission .... 2. Pleading 7io award made Plea of no award in action on arbitration bond Plea of no award in action on the award. 3. Misconduct or mistake of arbitrator not pleadable 4. Pleading performance of the auKird 6. Other pleadings to defeat the award Statute of Limitations .... Revocation of submission Foreign attachment .... Demurrer to pleading stating bad award 526 526 526 527 528 529 531 532 532 532 532 534 SECTION V. EFFECT OF AN AWAED IN EVIDENCE 534 1. Proof of the submission and aivard . . . . . 534 Proof of execution of submission by all parties requisite ........ 534 When rule of court evidence of submission . . 534 2. Valid award conclusive as evidence . . . . 536 Not evidence as an account stated .... 530 Not evidence on indictment of party . . . . 537 XXXVl CONTENTS OF THE TREATISE. Part III. paoh cu. IV. 3. Effect of an atvard as evidence as to strangers . . 537 No evidence of right or reputation against strangers 537 Not evidence for the crown against the party . . 537 Award acted on evidence affecting strangers . . 539 Impeaching by evidence award put in evidence . . 540 Evidence admissible to show award not final . . 540 Not to show misconduct or mistake of arbitrator . 541 CHAPTER IV. THE AWARD AS A GROUND OF PROCEEDINGS OR DEFENCE IN EaUITY 544 SECTION I. ENFOECING AN AWARD BY BILL IN EQUITY . 1. When a bill in equit]/ will lie . . Performance of award enforced as of a contract 2, When award invalid or inequitable . Directions invalid in law not enforceable Awards affecting infants or married women Affecting strangers ..... 544 544 545 549 549 549 551 SECTION IL PLEADING AN AWAED IN BAR TO A BILL IN EQUITY . . . 652 Pleading award to bill to set it aside . . . 552 Denying by plea and answer corruption charged in the bill : . 554 SECTION III. ENFOBCING AN AWARD BY SUMMARY PROCEEDINGS IN EQUITY . 556 1. Whether the award must be made an order of court before enforcement 56(S Motion to make award order of court requires notice 556 3. Motion and petition to enforce award . . . . 559 CONTENTS OF THE TREATISE. XXXVll Enforcing on motion award under Statute of WiUiam III 559 Practical steps to enforce award . . 559 Party imprisoned until he obej's award 560 Enforcing on motion award under order of equity in a suit ........ 561 Attachment, sequestration, Serjeant-at- arms . . . . . . . 561 "Writ of assistance as to land. . . 562 Order to deliver possession of laud enforced as judgment in ejectment . . . . . . 562 Enforcing payment by elegit and fi. fa. under Statute of Victoria 562 Enforcing award in charity suit, on petition . . 563 PAGE Part III, en. V. CHAPTER V. MAKING THE SUBMISSION A RULE OF COURT . . 565 SECTION I. HAKING IHE SUBMISSION A KULE OF A COTTET OE LAW . . 565 Must be made a rule before proceeding on the award 565 Except on compulsory reference . . . . 565 Submission in an action — practice making it a rule 566- Submission under the Statute of William III. . 567 Attesting witness compellable to make affidavit . 567 When enlargements of time and appointment of umpire to be made part of the rule . . . 569 Making copy rule when submission lost or withheld 570 SECTION II. MAKING THE STJB]U:iSSION A EULE OF CHANCEET . . . 572 Practice making submission order of court . . 572 Making award order of court .... 573 SECTION III. MAKING A SITBMISSION UNDEU THE LANDS CLAtTSES CONSOLIDA- TION ACT A EULE OF COUET 574 XXXVni CONTENTS OF THE TREATISE. Part III. en. VI. Whether appointments of both arbitrators must be made rule ........ 574 Practice in the Queen's Bench .... 575 Practice in Chancery ...... 575 Advisable to make appointments of tbe arbitrators in duplicate ....... 576 Appointment of umpire need not be made rule . . 576 CHAPTER VI. ENFORCING THE AWARD BY ATTACHMENT . . i 578 SECTION I. rN WHAT CASES AN ATTACHMENT WILL BE GEAKTED . . 578 1. Only ivhen submission a rtde of cotn't . . . . 578 Not if cause abates by death of party . . . 580 2. For ivJiom and for what an attachment will be granted 580 Not to recover interest on sum awarded . . . 581 3. Who not liable to be attached 582 4. On what aivards attachment refused . . . . 583 Doubtful on compulsory reference .... 583 Discretionary to grant attachment . . . . 584 No attachment, validity of award doubtful . . 585 5. N^o proceeding hy attachment and action at tlie same time 586 SECTION II. STEPS NECESSAET TO BEING THE PAETY INTO CONTEMPT . . 588 1. Demanding performance of the award . . . . 588 Submission must first be made rule . . . 588 Demand by agent, what sufficient authority . . 589 2. Service of the ride, award, and other documents . , 591 CONTENTS OF THE TREATISE. XXXIX SECTION III. THE COTJESE OF THE MOTION FOU AN ATTACHMENT 1. Affidavits on the motion for an attachment . 2. The rule nisi for an attachment 3. What mai/ be shotvn for cause against the rule 4. Discharging or making absolute the rule . 5. Proceedings on the attachment PAGE Part III. OH. TH. 594 594 598 600 604 605 CHAPTER VII. ENFORCING THE AWARD BY PROCEEDINGS UNDER THE STATUTES Oil SECTION I. ETJLE TO PAT THE AMOTTKT AWARDED Construction of the statute 1 & 2 Vict. c. 110, s. Discretionary to grant rule . . . . 611 612 614 SECTION II. PEACTICE AS TO OBTAINING THE KITLE 615 1. Practice under tJie, Statute of Victoria . . . . 615 Same practice as for attachments . • . .615 2. Ride to deliver land under Common Law Procedure Act, 1854 622 3. Enforcing award under the Railway Companies Arbi- tration Act, 1859 . . . . . . .622 Xl CONTENTS OF THE TREATISK. Part III. CHAPTER VIII. CH. VIII. , PAGE ENFORCING THE AWARD BY PROCEEDINGS IN THE CAUSE REFERRED 623 SECTION I. BNTEKING THE TEKDICT PTJESTJANT TO THE AWAUD . . . 623 Practice as to entering the verdict .... 625 SECTION II. TAXING THE COSTS OE THE CATTSE 627 Taxing costs of the reference . . . .627 Scale of costs 631 SECTION III. SISKINQ JTJDGMENT PURSUANT TO THE AWARD .' . . . 634 On compulsory reference ...... 636 Moving for judgment on indictment referred . . 638 Award on appeal to Quarter Sessions entered as judgment of court 638 SECTION IV. ISSUING EXECUTION FOE THE AMOUNT AWARDED . . . 639 Execution against a public company by mandamus 639 CHAPTER IX. SETTING ASIDE AN AWARD ON MOTION . . .541 SECTION T. THE JUEISDICTION OF THE COURTS TO SET AN AWAED ASIDE ON MOTION 642 Only when submission can be made a rule . . 642 CONTENTS OF THE TREATISE. Xli SECTION II. WITHIN WHAT PEEIOD THE MOTION TO SET ASIDE AN AWARD MUST BE MADE 1. When mvard under the Statute of Will. III. Whether court can give further time 2. When award in a cause at common law When verdict taken and cause only referred When cause and aU matters referred When no verdict taken ..... Time for moving to enter verdict pursuant to point raised in award ...... 3. Wlien the reference is compulsory Whether further time allowed on awards at common law . . . PACK Part III. CH. IX. 643 643 646 648 649 649 650 651 651 651 SECTION III. FOB WHAT CAUSES AN AWAED MAT BE SET ASIDE ON MOTION . 654 1. Where the conduct of the arbitrator corrupt or irre- gular 654 Same grounds on references by compulsion and by consent ......... 654 2. When the award a mistaken decision in laio or fact . Q5Q Not set aside for erroneous judgment of arbitrator . 656 Whether for a mere mistake ..... 657 3. When the aivard is a nullity 657 Set aside if anything could be done on it . . 658 4. When the award is not final 658 5. When the award is uncertain 660 6. WTien the arbitrator has exceeded his autlwrity . . 661 7. Where joarty or witness in fault, or new matter dis- covered 662 8. Wlien the aivard is under the Statute of William III. . 665 What are "corruption and undue means" . . 665 SECTION IV. MO VINO TO SET ASIDE AN AWAED .... 1. T/ie affidavits on a motion to set aside an aivard 666 xlii CONTENTS OF THE TREATISE. Part III. I'^oe cii. X. 2. T]be viotion to set aside an award .... GG8 Who may move to set the award aside . . . 668 Moving to set aside certificate .... 669 Submission must be made rule before motion , , 670 SECTION V. THE EULE NISI ON MOTIONS TO SET ASIDE AN AWARD . . 672 1. Drawing up the rule nisi to set aside the award . . 672 2. Stating tJie grounds of motion in the rule nisi . . 074 SECTION VI. SHOWING CAirSE AGAINST THE ETJLE TO SET ASIDE AN AWATID . 677 1. Practice on shoiving cause against the rule . . . 677 2. WJiat may he shown for cause against the rule . . 678 SECTION VII. DISCHARGING OE MAKING ABSOLUTE THE RULE TO SET ASIDE AN AWARD 682 682 682 682 1. Hesidt of the motion to set aside the award Not set aside unless clearly void . When part only set aside . . 2. Costs of the motion to set aside the aivard 683 CHAPTER X. SETTING ASIDE THE JUDGMENT ENTERED UP PUR- SUANT TO AN AWARD' 685 Motion not limited to time for setting aside award 685 Only for defects on face of the award . . . 686 Or for irregularity in entering judgment . . . 687 No need to specify objections in rule nisi . . 688 CONTENTS OF THE TREATISE. xliii CHAPTER XL PAGE IMPEACHING AN AWARD IN EaUITY . . . . 689 SECTION I. IN WHAT CASES CHANCERY HAS JTJEISDICTION TO SET ASIDE AN AWARD • . . 689 1. When aivard not under the Statute of William III. . 689 2. When aivard under the Statute of William III. . . 690 Equity no jurisdiction when submission rule of law 690 No jurisdiction by bill though submission to be order of Chancery 694 Part III. CH. XI. SECTION II. EOR WHAT QROTTNDS EaUITT WILL SET ASIDE AN AWARD . . 695 Grounds in equity generally same as at law . . 695 SECTION III. WHAT THE MODES OP PROCEEDINa TO SET ASIDE AN AWARD IN EaXJITT 1. Proceeding hy hill to set aside an award . 2. Proceeding by motion to set aside an award . Submission must be made order of court 3. Filing exceptions to an aivard in a suit 699 699 701 701 703 CHAPTER Xn. EFFECT OF THE FAILURE OF THE REFERENCE . SECTION I. THE REPERENCE EAILING, PROCEEDING IN THE CATTSE REFERRED Action may generally proceed .... Effect of a juror having been withdrawn . . . 705 705 705 706 xliv CONTENTS OF THE TREATISE. Part III. page cu. xir. Court compelling defendant to refer again . . 707 Reference failing, suit in equity proceeds . . . 709 On abortive reference by Quarter Sessions appeal may be heard ....... 709 When no award under Lands Clauses Act jury to settle compensation 709 SECTION II. ENFOECING TN" EQT7ITT A CONTEACT DEPENDENT ON AN ABOR- TIVE KEFEEENOE 709 Submission of essence of the contract, and no part performance, bill not lie .... . 709 Specific performance, if submission not of essence or part performance 710 CONTENTS OF THE APPENDIX OF FOPvMS. SUBMISSIONS. I. Submission by agreement .... 1. Commencement . 2. Recital of differences, subject referred 3. Appointment of arbitrator 4. Formal requisites of award 5. Death of party no revocation . 6. Duration — power to enlarge 7. Power over costs .... 8. Agreement to be made rule of court 9. Power to order what shall be done . 10. Parties and witnesses to be sworn 11. Power to proceed ex parte 12. Power to call for documents 13. Parties to forward, not prevent award 14. Parties to abide by award . 15. Parties not to bring action or suit . 16. Power to refer back award 17. Conclusion ..... 715 715 715 715 715 715 715 715 716 716 716 716 716 716 716 717 717 717 CLAUSES IN SUBMISSIONS. 18. Recital, special differences ; matters referred 19. Recital, action pending ; matters referred 20. Recital, bill in Chancery dismissed ; matters referred 21. Recital, partnership ; matters referred 22. Appointment of two arbitrators and an umpire 23. Appointmenl; of an umpire from time to time . 24. Appointment of two arbitrators who are to appoint a third 25. Formal requisites of award .... 26. Duration — powers to enlarge .... 27. Umpire to have further time than arbitrators . 28. Death of party not to affect reference . 29. Costs of reference to abide event 30. Costs of cause to abide event — of reference in discretion — power to certify ........ 717 717 718 718 718 713 718 719 719 719 719 720 720 Xlvi CONTENTS OF THE APPENDIX OF FORMS. PA OB CLAUSES IN SUBMISSION {continued). 31. Costs as between attorney and client .... 720 32. Evidence taken by one arbitrator may be acted on by both or umpire ......... 720 33. Umpire not to rehear case unless requested . . . 720 34. Dispensing with regular evidence . .... 720 35. Power to arbitrator to proceed ex parte . . . 721 36. Power to state a case for the court's opinion . . . 721 37- Power to make preliminary award raising point of law . 721 38. Power to direct entry of verdict ... . . 721 39. Power to award entry of judgment — by default . . Itl 40. Power to order action to be discontinued and bill dis- missed .......... 721 41. Relieving arbitrator from finding on the issues . .722 42. Power to employ an accountant . .... 722 43. Power to order drains to be made .... 722 44. Power to order removal of obstructions . . . . 722 45. Power to cause plans and maps to be made . . " . 722 46. Costs of maps and plans ....... 722 47. Principle on which to calculate value of land . . . 723 48. Party preventing ai'bitrator to pay costs . . . . 723 49. Making admissions ....... 723 50. Power to court to refer back — to same or different arbi- trator 723 51. For appointing new arbitrators ..... 723 52. Liquidated damages for refusing to appoint new arbitrator 724 53. Penalty for breach of submission . . . . . 724 54. Parties to pay arbitrator's charges .... 724 II. Concise form of agreement of reference 724 III. Agreement of reference by executor as to liability of testator, and as to assets ......... 724 IV. Agreement of reference by executor as to testator's liability, not as to assets ........ 725 V. Agreement to refer questions relating to contract for sale of land 726 VI. Arbitration clause in a deed of partnership , . , 727 VII. Submission by bond 728 Vlll. Condition of arbitration bond w ithout recitals . . . 729 IX. Arbitration bond referring all differences between six partners . 730 X. Submission by deed 730 XI. Submission by order of a judge 731 XII. Submission by order of a judge — stranger added as party . 732 XIII. Submission by order of Nisi Prius on the usual terms . . 732 Power to direct entry of verdict . . . . . . 733 Death of party no revocation . . . . , .733 Power to enlarge time . . , . . . . . 733 Costs of cause to abide event — of reference in discretion . . 733 Power to amend record, and to certify as judge of Nisi Prius , 733 CONTENTS OF THE APPENDIX OF FOllMS. xlvil Parties and witnesses, &c., to be sworn .... 733 Power to call for documents . . . ■ . • • 733 Parties to obey award ........ 733 Parties not to sue ......••• 734 Party presenting award to pay costs . . . . • 734 Order to be made rule of court ....•• 734 Court power to refer back . . . . . . .734 XIV. Commencement of order of Nisi Prius at the sittings in Middlesex or London 734 XV. Style and title of the several judges .... 734 XVI. Order of reference, a juror withdrawn . . . . 735 XVII. Order of reference of cross actions .... 735 XVIII. Order of reference, stranger added 735 XIX. Order of reference to state a special case ' . . . 735 XX. Order of reference of indictment . . . ■ . . 736 XXI. Submission by rule of court 737 XXII. Submissionof suitandallmattersbyorderof Chanceiy(a) 737 XXIII, Submission by order of Chancery in a charity suit . . 738 XXIV. Demand of arbitration as to compensation for lauds taken under the Lands Clauses Act . . . . 739 XXV. Demand of arbitration as to compensation for lands, &c. injured in making a Railway, &e. .... 740 XXVI. Appointment of arbitrator under the Lands Clauses Consolidation Act . . . . . , . 741 XXVII. Appointment of arbitrator by a Railway Company . 742 XXVIII. Appointment of single arbitrator to act for both parties, promoters refusing to appoint an arbitrator , . 743 XXIX. Appointment of arbitrator by party dissatisfied with surveyor's valuation of the lands taken . . . 744 XXX. Appointment of umpire by arbitrators indorsed on sub- mission . . . . . . . . . 74 1 XXXI. Appointment of umpire by arbitrators . . . . 745 XXXII. Judge's order appointing umpire under the Common Law Procedure Act, 1854 745 XXXIII. Appointment of umpire by arbitrators under the Lands Clauses Act ........ 745 XXXIV. Appointment of umpire by Justices or the Commis- sioners of Railways 746 XXXV. Appointment by two arbitrators of a third arbitrator to act with' them ....... 747 XXXVI. Notice to the company of appointment of arbitrator by the claimants ....... 747 XXXVII. "Warrant of attorney in ejectment to enforce delivery of lands if awarded ....... 749 {a) A like form bas been used in the case of Lee v. Austen, V. C. E. 5th Au-ust, 1»48. E. D. C. Reg. Xlviii CONTENTS OF THE APPENDIX OF FORMS. XXXVIII. Warrant of attorney to enforce payment of money awarded ......... 751 XXXIX. Order of reference from a court of Quarter Sessions . 752 XL, Order of compulsory reference under the Common Law Procedure Act, 1854 753 XLI. Postea when the judge upon the trial of an issue directs a reference to arbitration 753 PROCEEDINGS DURINa THE REFERENCE. XLII. Appointment for a meeting in the reference . . . 755 XLIII. Appointment for two meetings 755 XLIV. Peremptory appointment 755 XLV. Appointment with notice arbitrator will proceed ex parte ......... 756 XLVI. AflBdavit to obtain order for attendance of witness . . 756 XLVII. Certificate of attorney to obtain order for attendance of witness 757 XLVIII. Judge's order for attendance of witness . , . , 757 XLIX. Memorandum for jurat of witnesses .... 758 L. Jurat of witnesses ........ 758 LI. Form of oath to be used by the arbitrator . . . 758 LII. Another form of oath ....... 759 LIII. Form of affirmation 759 LIV. Another form of affirmation 759 LV. Demand by arbitrator of production of documents . 759 LVI. Request by arbitrator of written specification of matters in difference . . . . . . . . 760 LVII. Notice by arbitrators to umpire of disagreement . .760 LVIII. Enlargement of time by the arbitrator . . . . 760 LIX. Enlargement of time by the parties .... 760 LX. Rule for enlargement of time by consent . , . 761 LXI. Order of Chancery for enlargement of time by consent 761 LXIT. Summons for enlargement of time by a judge . . 7G2 LXIII. Judge's order for enlargement of time . . . . 762 LXIV. Rule nisi for enlarging the time under the statute . 762 LXV. Rule absolute for enlarging the time under the statute 763 LXVI. Judge's order enlarging time, and stating case under the Common Law Procedure Act, 1854 . . . 763 LXVII. Summons for leave to revoke ..... 763 LXVIII. Judge's order for leave to revoke 764 LXIX. Rule nisi for leave to revoke 764 CONTENTS OF THE APPENDIX OP FORMS. xlix LXX. Rule absolute for leave to revoke 764 LXXI. Eevocation of the submission by a party . . . 764 LXXII. Notice of revocation to the arbitrator . . . . 764 LXXIII. Notice to the parties that the award is made . . 765 AWARDS. LXXIV. Award on a reference by order of Nisi Prius on the usual terms ........ 766 Recital of part of order of Nisi Prius ..... 766 of enlargement of time . . . . . . . 766 Award of and concerning the premises .... 767 as to the issues in the cause . . . . . . 767 giving damages in the cause . . . . . 767 direction to pay ........ 767 verdict to stand for plaintiff with reduced damages . 767 as to other matters in difference . . . . . 767 as to costs ......... 767 CLAUSES IN AWARDS. 1. Commencement of award reciting submission by agreement or deed ......... 768 2. Commencement of award reciting submission by bond . 768 3. Commencement of award reciting other submission by bond .......... 768 4. Commencement of award on a submission by deeds poll . 769 5. Commencement of award on a submission by judge's order 769 6. Commencement of award reciting order of Nisi Prius made at the sittings in London or Middlesex . . . . 769 7. Commencement of award on a reference by order of Nisi Prius at the assizes ....... 769 8. Commencement of award on a reference of an indictment at Nisi Prius 769 9. Commencement of award on a submission by rule of court 769 10. Commencement of award on a submission by order of Chancery 769 11. Recitals in award by umpii-e . . . . .770 12. Preamble introductory to awarding part of award . . 770 13. Award, plaintiflf good cause of action on two counts, no cause of action on third count ..... 770 14. Award defendant to pay sum in full of all demands in the cause .......... 770 15. Award on the several issues in the cause . . . 770 16. Award on non-assumpsit ...... 770 d CONTENTS OF THE APPENDIX OF FORMS. CLAUSES IN AWARDS (continued). 17. Award on non-assumpsit on the indebitatus counts, part for defendant ........ 770 18. Award on tender as to part, on non-assumpsit as to re- sidue 771 19. Award on nunquam indebitatus in debt . . . . 771 20. Award in debt when money paid into court. . . . 771 21. Award on plea of non est factum . . . . . 771 22. Award in debt on indemnity bond .... 772 23. Award in detinue ........ 772 24. Award on plea not guilty in case, trover, and trespass . 772 25. Award on plea not guilty, de injuria, and new assignment in trespass ........ 772 26. Award of damages in a cause . . . . .772 27. Award as to matters not in the cause . . . . 773 28. Award for defendant, balance of set-off .... 773 29. Award of a stet processus . ; . . . . 773 30. Award of verdict for plaintiff, with certificate for speedy execution ........ 773 31. Award of a non-suit, or verdict for defendant . . . 773 32. Award of a verdict for defendant on some issues . . 773 33. Award on a demurrer ....... 773 34. Award of entry of judgment ..... 774 35. Award of judgment by default ..... 774 36. Award suit to be dismissed ..... 774 37. Award as between parties that bill be dismissed and in- junction dissolved' ....... 774 38. Award in ejectment, with certificate for immediate pos- session ......... 774 39. Award in ejectment on two demises . . . . 774 40. Award in ejectment, specifying lands for each party . 775 41. Award, defendant to pay costs of cause . . . . 775 42. Award, each party to bear his own costs of cause . . 775 43. Award, defendant to pay costs of reference and award . 775 44. Award, each to bear his own costs of the reference, and pay half costs of award ...... 775 45. Award, each to pay half costs of reference and award . 776 46. Award, some defendants to pay the costs . . . 776 47. Award, each party to pay proportion of costs . . . 776 48. Award, all costs to be added together, each to pay a pro- portion •••...... 776 49. Award of costs in equity ...... 776 60. Award of certificate cause fit to be tried before a judge . 777 61. Award of certificate cause fit to be tried by a special jury 777 52. Award of certificate action brought to try a right . . 777 63. Award of mutual releases . . , . . , 777 64. Award, sums, &c., awarded to be in full satisfaction . 777 55. Award against executor ....... 777 56. Award on partnership accounts ..... 778 67. Award of dissolution of partnership, on terms , . . 779 58. Award between partners 78O CONTENTS OF THE APPENDIX OF FORMS. CLAUSES IN AWARDS {continued}. 59. Award of assignment of leasehold and release . 60. Award to deliver up deeds ...... 61. Award of conveyance of fee . . . . . . 62. Award to remove hatches as far aa defendant can . 63. Award to prostrate embankment . . . . . Oi. Award to erect a bridge on stranger's land, if consent had Award adjusting right to tithes when impossible to ascer- tain boundaries ....... Award how property to be used and repaired . . . Award, raising point of law on request for opinion of the court as to validity of plea and custom alleged in it Award raising special point of law for opinion of the court as to effect of the Building Act . .... Award raising point for opinion of the court as to liability of Commissioners of Sewers ..... Award in case for nuisance — distributive findings . . 71. Award as to drains to be made ..... LXXV. Certificate of arbitrator finding for plaintiff . . . LXXVI. Award on indictment directing prostration of nuisance LXXVII. Award on actions, cross-accounts, mortgages, right to property, and possession of premises . . . . LXXVIII. Award containing special directions as to removing obstructions and regulating the water-way before plaintiff's premises ...... LXXIX. Award by umpire of compensation under the Lands Clauses Consolidation Act ... ... LXXX. Award amended on reference back .... LXXXI. Award confirmed on reference back . . . , LXXXII. Award as to the use of the waters of a well and stream 65. 66. 67. 69. 70. 780 781 781 781 781 781 781 782 783 786 787 788 789 790 791 793 793 797 804 808 808 809 PLEADINGS. LXXXIII. Declaration in assumpsit on an award . . . 813 LXXXIV. Indebitatus count on an award 814 LXXXV. Indebitatus count on an umpirage .... 814 LXXX VI. Indebitatus count for costs of cause, reference, and award ......... 814 LXXXVII. Declaration in assumpsit against executors of party dying pending the reference . .... 814 LXXXVIII. Declaration in assumpsit by arbitrators for their costs of the award 816 LXXXIX. Plea of no award and revocation . . . .817 XC. Plea of an award in assumpsit in bar of action . . 817 ti 2 lii CONTENTS OF THE APPENDIX OF FORMS. PAGE XCI. Declaration in debt on an award on a submission by bond 818 XCII. Declaration in debt on an award by the assignee of an insolvent 819 XCII I. Declaration in debt on the arbitration bond . .821 XCIV. Plea of no award in debt on an arbitration bond . 821 XCV. Replication in debt on the bond to a plea of no award setting forth the award and breaches . . 821 XCVI. Rejoinder, no such award, to replication setting forth an award ....... 822 XCVI I. Plea of an award and performance in debt on the arbitration bond ....... 822 XCVIII. Declaration in covenant on a submission by deed . 823 PROCEEDINGS ON THE AWARD. XCIX. Affidavit of execution of bond of submission . . . 825 C. Affidavit of execution of an award .... 825 CI. Affidavit verifying copy of award on motion to set aside award 826 CII. Affidavit of enlargement of time .... 826 CIII. Rule making submission by bond and enlargement of time a rule of court . . . . . . 826 CIV. Rule making a judge's order a rule of court . . 827 CV. Rule making an order of Nisi Prius a rule of court . 827 CVl. Rule making order of reference by Quarter Sessions a rule of court 828 CVII. Order making submission an order of Chancery (a) . 828 CVIII. Rule making submission under the Lands Clauses Consolidation Act a rule of the Q,ueen's Bench . . 828 CIX. Order making submission under the Lands Clauses Consolidation Act an order of Chancery . . 829 ex. Special notice of motion to make submission under the Lands Clauses Act an order of Chancery . . 829 CXT. Order making submission under the Lands Clauses Act an order of Chancery on one only of the two appointments of arbitrators 830 CXII. Order making an award an order of Chancery by consent 831 (a) Submissions have been made orders of Chancery by similar forms in these modern cases :— Fisher v. Mackrell, V. C. E., 14 January, 1846, H. H. Keg. ; Clarke, Ex parte, deceased, V. C. K. B., 1 Aug. 1846 ; Turnley v. Barber, L. C, 31 July, 1840, E. D. C. Keg. ; Fradley v. Haslam, M. R., 1 Ap. 1847, J. C. Keg. CONTENTS OF THE APPENDIX OF FOKMS. liii Page CXIII. Order making award order of Chancery on affidavit of notice of motion 832 CXIV. Order making award order of Chancery on motion opposed 832 CXV. Tabular statement showing the modes of enforcing an award made an order of Chancery , . . 833 CXVI. Affidavit of service of rule, &c., and award, and of demand of sum and costs awarded . . . . 834 CXVII. Power of attorney to demand money and costs awarded 834 CXVIII. Rule nisi for an attachment for non-payment of sum awarded ........ 835 CXIX. Rule absolute for attachment ..... 835 CXX. Rule absolute for attachment, no cause being shown 836 CXXI. Rule adjudging party attached in contempt, and committing him ....... 836 CXXII. Rule directing imprisonment of party attached, and adjudged in contempt 836 CXXIII. Rule nisi to pay money and costs awarded . . 837 CXXIV. Rule absolute to pay money and costs awarded . . 837 CXXV. Judgment on a special case stated by an arbitrator . 837 CXXYI. "Writ of execution on award on compulsory reference of action 838 CXXVII. Writ of habere facias possessionem on rule to deliver possession of land awarded ..... 838 CXXYIII. Rule to allow motion to set aside award, and to draw up rule embodying order of reference nunc pro tunc 839 CXXIX. Rule nisi to set aside award ..... 839 CXXX. Rule absolute to set aside award . . ... 840 CXXXI. Rule absolute to set aside ax^ard, no cause being shown 840 CXXXII. Rule referring award back to arbitrator . . . 840 CXXXIII. Notice of motion to set aside award in Chancery . 840 CXXXI V. Order nisi to set aside award in Chancery under the Lands Clauses Act 841 CONTENTS OF THE APPENDIX OF STATUTES RELATING TO ARBITEATION. — ♦— Determinhiff Differences by Ai-bitration. PAGE 9 & 10 Wm. III. c. 15 843 Expenses of Prisoners. 5 Geo. IV. c. 85, s. 2 844 5 & 6 Will. IV. c. 76, s. 114 . 844 5 & 6 Vict. c. 98, s. 20 845 7 & 8 Vict. c. 93 845 Masters and Workmen. 5 Geo. IV. c. 96 846 7 Will. IV. & 1 Vict c. 67, ss. 1, 2, 3 . . . . . . 855 8 & 9 Vict. c. 77, s. 3 856 8 & 9 Vict. 0. 128. s. 3 856 Savings' Banks. 9 Geo. IV. c. 92, s. 45 857 7 & 8 Vict. c. 83, ss. 14, 15, 21 857 26 & 27 Vict. c. 87, ss. 48, 49 858 Ecclesiastical and Collegiate Lands. 2 & 3 Will. IV. c. 80 858 17 & 18 Vict. c. 116, Bs. 4, 9 860 Amendment of the Law. 3 & 4 Will. IV. c. 42, ss. 39—41 861 Conveyance of Hails by Railways. 1 & 2 Vict. c. 98, ss. 16, 18 862 Insolvents. 1 & 2 Vict. c. 110, s. 51 862 7 & 8 Vict. c. 96, s. 13 863 I VI CONTENTS OF THE APPENDIX OF STATUTES. PAGE Joint Stock Companies. 8 & 9 Vict. c. 16, ss. 128—134 863 Lands taken for a Puhlic Undertaking, 8 & 9 Vict. c. 18, ss. 23, 25—37, 63—68, 124, 125, 130 . . 864 Railways. 8 & 9 Vict. c. 20, ss. 126—137 868 Inclosure of Commons, 8 & 9 Vict. c. 118, s. 60 870 Small Debts. 9 & 10 Vict. c. 95, s. 77 870 Public Health. 11 & 12 Vict. c. 63, ss. 123— 128, 144 870 Quarter Sessions. 12 & 13 Vict. c. 45, ss. 12— 15 872 Bankrupts. 12 & 13 Vict. c. 106, ss. 153, 154 -873 Common Law Procedure. 17 & 18 Vict. c. 125, ss. 3—17 874 Friendly Societies. 17 & 18 Vict. c. 56, s. 6 877 18 & 19 Vict. c. 63, s. 41 877 Local Government. 21 & 22 Vict. c. 98, ss. 4, 69, 70, 74 . . . : . . 877 Railway Companies Arbitrations, 22 & 23 Viet. c. 59 878 Railway Companies Amalgamations. 26 & 27 Vict. c. 92. s. 44 881 TABLE OF CASES CITED IN THE TKEATISE, Abbott V. Aslett, 517 Abrahat v. Brandon, 314, 403 Adam v. Eowe, 331 Adams v. Adams, 218, 246, 403 Adams v. Bankhart, 20, 21, 25, 468 Adams v. Broughton, 464 Adams v. Statham, 424 Adams v. Yeoman, 90 Adcock V. West, 670 Adcock V. Wood, 121, 421, 529 Addison v. Gray, 258, 272, 279, 317, 362, 521 Addison v. Spittle, 246, 317 Agar V. Macklew, 65 Ainsley v. Goff, 113 Aitcheson v. Car gey, 312, 316 Aitken's Arbitration, 397, 398, 402, 445 Alardes v. Campbell, 56, 691 Alder v. Park, 84, 150, 196 Alder v. Savill, 74, 82, 302,' 426 Aldridge v. Harper, 76, 87 Alford V. Lea, 502 Alivon V. Furuivall, 107 Allen V. Francis, 176 Allen V. Harris, 523 Allen V. Lowe, 110, 119, 335, 349, 351, 660, 674 Allen V. Milner, 3, 523, 524, 536 Allen V. Morrison, 240 Allen V. Papworth, 16 Allenby v. Proudlock, 5, 57, 75, 78, 88, 367, 632, 649, 650, 651, 676 Alsop V. Senior, 21, 419 Ambler v. Tebbutt, 91 Ames V. Milward, 290, 304, 661 Anderson v. Coxeter, 57, 649, 665 Anderson v. Darcy, 193, 296 Anderson v. Fuller, 305, 626, 651 Anderson v. Wallace, 187, 200, 273 Andrews v. Eaton, 142 Andrews v. Palmer, 154, 155, 156, 487, 687 Angell V. Felgate, 90 Anglesey, Marqixis of, v. Chafe y, 512 Angus V. Bedford, 110, 117, 197, 245, 338, 349, 350, 353, 361, 384, 406, 425, 462 Angus V. Smythies, 192 Annan v. Job, 347 Anning v. Hartley, 186, 209, 235, 445, 446, 447 Anon. Andr. 299 ; 687, 600 Anon. 3 Atk, 644 ; 295, 465, 466, 468 Anon, 2 Barnard, 163 ; 60 Anon. Barnes, 58 ; 568 Anon. 1 Bulst. 184 ; 232 Anon. 1 Chitt. 38 ; 361 Anon. 2 Chitt. 44 ; 179, 296 Anon. 2 Chitt. 45 ; 137 Anon. 1 Cromp. Pract. 265, 3rd ed. ; 17, 18, 583, 602 Anon. 1 D. & E. 529 ; 593 Anon. 1 Dowl. 5 ; 511 Anon. Dyer, 242, a. ; 93, 257 Anon. Freem. 378 ; 218 Anon. Jenk. 129 ; 132, 213, 274 Anon. 1 Keb. 92 ; 275, 391, 424 Anon. Latch. 14 ; 126 Anon. 1 Leon. 306 ; 419, 420 Anon. 3 Leon. 53 ; 29 Anon. March 18 ; 422 Anon. 1 Mod. 24 ; 85 Anon. 6 Mod. 16 ; 27 Anon. 12 Mod. 8 ; 314, 403 Anon. 12 Mod. 257 ; 579, 592, 593 Anon. 12 Mod. 525 ; 568 Anon. 12 Mod. 560 ; 398 Anon. F. Moore, 3 pi. 8 ; 498 Anon. F. Moore, 3 pi. 9 ; 531 Anon. F. Moore, 3 pi. 11 ; 423 Anon. 2 Ld. Eaym. 989 ; 238, 514 Anon. T. Eaym. 152 ; 583 Anon. 1 Salk. 71 ; 558, 579 1vii TABLE OF CASES. Anon. 1 Salk. 73 ; 586 Anon. 1 Smith, 358 ; 666, 667 Anon. 1 Smith, 426 ; 373 Anon. 3 Smith, 118 ; 598 Anon. 1 Vent. 87 ; 532 Anon. 2 Vera. 100 ; 109, 224 Ansell V. Evans, 50, 57, 566, 580 Ansell V. Thomas, 618 Antiam v. Chace, 21, 43, 127, 488, 634 Apsley V. Crosley, 87, 486 Arbuckle v. Price, 172, 183 Archer v.. Hale, 73, 87 Archer v. Owen, 305 Armitage v. Coates, 329, 529 Armitage v. Walker, 38, 393, 396 Armitt v. Breame, 275, 284 Armstrong v. Marshall, 105, 110, 193 Armstrong v. Stratton, 511 Arnold v. Pole, 121 Arnold v. Mayor of Poole, 26, 310 Arthur v. Marshall, 618 Ashton V. Poynter, 292, 297 Ashworth v. Heathcote, 49, 84, 118, 123 Astley V. Joy, 382 Aston V. George, 87, 101, 143, 146, 567 Atcheson v. Everitt, 598 Athelston v. Moon, 121 Atkinson v. Abraham, 185, 186 Atkinson v. Jones, 118, 123 Atkyns v. Baldwyn, 390 Attorney-General v. Chomley, 21 Attorney-General v. Clements, 21, 22, 405, 485, 563, 564 Attorney-General v. Davison, 193, 195 Attorney-General v. EUiston, 520 Attorney- General v. Fea, 22 Attorney-General v. Hewitt, 21, 563 Attorney-General v. Jackson, 110, 699 Aubert v. Maze, 5, 111, 316 Auriol V. Smith, 56, 57, 312, 545, 559, 644, 690, 691, 695 Avelett V. Goddard, 334 Ayland v. NichoUs, 286 Ayre and Calder Navigation Case, 299 B. Backhouse v. Taylor, 25, 222, 228 Bacon v. CressweU, 79, 706 Bacon V. Dubarry, 21, 27, 286, 424, 525 Badger, In re, 5, 111, 112, 396 Badley v. Loveday, 587 Badman v. Pugh, 569 Baggalay v. Borthwick, 654 Baguleyv. Markwick, 198, 293,806, 448, 654 Bailey v. Cheeseley, 60 Bailey v. Lechmere, 536 Baillie v. Edinburgh Oil GaaLight Com- pany, 29, 117, 267, 387. Baily v. Curling, 284, 586, 589 Baily v. Taylor, 521 Bainbrigge v. Houlton, 594, 666, 667 Baker's Case, 487, 602, 609 Baker V. Cotterill, 245, 331, 584, 614 Baker v. Hunter, 244, 245, 246, 453 Baker, In re, 32 Baker v. Metropolitan Eailway Com- pany, 544 Baker v. Rye, 87 Baker v. Townshend, 3, 12, 14, 115, 359 BaldAvay v. Ouston, 100 Banfill v. Leigh, 24, 507 Banks v. Banks, 178, 655 Bannatyne v. Leader, 33 Barber v. Giles, 224 Barden v. Keverberg, 16 Bargrave v. Atkins, 279, 317, 320 Barker v. Lees, 145 Barker v. North Stafibrdahire Kailway Company, 442 Barker v. Tibson, 312 Barnard v. King, 218, 224 Barnard v. Moss, 379 Barnardiston v. Fowler, 125, 392, 498 Barnes v. Braithwaite, 460 Barnes v. Greenwel, 262 Barnes v. Hayward, 366, 460 Barnet v. Hayward, 357, 366 Barney v. Fairchild, 322, 422 Barrett v. Fletcher, 520 Barrett v. Parry, 137, 365 Barrett v. Wilson, 305 Barry v. Rush, 30, 403 Bartie v. Musgrave, 363, 632, 681 Barton v. Ransom, 305, 696, 672 Barwick, In re, 599 Baspole's Case, 249, 258, 259, 262 Baspoole v. Freeman, 286 Bass V. Maitland, 592 Bateman v. Countess of Ross, 10, 17 Bates V. Cooke, 218 Bates V. Townley, 363, 457, 507, 513, 536 Bath, Mayor of, v. Pinch, 665, 588, 592 Bayley v. Adams, 554, 555 Beahorn v. Wolfe, 396 Beale v. Beale, 278, 280 Bean v. Newbury, 18, 121, 249 Beard v. Webb, 16 Bearup v. Peacock, 328 Beaufort, Duke of, v. Neeld, 485 Beaufort, Duke of, v. Swansea Har- bour Trustees, 265, 266, 439 Beaufort, Duke of, v. Welch, 291, 683 Beck V. Jackson, 208 Beck v. Sargent, 218, 232 Beckett v. Taylor, 422 Beckingham v. Hunter, 390 Beckwith v. Warley, 315 Bedam v. Clerkson, 283, 419 Bedell v. Moor, 321 Bedington v. Southall, 182 Beeley v. Wingfield, 14 . Beeston v. White, 603, 637 TABLE OF CASES. lix BelcMer v. Rejmolds, 648 Bell V. Benson, 359 Bell V. Postlethwaite, 82, 359, 753 Bell V. Twentynian, 496 Bendict v. Thatcher, 54 Beuett V. Coster, 343 Bennett v. Skardon, 652 Bennett v. Watson, 138, 139, 666, 585, 642, 651, 670 Benson v. Heathorn, 65 Benwell v. Hinxman, 137 Bemey v. Read, 534 Berry v. Penring, 252 Berry v. Perry, 116, 210 Berry v. Wade, 18, 551 Bevan v. Bevan, 594 Bhear v. Harradine, 55, 58, 252, 633 Biddell v. Dowse, 19, 27, 287, 513 Biggs V. Hansell, 175 Bigland v. Skelton, 364 Bignall v. Gale, 185, 186, 190, 192, 197, 634, 678, 679, 688 Bignold V. Springfield, 153, 702 Bird V. Bird, 420 Bird V. Cooper, 116, 256, 476 Bird V. Pern-ice, 454 Birks V. Trippet, 249, 258, 263, 518 Bishop V. Bishop, 54, 546, 649, 552 Bishop V. Webster, 546 Bishop of Bath and Wells y. Hippesley, 19, 550 Bissex V. Bissex, 514 Blagrave v. Bristol Waterworks Com- pany, 437 Blair v. Jones, 634 Blake's Case, 3, 13, 525 Blanchard v. Lilly, 11, 75, 325 Blennerhasset v. Day, 109, 112 Block V. Palgrave, 238 Blundell v. Brettargh, 54, 145, 161, 235, 241, 472, 710, 711 Blunt V. Cooke, 84 Blythe v. Lafone, 48 Bodington v. Harris, 25 Bonner v. Charlton, 74, 88, 345, 505 Bonner V. Liddell, 318 Boodle V. Davies, 5, 111, 312, 372, 410, 661, 675, 676, 677, 682 Boorman v. Nash, 154 Booth V. Garnett, 391 Borrowdale v. Kitchener, 110, 624, 625, 634, 639, 649 Borton v. Mesham, 571 Bottomley v. Buckley, 665, 570, 671, 596, 652, 670, 839 Bourke v. Lloyd, 329, 330, 333, 337 Bouttilier v. Thick, 293 Bowen v. Bowen, 584, 614 Bowen v. Williams, 141, 227, 679 Bower, In re, 593 Bower v. Taylor, 160 Bowes V. Fernie, 249, 251, 258, 318 Bowyer v. Blorksidge, 19 Bowyer v. Garland, 508 Boyd V. Emmerson, 20, 242 Boyes v. Black, 364, 403, 404 Boyes v. Hewetson, 592 Bracher v. Cotton, 358 Bradbce v. Christ's Hospital, 305, 307, 310, 352, 676, 677 Bradby v. Southampton Local Board, 434 Braddick v. Thompson, 69, 81, 179, 530 533 Bradford v. Bryan, 249, 251, 258, 259 . Bradley v. London and North Western Railway Company, 96 Bradley v. Phelps, 102, 337, 371, 446 Bradley v. Tunstow, 359, 368 Bradsey v. Clyston, 238, 422, 514 Bradshaw v. East and West India Docks, and Birmingham Junction Railway Company, 95, 168, 220, 229, 294, 428, 435, 442, 443, 670, 676, 662, 679 Brander v. Penleaze, 593 Brandon v. Brandon, 588 Brandon v. Smith, 476 Braunstein v. Accidental Death In- surance Company, 64 Brazier v. Bryant, 357, 365, 459, 460, 530, 600 Brazier v. Jones, 534 Brearey v. Kemp, 491, 615, 618 Brett V. Beales, 540 Bretton v. Prat, 313, 419 Brickhead v. Archbishop of York, 520 Bright V. Durnell, 46, 149, 218 Bristow V. Biuns, 161 British Empire Shipping Company r. Somes, 92, 549 Britt V. Pashley, 70, 118, 352 Broadbent v. Imperial Gas Company, 408, 429, 432, 477, 552 Broadhm-st v. Darlington, 295, 363 Brocas v. Savage, 121 Brogden v. Llynvi Valley Railway Company, 439 Broggref V. Hawke, 382 Bromley, In re, 563 Brook V. Fearns, 637 Brooke v. Mitchell, 132, 237, 460, 517, 644, 645 Brooks V. Parsons, 329, 333, 450, 686 Brophy v. Holmes, 193, 253, 468, 479, 663 Browes v. Bruce, 51 Brown v. Brown, 92, 293, 295, 657, 690 Brown v. Croydon Canal Company, 124, 245, 259, 260, 292, 302 Brown v. Dalton, 320 Brown v. Goodman, 509 Brown v. Hellaby, 290, 298, 654, 665 Brown v. Nelson, 301, 356 Brown v. Probert, 677 Brown v. Tanner, 146, 510 Brown v. Vawser, 238, 241, 477 Brown v. Watson, 314, 392, 402 Ix TABLE OF CASES. Browne v. Collyer, 141, 142, 672 Browne v. Emerson, 90 Browne v. Marsden, 361, 363, 367 Browne v. MevereU, 251, 424 Buckle V. Roach, 25 Burchall v. Ballamy, 707 Burdett v. Harris, 218 Burdon, In re, 142, 143, 678 Burleyv. Stephens, 135, 138, 140, 708 Burnard v. Wainwright, 447 Burnell v. Minot, 20 Burroughes v. Clarke, 457, 458, 581 Burslem Board of Health, In re, 872 Burt, In re, 643 Biu'ton V. Ellington, 555 Burton v. Knight, 108, 109 Burton v. Mendizabel, 617 Burton v. Petrie, 69 Burton v. Wigley, 400, 402 Bury V. Dunn, 110, 384, 446, 448 Busfield V. Busfield, 262, 419, 514, 515 Butcher v. Cole, 554, 555 Butler V. Grubb, 376 Butler V. Masters, 581, 582, 597, 600, 602, 620 Byles V. The Ipswich Dock Commis- sioners, 433, 434 Byrne v. Fitzhugh, 643 Cable V. Eogers, 116, 402 Caddell v. Smart, 364, 490 Caila V. Elgood, 110, 604, 605 Calcraft v. Roebuck, 205 Caledonian Railway Company v. Lock- hart, 131, 138, 139, 159, 160, 176, 180, 199, 202, 312, 437, 682 Caledonian Railway Company v. Ogilvy, 432 Callard, v. Patersou, 636, 687 Calvert v. Redfearn, 593 Campbell v. Twemlow, 193 Candler v. Fuller, 312, 318, 358, 364, 498, 499 Cardigan, Earl, v. Henderson, 591, 604 Cargey v. Aitcheson, 261, 271, 279, 281, 362, 534, 585, 680 Carmichael v. Houchen, 669, 675 Carpenter v. Joynes, 124, 359 Carpenter v. Thornton, 73, 74, 88, 505 Carr v. Smith, 42, 240 Carrol v. Blencow, 16 Carter v. Burial Board of Tonge, 572 Carter v. Carter, 93, 121, 549 Carter v. Mansbridge, 59 Cartwright v. Blackworth, 342, -599 Casamajor v. Strode, 416 Casborne v. Barsham, 34 Cassell, In re, 220, 656 Caswell V. Grocutt, 446, 449, 450 Cater v. Startut, 274 Catmur v. KnatchbuU, 582 Cator V. Croydon Canal Company, 485 Cavendish v. , 19, 54, 287, 550 Cayhill v. Fitzgerald, 23, 27, 269, 286, 424 Cayme v. Watts, 347 Chace v. Westmore, 292 Chamberlain, In re, 605 Chamberlain v. West End of London and Crystal Palace Railway Com- pany, 432, 433, 437 Champion v. Wenham, 696 Chanler v. Driver, 592, 599 Chapman v. Lansdown, 633 Chapman v. Van Toll, 90 Charles, Ex parte, 603 Charleton v. Spencer, 120 Charnley v. Winstauley, 100, 147, 156, 509, 510, 532 Cheslyn v. Dalby, 157, 708, 710 Chichester v. Mac Intire, 109 Chicot V. Lequesne, 109, 465, 467, 530, 690, 692 Child V. Horden, 496, 517 Chilton V. Ellis, 588 Ching V. Ching, 4, 292, 295 Chittenden v. Walker, 374 Chownes v. Browne, 70 Christie v. Hamlet, 246, 585, 672 Chuck V. Cremer, 296, 690, 697 Church V. Roper, 547 Churcher v. Stringer, 512, 581, 639 Clapcott V. Davy, 267, 523, 524, 525 Clapham v. Higham, 101, 658 Clarence Railway Company v. Great North of England Railway Com- pany, 6 Clarke v. Baker, 580 Clarke v. Crofts, 135, 162 Clarke v. Elwick, 568, 586 Clarke v. Owen, 335, 358, 369, 683 Clarke v. Stocken, 108, 142, 149 Cleesby v. Peese, 472 Clegg V, Dearden, 478 Clemenhere v. Tresilian, 579 Cleworth v. Pickford, 63 Cock v. Gent, 342, 659, 679, 681 Cockburnv. Newton, 124, 253, 312, 369 Cocks V. Macclesfield, 235, 238 Cockson V. Ogle, 249, 273, 283 College V. Horn, 28 Collet V. Podwell, 268 Collier v. Hicks, 166 Collins V. Blantern, 13 Collins V. Collins, 43, 216 Collins V. Powell, 478 Collins V. South Staffordshire Railway Company, 95, 96 Colwel V. Child, 27, 288 Cooke V. Whorwood, 321, 392, 421, 606 Cookson V. Monkhouse, 584 Coombs, In re, 457, 458, 460, 461 Cooper V. , 657 Cooper V. Hirst, 287 Cooper V, Johnson, 159, 160, 161 TABLE OF CASES. Ixi Cooper V. Langdon, 5, 118, 290, 334, 344, 659, 680 Cooper V. Pegg, 340, 370, 378 Cooper V. Shepherd, 464 Cooper V. Shuttleworth, 44, 64, 101, 151 Coote V. Pooley, 423 Cooth V. Jackson, 53, 196, 709, 710, 711 Coppard, Ex parte, 387, 398 Coppcll V. Smith, 533, 604 Coppin V. Hurnard, 219, 224, 225 Corbett v. Poehiitz, 16 Coi'iieforth v. Geer, 295 Corpe V. Glyn, 33, 486, 583 Cottam V. Partridge, 708 Coulson V. Graham, 69, 606 Cowel V. Waller, 219, 224 Cowell V. Betteley, 364, 490 Cox V. King, 416 Craike, In re, 589, 590 Cramp v. Symonds, 292 Craven v. Craven, 112, 179, 259, 263, 515 Crawshaw v. York and North Midland Railway Company, 336, 371, 373 Crawshay v. Collins, 156, 157, 196, 207, 701, 703, 704, 709 Cremer v. Churt, 569. See Cromer v. Chiirt. Cresley v. Carrington, 703 Creswick v. Harrison, 265, 604, 614 Crisp V. Bunbury, 36 Croft V. London and North Western Railway Company, 433, 437, 438 Crofton V. Connor, 703 Crofts V. Harris, 266, 523 Cromer v. Churt, 569, 624, 630, 635, 642 Croom V. Gore, 183, 630 Crosbie v. Holmes, 370, 371, 660, 672, 674 Croskey v. The European and American Steam Shipping Company, 91 Cross V. Cross, 446, 449, 450 Cross V. Metcalfe, 84 Cross V. Mitchell, 80 Crossley v. Clay, 109, 185 Crump V. Adney, 406, 519, 543 Cudliffv. Walters, 218, 225, 226 Cuerton, Ex parte, 444 Cummings v. Bicket, 90, 91, 108, 196 Curtis V. Barclay, 24 Curtis V. Bligh, 50, 74, 87, 172 Curtis V. Potts, 128, 533 ■ Cuthill V. Kingdom, 38 D. Dakins v. Wagner, 129, 134 Dale V. Mottram, 419, 420, 422 Calling V. Matchett, 210, 589, 656 Dane v. Viscountess Kirkwall, 32 Danes v. Monsay, 225 • Daniell v. Beadle, 599 Daniels v. Wealds, 599 Darbey v. Whitaker, 65, 196, 544 Darljyshire v. Cannon, 579, 599 Dare v. Chase, 224 Daulniz v. Rickman, 332, 364 Daunt V. Lazard, 47 Davenport v. Vickcry, 447 Davies v. Pratt, 244, 445, 446, 455, 585, 601, 618, 619, 620 Davies v. Price, 44, 190 Davies v. Ridge, 32, 35 Davies v. South Staffordshire Railway Company, 168 Davila v. Almanza, 100 Davis V. Gett}^ 55, 56, 57, 665, 693 Davis V. Page, 17, 19 Davis V. Potter, 599, 605, 621 Davis V. Rea, 556 Davis V. Yass, 593, 596 Davison v. Gauntlett, 136 Dawney v. Yesey, 284, 502 Dawson v. GaiTett, 327 Dawson v. Sadler, 55, 56, 60, 642, 693, 695, 701 Dawson v. York and North Midland Railway Company, 97 Day V. Bonnin, 262, 476 Day v. Mearns, 380 Day V. Smith, 507 De Gaillon v. L'Aigle, 16 Deere v. Kirkhouse, 356, 378 Deerly v. Duchess of Mazarine, 16 Delver v. Barnes, 112, 113, 114, 296 Dennett v. Pass, 590 Dewar v. Swabey, 383 Dibben v. Marquis of Anglesey, 830 Dicas v. Jay, 46, 68, 69, S5, 326, 478 Dicas V. Warne, 593 Dick V. Milligan, 110, 293, 354, 701, 704 Dickenson v. Allsop, 585, 614 Dickins v. Jarvis, 327, 585, 596, 633 Dickman v. Hutherd, 584 Dighton V. Whiting, 524 Dilley v. Polhill, 513 Dimsdale v. Robertson, 6Q, 71, 134, 143 Dobson V. Groves, 13, 186, 190, 203, 304, 472, 474, 655 Dod V. Herbert, 223, 241, 516 Dod V. Herring, 34 Doddington v. Bailward, 14, 226, 426, 497, 581, 592, 593, 602 Dodington v. Hudson, 182, 192, 497, 588 Doe V. Amey, 696, 613, 617 Doe d. Banks v. Holmes, 449 Doe d. Beaufort, Didve of, v. Neeld, 485 Doe d. Body v. Cox, 313, 349, 660, 685 Doe d. Bowman v. Lewis, 333 Doe d. Lord Carlisle v. Bailiff, &c., of Morjjeth, 79 Ixii TABLE OF CASES. Doe d. Chawncr v. Boulter, 540 Doe d. Clarke v. StUlweU, 405, 600, 590, 594, 595, 607 Doe d. Fisher v. Saunders, 164, 708 Doe d. Greville v. Roper, 45, 536 Doe d. Harris v. Sauuder, 6, 485 Doe d. Haxby v. Preston, 473, 671 Doe d. Hickman v. Hickman, 592 Doe d. Jones v. Powell, 140 Doe d. Lloyd v. Evans, 469 Doe d. Madkius v. Horuer, 258, 832, 341, 348, 536, 638, 686 Doe d. Mays v. Cannell, 449 Doe d. Moody v. Squire, 512, 616, 621 Doe d. Morris v. Rosser, 4, 45, 483, 536 Doe d. Morrison v. Glover, 38 Doe d. Nicholson v. Middleton, 157 Doe d. Oxenden v. Cropper, 289, 302, 341 Doe d. Pain v. Grundy, 582 Doe d. Roberts v. Mostyn, 131 Doe d. Simpson V. Emmerson, 119, 294 Doe d. Smith v. Webber, 538 Doe d. Starling v. Hillen, 332 Doe d. Steer v. Bradley, 593, 618 Doe d. Ld. Suffield v. Preston, 241 Doe d. Swinton v. Sinclair, 490 Doe d. Turnbull v. Brown, 145, 601, 658 Doe d. Williams v. Howell, 588, 590 Doe d. Williams v. Richardson, 314, 328, 403 Dole V. Dawson, 246 Domett V. Hellyer, 490 Donlan v. Brett, 342, 584 Dossett V. Gingell, 460 Downes v. Cooper, 4, 540 Dowse V. Coxe, 19, 25, 91, 132, 161, 162, 248, 249, 250, 394, 505, 506, 519 Doyley v. Burton, 403, 498, 514, 515 Doyley v. Pitslow, 219 Drage v. Ibberson, 11 Dresser v. Johns, 604 Dresser v. Stansfield, 117, 334, 515, 529 541 DrewV. Drew, 106, 151, 187, 189 Drew V. Leburn, 151, 184, 189 Drew V. Woolcock, 589, 618 Driver v. Hood, 511, 518 Dryden v. Robinson, 553 Dubois V. Hole, 16 Dubois V. Medlycott, 600, 644 Duckworth v. Harrison, 330, 337 Dudgeon v. Martin, 476 Dudley v. MaUery, 419, 422 Dudley v. Nettlefold, 361 Dunavan v. Mascall, 225 Dunn v. Murray, 478 Dunn v. Warlters, 264, 677 Dunn V. West, 489, 615 Duport V. Wildgoose, 283 Dyer v. Dawson, 631, 541, 542 E. Eads V. Williams, 180, 201, 209, 549 Eardley v. Otley, 663 Eardleyv. Steer, 208, 243, 329, 338, 374, 656 Earle v. Stocker, 106, 108, 181, 197, 654 East and West India Docks, &c., Rail- way Company v. Gattke, 431 Eastern Counties Railway Company V. Robertson, 193, 194 Eastern Union Railway Company v. Eastern Counties Railway Company, 413, 494 Eastham v. Tyler, 165 Eccles V. Blackburn, 356, 627 Edgcombe v. Rodd, 13 Edgell v. Dallimore, 391, 684 Edmunds v. Cox, 159 Edmundson v. Hartley, 554, 655 'Edwards v. Edwards, 90, 631 Edwards v. The Great Western Railway Company, 356, 628 Elborough v. Gates, 515 Elleman v. Williams, 371, 631 EUetson v. Cummins, 116 Elliott V. Chevall, 219, 286 Elliott v. South Devon Railway Com- pany, 107, 703 Ellis v. Arnison, 485 Ellis v. GUes, 693 Ellis v. Hopper, 43, 107 Ellis V. Saltan, 468 Ellison V. Ackroyd, 232, 357 Elsom V. Rolfe, 250, 529 Elvin V. Drummond, 42 Elworthy v. Bird, 13, 28 Emery v. Emery, 273 Emery v. Wase, 18, 108, 199, 200, 319, 392, 550 Emet V. Ogden, 653 Emmerson v. Simpson, 294 England V. Davison, 317, 330,333,380, 682 European and American Steam Ship- ping Company v. Croskey, 151, 221 Evans v. Cogan, 17, 19, 22, 550, 551 Evans v. Davies, 707, 708 Evans v. Harris, 554 Evans & Howell, In re, 647 Evans v. Lancashire and Yorkshire Railway Company, 130, 131 Evans v. Pratt, 293 Evans v. Rees, 537, 538 Evans v. Senor, 80 Evans v. Thompson, 51, 60, 137, 569 Everard v. Paterson, 235, 514 Everest v. Ritchie, 342 Ewes V. Blackwall, 647 Eyre v. Good, 546 F. Fairfield v. Wtight, 81 TABLE OF CASES. Ixiii Fallowes v. Taylor, 13 Farrer v. Bates, 525 Farrer v. Billing, 484 Farringdoii v. Chute, 552 Faviell v. Eastern Counties Eailway Company, 26, 150, 193, 294, G21 Fennell, In re, 599 Fonton v. Dimes, 255 Ferguson v. Norman, 308 Fernley v. Branson, 365, 460 Ferrer v. Oven, 505, 509, 534 Fetherstone v. Cooper, 87, 164, 185, 187, 203, 205, 236, 566, 691, 692 Figes V. Adams, 364, 490 Filmer v. Delber, 25 Finlayson v. M'I.eod, 364, 382 Firth V. Hewlett, 231 Firth V. Kobinson, 312, 358 Fisher v. Pimbley, 121, 401, 528, 534 Fitzgerald v. Graves, 357, 365 Fitz William, Lord, v. Dawes, 61 Flag Lane Chapel v. Mayor of Sunder- land, 230 Fleming v. Self, 38 Fontainmoreau v. Encontre, 85 Ford V. Gartside, 704 Ford V. Jones, 221 Foreland v. Hornigold, 519 Foreland v. Marygold, 516, 519 Forster v. Brunetti, 579 Fortescue, Ex parte, 590 Foster v. Hanson, 378 Fowle V. Steinkeller, 639 Fox V. Smith, 279, 362, 521 France v. White, 310 Franks v. Duchesse de Pienne, 16 Frankura v. Earl of Falmouth, 343 Frauuce's Case, 517 Freame v. Pinneger, 644 Freeman v. Bernard, 238, 275, 284, 391, 495, 508, 514, 523 Freeman v. Drew, 502 Freeman v. Sheen, 502, 503 Frver V. Shaw, 182 Fryer v. Sturt, 356 Fuller V. Fenwick, 114, 292, 293, 294, 296, 304, 446, 448 Furlong V. Thornigold, 312, 321, 519 Furnival v. Bogle, 27, 28 Furser v. Prowd, 267, 498, 531 Fyall V. Varier, 225 G. Gable v. Moss, 496, 517 Gaby v. Wilts Canal Company, 304 Gaffney v. Killen, 141, 151, 154 Galloway v. Keyworth, 459, 629, 630 Garland v, Goulden, 599 Garland v. Noble, 121 GaiTet V. AVeedeu, 238 Gartside v. Gartside, 554, 662, 663 Gascoyne v. Edwards, 523 Gatclilfe v. Dunn, 235 Gayle v. Betts, 620 Geeve v. Gorton, 383, 384 Gcllibrand, In re, 598 Genne v. Tinker, 506, 521, 531 Gensham v. Germain, 293 George v. Lousley, 244, 365, 596, 658 Gervais v. Edwards, 545 « Gibbon v. Parker, 306, 448 Gibbs V. Knightley, 82, 90 Gilford V. Gilford, 592, 599 Gill V. Russell, 19 Gillon & Mersev Navigation Company, In re, 261, 366, 387 Gisborne v. Hart, 326, 330, 331, 629, 534 535 Gladwin v. Chilcote, 102, 182, 191, 192, 655 Glover v. Barrie, 271, 388 Glover v. North Staffordshire Railway Company, 432 Goddard v. Mansfield, 270, 402 Goddard v. Smith, 684 Godfrey v. Bercher, 555 Godfrey v. Godfrey, 4 Godfrey v. Wade, 18, 706 Goldstone v. Osborn, 64 Golightly V. Jellicoe, 469, 480 Good V. Wilks, 134 Goodall V. Lowndes, 14 Goodall V. Ray, 356, 358. 684 Goodman v. Sayers, 109, 204, 210, 293, 680, 693, 698 Goodred v. Seale, 90 Goodson V. Brooke, 24 Goodson V. Forbes, 51, 240 Goodyear v. Simpson, 42, 240 Gordon v. Mitchell, 301, 472 Gore v. Baker, 336, 371, 449 Gould V. Staffordshire Potteries Water- works Company, 247, 440, 443, 615 Gourlay v. Duke of Somerset, 66, 711 Govett V. Richmond, 23, 551 Graham v. Darcey, 584, 614 Graham v. Glover, 43, 171 Granger V. Dacre, 517 Grant v. Hawdiug, 604 Gravatt v. Attwood, 686, 687 Gray v. Gray, 277, 325, 420, 498, 499 Gray v. Gwennap, 263 Gray v. Leaf, 676, 677 Gray v. Wicker, 392 Grazebrook v. Davis, 179, 530 Great North Western Railway v. Cla- rence Railway, 133 Greathead v. Morley, 484 Green v. Pole, 85, 143, 144, 145 Green v. Prosser, 593 Green v. Taylor, 100 Greene v. Waring, 387, 396 Greenhill v. Church, 54, 689, 696, 699 Green way v. Carrington, 511 Greenwood v. Dyer, 593 Greenwood v. Misdale, 143 Greenwood & Titterington, In re, 27, 221, 222 Ixiv TABLE OF CASES. Gregory v. Hownrd, 469 Gregory v. MiglieU, 711 Greigv. Talbot, 51, 52, 60, 509 Grenfell V. Edgcome, 118, 291, 344, 351, 361, 407, 675 Gribble v. Buchanan, 372 Griffith V. Williams, 27 Griffiths V. Thomas, 377 Grigby v. CoX, 16 Grimes v. Naish, 625 Grimstone v. Bell, 69, 75, 76, 81 Grindley v. Barker, 157, 207 Grocers' Company v. Donne, 309 Grove v. Cox, 359 Grundy v. Wilson, 581, 624 Guadiano v. Brown, 653 Guarantee Society & Levy, In re, 171 Guildford v. Mills, 583 Gulliver v. Summerfield, 598 Gunner v. Fowler, 306 Guntou V. Nurse, 22, 462, 464, 539 Gurney v. Buller, 379 Gwinett v. Bannister, 56, 693 Gyde v. Boucher, 264 H. Habershou v. Troby, 111, 470 Haddan v. Roupell, 62, 63 Haggerv. Baker, 193, 194, 297, 655 Haggett V. Welsh, 78, 91, 144, 145, 152 557 HaghV. Chad\vick, 532 Haigh V. Haigh, 164, 165, 167, 182, 188, 189, 467 Halden v. Glasscock, 78, 140, 596 Hales V. Stevenson, 51 Hales V. -Taylor, 585 Halfhide v. Fenuing, 71, 176 Hall v. Alderson, 492 Hall & Anderton, In re, 182, 191 Hall V. Ellis, 143, 148, 153, 169, 171 Hall V. Hardy, 545, 547 Hall & Hinds, In re, 132, 297, 461, 505, 531 Hall V. Lawrence, 231 Hall V. Mister, 579, 634 Hall V. Phillips, 706 Hall V. Rouse, 141, 707 Hallen v. Smith, 382 Hallett V. Hallett, 136, 138, 658, 679 Hamilton v. Bankin, 24, 188, 467, 689 Hampton v. Boyer, 508 Hanbury V. Guest, 512 Hancock v. Reid, 24, 326 Hanningcon v. Beare, 86 Hanson v. Boothman, 497, 602 Hanson v. Liversedge, 113, 235, 279, 477, 516 Harcourt v. Ramsbottora, 152, 191, 192 Harding, Ex parte, 488 Harding v, Forshaw, 124,. 252, 329, 338, 637 Harding v. Holmes, 527 Harding V. Watts, 218, 219 Hardress v. Prowd, 457 Hardy v. Innes, 294 Hardy v. Ringrose, 296 Hare v. Fleay, 284, 420, 590, 613, 616, 619, 630, 635, 651 Hare v. George, 524 Hare & MOne, In re, 159, 162, 203, 472, 656 Harlow v. Read, 246 Harlow v. Winstanley, 58 Harper v. Abrahams, 706, 707 Harries v. Thomas, 75, 319, 706 Harris v. Curnow, 426 Harris v. Knipe, 286, 321 Harris v. Mitchell, 220 Harris v. Paynter, 257 Hari'is v. Reynolds, 45 Harrison v. Creswick, 258, 265, 332, 341, 529, 613, 618 Harrison v. Greenwood, 76, 685, 707 Harrison v. Grundy, 60, 565, 670 Harrison v. Lay, 263, 305. 312, 390 Harrison v. Oliver, 586 Harrison v. Smith, 72, 75 Harrison v. Wright, 49 Hart v. Draper, 78 Hart V. Duke, 151, 198 Hartley v. Barlow, 589 Hartnell v. Hill, 358, 364 Harvey v. Ashley, 18, 19, 550 Harvey v. Shelton, 57, 184, 187, 188, 204, 558, 559, 565, 573, 648, 655, 665, 679 Haswell v. Thorogood, 155, 488, 603 Hattersley v. Hatton, 48 Hatton V. Royle, 20 Hawkins v. Benton, 22, 72, 73, 278, 338, 348, 614, 616, 618 Hawkins y. Colclough, 258, 262, 275, 286 Hawkins v. Rigby, 356, 629 Hawksworth v. Brammall, 138," 250, 545 Hawkyard v. Stocks, 312, 322, 342, 343, 659, 667, 668, 678 Hawley v. North Staffordshire Railway Company, 208, 213, 232, 576 Hayes v. Hayes, 52 Hayllar v. Ellis, 264 Hayman v. Gerrard, 520 Hayward v. Phillips, 57, 74, 75, 78, 338, 339, 342, 413, 650, 668, 673, 681 Hayward v. Ribbans, 634, 687 Heard v. Baskerville, 520 Heath v. Brindley, 68 Heathcote v. Wyun, 637 Heatherington v. Robinson, 206, 585 Heatley v. Thomas, 16 Hellyer & Snook, In re, 671 Hemans v. Picciolto, 64 Heming v. Swinnerton, 56, 58, 531, 541, 542, 557, 566, 572, 573, 663, 666, 670, 695, 702, 703 TABLE or CASES. Ixv Ilcmsworth v. Brian, 155, 369, 373, 387, 487, 691, 602, 645, 652, 654, 668 Henderson v. Williamson, 235, 514 Hcnfreo v. Bromley, 132, 2S7, 492, 493 Henley v. Soper, 24 Henry v. Kirwan, 481, 545 Hctley V. Hetley, 191 Hewitt V. Hewitt, 3, 277 Hewitt V. Penny, 220 Hewitt V. Portsmouth Waterworks Company, 192 Hewlett V. Laycock, 164, 166, 189 Hick, In re, 138, 184, 189, 218 Hickes v. Cracknell, 528 Hickman v. Hickman, 592 Hicks V. Richardson, 238, 457, 458, 581 Hide V. Cooth, 249, 703 Hide V. Petit, 73, 144, 152, 249, 561 Higgins V, Street, 595 Higgins V. Wilks, 280, 587 Higginson v. Broadlrarst, 379 Higginson v. Nesbitt, 634 Higham & Jessop, In re, 129, 139 Highgate Archway Company v. Nash, 370 Highnam v. Hassell, 376 Hill V. Ball, 293, 698 Hill V. Hill, 156 Hill V. Levey, 22 Hill V. Merritt, 378 Hill V. Slocombe, 242, 599 Hill V. Thorn, 314, 403 Hill V. Townsend, 637 Hilton V, Hopwood, 69, 88, 588, ^92 Hinton v. Cray, 235, 514, 528 Hinton v. Meade, 673 Hirsch v. Im Thiirn, 48 Hobbs V. Ferrars, 155, 601^ 654, 658, 669 Hobdell V. MiUer, 345, 392, 630, 669 Hobler, In re, 28 Hobson V. Stewart, 117, 287, 326, 334 Hocken v. Grenfell, 678, 684 Hodgkinson v. Fernie, 293, 294, 296, 447, 448 Hodsden v. Hai-ridge, 241, 505, 506, 507, 513, 516, 517, 526, 532 Hodsoll V. Wise, 177 Hodson V. Drewry, 221, 222 Hodson T. Patterson, 621 Hodson V. Wilde, 177 Hogge V. Bm-gess, 169, 175,' 293, 298, 446, 447, 448, 654, 874 Hoggins V. Gordon, 457 Holcroft V. Manby, 489, 614, 615 Holden v. Newman, 303, 380 Holder V. Eaitt, 379 Holdsworth v. Barsham, 220, 279, 28], 505, 871 Holdsworth V. Wilson, 220, 279, 281, 505, 871 Holgate V, Killick, 298, 654 Holland v. Brooks, 600, 601 Holland v. Jtidd, 335 Holland v. Vincent, 631 Holloway v. Francis, 169, 306, 654 Holloway & Monk, In re, 674 Holmes v. Higgins, 299 Holmes v. Wilson, 464 Holt V. Berry, 579 Holt V. Ward, 18 Hookpayton v. Bussell, 88 Hooper v. Abrahams, 157 Hooper v. Hooper, 10, 418 Hooper V. Pierce, 314, 403 Ho|)craft v. Fermor, 583 Plopcraft V. Hickman, 200, 273, 280, 552 Hopkins v. Davies, 391, 584 Hopley V. Granger, 606 Hopper V. Hackett, 261, 286 Horne v. Blake, 387 Horton v. Benson, 13, 116, 286, 424 Horton v. Sayer, 47, 64 Houghton V. Bankaj't, 85, 196 Houghton V. Fallowes, 594, 595, 605 Houlditcli V. Houlditch, 582 House V. Launder, 527 Howett V. Clements, 75, 312, 339, 343, 445, 451, 454, 455, 655 Hoyle V. Jennings, 138 Hughes V. Garnett, 135, 210 Hulme V. Tenant, 16 Humphreys v. Pearce, 329, 334 Hungate v. Mease, 237 Hunt V. Hunt, 325, 329, 334, 659 Hunter v. Beunison, 107, 272, 273 Hunter v. Eice, 4, 18, 484 Huntig V. Bailing, 105, 292 Huntley, In re, 447, 454 Hurst, In re, 119 Hurst V. Bambridge, 277 Hutchins v. Hutchins, 601 Hutchinson V. BlackweU, 338 Hutchinson v. Hodgson, 563 Hutchinson v. Sheppertou, 116, 29$ Imesom & Horner, In re, 667, 668 Ingram v. Bernard, 533, 604 Ingi-am v. Milnes, 262, 313, 424, 541 Ingram v. Webb, 246 Inman v. Hill, 590 Insull V. Moogen, 175, 448 IrAdne v. Elnon, 132 Issauchaud, Ex parte, 429 Ives V. Jones, 630 ; see Joues v. Ives Ives V. Medcalfe, 293 Iveson V. Conington, 27 Ivey V. Young, 382 Jackson v. Clarke, 318, 342, 592 Jackson v. Yabsley, 327 Ixvi TABLE OF CASES. Jacobs V. Pliillips, 603 James V. Attwood, 177, 222 James v. Crane, 160 Jamieson & Binus, In re, 25, 222 Jay V. Byles, 307, 308 Jebb V. M'Kieman, 42, 240 Jeffery v. Guy, 521 Jenkins, In re, 189, 230, 231 Jenkins v. Betham, 43 Jenkins v. Law, 60 Jenkinson v. Allison, 514 Jennings v. Vandeputt, 219 Jephsou V. Howkins, 308 Johnson v. Collie, 141, 142, 219, 227 Johnson v. Durant, 294, 468, 512, 531, 542 Johnson v. Hodgson, 6, 417, 485 Johnson v. Hopper, 64 Johnson V. Latham, 271, 414, 415, 446, 454, 455, 619, 634 Johnson v. Ogilby, 11 Johnson v. Wilson, 4, 255, 404, 418, 481, 506 Johnston v. Cheape, 106, 128, 178, ISO, 314 Jones's case, 11 Jones, Ex parte, 430 Jones V. Beaumont, 90 Jones V. Bennett, 479, 556, 698 Jones V. Corry, 300 Jones V. Harris, 16 Jones V. Ives, 630, 635 Jones V. Jehu, 378 Jones V. Jones, 377 Jones V. Powell, 19, 288, 289, 350, 372, 374, 664, 675 Jones V. Totty, 418 Jones V. Tm-ubull, 489 Jones V. Williams, 558, 612, 613, 617, 621 Jones V. Yates, 33 Jordan v. Berwick, 618 Joseph & Webster, In re, 31, 56, 394, 559, 583 Joyce V. Haines, 122, 238, 321 Jupp V. Grayson, 292 Juxon V. Tliornliill, 517 K. K alcey v. Stupples, see Kelsey v. Stup- ples Kampshire v. Young, 555, 692 Kay V. Duchesse de Pienne, 16 Keen v. Batshore, 536 Keene & Atkinson, In re, 112, 250, 301, 472, 474 Keene v. Deeble, 74, 183, 378 Keir v. Leeman, 13 Kelsall V. Tyler, 37 Kelsey v. Stupples, 371, 377 Kemp V. Rose, 106 Kempshead, Ex parte, 34, 668 Kendil v. MeiTett, 81, 615, 630, 636, 838 Kendrick v. Davies, 317, 364, 369 Kene v. Fleming, 88 Kennard v. HaiTis, 680 Kenrick v. Phillips, 168, 346, 625 Kent V. Elstob, 295, 299, 304 Kenyon v. Graj-son, 501, 590 Keogh V. Leeman, 13 Kerr v. Jeston, 129, 134, 598, 601, 618 Kettle V. Grove, 634 Kilburn v. Kilburn, 329, 331, 333, 659 Kill V. Hollister, 45 Kind V. Carter, 521 King V. Bowen, 245, 259, 529 King V. Lord Dundonald, 335 Kingv. Joseph, 100, 146, 601 King V. Packwood, 592 Kinge v. Fines, 268 Kingsley v. Young, 485 Kingston v. Phelps, 534, 536 Kingw^ell v. Elliott, 189, 472 Kii-k V. Strickwood, 14 Kirk V. Unwin, 134, 423 Kirkus v. Hodgson, 87, 565, 625 Kirwan v. Goodman, 11 Knight V. Burton, 4, 116, 258, 324, 353, 418 Knight V. Stone, 19 Knott V. Long, 272 Knowles v. Holden, 9 Knox V. Symmonds, 110, 113, 129, 134. 296, 561, 704 KockiU V. Witherell, 268, 392 Kyle, In re, 192 Kynaston v. Jones, 246 Kynaston v. Liddell, 444 L, Lacon v. Barnard, 464 Laing v. Todd, 420, 458, 581, 613, 614, 618, 620 Lambard v. Kingsford, 517 Lambe v. Jones, 603, 619 Lambert V. Hutchinson, 140, 141, 142, 156 Lancaster v. Hemington, 293, 305, 656 Lane v. Tanner, 422 Lang V. Brown, 137, 214, 227 Langman v. Holmes, 589 Latuch V. Pasherante, 25 Laugher v. Laugher, 589, 592, 597 Law, In re, 574, 702 Law v. Blackburow, 332, 343, 814 Lawrence v. Great Northern Railway Company, 435, 437 Lawrence v. Hodgson, 138, 284, 584, 661 Le Bret v. Papillon, 610 Leach v. Morris, 516 Leake v. Butler, 516 Lean v. Schutz, 16 Leble v. Carrell, 617 TABLE OF CASES. Ixvii Lee V. Elkins, 269, 314, 321, 403, 422, 520 Lee V. Hemingway, 43, 59 Lee V. Lingiird, 110, 512, 624, 634, 639 Lee V. Milner, 437 Lee V. Pago, 64, 72 Leeds v. Burrows, 43, 241 Leeming & Fcarnley, In re, 124, 325, 326, 370, 380 Lees V. Hartley, 585 Lees V. Laforest, 65 Leggett V. Fiulay, 136, 137, 138 Leggo V. Young, 89, 298, 302, 359 Leslie v. Kichardson, 141 Levi V. Duncombe, 599 Levick v. Epsom aud Leatherliead Railway Company, 95, 168 Lewin v. Holbrook, 162, 196, 394, 582, 668 Lewis V. Eley, 573 Lewis V. Harris, 358 Lewis V. Winter, 162, 625, 636, 668 Libtrat v. Field, 121 LiddeU v. Jolinstoue, 242 Linsey v. Ashton, 529 Lineh v. Dacey, 3, 524 Lindsay V. Direct London & Portsmouth Railway Company, 891, 597 Lindsay v. Lindsay, 270 Lindsey v. Aston, 321 Linegar v. Pearse, 118, 352 Lintieldv. Feme, 280 Lingood, Ex parte, 488 Lingood v. Croucher, 465, 466, 467 Lingood v. Fade, 199, 271, 274, 397, 398, 462, 654, 695, 696 Linnen v. Williamson, 501 Lipscomb v. Palmer, 558 Lister v. Lister, 418 Little V. Newton, 58, 78, 206, 207, 208, 209, 237, 567, 581, 630, 656, 669, 682 LiWngston v. Ralli, 45, 63 Lloyd V. Archbowle, 183 Lloyd V. Harris, 592, 613, 616 Lloyd V. Mansel, 50, 615 Lloyd V. Spittle, 381 Lock V. Vulliamy, 244 Lockwood V. Smith, 448 Lodge V. Porthouse, 590, 604 London v. Lynn, 583 London Dock Company v. St. Paul's, Shadwell, 300, 306, 448, 471 London and North Western Railway Company v. Bedford, 10 London and North Western Railway Company v. Bradley, 432 Loudon and North Western Railway Company v. Quick, 440, 441, 443, 615 London and North Western Railway Company v. Smith, 431 Londondeny Railway Company v. Leishman, 451, 697 Lonsdale, Lord, v. Littledale, 57, 69, 108, 465, 467, 690, 692, 699, 701 Lonsdale, Lord, v. Whinnay, 587 Lord V. Copper Miners Company, 128, 217, 461 Lord V. Hawkins, 324, 451 Lord V. Lord, 205, 208, 223, 585, 601 Love V. Honeyboiu'ne, 31, 276, 394, 395, 661 Lower v. Lower, 270 Lowes V. Kermode, 85, 525, 706 Lowndes v. Lowndes, 644, 666 Lucas V. Wilson, 57, 72, 75, 600 Luddington v. "\\niite, 4, 525 Ludlow, Mayor of, v. Charlton, 21, 26 Lumley V. Hutton, 18, 116, 224, 501 Lund V. Hudson, 370, 631, 660, 668, 672 Lupart v.. Welson, 506, 513 Lury V. Pearson, 48 Lyall V. Lamb, 54 Lynch v. Clemence, 422 Lyng v. Sutton, 650 Lynsey v. Aston, 424 M. Macarthur v. Campbell, 237, 349, 460, 600, 645, 653, 686 M'Can V. O'Ferrall, 156 M'Rae v. M'Lean, 452, 455, 619 Maedougall v. Robertson, 128, 129, 161 Mackay, In re, 70, 398, 421, 422, 662, 669 Mackenzie v. Sligo & Shannon Railway Company, 618 Mackinnon v. Sligo & Shannon Railway Companj', 619 Mackintosh v. Blyth, 356, 360 Mackintosh v. Great Western Railway Company, 467 Macqueen v. The Nottingham Cale- donian Society, 37, 166 Maffey v. Godwyn, 580 Maggs v. Yorston, 637 Malcolm v. Fullarton, 117, 395 Maloney v. Stockley, 255, 290, 3^9, 392, 660 Mauley v. Bray, 600, 618 Manners v. Charlesworth, 418 Manning v. Eastern Counties Railwa}' Company, 435, 536 Mansel] v. Burredge, 506, 513 Manser v. Heaver, 124, 198, 270, 315, 6S6, 688 Marder v. Cox, 312, 363 Markham v. Jennings, 289 Marks v. Marriott, 4, 238, 403, 481, 502, 514 Marsack v. Webber, 375, 506 Marsden v. Overbury, 171 Marsh, In re, 120, 194, 206, 207, 292, 293 Ixviii TABLE OF CASES. Marsh V. Biilteel, 144, 145, 146, 509, 510, 532 Marsh v. Hutchinson, 16 Marsh V. AVood, 34, 146, 154, 668 ]\larshall & Dresser, In re, 278, 322, 661, 680 ]\Iarslianv. Towell, 130 Marshall v. Eutton, 16 ]\lartin v. Burge, 649, 650, 661 ]\lartm v. Daws, 511 ]\Iartin v. Leicester Waterworks Com- pany, 96, 439 Martin v. Thornton, 469 Mason v. Haddon, 48 Mason v. Stokes Bay Railway Com- pany, 442, 443, 546 Mason v. Wallis, 135, 138, 596 Mason v. Watkins, 11 JIason V. Whitehouse, 589, 590 Massey v. Aubrey, 277 Massey v. Hall, 359 Master v. Hamilton, 198 Mathewv. Davis, 4, 119,'350 Matlock Gas Light Company v. Peters, 370 Matson v. Trower, 166, 187, 189, 230. 243, 542 Matthew v. Ollerton, 107 Maule V. Maiile, 205, 478 Maunsell v. Jlidland Great "Western of Ireland Railway Company, 197 Mays V. Cannell, 332, 343, 409, 412 Meggison v. , 512 Mendell v. Tyrrell, 587, 615, 621 Merydith v. Alleyn, 520 Metcalf V. Ives, 662 ]\Iexborough, Earl of, v. Bower, 65 ilichael v. Myers, 87 Michie, Ex j^arte, 34 ]\Iiddletou v. Chambers, 226 Middleton v. "Weeks, 250, 258, 259, 679 Midland Railway Company v. Heming, 571, 648 IMiller v. De Burgh, 284, 412 JMiller v. Robe, 5, 365, 401 Miller v. Shuttleworth, 307 Millington v. Claridge, 78 Mills V. Bayley, 61, 148 Mills V. Bowyer's Society, 173, 296, 445, 446, 448 V. Mills, 49, 50, 57, 566, 580, 693 Milne v. Gratrix, 100, 143, 145, 601 Milues V. Gery, 710 Milnes v. Robertson, 34 Milstead v. Craufield, 58, 568 IMitchell V. Harris, 65, 218, 224, 662 Iklitchcll V. Stavele}^, 256, 265, 528, 642 Mole V. Smith, 28 Mondel v. Steele, 511 Montgomery, Lord, v. Buckley, 663 Moore v. Bedel, 421 Moore v. Booth, 175 Moore v- Bowmaker, 86, 87 Moore v. ButUn, 70, 335, 492, 650, 659, 679 Moore v. Darley, 237, 365, 460, 646, 653 Moore v. Great Southern and Western Railway Company, 433 Morgan v. Biniie, 106 Morgan v. Bolt, 208, 221 Morgan v. Man, 520, 527 Morgan v. Mather, 108, 110, 112, 293, 295, 304, 396, 474, 654, 661 Morgan v. Miller, 22, 79, 706 Morgan V. Morgan, 106, 183 Morgan v. Pindar, 698 Morgan v. Smith, 317, 361, 366, 380, 406, 660, 682 Morgan v. Tarte, 150 Morgan v. Thomas, 78, 331, 337 Morgan V. Williams, 102, 183 Morley v. Newman, 400 Morphett, In re, 53, 124, 129, 188, 210, 391, 393, 396, 662 Morris v. Bosworth, 380 Morris v. Creaeh, 4 Morris v. Morris, 128, 148, 173, 362, 445, 446, 455, 618, 875 Morris v. Reynolds, 461, 589 Morrison V. Glover, 38 Morse v. Merest, 143, 477, 711 Morse v. Sury, 121 ]\Iortin v. Burge, 276 Moscati V. Lawson, 46, 75, 85, 706 Mosley v. Bailer, 38 Mudyv. Osam, 21, 421 Mullock V. Jenkins, 38 Mundy v. Black, 181, 448, 654 Murray v. Gregory, 535 Murray v. The Sunderland Dock Com- pany, 90 Musselbrook v. Dunkin, 193, 459, 645, 653 Mylne v. Dickinson, 196 N. Nalder v. Batts, 195, 340, 446, 448 Naters v. Sutton, 517 Neale v. Ledger, 221 Neale v. Postlethwaite, 613, 617 Nerot V. Wallace, 11, 33 Nettleton v. Crosby, 669 Kew River Company v. Johnson, 432 Newbold v. Metropolitan Railway Com- pany, 443, 615 Newgate v. Dcgelder, 128, 143, 146 Newry & Enniskillen Railway Com- pany v. The Ulster Railway Com- pany, 165, 181 Newsome v. Bowyer, 16 Newton v. Walker, 582 Nichols V. Chalie, 54, 56, 58, 65, 69, 70, 666, 690, 692 TABLE OF CASES. IXIX Nichols V. Gruimion, 286 Nichols V. Jones, 406, 407, 425 Nichols V. Koe, 66, 70, 566, 690, 694 Nicholson v. Sykes, 371, 631 Nickalls v. Warren, 22, 178, 445, 451, 453, 655 Nickels v. Hancock, 268, 312, 422, 545, 546, 548 Noble V. Harris, 146 Nokes V. Frazer, 382 Norris v. Daniel, 325, 326 North Staffordshire Railway Co. v. Lan- dor, 95, 442 North Staffordshire Railway Co. v. Wood, 95 Northnmberland, Duke of, v. Erring- ton, 506 Norton v. Mascall, 546, 547 Norwich v. Norwich, 321, 419, 421 Nott V. Long, 2(39 Noy V. Reynolds, 178 0. Gates V. Bromil, 235, 614 Oglander v. Baston, IS Oldtield V. Price, 142 Oldfield V. Wilmer, 269, 521 Oliver v. Burt, 563 Oliver v. Collins, 223 Ormelade v. Coke, 249, 286, 520 Orinerod v. Tate, 488, 599 Ormes v. Beadel, 79 Orxnond v. Kynner.sley, 556 Orphan Board, President, &c. oi, v. Van Reeuen, 159 Orphan Working School v. Henley, 48, 90 Oshorn's Case, 321 O 'Sullivan V. Hutchins, 153, 702 Oswald v. Lord Grey, 181, 678 'Toole V. Pott, 635 Owdy V. Gibbons, 52, 106 Owen V. Hurd, 72, 580, 595 Owen V. AVaters, 517 Oxenham v. Lemon, 480 Padley v. Lincoln Waterworks Com- pany, 465, 466, 467. Page V. Meek, 45 Palmer's Case, 605 Palmer v. Metropolitan Railway Com- pany, 139 V. Palmer, 286 Parberry v. Newnham, 140, 141 Parker v. Bach, 570 Parker v. Burgess, 592 Parker v. Burroughs, 106, 109 Parker v. Parker, 238 Parkesv. Smith, 62, 141, 624 Parkinson v. Smith, 365, 366, 688, 620 Parr v. Winteriugham, 43, 107 Parsons v. Parsons, 498 Pascoe V. Pascoe, 389, 515, 525 Patei-son v. Gross, 586 PauU V. Paull, 25, 26, 246, 587, 600 Paxton V. Great North of England Railway Company, 626, 649, 651 Payne v. Acton, 378 Payne v. Bailey, 296, 707 Payne v. Cook, 249 Payne v. Deakle, 137 Peacock v. Monk, 16 Pearman v. Carter, 82 Pearse v. Cameron, 74, 75, 80, 346 Pearse v. Pearse, 353 Pearson v. Archbold, 370, 616 Pearson V. Henry, 30, 537 Pedley v. Frampton, 380 Pedley v. Goddard, 56, 67, 271, 279, 361, 600, 644, 659 Pedley v. Westmacott, 60 Peebles v. Hay, 596, 617 Pell y. Addison, 90 Pellatt V. Mackwick, 90 Penuell v. AValker, 49, 392 Pemiy v. South Eastern Railway Com- pany, 432, 438 Pepi>er v. Gorhara, 181, 197, 655 Perkins v. Potts, 241 Perriman v. Steggall, 110, 193, 292 Pen-ing & Keymer, In re, 211, 565, 646, 670, 673 Perry v. Berry, 289 Perry v. Mitchell, 278, 282, 529 Periy v. Nicholson, 241, 516 Petch V. Fountain, 125 Peters v. Anderson, 310, 669 Peterson v. Ayre, 197, 208, 210, 445, 679 Philips V. Bury, 43 Phillips V. Evans, 297, 657, 678 Phillips V. Higgins, 331, 619 Phillips V. Hopwood, 444 Philhps V. Knightley, 401, 422, 502, 518 Phipps V. Ingram, 149, 179, 655 Pickering v. Watson, 313, 403 Piercy v. Roberts, 33 Pigot's Case, 492 Pike V. Newman, 594, 667 Pilmore v. Hood, 665, 671 Pinhom v. Tuckington, 512 Pinkerton v. Caslon, 347 Pinkny v. Bullock, 279, 317 Pitcher v. Rigby, 111, 477, 698, 700 Pits V. Wardal, 422, 620, 521 Pittv. Coombs, 606 Piatt V. Hall, 340, 625, 673 Plews & ]\Iiddleton, In re, 186, 208, 571, 665 Plummer v. Lee, 281 Pool V. Bousfield, 11 Poole v. Pipe, 547 Poole V. Selwood, 707 Ixx TABLE OF CASES. Pope V. Bisli, 554 Pope V. Brett, 277, 321, 419 Pope V. Lord Duncannon, 152, 153 Porch V. Hopkins, 451, 708 Portland, Countess of, v. Prodgers, 16 Potter V. Day, 486 Potter V. Nevvanan, 140, 296, 645, 649, 651 Potts V. AVard, 160, 658 Powell V. Phaiips, 60 Powell V. Ward, 598 Pownall V. King, 56, 566 Poyner v. Hatton, 349, 591 Pratt V. Hillman, 299, 304 Pratt V. Salt, 361, 363 Prentice v. Reed, 74, 160, 345, 346, 413 Preston v. Eastwood, 242, 658 Price V. Hollis, 4, 243, 295 Price V. Hughes, 644 Price V. James, 82 Price V. Popkin, 245, 388, 414, 661 Price V. Price, 293, 476 Price V. Williams, 472, 704 Priddel v. Sutton, 391 Prior V. Hembrow, 22, 91, 111, 161, 162 Pritchard v. Ovey, 710 Proctor V. Williamson, 167, 200 Prosser v. Goringe, 3, 21, 22, 79, 410 Proudfoot V. Poile, 19, 362, 422, 664 Purslow V. Bailey, 387, 506, 507, 523 Pusey V. Desbouvrie, 552 Pybus V. Smith, 16 Pyne, In re, 593 E. Eadcliffe v. Hall, 327 Rainforth v. Hamer, 50, 278 Randal v. Gurney, 175 Randall v. Randall, 249, 253, 600 Eavee v. Farmer, 469, 480, 534, 541 Pawling V. Wood, 235, 585 Rawsthoru v. Arnold, 650, 676 Rawtree v. King, 82 Read v. Garuett, 634, 639 Reade v. Button, 135, 210 Reade v. Fore, 593 Rees V. Rees, 603, 618 Rees V. Waters, 76, 121, 250, 312, 347, 369, 392, 658, 679 Reeves v. Macgregor, 369, 375 Reeves v. White, 38 Regent's Canal Company v. Ware, 443, 546 Reid v. Ashbv, 378 Reid V. Deer,' 592 Reid V. Fryatt, 134, 135 Reid V. Victoria Station & Pimlico Railway Company, 429 Rennie v. Mills, 330, 633 Rex V. , 599 Rex V. Bardell, 12, 14, 59, 75, 145, 147, 148, 196 — V. Bell, 598 — V. Bingham, 93, 487, 509, 604, 664, 668 — V. Biram, 434, 441, 401 — V. Blakemore, 13 — V. Boyce Coombe, 434 — V. Brewer, 123, 303 — V. Bristol Dock Comp., 431 — V. Burslem Local Board of Health, 430, 872 — V. Calvert, 594 — V. Cheadle Savings' Bank, 36 — V. Coombs, 13, 14 — V. Cotesbatch, 13 — V. Cotton, 13, 538 . — V. Curwen, 610 — V. Davis, 487, 488, 602, 609 — V. Eastern Counties Railway Com- pany, 432, 433 — V, Evans, 37 — V. Fontainemoreau, 537, 538 — V. Gore, 13, 580, 638 — V. Grant, 37, 230, 417 — V. Great Western Rail wayCompauy, 671, 672 — V. Hallett, 178 — V. Hanks, 176 — V. Hardey, 12, 13, 14, 57, 69, 75, 76, 100, 148, 596 — V. Harding, 9 — V. Harrison, 595 — V. Haslingfield, 536 — V. Helston, 28 — V. Hemsworth, 155, 587, 609, 836, 837 — V. Hill, 26, 139 — V. Hobbes, 157 — V. Jones, 594 — V. St. Katharine's Dock Company, 256, 639 — V. Lancaster & Preston Railway Company, 434 — V. Leeds & Selby Railway Com- pany, 437 — V. Lindsay, 99 — V. Loudon & North West. Rail. Co. , 429, 431, 434 — V. Maffey, 580, 581 — V. Metropolitan Comm. Sewers, 429, 430, 434 — V. Middlesex, Sheriff of, 438, 594, 595 — V. Mildenhall Savings' Bank, 36 — V. Moate, 13, 359, 368, 382 — V. Myers, 606 — V. Natland, 9 — V. Nockolds, 6 — V. Norman, 176 — V. Northampton, JJ., 9, 27 — V. Outram, 219 — V. Paget, 597 — V. Pease, 432 — V. Price, 569 TABLE OP CASES. Ixxi Rex V. Rant, 13, 14 — r. Shillibeer, 12, 59, 75, 148 — V. Shortridge, 37 — V. Sloinan, 592 — V. Sonth Devon Railway Company, 442, 459 — V. Stevens, 129, 134 — V. Tooley, 592 — V. 'JYaHbrd, 38 — V. AVait, 144 — V. West Midland Railway Co., 442 — V. Wheeler, 69, 654, 695 — V. Whitaker, 157, 207 — V. Withain Savings' Bank, 36 — V. York, JJ., 360 Reynal, £x parte, 380 Reynell v. Luscomb, 691 Reynolds v. Askew, 58, 646, 648, 653, 663, 667 Reynolds v. Flower, 378 Reynolds v. Gray, 218, 222, 223 Reynolds v. Hanis, 336, 370, 371, 372, 628, 632 Rhodes v. Haigh, 159, 160 Riccard v. Kingdon, 649, 651, 671 Richards v. Basset, 536 Richards v. Browne, 259 Richards v. Easto, 309 Richardson v. Chancey, 586 Richardson v. Kensitt, 382 Richardson v. Nourse, 295 Richardson v. South-Eastem Railway Company, 439 Richardson v. Worsley, 361 Richmond v. Parkinson, 593, 598 Rickards v. Patterson, 613, 616, 617 Ricketts v. Gurney, 175 Rider & Fisher, In re, 254 Riddell v. Sutton, 30, 181, 391, 508, 526, 531 Ridoat V. Pye, 175, 655 Ridout V. Pain, 295 Rigby V. Okell, 73, 367 Ringer v. Joyce, 182, 670 Risden v. Inglet, 249, 258, 259 Robbins v. Standard, 533 Roberts v. Eberhardt, 366, 399, 527, 529 Roberts v. Harriot, 116, 403, 527 Roberts v. Newbold, 19 Robertson v. Hntton, 620 Robertson v. Sterne, 378 Robinson v. Davis, 598 Robinson v. Henderson, 365 Robison v. Calwood, 238, 514 Robson V. , 30, 33, 582 Robson V. Lees, 89, 90, 173 Robson & Railston, In re, 116, 256, 479 Rock V. Slade, 32 Rodham v. Stroher, 517 Roe d. Wood V. Doe, 218, 358 Rogers v. Dallimore, 4, 88, 296, 651, 652 Rogers v. Kearns, 80 Rogers v. Stanton, 22, 580, 581 Roper V. Lendon, 48, 65 Roper V. Levi, 513, 529 Rose V. Redfern, 365 Rose v. Spark, 282 Rosa V. Boards, 257, 389, 400, 661 Ross V. Clifton, 5, 343, 407 Ross V. Ross, 565, 566, 558, 569, 635, 647, 670, 672 Ross V. York, &c., Railway Company, 108 Rosse V. Hodges, 283, 499 Round V. Hattou, 3, 402, 411 Rous V. Lun, 271, 419 Routh V. Peach, 399, 660, 700 Routledge v. Carruthers, 478 Routledge v. Thornton, 223 Rowe V. Rhodes, 378 Rowe V. Sawyer, 601 Rowe V. Wpo(\, 92, 711 Rowe V. Young, 517, 518 Rowsby V. Manning, 514 Royston v. Rydall, 268, 392 Rudd V. Coe, 567 Rudder v. Price, 506 Rudston V. Yates, 18 Rule V. Bryde, 254, 371, 614 Rushworth v. Barron, 58, 648, 667 Russell, Ex parte, 175 Russell v. Headington, 501 Russell V. Pelegrini, 47, 64 Russell V. York, 602 Rybott V. Barrell, 466, 701 S. Saccum v. Norton, 156 Sackett v. Owen, 79, 542 Salkeld & Slater, In re, 189, 227, 230, 231, 656 SaUows V. Girling, 210, 252, 256 Salmon v. Osborn, 557 Salmon v. Watson, 536 Salter v. Yeates, 128, 243, 246, 340 Samou's Case, 283, 419 Samon v. Pit, 419 Samuel v. Cooper, 193, 253, 655, 658 Sam ways v. Eldsley, 110 Savage v. Ashwin, 343 Scale V. Fothergill, 477 Scales V. East London Waterworks, 183, 664 Scott V. Avery, 64 Scott V. The Liveiitool Corporation, 43, 64, 71, 465, 466, 467 Scott V. Van Sandau, 149, 150, 192, 195, 305, 307, 311, 626 Scott V. Williams, 584 Scott V. Wray, 547 Scougull V. Campbell, 468, 626 Seagrave v. Pope, 38 Seal V. Crowe, 522 Seaward v. Howey, 584, 600 Ixxii TABLE OF CASES. Seccombe v. Babb, 364 Seckham v. Babb, 319, 363, 661 Selby V. Colne Valley & Hulstead Railway Company, 443 Selby V. Russell, 269, 271 Selkirk, Lord, v. Nasinitli, 160 Sell V. Carter, 650 Sharraau v. Bell, 292, 299, 304 Sharp V. Eveleigh, 382 Sharp V. Nowell, 200 Sharpe v. Bickerdyke, 180 Sharpe v. Hancock, 415, 496, 511 Shaw V. Pitt, 82, 448 Shelf V. Bailey, 21, 424 Shelley v. Wright, 520 Shelling v. Farmer, 469, 539, 541 Shephard v. Brand, 109, 361 Shepherd v. Shepherd, 517 Sherran v. Marshall, 68 Sherrv v. Oke, 308, 396, 653, 672, 673, 674, 683 Sherry v. Richardson, 268, 289 Short V. Frank, 570 Sibley v. Saffell, 556 Silversides v. Bowley, 378 Sim V. Edmands, 814 Sim V. Edwards, 247, 358, 627 Simmons v. Swaine, 249, 269, 283, 317, 397 Simon v. Gavil, 324, 501 Skee V. Coxon, 73, 100, 102, 145, 146 Skeete, In re, 420, 581 Skeiratt v. North Staffordshire Railway Company, 95, 130, 137, 219, 229 Skinner v. Andrews, 514, 527 Skipper v. Grant, 388 Skipworth v. Skipworth, 120, 319 Slack V. Buchannan, 469 Slowman v. Wiggins, 193 Smailes v. Wright, 224, 225 Smalley v. Blackburn Railway Com- pany, 125, 255, 404, 479, 481, 483, 680 Smith V. Allen, 48 Smith & Blake, In re, 566, 569, 571, 646 Smith V. Festiniog Railway Company, 345 Smith V. Fielder, 101 Smith V. Goff; 176 Smith V. Hartley, 244, 245 Smith V. Johnson, 478, 603 Smith V. Jones, 487 Smith V. Kirfoot, 516 Smith V. Muller, 117 Smith V. Reece, 248, 329, 335, 350, 380 Smith & Reeves, In re, 569, 570, 591, 594, 596, 597, 598, 602, 605, 620 Smith V. Sainsbury, 664 Smith V. Sparrow, 176, 183 Smith V. Symes, 56, 566 Smith V. Troup, 26, 458, 597, 616, 620 Smith V. Trowsdale, 533 Smith V. Ward, 17 Smith V. Wilson, 362 Snook V. Hellyer, 155, 420, 683 Soilleux V. Herbst, 10, 17, 58, 60 Solomon v. Solomon, 182, 663 Somers, In re, v. Metropolitan Railway Company, 438 Soulsby V. Hodgson, 199, 232 South Sea Company v. Bumstead, 113, 555 662 Sowdon V. Mills, 120, 337, 349 Spain V. Cadell, 371, 383, 384 Sparrow v. Carrutliers, 16 Spence v. Clarkson, 614 Spence v. Eastern Counties Railway Company, 168, 244 Spence v. Stuart, 175 Spencer v. Newton, 175 Spencer v. Spencer, 479 Spettigue v. Carpenter, 182, 665, 691, 692 Spigurnell v. Jene, 388 Spivy V. Webster, 32, 582, 591 Spooner v. Payne, 53, 255, 528, 534, 585, 614, 622 Sprigens v. Nash, 224 Spurr V. Rayson, 86 Squib V. Bolton, 303 Squire v. Grevell, see Squire v. Grevett Squire v. Grevett, 314, 403, 501, 506 Staite V. Haddon, 137, 139 Stalworth v. Inns, 206, 208, 209, 235, 472, 505, 585, 681 Standley v. Hemmington, 405, 500, 590 Staniforth v. Lyall, 678 Stanway v. Heslop, 511 Staples V. Hay, 677 Stead V. Salt, 20 Steeple v. Bonsall, 81, 118, 352 Steel's V. Harrop, 54 Steers v. Lashley, 5, 480, 481 Steff'v. Andrews, 4, 292, 293, 295, 693 Stephens v. Lowe, 51, 125, 130, 132, 137 Stephenson v. Browning, 361, 595, 600, 644 Stevens v. Matthews, 403, 502 Stevens v. Russell, 378 Steward v. East India Company, 465, 466, 701 Stewart v. Williamson, 146 Stiles V. Triste, 267, 579 Still V. Halford, 505, 534, 535 Stock V. De Smith, 289, 318, 584, 586 Stodhart v. Johnson, 75 Stokes V. Lewis, 361, 458, 581 Stone V. Knight, 19 Stone V. Phillipps, 256, 312 Stonehewerv. Farrar, 243, 258, 289, 329, 333, 335, 408, 415, 476, 661, 681 Storke v. De Sraeeth, see Stock v. De Smith Storey v. Bloxham, 525 Storey v. Garrey, 586 TABLK OF CASES. Ixxiii Story, In re, 60 Story V. Johnson, 418 Strachan v. Dougall, 17 Strangf'ord v. Green, 20, 2S5 Stratton v. Green, 358 Street v. Rigby, &3, 65, 66, 92, 176, 54& Strike v. Beustey, 521 Strutt V. Rogers, 312, 358, 359, 591 Stuart V. Nicholson, 535 Stunnell v. Tower, 593 Sturgis V. Curzou, 46 Sturt V. Moggeridge, 108 Summers v. Formby, 376, 378, 707 Summers v. Grosvenor, 378 Sutclifle V. Brooke, 34, 614, 518 Sutton Harbour Improvement Com- pany V. Hitcliens, 429, 442 Swayne v. White, 603, 618 Sweet V. Hole, 548 Swinfen v. Swinfen, 29 Swinford v. Burn, 457, 541 Swinford & Horn, In re, 129, 658 Swinglehurst v. Altham, 376, 381 Sybray v. White, 241, 242, 536 Sykes v. Haigh, 589 Symes v. Goodfellow, 194 Symonds v. Mills, 488, 499 Synge v. Jervoise, 651, 652 Talbot r. Fisher, 566, 583, 615 Tandy v. Tandy, 274, 312, 404, 659, 661, 682 Tattersall v. Groote, 63, 65, 66 Tattersall v. Parkinson, 616 Taverner t. Skingley, 424 Tayler v. Marling, 154, 155, 346, 371, 380, 462, 463, 487, 624, 625, 632, 668, 669 Taylor, In re, 566, 568, 569 Taylor v. Lady Gordon, 358, 359 Taylor v. Gregory, 87, 707 Taylor v. Grieve, 128 Taylor v. Parry, 4, 23, 51 Taylor v. Scott, 598 Taylor v. Shuttleworth, 34, 75, 154, 155, 316, 338, 345, 346, 371, 380, 405, 410, 581, 624, 625, 631, 660, 668, 679 Teale v. Younge, 305 Teasdale v. Atkins, 140 Tebbutt V. Ambler, 404, 405, 590 Temple, Ex parte, 175 Templeman & Read, In re, 206, 211, 289, 656, 667, 681 Tew V. Harris, 44 Thaire v. Thaire, 235 Thinne v. Rigby, 269, 283, 321, 404 Thomas v. Fredericks, 44, 64 Thomas v. Harrop, 210, 246 Thomas v. Hawkes, 376 Thomas v. Hewes, 26 Thomas v. Philby, 570 Thomlinsou v. Arriskin, 121, 287, 516, 525 Tliompsett v. Bowyer, 77, 78, 81 Thomj)sou V. Atkinson, 379 Thompson v. Blythe & Tyne Railway Company, 222 Tliompson v. Charnock, 63 Thompson v. Jeuuiugs, 5, 635, 649, 683, 706 Thompson v. Noel, 546, 551 Thomson v. Austen, 470 Thornton v. Hornby, 585 Thorp V. Cole, 9, 204, 269, 271, 272, 280, 281, 282, 316, 361, 362, 481, 581 Thorpe v. Eyre, 482, 483, 540 Tlirelfall v. Fanshawe, 357, 365, 459, 505, 588 Thursby v. Helbert, 321, 421 Tiltbrd V. French, 506, 516 Tillam v. Copp, 164, 166, 167 Tillett V. Charing Cross Bridge Com- pany, 544 Tipping V. Smith, 283, 324, 404 Tittenson v. Peat, 108, 553, 654, 699 Titus V. Perkins, 277 Toby V. Lovibond, 118, 299, 304, 344, 349, 352, 404 Todd, Ex parte, 568, 571 Tollit V. Saunders, 214, 232 Tomes v. Hawkes, 50, 74, 128, 339 Tomlin v. Mayor of Fordwich, 53, 271, 320, 404, 505, 509, 516 Tope V. Hockin, 463 Toussaint v. Hartop, 75, 160 Travers v. Lord Stafford, 108, 477 Tredwen v. Holman, 64 Tregouing v. Attenborough, 358 Tremenhere v. Tresillian, 88, 505 Trew v. Burton, 132, 227, 246, 493, 595, 596, 658 Tribe & Upperton, In re, 275, 353, 570, 660 Trimingham v. Trimingham, 116, 469, 478 Trippet v. Eyre, 223 Trusloe t. Yewre, 482 Tryer v. Shaw, 192 Tuck V. Tuck, 335 Tunno & Bird, In re, 51, 60, 166, 222, 226, 231, 656 Tuohey y. Great Southern & Western Railway Company, 433 Turner v. Prince, 379 Turner v. Rose, 361, 363 Turner v. Swainson, 267, S91, 424, 425, 426, 662 Turner v. Turner, 122, 251, 557 Twistleton v. Travers, 225 Tyerman t. Smith, 138 Tyler v, Campbell, 602, 605, 610 Tyler v. Jones, 135, 158, 162, 582, 636, 668 Ixxiv TABLE OF CASES. U. Underhill v. Devereux, 86 Underwood v. The Bedford and Cam- bridge Railway Company, 236 Unsted v. Kidd, 369 Upton V. Upton, 480 Utting V. Evans, 356 V. Vanlore v. Tribb, 313 Veale v, Warner, 64, 238, 258, 286, 287, 515, 521, 522, 530, 631, 579, 642, 665 Veitch V. Enssell, 457 Vernon v. Wells, 703 Yinnikum & Morgan, In re, 221 Virany v. Warue, 457 Vvuior's Case, 144, 145, 146 W. Waddle v. Downman, 277, 336 Wade V. Dowling, 209, 235, 629, 656 Wade V. Huntley, 296 Wade T. Malpas, 292, 683 Wade V. Simeon, 79 Wade V, Stanley, 27 Wadsworth v. Marshall, 592 Walibrd v. Duchesse de Pienne, 16 Walker v. Frobisher, 185, 411 Walker v. Earl of Grosvenor, 582 Wallen v. Smith, 631 Waller v. King, 191, 291 Waller v. Lacy, 310 Wallia V. Hirsch, 48 Walters v. Morgan, 60, 88, 645, 549 Walther v. Mess, 631 Walton V. Swanage Pier Company, 448 Waltonshaw v. Marshall, 230 Wansborough & Dyer, In re, 35, 52, 582 Wan sell v. Southwood, 169 Warburton v. Storr, 143, 146 Ward V. Dean, 132, 296 Ward V. Great North of England Rail- way Company, 229, 676 Ward V. Hall, 314, 326 Ward T. Mallinder, 381 Ward V. Periam, 109, 465, 467, 690 Ward V. The Secretary at War, 141 Ward V. Uncorn, 262 Ware, In re, 97, 434, 435 Ware v. Regent's Canal Company, 435 Waring v. Manchester, &c., Railway Comjiany, 467 Warley v. Beckwith, 315 Warne v. Bryant, 183 Warner, In re, 17, 19, 288, 664 Warren v. Green, 661 Warwick v. Cox, 343, 659 Waters v. Bridge, 119, 517 Waters v. Taylor, 3, 65, 66 Wat kins v. O'Gonnan Mahon, 378 Watkins v. Phillpotts, 124, 245, 312, 318, 598, 617, 669 Watson V. Clement, 218 Watson V. M'CuUum, 59 Watson V. Duke of Northumberland, 2U5 Watson V. Watson, 277 Watts V. Brook, 5 Webb, In re, 310, 666 Webb V. Ingram, 314 Webb V. Taylor, 68, 169, 175 Webb V. Wyatt, 357 Webber v. Lee, 446, 451 Webster v. Bishop, 56, 57, 559, 582 Welch Y. Ireland, 520 Wellington v. M'Intosh, 65, 92, 176 Wells V. Benskin, 183 Wells V. Cooke, 220, 222 Welsh, In re, 569, 596 Weuman, Lady, v. Mackenzie, 538 Wentworth v. BuUen, 88 Westlake v. Collard, 469 Weston V. Faulkner, 568 Westwood V. Secretary for India, 64 Whaley v. Laing, 375, 629 Whalley, In re, 593 Wharton v. King, 256, 258, 269, 317, 505 Whatley v. Morland, 166, 655, 675 Whitburn v. Staines, 511 Whitchurch, Ex parte, 33 White V. Gifford, 156 White V. Sharjj, 210, 246, 635 Whiteacre t. Pawlin, 34 Whitehead v. Firth, 312, 363, 591, 594, 595, 667 Whitehead v. Tattersall, 243, 536, 541 Whitehouse v. Birmingham Canal Company, 432 Whitmore v. Friend, 357 Whitmore v. Smith, 201, 207, 298, 529, 530 Wickham v. Harding, 49 Wicks V. Cox, 232, 390 Wigens v. Cook, 377, 384 Wilcox v. Wilcox, 335 Wild V. Holt, 117, 325, 659 Wilde V. Vinor, 144 Wilkinson v. Godefrov, 496 Wilkinson v. Page, 3," 4, 252, 258, 391, 399, 558, 559, 573, 702 Wilkinson t. Time, 708 Wilkinson y. Stewart, 635 Williams y. Jones, 292, 299, 301, 304 Williams v. Gwynne, 85, 86 Williams v. Lewis, 22, 72 Williams y. London Commercial Ex- change Company, 45 Williams y. Moulsdale, 255, 339, 349, 392, 476 Williams y. Wilson, 362 Williamson v. Locke, 333, 334, 633 Willis Y. Osborne, 381 TABLE OF CASES. Ixxv Willoughby v. Will.)iighby, 6, 99, 213, 417 Wills V. Maccarmick, 461, 530, 541 Wiliiiot V. Allen, 584 Wilson V. Blythe & Tyiio Railway Coni]iauy. JScc Thompson v. lUythe & Tyne Railway Company. Wilson V. Constable, 514 Wilson V. Foster, 613, 617 Wilson V. King, 193, 292 Wilson V. Morrell, 149 Wilson V. Thorpe, 76, 685 Wilson V. Wilson, 238, 515 Wilts, &c., Railway Company Y. Fooks, 223, 440 Winipenny v. Bates, 58, 60 Winch V. Saunders, 269, 270, 272, 321 Winn V. Nicholson, 82, 696 Winter v. Garlick, 279, 361 Winter v. Lethbridge, 293, 314, 409, 411 Winter v. Munton, 22, 247, 658 Winter v. White, 52, 110, 122, 505, 508 Winterflood v. Stoveld, 102 Wiuteringham v. Robertson, 138, 206, 218, 224, 230 Winwood v. Holt, 593, 617, 618 Withers v. Drew, 129 Wohlenberg v. Lageman, 5, 281, 592, 595, 596, 657 Wood V. Adcock, 252, 421 Wood V. The Copper Miners' Company, 46, 69, 248, 624 Wood V. Duncan, 343, 492, 659, 707 Wood V. Griffith, 111, 258, 291, 391, 545, 548, 549, 607 Wowl V. Hotham, 304, 307 Wootl V. Leake, 191 Wood V. North Staffordshire Railway Company, 552 Wood V. O' Kelly, 359, 368 Wood V. Rowe, 65 Wood V. Taunton, 557 Wood V. Thompson, 20, 419 Wood V. Webb, 594, 595 Wood V.Wilson, 397, 398, 399, 516,662 Woodbridge v. Hilton, 704 Woodcroft & Jones, In re, 60, 62, 148, 149, 172 Woodley v. Johnson, 76, 92, 699 Woof V. Hooper, 339 Wo(>l](!y V. Kelly, 707 Worral'l v. Deane, 601, 652, 658 Worrel v. Atworth, 271 Worthington v. Barlow, 30, 31, 537, 582 Wright V. Burroiighes, 621 Wright V. Croml'ord Canal Company, In re, 304, 305, 310 Wright V. Fairfield, 81 Wright V. Graham, 209, 601, 619 Wright V. Sparkes, 398 Wright V. Webb, 93, 240 Wrightson V. Bywater, 5, 19, 75, 132, 162, 197, 248, 249, 250, 254, 288, 601, 664, 686 Wyatt V. Curnell, 262 Wykes v. Shipton, 344, 659 Wyld, Ex parte, 19, 33, 93, 679 Wyld, In re, 79 Wynne v. Edwards, 4, 262, 328 Wynne v. Wynne, 119, 123, 395, 496 Y. Yard v. Eland, 29 Yates V. Barnard, 695 Yates V. Mayor of Blackbnm, 96, 440, 740 Yeates v. Knight, 373 Young V. BiUman, 210, 363 Young V. Gye, 360 Young V. Miller, 220 Young V. Walter, 4, 112, 113, 295 Younge v. Cooke, 657, 701 Z. Zachary v. Shepherd, 644, 666 ADDENDA. Insert in p. 38, after line 29 : " Where a Benefit Building Society has duly obtained an award in its favour against a member for not pa3ring fines and sub- scriptions in pursuance of the rules of the society, a magistrate before whom these facts are proved, is bound to issue a distress wairant to enforce the award, and is not entitled to refuse on the ground that the society has been expending their funds illegally and has become a Freehold Land Building Society. The remedy for the member is to apply to a court of equity. " Hughes v. Layton, 33 L. J. M. C. 89. Insert in p. 80, after line 23 : "nor wlien the order of reference contains no power for the arbitrator to ameud the pleadings, will the court allow the declara- tion to be altered by abiding an averment of a new breach of contract." Smurth- waitc V. Richardson, 15 C. B. N. S. 463. Insert at the top of p. 106 : " acceptance of the office by the arbitrator seems necessary to perfect the appointment." RinglandY. Lowndes, 15 C. B. N. S. 173 ; S. C. 33 L. J. C. P. 25. Insert in p. 167, after line 9 : "Where an arbitrator was authorized to employ any person not objected to by aiiy of the parties, as an accountant to assist him, and the arbitrator after the last meeting and without communicating with any of the parties engaged an aox^ountant to assist him, the proceeding was held irregular and vitiating the award." Re Tidswcll, M. R. 17 Dec, 1863, 3 N. E. 281. Insert in p. 171, in the last line instead of the paragraph beginning with " these observations," the following words : " The Master of the Rolls has, however, recently decided that since the Common Law Procedure Act, 1854, the Court of Chancery may order the attendance of witnesses before an arbitrator, and that such orders may in future be made as of course." Ricketts, In re, M. R. 14 Nov. 1863, 3 N. R. 56. Insert in p. 174, after line 27, and before the word "some" : "It has been recently decided by the Master of the Rolls that the provisions of this latter sta- tute do now apply to proceedings in Chancery by virtue of the Common Law Procedure Act, 1854." Ricketts, In re, M. R. 14 Nov. 1863, 3 N. R. 56. Insert in p. 377, in line 34 after {b): " So in an action of slander referred after issiie joined, where the arbitrator found for the plaintiff on one of three counts and gave 20s. damages, the court held the plaintiff entitled to costs, the reference being before verdict." Fream, v. Sargent, 32 L. J. Ex. 281. Insert in p. 378, after line 4: " Though the cause and all matters be referred on a verdict taken subject to the reference, the same rule applies that the costs of the cause follow as on a verdict. " Smith \. Edge, 33 L. J. Ex. 9. Insert in p. 378, after line 13 : "In a later case Bramwell, B., expressed a doubt whether there was any distinction on this point between references by con- sent and compulsory references." Smith v. Edge, 33 L. J. Ex. 9. Insert in p. 393, after line 32 : "An arbitrator after finding a certain sum due from a party, directed him to pay or account for it to the trust estate in respect of which tlie arbitrator had to award and to apportion among the parties entitled. This finding was held bad and uncertain, on the ground that the award ought to IxXViii ADDENDA. have specified to whom and in what proportions the money ought to be paid." Re Tidswcll, M. R. 17 Dec. 1863, 3 N. K. 281. Insert in p. 429, in note {g) : "See Barber v. The NottingJiMm Canal Company, 15 C. B. N. S. 726. Insert in p. 430, after line 33 : "Those who assess compensation have no right to try whether the claimant's premises which have sunk by reason of the excava- tion lor a railway had a right to the support of the adjacent soil." The Queen V. The Mc.Lro2}olitan Railway Company, 32 L. J. Q. B. 367. Insert in p. 433, after line 11: " Loss of profits by loss of business to a shop by reason of the obstruction caused by the works is a ground of damage, and should be taken into consideration as affecting the goodwill, and so the value of the premises." Senior v. The Metropolitan Railicay Company, 32 L. J. Ex. 225. Insert in p. 558, note {a) : Cudlip v. Smedley, Dec. 11, 1863, 12 W. R. 200. Insert in p. 567, after line 31: " Where an agreement of reference is signed by A. ' for self & B. ' of the one part, A. & B. not being partners but only co-trustees, and by C. of the other, and A. wishes to make the agreement a rule of court under the stat. 17 & 18 Vict. c. 125, s. 17, there ought to be an affidavit verifying not only the signatures, but also that A. was authorized by B. to sign the reference for both." Aldingtons. Chesshire, 15 C. B. N. S. 375. Insert in p. 571, at the bottom : " When a party refuses to produce the sub- mission, the more convenient course is to take out a summons returnable at chambers, calling on him to show cause why the original submission should not be filed with a view to its being made a rule of court, or if not why a verified copy should not be filed for that purpose." Pligh v. Cottal, 19 Nov. 1863, 3 K R. 117. Insert in p. 614, after line 10: "the Court will not refuse the rule. merely because the successful party has been since the award sent to take his trial on a charge of perjury alleged to have been committed by him before the arbitrator ; no application having been made to set aside the award on the ground of the alleged perjury." Woollam v. Bradford, 30 Jan. 1864, Bail Court, 3 N. R. 490. Insert in p. 695, at the end of s. 1 : " It is to be observed, that an agreement of reference made a rule of court of common law under the Common Law Pro- cedure Act, 1854, s. 17, may be set aside by the Court of Chancery on a suit brought for that purpose ; but the Court is very reluctant to set aside the award after great delay, and when the award might have been set aside in the court of common law had an application been made to it in due time." Smith y. Whitmore, S3 Lu J. Ch, 218. ERRATA, Page 128, note (A:), for " Johnson t. Cheape, 5 Dowl. 256," read "Johnston V. Cheape, 5 Dow. 247." Page 141, note (/), for "Leslie v. Hutchinson," read "Leslie «. Richardson." Page 321, note (?'), for "Cooke v. Thorwood," read "Cooke v. Wliorwood." Page 335, note {k), for "Smith v. Reeves," read "Smith v. Reece." Page 357, note (I), for " Barnet v. Hayward," read "Barnes v. Hayward." Page 399, note {t), for "Rout v. Peach, read " Routh v. Peach." Page 458, note (w), for " Borroughes v. Clarke," read " Burroughes v. Clarke." Page 699, mote (;:), for " Woodneyi'. Johnston," read "Woodley». Johnston." OBJECT OF THE TREATISE. The principal object of this treatise is to assist an arbi- ^^J^"^* °^ trator in ascertaining what are his particular powers and tise. relative duties, and how he may best exercise the one and perform the other. As ancillary thereto, the nature of a submission to arbitration, and the effect of an award, are fully considered. "ir i PAET THE FIEST. Statement This first part, wliicli is introductory to tlie main object and*^"^"'-^''* of tliis work, namely, the exposition of the duty of an arbi- tents of the trator, is occupied with the consideration of the agreement pa . i^y ^]j^p|^ parties agree to submit their differences to the decision of an arbitrator. An agreement of this sort is termed a submission to arbitration ; or, more simply, a submission. A preliminary inquiry into its nature is neces- sary, since it is the submission alone, that invests the arbitrator with authority, defines his duties, and is the foundation of all his proceedings. Tlie several chapters, therefore, of this part, are employed in investigating, what matters may form the subject of a submission, who may be the parties to that contract, and what are the various modes of effecting it. It is necessary here to observe that by several acts of parliament a party may be compelled to submit to arbitra- tion ; in such cases the submission cannot strictly be termed the agreement of the parties. CHAPTER I. WHAT MATTERS MAY BE EEFEEEED TO TILE DECISION OF AN AE13ITEAT0E, In this chapter it is proposed to consider what are the Part I. subjects on which an arbitrator may be called upon to award. ^' ^' ^' • Tlie first section enumerates the civil interests over which ^j^g^^'g^g^"^ his jurisdiction may be extended ; the second section dis- chapter, cusses the propriety of submitting to his decision matters and proceedings of a criminal character. SECTION L MATTERS AFFECTING THE CIVIL INTERESTS OF THE PARTIES. I. Civil rights of the parties,'] — All matters in dispute All matters concerning any personal chattel or personal wrong may be personal"" referred to the decision of an arbitrator (a). Thus breaches chattels, or of contracts generally, breaches of promise of marriage (b), wrongs, trespass, assaults, charges of slander (), of title to land by devise (q), and of title to land in general (r), may a;ll now be effected by arbitration. Questions Pure questions of law, as for instance a demurrer, may be referred to the decision of an arbitrator (s). So he may be called upon to determine the liability of a party on a promissory note (t), or to put his construction on an act of parliament {u), or on the effect of a will {x). Actions at Jij[ actious at law and suits in equity, excepting perhaps suits in actions upon penal statutes by common informers (y), may equity. i^g determined by arbitration. The reference of an action may be made at any stage of the proceedings from the issuing of the writ (z) to the trial (/i.) EoUe Ab. Arh. E. 1, 2, 4; (p) Hunter v. Eice, 15 East, Bac. Ab. Ai-b. A. ; Com. Dig. Ai-b. 100. D. 3 ; Morris v. Creach, 1 Lev. {q) Downs v. Cooper, 2 Q. B. 292. 256. (i) Com. Dig. Arb. D. 3 ; Eolle (r) Doe d. Morris v. Eosser, 3 Ab. Arb. E. 3, 5, 6. See Lud- East, 15. dington v. White, Styles, 350. (s) Cbing v. Cbing, 6 Ves. 281; {k) See Godfi-ey v. Godfi-ey, 2 Young v. Walter, 9 Ves. 364 ; Mod. 303. Mattbew v. Davis, 1 Dowl. N. S. (Z) 3 Black. Com. 15, I5tb ed. ; 679. Com. Dig. Arb. D. 3 ; Eolle, Ab. {t) Wilkinson v. Page, 1 Hare Ai'b. B. 14, E. 2, F. 9, E. 15, V. ; 276. Marks v. Maniott, 1 Ld. Eaym. (m) Price v. HoUis, 1 M. & S. 114. 105. (to) Knigbt V. Burton, 6 Mod. (x) Steff v. Andrews, 2 Madd. 6. 231. hj) Stat. 18 Eliz. c. 5. (n) Jobnson v. Wilson, Willes, (z) Eogers v. Dallimore, 6 248. Taunt. Ill; Wynne v. Edwards, (o) Taylor v. Parry, 1 M. & G. 1 D. & L. 976. 604. CIVIL INTERESTS. 5 at Nisi Prius {a) ; sometimes even after verdict {b). Con- Tart i. tingent damages on a demurrer may be referred equally °"- ^- «• ! • with damages on tlie issues in fact {c). When the subject matter is clearly illegal, no binding Notmattera award can be made. illegal. Thus, where a bill of exchange was accepted for a sum awarded due on illegal stock-jobbing transactions, the arbi- trator to whom it had been indorsed was held not entitled to sue upon it (r/). But where transactions between parties have been closed Illegal by a general award ai)parently good, the courts have refused accoy^" to reopen them on a suggestion that some illegal item has been admitted in account {e). The future conduct of parties with respect to the enjoy- Future use ment of property, in matters beyond the power of any court °f Property- to prescribe, is often submitted to the regulation of an arbi- trator. Thus, an arbitrator has been called upon to set out what road one of the contending parties should have over certain lands (y), to determine with respect to such things as a pump, a yard, a doorway, a hedge and ditch (^), a flue, a watercourse, or a waterspout (7^), how they shall in future be enjoyed and used, and even to say generally what shall be done by the parties respecting the matters in dispute (/). Parties may also agree to refer to arbitration any future Future dif- differences between them, though none at present exist (Ji). ^^''^'^<^^s- II. Matters referred hy statute. '\ — It often happens that Public and private persons cannot deal with their respective interests in J^"h^g ^ statute. (a) Allenby v. Proudlock, 4 Eobe, 3 Taunt. 461. Dowl. 54. (/) Allenby v. Proudlock, 4 [h] Thompson v. Jennings, 10 Dowl. 54. Moore, 110. (i'eviously decided that an agreement to agahist°the drop a prosecution for an ofience against the Toleration Toleration Act was illegal, as impeding the course of })ublic justice, and Le Blanc, J., had relied on the distinction, that the prosecution was for a public misdemeanor, and not for any private injury to the prosecutor {//). In cases of ordinary assaults, where the party injured has indictment proceeded by indictment, all the authorities concur that "' ^^^^" *" the policy of the law will admit of a compromise or refer- ence {i). Indictments for nuisances of all sorts, such as raisins: an indictment embankment in a river (/(>), or carrying on an offensive nyj^^nce trade (/), have been continually, with the sanction of the presiding judge, referred on the trial. No objection has as yet been taken to the validity of such a reference, though the essence of an indictment for a nuisance is the injury to the public. It is quite clear that an indictment for perjury cannot For per- legally be referred (}?i). ^^^^' Notwithstanding an opinion expressed in an earlier For non- case (n), it is now decided that an indictment for non-repair of Wahway. of a highway is not capable of being lawfully determined by arbitration, as it is not a case in which the party injured had a remedy by action (o). After conviction a compromise has often been sanctioned Compro by the courts. Thus, agreements of compromise made by ^ier coi defendants with the apj^roval of the court, after conviction miction. of the several misdemeanors of ill-treating a parish appren- (7) Keii- V. Leeman, 6 Q. B. {k) Dobson v. Groyes, 6 Q. B. 308; S. C. Keogh v. Leeman, 8 637; Fallowes v. Taylor, 7 T. E. Jiu-. 824. 475. {h) Edgcombe v. Eodd, 5 East, (1) E. v. Moate, 3 B. & Ad. 294. 237 ; E. v. Gore, 8 Dowl. 102. {i) Elwortby v. Bii-d, 2 Sim. & (m) E. v. Hardey, 14 Q. B. 529; Stu. 372 ; S. C, not S. P., 2 Bing. CoUins v. Blantern, 2 Wils. 341. 258, 9 Moore, 430 ; Blake's case, {n) E. v. Cotesbatcb, 2 D. & E. 6 Eep. 43 ; 4 Black. Comm. 363, 265. See E. v. Cotton, 3 Camp. 15 ed.; E.v.Eant,KydouAwards, 444. 64 ; E. V. Coombs, ib. ; Horton v. (0) E. v. Blakemore, 14 Q. B. Benson, Freem. 20. 544. 14 WHAT MAY BE REFERRED. Part I. tice (/?), and of disobeying an order of maintenance (q) made ""• '• ^- ^- by justices, have been sustained as legal. A presentment and proceedings before commissioners of before com- scwcrs, to procurc the removal of some weirs and hatches in missioners a rivcr, liavc bccu made the subject matter of a valid award (r). Present- ment of sewers. Indict- In criminal matters, after conviction before a Court of before Quarter Sessions, a reference is lawful ; for where a defen- Quarter dant, after conviction before the Quarter Sessions on an indictment for assault, was called up for judgment, and by the recommendation of the court the prosecutor and defen- dant entered into an agreement of reference respecting the matters in difference between them, including the assault and the costs of the indictment, on its being contended, on the strength of E. v. Harding (s), that the Quarter Sessions had no power to refer the matter to be determined by another, the Court of Common Pleas sustained the validity of the submission {t). Consent of It sccms the better opinion, though there is no express "inference of c^scision on the point, that the consent of the court in which indict- an indictment is pending for trial must be obtained in order that the reference should be effectual {u). {})) Beeley v. Wingfield, 11 East, 46. [q) Kii'k v. Strickwood, 4 B. & Ad. 421. See also Goodal v. Lowiides, 8 Justice of the Peace, 771. Nov. 23, 1844, Q. B. (r) Doddington v. Bailward, 7 Dowl. 640. (s) 2 Salk. 477. {t) Baker v. Townskend, 7 Taunt. 422 ; S. C. 1 Moore, 120. (m) E. v. Eant, Kyd on Awards, 64; E. V. Coombs, ib., 1 Ckitty's Stat., 33, note (b) to 9 & 10 W. III. c. 15 ; E. V. BardeU, 5 A. & E. 619 ; S. C. 5 Dowl. 238 ; E. v. Hardey, 14 Q. B. 529. CHAPTER II. WHO M7\.Y EEFEB MATTEES TO AEBITEATION. In this chapter we proceed to examine who are the persons Part I. capable of submitting clitFerences to arbitration. °"' "• ^- ^' Tlie first section treats of those who are interested on Scope and . • 1 L • T 1 ^ contents of their own account in the matters m dispute ; the second the second investigates the powers and liabilities of those who have not ^'^^p*®'^- necessarily any personal interest, but act rather in the capacity of agents or trustees for others ; while the third enumerates some classes of persons who derive their authority to refer from acts of Parliament. SECTION I. PERSONS INTERESTED IN THE SUBJECT MATTERS. I. Parties capable of dispositig of their rights.'] — Every Persons one capable of making a disposition or release of his right coStSct"*^ can make a submission to an award (a). But those who are ing- attainted or outlawed cannot submit, for they have no pro- perty, and cannot by law contravert anything {b). Persons that cannot contract cannot submit to arbitration. Pursuant to this leading principle it is broadly laid doAvn in the older authorities that femes covert, persons compelled by threats and imprisonment, and persons professed in religion cannot submit (c). {a) Com. Dig. Alb. D. 2. (c) Bac. Ab. Ai-b. C. ; Com. Dig. [b) Bac. Ab. Ai-b. C. Ai-b. D. 2. 16 PEKSONS mTERESTED. Part I. CH. II. s. 1. Feme covert. Husband civiliter mortuus. Trans- ported. Alien enemy. Sole trader in Loudon. Separate estate in equity. Real estate not settled to her separate use. II, Femes CoverL~\ — Some exceptions exist to this propo- sition, as far as regards femes covert. For where the husband, hy exile, banishment, abjuration, or profession of religion, was civiliter mortuus, the wife was always held capable of making contracts, and acting in every respect as a feme sole, and consequently might be a party to a reference {ci). The wife of a felon, transported for life, would be equally competent (e). So, during the term, the wife of one trans- ported for seven years only {/). So likewise the wife of an alien enemy, but not of an alien ami ; for the later decisions seem to show, that it is only where the absence of the husband from the country is involuntary that the law invests the wife with a separate character (^). Sometimes by local custom, as in the city of London, a married woman is authorized to carry on business as a sole trader (h). It is apprehended she might refer disputes respecting her business to arbitration. Where a married women has a separate estate settled to her separate use, she is considered in equity (^), though not in law (k), competent to act concerning it, in all respects as a single women. But where she is interested in real estates, which are not settled to her separate use, she is not so treated, even in equity. In one instance the Court of Chancery refused to permit a reference to arbitration, one of the parties being stated to be a feme covert interested in real estate, or even a reference to the master to inquire whether {d) Co. Litt. 1, Inst. 133, a. ; Countess of Portland v. Prodgers, 2 Vern. 104. (e) Newsome v. Bowyer, 3 P. W. 37. (/) Sparrow v. Carrutliers, cited in Marsh, v. Hutchinson, 2 B. & P. 226 ; also in Lean v. Schutz, W. Bl. 1197 ; Carrol v. Blencow, 4 Esp. 27. (g) Marsh v. Hutchinson, 2 B. & P. 226 ; Barden v. Keverberg, 2 M. & W. 61 ; Deerly V. Duchess of Mazarine, 1 Salk. 116; S. C. 1 Lord Eajnn. 147. See also Wal- ford V. Duchesse de Pienne, 2 Esp. 553 ; Franks v. Duchesse de Pienne, 2 Esp. 587; Kay v. Duchesse de Pienne, 3 Camp. 122 ; De GaiUon v. L'Aigle, 1 B. & P. 357. (/i) Beard v. Webb, 2 B & P. 93. {i) Peacock v. Monk, 2 Ves. sr. 190 ; Allen v. Papworth, 1 Ves. sr. 163 ; Pybus v. Smith, 1 Ves. 189; Dubois v. Hole, 2 Vern. 613 ; Jones v. Harris, 9 Ves. 486 ; Hulme V. Tenant, 1 Bro. C. C. 16; Heatley y. Thomas, 15 Ves. 596 ; Grigby v. Cox, 1 Ves. sr. 517. {k) Marshall v. Eutton, 8 T. E. 545, overruling Corbett v. Poel- nitz, 1 T. R. 5 ; Beard v. Webb, 2 B. «& P. 93. PERSONS INTERESTED. 17 it would be for lier benefit as in the case of an infant (/). A Part i. consent of a married woman to be bound by an award ""■ "• ^- ^ - already made, cannot bind her as it often will a feme sole {m). An award, on a reference relating to lands in Jamaica, to which married women interested therein were parties, was held void by the Judicial Court of Privy Council, on account of their coverture and disability to bind themselves (w). Where a married woman has been a jjarty to a submission. Agreeing to and .an award has been made, a court of law will refuse to ^.jti, a set aside the award, on the e-round that she is not bound by ma"ieti . n ^ woman it, at the prayer of a party to the submission, who, from the knowing first, was cognisant of her coverture, for he never should ^y^,,''"^^*'' have consented to refer the matters, and allow her to become a party, if he intended to make this objection (b. D. 2 ; Bean V. Newbury, 1 Ley. 139. PERSONS INTERESTED. 19 infant son or ward shall perform an award {e). But if the ^^^^ '• award direct, that on payment by defendant of a sum of ~ — l!l_l money, the infant shall execute a release, though the sub- mission to which he is a party may be good, as it may be for his benefit, yet the award will be void, as an infant cannot execute a binding release ; and the father will be unable to enforce the arbitration bond against the defendant {/). An infant may be directed by the award to pay costs (y). Equity, it has been said, will not decree an award to bind Whether . . . . equity will an infant (Ji), but the rule is not without an exception (i). enforce When an infant is a party to a suit in Chancery, the court Yl\n&i will refer it to the master to ascertain whether it would be infant. for the infant's benefit that the suit should be submitted to to'^master arbitration, and will make an order in accordance with the '"'hether arbitration master s report {k). for infant's Infant plaintiffs in a suit in Chancery suing by their next benefit. friends cannot be bound by acts of the attorney referring bound by the suit to arbitration, and the award will be void for the attorney. want of mutuality, if the object of the reference fails in consequence (/). But if parties to suits to which infants also are parties agree to refer, they cannot evade their sub- mission, or defeat the award on the ground that the infants were not bound ; for they must be presumed to have known that the infants could not be bound, and therefore in the consent of the persons of full age they have all the conside- ration for which they had stipulated (m). V. Partners and parties with joint interests.'] — If a man Partner •^ "^ -^ not bind co-partner. (e) GUI V. EusseH, Freem. 62, ley, 3 Atk. 607. See P. IH., ch. 4, 139; Eoberts v. Newbold, Comb. s. 1, d. 2. 318 ; Bowj^er v. Bloiksidge, 3 [k) Davis v. Page, 9 Ves. 350. Lev. 17. See also Dowse V. Coxe, 10 Moore, (/) Knigbt V. Stone, W. Jones 286. Eep. 164 ; S. 0. Stone v. Knight, (0 BiddeU v. Dowse, 6 B. & C. Latch, 207, Noy, 93. 255, in error from C. P. ; S. C. 9 {(j) Proudfoot V. Poile, 3 D. & D. & E. 404. See case below, re- L. 524. ported Dowse v. Coxe, 10 Moore, [h) Cavendish v. , Eq. 272 ; S. C. 3 Bing. 20. Oas. Ab. 49; S. C. 1 Cas. in Chan- (to) Wrightson v. Bywater, 3 eery, 279 ; Evans v. Cogan, 2 P. M. «& W. 199 ; Jones v. Powell, W. 450. 6 Dowl. 483 ; Warner in re, 2 D. (^■) Bishop of Bath and Wells v. & L. 148. See Wyld, ex pai-te, Hippesley, cited in Harvey V. Ash- 30 L. J. Bank. 10. c 2 20 WHO MAY REFER. Part I. gvibmit for himself and his partner all matters in difference ^"' "' ^' ' between the partnership and another, the partner submitting shall be bound to perform the award ; but the other shall not, because he is a stranger to the award. If, however, the latter refuse, it is a breach of the submission by the partner who agreed to the reference (n). The same rule prevails in the case of a general partner- ship, as well as in the case of a partnership in a particular transaction. There is no implied authority in either case far some of the partners to bind the others by a submission to arbitration made without their knowledge or assent ; for it forms no part of the transaction, in which they are jointly engaged, and joint contractors can only be made respon- sible for transactions arising in the way of their business or employment. It is not, however, necessary that that assent must be given in any particular form of words, nor is it required to be made under the hand of the co-partner. All that is necessary is, that there should be some evidence of an actual authority conferred. Such a power does not arise out of the relation of partnership, and is not, therefore, to be inferred from such relation (o). Power to jf^ Qjj g^ dissolution of partnershij), one partner authorize give power the other to collect the assets and to sue in their joint names to re er. ^^ recovcr dcbts due to the firm, the acting partner cannot refer to arbitration an action brought on such authority so as to bind the retiring partner ; for though a Court of Equity would have compelled the retiring partner to allow his name to be used in suing, he could not be forced to submit to arbitration (j^j). All must Even the individual partners who are parties to the refer- or none eucc, are sometimes not bound by the award. Tlius where, bound. jjy g^ ^|gg(j Qf covenant purj)orting to have been made be- tween several persons who were partners, the partnership accounts, and all matters in difference between the parties or any two of them were referred, and two only of the partners executed the deed, an award deciding on a separate ()i) Bac. Ab. Ai-b. C. ; Com. Dig. Burnell v. Minot, 4 Moore, 340 ; Arb. D, 2 ; Strangford v. Green, Wood v. Thompson, Eol. Ab. Arb. 2 Mod. 228. F. 11, p. 249. See Boyd v. Em- (o) Steady. Salt, 10 Moore, 389; merson, 2 A. & E. 184. S. C. 3 Bing. 101 ; Adams v. (p) Hatton v. Eoyle, 3 H. & N. Bankbart, 1 C. M. & E. 681 ; 500 ; S. C. 27 L. J. Ex. 486. ■ PEKSONS INTERESTED. 21 claim between tlie two wlio executed was not held binding P-*^^^ I. upon tliem, as the consideration to each to execute his own — — L^_' submission was the submission of all the others, and until all had executed the deed, the arbitrators had no authority (q). In general a man is bound by an award which he submits Party sub- to for another (r). Thus, if the parson on the one hand, others "as and some of the parishioners on the other hand, on behalf ^.^^gj^ of themselves and the rest of the inhabitants of the parish, but without the authority of the rest, submit to arbitra- tion by bond, the parishioners submitting shall alone be answerable for a breach of the award by any of the other parishioners (s). VI. Corporations, sole and aggregate.'] — It is stated in the Rector re- Year Books that an award made on the submission of a ^^\^q preceding: prior shall bind his successor (^), but it is clear |J"iing^is that a rector who refers a question respectmg the amount oi bency. tithes cannot so provide that the award shall be conclusive beyond his own incumbency of the living {u). As to certain references by statute by rectors concerning their houses or glebe lands, and by bishops, deans, and chapters, and others, respecting the boundaries and sale of their estates, see the following section. Corporations aggregate may be parties to a reference. Corpora- In a recent case it was discussed whether the attorney of a g^^g^^^^"^®' corporation required a special authority under the corporate seal to empower him to refer a cause ; at all events a subse- quent ratification of his acts under the corporate seal is suf- ficient (x). Tlie reference must be an act of the corporate body. A dean without the chapter, a mayor without his {q) Antram v. Chace, 15 East, {t) EoUe Ab. Ai'b. 268, A. 3, 209 ; Adams v. Bankhart; 1 C. M. 2 H. 4, 4, b. & E. 681. {v) Attorney-General V. Cbom- (r) Bac. Ab. Ai^b. C. ; Alsop v. ley, 2 Eden C. C. 304, Amb. 510 ; Senior, 2 Keb. 707, 718 ; SbeK v. Prosser v. Goringe, 3 Taunt. 425. Bailey, Com. Eep. 183 ; Bacon v. {x) Mayor of Ludlow v. Cbarl- Dubarry, 1 Lord Eaym. 246 ; S. ton, E. T. 1845, Ex. ; Attorney- C. Salk. 70, Skin. 679, Carth. 412, General v. Clements, 1 Turn. & Comb. 439, 12 Mod. 129. E. 58. (s) Bac. Ab. Ai-b. C. ; Mudy v. Osam, Litt. 30. 22 WHO MAY REFER. Part I. OH. II. s. 1. Attorney- General's consent in case of charities. Party joined on the refer- ence of a cause. Party added afterwards, Party by subsequent consent. Party by acquies- cence. commonalty, the master of a college or hospital without his fellows, cannot submit to an award, for the submission has the force of a contract, and they cannot contract without them (y). But where the body corporate properly enter into a submission, the award is binding upon them. Tlie Court of Chancery has on several occasions enforced an award against an eleemosynary corporation (z). It may here be proper to remark, that in suits in equity respecting charity property, the Court will not permit a reference, however advisable such a course may seem, unless the Attorney-General give his consent (a). VII. Parties interested, added.'\ — It often happens, when a cause is referred, that a third party is made a party to the submission, and under some forms of submission the arbi- trator has been held warranted in treating him as a party to the cause itself {])), Even when not inserted as a party in the order of reference, his assent to the proceedings will in many cases preclude him from disputing his obligation to abide by the award (c). Where a submission has in the first instance been made between two, a third party may be added afterwards, and the reference may proceed as if all three had been parties to the original order of reference (<^). Subsequent consent to the award by a party interested in the subject matter of it, will in equity often have the eifect of binding his interests (e), and may do so in law, if a con- tract is made on the footing of it (y). Even acquiescence may render a person concluded by the terms of an award. Tlius, where the landlords of two adjoining estates let on lease referred to a surveyor to de- I {y) Bac. Ab. Ai-b. C, 21 Ed. IV. 13. (z) Attorney-General v. Cle- ments, 1 Turn. & R. 58. See P. III., ch. 4, s. 3, d. 1. (a) Attorney- General v. Fea, 4 Madd. 274 ; Attorney- General v. Hewitt, 9 Ves. 232 ; Priory. Hem- brow, 8 M. & W. 873. (6) Hawkins v. Benton, 2 D. & L. 465; S. C. 15 L. J. N. S. Q. B. 139, 8 Q. B. 479 ; Eogers v. Stan- ton, 7 Taunt. 575 n. ; Morgan v. MHler, 6 Bing. N. C. 168 ; Pros- ser V. Goringe, 3 Tarmt. 425 ; Nickalls v. Warren, 9 Jur. 10 ; Williams v. Lewis, 7 E. & B. 928. (c) Gunton v. Nurse, 5 Moore, 259. id) Winter y. Munton, 2 Moore, 723. (e) Eyansy. Cogan, 2 P. W.450. (/) HiU y. Levey, 3 H. & N. 286; S. C. 27 L. J. Ex. 259 ; S. C, in error, 3 H. & N. 702, 28 L. J. Ex. 80. PERSONS NOT INTERESTED. 23 termine and stake out a clispiited boundary between their ^^^^ ^■ resi:)ective properties, the tenant of one estate who by his ' ' ^' ' conduct assented to the surveyor's staking out the line, was held bound by the decision of the surveyor as if he had been an original party to the submission (g). So far has this principle been carried, that a third party ^^^*y ^y having a claim on a subject of reference between A. and i?., and not bringing forward his claim, was held in equity bound by the award {h). SECTION 11. PERSONS NOT INTERESTED IN THE SUBJECT MATTERS. I. Authorized agetit.'] — Tlie parties to a submission of Paut i. whom we have hitherto treated are those who are personally ch. n. s. 2 . bound by the award, and whose immediate interests form the subject of reference. We now come to consider a class of parties, who have no interest of their own in the matter in dispute, but who nevertheless sometimes incur a personal liability. . If a man authorize another on his behalf to refer a dis]3ute Submission between himself and a third party, an award consequent on tiou\y such submission is binding on the principal alone, and it is ^?^^^ ^^• no objection that the agent had no interest in the subject of refer. the dispute. But if the agent expressly bind himself for the performance of the principal, not only the principal who authorized him, but the agent himself is bound by the award {{). An assignee of a business including a contract for cover- -Assignee ° _ o of contract. ing wires with gutta percha, with a power of attorney to him to take proceedings in the name of the assignors, to {()) Taylor v. Parry, 1 M. & G. {i) Bac. Ab. Ai-b. C. ; Dyer, 604. 216 b. ; CayhiU v. Fitzgerald, 1 (/i) Govett V. Eichmond, 7 Sim. Wils. 28, 58 ; Com. Dig. Ai-b. 1. See P. III., c. 4, s. 1, d. 2. D. 2. 24 WHO MAY REFER. Part I. OH. n. s. 2, m Assignee of debt. What a sufficient authority. Extent of authoi'ity of agent. enforce any existing contract and otherwise to deal respect thereof as he might think proper, has authority not only to bring an action in the name of the assignors on the contract and to refer it, but also to consent to a reference of a cross action by the defendant, the other contracting party, against the assignors for wires spoiled in the process of covering (^). A party to whom debts had been equitably assigned, and who was authorized under a power of attorney to receive and compound for the same, having submitted to arbitration the matters in difference between his principals and one of their debtors, was held entitled to maintain an action in his own name for the sum awarded in his favour (/). It often becomes a question whether a person who is agent for some purposes is so for the purpose of binding his principal by a reference. A person who underwrites, and settles losses for another, has an implied authority from him to refer to arbitration a dispute about a loss (m). When a member of a partnership firm gave his son a power of attorney to act upon his behalf in dissolving the partnership, with authority to appoint any other person as he might see fit, it was held that this gave the son power to submit the accounts to arbitration (?^). Consignees of goods were by agreement, after deducting their advances, charges, and commissions, to pay over the balance. When the goods arrived, the captain of the ship, the agent of the party entitled to the balance, who was then a bankrupt, wrong- fully refused to deliver them. No assignees had been appointed. The consignees were held authorized to sue the captain and also to submit the action to arbitration, and to deduct the costs of both action and reference from the balance to be paid over (o). An agent authorized to conduct the reference for a party has power to consent that the opponent may produce his books before the arbitrator alone at a subsequent day (/>). [k) Hancock v. Eeid, 21 L. J. Q. B. 78. {I) BanfiU V. Leigh, 8 T. E. 571. (m) Goodsonv. Brooke, 4 Camp. 163. (n) Henley v. Soper, 8 B. & C. 16 ; S. C. 2 M. & R. 155. (o) Curtis V. Barclay, 5 B. & C. 141. {p) Hamilton v. Eankin, 3 De Gex & S. 782. PEKSONS NOT INTERESTED. 25 He may also bind his principal by waiving an objection to i*art i. improper appointment of an umpire by lot (q). -^ — '-^-^ II. Attorneys and solicitoi^s.'] — Attorneys and solicitors are Power of agents who are clothed with peculiar powers of affecting to bind his their clients' interests. "^^^^^^^l ^ When a person has given an attorney any general autho- rity to act for him in legal proceedings, the courts have always been inclined to hold him bound by his attorney's acts, and yield with reluctance to any complaint that the attorney has acted beyond or contrary to the authority given him in consenting to a reference (r). On one occasion, Best, C. J., seems to have assumed as clear, that an attorney in a cause has power to refer the cause, whatever be his authority as to matters out of it, and that attorneys for the parties generally have power to refer all matters in difference (s). In another instance, where it was necessary to prove at Nisi Prius that all the members of a firm had assented to a parol submission, the arbitrator stated in the witness-box that he had been requested by one partner only to undertake the arbitration, that the defendants had never personally attended, but were represented at the reference by their attorney, A. B. Taunton, J., in summing up to the jury, said, that A. B. having acted as attorney for the defend- ants, they must be taken to be bound by his acts (t). Even where a defendant swore that she had expressly desired her attorney not to consent to a reference, and that no step had been taken in it except the appointment of a meeting, the court refused the application to set aside the Nisi Prius order of reference, and Mansfield, C. J., said, " Here is an express agreement to refer, properly entered into by counsel and attorney ; it is now said they had no authority to enter into that agreement ; if so, the defendant's remedy is by action against her attorney " {ii). So where a cause was {q) Backhouse v. Taylor, 20 L. PaiiU, 2 C. & M. 235. J. Q. B. 233. is) Dowse v. Coxe, 3 Bing. 20. {r) Latuche v. Pasherante, 1 [t) Adams v. Bankart, 1 C. M. Salk. 86; Buckle v. Eoach, 1 & E. 681. Chitt. 193 ; Bodington v. Harris, {n) Filmer v. Delber, 3 Taunt. 1 Bing. 187 ; Jamieson v. Binns, 486. In re, 4 A. & E. 945 ; Paull v. 26 WHO JIAY REFER. Part I. referred l^y judges' order by conssent of the attorneys, the ' ' ' court enforced the award summarily, though the defendant swore that he had never authorized the reference, and previous to the award being made had sent a protest to the i^laintiffs and the arbitrator against their proceed- ings (x). In a case against a land steward defended by the landlord, the attorney had agreed to an order of Nisi Prius compro- mising that action, and also other actions between the plaintiif and the landlord ; a motion was made to set aside the order on the ground that the attorney had no authority to bind the landlord by such an arrangement, and it was argued that employing an attorney in a cause gives him no authority to refer all matters in dispute between the parties ; but the court said it was constantly done, and refused to interfere in a summary way (y). Attorney On One occasiou, where the question was raised but not ratton°'^^°' determined, whether a retainer under seal was necessary to authority warrant the attorney of a corporation in conducting or ' referring an action. Pollock, C. B., distinguished the case of Arnold v. Mayor of Poole (z), saying that that case did not decide that the corporation might not be bound, but only that the attorney could not recover, without such a retainer (a). More recently, however, where an incorporated railway company had been served with a writ, and their attorney had entered an appearance, and ultimately referred the action, the court enforced the award against the company, although they ol)jected that the attorney not being appointed under seal had no authority to proceed in the action, or to refer it {b). The attorney's consent to an enlargement of time binds the client (wer of in a cause will, it is apprehended, in general be binding on refer to the party he represents. arbitra- A counsel appeared to consent to a compromise of a suit on behalf of one of the parties. Some doubt being sug- gested whether the counsel was authorized by the party to the suit, the instructions not being given by the solicitor she had formerly employed. Lord Chancellor Eldon said, " It (e) Griffith v. Williams, 1 T. E. {i) Bac. Ab. Arb. C. ; Bacon v. 710. Dubarry, 1 Salk. 70; S. C. 1 Lord (/) Greenwood v. Titterington, Eaym. 246, Comb. 439, Cartb. In re, 9 A. & E. 699. 412 ; but see Anon. 6 Mod. 16, {g) Bac. Ab. Ai-b. C. ; Colwel and Wade v. Stanley, 1 Jac. & W. V. Cbild, Cas. in Ch. 86, 1 Cb. Eep. 674. 104. See Fui-nival v. Bogle, 4 {h) E. v. J J. Northampton, 2 Euss. 142. Bott. pi. 936; S. C. Cald. 30. See (A) Com. Dig. Ai-b. D. 2 ; Cay- Stat. 12 & 13 Yict. c. 45, ss. 12, bill V. Fitzgerald, 1 Wils. 28, 58; 13. Iveson V. Conington, 1 B. & C. {I) BiddeU v. Dowse, 6 B. & C. 160. 255. See ante, p. 19. 28 WHO MAY REFER. Part I, jg fyj. tlie counsel to consider wlietlier he is authorized to ^^' "• ^' • give his consent for the widow. If lie does, I must act upon it, and she will be bound by it " (m). Counsel That decision of Lord Eldon's was relied upon in the fol- irforma- lowiug casc : — A counsel in a suit in equity, in the absence tion of the of his solicitor and of the client from the court, consented to an order being drawn up on certain terms proposed by the other side. When the client was informed of it he strongly objected to the terms, and moved to have the order re- scinded. The case was several times brought before Lord Lyndhurst, C, who stated his opinion, that a party was bound by the consent of his counsel given in court, though they had no instructions to consent, if they were at the time apprised of all those facts, of which the knowledge was essential to the j)roper exercise of their discretion, but that he would be relieved from an order made by such consent if they gave that consent in ignorance of material circum- stances. He also intimated, that if the solicitor had been in court, and with a full knowledge of all the facts of the case had assented to the arrangement, it would have bound his client ; and that if the solicitor, when he heard of the order, had dissented from it, it was his duty to have given immediate notice of his objection ; that by not doing so he would be taken to have adopted it, and his client would be bound. Affidavits, however, were admitted to show that the counsel had not all the proper facts before them, and that there had been no laches in objecting on the part of the solicitor, and consequently the order was rescinded {n). The principle that parties are bound by the consent of their counsel has been recognised in a later case, where a petition to restore a petition dismissed by consent upon the ground that no authority had been given to counsel to con- sent, was dismissed with costs (o). More recently the question of the power of counsel to bind their clients by agreeing to a compromise has been (m) Mole V. Smitli, 1 Jac. & W. v. Bii^d, 1 Taml. 43. 673. See E. v. Corporation of (h) Fui'myal v. Bogle, 4 Eriss. Helston, 10 Mod. 202. Gresley 142. on Evidence, 458, 2d ed. College (o) Hobler, In re, 8 Beav. 101. V. Horn, 3 Bingh. 119; Elworthy PERSONS NOT INTERESTED. 29 raised in tlie Court of Common Pleas, and in tlie Court of ^^'^'^ ^■ Cliancery, and contradictory opinions liave been expressed — '. — L_!_' by members of the courts {p). Counsel seem to have equal authority in Scotland. On Power of • ■ ,1 c^ j_ ^ J. Li counsel in the trial ot two cross actions m the fecotch courts, tne the Scotch counsel had, at the suggestion of the judge, agreed to refer courts. them, and had subscribed a minute of judicial reference referring them to A. B., or failing him, to any arbitrator to be named by the Lord President. A party sole plaintiff in one, and sole defendant in the other action, in the course of the day protested against the reference, and moved the court to discharge it, alleging that he was not aware of the terms of it and was taken by surprise, adding (what was the fact), that A. B. declined the reference. But the Lord President and lords of first division, before whom the matter was heard, admitted the reference, and appointed another arbi- trator in the place of A. B. In the course of the same cause, however, an order made by the consent of counsel only was rescinded. For after an award was made the matter was brought by appeal before the House of Lords. On the hearing of the appeals, they were at the suggestion of the lords present withdi-awn upon terms consented to by the counsel of the parties, and em- bodied in an order of the House. That order was rescinded upon petition of the appellant's agent, stating that he had not considered the terms of the compromise when the counsel consented to it, and the appeals were reheard (^). IV. Executors and administrator s.'\ — An executor or admi- Submis- nistrator may, as such, submit to arbitration matters relating executor ^ to the estate of the deceased, but (it is said) if the arbitrator ^^^ ^'^^^' , nistrator. does not award as much as he would be entitled to at law, it will be a devastavit for the residue if). Enterino- into a submission relatino: to matters in differ- Devastavit. (_p) Swinfen v. Swinfen, 18 C. Gas Liglit Company, 3 C. & F. B. 485; S. C. 25 L. J. C. P. 303, 639. 1 C. B. N. S. 364 ; S. C. 26 L. J. (r) Bac. Ab. Arb. C. ; Com. Dig. C. P. 97, in Eqtiity, 27 L. J. Ch. Admin. I. 1 ; Assets, C. ; Anon. 3 35, on appeal, 27 L. J. Ch. 491 ; Leon. 53 ; Went. Off. Ex. 61 ; S. C. 2 De G. & J. 381. Vin. Ab. Executors, G. a. 3. See (g) Baillie v. Edinbui-gh Oil Yard v. Eland, 1 Lord Eaym. 368. 30 WHO MAY REFER. Part I. ence between the deceased and another without the execu- °°' "• ^' ^' tor's protesting against the reference being taken as an admission of assets will amount to such an admission, and if the award direct him to pay a sum, he will be bound per- sonally, if the assets are insufficient, and will not be allowed to plead plene administravit to an action on the arbitration When bond (s) ; for if he does not protest in the first instance that executor personally he has no assets, he will not be afterwards allowed to say so, liable. because in that case the opposite party will have been put to the expense of an arbitration to no purpose {t). And an arbitration should be placed on the same footing as an action, in which, if an executor ornit to plead that he is without assets, he cannot afterwards set up that ground of defence {u). Reference: j^ -^ Qff^^j^ therefore, Said in terms that a submission by admission ' _ ^ ... • • \c> of assets, an executor or administrator is in itself an admission of assets {x). But perhaps, more strictly speaking, the sub- mission does not so much amount to an absolute admission of assets as to a submission of the question whether there No direc- asscts or no (y). Thus, where the arbitrator awarded a tion to pay v.// 7 in the ' sum to bc duc from the intestate's estate, but without saying by whom it was to be paid, the administrator was not held personally liable to the payment ; and Lord Kenyon distin- guished the case of Barry v. Rusk, above quoted, by saying, "■ There the defendant submitted in broad terms to pay whatever should be awarded, and the arbitrator did award that he should pay a certain sum, whereas here the arbitrator has only ascertained the amount of the debt due from the intestate, but has not directed the defendant to pay it. It is impossible, then, to say that the arbitrator decided that the defendant had assets, and a submission to arbitration by an administrator is not of itself an admission of assets " (z). That case was followed by another in which the award directed the defendant, an administratrix, to pay the sum found due, and the same judge took the distinction, saying, (s) Eobson V. — , 2 Eose, 50; 200. Barry v. Eush, 1 T. E. 691. See (u) EiddeU v. Sutton, 5 Bing. P. II., ch. 8, s. 1, d. 2. How arbi- 200. trator should direct executor to {x) Barry v. Eush, 1 T. E. 691 pay; P. III., ch. 6, s. 1, d. 3. (\/j Worthington v. Barlow, 7 Attachmeut against executor. T. E. 453. {t) Eiddell v. Sutton, 5 Bing. (2) Pearson v. Heniy, 5 T. E. 6. PERSONS NOT INTERESTED. 31 *' Here the arbitrator has awarded tliat the defendant, the Part i. administratrix, shall pay the plaintiff's demand. The sub- ^^' "' ^" ^' mission to arbitration by the administratrix was a reference Direction not only of the cause of action, but also of the question the award, whether or not the administratrix had assets. And as the arbitrator has awarded the defendant to pay the amount of the plaintiff's demand, it is equivalent to determining as between these parties that the administratrix had assets to pay this debt. The defendant, therefore, is concluded by this award, though it will not operate as an admission of assets in any other action to be brought by any other creditor " (a). In a third case, where the arbitrator awarded a balance Direction against the testator, and directed the executor to paj^the of assets. amount out of the assets, Abbott, C. J., was of opinion that the latter part of the award did not conclude the question of assets, but left it open (b). The practice in equity is in accordance with these deci- sions, and shows the effect of such a direction. An award directed an executor to pay a certain sum " out Direction of the assets which might be in his hands, or which might *f 1^^^°^^ be coming to him." He was also directed to pay the costs, quando. The other party, relying on the fact that the submission was general, moved in the Com"t of Chancery for an attachment against the executor for non-payment of the sum and costs. This motion, on an affidavit of the executor, that he had no assets, was dismissed with costs by the Vice- Chancellor. It was subsequently renewed before the Lord Chancellor (Lyndhurst), but on the additional affidavit, that since the previous application assets exceeding the sum awarded had come to the executor's hands. And on this ground the Lord Chancellor, expressing his approval of the previous decision of the Vice- Chancellor, directed an attachment to issue (c). A personal representative is sometimes bound to pay Liability of costs. Thus, where an action by an administrator, with a to^cTsts! count in the declaration containing a promise to himself as administrator was referred, the costs to abide the event, and (a) Worthington v. Barlow 7 D. & E. 814. T. E. 453. (c) Josei^li v. Webster, In re, {h) Love V. Honeyboui-ne, 4 1 Euss. & M.496. 32 WHO MAY REFER. Part I. the arbitrator awarded that the plaintiff had no cause of CH- "• s 2 . action, it was held that the plaintiff was personally liable to costs (d). Submission y. Trusfees.~\ — It is said that trustees, by submitting y '""» e««- j^atters to arbitration, do not make themselves personally Liability, liable (e). But it is apprehended that must entirely depend upon the terms of the submission. In order to be safe, it is recommended that they should in express terms take care to exclude the construction of any personal liability, for there seems no reason why they should stand in any more favour- able position than executors. Submission VI. Committee of a lunatic.'] — A committee of a lunatic mitteTrf ^^Ji ^'^^^^ permission of the Court of Chancery, but not lunatic. without, bind the lunatic by submitting his interests to arbitration {/). On the application of the committee, the court will on a fitting case refer it to the master to inquire whether it is proper and for the benefit of the lunatic's estate to refer the demands against his estate to arbitration, and upon what terms and conditions the reference should take place {g). Wife of a Where there is no committee the wife of the lunatic has been held to have a sufficient implied authority to sue in his name for debts due to him (Ji). It does not appear whether the courts would hold that implied authority gave her power to refer either the action or the demand upon which it was founded. Submission yu, PubUc officev.'] — Where a public company are autho- officer, ^ rized by act of parliament to sue and be sued in the name of one of then- public officers, who, however, is not to be per- sonally answerable, the officer by consenting to refer a cause id) Spivy V. "Webster, 2 Dowl. 179, 396; Dane v. Viscountess 46. KiikwaU, 8 C. & P. 679. (e) Davies v. Eidge, 3 Esp. {y) In re Baker. Slielford on 101. Lunatics, 204. (/) Shelford on Lunatics, pp. {h) Eock v. Slade, 7 Dowl. 22. PEKSONS EMPOWERED BY STATUTE. 33 does not incur any personal responsibility. No attachment Part i. will be granted to enforce the award against him, though in ""' "' ^' ^- many instances the company will be compelled to obey the award by a mandamus («). SECTION III. PERSONS EMPOWERED TO REFER BY STATUTE. I. Assignees of hanhrupts and insolvents.~\ — By the statute Assignees 12 & 13 Yict. c. 106, s. 153, the assignees of a bankrupt J^^^^";''" with the leave of the court first obtained upon application to such court, but not otherwise, after notice to such creditors, and subject to such condition, if any, as to obtaining the consent of creditors or any proportion of them as the court shall think fit to direct, may submit to arbitration any difier- ence or dispute between the assignees and any other person for, on account, or by reason of anything relating to the estate and effects of the bankrupt {k), ■ The repealed statute, the 6 G. IV. c. 16, s. 88, which Want of required the consent of creditors to a reference did not, it senf ^ the" is apprehended, disable the assignees from referring without reference, such consent, but only rendered them liable for the con- sequences to the creditors (l). Like executors, assignees of bankrupts by entering into a Reference : submission will, unless they protest against the reference, be of sufficient held to have admitted that they have sufficient funds in ^"^'^^• hand to pay what the award directs (m). The bankrupt himself cannot make a valid submission so Bankrupt as to afiect his estate. . An award made on a submission by ^ refer^to a bankrupt was in one case held binding on his assignee, ^'^'^ ^^^^ estate. (i) Corpe v. Giyn., 3 B. & Ad. 4. See also Ex parte Whitchurcli, 801. 1 Atk. 91 ; Nerot v. WaUace, 3 {k) SeeWyldjExparte, 30 L. J. T. E. 17; Bannatyne v. Leader, Bank. 10. 3 M. & C. 379. (?) Jones V. Yates, 3 Y. & J, (m) Eobson v. — , 2 Eose, 50. 373 ; Piercy v. Eoberts, 1 M. & K. 34 WHO MAY IlEFER. Pakt I. l)ut that decision was reversed in the House of Lords (n). ""• "• ^' ^' And when an award made on a submission between a creditor and a bankrupt after an act of bankruptcy was received by the commissioners as conclusive evidence of the amount of the debt, the Lord Chancellor directed the proof of the debt to be expunged, and that an inquiry into the amount should be made before the commis- sioners (o). But binds g^t the submission by a bankrupt respecting his estate ""^ ' is not void, but binding as against himself, and if costs are awarded against him, he may be made to pay them (p). Assignees On a reference by a party before his bankruptcy, it is t°*cward^^ only against the bankrupt that proceedings to enforce the unless they award Can be taken, for the assignees clearly cannot be affected by an award to which they are not assenting parties (g). If, however, the assignees are chosen while the reference is still pending, it seems proper that they should be called before the arbitrator (r) ; and if they appear before him and adopt the proceedings, they will be bound by the award (s). Assignees The assignees of insolvent debtors, under the stat. 1 & 2 debtors! Vict. c. 110, s. 51, are authorized to submit questions to arbitration provided they have the consent of the major part in value of the creditors, and the aj)probation of the court or of a commissioner {t). Want of The declaration in an action on the award by the assignee senrio'^the ^^ ^^^. ^^^ ^^^ Want of an allegation of proper consent to reference, the reference (2/^), nor can the want of it be pleaded as a defence by a stranger to proceedings by the assignee {x) ; although, like an assignee of a bankrupt, the latter, if he (h) Whiteacrev.Pawlin,2Vem. S. C. on app. 1 Russ. & M. 153; 229. Michie, Ex parte, 1 Mont. D. & (y) Ex parte Kemsliead, 1 Eose, De Gex, 181, S. C. 9 L. J. Bank. 149. 28. {p) Milnes v. Robertson, 24 L. {t) See Appendix of Statutes for J. C. P. 29. tlie section at length. ((/) Marsh v. Wood, 9 B. & 0. («) Sutcliffe v. Brooke, 9 Jur. 659. 1112, S. 0. 15 L. J. Ex. 118. (/■) Taylor v. Shuttleworth, 8 (x) Casborne v. Barsham, 6 Dowl. 281. Sim. 317. (s) Dod v. Herring, 3 Sim. 143, PEKSONS EMPOWEKED BY STATUTE. 35 refer without a proper authority, may incur a liability to the ^^^"^ i- 1 - J CH» II. S. O* creditors. Where the trustees of an insolvent debtor had submitted Liability of to a reference, and the award directed them to pay the costs, '^'^■'"snees. the court, in 1818, held that by entering into the arbitration bond they had confessed that they had sufficient funds, and that by referring all matters in difference and agreeing to pay what should be awarded, they had made themselves liable for the pajnnent of costs (y). Similar powers of referring to arbitration are by the statute Assignees 7 & 8 Vict. c. 96, s. 13, vested in the assignees of insolvent petitioners. petitioners seeking the benefit of the statute 5 & 6 Vict. c. 116 (z). Disputes between the trustees and managers of a savings' Assignee of banlv and the assignee of a bankrupt or insolvent depositor or hisdvent do not seem to be affected by the above enactments, but to depositorin be wholly governed by those relating to savings' banks. tank. " II. Saci?igs banks ^ Friendly and Benefit building societies.'] Trustees of —By the statute 9 G. IV. c. 92, s. 45, relating to savings' "^^^^^.^^ banks, provision is made " that if any dispute shall arise members or T , 1 • J.-J. x- tlieirrepre- between any such mstitution or any person or j)ersons sentatives. acting under them, and any individual depositor therein, or any executor, administrator, next of kin or creditor, of any deceased depositor, or any person claiming to be such executor, administrator, next of kin or creditor, then and in every such case the matter so in dispute shall be referred to the arbitration of two indifferent persons, one to be chosen and appointed by the trustees or managers of such institution, and the other by the party with whom the dispute arose ; and in case the arbitrators so appointed shall . not agree, then such matter in dispute shall be referred in writing to the barrister-in-law " appointed to certify the rules of savings' banks {a). Not only may the parties refer, but they must refer ; for No other remedy {y) Wansborough v. Dyer, In for the clause at length., re, 2 Ch. 40. See Davies v. Eidge, (a) See the Appendix of Statutes 3 Esp. 101. for the section at length. (z) See the Appendix of Statutes » 2 3G WHO MAY REFER. Pakt I. the words of this act have been construed to he compulsory, °"- "• ^- ^- and to leave the parties no other remedy than that provided Siou ^'" ^y ^^^*^ statute (d). Trustees It lias been decided under this act, that if the trustees of compelled g^ saviui^s' bank, when called upon by a depositor, refuse to uame an . , . x x j.i ai-bitiiitor. to apijomt an arbitrator on their part pursuant to tlie statute to adjudicate on the depositor's claim, the Court of Queen's Bench will compel them by mandamus {c). Not so, however, when it is doubtful whether the parties claiming- the sums on behalf of a society which has dej)osited money in the bank are lawfully entitled to represent it {d). Stat. 7 & 8 A recent statute seems to deprive the parties of any * choice in the selection of an arbitrator, for by the 7 & 8 Vict. c. 83, s. 14, it is enacted, " that if any dispute shall arise between the trustees and managers of any savings' bank, and any individual depositor therein, or any exe- cutor, administrator, next of kin, or creditor, or assignee of any depositor, who may become bankruj^t or insolvent, or any person claiming to be such executor, administrator, next of kin, creditor, or assignee, or to be entitled to any money deposited in such savings' bank, then and in every such case the matter in dispute shall be referred in writing to the barrister-at-law appointed " to certify the rules of savings' banks. Both the submission and award are exempted from stamp duty (e). Friendly gy the statutc 18 & 19 Vict. c. 63, " An Act to Consoli- society and "^ ' members date and Amend the Law relating to Friendly Societies," thereof. ^|^g statutes 10 G. IV. c. 56 ; 4 & 5 W. IV. c. 40, and 9 & 10 Vict. c. 27, have been repealed, and it is provided by s. 40, that disi)utes shall be decided according to the rules jof the society, substituting, however, the county court for justices, where the rules provide for a decision by justices. Sec. 41 gives the county court power to enforce the decision of any arbitrators. Under the old acts, where justices had to decide if the {b) Crisp v. Bunbuiy, 8 Bing. (d) E. v.Witham Savings' Bank, 394. 1 A. «& E. 321 ; E. v. Cheadle (c) E. V. Mildenhall Sayings' Savings' Bank, 1 A. & E. 323, n. Bank, 6 A. & E. 952. (e) Stat. 9 G. IV. c. 92, s. 45. PEESONS EMPOWERED BY STATUTE. 37 arbitrators neglected or refused to make an award, the Part I. justices had jurisdiction though the arbitrators had in fact ' ' ' ' made an award, if they had made it without hearing a party's witness, though tendered for examination; for awarding under such a state of things was a neglecting or refusing to make an award, i. e. , a valid award (J'). But a party who had assented to an award being made by fewer arbitrators than the rules required, was not allowed afterwards to treat the award as a nullity, and to go before justices, for the latter in such case had no jurisdiction {(/). Arbitrators settling disputes under the present act are not bound to hear counsel {/i). A society which has for its object the loan of money to its members, not being by way of charitable relief, is not within the statutes {i). A claim by an executor of a deceased member against the society for the amount of a policy of 1000/. effected by the deceased on his own life with the society, is not a matter which must be decided by arbitration, and it seems that policies are not within the provisions of the Friendly Societies Acts (k). " The Act for the regulation of Benefit Building Societies," Benefit 6 & 7 W. IV. c. 32, incorporates the provisions of the 10 l^^^l^^ G. IV. c. 56, and the 4 & 5 W. IV. c. 40, " so far as the '°''' '''' same are applicable to the purpose of any benefit biiilding society, and to the framing, certifying, enrolling, and altering the rules thereof." By the rules of a benefit building society it was ]3rovided, that in case any dispute should arise between the association and any member thereof, or any person claiming under or on account of a member, reference should be made to arbitration pursuant to the provision in s. 27 of the statute 10 G. IV. c. 56, or of such other acts of parliament as affected benefit building socie- ties. The society lent money on mortgage of leasehold premises to a member who covenanted to fulfil the rules of the society, and to pay the rent of the mortgaged premises (/) E. y. Grant, 14 Q. B. 43. {i) E. v. Shortridge, 1 N. S. C. (g) E. V. Evans, 3 E. & B. 363. 56. (A) Macqneen V. Tlie Netting- (A-) Kelsall v. Tyler, 25 L. J., ham Caledonian Society, 9 0. B. Ex. 153. N. S. 793. 38 "WHO MAY REFER. Part I. to the Superior landlord. The association sued for breaches ""• "• ^- ^- of both these covenants : it was held, that the rule requiring disputes to be settled by arbitration applied only to matters in dispute between the society and any member, as member; and that as part of the society's claim against the defendant was against him not as member, but as mortgagor, the action well lay and the society were not bound to refer (/ ). So where, by the rules of the benefit building society, a member was entitled to withdraw and to have his mortgage deed de- livered up to him on his completing certain payments, the court considered a dispute as to the amount to be paid by him for this purj)ose, according to the rules of the society, not to be one that must necessarily be settled by arbitra- tion (m). But when the matters in dispute are between the benefit building society and the member, as member, the only tribunal for deciding them is an arbitration, if arbitrators have been duly appointed. If they have not been appointed, and the party is nevertheless willing to refer according to the rules, it does not seem clear whether the society could sue him for breach of any rule (n). Where the vice-presi- dent of a benefit building society, who had purchased a real estate for the society, and with their funds, kept it to himself, Sir John Romilly, M.R., decided that the trustees might compel a restitution of the estate, and that the jurisdiction of a Court of Equity was not ousted by a rule of the society for referring disputes to arbitration {o). A Court of Equity cannot question an award of the ap- pointed arbitrators of such a society, except it be bad on its face, or the arbitrators be corrupt (/>). Parties in- terested in lands and the promoters of the un- dertaking. III. Promoters of public undertakings and railway s.~\ — Under " The Lands Clauses Consolidation Act, 1845," all parties having any estate or interest in the lands allowed by (Z) Morrison v. Glover, 4 Ex. 430; Doe d. Morrison v. Glover, 15 Q. B. 103 ; CnthiU v. King- dom, 1 Ex. 494. [m) The Queen v. Trafford, 24 L. J. M. C. 20 ; Fleming v. Self, 1 Kaye, 518 ; Seagrave v. Pope, 1 De Gex, M. & G. 783 ; Mosley v. BaUer, 1 Hall & Tw. 301, S. C. 6 Hare, 87. {n) Eeeves V. Wliite, 17 Q. B. 995. (o) Mullock V. Jenkins, 14 Beav. 628. ( j>) Ai-mitage v. Walker, 2 Kay & John. 211. PEESONS EMPOWERED BY STATUTE. 39 any special act of parliament to be purchased or taken for Part I. the purposes of any undertaking authorized by the special _J — '. '. act to be executed, may require the promoters of such under- taking to refer the question of compensation to arbitration in the manner provided by the act {q). Provision is made in Parties the seventh section of the statute for the case of persons abilities. under disability, trustees, and executors. Where a party claims compensation for damage or injury Land- to his lands by any drainage operations under the 10 & 11 parties Vict. c. 38, the amount is to be assessed under the provision draimng by of " The Lands Clauses Consolidation Act, 1845," and the persons authorized to execute the works are to be deemed the promoters of the undertaking (r), and consequently would be the parties to a reference. Railway companies formed under any act embodying " Tlie E.ailway Railways Clauses Consolidation Act, 1845 " (s), and Joint Stock companies created by any statute incorporating " The Joint stock Companies Clauses Consolidation Act, 1845 " {t), are respec- ^°™p^^^®^- tively empowered by the specified acts to obtain the decision of arbitrators on certain matters in the manner prescribed in the respective acts. And now any railway companies, and all owners, lessees, and contractors working any railway, may refer disputes (u). IV. Ecclesiastical and collegiate corporations^ concerning Eeciesias- tJieir lands.'\—ViY stat. 2 & 3 W. IV. c. 80, ecclesiastical and coHe^it collegiate corporations, and those who hold under them, are corpora- empowered to settle by arbitration questions of boundary. And by the stat. 17 & 18 Vict. c. 116, Bishops and Chapters may refer to arbitration the question of the value of their estates when a sale is contemplated under the act ix). {q) 8 & 9 Vict. c. 18. See Ap- pendix of Statutes ; see also P. I. pendix of Statutes; see also P. I. ch. 1, s. 1, d. 2. ch. 1, s. 1, d, 2, as to matters re- {t) 8 & 9 Vict. c. 16. See Ap- ferable by statute ; and P. I. ch. pendix of Statutes. 3, s. 7, d. 6, as to the mode of («) 22 & 23 Vict. c. 59. See submission. Appendix of Statutes. (r) 10 & 11 Vict. c. 38, s. 11. {x) See the Appendix of Sta- (s) 8 & 9 Vict. c. 20. See Ap- tutes. men 40 WHO MAY KEFER. Paut I. V. Masters and workmen, concerning their traded — Under °°- "• ^- ^- the enactments for referring disputes between masters and Masters workmen in trades and manufactures (y), by wliicli either liucL work* party may compel a settlement by arbitration, provision is made {z) for proceedings, being taken by the husband when the complainant against the master is a married woman ; and when an infant, for his being represented either by his father, mother, kindred, or sureties if an apprentice, or by some other person nominated by him in defiiult of all the others. [y) 5 G. rV. c. 96 ; 7 W. IV. & Statutes ; see P. i. ch. 3, s. 7, d. 1 Vict. c. 67, ss. 1, 2, 3 ; 8 & 9 7, as to mode of reference. Vict. c. 77, s. 3 ; 8 & 9 Vict. c. (s) 5 G. IV. c. 96, s. 17. 128, s. 3. See the Appendix of CHAPTER III. HOW MATTEES MAY BE EEFEEEED TO AEBITEATION. The different modes in which matters may be referred to Part l. an arbitrator, and the effect of each species of submission, — ' — ^^-^ are considered in this chaj)ter. Section one contains some remarks applicable to submis- Contents of sions generally ; section two treats of submissions by private *^^ t^i^*! agreement at common law and their disadvantages ; section three, of submissions which may be made rules of court under the statutes ; section four discusses the effects, in law and equity, of the common provision in deeds and agreements, that if any disputes shall arise they shall be decided by arbi- tration ; and section five, in like manner, enlarges on the effect of a negative agreement, not to proceed by action or suit respecting such differences ; submissions made in a cause at common law, their effects on the court and the parties, form the subject of section six ; section seven comprises an enumeration of some other forms of submission of a judicial character, or made under the authority of acts of Parlia- ment; while section eight concludes the chapter with an account of the proceedings on the submission against a party who prevents an award being made. SECTION I. OF SUBMISSIONS IN GENERAL. I. General qualities of a submission.l — Matters may be referred to arbitration in any manner that expresses the agreement of the parties to be bound by the decision of the 42 HOW MATTERS MAY BE REFERRED. Part I. person chosen to determine the matters in controversy. This CIT TIT S 1 — '- — -^-^—^ person is styled the ar])itrator, and the agreement conferring on tlie arbitrator his binding authority, is termed the sub- mission (a). No pai-ticu- No formal submission, either verbal or written, is neces- subm^ssion ^^^J ('^)' ^^ ^^^J ^^ Contained in a clause quite collateral necessary, to the main purpose of an agreement. Thus a bond, con- ditioned ^' for A.'s due discharge of the duties of clerk," " to be ascertained by the inspection of A.'s accounts by J. S., and the amount so ascertained to be liquidated damages," is a submission to the award of J. S. respecting the accounts {c). So also a cognovit in the words, " I hereby confess the action, and that the plaintiffs have sustained damages to the amount of one shilling besides their costs, to be taxed by the prothonotary as he shall think the plaintiffs entitled," is an appointment of the prothonotary to arbitrate respecting the costs. His decision is binding, and will not be reviewed by the court {d). Intention H- W/iat IS a reference to arbitration /*] — The parties must of parties manifestly intend to be concluded by the decision of i\\Q themselves, person Called in, in order to clothe him with the authority of an arbitrator. Hence, where it was the practice for one of the proprietors of a stage coach to adjust the accounts from time to time, apportioning the profits and charges, and the other pro- prietors were in the habit of receiving or paying according to his apportionment, it was held that he was to be con- sidered rather the common servant of them all than an arbitrator ; for the acquiescence of the others in the correct- ness of his past accounts did not of itself manifest any intention on their part to deprive themselves of the power of questioning the correctness of future adjustments (e). Preventing It is not in every case where two parties intend to be con- arislngT^^ cluclcd by the decision of a third, that that third person, is an " (a) Bac. Ab. Arb. B. & D. & P. 88, S. C. 4 Bing. 415. (6) Bac. Ab. Arb. B. (e) Carr v. Smith, 5 Q. B. 128 ; (c) Jebb v. M'Kieman, Moody Goodyear v. Simpson, 15 M. & & M. 340. W. 16. {d) Elviti v. Drummond, 1 M. GENEEAL OBSERVATIONS ON SUBMISSIONS. 43 arbitrator. Thus, a valuer between an incoming and out- part i. going tenant of a farm (y), or a person appointed to deter- °°-"^'^-^- mine tlie price to be paid for brewery premises {g), or for land (/^), or for dilapidations (a), or the amount to be paid to contractors for work done (Ji), is not an arbitrator in the proper sense, unless there have been differences between the parties on the point previous to their submitting it to his decision. A decision, which precludes diiferences from arising, instead of settling them after they have arisen, is for many purjioses not an award (J). Stewards of a horse-race apj)ointed to settle any disputes steward of respecting it are not arbitrators in the strict sense (m). ^°^'®^ ^^^^- A person appointed to state a case for the opinion of the Person to com-t under the statute 17 & 18 Vict. c. 125, s. 5, the Com- c^e!* mon Law Procedure Act, 1854, is an arbitrator; for he is em- powered to decide on facts, though not to determine every- thing in controversy between the parties (n). Lilce other contracts when in writing, the submission must be duly executed ; and where the accession of all parties to the reference is the consideration to each to execute the submission, it is not valid as to some who have executed it until all have done so, even although it purposes to refer all matters in difference between them or any two of them (). It often happens that matters in difference are agreed to Appoint- be referred to two arbitrators, one to be appointed by each two arbi- party ; in such case it is important to call attention to the ti'^-tors- fact that the appointment will not be considered complete until it has been notified to the other side ; therefore, if it be one of the terms of the agreement that a party is to appoint (/) Leeds v. Bm-rows, 12 fZ) See P. ii. c. 1, s. 1. East, 1. (m) Ellis v. Hopper, 28 L. J. ((/) Collins V. CoUins, 28 L. J. Ex. 1 ; Parr v. Winteringham, Ch. 184, S. C. 26Beav. 306. 28 L. J. Q. B. 123. (7i) Lee v. Hemingway, 3 Nev. (??) Graham v. Glover, 25 L. J. & M. 860; S. C. 3 L. J. K. B. Q. B. 10; S. C. 5 E. & B. 591. 124. (o) Antram v. Chase, 15 East, (i) Jenkins v. Betham, 24 L. 209. J. C. P. 94. (p) PhiHps V. Bury, Skin. (^•) Scott V. The Liverpool Cor- 469. poration, 28 L. J. Chanc. 230. 44 HOW JIATTEES MAY BE REFERRED. Part I. nil arbitrator by a certain day, it will be too late though he ^"•'"•^•■^ - nominate his arbitrator on the day, if he neglect to inform his opi^oncnt of the nomination till the day after (q). If a party is bound to appoint an arbitrator, he performs his agreement by making the appointment, though the arbi- trator will not act (r). Should It is very important that the appointment of an arbitrator refer to the j^y gj^^j^ party should refer to the same subject matter. If matter s. A. appoint his arbitrator to determine a dispute respecting the construction of a lease, and the damages A. has sustained, and B. appoint his arbitrator to decide on the construction of the lease, and not as to damages, an award of damages to A. will be invalid (5). Advisable m. Taking collateral security to enforce the award.'] — It is warrant of sometimes prudent to take a warrant of attorney to confess attorney as j^^flgj^gj^t for a specific sum as a collateral security for the security, performance of an award, in order that execution may be immediately taken out, either against the property or the person of him who neglects or refuses to perform the award ; for although we shall see that performance can now gene- rally be enforced by attachment, yet, as that process only issues from a court of law in term time, if the award were made in vacation, or too late in term for the opposite party to show cause against a rule for an attachment, the suc- cessful party would have to wait till the next term for the assistance of the court. The defeazance of the warrant of attorney should contain the substance and effect of the bond or agreement of submission, with a declaration that no exe- cution should issue until non-performance of the award. Such a security was peculiarly beneficial in the case of the submission of the title to land whenever it was probable that the award might direct a change of possession ; for formerly if a party in possession were awarded to deliver possession of land to the other, the only mode by which possession Rule to could be obtained was by ejectment {t). Now, however, a deliver (2) Tew V. Harris, 11 Q. B. 7; (s) Davies v. Price, 6 L. T. Thomas v. Fredericks, 10 Q. B. N. S. 713; S. C. 10 W. E. 865. 775. {t) Jarman & Bythewood's (r) Cooper v. Shuttleworth, 25 Conv., Vol. 11, p. 701, 3rd ed.; p. L. J. Ex. 114. 039, 2nd cd. See Doo d. GreyiUo EFFECT OF A PENDING ARBITRATION. 45 rule of court (which may be enforced as a judgment in eject- Part I. ment) to deliver up possession pursuant to the award, may -°'"''^' ' be obtained under the Common Law Procedure Act, 1854, ^"^J^f^JJj" s. IG. But the warrant of attorney prevents the necessity to award . of any application to the court. When the nature of the case is such as to require convey- Conveying ances of lands, as when a partition is to be made, and it is aVbitrator considered probable that a difficulty may be experienced in o" *rust to compelling a party to execute conveyances pursuant to the suant to award, the expedient may sometimes with advantage be ^''^a.r'i. adopted of conveying the entirety of the lands in the first instance to the arbitrator upon trust, to convey to the several parties the portions that shall be respectively awarded to them {ti). rv. Arbitration pe?idi?i^ cannot be pleaded.'] — A mere sub- Submission mission of a dispute to arbitration does not prevent a party tion'^L^kxr from bringing an action respecting the same matter. Not- to action. withstanding some doubtful expressions in older cases (a?), it is clear law now that the pendency of an arbitration cannot be pleaded to an action for the same demand (y). But an agreement that in consideration that the defend- Agreement ants would coHsent to refer matters in dispute in an action, when ac- the plaintiff would accept such agreement in satisfaction of'^°^!^^°'^ all damages in respect of certain other matters, and a tion. ) Wickham v. Harding, 28 & W. 816. L. J. Ex. 215. (s) V. MiUs, 17 Ves. {q) Pennell V. Walker, 26 L. J. 419; Ashworth v. Hcathcote, 6 C. P. 9; S. C. 18 C. B. 651. Biiig. 596. (r) Ilarrison v. Wriglit, 13 M. 50 HOW MATTERS MAY BE REFERRED. Part I. attacluiieut, since a parol submission cannot be made a rule OH, III. s. 2. . ..... ^ . , , ; — of court so as to give the court jurisdiction {t). When a reference takes place at nisi prius, and a verdict is taken subject to it, but no order of reference is drawn up, the authority of the arbitrator depends solely on the parol submission of the parties, and in such case the jurisdiction of the court does not attach, as on a reference by order of nisi prius, to compel the attendance of witnesses {u) ; though, where the arbitrator has to certify the amount of damages, a verdict may be entered for the amount ascertained by his certificate {v). Parol sub- A parol submission is sometimes ineffectual. For example, sometimes ^^' *^^ ^^^^^ ^ submissiou, a Written award is made respect- ineffectual, ing real property, and the provisions of the award are such, that if they had been verbally agreed to by the parties themselves, they would have been void by the statute of frauds, the award cannot be enforced as to them, since the parol submission and written award form but one parol contract (x). Submission An award on a parol submission of the question whether tenaucrde- ^' ^^^^^^^ l^^^ a continuing interest in land, or is bound to termined. quit at once, is void under the statute of frauds (y). Submission II. Suhmission by agreement in Tiyriting not under seal.'] — not^undef P^i'^i^s may refer their differences by agreement in writing seal valid, not under seal. Requires Sucli submissious require in general an ordinary agree- stomT^*^* ment stamp. No stamp used to be necessary if the reference was concerning a matter under the value of £20 (z). Now, however, a stamp of Qd. is imposed on an agreement not otherwise charged where the matter shall be of the value of £5 or upwards (a). One stamp only is necessary, although there are many parties to the submission having separate legal interests, provided they have a sufficient community of {t) Ansell V. Evans, 7 T. E. 1 ; enforcing award in equity. V. Mills, 17 Yes. 419. {y) Eainforth v. Hamer, 25 L. (n) Ciu'tis V. Bligh, 3Jm\ 1152. T. 247. (y) Tomes v. Hawkes, 10 A. «& (z) Lloyd v. Mansel, 19 L. J E. 32. Q. B. 192. («) Walters v. Morgan, 2 Cox, ((() Stat. 23 Vict. c. 15 ; 23 (S 369. See P. iii. ch.. 4, s. 1, d. 2, 24 Vict. c. Ill, s. 12. SUBMISSIONS BY PKIVATE AGREEMENT. 51 interest in the subject matter of the reference ; as in the ^^^"^ ^- OH TIT S 2 case of a submission between the party who has insm-ed a — '- — -^ ship, and tlie underwriters on the policy (l/). Where there was a wi'itten agreement that a tlisputed boundary was to be set out by "an indifferent surveyor residing- at a dis- tance," and on the same sheet of paper was added a memo- randum of a later date, appointing a particular surveyor, residing in the neighbourhood, to set out the boundary, the two memorandums were held to be only one agreement, and to require only one stamp {c). An agreement, indorsed on an arbitration deed, or bond, enlarging the time, or changing the arbitrator, is a new sub- mission in writing, incorporating into itself all tlie terms of the original submission (d), and requii'es an agreement stamp (e). An agreement of reference containing an acknowledg- Effect of ment of the existence of some debt, but providino- that the f^^'^o^^ ' . ledgment arbitrators are to fix the time of payment, is not such an to bar the acknowledgment as to su2)port a promise to pay on request, imitations. and so to take the case out of the statute of limitations (y). III. Submission by bond.'] — A submission by bond is a very Submission ordinary mode of effecting a reference. ^^ ^'^^'^' Each party usually executes a bond to the other in a Damages certain penalty, subject to the condition of his abiding by ^ot limited and performing the award of the person named as arbitrator, penalty in The penalty in the bond does not limit the amoimt the arbi- * ® *^^ • trator may award, although, if he exceed that limit, no larger sum than the penalty can be recovered by action on the bond (y). The submission of the parties is contained in the condi- Alteration tions of the mutual bonds, for they together make up but °f ®^^'"'^" one agreement of reference. The terms of the condition bond. (6) Goodson v. Forbes, 1 Marsh, East, 189. 525; S. 0.6 Taunt. 171; Stephens (e) Stephens v. Lowe, 9 Bing. V. Lowe, 9 Bing. 32. 32 ; S. C. 2 M. & So. 44. (c) Taylor V. Parry, IM.&G. 604. (/) Hales v. Stevenson, Q. B. {d) Greig v. Talbot, 2 B. & C. 11 Nov. 1862, 1 N. E. 23. 179 ; Tuxino v. Biixl, In re, 5 B. (). It seems to be no objection to the validity of the submis- One party sion, that one party is bound by deed and the other l)y executing agreement not under seal ; as for instance, on a reference ^^'^^^' ^^^i- between a private individual and a corporation, which the former signs, but to which the seal of the latter is affixed {q). V. Disadvantage of submissions which caiinot be made ndes of court. '\ — If the parties wish the reference to be one over which the courts of law shall have no cognisance, they must when the submission is in writing express their intention that it shall not be made a rule of court by apt words in the submission (r). But the case must be peculiar to render such a course advisable, for its disadvantages are many. For in cases where the statutes have no application, a Nq juj-jy. submission of matters in difference when there is no cause dictiou of . . . the courts m court, does not by common law give the court any jm-is- by common diction, either over the submission itself, or over the pro- ceedings before the arbitrator, or over the award. The parties are not before the court in any way, and the sub- mission is viewed as a contract simply. Either party may, at any time before the award is made. Submission revoke the authority of the arbitrator (s), and render all that ^*2^ocai3ie. has been done in the reference ineffectual, though by so doing he makes himself liable to an action. The awards made on such submissions cannot be set No setting aside im- proper («) Cooth V. Jackson, 6 Ves. 11. (7) Tomlin v. Mayor, Fordwich, '^'''''''"'^^• (0) Spooner v. Payne, IG L. J. G N, & M. 594. C. P. 225 ; Bac. Ab. Ai-b. B. (?•) See 17 & 18 Vict. c. 125, s. 17. (p) Morphett, In re, 2 D. & L. (s) See P. 11. c. 3, s. 3, d. 1, 967. Eeyocation at Common Law. 54 now MATTERS MAY BE REFERRED. Part I. aside by a court of law, however gross the misconduct or °°'"^'^' ' corruption of the arbitrator (t). Tlie only remedy is by bill in equity (u). No sum- Nor can the awards when valid, be enforced by attach- ^rcJment mcut or othcr summary process of the court. The benefit of of award, tijcm can Only be obtained, as on a contract, by action, or suit oni'^"'^ sometimes, when the nature of the award admits, by pro- means, ceedings in equity for a specific performance {x). SECTION III OF SUBMISSIONS BY CONSENT WHICH MAY BE BIADE RULES OF COURT BY STATUTE. I. Eject of the statute 9 ^; 10 W. III. c. 15.]— The more extended provisions made by the Common Law Procedm^e Act, 1854, s. 17, given at length in the fourth division of this section, will render much of the old law set forth below inapplicable, but the passages respecting the statute of 9 & 10 W. III. c. 15, are retained, as they throw a light on the construction of the recent enactments, and may be otherwise useful. Object of Before the statute, the 9th & 10th W. III. c. 15, en- * titled, " An Act for determining Differences by Arbitration," became law, when persons were out of court, they could not, by any agreement, bring themselves into court, and create a jurisdiction to issue process of contempt (y). Experience had proved the beneficial effect of terminating by arbitration suits actually existing ; and it occurred also that it might be extremely desirable to afford the same opportunity where only a cause of suit subsisted, but no suit had been insti- tuted (2:). To effect, therefore, these two objects, first to give the parties the process of contempt for enforcing the {t) Veale v. Warner, 1 Saund. Eep. in Chanc. 75 ; Bendick v. 327, c. note. Thatcher, Noy, 141, Viu. Ab. (m) Greenhill v. Chtu-ch, 3 Eep. Ai-b. H. a. 1. in Chanc. 89, p. 49, 2 Vern. 100, {y) Nichols v. ChaHe, 14 Ves. pi. 95 ; Cavendish v. , 1 265 ; Lyall v. Lamb, 4 B. & Ad. Cas. in Chanc. 279. 468 ; Steers v. Harrop, 1 Bing. {x) BlundeU v. Brettargh, 17 133; S. C. 7 Moore, 466. Ves. 232; Bishop v. Bishop, 1 (2)Nichols v.Chalie, 14 Ve8.265. SUBMISSIONS UNDER THE STATUTE OF WILLIAM HI. 55 award, and next, to make awards final unless complaint was ^^^'^ i- ' OH. Ill, 8 3 made witliin a limited time (a), the statute of W. III. was —^ passed (fj). The statute is not very clearly worded in its provisions, Construc- and mucli discussion had been raised respecting its terms. upon^"he But the result of many decisions has now put a judicial statute. interpretation on all of them. The whole Act taken together has been construed to mean this ; though there be no cause in any court, and the matter referred be entirely of a private nature, if the submission contain an agreement for making the submission a rule of court, that the party in whose favour the award is made may have his costs taxed by the master of the com't (c), and enforce the award by the pro- cess of the court of which the submission is made a rule, unless it shall appear to that court that it ought to be set aside as unduly made, and in such case the sa?ne com't shall not merely refuse the aid of its process, but if complaint be made within the time limited, shall actually proceed to set it aside (r/). For although section one provides that the pro- cess of the court in which the submission is made a rule to enforce the award, shall not be stayed by "any ot/ier court of law or equity," except it shall appear to suck court that the award was procured by corruption or undue means, implying, as it were, that in the excepted case another court might interpose, and although in section two it is provided that an award procured by corruption or undue means shall be set aside by any court of law or equity, yet the proviso at the end of section two, that complaint of such corruption or undue practice must be made to t/ie com-t of which the sub- mission is a rule, has been held to limit the generality of the previous words, and to show the intention of the legis- lature that the court in which the complaint is to be made, that is, the cornet of which the submission is a rule, is the only court which has jurisdiction over the award, either to enforce it by attachment or to set it aside. Though the courts of equity yielded reluctantly to the Jurisdic- force of the Act of Parliament, it is now settled, that when Q°^iij Tinder it. (a) Davis v. Getty, 1 S. & S. (c) Bhear v. Harradine, 7 Ex. 411. 269. (6) See Appendix of Statutes for {d) Dawson v. Sadler, 1 S. & the Act. S. 537. 66 now MATTERS MAY BE REFERRED. Part I. the submission is agreed to be made a rule of another court, ~ — '-^^— wliatcver equitable ground there may be for impeaching the award, the jurisdiction of equity to set it aside is entirely taken away, and transferred to the court of which the sub- mission is made a rule (c). Chancery, The statute (jf) provides for the making the submission a a court of j-^^Iq of "any of his Majesty's courts of record.'" These within the words liave been held to include the Court of Chancery, statute. which, although not a court of record as regards its equit- able authority, still, as regards its common law jurisdiction, is a court of record (^). Instances are very numerous of submissions having been made rules of this court under the statute without question, and the awards made pursuant to them enforced by the compulsory process of the court (k). The second section also of the Act shows that the Court of Chancery is intended to be included, since it expressly men- tions courts of equity as having jurisdiction to set aside awards, and that jurisdiction we have already seen only lies in the court of which the submission is made a rule (^). And in a modern case, on the objection being made. Lord Cottenham, C, treated it as a point long settled that the Court of Chancery was a court of record within the Act {k). Limit of The statute limits no time within which application to setting*"^ enforce the award must be made. But the party who seeks aside to sct it asidc must make his application to the court before none lor the last day of the next term after the award is made ; and this, whether the objection appears on its face, or whether it is for matter extrinsic, as for fraud of parties, or for mis- conduct or corruption of the arbitrator (l). It is true, when the award is bad on its face, though it cannot be set aside (e) Nichols V. Eoe, 3 M. & Joseph v. Webster, In ro, 1 Russ. Keen, 431, reversing judgment of & Mylne, 496. Vice-Clianc. in same case, 5 Sim. (i) Ante, j?. 55, Dawson v. Sad- 156 ; Nichols v. Chaho, 14 Ves. ler, 1 S. & S. 537 ; see note to 265 ; Gwinnett v. Bannister, 14 Joseph & Webster, In re, 1 Euss. Ves. 530 ; Heming v. Swinnerton, & Mylne, 496. 1 Coop. C. C. 386. (A) Heming v. Swinnerton, 10 (f) 9 & 10 W. III. c. 15, s. 1. Jur. 907. (g) 2 Madd. Chanc. Practice, (1) Davis v. Getty, 1 S. & S. 840 3rd ed., 712 2nded.; Pownall 411; Auriol v. Smith, 1 Tui'n. & V. King, 6 Ves. 10. E. 121 ; AUardes v. CampbeU, 1 (/i) Webster v. Bishop, 2 Vern. Turn. & R. 133 n. ; Pedley v. 444 ; Smith v. Symes, 5 Mad. 74 ; Goddard, 7 T. E. 73. enforcing it. SUBMISSIONS UNDER THE STATUTE OF WILLIAM ITT. 57 after the time, no action can be maintained upon it, nor will Part i. an attachment be granted to enforce it {m). en. m. s. 3. The submission must be made a rule of court before the Making court has any jurisdiction either to enforce or set aside the rule of award {?i). court. The only summary mode of enforcing the award is by No execu- attachment. No judgment can be entered or execution issue ^f 'cou!i!!" ^ on the rule embodying the submission. Hence, if the party die before the award be performed, as the right to an attach- ment dies with the person, the benefit of the statute is lost, and the party will be left to his action or suit against the executor (o). II. WMt references within the statute.~\ — A parol submis- Parol sub- si on cannot be made a rule of court within the statute of ™ithin"the W. III. , for the statute provides that the parties shall statute. " insert " their consent to make the submission a rule of court into the submission itself, and the word insert must mean an act that infuses that consent into something written (j>j). Though an order of nisi prius, referring a cause, is made Submission a rule of court by virtue of the inherent common-law juris- ^^^ ^^"^"^ diction of the courts ; yet where a cause and all matters in matters. diiference are referred by such an order, it seems not yet to have been decided, though a strong opinion has been expressed recently that the autliority to make it a rule of court, as to the matters not in the cause, is derived from the common-law power of the courts, and does not depend on the statute {) V. MiUs, ;i7 Ves. 326. 58 . HOW MATTERS BLA.Y BE REFERRED. Part I. however, under which it was so made, do not appear in the cn.iir. S.3. ' 711 rci)ort (r). A judge's order by consent referring all matters in difference between the parties, and containing an agreement for making it a rule of court, is a good submission within the statute of W. III., though no action has been com- menced between them (s). So also is an order of reference expressed to be made by consent of the attorneys of the parties in an inferior court of record, containing a like clause for making the submission a rule of one of the superior courts (t). Of cause to A reference of a suit in chancery by agreement out of ri^irof^^ court containing a clause to make it a rule of the Court of another Quccu's Bench, is a submission, not in the cause, but out of it, and proceeds on the jm-isdiction given by the statute {u). Or of either ij;i i{^q manner, a reference by deed of causes in the of two ' / courts. Queen's Bench and Exchequer, with a clause to make the submission a rule of either court, is under the statute (x) ; so also of a cause in the Exchequer which is referred by a judge's order, providing that it shall be made a rule of the Court of Queen's Bench (y). Of a cause K a cause in the Court of Queen's Bench be referred by i/enf tribe agreement out of court, containing a clause for making it a made rule rule of the Same court, the reference is under the statute and court. not at common law {z). So also the reference of a suit in chancery, and all matters in difference by private agreement, providing for making the submission and award a rule of cliancery, derives its efficacy from the act {a). Of matters Though a wife has commenced a suit against her husband in ecclesias- . , . . ticai suit, m the Ecclesiastical Court for a divorce, a reference between the wife's trustee and the husband of all matters in dispute between husband and wife, may be made a rule of court within the statute {b). (r) Little V.Newton, 1 M.&G. (?/) MHstead v. Craufield, 9 977, n. (a). Dowl. 124. (s) Bhear v. Harradine, 7 Ex. (z) Eushworth v. Barron, 3 269. Dowl. 317 ; Eeynolds v. Askew, {t) Harlow v. Winstanley, 19 5 Dowl. 682. L. J. Q. B. 430. (o) Heniing v. Swinnerton, 1 {u) Nichols v.Chalie, 14 Ves. 265. Coop. 0. 0. 386. {x) Wimpenny v. Bates, 2 Tyr. (h) SoiUeux v. Herbst, 2 B. & 466; S. C. 2 0. & J. 379. P. 444. SUBMISSIONS UNDER THE STATUTE OF WILLIAM III. 59 Criminal proceedings are not within the statute ; for ^^'^'^ ^' where an indictment for an assault, and all matters in dis ; — ^ — pute between the prosecutor and defendant, were referred ment. by bonds containing a consent clause, the court thought such a reference comprehending the subject matter of an indict- ment, could not be made a rule of court, and that the words " controversies, suits, and quarrels," in the statute, meant only civil disputes between the parties (c). The words of the Common Law Procedure Act, 1854, s. 17, are wide enough to embrace indictments. The Act of W. III. contemplates controversies existing of differ- before the submission, and differences for which there is a e^°st^ij,g°* legal or equitable remedy, but not, it seems, subjects of before sub- arbitration which cannot be classed under these heads ; therefore, where an agreement to sell land at a price to be fixed by arbitrators, was made a rule of court under a consent clause, the question submitted being only co-existent with the submission, the court, on an application to enforce the award by attachment, doubted very much whether this agreement was within the statute, and dismissed the motion {d). III. W/iat a sufficient consent clause under the statute ^Consent W. III.'] — Though the statute of W. III. requires that the agreement to make the submission a rule of court* shall be inserted in the submission or condition of the arbitration bond, yet where the consent clause was no part of the con- dition of the bond, but was wi-itten under it and not signed ; on its appearing by affidavit that it was thus written before Clause the execution of the bond, it was taken by the court to be Jgr^o^^"' part of the submission, and the submission was made a rule of court (e). If on an arbitration bond or deed of submission, having the usual consent clause for making the submission a rule of court, is afterwards endorsed an agreement of the parties to enlarge the time, but which contains no repetition of the (c) Watson V. M'CuUuin, 8 T. 3 Nev. & M. 860; S. C. 15 Q. B. R. 520 ; E. v. Bardell, 5 A. & E. 305 n. 619; S. C. sub nom. R. v. Shilli- (e) Carter v. MansT3ridge,Barnes, beer, 5 Dowl. 238. 55. {(1) Lee & HemiBgway, In re, go HOW MATTERS MAY BE REFERRED. Part I. consent clanse in itself, the endorsed agreement becomes a en. in. s. 3. ^^^^ submission, incorporating the remaining terms of the Indorse- instrument within, and may be made a rule of court under ^orporat'es the statute with reference to the enlarged time, instead of wE ^^^^ *"^® originally specified (/). Conditional ^ conditional clause in an arbitration bond in this form, clause. "And if the obligor shall consent that this submission be made a rule of court, then," &c., was held to contain a sufficient indication of consent to authorise the making the Not specify- submission a rule of court {g). If the clause is for making couil'^^*''^ the submission a rule of ^^ the'"' court, without specifying which court, it is sufficient, and the parties may elect which court they please {h). Alternative If it provide in the alternative, that the submission shall be made a rule of the Court of King's Bench or Exche- quer (?'), or if it be drawn up for making it a rule of the Court of King's Bench, or an order of the Court of Chancery (/i;), that authorises the making the submission a rule of either court, but not of both. Consent to Frequently the clause is worded for making the award, a!va\xi a^ ^^^^ ^^ submission, a rule of court. In the older cases this rule of -y^as held an insufficient consent {I). Subsequently a laxer rule was adopted as more sensible, and such admissions were allowed to be within the operation of the statute {m). Now, hSwever, it seems a sort of middle course will be adopted ; the court will examine whether the word " award " has been used by mistake for submission ; if that be the case, the submission may still be made a rule of court ; but if the intention of the parties appears to be that the award itself should be made a rule of court, although that intention can not be carried into effect, the statute will not apply {71). if) Greig v. Talbot, 2 B. & C. 537. 179; Evans V. Thomson, 5 East, {I) Harrison v. Grundy, 2 189; Tunno & Bii-d, In re, 5 B. Stra. 1178; Anon. 2 Barnard, & Ad. 488 ; Jenkins v. Law, 8 T, 163. E. 87, overnUed. (m) Stoiy, in re, 7 A. & E. 602 ; {(j) Bailey v. Cheesely, 1 Salk. Soillenx v. Herbst, 2 B. & P. 444 ; 72 ; S. 0. 1 Ld. Eaym. 674. Pedley v. "Westmacott, 3 East, (/i) Soilleux V. Herbst, 2 B. & 602 ; Powell v. Phillips, cited in P. 444. Pedley v. Westmacott, 3 East, (i) Wimpenny v. Bates, 2 Tjtt. 602 ; 2 Tidd Pr. 821, 9th ed. 466; S. 0. 2 C. & J. 379. (») Woodcroft & Jones, In re, (A-) Dawson v. Sadler, 1 S. & S. 9 Dowl. 538. court. SUBMISSIONS UNDER THE STATUTE OF WILLIAM III. 61 IV. Effect of the Common Larc Procedure Act, 1854.1 — Tlic ^^^"^ ^^ -^ -^ ' -> OH. in. s. 3. Common Law Procedure Act, 1854, 17 & 18 Viet. c. 125, enacts as follows in s. 17. " Every agreement or submission to arbitration by consent, Agreement whether by deed or instrument in writing not under seal, sion in may be made a rule of any one of the superior courts of ^"*'^"S '' _ _ -^ ^ _ may be law or equity at Westminster, on the application of any made rule party thereto, unless such agreement or submission contain °nie°ggV words purporting that the parties intend that it should not contrary be made a rule of court ; and if in any such agreement or appear. submission 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 authorising 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 authorising 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 jurisdiction to enter- tain any motion respecting the arbitmtion or award." Tliis clause is not retrospective so as to apply to agree- Not retro- ments of reference made previous to the act. Nor does it ^Qj.^'^^^li^'j.e apply where by the terms of the instrument the arbitrators arbitrators are to have power to require the parties to enter into bonds cretion. of submission or rules of court (o). Such a submission seems revocable at the will of either party {p). But it has not been considered whether s. 7 of the statute may not have the effect of preventing such revocation. (o) Ld. FitzwiUiam v. Dawes, 1863, 11 W. E. 598. See P. ll. 4 L. T. N. S. 508. ch. 3, s. 3, d. 2. {p) Mills V. Bayley,Ex:, Apr. 2, Q2 HOW MATTERS JVIAY BE REFEERED. SECTION IV. OF AGREEMENTS TO REFER FUTURE DISPUTES TO ARBITRATION. Part I. T- Efect CIS a Submission of an agreement to refer future en. HI. s. 4. (iigpiit0s.'\ — There is often a covenant or agreement in deeds Whether of partnership, policies of insurance, and other instruments, trrefer providing that if any disputes shall arise they shall be future dis- pgfen'ed to arbitration. The arbitrators generally are to be putes a .11,1 ,• ii-i submission, appomted by the parties, or some third person, on the difference occurring. Sometimes the referees are designated in the original agreement. When aiLi- When tlicy are not so named, the agreement to refer named. "° camiot, it is apprehended, be considered a complete sub- mission ; for until the arbitrator is determined, there is no one who has the binding authority to decide the questions submitted. In the latter part of this section it will be seen that the Common Law Procedure Act, 1854, has provided for the appointment of an arbitrator in such a case. Naming the arbitrator in the instrument is the rarer course ; for it is open to the reasonable objection, that possibly by the time a difference arises ancihis assistance is required, he may, from age, infirmity, or other cause, have become unwilling or unfit to perform the duty, wiien aibi- But* wlicn an arbitrator is named in the original clause, it named. sccms to difier little, if at all, from an ordinary submission. There are no matters in dispute, it is true, existing at the time of the agreement to refer, but the agreement amounts to a submission within the statute 9 & 10 W. 3, c. 15, as soon as controversies have arisen {q). Specifying When the agreement, though not naming the referees, tmtor to^be P^'o^ides for their appointment in a particular manner, and appointed, they are afterwards so appointed, though contrary to the will of one of the disputing parties, this has the same effect as if the referees were named in the clause itself And an award made by such referees will be enforced (r). When arbitrators are to be named after disputes shall have (2) Parkesv.Smitli,15Q.B.297. N. S. 683; Woodcroft v. Jones, (r) Haddan v. EoupeU, 9 C. B. 9 Dowl. 538. AGKEEMENTS TO REFER FUTURE DISPUTES. 63 arisen, if the party says I appoint A. B. as the arbitrator on Part I. my belialf, pursuant to the agreement (describing it), it is sufficient. The appointment neetl not recite or refer to the appoint- matters in difference. If the appointment be made by the ^ent. party and a stranger "jointly," it would seem to be bad, though if the stranger joins in the appointment, and it is expressed to be made by the two severally, the addition of the stranger does no harm (s). II. Effect in law of an agreement to refer future disjmtes.'] — The maxim often quoted that an agreement to refer is not binding, and cannot deprive the court of its jurisdiction, seems sometimes to have been misunderstood (i^). When such an agreement has been acted on, and an award has been made, the jurisdiction of the courts over the matter decided by the arbitrator ceases (u). In one instance where, however, it was not necessary to Whether decide the point. Lord Eldon, C, was inclined to think that ^^'^^'^^ no action could be maintained for refusing to appoint an agreement arbitrator porsuant to a covenant to refer future disputes future that might arise, and that the covenant itself was futile and 5 5 ^'^ order or difference, struck the words " and all matters in difference compulsory out of the order as improvidently inserted {t). The Court of Queen's Bench, in a late instance of a com- Amending pulsory order of reference under the Common Law Procedure o°^r''or'^^ Act, 1854, amended the order after award made mcnc pro reierence nunc pro tunc. (o) Thompsett v. Bowyer, 30 (r) Faii-field v. Wriglit, cited L. J. C. P. 1, S. C. 9 C. B. N. S. in Steeple v. BonsaU, 4 A. & E. 284, 950. (p) Grimstone v. BeU, 4 Taunt. (s) Wriglit v. Faii-field, 2 B. & 253. Ad. 727. (q) Braddick v. Thompson, 8 {t) Kendil v. Merrett, 25 L. J. East, 344. C. P. 251, S. C. 18 C. B. 173. 82 HOW MATTERS MAY BE REFEKRED. Part I. OH.in.s. 6, Error in copy of accouat. Court no power to amend agreement of refer- ence. Enlarging time Ijy statute. Amending clerical error. No amend- ment of material mistake of officer. tunc, by inserting, according to the original intention of the . parties, a clause that costs should abide the event (u). The particulars in such an action may be amended by leave of the com-t (x). In a recent case it was agreed in the order of reference that the parties should admit and that the arbitrator should take and receive the account annexed to the order to be a correct account of certain accounts between the parties, and that the arbitrator should award on the rights of the parties, as if the items stated in the account had been proved before him. After the award had been made the plaintiff applied to the court to amend the order of reference and refer back the matter to the arbitrator on affidavits which showed clearly that in the account annexed to the order of reference, the clerk of the j^laintiff 's attorney in copying it had by mistake given the plaintiff credit for 460/., instead of 758/. Tlie court refused the application saying that they had no juris- diction, but suggesting that there might be a remedy in equity (y). The com-t has no power to amend an agreement of refer- ence made a rule of a court of law so as to make it accord with the original intention of the parties. The only power to reform an agreement is in the Com-t of Chancery (z). Tlie modern statute 3 & 4 W. IV. c. 42, s. 39, vests in the courts a power of enlarging the time for making the award. A subsequent portion of this work treats of the circumstances under which such enlargement will be granted (a). A clerical error, or an immaterial variance, will be amended by the courts without consent. Where the chris- tian and surname of the defendant in the cause, Thomas James, had been transj)08ed in the order of reference, the court rectified the error {b). But where there is a material mistake even by the officer of the court no amendment can be permitted. Thus, in one {u) Bell V. Postlethwaite, 25 L. J. Q. B. 63, S. C. 5 E. & B 695. {x) Gibbs v. Knigbtley, 26 L. J. Ex. 294, S. 0. 2 H. & N 34. {y) Winn v. Nicbolson, 7 C. B. 819. (z) Shaw V. Pitt, per Crompton, J., B. C. Nov. 21, 1856. («) See P. II. cb. 3, s. 2, d. 3. (i) Price v. James, 2 Dowl. 435. SUBMISSIONS IN A CAUSE AT LAW. 83 case the court refused to allow the order to be amended Part I. according to the terms of a paper signed by the counsel at — — '-^—^ the trial, the intention of the parties from their subsequent acts appearing to have been in favour of the terms of the order (- costs; what special directions he may give, and what injunctions in certain cases he may add, regulating the enjoyment by the parties of their own property, or affecting the property of strangers. The course to be pursued in references under the Lands Clauses Consolidation Act, 1845, forms the subject of the succeeding chapter. The next matter separately considered is the duty of the arbitrator when the award is referred back to him for recon- sideration. The part concludes with a chapter concerning the personal interests and liabilities of the arbitrator. CHAPTER I. THE OFFICE OF AEBITEATOE. This first chapter treats of the office of arbitrator: section Pai;t tt. one shortly considers who are qualified to fill the situation ; "^- ^- ^- ^- section two points out the moral qualities requisite in the Contents of holder of it; the third section discusses the important ques- chapter, tion, by what principles the arbitrator ought to be guided in aAvardiug on the matters submitted to his decision. SECTION I. OF WHO MAY BE AN AKBITRATOE. An arbitrator is a person selected by the mutual consent Any person of the parties to determine the matters in controversy between ^bUrator^ them, whether they be matters of law or fact {a). Neither natural nor legal disabilities hinder a person from being an arbitrator (b). It has indeed been laid do-wn as law in works to which great respect is due, that idiots, lunatics, infants, married women, persons attainted and excommunicated, are disqualified for the ofiice {c) ; but the better opinion is, that they may be arbitrators ; for every person is at liberty to choose whom he lilies best for his judge, and he cannot afterwards object to the manifest deficiencies of those whom he has himself selected (oT). [a] Bac. Ab. Arb. D. ; West. (c) Com. Dig. Ai-b. C. ; West. Symb. Part II. tit. Compromise, Symb. Part II. tit. Compromise, p. 164, s. 21 ; Ai-mstrong v. Mar- pp. 164, 165, ss. 23, 26. shaU, 4 Dowl. 593. {d) Bac. Ab. Arb. D. ; Huntig {b) Yin. Ab. Ai-b. A. 2. v. Railing, 8 Dowl. 879. 106 THE ARBITRATOK. Part II. The arbitrator ought to be a person who stands indifferent CU. I. s. 1. between the parties. Person in- Jf he have any secret interest in the subject in question, or have any bad feeling towards either disputant, he is not a proper person to be a judge between them {e). So also when it turns out that, unknown to one or both of the parties, there is some circumstance in the situation of the arbitrator which tends to bias his mind. Thus, where an architect assured a lady that the price of building a church should not exceed a specified sum, though he declined to give a guarantee to that effect, the Court of Chancery held the architect an improjDer person to decide finally on the builder's claims for extras against the lady (/). But owing a debt to or being a creditor of one of the parties is not such an interest as renders a person incompetent for the office {g). This objection as to interest only applies to the case of a concealed interest. For if the arbitrator have an interest in Known in- the subjcct of reference well known to the parties before they nouiis-°^^ sign the submission, as if they refer to an owner of lands a qualify, question respecting the mode and expense of making a (bain which will benefit the arbitrator's own estate, the award is good notwithstanding his interest (Ji). The architect or surveyor employed by a gentleman to superintend a builder in building his house is often an arbitrator between his emi)loyer and the builder (/), although his remuneration is a commission on the amount of the building charges. Where the parties had bound themselves in a bond to the arbitrator to abide his award, and it was argued that the submission was void, because the arbitrator had an interest in making an unreasonable award to obtain the penalty, the objection was overruled (Ji). On a reference under '' The Lands Clauses Consolidation Act, 1845," between a party interested in land taken by a railway company and the company, the latter appointed as their arbitrator the agent they had employed to make an (e) Parker v. BiuTouglis, Colle's [h) Johnston v. Cheape, 5 Dow. Pari. Cas. 257 ; Earl v. Stocker, 2 247 ; Drew v. Drew, H. L., March Vern. 251. 8, 1855. (f) Kemp V. Eose, 1 Giff. 258. [i] Morgan v. Bii-nie, 9 Bing. {(j) Morgan v. Morgan, 1 Dowl. 672. 611 ; Drew v. Drew, House of {k) Owdy v. Gibbons, Comb. Lords, March 8, 1855. 100. * WHO MAY BE AN iVEBITRATOR. 107 oflPer as to the price. After this the party appointed his Part ii. arbitrator. The two arbitrators selected an umpire, whom ^°' ^' ^' ^' the party swore he had, since the award, discovered to be a Interest as surviyo" and sha holder c railway sharehukler in and a sm'veyor employed by the G. "VV. Hail- and share- way Company, which was interested in the line in question. ^°^^'^^ °^ '^ Before tlie reference began, the counsel for the party pro- tested against the company's agent being an arbitrator; but the reference went on before the arbitrators and umpire together. The award was made by the umpire alone. Y.-C. Knight Bruce refused the party's ajiplication to set the award aside, saying, that though the company's agent ought not to have been an arbitrator, the com-se taken showed that that objection was waived; and that it would be going too far to set aside the award merely in respect of the lunpire's interest (although it was objectionable in point of delicacy to have appointed him), considering that his connection with the G. W. Railway Comj)any was known. He added, the award was saved very narrowly indeed (/). It has been said that a party cannot be a judge in his own Party arbi- cause, but if his opponent consent to his deciding the ques- j,'if own^ tion between them, the courts will not allow an objection cause. afterwards, though he decide it in his own favour (??i). Stewards of a horse-race are not disqualified from deciding- disputes by reason of their being interested by betting on the race, the parties knowing that it was probable that they might bet. They are not strictly arbitrators (ti). The question, what is a reference to arbitrators, has been pre- viously considered (o). It seems that by the law of France, when parties agree to submit any difference that shall arise to two arbitrators who are merchants, an api^ointment by one of the parties of a foreigner as arbitrator is not a valid aiij)ointment (p). Sometimes by statute the class from which arbitrators are Arbitrators to be selected for settling particular disputes is pointed out. ^^ statute. Under the 5 Geo. IV. c. 96, for settling by arbitration Mauufac- disputes between masters and workmen, the referee, if the ^^tmen*^ {I) Elliot V. gouth Devon Eail- (u) Ellis v. Hopper, 28 L. J. way Company, 2 De Gex & S. 17; Ex. 1 ; Parr v. Winteringham, S. C. 12 Jul". 445. 28 L. J. Q. B. 123. {m) Matthew v.Ollerton, 4 Mod. (o) Part I. ch. 3, s. 1 , d. 2, p. 42. 226 ; S. 0. Comb. 218. See Hunter Qj) Aliyon v. Fiu-nivall, 1 0. M. V. Bennison, Hard. 43. & E. 277. 108 THE ARBITKATOR. Part II. CH. I. s. 2 Barrister. Barrister to certify rules. Master to settle costs of compen- sation in- quiry. Master. County court judge. disputants can agree on one, is to be a justice of the peace; if not, there are to be two arbitrators, one a master manufac- turer, or agent or foreman of a master manufacturer, the otlier a workman in the manufacture respecting which the dispute has arisen {q). On differences arising respecting the expenses of jDiisoners from a borough kept in a county gaol, a barrister is to be selected as the arbitrator, as has been previously shown (f). The Barrister to certify the rules of Savings Banks is ap- pointed by statute to decide in many cases as an arbitrator {s). The costs of the inquiry before a compensation jmy under the Lands Clauses Consolidation Act, 1845, are by s. 52 of that statute to be settled by one of the Masters of the Court of Queen's Bench as an arbitrator, not as an officer of the court if). So a reference is often made to the Master under the Common Law Procedm^e Act, 1854. It might, under the same Act, have been made to a County Court Judge, and he could not decline to undertake it (ti). But, as far as County Court Judges are concerned, the Act has been repealed by the stat, 21 & 33 Vic. c. 74, s. 5. SECTION IL OF THE MORAL QUALITIES REQUISITE IN AN ARBITRATOR. Arbitrator must be incorrupt. It is hardly necessary to state, that in conducting the reference, the first duty of the arbitrator is to be incorrupt and impartial. If there be any ground for imputing cor- ruption, fraud, or partiality to him, the award cannot stand (v). Though the courts will rarely review the bond jide exercise (ry) s. 3. (r) See P. I. ch. 3, s. 7, d. 7, p. 98. as to the mode of submission. (s) See P. I. ch. 2, s. 3, d. 2, p. 35. (i) Eoss V. York, &c., Eail-way Company, 5 D. & L. 695. (m) Cummins v. Birket, 27 L. J. Ex. 216. («) Morgan v. Mather, 2 Ves. 15 ; Clarke v. Stocken, 2 Bing. N. C. 651 ; Stat. 9 & 10 W. III. c. 15; Bac. Ab. Arb. K. ; Com. Dig. Ai-b. C. ; Tittensonv. Peat, 3 Atk. 529; Earle v. Stocker, 2 Vern. 251 ; Biu^ton v. Knight, 2 Vern. 514 ; Travers v. Ld. StaflFord, 2 Ves. Sr. 19; Emery v. Wase, 5 Ves. 846 ; Ld. Lonsdale v. Little- dale, 2 Ves. Jr. 451 ; Stui-t v. Moggeridge, 2 Tidd Pr. 841, 9th ed. MOBAL REQUISITES. 109 of the arbitrator's authority, yet evidence of tlic merits will Part it. always be let in, so far as it may throw light upon his con- ' ' ' ' duct with reference to the above imputations (x), but to induce the court to interfere with the award on the ground of misconduct of the arbitrator there must be something more than mere suspicion (y). Where the arbitrators took money of one of the parties Taking alone for their charges without any bill delivered, and before fore award the making of the award. Lord Hardwicke, C, thought this ™^'i^- a sufficient reason to set the award aside, for if this were suffered it would, he said, be hard to distinguish what was corruption {^). It will not be permitted to a person chosen as an arbi- Purchasing ,.,,. ^ o ,^ claims m trator to buy up the unascertained claims oi any oi the dispute, parties to the reference ; or to purchase an interest in those rights upon which he is to adjudicate. Such a proceeding would corrupt the fountain and contaminate the award (a). The arbitrator must also as much as possible keep his Arbitrator mind free from all personal feelings respecting the case, for impartial. if an arbitrator use any expressions towards either party, which discover a strong bias or prejudice in his mind, or show that he has been actuated by any hostile feeling, the award will be set aside, and this even where there is nothing to impeach the conduct of the other arbitrator, who joined in the award {b). Any private agreement between the arbitrator and a party Private respecting the subject of reference intended to be considered agreement. in the award, is objectionable, though perfectly bo7id fide ; as, for instance, if the question be respecting the amount of rent a tenant is to pay, the arbitrator should not, in making his valuation, take into account an agreement with himself by the tenant to lay out a large sum upon the premises, of which agreement the landlord has no power to enforce per- formance (c). (,k) Goodman v. Sayers, 2 J. & (&) Bui-ton v. Knight, 2 Yern. W. 249 ; Anon. 2 Vem. 100. 515 ; S. C. Bac. Ab. Arb. K. ; {y) Crossley v. Clay, 5 C. B. 581 . Parker v. Bm-ronghs, CoUe's Pari. (z) Shepbard v. Brand, Cas. Cas. 257; Ward's case, cited 2 Atk. tmif. Hardwicke, 53; S. C. 2 Bar- 155, 396 ; Cbicot v. Leqnesne, 2 nardiston, 463 ; Bac. Ab. Arb. K. Ves. Sr. 315. (a)Blennerhassetv. Day, 2Ball (c) Chichester v. M'Intii'e, 1 & Beatty, 104. Dowl. N. S. 460. 110 THE ARBITRATOR. Part II. Commissioners appointed by statute to ascertain by their ^°- ^- ^- ^- award the bounds of the respective mines in a certain dis- Im posing trict, and to fix the rent payable to the Crown by the several miners who work them, are not justified in imposing on a miner the condition, that he shall pay up to the Crown arrears due for past workings of his mine, before they give him the benefit of the Act of Parliament by inserting his name and portion of mine in their award {d). terms on party. SECTION III. OF THE PRINCIPLES BY WHICH THE ARBITRATOR SHOULD BE GUIDED. Characters In Order for an arbitrator to ascertain what are his powers arbitrator ^^^^^ dutics, he must look in each case to the submission which confers the one, and imposes the other, and gather therefrom the intention of the parties {e). For the characters which arbitrators have to sustain vary materially according to the effect of the respective submissions. Judge of An arbitrator is generally the final judge of law and fad;.^"*^ fact {/). On the reference of an action at the trial, he Jury. usually stands in the place of the jury, and his award is Judge of looked upon as their verdict (^) ; at times he is clothed with Court ia niMiy of the powers of a Judge at Nisi Prius (k) ; occa- Bank. sioually some of the functions of the Court in Bank devolve upon him (?"). Master in With respcct to matters in Chancery, sometimes he repre- lanceiy. ggj^^g q^^j ^ Master of that court, and his award is open to revision as a Master's report (/;) ; at other times his deci- (d) Attorney-Gen. v. Jackson, (g) Angus v. Eetford, 11 M. »& 5 Hare, 355. W. 69 ; S. C. 2 Dowl. N. S. 735 ; (e) Samways v. Eldsley, 2 Mod. Lee v. Lingard, 1 East, 400 ; 73 ; Winter v. White, 1 B, & B. Borrowdale v. Kitchener, 3 B. & 350, 357. P. 244 ; Bury v. Dunn, 1 D. & L. (/) Morgan v. Mather, 2 Ves. 141. 17 ; Dick v. MiUigan, 2 Ves. 23 ; {h) CaHa v. Elgood, 2 D. & E. Ai'msti-ong v. Marshall, 4 Dowl. 193. 593; Perriman v. Steggall, 9 Bing. (i) Allen v. Lowe, 4 Q. B. 66. 679 ; Angus v. Eetford, ll M. & {k) Knox v. Simmonds, 1 Ves. W. 69 ; S. C. 2 Dowl. N. S. 735. Jr. 369. PRINCIPLES OF DECISION. Ill sion is looked upon as that of tlie Chancellor himself (A; Part ii. / . ^ '^ ' en. I. s. 3. under special circumstances he is vested with the powers of the Attorney-General as to informations in charity cciior. cases (m). Attomey- . p n • • beneral. He is often also a sort of dictator armed with powers Dictator beyond those of any court of justice to control the future conduct of parties, and to regulate their enjoyment of their property {n). A very important question here presents itself for solution. Principles According- to what principles is the arbitrator to act ? What generany," control ought the rules of the courts to have over his deci- sion ? The following proposition (which, however, only gives a partial answer) is hazarded as the safest general rule that can be drawn from a consideration of the cases, — that an arbitrator should endeavour to arrive at his conclusions upon the same rules and principles which would have ac- tuated the tribunal or tribunals for which he is substituted in coming to a decision. Thus, on 'a reference at Nisi Prius, where the arbitrator stands very much in the place of a jury, he should, it is pre- sumed, ordinarily decide the cause upon the same principles which a judge at Nisi Prius would have laid down for the guidance of the jmy. And yet in one instance, where the verdict in a cause had depended on the result of the award. Lord Kenyon, without expressing any disapprobation, sug- gested that possibly, in arriving at his conclusions as to the verdict, the arbitrator had proceeded to cut the knot, rather than unloose it according to the strict rules of law, from a wish to do complete justice between the parties {o). The various statements of judges respecting the principles when all of decision by which an arbitrator should be guided, espe- ^^^^^^^ cially on a reference '' of all matters in difference," it is not quite easy to reconcile. But disregarding special exceptions, there is abundant authority for laying down a general rule that an arbitrator, like every other judge, is bound by the rules of law (p), and that it is beyond his authority to (l) Pitcher v. Eigby, 9 Price, 79. (o) Habershon v. Troby, 3 Esp. [m) Prior v. Hembrow, 8 M. & 38. W. 873. (p) Aubert v. Maze, 2 B. & P. {n) Wood v. Griffith, 1 Swanst. 375 j Badger, In re, 2 B. & A. 691. 43 ; Boodle v. Davies, 3 A. »& E. 200. 112 THE ARBITRATOK. Part II, CH. I. s. 3 Power according to law. Legal and equitable authority. Reforming a deed. Arbitrator not bound by rule of practice. award anything- contrary to law ; for the ordinary presump- ■ tion is, that the parties intend to submit to him only the legal consequences of their transactions and engagements {q) ; so that when j^arties refer their legal rights to arbitration, the arbitrator must endeavour to award according to law : although a mere mistake in law, as we shall see hereafter, is rarely fatal to the award (r). The word " legal" is here used in an enlarged sense, for an arbitrator on a general reference should take into his consideration the rights of the parties in equity as well as at common law {s). In a modern case, on a reference between two partners, it being contended that the deed of partnership had been erro- neously drawn up, the arbitrator allowed the draft of the deed to be put in evidence to show the mistake, and pro- nounced the deed to be wrong, and decided between the parties, on the construction of the deed, according to what he thought the deed was intended to have been ; on its being objected that he had exceeded his authority ifi so doing, Parke, B., said, ''All disputes respecting the interests of the parties were referred to the arbitrator ; he consequently had power to decide all questions of law and equity ; there- fore, if it were a question in dispute before him whether the deed was cbawn up in mistake, and he thought it was, he had power to reform it under his equitable authority, but if he had been called upon only to decide upon the construc- tion of the deed, of course he could not have altered it " {f). The arbitrator is not fettered by the mere rules of practice which the courts of law and equity have adopted for general convenience. Thus, he may allow interest in taking an account between the parties, when a known rule of practice would have prevented the courts from allowing it ; for the authority to adjust the account between the parties carries with it an implied authority to allow interest, unless ex- pressly excluded by the terms of the submission (u). (q) Badger, In re, 2 B. & A. 691 ; Morgan v. Mather, 2 Ves. Jr. 15 ; Young v. Walter, 9 Ves. 364. (r) Blennerhasset V.Day, 2 Ball & Beatty, 104. See P. II. Ch. 5, s. 8, as to a mistake inlaw. (s) Delver v. Barnes, 1 Taunt. 48 ; Craven v. Craven, 7 Taunt. 642. {t) Keene & Atkinson, In re, Exch., Ap. 16, 1847. (tt) Badger, In re, 2 B. & A. 691. PKINCIPLES OF DECISION. 113 It lias been said by judges of great celel)i'ity that under a I'art ii. general reference of all matters in diiFerence the arbitrator is not confined within the rules of law and equity, that he giderations. has greater latitude than the courts of law in order to do complete justice between the parties, and that he may take all njoral questions into consideration in forming his judg- ment, and decide according to equity and good conscience ; for instance, that he may relieve against a right which lies hard upon one party, but which having been acquired legally and without fraud, cannot be resisted in a court of justice {x). In one instance the Court of Queen's Bench is said to have laid down the following rule, " that when arbitrators, knowing what the law is, or laying it entirely out of their consideration, make what they conceive, nnder all circum- stances, to be an equitable decision, it is no objection to the award that in some particular point it is manifestly against law"(y). But these and similar general observations must in Power be- general at least, it is humbly suggested, be considered and Ltended. explained by reference to the matters in dispute in the par- ticular case, showing the intention of the parties to give the arbitrator power beyond law. Thus in the case which gave rise to the expression of the above rule (z), the arbitrators to whom the differences respecting a testator's estate had been referred, awarded that they were of oj^inion that the intention of the testator was by his will to have disposed of his proj^erty in a particular manner which they specified, and with which they directed the parties to be satisfied (a). This distribution was clearly contrary to that which the law and legal construction of the will would have effected. The court, however, sustained the award, though the arbitrators stated on affidavit, that in disposing of the residue not included in the will they did not conceive that they were (x) Soutli Sea Company V. Bum- (y) Ainsley v. GofF, B. R. 1799; stead, 2 Cas. inEq. Ab. 80; Knox Kyd on Awards, 351. V. Symonds, 1 Ves. Jr. 369 ; Del- (z) Ainsley v. Goff, Kyd on verv. Barnes, 1 Taunt. 48; Young Awards, 351. V. Walter, 9 Ves. 364 ; Hanson v. (o) In Kyd on Awards tlie fonn Liversedge, 2 Vent. 242 ; West. of the submission is given in the Symb. Part II. title Compromise, Appendix, p. 424 ; and of the s. 21 ; 2 Story's Equity Juiispru- award in the Appendix, p. 427. dence, 675 — 684. 114 THE ARBITRATOR. Part II. making any distribution of it according to any fixed rules ■ ' ' ' - of law upon tlie subject, but tliat they were dealing out to the several parties interested, what apj^eared to them to be according to the best of theu*. judgment, under all the cir- cumstances of the case, strict and impartial justice, agreeably to wliat they believed to have been the intention of the testator. From the terms of the award, the statement of the arbitrators, and the mention made in the report that the arbitrators were gentlemen who were well acquainted with the intentions of the deceased, it may probably be inferred that the question in difference was, not what was the legal effect of the will and the legal rights of the parties to the property, but what was the distribution of his estate which the testator intended by his will to have made. If this view be correct, the arbitrators, by the very nature of the matters in difference, were called upon by the parties to decide irrespectively of their legal rights, and thus in one sense authorized to award against law, or rather beyond law (d). A dictum, however, of Wilde, C. J., in a recent case, that the courts will not set aside an award for a mistake in law of the arbitrator, unless they can on the face of the award distinctly see that the arbitrator jor^ssm^ and intending to decide in accordance with law, has unintentionally and mistakenly decided contrary to it, may be quoted to assist the argument, that if the arbitrator avowedly threw the law overboard, his decision, notwithstanding, might be sup- ported ( the time him to award on future and contingent claims, or to give reference. (a;) Atkinson v. Jones, 1 D. «& G. 253. L. 225; Asliworth. v. Heathcote, (z) E. v. Brewer, Q. B., June 6 Bing. 596. 11, 1845. (2/) Wynne v. Wynne, 4 M. «& 124 ON WHAT TO AWARD. Paut II. damages in respect of money demands becoming due after CH. II. s. 3. the date of tlie submission, tliougli pursuant to an agreement made previous to it, or indeed respecting any subjects of dispute arising after the reference (a). If the submission be of all differences and " of anything in anywise relating thereto," these latter words do not ex- tend the power of the arbitrators to matters which, though relating to the existing differences, arise after the date of the submission ; nor do they authorize the calculation and awarding of interest subsequent to that date {d). Re-execut- Where arbitration bonds, dated the 9th of December, were siun. on the 4tli of January, before the proceedings had com- menced, altered by the parties substituting a later day as the limit for making the award, and were then re-executed and re-delivered, the arbitrator was held to have cognizance of claims arising after the 9th of December, and up to the 4th of January, since the execution of the bonds not only extended the time, but amounted to a new submission on the 4th of January (rescribes a limited time for making Award the award.'] — When the submission fixes a limit, the award wi"hin the riiust be made within it, unless fm-ther time be subsequently *j°ip given. How that farther time is to be obtained is treated of in the next section. If matters are referred to an arbitrator on the 29th of "Witiiin" June, and he is to make his award within five calendar [^^ j^^^^ months after the matter is referred to him, the 29th of June day. is excluded in the computation of time, and an award made on the 29th of November is good as being made w^ithin the limited period («). If he has " until " a day named to make "Uutii" a his award, the word "until" may be construed either inclu- '^^^ ^"^ *^' sive or exclusive; and as the construction should be put upon it, ut res magis valeat quam jjereat, the arbitrator will have the whole of the day named included, and may make his award at any time during that day (o). When the award is to be made ready to be delivered to the parties before a certain day, executing it between the hours of eight and nine of the evening previous, is within due time (j)). On a limitation of the time simply in months, without Months stating whether they are to be calendar or lunar months, and calendar. without anything in the context to show that the jiarties meant calendar months, the duration of the authority of the arbitrator is to be computed by lunar months (q). By an agreement for the valuation of crops between an Valuation to be made OQ a day fixed. (7) SecMacdougallv.Bobertson, Bro. Ch. Cases, 358. See Dakins 2 Y. & J. note, p. 19. v. Wagner, 3 Dowl. 535 ; E. v. ('»<)' Morphett, In re, 2 D. & L. Stevens, 5 East, 244. 967. {p) Withers v. Drew, Cro. Eliz. («) Higham. v. Jessop, In re, 9 676. Dowl. 203. {q) Swinforcl, In re, 6 M. & S. (o) Kerr v. Jeston, 1 Dowl. N. 226. S. 538 ; Knox v. Simmonds, 3 130 DURATION OF AUTHORITY. Part II. outg-oiiig and an incoming tenant, it was provided that the ""•'"•^••^' valuation should be made immediately, but should be revised and examined by the valuers on the 1st day of August then next. The valuers made a valuation forthwith, and on the 2nd of August re-examined the crop, and reduced the price previously settled. It was held that the time was of the essence of the contract, and that as the revision was not made on the 1st of August it was inoperative (r). Periodical An arbitrator who is appointed to make a periodical ^"^^*^' assessment of damages, occasioned by the continued working of a mine, at the expii*ation of every two months from a particular day, must make his assessment within a rea- sonable time after the two months have expired ; for the limitation of the periods is imperative, and not merely directory (s) Limit In cases of references under the provisions of the Lands Lands *^^ Clauscs Consolidation Act, 1845, when two arbitrators have Clauses been appointed, and neither of them refuses or neglects to Two b" '^*'*^' ^^^^ award must be made (unless they enlarge the time) trators " within tweuty-oue days after the day on which the last of ^° ^°°* such arbitrators shall have been appointed " (;;). One of In other cases under the Act the limit does not seem so wo ac mg. gig^pjy (;[g£^e(j^ When two arbitrators are appointed, but one refuses, or for seven days neglects to act, the other may proceed ex parte according to section 30. His award must, it is apprehended, be made within three calendar months by the provisions of s. 23, but it is not quite obvious what date is to l^e fixed as the commencement of the three months, whether the date of his own appointment, or the date of the appointment of the last of the tAvo arbitrators, or, as it may reasonably be construed, the date of the commencement of his power to proceed ex parte, which is practically the date of a fresh appointment as single arbitrator (zi). Single ar- If the parties concm' in the appointment of a single arbi- trator there is nothing in the Act to limit his authority, unless (r) Marshall y. Powell, 9 Q. B, North Staflfordshhe Railway Com- 779. paiiy, 17 L. J. Ch. 161. (s) Stephens v. Lowe, 9 Bing. (u) See, however, Evans v. Lan- 32. cashu-e & Yorkskire Eailway Oom- (0 8 & 9 Vict. c. 18, s. 31 ; see pany, 1 E. & B. 754. Appendix of Statutes ; Skerratt v. WHEN NOT ENLARGED Oil REVOKED. 131 section 23, which says, that " if when a matter is referred Part II. to arbitration, the arbitrators or their umpire shall for three ch.ih.s. i. months have failed to make their or his award, or if no final award shall bo made, the question of sucli compensation shall be settled by a juiy," is to be held as applying to a sole . arbitrator, though in terms it contemplates only the case of two arbitrators and an umpire (x). The limitation of time in s. 23 of the Lands Clauses ^'^^^ ^^'^''^■ Consolidation Act, 1845, applies to arbitrations under s. 68 ders. 68. of the same Act ; therefore an award is void which is made by an arbitrator more than three months after his ajjpoint- ment as arbitrator by one party (the other party having refused to appoint any arbitrator (y)). Under the Railway Companies Ai-bitration Act, 1859 (z), Railway the arbitrator or arbitrators are to make their award within Arbitration such time as the companies may agree on, and failing such ^^^' ^^^^' agreement, within thirty days after the matters are referred to them. The umpire, unless the companies otherwise agree, may enlarge the time for making his award indefinitely (a). Under a local inclosure Act, which enacted that the award Limitation should be made within six years, the Court of Common inclosure Pleas treated the limitation as directory merely, and not as ^'^^' imperative, and supported an award made nineteen, years after the passing of the Act {d). Twenty-eight days after the a]3pointment of the second Limit of arbitrator is the dm-ation of time allowed by the statute to ference be- the arbitrators appointed to decide disputes between the *^®®" *J?® ^. Post Omce Postmaster- General and Railway Companies respecting the and Raii- carriaofe of the mails. On failure of the arbitrators to award TfJif °™" within that time, the umpire has a similar period given to him (c). III. Authority of the arbitratof determined hy making the Arbitrator (miard.'\ — As soon as the award is made the authority of the ^iter award when made. (cc) See The Caledonian Rail- 22. way Company v.Lockhart, 3Macq. (n) 22 & 23 Vict. c. 59, s. 23. 808. [h) Doe d. Eoberts v. MostJ^l, {y) Evans v. The Lancashire 12 C. B. 268. and Yorkshiie Eailway Company, (c) 1 & 2 Vict. c. 98, ss. 16, 18 ; 1 E. tS: B. 754. see Appendix of Statutes. (z) 22 & 23 Vict. c. 59, ss. 17— K 2 132 DURATION OF AUTHORITY. Part II. arbitrator, liaving- once been completely exercised according cn-"i-s-i- to the terms of the reference, is at an end. He is not at liberty, after executing the award, to exercise a fresh judg- ment on the case, and alter the award in any particular. If he does so in fact, the alteration will be merely nugatory, and the award, as originally written, will stand good ; his act will be like a mere spoliation by a stranger (d). He is so entirely functus officio^ that he cannot even correct a manifest error in the calculation of figures (j). {k) Clarke V. Stocken, 5 Dowl. («) Browne v. CoUyer, 20L. J- 32 ; 3 Scott, 90. Q. B. 426. (0 Lambert v. Hutcliinson, 2 (o) Oldfield v. Price, 6 C. B. M. & a. 858 ; Andrews v. Eaton, 539. 7 Ex. 221. {p) Ee Burden, 27 L. J. C. P. (m) Joknson v. Collie, 24 L. J. 250. a B. 64. KEVOKLNG THE AUTHORITY. 143 Omitting to state tlie cause of enlargement does not make Part il. the order a nullity. It is therefore valid if no application ""• "^- ^- ^' be made to set it aside (/). Nor can equity give any assistance, though a party No relief in deceased has covenanted for himself, his heirs, and execu- revocati'oa tors, to convey lands at a price to he fixed by arbitration, ^y ^q^^^- and the arbitrators have executed their award, valid in every respect except that the covenantee died before it was made, for in order to ground an application for a specific perform- ance, the terms of the contract must, unless otherwise pro- vided, be ascertained by the arbitrator in the lifetime of the parties {z). To avoid the inconvenience which resulted from this rule Clause lo of law, of death being a revocation, it was suggested by Lord jeatu" Eldon that the contract might be framed so as to prevent its i^einga re- operation (a) ; and it was recommended by Lord Tenterden (d) that the parties should insert a clause in their submission j)roviding that the death of either or any of them should not revoke the authority of the arbitrator, and that the award, in case of a death, should be delivered to the personal repre- sentative. Clauses to this effect have been generally adopted since, as they have been decided to be perfectly valid and efficacious to keep alive the authority of the arbitrator {c). The usual clause runs thus : " That the award is to be Usual form delivered to the parties, or either of them, or if either of clause, them should be dead before the making of the award, to their respective personal representatives requiring the same." From these words the law will imply a stipulation that the arbitrator's authority is not to be determined by a {cc) Eeported 2 Archb. Practice, Vcs. 232. 1226, 7th. ed. {b) Cooper v. Jolinson, 2 B. & {u) Biistow Y. Binns, 3 D. & E. A. 394 ; Prior v. Hembrow, 8 M. 184. & W. 873. (2) Blundell v. Brcttargh, 17 (c) M'Dougal v. Eobertson, 4 Yes. 232. Bing. 435 ; Dowso v. Coxo, 3 («) BlundeU v. Brettargh, 17 Bing. 20, S. C. 10 Moore, 272. 162 REVOKING THE AUTHORITY. Pakt II. CH.in. s. 3. EfTect of the clause. Enforcing award against survivors. (leatli, without there being any express provision to that effect {(l). The clause in question amounts to an agreement that the personal representative shall i^ay any sum of money found due from the deceased either in his lifetime or after his death. The personal representatives, indeed, cannot be compelled to ajjpear before the arbitrator, nor can the award be enforced by attachment against them ; but the assets of the deceased are bound by this agreement as by any other simple contract (e) ; and the executors will be bound to con- tribute to the costs of the reference and award which have been paid by a surviving party to the solicitor jointly em- ployed by him and the deceased to conduct the reference on their behalf {/). As against the surviving parties the award may generally be enforced by attachment. If, however, on the motion thus to enforce it, it can be made to appear to the court that the party called upon to perform the award has incurred any danger or lost any benefit by reason of the personal repre- sentative of the deceased party not having been brought before the arbitrators, in such case terms and conditions would prol)ably be imposed by the court calculated to remove such danger or inconvenience ; or the party would be left to his remedy by action on the award. But where the award is made in favour of the side of the deceased no such difficulty seems likely to occur {g). Death no revocation under tlie Lands, Railways, and Com- panies' Clauses Acts. It is provided in the Lands' Clauses Consolidation Act, 1845 (/<), the Railways' Clauses Consolidation Act, 1845 (f), and the Companies' Clauses Consolidation Act, 1845 {k), with respect of references under these Acts, that after the appointment of an arbitrator by either party, the death of either party shall not operate as a revocation. {d) Clarke v. Crofts, 4 Bing. 143 ; Lewis v. Winter, W. W. & D. 47. (e) Lewin v. Holbrook, 2 Dowl. N. S. 991 ; Tyler v. Jones, 3 B. & C. 144; Dowse v. Coxe, 3 Bing. 20. (/) Prior V. Hembrov, 8 M. & Y/. 873. {(j) Hare & Milne, In re, 6 Bing. N. C. 158. See Wrightson v. By- water, 3 M. & W. 199. {h) 8 &9Vict. c. 18, s. 25. See Appendix of Statutes. (i) 8 & 9 Vict. c. 20, s. 126. See Ajipendix of Statutes. ^ {k) 8 & 9 Vict. c. 16, s. 128. See Appendix of Statutes. CHAPTER IV. THE POWER AND DUTY OF THE AEBITEATOE BEFOEE MxUHNa THE AWAED. An endeavour lias been made to comprise in this chapter Part II. a consideration of the cliief things an arbitrator either may ""' '^'^' ' do, or must do, in the fulfilment of his office, up to the time confute of of making his award. the fourth The first section treats largely of the powers to be cxer- ^ eised, and of the duties to be performed, by the arbitrator in the ordinary course of a reference, and also includes some provisions respecting the attendance of parties and witnesses before him. The second section, after showing the arbitrator's want of poAver to delegate his authority to another, discusses how far he may take, and adopt as his own, a scientific oj^inion on matters of fact, or a legal oj)inion as to a point of law. In the third section are laid down rules for the conduct of the case, when there are several arbitrators jointly called upon to act, instead of one only. The fourth section concludes the chapter with a disserta- tion on the mode of appointment, and on the powers and duties of an umpire. SECTION I. OF PROCEEDINGS IN THE EEFEEENCE. Sermng the submission on the arbitrator.l — When a Procuring and servir order of reference. cause is referred at Nisi Prius, the attorney of one of the orderor"^ 164 POWER AND DUTY BEFORE AWARD. Tart II. parties alioukl get tlio order of Nisi Prius from the associate c"- iv-s.l. if the trial were at tlie assizes, or from the clerk of Nisi Prius in tlie Court of Queen's Bench, or the associate in the other courts if the cause were tried at the sittings at Nisi Prius in London or Middlesex (a). The order should be obtained and served on the arbitrator without any great delay, for the original time limited for making the award is often very short, and if it expire before the submission is served on the arbitrator, the reference would be entirely defeated ((5), unless the court or a judge on special motion should be of opinion that they had power under the statute (c) to enlarge the time, and should think fit, in the exercise of their dis- cretion, thus to remedy the neglect. The submission in general should be left with the arbitrator, as it is the docu- ment which authorizes his proceedings and defines his powers. He usually requires it, also, for the purpose of from time to time making the necessary indorsements on it. It is advisable, therefore, to take a copy of it before it is served. Power of II. Power of the arbitrator to regulate the j^TOceedings in arbitrator ^j 'f'eference.'X — The mode in which the reference is to be to say HOW . reference to conducted depends entirely upon the arbitrator. The courts duct°ed". "^'^ill ^ot review liis discretion provided he acts according to the principles of justice, and behaves fairly to each party (f/). To fix time jt lies entirely with the arbitrator to appoint the time and and place of .^ ,. . „ meeting, place of mcctmg for proceeding m the reference, and it is the duty of the parties to attend to his appointment {e). In general, soon after the submission is made, the party who wishes to go on with the reference will call upon the arbi- trator, deliver to him the submission, and request him to appoint a meeting. It is usual to try to arrange some day by agreement that is convenient for all parties ; but if such an arrangement cannot be made, and it be necessary for the arbitrator to make the appointment, he generally gives to (a) Aicli. Pract. 1228, 7tli ed. Hewlett v. Laycock, 2 C. & P. \h) Doe d. Fisher v. Saunders, 374; Haigh. v. Haigh, 31 L. J. 3 B. & Ad. 783. Ch. 420. (c) 3 & 4 W. IV. c. 42, s. 39. (e) Fetherstone Y. Cooper, 9 {d) TiUam v. Copp, 5 0. B. 21 1 ; Ves. 67. PROCEEDINGS IN THE REFERENCE. 165 the party applying for it a written appointment, specifying Part li. the time and place at which the parties and their witnesses ""•^^•^- ^- are to appear (/). Tlie arbitrator ought not to fix on too early a day, considering that lie must give the parties time to get np their proofs and collect their witnesses ; nor, when either jxarty is anxious to press on the case, ought he on light grounds to appoint a distant day, for delay in the decision often causes serious inconvenience to the party entitled to recover, and may amount even to practical injustice. The party obtaining the written appointment should serve Serving ap- a copy of it on his opponent without delay, or at least within ou'oppo" a reasonable time before the day of meeting. "^ei^t- The arbitrator may revoke the appointment he has given Tower of •/•I 1 Ti 1 • T n -rn 1^ •J^ j n 1 arbitrator it he shall think fit. If from any cause either party find to rescind that he will not be able, or that it will be very inconvenient ^''g^°^^°*'" for him to attend at the specified time, he should give timely notice of it both to his opponent and to the arbitrator ; and the latter will in his discretion either insist on his attendance or put oft' the meeting and aj)point another day (j). But the discretionary power of the arbitrator in the whole The exer- C1S6 of liis conduct of the case, though large, is by no means absolute discreiiuu (except perhaps in the case where a government board is ^j'^^'\|°j made an arbitrator by statute (k) ), and his decision will be the couvt. reviewed by the courts and his award set aside, if it be made to appear, that in the course which he has pursued he has acted, though with the best intentions, unfairly to either party («■). This subject is one we shall have occasion to notice repeatedly in the further pages of this chapter. The rule that next deserves mention affords an illustra- Notice of ... attendance tion of the preceding proposition. It is the duty oi a party by counsel, who intends to employ counsel in the reference to give notice of his intention to his opponent previous to the meeting, in order that the latter may, if he please, provide himself with the like assistance. On an occasion where no such notice had been given, and one side appeared by counsel, (/) Forms of appointments are Railway Company y. Tlie Ulster given in the Appendix of Forms. Eailway Company, 2 Jur. N. S. {q) See Eastham V. Tyler, 2 Bail 936, S. C. 8 De CI. M. & G. 487. Court Eep. 136. (/) Haigli y. Haigh, 31 L. J. (//) TlieNewryandEnniskillen Ch. 420. 1G6 rOWEll AND DUTY BEFORE AWARD. Part IF. and tliG otliGi* side complained of the want of notice, and cn.iv .s.i. Ijegg-ed for a postponement in consequence with a view to instruct counsel on his part, and tlie arbitrator refused to put off the meeting, the court held, that in refusing the request he had not performed his duty of acting fairly between the parties, and consequently annulled the award {/i). Oniiuary Generally, the inquiry before an arbitrator is assimilated course of ^^ ^-^^^^. ^^ ^J^r^J -\jq ^q ^j-^g proceedings on a trial in the courts. a reference. _ -^ -■■ ^ In the ordinary course, at the appointed time and place, the parties apj)ear with their witnesses to support their respective cases. They are usually attended or represented by their attorneys or counsel, who conduct the proceedings on behalf of their respective clients. Refusing It has been decided in the Court of Common Pleas that coiinsei ^^ ^^ competent to arbitrators under the Friendly Societies Act to decline to hear counsel if they think fit, and it seems that all arbitrators have the like discretion, though in many cases they would be "wi'ong if they refused the party the privilege of appearing by counsel (/). Refusing In an earlier case in the same court, an arbitrator in a stranger to fai'miug casc wlio refuscd to allow a stranger skilled in be present, agriculture to remain in the room to assist the defendant's attorney in his conduct of the case, was held not to have exceeded the discretion vested in him by law (m). But circumstances may arise in which, for the ends of justice, a different course should be adopted, and it has been said, may even justify the arbitrator in excluding the parties and their attorneys from the hearing, and in examining the wit- nesses himself in their own houses («). But it is appre- hended the circumstances must be very peculiar to autho- rize a proceeding at first sight so irregular. Excluding And more recently, where an arbitrator had excluded from party and ^ouie of the meetings the son of one of the parties who was short-hand couversaut with the accounts of the partnership which y^ere writer. • t - i , in dispute, and also a shorthand writer, the attendance of (k) Wtatley v. Moiland, 2 Dowl. G63. 249. (,„) Tillam v. Copp, 3 C. B. 21 1 . (0 Macquen V. The Nottingliam (;?) newlctt v. Laycock, 2 C. & Caledonian Society, 9 C. B. N. 8. P. 574. See Matson y. Troyrer, 1 793 ; Collier y. Hicks, 2 B. & Ad. Rv. & M. 17. PROCEEDINGS IN THE REFERENCE. 167 botli of whom tlie party wislied to have, the Lords Justices Pap.t II. set aside the award, saying that tlie party's interests might ^^^II ^1^" liave been unfairly prejudiced by the exclusion (o). Where a cause was referred to a mining agent, objection Arbitrator Iiaving been made by the defendant to a legal arbitrator, _^^ .|^f^j!" and the mining agent called in an attorney to sit with him, ney. and the defendant protested in vahi against it and retired, the award made ex j)cirte was set aside, the court considering tlie course pursued by the arbitrator objectionable (yv). An arbitrator may properly and conveniently take tlie examination of a sick or infirm person at that person's own residence {q). On the reference of a cause at Nisi Prius, it is a common and convenient practice for the plaintiff's counsel to open his case very succinctly indeed, or to make no opening at all, and to proceed at once to sustain his case by proof, reserving his speech till the reply. The arbitrator is not unfrequently acquainted beforehand with the general case which each party proposes to set up, as it is a common practice, especially if the arbitrator request it, for the par- ties to leave their briefs with him beforehand. When the plaintiff's evidence is finished, the defendant, when he has a case of his own to prove, states the nature of his defence with like brevity, and produces the oral and documentary proof in support of it ; after which he makes his address, summing up his own case, and commenting on that of the plaintiff's. If the defendant have no evidence to offer, ho at once, at the close of the plaintiff's evidence, makes his speech in opposition to the plaintiff's claim. The plaintiff then has the reply (or rather his turn to speak, as he has made no previous address), and he then sets forth his own case fully, and attacks his opponent's with such observations on the facts, and such arguments as to the points of law, as seem to him calculated to have weight with the arbitrator ; and thus the case is closed on both sides. It seems that the particulars of the plaintiff's demand are Wliether not necessarily before the arbitrator, therefore if the plaintiff of piaintifTs have not brouo'ht them before him, and the defendant seek ijemami be- " ' fore arbi- trator. (o) IlalgL. V. Haigli, 31 L. J. L. J. C. P. 157, S. C. 8 C. B. N. S. Ch. 420. 38G. {li) Proctor Y. WilHamson, 29 {q\ Tillam y. Copp, 3 C. B. 211. 168 POWER AND DUTY BEFORE AWARD. Part II. to restrict the jjlaintiff 's claim to their amount, the defendant CH- ^y- s- 1« should himself jDroduce them (r). Arbitrator Before taking any step in the reference, it is advisable form cm'di- foi' the arbitrator to look carefully to the terms of the sub- tion prece- niission, to SCO if it contain any provision which makes the doing of any act a condition precedent to his entering upon the arbitration. As, for instance, if the agreement of reference direct that the arbitrator is to take a view of the j)remises, the subject of the dispute, a certain time before proceeding with the reference, he should take such view within the prescribed period, or it might afterwards be urged against the validity of the award, that he had not acted in pursuance of the powers entrusted to him {s). Declaration Under the Lands' Clauses Consolidation Act, 1845 (t), unaer"The i i -n -i 7 \ /7 Lands' and and the Railways' Clauses Consolidation Act, 1845 (u), Ckuses^^ before any arbitrator or umpire shall enter into the con- Acts," sideration of the matters referred to him, under the pro- precedent, visions of those Acts, he is to make and subscribe, in the presence of a justice, a solemn declaration in the form provided in the statutes, that he will decide honestly and to the best of his ability. An umpire who was appointed on the 17th, and made his declaration on the 27th of the same month, before he entered on the matter referred, was held to have made it in due time (x). Declaration ^j^e declaration may be made before a iustice of the peace may be "^ , "^ ^ made be- of any county. The interpretation clause, s. 3, does not justice."*^ limit the jurisdiction to take it to a justice of the peace of the county in which the matter in dispute arose (y). Eaiiway Under the Railway Companies' Arbitration Act, 1859, Arbitration cxcept wlioro and as the companies otherwise agree. Act, 1859. the arbitrator, the arbitrators, and the umpire respectively may proceed in the business of the reference in such manner as he and they respectively shall think fit " (z). ^ (r) Keniick v. PhiUips, 9 DowL Dock, &c., Eailway Co., 12 Q. B. "^08. 5G2 ; Levick v. Ei^som and Lea- (s) Spence v. Eastern Counties therhead Eailway Company, 1 L. Railway Company, 7 Dowl. 697. T. N. S. 00. (0 8 & 9 Vict. c. 18, s. 33. See {y) Davies v. the Soutli Staflford- Appendix of Statutes. shire Eailway Company, 21 L. J. {u) 8 & 9 Vict. c. 20, s. 134. M. C. 52. See Appendix of Statutes. (2) 22 & 23 Vict. c. 59, s. 19, {x) Bradshaw y. E. & W. India PROCEEDINGS IN THE REFERENCE. 169 The master or other arbitrator appointed on a compulsory p^rt ir. reference under the Common Law Procedure Act, 1854, has, °°' ^^' ^' ^' it seems, the same powers in general as arbitrators on refer- Compulsory •^ ° references. ences by consent (a). III. Enforcing the attendance of 7vitnesses.'] — When a cause "When wit- was referred by judge's order, or order of Nisi Prius, or to atteno! rule of court, a witness was always bound to attend before the arbitrator (^), though before the recent statute the courts has no authority to make a specific order on the witness, enforcing his attendance (c). On references by other submissions, the attendance of the witness was purely voluntary (c/). The defects in the law on this subject have been reme- Compul- died as to the courts of law, by the provisions of the Act, gilJ^by^s & 3 & 4 Will. IV. c. 42, in the subjoined section {e). ^ w. iv.^ Sec. 40. " And be it further enacted, that when any refer- ence shall have been made by any such rule or order as aforesaid [?. e. by rule of court, or judge's order, or order of Nisi Prius in any action'] (f), or by any submission con- taining such agreement as aforesaid [i. e. that the submissioii shall be made a rule of any of his Majesty's courts of record] (y), it shall be lawful for the court by which such rule or order shall be made, or which shall be mentioned in such agree- ment, or for any judge, by rule or order to be made for that purpose, to command the attendance and examination of any person to be named, or the production of any documents to be mentioned in such rule or order ; and the disobedience to any such rule or order shall be deemed a contempt of court, if in addition to the service of such rule or order an appointment of the time and place of attendance in obedi- ence thereto, signed by one at least of the arbitrators, or by the umpire, before whom the attendance is required, (a) Hogge V. Burgess, 3 H. & 530. N. 293, S. C. 27 L. J. Ex. 318 ; (c?) Webb v. Taylor, 1 D. & L. Ilolloway V. Francis, 9 C. B. N. 676. S. 559. (e) The Irisb Act. 3 & 4 Vict. c. (?') Webb V. Taylor, 1 D. & L. 105, s. 64, has like pro\'isions. 676. See Taylor on Evidence, 858. (/) 3 & 4 W. IV. c. 42, s. 39. (c) WanseU v. Soutbwood, 4M. (i/) 3 & 4 W. IV. c. 42, s. 39. & E. 359 ; HaU v. Ellis, 9 Sim. 170 rOAVER AND DUTY BEFORE AWARD. Tart II. sliall also be served either together with or after the service c"- iv-s.l. of g^cli rule or order : provided always, that every person whose attendance shall be so required shall be entitled to tlie like conduct money, and payment of exjDcnses, and for loss of time, as for and upon attendance at any trial ; provided, also, that the application made to such court or judge for such rule or order shall set forth the county where the witness is residing at the time, or satisfy such court or judge that such person cannot be found : provided, also, that no person shall be compelled to produce under any such rule or order any writing or other document that he would not be compelled to produce at a trial, or to attend at more than two consecutive days to be named in such order." Practice ob- When it is necessarv to resort to the compulsory process tainiii"' X ./ J. order for givcu by the statutc, the order for the attendance of rttendince witnesses may be obtained, either upon motion in court on affidavits, or from a judge at chambers on an affidavit or memorandum signed by the solicitor of the party who requires the evidence. The affidavits or memorandum should set forth the existence of the reference, either shortly or by verifying a copy of the submission, the name of the witness, the county in which he is residing at the time, or if his residence be not known, should set out facts to satisfy the court that he cannot at present be found. And pro- jf c^ documcut be required to be produced, it should auction of -•■ ■•■ ' documents, be properly described as in a subpoena duces tecum. It should also be stated that the attendance of the witness or the production of the document is material. There should be annexed to the affidavit or memorandum, and verified by it, a copy of the written appointment by the arbitrator of the place of meeting and of the day or days (not exceeding two consecutively) on which the witness is required to attend, or the effect of the appointment should be concisely stated in the affidavit or memorandum itself (/O- h'te^ffiJst ^^ ^^^ (^o-mi^ in granting an order for the attendance of instance, wituesscs, acts in a ministerial rather than in a judicial (/i) Jarinan & Bythewood, Con- pendix of Forms for tie forms of vey. vol. 3, p. 59, 3rd cd. ; Archb. the affidavit and memorandum. Pract. 1229, 7tli ed. See the Ap- PKOCEEDINGS IN THE REFERENCE. 171 capacity, tlie rule is absolute in the first instance, when the Part li. order of reference has been made a rule of court (i). ch. iv.s.l. When the judge's order or rule of court for the attendance Serving the rule or of the witness is obtained, a cojiy of it, and also of the order, appointment, should be served upon the witness, a reason- able time before the day fixed for the attendance, the originals being at the same time shown to him, and a sum sutficient for his expenses and loss of time being paid or tendered to him at the same time. If the witness do not attend pursuant to the rule or order, he will be guilty of a contempt of court, and liable to an attachment {k). The court or a judge will grant a habeas corpus ad testiji- Habeas candum to bring up a prisoner to give evidence before an i^^^i-^ng up arbitrator on any reference within the provisions of the Prisoner as "" '- witness. statute 3 & 4 Will. IV. c. 42, s. 40, or before an arbitrator appointed under s. 5 of the Common Lavf Procedure Act, 1854, to state the facts in disjDute between the parties in a special case for the opinion of the court iV). The provisions of this statute do not apply to references Statute rot by order of a court of equity, and possibly according to courts of the dictum of Shadwell, V. C, not to any agreements of ^'^"^*^'' reference made orders of Chancery under the statute 9 & 10 Will. III. c. 15. For where application was made in Chancery to compel the attendance of some witnesses before an arbitrator to whom a suit had been referred by order of Chancery, the motion was refused by the Vice-Chancellor (Shadwell) on the ground that, considering the preamble, and looking at the whole Act together, it must, with the exception of one single isolated section, be taken as having reference to courts of law only; and the submissions to arbitration mentioned in sections 39, 40, 41, must be deemed to have reference solely to courts of law ; conse- cpiently, that the Court of Chancery, as a court of equity, could not interfere, especially as the subject of the particular reference was not one cognisable on the common law side of that court (w). These observations must be now taken (/) Guarantee Society & Le\T, Q. B. 10, S. 0. 4 E. & B. 591 ; In re, 1 D. & L. 907. ' Marsden v. Oveibiuy, 18 C. B. 34; (A-) Arciib. Pract. 1229, Vtli ed. S. C. 25 L. J. C. P. 200. (/) Graham y. Glover, 25 L. J. (?») HaU v. Ellis, 9 Sim. 530. 172 POWER AND DUTY BEFORE AWARD. Part II. snjjiject to tliG effect of the Common Law Procedure Act, ^^liXlfll: 1854, considered in tlie next division. Order of Tlic com't or a judge has no authority under this section not drawn ^0 make an order for the attendance of witnesses when the "P- submission is on a verdict taken at Nisi Prius, but no order of Nisi Prius has been drawn up (w) ; nor where it was by No consent deed, which did not contain a consent clause for making it submisldon. ^ i'^^^ of court (see, however, the Common Law Procedure Act, 1854, s. 7, below) ; and if an order had been made in such cases, the court would set it aside on the motion of a party to the submission, although the witnesses themselves did not make any application to have it rescinded {o). Statute not The above section aj^plies only to witnesses, and not to ''^P|.^^^^°*'^^ parties to the submission, when called upon to produce documents. Over the latter, however, when the submis- sion is made a rule of court, the court in general possesses authority independently of the statute, by virtue of the parties' own agreement in the submission to produce all documents (/>). Statute 16 Tlie statute 16 & 17 Vict. c. 30, s. 9, empowers a secretary & 17 Vict. „ , , • 1 , • X a i. 1 • • c. 30, s. 9, 01 state or any judge to issue a warrant " tor brmgmg up any prisoner or person confined in any gaol, prison, or place under any sentence or commitment for trial or otherwise (except under process in any civil action, suit, or proceed- ing), before any court, judge, justice, or other judicature to be examined as witness in any cause or matter, civil or criminal, de^Dending or to be inquired of, or to be determined in, before such court, judge, justice, or judicature." This provision, if liberally construed, may be held to apply to the domestic forum of an arbitrator, especially where he is appointed pursuant to any statute. 17&18 IV. Efed of the Common Law Procedure Act, 1854.] — 125," s." 7. "^^^^ i^^y lie^^e conveniently notice some sections of the Proceedings statute 17 & 18 Vict. c. 125, the Common Law Procedure before and , , ^at; a a • • power of Act, 1854. fSectioii 7 is as follows : — " Tlie proceedings arbitrator, («) Curtis V. Bligt, 3 Jixr. 1152. (p) Arbuckle V. Price, 4 Dowl. (o) Woodcroft & Jones, In re, 9 174. Dowl. 538. PROCEEDINGS IN THE REFERENCE. 173 ui)on any such arbitration as aforesaid, shall, except other- Part ii, wise directed hereby or by the submission or document ^"- ^^- ^- 1- authorizing the reference, be conducted in like manner, and subject to the same rules and enactments, as to the power of the arbitrator and of the court, the attendance of wit- nesses, the production of documents, enforcing or setting- aside the award, and otherwise, as upon a reference made by consent under a rule of court or judge's order." A very important question here arises, whether this Whether section applies to all the cases of arbitration mentioned silfn^be of previously in s. 5, i. e., to submissions by consent which are general or may be made rules of court, as well as to compulsory references under the Act, or whether it is limited in its application to the compulsory references mentioned in the preceding section. That depends upon the construction to be put upon the words " a?ii/ suc/i arbitration as aforesaid^^^ at the commencement of the section. This expression, where it occurs in s. 8, has been construed to extend to voluntary as well as to compulsory arbitrations (^) ; we are warranted also, it would seem, by the language of the judges, in putting the same enlarged interpretation on s. 7. Of the arbitration sections in the Act some are clearly limited in their application to compulsory references, others, on the contrary, apply undoubtedly to all submissions. To restrain the general effect of the words '' any such arbitra- tion as aforesaid" in s. 7, they must be read as meaning '' as last aforesaid ; " and yet if this interpretation be put on them, they would fairly apply only to compulsory references under s. 6, that is, to references directed by a judge on the trial of a cause by himself without a jury (r) (which will be rare), and would not govern the proceedings in compulsory references under s. 3 ordered by a judge before trial. K we examine the arbitration clauses of the Act, we find that s. 3 speaks of one class of compulsory arbitrations, and s. 5 speaks of all compulsory arbitrations, and of arbitrations by consent also ; and s. 6 deals with another class of compul- {(l) Morris v. Morris, 6 E. & B. Jur. N. S. 1296. 383, S. C. 25 L. J. Q. 13. 261 ; (r) Eobson v. Lees, 30 L. J. MHls V. Bow>'er's Society, 3 Kay Ex. 235, S. C. 6 H. & N. 258. & J. 66 ; Aitkin's Ai'bitration, 3 174 POWER AND DUTY BEFORE AWARD. Paut II. soiy arbitrations. Then follows s. 7, wliicli directs the c"-iv-s. 1. mode of procedure, and s. 8, wliicli gives tlic court a power of referring the award Lack, " in any such arbitration as aforesaid." It would seem, in short, if one might venture to say so, as if s. 5 and s. 6 had got misplaced in printing tlie Act, for if they were transposed all would be clear. A further indication of the intention of the legislature that s. 7 (and consequently s. 8 also) should be of general a]iplication, may be gathered from its terms, for it says, " the proceeding upon any such arbitration as aforesaid shall, except otherwise directed hereby or hy the submission or document authorizing the reference^ be conducted "as on a reference by rule of court." If the intention had been that the section was to be limited to compulsory arbitrations, the expression in italics would probably have been " by the rule or order of reference," but the use of the larger word, " submission " (which properly implies consent), and "document authorizing the reference" (a form of words applicable to compulsory references also), suggests the idea that the clause was introduced with the view of producing a general uniformity of practice. Nor can it be said that such a clause was necessary only with regard to comj)ulsory arbitrations ; unless the larger construction be adopted, references of indictments or by order of a court of Chancery, will still remain as they hitherto have been, without the pale of the beneficial provisions of the statute 3 & 4 Will. IV. c. 42, ss. 39, 40, 41. Some such clause is also needed to state what is to be the course of practice in case of sub- missions by agreement made rules of court under s. 17 of the Common Law Procedure Act, 1854, without any con- sent clause. Unless the courts put a liberal construction on the somewhat ambiguous words of the statute, and hold that s. 7 extends to all classes of arbitration mentioned in any of the previous sections, these submissions will be revocable the moment they are made, the court will have no power of enlarging the time for making the awards, there will be no ready means of enforcing the attendance of witnesses, nor will the arbitrator be able to administer an oath : for the provisions of the statute of 3 & 4 Will. lY. c. 42, only remedy the above-noted deficiencies in case of references of an action by rule of court, judge's order, order of Nisi Prius, PBOCEEDINGS IN THE REFERENCE. 175 or where the reference, if by agreement, contains a consent rARTit. clause for making it a rule of court. cu.iv.u.l. On a compulsory refercnco under s. 3 of the Common Duty of Law Procedure Act, 1854, the arbitrator has the same J^^^J'^J,";^!. powers and duties as on an ordinary reference, and must not sory refer- decline to investigate a charge of fraud arising out of a matter of account before him (s). V. Parties attendinq the arbitrator privileqed from arrest.'] Parties, "^ „ . . attorneys, — Tlic power of compelling the attendance of witnesses gives and wit- to the proceedings of an arbitrator, even though no action be °|'jJ,^gY'^^' pending, a judicial character, and protects the parties, the froman-est. attorneys, and the witnesses api)earing before him from arrest, eundo morando et redeundo, in the same manner as on a trial at law(^). But there is no protection in cases not within the statute, where the witness could not be com- pelled to attend. A voluntary attendance, however, when the attendance might be enforced, does not deprive him of his privilege (w). The protection extends during the adjournment of an How far • n -I 1 r« ii T iirivileged arbitration from one period to another ot the same day, or during when the adjournment is from day to day, but not when ^^J°J'J'^' many days are to elapse before the next meeting {oc). The arbitrator, however, has no power to discharge a Avit- ness or party arrested in his presence (y). VI. Examination of the 7citnesses on oath.'] — Most orders of wiien exa- reference require that the witnesses shall give their evidence o°'"if ^.e^ul^ on oath. When such is the case, the arbitrator is not at site. liberty to receive testimony given without that sanction, except by consent of the parties (z). By not persisting at (s) Insull V. Moogen, 27 L. J. («) Webb v. Taylor, 1 D. & L. C. P. 75; S. C. 3C. B. N. S.3o9; 676. see Hogg v. Bm-gess, 3 H. & N. {x) Spencer v. Newton, 6 A. & 293, S. C. 27 L. J. Ex. 318. E. 623 ;' Temple, Ex parte, 2 V. & {t) "Webb V. Taylor, 1 D. & L. B. 395 ; Kussell, Ex parte, 1 Rose, 676; Spence V. Stuart, 3 East, 89 ; 278. Eandal v. Gurney, 3 B & A. 252, {y) See Taylor on Evidence, S. C. 1 Cbitt. Rep. 679; Eicketts 861. V. Gm-ney, 7 Price, 699, S. C. 1 (z) Eidoat v. Pye, 1 B. & P. Chitt. Eep. 682 ; Moore Y. Booth, 91 ; Biggs v. HanseU, 16 C. B. 3 Yes. 350. 562. 176 POWER AND DUTY BEFORE AWARD. Takt II. tlic time of examination in requiring tliat the witness slioiild en. iv.s. 1. |3e sworn, a party will be taken to have assented to the omission of the oath. Even where the defendant objected that a witness tendered by the plaintiff could not be examined, as he had not been sworn before a judge, but the objection being overruled by the arbitrator, afterwards called witnesses in answer who gave their testimony unsworn, he was taken not only to have waived any right to object, but to have acquiesced in the course pursued {a). When dis- If the submission run, that the arbitrator " shall be at crctionary. i^j^cpf^^y^ {f i^q gliall think fit, to examine the parties and their respective witnesses on oath," it is left to the option of the arbitrator whether he will examine them on oath or not, although one of the parties require the witnesses to be sworn {b). When the submission was silent on the point, an arbitrator could not insist on the witnesses being sworn before the stat. 15 & 16 Vict. c. 99, s. 16, empowered him to admi- nister an oath to them (c). oidpra-jtice As before the modern statutes (f/) the arbitrator had no thTw'^i"-" power to administer an oath (e), it was usual, when a cause nesses. was referred at Nisi Prius, and the witnesses were in court. Before the to liavc them sworn in court. In other cases, when the sub- court or a j]QiggiQ^;i contained a clause for making it a rule of court, or judge. o ^ 7 when the reference was by a rule of court or judge's order, the witnesses were sworn before a judge at chambers or in court at Westminster (y). Not before Witncsscs wlio wcrc to givc viva voce evidence before an sionerfor arbitrator could not be sworn before a commissioner for davitl^^' ^^^^ii^o affidavits, even where the submission by judge's order provided for their being sworn before a judge or defoi^e a commissioner duhj authorized (y). Arbitrator The coursc abovc pointed out as the old practice may empowered (a) Allen v. Francis, 9 Jur. 691, {e) Street v. Rigby, 6 Ves. 815 ; S. C. 4 D. & L. 607, n.; Smith v. WolUngton v. M'Intosh, 2 Atk. Sparrow, 16 L. J. Q. B. 139, S. 0. 569 ; HaUhide v. Fenning, 2 Bro. 4 D. & L. 604. C. C. 336. {I) Smith V. Goff, 3 D. & L. 47. (/) Ai-chbold's Practice, vol. ii. (c) Caledonian Eailway Com- p. 1227, 7th ed. any V. Lockhart, 3 Mace --— - ._... (d) 3&4 W. IV. c. 4 14 & 15 Vict. c. 99, s. 16. pany v. Lockhart, 3 Macq. 808. {g) E. v. Hanks, 3 C. & P. 419 ; (d) 3 & 4 W. IV. c. 42, s. 41 ; R. y. Norman, 1 Wils. 7. PROCEEDINGS IN THE REFERENCE. 177 still be pursued ; though it is not necessary, since the stat. Part ii. 3 & 4 W. IV. c. 42, s. 41, which enacts, " that when in any c"- ^y- s- 1- rule or order of reference, or in any submission to arbitra- by stat. 3 tion containing an agreement that the submission shall be J 42^^3/41; made a rule of court, it shall be ordered or agreed that the witnesses upon such reference shall be examined upon oath, it shall be lawful for the arbitrator, or umpire, or any one arbitrator, and he or they are hereby authorized and re- quired to administer an oath to such witnesses, or to take their affirmation in cases where affirmation is allowed by law instead of oath ; and if upon such oath or affirmation any person making the same shall wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjmy, and shall be prosecuted and punished accordingly." The power given by this statute is not taken away by a Concurrent clause in the submission ordering that the witnesses shall be ^^°^f °^, ^ o _ court and sworn before a judge or commissioners ; for unless the sub- arbitrator. mission be distinctly restrictive, the arbitrator retains a con- current jurisdiction to administer the oath (/^). Tlie later statute, the 14 & 15 Vict. c. 99, s. 16, is in larger terms, and provides that " every court, judge, officer, com- missioner, arbitrator, or other person now or hereafter, having by law or by consent of parties authority to hear, receive, and examine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively." The more usual and convenient course now is, to have the witnesses sworn before the arbitrator at the meeting at which they attend to give their evidence. By the enactments of the Lands' Clauses Consolidation Swearing Act, 1845 (0, the Railways' Clauses Consolidation Act, ^^^^^l^l^^ 1845 {k), the Railway Companies' Arbitration Act, 1859 (l), Lands, and the Companies' Clauses Consolidation Act, 1845 (w), ^n^ qo^^' arbitrators or umpires appointed under those statutes " mav paries' " Clauses Acts. (A) HodsoU V. Wise, 4 M. & W. {k) 8 & 9 Vict. c. 20, s. 133. See 536, S. C. sub nomine Hodson Appendix of Statutes. V. Wilde, 7 Dowl. 15 ; James v. {I) 22 & 23 Vict. c. 59, s. IS. Attwood, 5 Bing. N. C. 628. See Appendix of Statutes. (0 8 & 9 Vict. 0. 18, s. 32. See (m) 8 & 9 Vict. c. 16, s. 132. See Appendix of Statutes. Appendix of Statutes. 178 rOWEK AND DUTY BEFORE AWARD. Pakt II. OH. IV. S. 1 lilviilencc by afliila- vits, wbea admissible. Arl)itrafor under County Courts Act. examine the parties or their witnesses on oath, and admi- nister the oaths necessary for that jjurpose." No particular form of words is necessary to make the oath good in hiw {71). In tlie case of an ordinary reference, if tlie submission provide " so that the witnesses he examined on oath," the award will be set aside if affidavits be read {0). It may here ^oroperly be noticed that when a cause or other matter is referred by rule of court to the master, he is authorized to receive affidavits only, and not viva voce evidence, unless the court specially empower him so to do (jo). Previous to the statute 14 & 15 Vict. c. 99, s. 16, an arbitrator appointed under s. 77 of the County Courts Act, 9 & 10 Vict. c. 95, had no authority to administer an oath to a witness. If he did, and the witness swore falsely before him, the latter could not be punished for perjury (q). Arbitrator should hear all the evidence. Evidence must be tendered. VII. Diity of the arlitrator to hear the evidence.'] — The arbi- trator should hear all the evidence material to the question which the parties choose to laj^ before him, as on a trial before a jury. It has been said that he may exercise some discretion as to the quantity of evidence he will hear (r) ; but declining to receive evidence on any matter is, under ordinary circum- stances, a delicate step to take, for the refusal to receive proof where proof is necessary is fatal to the award (s). In order that the above statement may not give rise to any misconception, it may here be proper to call attention to the wide distinction in principle between refusing to hear evidence on any particular matter, and rejecting a piece of evidence deemed by the arbitrator inadmissible, for we shall see further on, that the exercise of the arbitrator's judgment in receiving or rejecting evidence according to his opinion as to its admissibility is not open to review (t). In order to make out a case entitling the party to impeach (■;<) See tlie forms of oaths and affirmations in the Appendix of Eorms. (0) Banks v. Banks, 1 Gale, 46. (p) Noy V. Eeynolds, 4 N. & M. 483. ((/) E. Y. Hallett. 20 L. J. M. G. 197. (r) NickaUs v. Warren, 6 Q. B. 015 ; per Ld. Denman, 0. J. 618. (s) Johnstone v. Cheape, 5 Dow. 247. (0 See P. II. Oh. 4, s. 1, d. 12. PROCEEDINGS TN THE REFERENCE. 179 the award, the witnesses must be distinctly tendered to the Pakt ii. arbitrator for hearing. It is not enough to put an abstract °^-^'^-^- • proposition to an arbitrator, and upon his answer to decline to give evidence or prefer a claim.. The party should tender a specific case and specific evidence (w). Further on it will be shown how the direction of the How arbi- court may be obtained to set the arbitrator right on a point ^^^^^ "^^^ of law during the reference {a;). ^'S^t. If an arbitrator to ^vlioni an action for not repairing a Awarding house has been referred, make his award on a view of the j,ea^ring premises without calling the parties before him, the court evidence. Avill set aside the award; for, though the premises may almost tell their own tale, yet there may be other facts which ought to be inquired into, such as payments by the party, or excuses for not repairing (y). Still less can an award stand where the arbitrator hears Hearing one side only (z). A coachmaker to whom it was referred to ^^^^ ^ determine whether a phaeton had been built in accordance with a contract, after inspection of the phaeton refused to examine the witnesses tendered by the plaintiff, though he heard the defendant's witnesses. He was held bound to have received the testimony of the plaintiff's witnesses, however little he might have thought that their evidence would make him alter the opinion which he had formed on the inspection (a). Even when the refusal to hear one side is not wilful, the award will be bad. For where the arbitrator thought it necessary before decision to have the admission of the par- ties in writing that they had nothing further to offer, and that they desired a decision on the case as it stood, and was led to believe that a letter to that effect, signed by all the parties, was in the hands of the clerk to the submission (the reference being on a Scotch submission), and stated on the face of the award, that he had considered that letter, and it afterwards appeared that one of the parties had made no such admission, and had signed no such letter, and had material evidence still to produce, and on that account (u) Craven v. Craven, 7 Taunt. (y) Anon. 2 Chitt. Eep. 44. 644 ; Grazebrook v. Da\-is, 5 B. & (s) Braddick v. Thompson, 8 C. 535. East, 344. {x) See P. II. Ch. 4, s. 2, dd. (a) Phipps v. Ingram, 3 Dowl. 16, 17. 669. N % 180 POWER AND DUTY BEFORE AWARD. Part II. applied to the court to have that award set aside ; it was o"-'^'- s-i- held by the House of Lords (reversing the decision of the Court of Session) that the award ought not to stand, and Lord Eldon said, " By the great principles of eternal justice, which is prior to all these acts of sederunt, regu- lations, and proceedings of court, it is impossible that an award can stand where the arbitrator hears one party and refuses to hear the other " {d). When arbi- But when the submission recited that the arbitrator had refur tT^ ^GQ'n. appointed on account of his skill and knowledge of the hear evi- subjcct, and ouc of the parties brought before him a statement of certain facts which he alleged to be material, and offered to support it by proof, the House of Lords held the arbitrator justified in refusing to receive it, if, taking all the matters alleged to be facts into consideration, yet having his own local knowledge to guide him, and all the circumstances in his view, he felt that such facts would have no effect upon his determination (), the arbi- aud Com- trators, or the umpire, are emj^owered to call for the produc- panies' ^jq^ of any documeuts in the possession or power of either Acts. party, which he or they may think necessary for determining the question in dispute. Arbitrator IX. Duff/ of the arbitrator to receive no emdence unless receive pH- ^^otli parties are present.'] — An arbitrator can hardly be too vate state- scrupulous in guarding against the possibility of being a party. charged with not dealing equally with both parties. Neither side can be allowed to use any means of influencing his mind which are not known to, and capable of being met and resisted by, the other. As much as possible the arbitrator should decline to receive private communications from either litigant respecting the subject-matter of the reference. It is a prudent course to make a rule of handing over to the opponent all written statements sent to him by a party, and to take care that no kind of communication concerning the points under discussion be made to him, without giving information of it to the other side (c). Should Except in the few cases where exceptions are unavoid- witnesTin ^^^®' ^^ whcrc the arbitrator is justified in proceeding ex presence of parte, both sides must be heard, and each in the presence of ties. ^^^ tlie other. However immaterial the arbitrator may deem a point to be, he should be very careful not to examine a party or a witness upon it, except in the presence of the opponent. Trregiiiar If he err in this respect he exposes himself to the gravest tion^avoids c^nsure, and the smallest irregularity is often fatal to the award, award (r/). Where some witnesses attended before the arbitrator to give evidence on behalf of the defendant, and he, notwithstanding the parties, pursuant to his recommen- [y) 8 & 9 Vict. c. 18, s. 32. See Appendix of Statutes. Appendix of Statutes. (c) Harvey v. Shelton, 7 Beav. (z) 8 & 9 Vict. c. 20, s. 133. See 455, S. C. 13 L. J. Ch. 466. Appendix of Statute. (cjl) Harvey v. Shelton, 7 Beav. (a) 22 & 23 Vict. c. 59. See 455, S. C. 13 L. J. Ch. 466 ; Hick, Appendix of Statutes. In re, 8 Taunt, 694 ; Drew v. {b) 8 & 9 Vict. c. 16, s. 132. See Lebui'n, 2 Macq. 1. PROCEEDINGS IN THE REFERENCE. 185 dation, lias agreed to produce no more evidence, received Tart ii. the testimony of these witnesses, the parties and solicitors ch- ^v- s- !• on both sides being absent, Lord Eldon, C, set aside the award, on the ground that the evidence had been impro]3erly admitted, although the arbitrator swore that the evidence thus received had had no effect on his award ((?), the learned judge being of opinion that no court should i)ermit an arbi- trator to decide so delicate a matter, as whether a witness examined in the absence of one of the parties had an influence on him or not {/). But this rule has not always been strictly adhered to, for Held in in two instances it has been held by the Court of Common ^^^^ ^^ Pleas, that if the arbitrator re-examined a witness after the in fault. case on both sides was closed, and the plaintiff's attorney gone away, that circumstance would not induce the court to set aside the award, although the arbitrator admitted his judgment had been influenced by the answer, unless it appeared that the second examination of the witness was brought about by the management of the opposite party ((/). In a more recent case, however, the Court of Queen's Held ia Bench stated that the two cases in the Common Pleas were though not satisfactory to them, and that they would rather abide P^^-y "°* by the broad principle laid down by Lord Eldon in Walker V. Frobisher {k), and reiterated in Fether stone v. Cooper (i). In that case, one party had brought an action for obstruct- ing the waterway in front of then- houses, which faced on to the river Thames. The obstruction complained of con- sisted of a floating pier composed of barges. The other party indicted the former for a nuisance, alleging that an embankment in front of the house was an encroachment on the river. Both the action and indictment were, by difierent orders of reference, referred to the same arbitrator, with power to order the removal of obstructions, and to regulate the waterway. After the arbitrator had heard the case, and stated that he wanted nothing further from either party, he sent for the deputy water-bailiff, who had been examined as (e) Walker v. Frobisher, 6 Ves. & P. 175 ; Bignall v. Gale, 2 M. & 70. Gr. 830. See also Crossley v. Clay, (/) Fetherstone v. Cooper, 9 5 C. B. 581. Ves. 67. Ui) 6 Ves. 70. {g) Atkinson v. Abraham, 1 B. [i) 9 Ves. 67. 186 POWPIR AND DUTY BEFOllE AWARD. Part II. a witness, and questioned liim as to the means of giving c"- ly-s.l. convenient access to tlie sliore, supposing the embankment removed. No notice of this meeting was given to either side, but a special pleader was jiresent at it, who liad acted as an advocate for one of the parties in a former stage of the reference. One of the other party coming accidentally into the room, asked permission to remain also, but this the arbitrator refused, saying that he had the special pleader there to give him some information, by which, however, his opinion would not be biassed. Tlie court said, that though there was no imputation on the motives of the arbitrator, the irregularity of his conduct was fatal to the validity of the award ; that they could draw no line, but must abide by the general principle, that where by possibility the arbitrator's mind may have been biassed, the objection is fatal ; and that they must oppose all attempts to explain, by the bearing of particular parcels of the evi- dence, whether the inquiry had, or by any probability might have had, an eifect on the decision ; and as there was only one subject-matter, they set aside the award, both upon the indictment, as well as upon the action (k). On a later occasion, when the cases in the Common Pleas above referred to {l) were relied on in the Queen's Bench, Lord Denman, C. J., again intimated that that court did not accede to their authority, and that they had in prefer- ence adopted the rule laid down by Lord Eldon at the commencement of his career {m). Referring At the present day, if no personal misconduct, or evil foTirreeu intention, or gross disregard of proper rules be imputable to lar exami- the arbitrator, the courts will often refer back the award to witnesses. 1^™? notwithstanding he may have been guilty of some irregularities in the examination of the witnesses (n). Examining Thougli botli the parties are absent, and are thus in a wbTn both ii^easure on an equality, the course of examining a witness parties ab- in private cannot, under ordinary circumstances, be justi- ''"*• fied(^). (A;) Dobson v. Groves, 6 Q. B. 845. 037. {n) Auning y. Hartley, 27 L. {I) BignaU v. Gale, 2 M. & G. J. Ex. 145. 830 ; Atkinson v. Abraham, 1 B. (o) Plews v. Middletou, G Q. B. & P. 175. 815. (to) Plews V. Middleton, 6 Q. B. PROCEEDINGS IN THE REFERENCE. 187 Tlie Court of Chancery also has exhibited its adherence to Part ll. the rule laid down by Lord El don {p). For where the arbi- °"- '^^ ^' ^- trator summoned one of the parties before him to explain an Excammmg . „ o'le party apparent error in the accounts, without giving any notice of in private the meeting to the other side, even thougli the meeting took ||yy°" place in the presence of an accountant employed by both grounds. sides, the Master of the Rolls held that this was such a deviation from the course of justice, that the award could not be supported, although it did not appear that the party excluded had in fact been injured; and that the absent party was not precluded from objecting to this irregularity, by reason of his having himself been guilty of the impro- priety of privately communicating with the arbitrator, because it was not a question of mere private consideration between two adverse parties, but a matter concerning the due administration of justice {q). In a recent case in the House of Lords, Lord Cranworth, •L. C., said that he agreed with Lord Eldon, that the prin- ciples of universal justice required that the person who is to be prejudiced by the evidence ought to be present to hear it taken ; and that an arbitrator entirely misconceived his duty who took upon himself to hear evidence behind the back of the party interested in controverting it (r). Tliis course of conduct, so fatal to the award of examining No excep- one party in the absence of the other, seems to have pre- ^f mer- vailed as a practice amono: mercantile arbitrators (s). But *=^''^"t ^'■^'" / ^ \ ■' trator. the court, in the above instance, strongly repudiated the idea that a different course is allowable in the case of mer- cantile referees than is prescribed to all other arbitrators (f). . Notwithstanding the necessity of avoiding in general any- Inquiry thing like ex parte proceedings, it was decided by the House paity ad- of Lords, in one case, to be no objection to the award, that "^'*^ ^^ ^'"^' the arbitrator had, in the absence of one of the parties, items. called in the other, and asked him Avhether he admitted or disputed certain items in an account, and had merely taken his answer to that question («). {p) Fetherstone v. Cooper, 9 (s) Matson v. Trower, 1 Ey. & Ves. 6J. Moo. 17. (q) Harvey v. Shelton, 13 L. J. {t) Harvey v. Shelton, 7. Beav. Ch. 466, S. C. 7 Beav. 455. 455, S. C. 13 L. J. Ch. 466. (r) Drew v. Drew, H. L. March (w) Anderson v. Wallace, 3 C. & 8, 1855. F. 26. 188 POWER AND DUTY BEFORE AWARD. Part II. If Oil a reference it is arranged that tlie accounts should CH. lY. s. 1. jjg referred to an accountant, and that either party is to be Private at liberty to examine the books in his presence, it does not to'acTOUD^t^- seem objectionable for either party, when attending sepa- ant' rately before the accountant, to give explanations respecting the items, for the accountant is not the judge, but only an assistant of the arbitrator on the occasion {x). But where an accountant was by the submission to be employed to examine and report to the arbitrator, on the books, accounts, and works, and the accountant received explanations from one party as to items in the accounts in the absence of the other. Lord Justice Turner said that that was a course of proceeding which the Court of Chancery could not possibly sanction. He also reprehended the accountant for assuming the authority of excluding from a meeting before him the son of one of the parties whom the father wished to attend (y). If the plaintiff's agent for conducting the reference assent to the defendant calling on the arbitrator alone, and pro- ducing his books before him, the plaintiff cannot object to the award on the ground of the private meeting between the defendant and the arbitrator {z). Private Thougli we have seen that in general serious objections noThb^' ™^y ^^ made to the proceedings, if a meeting takes place of done in the which one of the parties has no notice, yet if at a meeting so held, nothing is done except to discuss the question of adjournment, and the meeting is in fact adjourned without the subjects of the reference being entered upon, the court, it seems, will not set aside the award on the mere ground of the party having had no notice of such a meeting being held {a). Parties s. Waiving objection to irregular conduct of the arbitrator.'] kre^'uia-^^ — Thougli the arbitrator may have been guilty of some irre- rity, gularity in the course of the reference, it will not vitiate the award, if the conduct of the parties be such, as shows that [x) Harvey v. Shelton, 7 Beav. (z) Hamilton v. Bankin, 3 Be 455. Gex & S. 782. [y) Haigh v. Haigh, 31 L. J. {a) Moiphett, In re, 2 D. & L. Cli. 420. 967. rnOCEEDINGS IN THE REFERENCE. 189 tlicy waive any objection on account of it ; but tlie waiver Part II. must be clearly made out (d). ""•^^•"•^- If by the terms of t'le submission the arbitrators are to improper appoint an umpire previous to entering on a consideration of ^^I'^^^'f the mattervS referred, and tliey enlarge tlic time for making time, the award before they appoint an umpire, and the parties, with knowledge of these facts, attend a meeting before the arbitrators, they will be taken to have waived the objection as to the irregular enlargement of the time (/ counsel as attorney to prepare it tor them. The circumstance of the to framing award being prepared even by the solicitor of the defendant ^^^'■^* in i\\e cause referred, although indelicate, was held by Lord Eldon to be no ground for setting the award aside {b). The following cases seem to show that the propositions Arbitrator broadly stated in some of the cases recently cited, that an couS's arbitrator may take and adopt as his own the oi-)inion of opinion on another, will authorize an arbitrator to take the advice of counsel or other professional adviser on points of law affect- ing not only the form but the substance of the aw^ard. One of three arbitrators had taken the opinion of counsel on a case wliicli he had drawn uj), stating the circumstances respecting which the arbitrators differed. A motion was made in the Court of Common Pleas to set the award aside on the ground that the arbitrator had taken the opinion of counsel upon an incorrect statement of facts against the Where ease consent of one of the parties to the reference, and had acted correctly* on that opinion : the courts said, if the facts had been so, the award would have been impeachable upon ground so clear and manifest, that it was sufficient barely to state the proposition.* But as the affidavit of that arbitrator stated in answer that he had made up his own opinion on the point in dispute before he took the opinion of counsel, and that such opinion was taken for no other purpose than to guide his determination whether to accede or not to the request of a fellow-arbitrator that the facts relating to the disputed points should be set out on the award, having intended, in case such opinion differed from his own, to accede to that request, and to state the facts on the award, and that the case submitted by him to counsel contained a fair and true statement of the circumstances, the court held the objection satisfactorily removed ( 1. 1. « i iiigsame the award and umpn-age, some of the older cases seem to ai'bitrators ^^^^w that the appointment of the umpire is absolutely void, and um- and that he cannot make any umpirage even if the arbi- ^'^^" trators make no award. Other cases seem to qualify this opinion, by holding that the umpirage might be good when the arbitrators had disagreed, and declared they would not intermeddle any more, or where one of the arbitrators had died, and so rendered it impossible for them to agree in an award (z). The com-ts, in the first class of cases, seem to have appre- hended a difficulty in allowing the umpire to have in any case a concurrent jurisdiction with the arbitrators, on the {v) Com. Dig. Arb. F. ; Win- 154. teringliam v. Eobertson, 27 L. J. (2) Coppin v. Hm-nard, 2 Saund. Ex. 301. 129, and see notes to same; S. C. [x) Lumley v. Hutton, EoUe 1 Lev. 285 ; Eaym. Eep. 187 ; Ab. Alb. p. 1. Mtcbel v. Harris, 1 Salk. 71; {y) Smailes v. Wright, 3 M. & Anon. 2 Vern. 100 ; Barber v. S. 559 ; Sprigens v. Nash, 5 M. Giles, EoUe Ab. Aib. P. 2 ; Bar- & S. 193 ; Dare v. Chase, 2 Show. nard v. King, Vin. Ab. Arb. P. 6. 164 ; Cowel v. Waller, 2 Barnard, THE UMPIRE. 225 groimd of the confusion that would be created if there -were paut ii. two awards {a), and therefore held the appointment of the ch. ly. a. 4. umpire void when the same day was limited for the award and umi)irage. That diihculty will be removed, however, if the courts, as they probably would, should hold in cases where only one day is limited, as they hold in cases where the umph-e has a fiu-ther day, that the umpirage made after disagreement of the arbitrators shall stand good, unless the arbitrators subsequently agree in making an award within the time, in which case their decision is that which is to conclude the parties. Where there is only one limit, and t/ie arbif7mtors are to When arbi- ckoose the umpire if they cannot agree, it is held in manv *J'^*°''^ *° ■' -^^ . choose um- old cases, that by choosing an umpire they renounce their pire, and power and cannot again resume it, so that if after the forarLi^' appointment of the umpire they agree and make an award, trators and that award is null, and will not invalidate the nmpirage previously made {b). We have already seen that where a further day is given to the umpire, the arbitrators do not renounce their autho- rity by appointing an umpire, but are recommended to select one in the first instance ; it is probable, therefore, that the same uniform principle would now be extended to cases where one day only is limited for both the award and um- pirage, and that the umpire's decision would be held good, and subject to becoming nugatory in case the arbitrators after his appointment made an award within the limited time (c). When the umpire's power is to commence on the disagree- what a dis- ment of the arbitrators, to justify the umpire in interferino- agreement , , T/v. 1 , ;, -, . Oofthearbi- there must be such a ditierence between the arbitrators as trators. renders their agreement in an award hopeless (<^). Whether there has been such an essential difference, is a question of fact, to be decided sometimes by a jury, sometimes by the court, according to the nature of the proceedings. (a) Sraailes v. Wriglit, 3 M. & Danes v. Monsay, Vin. Ab. p. 18, S. 559 ; see last note. p. 97. {h) Twisleton v. Travers, 2 Keb. (c) See Coppin v. Kiirnard, 2 15, S. C. 1 Lev. 174; Dunavan v. Saund. 133, b. note. MascaU, 1 Lev. 302 ; Fyall v. {d) Cudliff v. Walters, 2 Moo. Varier, EoUe Ab. Arb. p. 3 ; & Eob. 232. 226 POWER AND DUTY BEFORE AWARD. Part II. The word " disagreement," however, must in general be CH- itv- s. 4. construed to mean non-agreement (e). Wliere the arbitrators intimate to the umpire that there is no probability of their making any award (J'), or where one of them, after some meetings, declines to proceed further in the case, or where one of the arbitrators insists on further evidence being pro- duced, which the other refuses to allow Q/), these states of things may amount to such a disagreement, or non-agree- ment, as to call the umpire's powers into exercise, and where no time has been limited, finally to determine the arbitrators' authority (h). And for this eifect it is not necessary that the arbitrators should have heard the whole of the evidence, and then differ. If a sufficient disagreement take place while the evidence is only part heard, the umpire's authority will commence {i). The circumstance of no award liaving been made by the arbitrator, and of the award having in fact been made by the umpire, will, it seems probable, in the absence of any- thing to show that the arbitrators are still considering the case, be taken by the court as prima facie information that the arbitrators did not agree {k). Umpire The umpire's authority may for some pm^poses commence to'eniTin'e bcforc any disagreement of the arbitrators. Where the sub- time before mission gives both the arbitrator and the umpire power of ment. enlarging the time, and the arbitrators enlarge their time beyond the original limit fixed for the umpire making his umpii-age, the umpire may, within his original period, enlarge his time further, although there has been no dis- agreement between the arbitrators before he makes his enlargement; and it seems necessary that he should take this step, in order to preserve his authority alive (/). Umpire uo jf ^]^q arbitrators within the time make an award respect- authority . _ . when arbi- ing part of the matters submitted to them, the mnpire can- awird^on ^^"^^J unless Specially authorized, decide on the rest, because part. (e) Doddington v. Bailward, 7 & Ad. 488. Dowl. 640 ; Middleton v. Cham- (i) Tunno v. Bird, In re, 5 B. bers, Vin. Ab. Arb. p. 17. & Ad. 488. (/) Doddington v. Bailward, (/,;) Doddington v. Bailward, 7 7 Dowl. 640. Dowl. 640 ; Com. Dig. Aib. F. (g) Ciidliff V. Walters, 2 Moo. (I) Doddington v. Bailward, 7 & Bob. 232. Dowl. 640. (/i) Tunno v. Bird, In re, 5 B. THE UMPIRE. 227 he is in general only empowered to act in case the arbitrators Part ii. make no award at all before a certain day, and then he is to ch. iv. s. 4. decide on all the matters {7?i). Where the miipire is to decide on those matters only on Umpire's which the arbitrators disagree, his enlargement of time does ment^not not enure to give the arbitrators further time to make ^""5° ^°^ their award on the matters not referred by them to the umpire (u). As the arbitrators must make their award within the time Duration of limited to them, so, when the submission fixes a limit, the au'thority. umpire must make his umpirage within the time limited to him((?). But the com-t or a iudo-e can enlaro-e the time of ^"'^^f°" ^ ^ JO o ujgut by the umpire under the statute 3 & 4 W. IV. c. 42, s. 39 (7?). court. In the case of references under the provisions of the Duration Lands' Clauses Consolidation Act, 1845 (q), the enactments Lands respecting the commencement and duration of the umpire's ^'''^"^^?, \ . , r, IT . ' Consolida- autliority are the lollowmg. tiou Act. Section 23 provides, " If when the matter shall have been referred to arbitration, the arbitrators or their imipire shall for three months have failed to make their or his award, or if no final award shall be made, the question of such com- pensation shall be settled by the verdict of a jmy as herein- after provided." Section 27 enacts, that " where more than one arbitrator shall have been appointed, such arbitrators shall, before they enter upon the matters referred to them, nominate and appoint by v,-riting under thcii" hands, an umpire, to decide on any such matters on which they shall differ, or which shall be referred to him under the provisions of this or of the special Act," &c. And section 31 directs, that " if where more than one arbitrator shall have been aj)pointed, and where neither of them shall refuse or neglect to act as aforesaid, such arbi- trators shall fail to make their award within twenty-one days after the day on which the last of such arbitrators shall (;») EoUe Ab. xirb. p. 7, 8; Year A. & E. 767. Book, 39 Hen. VI. 11. {j:)) Boweu v. Williams, 3 Ex. (») Lang V. Bro-wn, H. L. May 93 ; Johnson v. Collie, 24 L, J. Q. 8, 1855. B. 6-4, and see ante, enlarging tli {(>) Trew V. Bm-ton, 1 C. & M. time, p. 141. 533 ; Salkeld v. Slater, In re, 12 {q) 8 & 9 Vict. c. 18. Q 2 228 POWER AND DUTY BEFORE AWAItD. Part II. havc 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 be determined by the umpire to be appointed as afore- said." Commence- It IS plain, from these sections, that if the arbitrators do umpire's* ^ ^0^ enlarge the time, or enlarge it to a period less than authority three months from the date of the appointment of the last of Act. the two arbitrators, the authority of the umpire will com- mence, in the first case after the expiration of twenty-one days from the date of such appointment, and in the second case from tlie expiration of the enlarged period. Whether Whether the words in section 27, that the arbitrators are proceed' at^ to appoint an umpire to decide on any such matters " on oaceifar- -^yliich they shall differ," &c., would authorize the umpire in bitrators -^ • i i • /• i i-^ differ. proccedmg at once with the case, supposmg a imai diiier- ence and disagreement took place between the arbitrators within the twenty-one days, or within such enlarged period, or whether the apparent effect of these words is controlled by the terms of section 31, has not yet received a judicial interpretation. There seems to be nothing in the language of section 31 which would prevent the com*t from deciding that in case of an absolute disagreement at any time between the arbitra- tors, the urdpire might, if called upon, proceed to hear the case and make his award immediately, although the period allowed to the arbitrators had not expu'ed, and that his award should be valid, unless the arbitrators within their allotted period should afterwards agree and make an award. The advantage of such a construction of the statute would be, that it would be in accordance with the rule laid down for umpires in other cases, as lilTs been shown in the pages immediately preceding. It rhight also in many cases pre- vent a delay of several months in obtaining a settlement of the question in dispute. The chance of the arbitrators agreeing in an award, after having once absolutely difiered, and after the umpire had been called in, is practically very remote. From what There is a difficulty also respecting the duration of the three ' umpire's authority under this Act. By section 23 the arbi- months for trators or the umpire are to make the award within three THE UMPIRE. 229 montlis. But from wluit date tluit period of three months is Part II. to be computed when the umpire is called upon to act, was ^i^-s- 4. at one time a matter of doubt. the umpire In a case in the Bail Court, Patteson, J., set an award puted°°°^' under this Act aside, on the ground that being made more than three months after the a]3pointment of the lunpire, it was made too late (r). Later cases, however, put a different construction on the To be com- Act. And it has since been determined that the proper ^"f '^/'^^"^ construction of the statute is, that the umpire has three voiving oa months to himself in which to make his award, to be com- ""^^^^^®- puted (when there is no enlargement of time by the arbi- trators) from the expiration of the twenty-one days after the apiDointment of the second arbitrator, and when there is an enlargement, from the end of such enlarged time ; j)rovided, that as the arbitrators have no authority to enlarge to any time later than three months after the appointment of the second arbitrator, the umpire's authority will at the latest commence from the end of such first three months, and con- tinue then for three months longer {s). Under the Railway Companies' Arbitration Act, 1859 (t), Railway by s. 17, if the arbitrators " do not within such a time as the Arbitration companies agree on, or failing such agreement, within thii'ty Act, 1869. days next after the reference is made to the arbitrators agree on their award thereon, then the matters referred to them, or such of those matters as are not then determined shall stand referred to their umpire ;" and by s. 22, the umpire's award, if made within such time as the companies agree on, or failing such agreement, within thirty days after the matters in difference are referred to him, shall be good. But s. 23 adds, " provided always, that (except where and as the com- panies otherwise agree) th6 umpire from time to time, by writing under his hand, may extend the period within which his award is to be made ; and if it be made, and ready to be delivered within the extended time, it shall be as valid and effectual as if made within the prescribed period." (r) Ward v. the Great North of Ch. 161, S. C. 12 Jm-. 46 ; 2 Phil. England Eailway Comp., M. T. 475; Bradshaw's Ai'bitration, 12 1847. Q. B. 562. (s) Skerratt v. North Stafford- {t) 22 & 23 Vict. c. 59. See shire Eailway Company, 17 L. J. Appendix of Statutes. 230 POWEK AN]) DUTY BEFORE AWARD. Part II. If the arbitrators should make an award clearly bad, as, CH. lY. 3. 4. for instance, without hearing evidence, it is possible that the courts would hold that the umpire might make an award (u). Limit of Under the statute which provides for determining by arbi- time on tration disputes between the Postmaster- General and Rail- references ^^y Companies respecting the carriage of the mails, each the Post- successive umpire has twenty-eight days from the time the Railway "^ matter shall be referred to him, allowed for making his Companies, award (^). Umpire v. Power and duty of the umpire.'] — Tlie umpire, when powers and Called upou to act, is in general invested with the same duties as powers as the arbitrators, and bound by the same rules, and * has to perform the same duties. He must pursue the same regular course with respect to the conduct of the case, as if Must re- he were commencing a new case as arbitrator. He must hear case, examine sucli witnesses as the parties choose to produce, and as to such points as they choose to raise, although the same witnesses have been examined to the same points before the arbitrators. He may not take the evidence, or any part of it, from the notes of the arbitrators, unless there be a special provision in the submission, or a clear agree- ment between the parties permitting such a course (y). Umpire In order to save the delay and expense of two investiga- arbitrators^ tious of evidence, it is often arranged that the umpire shall sit with the arbitrators and hear the evidence once for all {z). If without any special arrangement the umpire sit with the arbitrators and hear the evidence, he should take care not to interfere with the arbitrators when they discuss the case together and try to come to an agreement (a). Agreement Even where there was some evidence of an original con- brmade°on ^®^^ ^1 ^ P^^'^'J ^^^^^ the umpire should make his award on arbitrator's the arbitrator's notes without re-hearing the witnesses, but his attorney, who conducted the case for him, afterwards («) See E. v. Grant, 14 Q. B. shaU, 1 H. «£ W. 209 ; Matson v. 43. Trower, By. & M. 17. (a;) 1 & 2 \ict. c. 98, ss. 16, 18. (z) Winteringliam v. Eobertson, See Appendix of Statutes. 27 L. J. Ex. 301. {y) SalkelcT v. Slater, 12 A. & (a) Flag Lane Cliapol v. Mayor E. 767 ; Jenkins, In re, 1 Dowl. of Sunderland, 5 Jur. N. S. 894. N. S. 276 ; "Waltonshaw v. Mar- THE UMPIRE. 231 demanded that the umpire slioidd receive oral testimony, Pai^t n. and tlie latter refused to receive any viva voce evidence unless — ^ — '-^—^ it were new evidence, or on a new matter, the court set the award aside (5). But in another instance, where it was expressly agreed by parol that the evidence should be taken down by a clerk and signed by the arbitrators, and that the umpire should be at liberty to make his award on the notes, and the umpire though called ui)on refused to hear evidence, Erie, J., said, that as the parties could not be put in the same position as before the agreement, and as extra expense had been thereby incurred, he thought the party was not at liberty to repudiate his agreement, and sustained the award {c). The objection to the umpire proceeding without re-hearing Waiving the witnesses may be waived by the conduct of the parties, to not'°'^ but the waiver must be clearly made out, or the award will re-bearing be set aside {(I). Where a party knew that the case had gone before the Party not umpire, and that he had been furnished by the arbitrators umphe to with the notes of the evidence and a statement of the claims \^^^ ^^^' dence. of the parties, and that the umpire had already said that if he required further information he would call a meeting, the court refused to set aside the award of the umpire, on the objection that it was made without hearing evidence, because under the circumstances it was the duty of the party, if he had thought it necessary, to have called on the umpire to hear evidence, and then his declining might have been a ground of objection. But that as the party had not done so, but had taken the chance of the award, he could not afterwards come to the court to impeach the award on this ground (e). On a reference under the Lands' Clauses Consolidation Jmpjre un- Act, a meeting was held on the 4th of November before Lands the two arbitrators and the umpire (the latter sitting with ^^^^^^^ them to hear the evidence by agreement). Another meeting was appointed and held before the claimant's arbitrator and [h) Salkeld & Slater, In re, 12 A. & E. 767 ;' Jenkins, In re, 1 A. & E. 767. Dowl. N. S. 276. (c) Fii-th V. Hewlett, 19 L. J. {e) Tiinno & Bii'd, In re, 5 B. Q. B. 169. & Ad. 488; Hall v. Lawrence, 4 (d) Salkeld & Slater, In re, 12 T. R. 589. 232 POWER AND DUTY BEFORE AWARD. Pakt II. the umpire, and a witness was then examined, notwith- CH. IV. 8. 4. standing tlie absence of the other arbitrator and the protest of the company's solicitor. The arbitrators let their time expire and made no award. Without any further meeting, or any notice to the company, the umpire afterwards made an award. A motion on the part of the company was made in tlie following term to set aside the award on the ground of the irregularity of the proceedings. The company's solicitor swore that he had had evidence to produce on the part of the company. V. Ch. Knight Bruce set the award aside, holding that the umpire had acted improperly in deciding the case without either hearing the case de novo, or at least taking it up from the meeting of the 4th of November, and giving the company an opportunity of producing their evi- dence (/"). On appeal to the Lord Chancellor, this decision was confirmed. Umpire In general, unless the submission contains words intimat- must award . ■ , ,• on all lug a contrary intention, though the arbitrators agree on matters, gome matters, and the case is referred to the umpire because they disagree on others, the umpire must not confine his award to the latter, but must award equally on all as if the arbi- trators had disagreed on all. His judgment is in no way fettered by theirs (^). award by -^^ award in which the umpire and arbitrators join, and arbitrators in which the arbitrators decide some points, but reciting pire. that they cannot agree on another point, refer that to the umpire who decides it, is bad (k). But if, after their autho- rity has expired, the arbitrators join with the umpire in making the mnpirage, the decision will be held valid as that of the umpu'e alone ; for it is no more than if mere strangers join in the umpirage, and that cannot vitiate it (e). frbftrators '^^® Umpire sliould charge as costs of his umpirage the costs of fees and charges due to the two arbitrators, for they may be umpirage, ^^^q^ ^^^^^ ^f ^-^^ umpirage (k). (/) Hawley v. North Stafford- 612, sMre Eailway Company, 12 Jur. (i) Beck v. Sargent, 4 Taunt. 389, S. 0. 2 De Gex & S. 33. 232 ; Soulsbv v. Hodgson, 3 Burr. (g) EoU. Ab. Arb. p. 7 ; Wicks 1474 ; Anon." 1 Bulst. 184. V. Cox, 11 Jur. 542. See d. 1 of (k) Ellison v. Ackroyd, 20 L. J. this section. Q,. B. 193. (A) ToUit v. Saunders, 9 Price, CHAPTER V. THE DUTY OF THE AEBITEATOR IN FOEMING HIS AWAED. It having been attempted in the preceding chapters of Part il, this part to set forth at large the qualifications of the arhi- ^h. y. trator, the various powers with which he is invested to Scope aud facilitate his investigation into the matters before him, and the fifth the course which he ought to take in conducting the inquiry chapter. from its commencement to its close, the natural division of the subject brings us now to a consideration of that which is the ultimate object of every reference, the award or instrument embodying the decision of the arbitrator on the matters submitted. This chapter, therefore, treats generally of the award, and ^ of those broad principles of decision, in accordance with which the arbitrator should both frame his judgment in his own mind, and express it in language to the parties. The first section is confined to the formal requisites of the award, showing the mode in which it is to be made, published, and delivered ; and the second contains general observations about the form of the award, and how it should be drawn up. But the five next sections each announce a principle, disobedience to which will either wholly or partially invali- date the award. The first of these, section three, announces, that the award must be one entire instrument. Section fom* proclaims the leading principle of all, into which, indeed, many of the others may be resolved, that the award must be final, that is, a complete adjudication on every matter intended by the parties to be determined ; its various divisions illustrate the effect of leaving a matter 234 HOW TO AWARD. Part II. undecided, and of the presumption of the courts in favour of c "- V- s- !• the validity of the award, and disclose the consequences of an imperfect decision, or of a reservation of a point for future judgment. Section five declares the next most comprehensive prin- ciple, namely, that the award must be certain. Section six shows that the award must be mutual ; and section seven, that it must direct only what is possible, and that its provisions must be consistent with each other. The eighth section examines into the effect of a mistake on the part of the arbitrator on the validity of the award, whether that mistake proceed from an erroneous judgment on a point of fact, or arise merely from accident, and whether it be apparent on the face of the award or not. It investi- gates, also, how far the extrinsic statements of the arbitrator respecting the grounds of his award will be received to impeach it when apparently valid, and points out the course to be pursued by him when he is empowered to raise a point of law on the face of his award for the opinion of the court. The ninth or concluding section makes manifest that not- withstanding there may have been some violation of the principles above enmnerated, some adjudication on matters ' not before the arbitrator, or some directions which it ex- ceeded the arbitrator's power to impose, the whole award will not be rendered null, if that portion which is open to objection can properly be separated from the rest. SECTION I. OF THE FORMAL REQUISITES OF THE AWARD. The award I. Making the award.'\ — In making his award, the arbi- thrsubmir. ^I'ator must follow the directions of the submission in point sion. of form ; for whenever a special authority is created, those who give it have a right to annex to it their own terms, with which he on whom it is conferred must comply ; therefore v/hen the submission provides that the award be in writing under the hand of the arbitrator, the award to be valid must FORMAL REQUISITES OF AWARD. 235 be under the arbitrator's hand as well as in wi'iting {a) ; Part II. where it is to be in writing", under the hand and seal of the c"- v- s- !» arbitrator, an award in writing only is insufficient {b). An award in writing, and under seal, was in an old case held invalid, when the submission required that it should be indented, as well as in writing and sealed (c) ; but the objec- tion that the award was not indented has on a later occasion been scouted by the court {(I). If the submission be silent as to form, the arbitrator is at liberty to make his award with such formalities as he pleases. Unless prescribed by the submission, the award need not Parol necessarily be in writing, for a verbal award is perfectly 'yaUd, valid (/). Even where the submission required the award to be made and ready to be delivered l)y a certain day, a parol award was held good, for a parol award is capable of oral delivery {g). But unless there be some specitied reason to the contrary. But objec- it is advisable for the arbitrator always to make his award in ^^o'^*'^^®- wi'iting, for a parol award is ojjen to many serious objections, among the most obvious of which are, that it depends on the accuracy of man's memory, that it is doubtful whether the courts would enforce it by attachment, and that it would probably, in many cases, be ineffectual where it concerned interests in land. In general, but subject of course to the particular provi- Signing sions of the submission, the arbitrator makes his award in ^^^^ writing, and signs his name at the foot. It is customary to have an attesting witness who may prove the execution. We have already seen that where there are several arbi- Joint exe- trators all should execute at the same time and in presence an th^ ^ of each other (Jl). arbitrators. («) Everard v. Paterson, 6 v. Wood, Barnes, 54. Taunt. 625. {(j) Gates v. Bromil, 1 Salk. [h) Henderson V. Williamson, 1 75, S. C. 6 Mod. 160; Cocks v. Strange, 116; Thaire v. Thake, Macclesfield, Dyer, 218, b.; Blun- Palm. 109, 112, S. C. 2 Eol. Eep. deU v. Brettargh, 17 Ves. 232, 243. 240. (c) Hinton v. Cray, 3 Keb. (A) Wade v. Bowling, 4 E. & B. *512. 44 ; Stalwortb v. Inns, 2D. & L. {d) GatHffe v. Dunn, Barnes, 428; Anning v. Hartley, 27 L. J. 55. Ex. 145. See ante, P. II. cb. 4, (/) Hanson v.Liversedge,Cartb. e. 3, d. 3, p. 206. Duty of Joint 156, S. C. 2 Vent. 242 ; Bawling Ai-bitrators. 236 now TO AWAKD. Part II. It is liiglilj objectionable for an arbitrator, even after lie °°- '^- ^ ^- has fully made up bis mind on all points, to employ, to draw Award ^p f]jQ award in a formal sliape, an attorney who has acted (hawii up ••IP T i.y attorney for ouc 01 the partics lu the reference. It may even en- oi party, clanger the award being set aside (^). Practice, In jDracticc, it is usual for the arbitrator to make his award how award ^^ paper stamped with a pro]3er award stamp. This he com- monly delivers to the successful party. For the unsuccessful party he has a copy made on unstamped paper, which he does not usually sign or execute as an award {k). Lands, &c., By the provisions of the Lands' Clauses Consolidation Clauses j^^^^ ^g^^ ^^^ ^^^ j.-^q Railways' Clauses Consolidation Act, 1845 {m), the award must be in writing and the Declaration declaration made and subscribed by the arbitrator, before tor^annfxed entering on the reference, is to be annexed to the award to award, when made.. The penalty of omitting to annex the declara- tion is not stated. The 37th section of the former Act, and Award not the 137th scctiou of the latter Act, enact, that " no award void for jjiade with respect to any question referred to arbitration form. under the provisions of this or the special Act, shall be set aside for irregularity or error in matter of form." A like provision is contained in the Railway Comjaanies' Arbitra- Companies tion Act, 1859, the 22 & 23 Vict. c. 59, s. 24. Under this Act the award must arbitrators or umpire. Act'*i859^ Act the award must be in wiiting under the hands of the ^ , ,. , . II. Publishing the award.'] — The submission generally pro- tlie award", vides that the arbitrator shall make and publish his award in vrriting, ready to be delivered to the parties at their request on or before a certain day. Hence, beside making, the arbitrator must publish his award. Awaid So far as the validity of the award is affected, it will in published g-Qj^ej-al be considered as " published " as soon as the arbi- wben exe- o „ . cuted. trator has done some act whereby he become functus officio, [i) Underwood v. Th.e Bedford of the award, and Cambridge Eailway Com- {I) 8 & 9 Vict. c. 18, s. 33. See pany, 11 C. B. N. S. 442, S. C. Appendix of Statutes. 31 L. J. C. P. 10 ; Fetherstone v. (m) 8 & 9 Vict. c. 20, s. 134. Cooper, 9 Ves. 67. See Appendix of Statutes. {k) See below as to tlie delivery FORMAL REQUISITES OF AWARD. 237 and has declared liis final mind, and can no longer change it, Part it. that is, as soon as he has made a complete award {?i). "'" ^' ^' ' When the award was executed by the arbitrator in the presence of witnesses who attested it, and to whom it was read over at the time, and the plaintiff died on the following morning, but before he had notice that the award was ready, the court held that it was made and published in the life- time of the plaintiff, and could not be set aside as published after his death ; though two hours after the plaintitTs death, the plaintiff's attorney received a note from the arbitrator, stating he was about to declare his award, and desiring him to attend at his office the same evening (o). If there be several arbitrators, it will not, it seems, be published until it is signed by the requisite number of arbi- trators (j»;)). Where the submission provided that the award should be Publishing made and published "utrique partium," by a certain day, ties. (the i^arties being the plaintiff on one side and several de- fendants on the other,) though the award was made and published to the plaintiff and one of the defendants, it was held that the plaintiff could not recover on the award as he had not published it to all of the defendants (q). It may be important to mention, that so far as regards the rule which regulates the time for an application to set aside an award, the publication, from which the time begins to run, is not in any case the publishing of the award itself, but the publication of it to the parties (r). Therefore, as soon as the arbitrator has executed the award, he should give notice of it to the parties that it is made and ready to be delivered. III. Delivering the award.'] — Tlie award is usually to be Award . ,-1 -TTTi 'J. • 1 ready to be ready to be delivered by a certam day. When it is made delivered, it is ready to be delivered, and the court will so intend it, especially where it is to be ready to be delivered on («) Henfree v. Bromley, 6 East, {q) Hungate v. Mease, Cro. Eliz. 309; Macarthiu-v. Campbell, oB. 885, S. C. 5 Eep. 103; F. Moore, & Ad. 518. 642. (o) Brooke v. MitciieU, 6 M. & (r) MacartlniT v. Campbell, 5 W. 473. B. & Ad. 518 ; Brooke v. Mitchell, (p) Little v. Newton, 2 M. & G. 6 M. & W. 473 ; Moore v. Darley, 351. 10. B. 445. 238 HOW TO AWARD. Part II. request (s). It need not be actually delivered by the °°- V- S' 1- appointed day in order to its validity, if it be ready to be delivered by that day (t). A refusal by the arbitrators to deliver an award to the defendant who made his request for it on the last day limited, on the ground that it had not been stamped, has been held a good defence to an action on the bond for non-performance of the award, as it showed that the award was not ready to be delivered within the appointed time (?/). When dell- jf ^^q submission, instead of i)roviding that the award be savy. ready to be delivered, direct that it be delivered to the parties by a certain day, in order to be valid, the award must be actually delivered by the day. When the submis- sion enjoined a delivery to either of the parties, it has been held that the delivery must be made to both {x). But when there are two parties on each side, and the award is to be made and given up to the said parties, or to one of them, it has been held suflScient to deliver it to any one of either of them (y). In general, however, the arbitrator's duty is only to have the award ready for delivery to the parties, on their request, before the period of his authority has expired ; the delivery itself may take place at any time. Arbitrator Either party, as soon after the publication as he pleases, award 01° lu^y obtain it from the arbitrator on payment of his charges, payment of g^^^ until they are paid, it is usual, in order to ensure their discharge without any trouble, for the arbitrator to keep the award in his own hands. This course has been recom- mended by the court, even when the party who takes up the award is not to be ultimately liable to pay them (z). If tlic unsuccessful party be the one who comes to take up the award, in practice the unstamped and unsigned copy is (s) Veale v. Warner, 1 Saiuid. {it) Wilson v. Wilson, 1 Sannd. 327, b. notes; Garret v. Weeden, 327, c. n. (m). 1 Lev. 133; Bradsey v. Clyston, (x) Parker v. Parker, Cro. Eliz. Cro. Car. 541 ; Marks v. Harriot, 448 ; Block v. Palgrave, Cro. Eliz. 1 Ld. Eaym. 114; Joyce v. Haines, 797. Hard. 399 ; Freeman v. Bernard, (y) Cocks v. Macclesfield, Dyer, 1 Ld. Eaym. 247 ; Eobison v. Cal- 218, b. wood, 6 Mod. 82 ; Anon. 2 Ld. (z) Hicks v. Eichardson, 1 B. Eaym. 989. & P. 93. See post P. IL, ch. 11, {t) Bro-vm v. Vawser, 4 East, s. 1. 584. FORMAL REQUISITES OF AWARD. 239 commonly all tliat is given liim, while the award itself is Part ii. kept for tlie party in wliose favour tlie arbitrator has decided, en. v. s. i. In cases of references under the Lands' Clauses Consoli- Award un- dation Act, 1845 (a), it is provided by section 35, that " tlie ^J^ arbitrators sliall deliver their award in writin;>- to the pro- Clauses Act. motors of the undertaking, and i]\Q said promoters shall retain the same, and shall forthwith on demand, at their own expense, furnish a copy thereof to the other party to the arbitration, and shall at all times, on demand, produce the same award, and allow the same to be inspected or examined by such party, or any person appointed by him for that purpose." IV. Staminng the award.'] — By the Stamp Act, the 23 &24 stamp ou Vict. c. Ill, a duty is imposed on all awards in writing (b). Exceptions, however, have been made by statute in favour Exceptions, of awards in certain cases. Tlius awards made under the and work- Acts for settling by arbitration disputes between masters and ™'^"- workmen (c), and concerning Savings' Banks (cl), are ex- Savings' empted from stamp duty. Possibly the 6 G. IV. c. 16, ^^''^'• s. 98, which exempts from stamp duty all " instruments and ■writings whatsoever relating solely to the estate or effects of Bankrupts' any bankrupt or bankrupts, or any part thereof," would he ^^^ates. held to exempt from duty awards made on references by assignees of a bankrupt. We have previously seen that («) 8 & 9 Vict. c. IS. See The repealed provisious of the old Api^endix of Statutes. Act, the 55 Gr. III. c. 184, were as {b) In the 23 & 24 Vict. c. Ill, foUo^^-s :— Schedule, Part I., Title the schedule runs thus : — "Award Award. Award in England, and in England and award or decreet award or decreet arbitral, in arbitral in Scotland. When the Scotland, U. 15s. And where the amount or value of the matter in same, together with any schedule, dispute shall not exceed 50/., or other matter put or indorsed 2s. Qd. ; and when it shall exceed thereon, or annexed thereto, shall bOl, and not exceed 100/., 5s. ; contain 2160 words or upwards, and when it shall exceed 100/. and then for every entu-e quantity of not exceed 200/., lOs. ; and when 1080 words contained therein, it shall exceed 200/. and not ex- over and above the first 1080 ceed 500/., 15s.; and when it words, a further progressive duty shall exceed 500/. and not exceed of 1/. 5s. 750/., 1/. ; and when it shall ex- (c) 5 G. IV. c. 96, s. 32. See ceed 750/. and not exceed 1000/., Appendix of Statutes. 1/. 5s. ; and when it shall exceed {d) 9 G. IV. c. 92, s. 45 ; 7 & 8 1000/., and also in aU other cases Vict. c. 83, s. 14. See Appendix not above provided for, 1/. 15s." of Statutes, 240 HOW TO AWARD. Tart II. OH. V. s. 1 Compul- sory refe- rence of matters of account. Informal award. One stamp, several parties. Inelosure award not require ad valorem stamp. Parke, B., lias ruled at Nisi Prius that submissions by assig'nees respecting claims of the bankrupt for work and labour are freed from duty (e). An award made, on a compulsory reference of an action for matters of account under the Common Law Procedure Act, 1854, would probable be exempt from stamp as a " document made by or required under the provisions " of the Act, s. 30. In general, however informal the decision may be, if it be an award in fact, the statute applies. Thus, where a bond had been given conditioned for A. M.'s due discharge of the duties of clerk, to be ascertained by the inspection of A. M.'s accounts by J. S., and the amount so ascertained to be liquidated damages, J. S. being looked upon as an arbi- trator, a paper, in which J. S. had ascertained the amount of the deficiency in A. M.'s accounts, was held by Parke, B., to be an award, and to require stamping as such(y). So also a partnership account, ascertaining how much each partner had received and disbursed, dividing the profits among them according to their respective interests, and directing those who have money to pay to the partnership to hand it over to those who have money to receive, though not purporting to be an award on the face of it, is an award, and requires a stamp as such, if the party who makes out the account be empowered to act as an arbitrator, but is not an award if he merely make it out for the information of the parties, and have no power to bind them {g). Though the several parties to the submission have separate rights and liabilities, the award will need only a single stamp, if they have a sufiicient community of interest in the subject-matter referred, as, for instance, when the several underwriters on a policy of insurance agree to refer the demand of the assured on that policy (Ji). Where an inelosure Act gave the commissioners power to award lands in exchange for others in an adjoining parish, and also to award lands to those who bought them of (e) See "Wright v. Webb, cited P. I. cb. 3, s. 7, cl. 2, p. 93. (/) Jebb V. M'Kieman, Moo. &, M. 340. [g) Carr v. Smitb, 5 Q. B. 128 ; Goodyear v. Simpson, 15 M. (feW. 16. (A) Goodson v. Forbes, 6 Taunt. 171, S. 0. 1 Marsh. 525; see also Allen V. Morrison, 8 B. & C. 565. FORMAL REQUISITES OF AWARD. 241 persons entitled to allotments, tlicir award, awarding Part li. lands given in exchange partly for otlicr lands, and partly ^"- '^- ^- ^- for money, was held sufficiently stamped with the ordinary stamp, and not to require an ad valorem stamp on the money consideration, although it operated as a conveyance of the lands (i). It was decided under a previous statute, imposing only a Award 10s. stamp on awards, that an award in writing, and under ^q ^^gg^^^ seal, was no deed or specialty, and therefore need not have a deed stamp, unless it were delivered as a deed, but if it were delivered only as an award, an award stamp was sufficient {k). In order to necessitate an award stamp, the document Appraise- must strictly be an award. Hence, where on an agreement ^ard?** between an incoming and an outgoing tenant, the valuation of some goods on a farm and of the repairs was to be deter- mined by certain referees, an appraisement stamp on the written valuation was held sufficient under the 46 G. III. c. 43, and an award stamp unnecessary, the valuation not being looked upon as an award, although in some respects it had the same effect ; as in the oj)inion of the court, the parties in appointing persons to settle the account, had no contemplation of submitting any differences to the award of arbitrators (/). Parke, B., is in one case reported to have said, that an instrument award stamp is only to be imposed on those instruments po^tfa %o which on their face purport to be awards. Tliis proposition, be award, according to other decided cases, does not seem maintainable so broadly as it is stated. In the case referred to, the learned judge held admissible in evidence, though un- stamped, a written verdict of a miner's jmy, who were to determine whether the defendant was possessed of a certain shaft of a mine, the defendant having agreed to be bound by their determination, and the plaintiff having also assented to the arrangement {?n). The document, though in the (*■) Doe d. Ld. Suffield v. Pres- Hodsden v. Harridge, 2 Saund. ton, 7 B. & C. 392. 64, 1. (A.-) Brown v. Vawser, 4 East, {I) Leeds v. Biutows, 12 East, 584; Blundellv.Brettargh,17Ves. 1 ; Perkins v. Potts, 2 Glut. 399. 232 ; Dod v. Herbert, Sty. 459 ; {m) Sybray v. White, 1 M. & Perry v. Nicholson, 1 Bui'. 278 ; W. 435. 242 now TO award. Part IT. nature of an award, and strong evidence against the defen- <^"- y- s.i . (lant, was not considered as an award in fact, or conclusive in evidence as an award would have been, and the jury were looked upon rather as accredited agents than arbitrators. Animus They do not appear to have had any animus arbitrandi, though the parties had agreed to be bound by tlieir opinion. In order to the validity of a decision as an award, there must, it is apprehended, be, besides the submission of the parties, an intention in the person who decides it to decide as arbitrator. The correctness of this view the court seemed inclined to sanction, though there was no positive decision, on an occasion when it was questioned whether an opinion Opinion of of couuscl Subjoined to a case, containing a recital of an agreement to be bound by the counsel's opinion, which opinion commenced " upon the facts above stated, I am of opinion," was an award, and required a stamp. It was also Matter discusscd, but uot decided, whether the case was " a matter annexed" to the award within the meaning of the Stamp Act, the words of which were to be reckoned in calculating the amount of stamp duty (w). Award may An award, if not stamped when made, may according to at any™^^ ^^16 jircsent practice be stamped afterwards without penalty, time. if taken to the office for that j)urpose within six or eight weeks after it has been executed. It may be stamped at any time on j)aying the penalty, and it cannot be set aside on the ground that the stamp is improper, when no step has been taken to enforce it {o). Where an objection to the stamp was not alleged as a ground for obtaining a rule Nisi to set aside an award, the com-t would not sutfer the objec- tion to be relied on afterwards when cause was shown {p). Master ob- But when it is sought to draw up a rule for an attachment jecting to „ ° , . . want of tor non-pertormance of an award, it is competent for the Btamp. officer of the court to object to the absence of a stamp on the award, and on that account to refuse to cbaw up the rule {q). No stamp If an arbitrator have to certify for whom and for what on a certifi- '' cate. {n) Boyd v. Emmerson, 2 A. & {p) Liddell v. Jolmstone, 2 E. 184 ; Sybray v. ^Vliite, 1 M. & Tidd. Pr. 874, 7th ed. : 884, 9th W. 435. ed. (o) Preston v. Eastwood, 7 T. {q) Hill v. Slocombe, 9 Dowl. E. 95. 339. FORM OF AWARD. 243 amount a verdict is to be entered in tlie cause referred, the Part ii. certificate does not require a stamp. This course of direct- ""■ ^- ^- ^ - ing an arbitrator to certify, instead of to make an award, is often adopted for the very purpose of saving the expense of the stamp and award (r). SECTION II. OF THE FORM OF THE AWARD. With regard to the substance of the award, any form of Any words words that amounts to a decision of the questions referred, aXcSou^ will be good as an award. No technical expressions are an award, necessary (s). But as awards often bind valuable rights for all time, it is incumbent on the arbitrator to be very pre- cise and clear in his adjudication (t). On a dispute respecting the amount of dilapidations, the report of an umpire in these words, " I have surveyed and estimated the several works necessary to be done in repair- ing the dilapidations to a house, and find the same amount to £55 55.," was held a conclusive award, binding on the parties {u). So the words, " 1 am of opinion that A. is entitled to claim of B. £134 for non-performance of his contract," was held a sufficient award (r). Where parties agreed to be bound by the oj^inion of a professional man upon the construction of an Act of parliament, his opinion being positive and decisive was considered a binding award, notwithstanding 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 mis- printed (y). But where the arbitrator wrote a letter to A. and B. , the parties, in which he said, " To meet the circumstances of the (r) Salter v. Yeates, 5 Dowl. («) Whitelieady.Tattersall, lA. 291. & E. 491. (s) Eardley v. Steer, 4 Dowl. (x) Matson v. Trower, Ey. & 423. Moo. 17. {t) Stonelie-wer V. Farrar, 9 Jur. (y) Price v. Hollis, 1 M. & S. 203. 105. R 2 244 HOW TO AWARD. Part II. case ill a liberal manner, I propose that B, should pay A. °°- ^- ^- ^- £10," this was not considered an award, because it did not express a decision that A. was entitled to the £10, but only- recommended that that sum should be given him {z). An award deciding in the plaintifiTs favour, and requesting the defendant to pay the balance, was held equivalent to an order to J3ay {a). No recitals It is not necessary to the validity of the award that there iu^^wTrd should be any introductory recitals. The award will be good, although the arbitrator neglect to set out his authority, either by reciting the submission, or in any other manner ; or if he omit to recite the fact of the time having been enlarged, even when the award appears to have been made beyond the time originally limited for making it {h). Fail- ing to recite that he had taken a view of the premises in dispute was considered unimportant, although the taking a view was enjoined before proceeding in the reference (c). Where an arbitrator was not to proceed in the reference until he had awarded in a particular action, the omission to aver that he had awarded in the action was held immaterial. The court presumed that he had done so, nothing appearing to the contrary {d). But though such recitals are not essential, it is advisable that they should be made, in order in many cases to explain the award, and that they who peruse it may see on the face of the instrument that the arbitrator had authority to award as he has done, and that he has fully performed his duty. What re- In general an arbitrator recites verbatim so much of the citais ad- order of reference, or other submission, as contains his visable. ' ' ^ authority to make the award, and specifies the subject- matter on which the award is made. Any jirovisions of the submission which are necessary to warrant particular direc- tions, as, for instance, respecting costs, or saying what should be done, ought to be set forth. But those clauses which confer on him powers which he does not exercise, (z) Lock V. Vulliamy, 2 N. & M. George v. Lousley, 8 East, 12. 336, S. C. 5 B. & Ad. 600. (c) Spence v. Eastern Counties (a) Smith v. Hartley, 10 C. B. Eailway Company, 7 Dowl. 697. 800. (rf) Davies v. Pratt, 25 L. J. C. {To) Baker v. Hunter, 16 L. J. P. 71, S. C. 17 C. B. 183. Ex. 203, S. C. 16 M. & W. 672 ; FORM OF AWARD. 245 or those which more especially affect the parties, it is not Part ii. recommended that he should specify (6'). ""• "*'■ ^- ^- Reciting that the award was drawn by an attorney when by the submission the attorney was authorized to prepare it, is not objectionable though unadvisable {/}. It is not necessary that the award should specify what the Recital matters in difference are {(/). The arbitrator should exercise matters ia his discretion as to whether in the particular case it is advisable diffeieuce. to set them out. He should consider that questions difficult of proof may sometimes arise long after the award has been made, whether certain matters were matters in difference at the time of the submission. In such cases it would often be convenient that the recital should specify the subjects in difference, and that the disposing part of the award should refer to them, because in an action subsequently brought on any of the matters referred, the award would then give a complete and indisputable defence (h). Nor would this course leave the award open to any cavil for having omitted to specify some little matter, which though in difference was of no real importance, if the arbitrator has followed the course previously advised, of requesting the parties respectively to fiu-nish him with a written statement of the matters on which they require his decision {i). An arbitrator cannot by a false recital give himself an False re- authority beyond the submission. Thus a recital that the togive" arbitrator has power to determine what should be done by authority. the parties, will not cure an excess of authority in awarding something to be done, when it appears that he has in fact no such authority {k). As a false recital cannot bind the parties beyond the sub- False re- mission, neither will it invalidate the award {I). An award ^^ vitiate by an umpire is not vitiated by a mistake in the recital of award, the award in the christian name of one of the original arbi- (e) King v. Bowen, 8 M. & W. (*) See ante, Angus v. Eedford, 625. 11 M. & W. 69, S. C. 2 Dowl. N. (/) Baker v. CotteriU, 18 L. J. S. 735. Q. B. 345. (A-) Price v. Popkin, 10 A. & E. {(j) Smith V. Hartley, 10 C. B. 139. 800. ' (?) Watkinsv.Pliilpotts, M'Lel. {h) Brown v. Croydon Canal Cy. & T. .393 ; Baker v. Hunter, 16 M. In re, 9 A. & E. 522 ; King v. & W. 672. Bowen, 1 Dowl. N. S. 21. 246 now TO AWARD. trators who had appointed the umpire (?w), or by a statement that the umpire was appointed by the parties, when lie was in fact chosen by the arbitrators {?!), or where the award purports to be made by three, and is executed only by two{o), or by a misrecital respecting the date of the sub- mission (p), or the date of an enlargement of time, so that it ai:)peared too late (q), or the extent of the subject-matter (r), or where the arbitrators having appointed an umpire, who was to decide in case they should disagree, recited that they had " considered the decision of the umpire," and there had in fact been no disagreement, and consequently no con- sultation of the umpire {s). In one instance of a reference by a judge's order, where the award misrecited the submission as a reference by order of Nisi Prius, the Court of Common Pleas used the expres- sion that the award was a " nullity." It was not, however, necessary to determine the validity of the award to dispose of the motion, and it may be gathered from the reports that they only meant to say that they would not enforce it by attachment, for in one report they are said to add, that the plaintiff, if he thought fit, had his remedy by action (f). This case, as Parke, B., recently remarked, was decided " rather rapidly." It is no authority against the previous propositions (u). Certificate Instead of making a formal award, the arbitrator, on a award. " reference at Nisi Prius, is often directed or empowered to express his decision in a certificate addressed to the officer of the court. The expense of the award stamp is thereby saved (x). Arbitrator When the arbitrator has only to determine how far if at aU mine*^'^' ^^^ amouut for which the verdict has been taken is to be amount of verdict. ^^^^ r^j.^^ ^_ Burton, 1 C. & M. (r) PauU v. PatiU, 2 0. & M. 533. 235, S. C. 2 Dowl. 340; Kynaston (n) Adams v. Adams, 2 Mod. v. Jones, Styles, 97, S. 0. Vin. Ab. 169, S. 0. Vin. Ab. Ai-b. (N. 2) 3. Ai-b. (N. 2) 2, S. C. Al. 85. (o) White V. Sharp, 12 M. & W. (s) Harlow v. Eead, 3 D. & L. 712, S. C. 1 D. & L. 1030, over- 203. ruling Thomas v. Harrop, 1 S. & S. (t) Christie v. Hamlet, 2 M. & 524. P. 316, S. C. 5 Bing. 195. (p) Dole V.Dawson, 2 Keb. 878, (m) Baker v. Hunter, 16 L. J. S. 0. Vent. 184 ; Ingram v. Webb, Ex. 203, S. 0. 16 M. & W. 672. 1 EoUe Eep. 362. (jc) Salter v. Yeates, 5 Dowl. (7) Addison v. Spittle, 6 D. & 291. L. 531. THE AWARD MUST BE ENTIRE. 247 reduced, his decision though in terms an award is in reality Part ii. a certificate (y). ""• "^^ ^- ^- SECTION III. THE AWARD MUST BE ENTIRE. It is implied in all cases, unless something to the contrary Award not is expressed, or may be inferred from the submission, that ^'^ ^® ™^'^® 'm parts. the arbitrator can make but one award. This must be one entire and complete instrument in itself; therefore, if it be made part one day and part at another, though each and every part be made within the time limited for the award, it will be void (z). If there be several arbitrators, they may indeed assemble Consulting and consult, and form their final determination on specific ^^J^ ^'^^^^ matters at several days, but their award, which expresses their final determination on all the matters together, must be one and entire (a). Thus, where by an order of reference a cause and all matters in difference between A. & B. were referred, and by a subsequent order made after the first reference had commenced, it was directed that C. should be made a party thereto, as if he had been an original party, and that a cause between A. & C, and all matters in difference between A. B. & 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. ; in the other, that A. was indebted to C. without mentioning B. ; it was held both awards were bad, and that the arbitrator had not proj^erly performed his duty, as there was no one award determining- all the matters in difference between all the parties (<5). (y) Sim V. Edwards, 25 L. J. Parke, B. C. P. 175, S. 0. 17 C. B. 527. ). So where an arbitrator had to award of and concerning all matters of account then pending between L. and C, and he awarded of and concerning the premises that L. should pay C. a certain specified sum, " the amount due in respect of the W. farm account," and a further sum " due from him to C. in respect of shares in the W. Cement Company," the {I) Ingram v. Milnes, 8 East, Wyatt v. Ciu-nell, 1 Dowl. N. S. 444. 327. {m) Ward v. Uncorn, Cro. Car. (o) Hawkins v. Colclougli, 1 216 ; Busfield v. Busfield, Cro. Burr, 275. Jac. 577; Barnes v. Greenwel, (p) Day v. Bonnin, 3 Bing. Cro. Eli^. 858. N. 0. 219 ; Wynne v. Edwards, (m) Baspole's Case, 8 Eep. 97, b ; 12 M. & W. 708. THE AWARD MUST BE FINAL. 263 award was held sufficiently final on demurrer when set out Pakt ii. on the record in an action {(]). cn.\.&. . vii. Wliether matter presumed decided when award silent.'] Award silent — Even where it has been proved that there were other sometimes matters in difference before the arbitrator than those on pf^esumed a I'll 1 • T 1 decision. which the arbitrator has adjudicated, the rule of presuming in favour of the sufficiency of the award has been carried so fiir, that his silence respecting them has, in many instances, been held not to make the award bad, but somehow to amount to a decision concerning them (r). An award was sustained where, on a reference respecting Equitable some causes and all matters in difference, the arbitrator, noticed in reciting that he had considered all the evidence and papers ^^^^''i- touching the matters in difference, awarded respecting the actions only, although it appeared that the plaintiff had set u]3 an equitable claim, which the arbitrator did not notice, deeming it wholly unsustainable (s). By order of Nisi Prius, an action for a tort and all matters ^^°^^ °'^i™ in difference were referred, and a verdict was taken for the ant. plaintiff, subject to the reference. Before the arbitrator, the defendant claimed a sum as the balance of an account, which sum the plaintiff admitted to be due. The award reciting that all matters in difference were referred, awarded (though not saying de prasmissis) that a verdict should be entered for the plaintiff for a certain amount of damages, but made no mention of the sum admitted to be due to the defendant. The court held that it sufficiently appeared from the award, that the arbitrator had decided concerning all the matters referred to him, and said that if he had used in the award the words de preemissis, there could have been no doubt upon the subject ; for they considered that the fair interpretation to be j)ut on the award was, that the arbi- trator gave as damages the sum which he found to be due after settling all accounts between the parties (t). In close accordance with the above decision is the follow- ^^"^'"^ ^°'^ {q) Harrison v. Lay, 13 C. B. (s) Craven v. Craven, 7 Taunt. N. S. 528. 642. (r) See the notes to Bii'ks v. {t) Gray v. Gwennap, 1 B. & A. Trippett, 1 W. Saund. 33, a. 106. 264 now TO AWARD. Part II. cu. V. s. 4. breach of warranty. Plaintirs claim be- yond action not noticed. Award silent, sometimes not pre- sumed a decision. Silence on claim for indemnity. ing case. On a reference of an action for the balance of the price of some horses, together with all matters in difference, the defendant made a claim before the arbitrator for an alleged breach of warranty of the horses' soundness ; the arbitrator awarded " of and concerning the matters in differ- ence," that the plaintiff had no cause of action against the defendant, but was silent respecting the defendant's claim ; the court held the award sufficient, and said they would pre- sume the arbitrator took the claims of both parties into his consideration (ti). In a later case, however, where a cause and all matters were referred, the arbitrator found specifically on each of the issues in the action, determining in favour of the defendant the issue on a plea which went to the whole cause of action. Tlie award took no notice of a claim by the plaintiff respecting a matter in difference not in the action, though the arbitrator swore that he had taken it into his consideration. The court, on the strength of the authorities, especially of that of Gra^ v. Gwemiap (x), held that they could not set aside the award for this omission. Lord Abinger, C. B., however, saying that had the matter been res integra, he should have been disposed to have thought the award void ; and that as the award was in writing, its silence as to any matter in difference brought before the arbitrator, prevented it from being a sufficient exercise of the authority vested in him by the submission (y). In one case, in which it appeared by affidavit that on the reference the plaintiff made a claim not included in the cause, on which claim no award was made; Coleridge, J., held that the award, though made of and concerning the matters referred, was not final, and set it aside on the ground that there was no decision as to the matter in difference out of the action {z). In a case before Lord EUenborough, C. J., when on a general reference the defendant set up a claim to be indem- nified against a liability on certain bills of exchange, and the award did not notice the claim, the court construed («) HayUar v. EUis, 3 M. & P. 553 (,t) 1 B. & a. 106. (y) Dunn V. Warltors, 9 M. «fe W. 293. (z) Gyde v. Bouclier, 5 Dowl. 127. THE AWARD MUST BE FINAL. 265 the silence of the arbitrator to amount to an omission to Part II. decide the point, and hekl tlic award bad in consequence, ' ' ' although it purported to be made touching the matters in difference (a). More recently, however, wlicrc a cause and all matters in Cross claim difference were referred, the defendant made a cross claim feudant. for damages. The award, purporting to be, " of and con- cerning the matters so referred as aforesaid," disposed of the issues, directing the defendant to pay the plaintiff a cer- tain sum, on payment of which the plaintiff was to execute to the defendant a general release. The Court of Common Pleas distinctly overruling Gf/de v. Boucher {/j), (which opinion they have since ratified (c) ) held the award suffi- cient («?). And the case was affirmed in the Exchequer Chamber. Guiding There Parke, B., stated the governing principle thus: " The award rule is this, — where there is a further claim made by the ^^^^^' ^*^" ' cient. plaintiff or a cross demand set up by the defendant, and the award professing 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 untenable ; but where the matter so set up from its nature requires to be specifically adjudicated uj^on, mere silence will not do." And he illustrated the latter position by the case of an arbitrator called upon to decide upon which of two demises a plaintiff in ejectment was entitled to recover, or whether or not a partnership existed between two persons, or what was the interest that a party took in certain property, whether an estate tail or an estate in fee, and said that in such cases a general award profess- ing to adjudicate upon all the matters referred would not suffice {e). Though by s. 63 of the Lands Clauses Consolidation Act, Silence 1845, the arbitrator, on estmiating the compensation, is to severance have regard not only to the value of the land taken, but to ). Alternative i^- Award in the alternative.'] — An award in the alternative award jg sufficiently certain and final. ^°° ' Thus an award to pay 100/. at such a day, or if the party do not pay it by the day, to pay 110/. at a future day, is good, for the additional payment is in the nature of a penalty, which the arbitrator has a power to impose {q). So, an award is good which orders a party to pay a certain sum by instalments on several days, and if he fail on the first day, to pay the whole sum immediately afterwards (r). So, on a difference respecting a right of way, the award was sustained, which directed that in case the way were taken away, the plaintiff was to pay so much less than a specified sum, and if not, so much more (s). One alter- If an award direct one of two things to be done, and one native un- Qf them be Uncertain or impossible, the award is nevertheless (n) Kinge v. Fines, Sid. 59 ; Ai-b. H. 8, p. 250 ; Com. Dig. Ai'b. Vin. Ab. Alb. H. 18. E. 15. (o) Sherry v. Eichardson, Pop. (r) Knockill v.Witlierell,2Keb. 15. 838. [p) Nickels v. Hancock, V De (s) Collet v. Podwell, 2 Keb. G. M. & G. 300. 670. (2) Eoyston v. Eydall, Eoll Ab. THE AWARD MUST BE FINAL. 269 sufficiently certain and final, if the second alternative be part ii. certain and possible ; and it will l)c incumbent on the party ^"- ^- ^' ^ - to perform the second alternative (t) ; as, for instance, if the certain or direction be that defendant should cause satisfaction to be entered on the judgment-roll in a certain action, or pay a sum of money, and there be no such action in fact, the award is good to compel the defendant to pay the money {u). So, if it be to deliver a deed which is not in his power or pos- session, or to pay a sum of money, the party must perform the alternative of paying the money, which is within his power {x). An award that the defendant should pay the plaintiff 100/. by such a day, or should find two sureties to be bound with him to the plaintiff to pay the 100/. by 20/. a-year, until the whole be paid, was held a good award as to the former part, but void as to the latter, and not even to give the defendant the liberty of electing whether he would pay the 100/. at once, or find the sureties to secure the yearly instalments (y). X. Award reserving or delegating judicial authority. '\ — An Arbitrator arbitrator cannot in his award reserve either to himself, or ^6^5°°^ ^^ delegate to another, the power of performing in future any delegate act of a judicial nature respecting the matters submitted {z). ^" °^^ ^' His duty is to make a final and comjDlete determination respecting them by his award, and it is a breach of that duty to leave anything to be determined hereafter. Thus an award directing the defendant to leave on certain Reserva- land so many trees to the plaintiff for house-bote and hedge- {.^tmSi-s^^' bote, as the arbitrators, upon advice with counsel at the next to them- assizes, should appoint, was held void as imperfect, and reserving a future authority to themselves («). fO Simmondsv.Swaine,! Taunt. Palmer, 145; Thorp v. Cole, 2 C. 548. M. & E. 367, S. 0. 4 Dowl. 457 ; (if) Wharton v. King, 2 B. & Com. Dig. Arb. E. 16; Selby v. Ad. 528. Eussell, 12 Mod. 139 ; Nott v. ix) Lee V. Elkins, 12 Mod. 585. Long, 9 Gr. II. B. E. cited in {y) Oldfield v. Wilmer, 1 Leon. CayMl v. Fitzgerald, 1 Wils. 28. 140, 304. («) TMnne v. Eigby, Cro. Jac. (z) Wincli v. Saunders, 2 Eolle 314. Eep. 214, S. C. Cro. Jac. 584; HOW TO AWARD. Part II. cu. V. s. 4, When award good, though re- servation void. Arbitrator cannot Tlie same was held respecting an award which directed A. to pay B. certain sums by instahncnts, and to give B. a bond, and to execute a warrant of attorney to enter judg- ment thereon to secure the payment, but that the warrant should be lodged with the arbitrators, and that judgment should not be entered thereon without their consent {b). Where the award ordered the defendant to pay a sum to the plaintiffs, with a proviso, that if it should afterwards appear to the arbitrators that the plaintiffs had not dis- charged the defendant from certain debts, in which he was bound for them, that so much of the sum should be repaid by them as to the arbitrators should seem due ; the award was considered bad, for these words, " if it should appear," were construed to be a retention by the arbitrators to them- selves of a discretionary power of judging hereafter (c). Sometimes, however, the award may be good, though the reservation be void. An arbitrator, to whom power was given to award respecting the use of a stream, decided the question referred, and ordered certain works to be made by the defendant, but contemplating in his award the possi- bility of differences arising respecting the execution of the works, he reserved to himself the power of deciding them, and then making a final award, stating at the same time that his present award was final, unless the plaintiff complained within a certain time. The court held the reservation of authority void, but the rest of the award good, as it con- tained a final decision on the matters referred (d). The reservation, it will be seen, was not a reservation of authority to decide on any of the subject-matters of the reference, but on matters not submitted, consequently the reservation was a mere excess of authority. In pursuance of the rule which forbids the delegating a judicial authority, tlie award is bad if the arbitrators, instead of deciding the. matters submitted, award that the parties shall abide by the award of a third person whom they name {e) ; or that the defendant shall account before such (b) Lindsay y. Lindsay, 11 L*. C. L. Kep. 311. (c) Wincli V. Saunders, 2 Eolle Eep. 214, S. C. Palm. 145. {d) Manser v. Heaver, 3 B. & Ad. 295; Goddard y. Mansfield, 19 L. J. Q. B. 305. (e) Lower v. Lower, Eolle Ab. Ai'b. B. 20; EoUe Ab. Arb. H. 11. THE AWARD MUST BE FINAL. 271 auditors as the plaintiff shall assign, and if he be found in Part ir. arrears, shall pay the amount (y"). ^J 4. A partial delegation of authority equally vitiates the Partial award ; as, for instance, if on a reference to settle the terms ^ ^°'^ '°"" and conditions of a lease of certain premises, the arbitrators direct them to be put into repair to the satisfaction of a person named in the award ; or, after determining the head of water a miller might keep, ordering the miller to put up such durable marks for denoting the height of water as a specified surveyor should direct {g) ; for that amounts to a transferring to the party named a portion of the authority vested in themselves (Ji). An award that the defendant should pay to the plaintiff Delegating a certain sum, unless within a definite time the defendant *° ^^■^^*^' should exonerate himself by affidavit from certain payments and receipts, in which case he was to pay a less sum, was held bad by Lord Kenyon, on the ground that the arbitrators, instead of determining all the points in dispute, had left one smn in dispute to be decided by the person who, of all others, was least qualified to decide it, namely, the defendant himself (/), So, when the arbitrator directed that A. should pay B. 50^., and that A. should beg B.'s pardon in such manner and in such place as B. should appoint, the award was held void as to the latter direction, because giving B. the power to determine the time and place, was making him a judge in his own cause, which the arbitrator ought to have deter- mined ; and though time and place were but circumstances, yet in that sort of satisfaction they make the most consider- able part (Ji). There seems to be an exception to the rule against dele- Exception, gating authority in respect of costs. For an award, which J the*'"" directs the payment of such costs as shall be taxed by the Master the ofiicer of the superior com't which has cognizance of the costs." submission, is undoubtedly good (/), though if the award (/) EoUe Ab. Arb. I. 9. (0 See post, p. 279. Selby v. (r/) Johnson v. Latbam, 19 L.J. Russell, 12 Mod. 139; Lingood v. Q. B. 329. Eade, 2 Atk. 501 ; Thorp v. Cole, {h) TomHn v. Mayor of Ford- 2 C. M. & E. 367, S. C. 4 Dowl. wich, 5 A. & E. 147. 457; Pedley v. Goddard, 7 T. E. (0 Pedley v. Goddard, 7 T. E. 73 ; Worrel v. Atworth, Sid. 358 ; 73 ; See Eous v. Lun, 1 Keb. 569. Cargey v. Aitcheson, 2 B. & C. 170. (/.■) Glover v. Barrie, 1 Salk. 71. 272 HOW TO AWARr>. Part II. direct the costs to be taxed by one not an officer of the °°' '^- ^- ^- court, it will be bad, as delegating a judicial authority, even where it provides that the costs shall be such as a Master in Chancery would allow. Though a reference to a stranger is judicial, yet it seems the officer of the court, in taxing costs, is considered as acting in a ministerial capacity only (m). If this be so, this class of cases, which has been termed an exception to the general rule, would fall properly into the class next considered. Before leaving this subject, it may be observed, that it is only to causes in the superior courts that this exception applies, for the arbitrator must ascertain for himself the amount of costs in a cause in an inferior court, and cannot delegate that duty to the officers of the inferior court {n). Arbitrator XI. Award reserving or delegating ministerial duty.'] — An OT^deie^at? important distinction has been taken by the courts, that miuisterial though the arbitrator cannot reserve a tiirthev judicial act to be done, he may reserve a further ministerial act to be done either by himself or a stranger, at any time, even after the time limited for making the award has expired {o). Measure- Whether the matters are referred to be finally decided by Tnd °^ ^^^^ arbitrator, or whether he is simply to make a valuation of certain landed property, after ascertaining in his award the rate to be charged per acre, he may direct the number of acres to be ascertained by measurement, for measuring is a merely ministerial act {p). Where the arbitrators to whom it was referred to fix the price of an estate, stated in their award the sum to be paid, and the number of acres in the whole estate, and added, that if there were any error in the admeasm'ement, an allow- ance should be made at the rate of a certain amount per acre, either less or more than the admeasurement, if the mistake were in the land on one side of a brook, but an allowance of twice the amount per acre if the mistake were (m) Knott v. Long, 2 Strange, & E. 367, S. C. 4 Dowl. 457. 1025. (p) Thorp v. Cole, 4 Dowl. 457, (n) Adclisonv.Gray,2Wils.293. S. C. 2 0. M. & E. 367; Winch v. (o) Wincli V. Saunders, 2 EoUe Saunders, 2 EoUe Eep. 214; Hun- Eep. 214, S. C. Palm. 145 ; Cro. ter v. Bennison, Hard. 43. Jac. 584 ; Thorp v. Cole, 2 C. M. THE AWARD MUST BE FINAL. 273 in the land on the other side ; the court held that the award Part ii. was not certain and final, as the arbitrators had not stated °^^lZll'.i" how much of the estate they considered lay on each side of the brook respectively, so that there were no means of ascer- taining to what extent the double rate per acre, for additions and deductions, or to what extent the single rate only, was to be allowed. The court however added, that if the addi- tion or deduction upon admeasurement had been to be made at a uniform rate per acre as to all the land, the award, according to the rule, " id certum est quod certum reddi potest," would have been good (q). In an old case, two judges were of opinion that a reserva- Whether tion of a power to value certain goods was a reservation of ^Ministerial a judicial power, and therefore void; Powell, J., however, officer, thought it merely ministerial. The award being bad on other grounds, it did not become necessary to determine the point (r). In more recent cases, a valuer's functions have been treated as of a judicial character (s). Arbitrators often direct the parties to execute bonds, Reserving releases, or other documents, to be settled by themselves or 1°^^^ others. Such a direction will sometimes avoid the award, bleeds. sometimes not, according as in each case it is treated as a reservation of a judicial or ministerial duty. A reservation to the arbitrator is generally construed to Reserva- be judicial. Thus it has been held, that if arbitrators award arbitrator. that the defendant shall pay the plaintiff a sum certain, and in security for the payment shall execute such a- bond as they shall advise (t) ; or that defendant shall secure the pay- ment of such a sum to the plaintiff in such a manner as they shall advise, the award is invalid {u). So also a direction to execute such bond by way of Reserra- secm'ity for the sum awarded, or such releases as a stranger st^an^er. shall advise, has been considered equally bad (a:), though the distinction in principle between these and the next class of cases does not seem very clear. And it may be observed {q) Hopcraft v. Hickman, 2 S. (t) Eolle Ab. Arb. H. 4, p. 250. & S. 130. (u) 19 E. IV. 1, cited in Hunter (r) Cockson v. Ogle, 1 Lutw. v. Bennison, Hard. 43. 550. (cc) Eolle Ab. Ai-b. H. 6, p. 250; (s) Anderson v. Wallace, 3 C. & Emery v. Emery, Cro. Eliz. 726. F. 26. See ante p. 201. 274 now TO AWARD. Part II. that an award tliat one shall release to another, by the advice °°- ^- '• ^- of J. S., has been held good (y). Iieserva- If the direction be, that one party shall execute to the counsel, other such a bond, by way of security for the amount, as his opponent's counsel shall advise, or if the award direct that the one shall execute to the other a general release, as fully and beneficially as counsel shall advise, the award has been held to be good; for it is said that the delegation to the counsel in either case is not a delegation to him as arbi- trator, and that he has no power to perform any judicial act, but acts in a ministerial capacity only, for the arbitrators having directed the extent of the bond and release, the counsel has only to make them as strong in law as he can {z). Where, in order to decide the title to certain land, the arbitrator awarded, that an action should be conceived by the advice of certain counsel, this was held to be a reference to their judgment, not on the substance, but only on the form (a). The following case illustrates the rule, that only the formal drawing up of the instrument may be deputed, and that the award must determine its nature and character. On a reference respecting the right to a certain house and pre- mises the award which du-ected certain parties to execute to another party all such conveyances, releases, and assurances, as might be necessary to pass their respective interests to him, was held void in toto, because it did not specify the manner in which the conveyance was to be effected, but reserved to the arbitrator, in case of dispute, a power to appoint a counsel or solicitor hereafter, to decide as to what should be the proper conveyances, releases, or assurances, and as to the clauses, provisions and covenants which they were to contain {U). If the arbitrators, on a reference out of Chancery, award mutual releases of all matters in difference, the leaving it to the court, if they think proper, to give directions to the Master to settle the form, will not make the award bad (c). (2/) Anon. Jenk. 3d. cent, case (o) Brooke Ab. Ai-b. 37. 61. P- 129. [h) Tandy v. Tandy, 9 Dowl. (z) Cater v. Startut, Eolle Ab. 1044. Ai-b. H. 7, p. 250, S. C. Sty. 217, (c) Lingood v. Eade, 2 Atk. Jenk. 129. . 501. THE AWARD ]\IUST BE CERTAIN. ' 275 SECTION V. THE AWARD MUST BE CERTAIN. I. W7iat certainty requisite.'] — An award oiiglit to be certain, Part it. so that no reasonable doubt can arise upon the face of it as ch. v. s. 5. to the arbitrator's meaning, or as to the nature and extent Certainty of the duties imposed by it on the parties. jKoni^utent. Certainty to a common intent only is sufficient, for the award will be construed by no technical rules, but in a fair and liberal spirit, with a view to support it as far as a sen sible and reasonable interpretation will allow (c/). If the arbitrator direct one party to pay money, or to Certainty execute a release to the other, the award is sufficiently cer- tain, though it mention no time ; for if a request to do the act be necessary, it must be done in a convenient time after the request ; if there need no request, it must be performed in a reasonable time (e). If the award be without a date, and Award the arbitrator direct a party to do a thing a certain number jate. of days after the date of the award, this will not be so uncer- tain as to be invalid, for the date will be computed from the delivery of the award (/). The arbitrator need not specify any place for the pajonent As to place, of money awarded {g). If it be doubtful whether the award has decided the ques- When tion referred, it will be set aside for the uncertainty. whether Hence, where a Chancery suit had been brouo-ht to rescind '"atter , , , . • • l^ c decided. an agreement, and the mam question m the reference was, whether the agreement should be rescinded, and the suit put an end to, and the arbitrator directed certain things to be done, the performance of which was to be taken in full satisfaction of all the matters in difference, and that each party should bear his own costs of the suit, the award was set aside, inasmuch as the directions of the arbitrator did not clearly determine whether the agreement was to be rescinded and the suit terminated (Ji). {d) Hawkins v. Colclough, 1 Eaym. 1076, S. C. 1 Salt. 76. BuiT. 275. ((/) Anon. 1 Keb. 92, S. C. 2 (e) Freeman v. Bernard, 1 Salk. Brownl. 309. 69. (/)) Ti-ibe&Upperton,Inre,3A. (/) Ai-mitt V. Breame, 2 Ld. & E. 295. T 2 270 now TO AWARD. Part II. The award Avill be equally invalid, if it be uncertain how °°' ^' ^' • it has decided the matters referred. y''?°. , When on the reference of a cause and all matters in iloubtrul . ... how matter difference, a verdict was taken in the cause for a specified ^" ® * amount of damages, subject to the award of an arbitrator, and he was empowered to order a verdict for the plaintiff or the defendant, as he might think proper, and the arl)i- trator directed a verdict to be entered for the plaintiff (not saying for how much), and that the defendant should pay the plaintiff a certain sum, the court held the award bad, as it was uncertain whether the arbitrator meant the verdict to stand for the sum originally taken, and the amount directed to be paid by the defendant to be in respect of the matters out of the cause, or whether he intended the sum ordered to be paid by the defendant to be substituted for the nominal verdict (/). No finding An award directing an executor to j)ay the balance due ' from his testator out of the assets in his hands is sufficient, though it does not ascertain whether there are any assets in his hands (/e). Awarding As the questiou whether the arbitrator has with sufiicient on'separa^e Particularity decided all the matters submitted to him, arises matters, as naturally on the objection that the award is not final, as on the objection that it is not certain, the reader is referred to the previous section for information on the point, how far it is necessary for the arbitrator to decide separately on separate matters {P). II. Certainty as to the amount awarded. '\ — When the arbi- trator directs anything to be done, he must give his directions with such precision that the parties may know at once what they are to do. Arbitrator jf j^g order a sum of money to be paid, the award must must fix . J 1 7 precise ascertain the amount ; therefore an award is bad that orders brpaid.*° °^® party to pay the other so much money as is due in con- {i) Mortin v. Burge, 4 A. & E. 5,7; see also P. II. Ch. 6, as 973. to awarding on a cause; P. II. {Ji) Love V. Honeybourne, 4 D. Ch. 7, as to awarding in respect & E. 814. of costs. (Z) See P. II. Ch. 5, s. 4, dd. 2, THE AWARD MUST BE CERTAIN. 277 science, without settling what is due (w) ; or so much as such Tart ir. land is worth, the value of the land being undetermined (?^) ; ^°- ^- ^- ^- or the money due for task work, without ascertaining the amount owing in that respect (o) ; or to pay the arrears of rent accruing due after the purchase by a stranger of certain lands, without showing what tlie arrears are, or from what period they are to be calculated (p) ; or to pay a moiety of a debt for which A. is bound, without saying in what sum {(j); or to pay so much for every quarter of malt as malt may then be sold for, without saying in what place, for the price of malt may vary in different markets (r). But where the parties had agreed that in case the arbi- when arbi- trator should think the plaintiff not entitled to recover in *^f*°'' ^'^ . . . allow at respect of some articles of iron machinery supplied to the market defendant, the arbitrator was to allow the plaintiff the value ^'^^°®' of them at the market price of pig iron, as the defendant still kept them, the award directing the defendant to pay for them according to the present market price of pig iron was held good, and to have sufficiently ascertained the price, because, according to the agreement of the parties, the arbitrator was, in fact, merely to determine whether the de- fendant was to pay for them as machinery or as pig iron (s). When the submission, among other things, provided that Awarding the arbitrator should direct the plaintiff to pay into a bank to^g^jg!j° g such a sum of money as would be sufficient to entitle the securities. defendant to have restored to him some documents deposited by him with the bank as a security for advances, and the arbitrator, following the submission, awarded that the plain- tiff should pay to the bankers such a sum of money as would be sufficient to entitle the defendant to have his securities restored to him ; the court held the award bad, for not ascertaining and directing payment of the exact amount due to the bankers, and necessary to be paid in order to release the defendant's securities {t). (m) "Watson v. Watson, Sty. 28. (?■) Hui-st v. Bambridge, EoUe (n) Titus V. Perkins, Skin. 247, Ab. Ai-b. Q. 7, p. 263 ; Com. Dig. per Jones, C. J. 248. Arb. E. 11; Waddle v. Downman, (o) Pope V. Brett, 2 Saund. 292. 12 M. & W. 562. (p) Massy v. Aulary, Sty. 365. (s) Waddle y. Downman, 12 M. (?) Gray v. Gray, EoUe Ab. Arb. & W. 562. Q. 2, p. 263; Com. Dig. Arb. E. (t) Hewitt v. Hewitt, 1 Q. B. 11. 110. 278 now TO AWARD. Part II, OH. V. s. 5. To pay over money re- ceived, if any. To pay share of expenses. To pay joint da- mages to plaintiff and stranger. Money due from A. B. and C, SDrae or one of them. So, where on a reference between assignees of a bankrupt and a banking company respecting some bills of exchange, the arbitrator awarded that the bills and moneys secured thereby were the proj^erty of the assignees, that the bills, and moneys, and proceeds should be delivered and paid to the assignees, and that in case the bank should have received the whole or any part of the money secured by the bills, they should pay it to the assignees, the award was held bad on its face for not ascertaining the amount, if any, received by the bank in respect of the bills (u). On a submission concerning all controversies relating to a certain voyage, an award directing that one party should pay his share of the expenses of the voyage, and allow on account his proportion of the loss which should happen to the ship during the voyage, was held good, on the ground that those expenses and losses might be reduced to a certainty {x). This case, however, being cited in a later argument, Alderson, B., seemed to question whether any action could be maintained on such an award (y). Where a third ]3erson became a party to an order of reference of a cause and all matters in difference, and the arbitrator was to settle all matters in diflference between the plaintiff and defendant, and between the defendant and the third person, and the arbitrator did not specify the amount of damages payable by the defendant to the third party separately from the damages awarded to the plaintiff in the action, but awarded a joint sum to them, the court refused to enforce the award summarily {z) ; but an action being brought on the award, they held it valid («). An award that so many pounds are due to the defendant from A. B. and C. " some or one of them," and directing the amount to be paid by them " some or one of them," is uncertain {b). (u) Marshall & Dresser, In re, 3 Q. B. 878. (x) Beale v. Beale, Eolle Ab. Arb. H. 14. (?/) Periy v. MitcHeU, 2 D. & L. 457. (2) Hawkins v. Benton, 2 D. & L. 465. (a) Hawkins v. Benton, 15 L. J. Q. B. 139, S. C. 8 Q. B. 479. (6) Eainfortli V. Hamer, 25 L.T. 247. THE AWARD MUST BE CERTAIN. 279 III. Certainty as to costs awardcd.~\ — If a cause, either Tart ii. alone or with other matters, be referred, and the arbitrator °° - '^- ^- ^- in any terms direct one party to pay the whole or any pro- Arbitrator portion of the costs of the cause, as, for instance, if he order ascertain the defendant to pay all such moneys as the plaintiff has '^"""°*' ^^ expended about a certain action, or that the plaintiff shall pay five-eighths and the defendant three-eighths of the costs, the award is sufficiently certain, though it does not ascertain the amount. This exception, or apparent exception, to the rule requiring certainty, is grounded on the practice of the superior courts, in accordance with which the costs on such an award will be taxed as a matter of course by the officer of the court, whose peculiar duty it is to settle their amount, and who in so doing is considered as acting rather in a ministerial than judicial capacity («?). This aj)plies only to causes in the suj)erior courts, for a Except direction to pay the costs of an action in an inferior court, I'nfgrior without ascertaining the amount in the award, is void for the courts. uncertainty {d). But if the arbitrator direct payment of the costs of a cause dej)ending between the parties, it will be presumed, until the contrary be shown, that it is a cause in one of the superior courts (). IV. Award wJien presumed certain.'] — The courts will strive Presump- to hold the award to be certain if possible. Therefore p^t^e about' when an arbitrator ordered the plaintiff and defendant toa^o'^'it- pay the costs of some actions in certain proportions, and directed that the sums already expended by either party in respect of the actions (the award not specifying their amount) should be allowed as part of the proportion of the costs to be borne by each, the court said that this was a cer- tain and final award or otherwise, according as there were or were not disputes about the amount expended ; but as it was not shown that there were any such disputes, the court would not presume that there were any (q). The above deci- sion was relied on in a case in which the award directed pajTuent of a sum of money with interest to be computed Interest from the date of the last settlement of accounts (not stating of i^^t set- the date of such settlement), and the court sustained the tiement." award as not being necessarily uncertain, since they would not presume that the date of the settlement was in dis- pute (r). On the like principle where the arbitrator ordered two persons to pay a debt in proportion to the shares which In propor- tliey held in a certain ship, without saying what they shares in were, the court held it sufficiently certain, as it did not ^bip. appear there was any dispute what their respective shares were (s). (o) Thorp V. Cole, 2 C. M. & {q) Cargey v. Aitcheson, 2 B. & E. 367, S. C. 4 Dowl. 457. C. 170. {p) Holdswortli V. Barsham, (r) Plummer v. Lee, 2 M. & W. 13 L. J. Q. B. 145. ; S. C. in error, 495. 32 L. J. Q. B., sub nomine (s) WoUenberg v. Lageman, 6 Holdsworth v. Wilson. Taunt. 250. 282 » HOW TO AWAIU). Paut II. According to the rule previously mentioned in tlic last °°- ^- ^- ^' section, where an award purports to be made " of and con- Award de cerning the premises," it is held that these words have the presumed cfFect of applying the general words of the award to the certain. particular matters submitted (t). As, for instance, where the award purporting to be of and concerning the matters To pcay referred, ordered the defendant to pay to the plaintiff's of bill attorney a certain sum as the amount of his bill delivered, delivered, -y^ithout Saying what the bill was for, the court sustained it as sufficiently certain, for they said they would intend that the bill was respecting the costs of certain notices of appeal, which was one of the matters submitted, the context show- ing that the costs of the submission and of the reference, which were also submitted, were not included in the amount directed to be paid (tc). To pay _ A submission reciting that the parties were relatives, and shares. entitled to distributive shares of the effects of M. , who died intestate ; that the estate of M. consisted of debts, farm stock, cattle, aiid other effects ; that differences of opinion had arisen respecting the value of the farm stock, cattle, and other effects (not naming the debts), agreed to refer all dis- putes to arbitration. The award which was made touching and concerning the matters in difference found, that the defendant had moneys, farm stock, and cattle (not mention- ing effects), to a certain amount, and after other directions, directed the defendant to pay to the several parties their respective distributive shares of the residue of M.'s estate. The court held the award final and certain, though it did not ascertain the amount of the debts, or of the distributive shares, since, as the award was made of and concerning the premises, the court would presume there was no disjuite respecting them; they held, also, on the same principle, that although the arbitrator found nothing in respect of "■ other effects^'' but ascertained the moneys, farm stock, and cattle, they would not presume there were any other effects than those enumerated {x). (t) Eose V. Spark, 1 Saund. 324, (u) Thorp v. Cole, 4 Dowl. 457, n. (2) ; Al. 51 ; Tliorp v. Colo, 4 S. C. 2 C. M. & E. 367. Dowl. 457, S. C. 2 C. M. & E. 367. (;*;) Perry v. Mitchell, 2 D. «& L. See the last section, p. 258. 452. THE AWARD MUST BE CERTAIN. 283 V. Certainty as to general directions.'] — The arbitrator Part il. must be equally j)recise in his directions to the parties to do °°'^'^' ' any act as in those with respect to payment of money. Arbitrator Hence, it an arbitrator direct a party to give security lor security payment of a specified sum, without naming the kind of ^°"^!^|. .^^ security, this is void for the uncertainty (y). So if he direct uature. the defendant to enter into a bond to the plaintifif condi- tioned that the plaintift" and his wife should enjoy certain lands, the award will be void for uncertainty if he do not specify the amount of the bond {£). In one case, however, where a sum was directed by the award to be paid, or to be secured to be paid, within a week from the date of the award, •the court held that the party must within the time either pay the sum, or give such security as was satisfactory to the party entitled to receive the money {a). If the ^"«* arbitrator order a party to give up a document described property merely as "a certain obligation " (<5), or to deliver up ^*^i'^^<^- '' three boxes and several books," without specifying the number or otherwise . identifying the books, the direction is void {c). We shall subsequently have occasion to notice the degree of sj^ecification and certainty requisite in the directions re- si^ecting alterations in the property of the parties or regu- lating their mode of carrying on their business, when the arbitrator is empowered to say what shall be done by the parties respecting the matters in difference {(1). A reasonable degree of precision is all that -is required of Reasonable the arbitrator. Hence a dh-ection to a mortgagee to reassign sufficient, the mortgaged lands is sufficient, although it do not state for what period the reassignment is to be ; for the court will intend that it is to be extended to the whole interest mort- gaged (e). A direction that a nuisance erected on the de- To puii fendant's land should be pulled down, without saying by nuisance. whom, has been held certain enough, on the ground that it (y) Tipping v. Sniitli, 2 Stra. {h) Bedam v. Clerkson, 1 Ld. 1024 ; Thinne v. Eigby, Cro. Jac. Eaym. 123. 314. See Duport v. Wildgoose, 2 (c) Cockson v. Ogle, 1 Lutw. Bulst. 260. 550. (2) Samon's Case, 5 Eep. 77 b. [d) See P. II. Ch. 8, s. 2, dd. 2, 3. \a) Simmons v. Swaine, 1 Taunt. [e) Eosse v. Hodges, 1 Ld. 548. Eaym. 233. 284 HOW TO AWARD. Part II. will be intended that the defendant, who is the owner of the ""•^•^•^- soil, is the party meant to pull it down {J"). Defendant An award that the defendant or his executors or adminis- or GXGCU" tors to re- trators shall execute a release to the plaintiff, was held release. j^q|. ^q j^g y^^^j ^^^ uncertainty, and that it might be read as it were he and his executors and administrators were to do the act, and that the introduction of the personal represen- tatives into the award was but cautionary, and would not vitiate it, since executors and administrators are by law bound by the submission of the testator, and the award creates a duty {g). Not saying "jj^g arbitrator must specify the particular party who is to two to do perform what the award directs. Therefore, where by the • ^'^^' submission the arbitrator was to direct at what price A. or B. should purchase a certain piece of land, and the arbi- trator, following the submission, directed that A. or B. should purchase it at a certain price, the court set aside the award for uncertainty, as the arbitrator, as well as ascertain- ing the price, ought to have decided which of the two was to purchase it (Ji). ^° P'^^ But awarding payment to be made to the plaintiff, or to his attor- A., his attorney in the cause, is sufficient (^). ^^' Directing the defendant to pay the plaintiff a sum of upon proof mouey upon proof that the plaintiff has discharged certain thingsdone. claims, is uncertain, for not saying to whom the proof is to be made (Ji). Defendant On the reference of an action, directing the defendant to to pay costs ^^^^ costs of the reference and award, is sufficient not saying i -^ _ ' to whom, without saying to whom they are to be paid, for the plaintiff' will be intended to be the party to receive them (J). (/) Ai-mitt V. Breame, 2 Ld. & J. 16. Raym. 1076, S. C. 1 Salk. 76; {i) Hare v. Fleay, 11 C. B. 472. Com. Dig. Arb. E. 11. (^•) MiUer v. De Bui-gh, 4 Ex. {g) Freeman v. Barnard, 1 Ld. 809. Eaym. 247 ; Bac. Ab. Ai-b. E. 4 ; {I) Baily v. Cuiling, 20 L. J. Dawney v. Vesey, 2 Vent. 249. Q. B. 235. [h) Lawrence v. Hodgson, 1 Y. THE AWARD MUi^T BE MUTUAL. 285 SECTION VL THE AWARD MUST BE MUTUAL. In the old cases ^reat stress is laid on the necessity of the ^^^'^ '■^• . OH. V. s. 6. award being mutual. It is said that awards must not be on ' L one side only : that they are void unless something be arbi- ^''™ftj|""S •^ ' "^ o must be trated for the defendant's benefit as well as for the plain- awarded tiff's ; that all controversies being between two parties, that p°[i.ties. which is awarded to be done by one must be an advantage to both, so as to end the controversy and discharge one as well as give satisfaction to the other; for if it do not it is manifestly unjust, and therefore whenever it appears to the court that notwithstanding the award the thing remains a duty as before, and is not discharged, that apparently is an award on one side, and consequently void (m). Nothing more, however, is requisite to be done to form Compensa- the mutuality of an award, than that the thing awarded to ed must be be done should be a final discharge of all future claim by ^^ discbarge o _ _ "^ 01 claim. the party in whose favour the award is made against the other for the cause submitted; and if one party alone be ordered to do something, and nothing else appear to the court, it shall be presumed that he alone is the wrong doer, and the award is good if it have the effect of releasing him from all future liability in respect of the wrong (/^). Where, in the case of a trespass submitted, the arbitrator Old rule of awarded that one party should pay the other a certain sum, tion. this formerly was held to be a void award as being only on one side, on the ground that as the award did not say for what the money was to be paid, that the trespass was not discharged, and that the party ordered to pay received no advantage by the award; but it was said, if it had been awarded de et super preemissis, it would have been well enough : likewise if the award had been that he should pay the money Jbr the trespass it had been good, for though only one party was to do the act, yet that the trespass by {m) Bac. Ab. Arb. E. 3 ; Stains {n) Bac. Ab. Ai-b. E. 3. V. Wild, Cro. Jac. 352. 286 HOW TO AWARD. Part II. that award would have been discharged, and so both parties *^°- ^- ^- ^- would have received an advantage {o). In another old case, Award de where there were disputes between A. and B., and C. as attorney lor B. submitted to an award respecting the diiferences between A. and B., and the arbitrator awarded that C. should pay A. a certain sum, that A. and C. should execute mutual releases, viz., that A. should sign a release to C. to the use of C, and that C. should sign a release to A. to the use of A., the award was held bad as not being mutual, on the ground that nothing was awarded to B. or to B.'s benefit, but that it would have been good if the release to be made by A. to C. had been awarded to B. for B.'s benefit, or if it had been to C. generally, for then it might have been intended to be for B.'s use, since the submission was on B.'s behalf, but that as it was to C. for the use of C. such intendment could not be made (/>). An award that one shall pay so much for arrears of rent is mutual, since the word "/or" implies that it is to be in satisfaction of the arrears, and so both parties are bene- fited {q). So an award to pay 5s. for having made the first breach in the law is plainly in satisfaction and discharge of the breach (r). So, also, an award for a debtor to pay a debt is mutual, as the payment is manifestly intended as a discharge of the debt(s). An award that all suits shall cease is mutual, since it has the effect of a release {t). Sum Awards contrary to justice are equally objectionable now awarded as cver, but Icss strictucss and critical nicety is now used insatisfac- i^^ construing these instruments than formerly. It is not tion. now necessary, whatever it may have been, that an award should express that a sum awarded to be paid, or an act to be done in favour of one of the parties, shall be in satisfac- tion, or that it should contain any equivalent terms ; a dis- charge to the other must necessarily be presumed from the • (o) Nichols V. Grunnion, Hob. {q) Hopper v. Hackett, 1 Lev. 49 ; Horton v. Benson, Freem. 132. 204 ; Bac. Ab. Aib. E. 3 ; EoU. (r) Hawkins v. Colclougli, 1 Ab. Alb. K. p. 253 ; Ayland v. Buir. 275. Nicbolls, Freem. 265 ; Ormelade (s) Baspoole v. Freeman, Cro. V. Coke, Cro. Jac. 354 ; Veale v. Ja«. 285, S. C. 8 Rep. 97, b ; El- Warner, 1 Saund. 327, n. 2. liott y. Cbevall, 1 Lutw. 541. (p) Bacon v. Dubarry, 1 Ld. {t) Strangford v. Green, 2 Mod. Eaym. 246 ; Caybill v. Fitzgerald, 228 ; Harris v. Knipe, 1 Lev. 58 ; 1 WHs. 28, 58. V. Palmer, 12 Mod. 234. THE AWARD MUST BR MUTUAL. 287 payment of the sum or the performance of the act (2c). If Part ii. the arbitrator direct the deTendant to pay the plaintiff a — ' ' ' ' sum without saying in respect of what it is to be paid, and the reference be of a cause only, the court will presume the payment is to be in respect of the plaintiff's claim in the cause (x). If trespass be for taking and detaining the plaintiff's Award beasts, and the arbitrator award merely that the owner shall unequal, have his beasts again, this is said in the old books to be void on the ground that it is against natural justice to give him his own again, without satisfaction for the unjust taking and detention (y). So if an award be that the owner shall have parcel of his own goods. But if the arbitrator award, whereas the parties are indebted to each other in the like sum, or have done each other a trespass, that they should release each other, this is mutual and good {z). An objection was often made to awards affecting infants when in- and married women on the ground of want of mutuality, for |||^*^ig^'^ it was said that as these could not be forced to comply with ^omen the directions of the award, imposing burdens on them for p^"^*'®^- the benefit of the other parties, it was not reasonable that the latter should be bound by the provisions affecting them- selves, as they had no reciprocal benefit insured. Thus the Court of Chancery, in an old case, set aside an award which awarded a sum of money to an infant, and that a bond should be given by the guardian that the infant should at his full age convey certain lands, on the ground that it was unreasonable and not mutual, since the infant might die, or if he lived to full age, might refuse to convey (a). The principle has been sanctioned by the Court of Queen's Bench at no very distant period (b). But it may be doubted whether this objection will be entertained at the present day, for the rule now acted upon by the courts of law seems to be, that when a party has voluntarily and knowingly («) Thomlinson v. AiTiskin, Ab. Arb. I. 3, p. 251. Com. Eop. 328 ; Cooper v. Hirst, (z) Bac. Ab. Ai-b. E. 3 ; Eolle 1 Lutw. 539 ; Veale v. Warner, 1 Ab. Ai-b. I. 6, 7, p. 252. Saund. 327, n. 2. (a) Cavendish v. , 1 Cas. in {x) Hobson v. Stewart, 4 D. & Cbanc. 279. L. 589. (b) BiddeU v. Dowse, 6 B. & C. (y) Bac. Ab. Aib. E. 3. ; EoUe 255. 288 HOW TO AWARD. Part II. entered into a submission with married women or infants, ""•^•^•'^' and an award has been made, the court will refuse to set it aside on the ground that the married women or infants are not bound by it, as the party knew beforehand that they could not be bound, and therefore has all the consideration for his agreeing to the submission for which he stipulated, and if he did not mean to be satisfied with such effect as the award could have upon them, he ought never to have consented to the reference {c). The objection, however, is really an objection to the sub- mission rather than to the award in most cases, and has been more fully considered in the previous part of this work concerning the parties to a submission, where it treats of the capacity of infants (d) and femes covert (e) to enter into a reference. SECTION VII. THE AWARD MUST BE POSSIBLE AND CONSISTENT. Impossible An award ought to be possible. If the arbitrator award a thing impossible ex natura rei, as to surrender an estate or to pay a sum of money at a day already past, the award will be void. But if he direct a thing to be done which cannot be done, but which is not in the nature of the act itself con- tradictory or repugnant, this may be a good award, as an award that one shall pay twenty pounds when he has not twenty pence, for no contradiction appears on the award itself(/). If an act possible at first afterwards become impossible by the act of the party or of a stranger, the party is not freed from his obligation to perform the award (y). If the award direct a party to do or to cause to be done (c) Warner, In re, 2 D. & L. 16. 148; Wrightsonv. Bywater, 3M. (/) Com. Dig. Arb. E. 12; & W. 199 ; Jones v. PoweU, 6 Eoile Ab. Arb. E. p. 248 ; Eolle Dowl. 483. Ab. Ai-b. F. ; Bac. Ab. Arb. E. {d) See P. I. Ch. 2, s. 1, d. 4, p. 4 ; Colwel v. Child, Cas. in Cbanc. 18. 86. (e) See P. I. Cb. 2, s. 1, d. 2, p. (g) Com. Dig. Ai'b. E. 12. THE A^VAllD MUST BE CONSISTENT. 289 an act which is iiresumably not Avithin his power to effect, Part ii. as to turn the river Thames, the direction will be void {A). ""• '^^ ^- '^' An award must be an intelligible and consistent instru- Unintciiigi- ment (/). Great strictness was formerly held in construing awards. Tims an award to pay a sum " on the said first day of May," when no such day had been previously men- tioned, was in an old case held void {k). It is said ih an old report that if there be any contradic- Contradic- tion in the words of an award, so that one jxirt cannot stand *°''^^*^'^ • with the other, the first part shall stand and the second be rejected ; yet if the latter be but an exi)]anation of the former, then both parts shall stand (I). A more liberal interpretation of awards is now adoj)ted Award than formerly, and the courts will strive, as far as they inconsis^ sensibly can, to put sucli a construction on them as will ^^^' sustain them despite of any aj)i)arent inconsistency or re- pugnancy (w). Thus an award directing proceedings in the actions (several of which were referred) to cease, and also directing judgment to be entered up in one of them (an ejectment) was held not to be an inconsistent award, since by reading together the two directions, this construction was put on it by the court, that the award meant that the action of ejectment was to cease, unless the defendant failed to give np the premises by a certain day, in which event the lessors of the plaintiff were to enter up judgment and take out their execution (/^). Where, however, the award is manifestly inconsistent and Repugnant rejDUgnant, the court will set it aside. On an action for a a^de. ^^ fraudulent representation of A.'s circumstances, the arbi- trator found in his award that the defendant, in answer to the plaintiffs' inquiries respecting A.'s conduct, had not given a fair representation, but had omitted to state material facts. Tlie arbitrator, however, distinctly acquitted the defendant of all fraud at the time of making the repre- {h) Bac. Ab. Ai'b. E. 4 ; Co. Ai-b. 254, 263. Lit. 206. (0 Perry v. Bony, 3 Bulst. 62. (t) Storke v. De Snieth, Willes, (m) Templeman v. Eeed, In re, 66 ; Sherry v. Richardson, Poj). 9 Dowl. 9G2 ; Stonehewer v. 15. See Doe d. Oxenden v. Crop- Farrar, 9 Jui-. 203. per, 10 A. & E. 197. {ii) Jones v, PoweU, 6 Dowl. {k) Com. Dig. Arb. E. 11; 483. Markham v. Jennings, Eolle Ab. 290 HOW TO AWARD. Tart II. scntatioii, yet thinking himself, as he stated, Ijound by ciujv^^^s^ adjudg-ed cases to decide that knowledge of the falsehood of the statement was fraud and deceit, he concluded by awarding in favour of the plaintiffs. The court held the arbitrator's law to be wi'ong, and set aside the award, Parke, J., saying, "The conclusion to which the arbitrator has come in this case is quite absurd. He says, I think he is innocent, and then awards against him " {o). Finding ou The neccssity of finding on eacli issue has sometimes tent issues, oxposed the arbitrator to a charge of making an inconsistent award, but the two following cases will free him from any ungrounded apprehension on that score. In an action on an agreement, the defendant, by his first plea, denied the agreement, in the second the breach, in the third he admitted the agreement, but alleged it was rescinded before breach ; in another plea that it was varied by consent. There were other pleas also. The arbitrator awarded a general verdict to be entered for the defendant. The court, treating this as equivalent to a finding for the defendant on each issue, held that such a finding of inconsistent pleas in favour of the defendant did not render the award inconsistent, as possibly if the cause had been tried at Nisi Prius the circumstances of the case might have warranted such a finding (ju). In debt the pleas of nunquam indebitatus and payment may consistently both be found for the defendant, for if on a trial the plaintiff had failed in proof of his case, and the defendant proved a payment, the verdict would be entered for the defendant on both issues (q). So where to an action of assumpsit on a retainer to pro- ject certain works, and to examine certain bills with care, the defendant pleaded, 1st, non assumpsit, 2nd, no retainer, 8rd, that the defendant did use care in projecting the works, 4th, that he did use care in examining the bills. The award found for the defendant on the 1st, 2nd, and 4th issues, and for the plaintiff on the 3rd. It was held that the award was good, and not repugnant, for that the finding on the 3rd and (o) Ames V. Milwarcl, 8 Taimt. See Brown v. Ilellaby, 26 L. J. 637. Ex. 217, S. C. 1 H. & N. 729. {2>) Cooper v. Langclon, 9 M. (q) Maloney v. Stockley, 4 M. vt W. 60, S. C. 1 Dowl. N. S. ;392. & G. 647. THE AWAKl) MUST ISH CONSISTEN'I'. 291 4tli issues must bo regarded as hypothetical, and only for Pakt II. the purpose of deterniiuing the costs of them (r). ^"- ''■ ^- '^- Where the plaintiff declared in case, alleging- that he was entitled to the reversion in a close, that a person named Hearn had wrongfully and injuriously erected incimibrances thereon, and that defendant had Avi'ongfully and injuriously kept and continued the incumbrances so wrongfully erected, and the defendant pleaded, 1st, not guilty, 2nd, that Hearn did not erect the incumbrances on the close; an award directing a verdict for the plaintiff on the first plea, and for the defendant on the second, Avas held not to be inconsistent, since the first plea put in issue only the continuance of the nuisance by the defendant, and not the erection by Hearn (6-). It is said that an award Ought to be reasonable, and that Whether therefore an award that one party should serve the other for te relX'* two years is void (t), or that one should release his right '^'^^e. to the land in satisfaction of. a tresj)ass {u). The courts in general, though probably at the present day they would consider the award, in the first instance at least, to be void, as exceeding the authority given, decline examining into the reasonableness of the arbitrator's decision {x) ; and the courts of equity will enforce a specific performance of an award, notwithstanding it appears to be unreasonable in some respects. Hence, although the question whether the vendor could make a good title to an estate was depending in a suit in the Exchequer, the Court of Chancery comjDelled one of the vendees, in pursuance of the award, to join the othei' in the sale of their equitable interest under the contract, although the court was of opinion that forcing the sale while the title was in dispute was unreasonable, and must depreciate the property (y). (;•) Duke of Beaufort v. Welch, (u) Com. Dig. Arb. E. 13 ; Eolle 10 A. & E. 527. Ab. Arb. B. 13, p. 243. (s) Grenfell v. Edgcome, 7 {x) "Waller v. King, 9 Mod. 63. Q. B. 661. (V) Wood V. Griffith, 1 Swanst. {t) Com. Dig. Ai-b. E. 13 ; EoUe 43. Ab. Arb. B. 12, p. 243. V 2 292 now TO AWAliD. SECTION VIII. THE AWABD, HOW AFFECTED BY A MISTAKE OF THE AllBITRATOK. Effect of mistake, award good on its face. No distino- tion be- tween lay and legal arbitrator. General rule, arbi- trator's de- I. When the award is good an its face.'] — It is a point of some importance to ascertain liow fixr, wlien the arbitrator has done liis best to arrive at a right determination, and when there is nothing on the face of the award to show that the decision is wrong, the com'ts will listen to the suggestion that he has made a mistaken decision on questions of law or fact. On one occasion, when an arbitrator's decision was questioned on the ground of mistake. Lord Ellenborough, C. J., said that he feared it was impossible to lay down any ireneral and certain rule to indicate in what cases the court would refuse to allow an award to be opened {z). For some time the common law courts made a distinction between a legal and a lay arbitrator, holding that when the merits both of law and fact were referred to a barrister, the court would not open the award for any alleged mistake unless something could be urged that amounted to a per- verse misconstruction of the law, but they did not entertain the same confidence in the competency and probity of a non- legal arbitrator (a). This distinction, however, has been done away, and it has been settled by repeated decisions that the awards of legal and of lay arbitrators will be treated by the courts of law on exactly the same principles (b). In the courts of equity no such distinction was ever recog- nized (c). A close examination of the cases compels one to say that one uniform principle has not been adhered to as to the 356. («) 356; 504; 679; 104; E. 3. ('>) 330; 705, Chace v. Westmore, 13 East, Chace V. Westmore, 13 East, Sharman v. Bell, 5 M. & S. Perriman v. Steggull, 9 Bing. Cramp v. Symons, 1 Bing. Williams v. Jones, 5 M. & Marsh, In re, 16 L. J. Q. B. Fuller V. Fenwick, 3 C. B. S. C. 16 L. J. C. P. 79; Brown v. Croydon Canal Co., 9 A. & E. 522 ; Ashton v. PojTiter, 3 Dowl. 201 ; Jupp v. Grayson, 3 Dowl. 199 ; Huntig v. Ealling, 8 Dowl. 879. SeeWadev.Malpas, 2 Dowl. 638 ; Wilson v. King, 2 Dowl. 538, n. a., S. C. 2 C. & M. 689. (r) Ching V. Ching, 6 Vos. 281 ; Steff Y. Andrews, 2 Madd. 6. MISTAKE IN AWARD. 293 consequences of a mistake. Greater latitude was allowed Part ii. formerly in reviewing the arbitrator's judgment than the °"- "v- s- 8 . courts would be disposed to permit at present. The general cision on rule is, that as arbitrators are judges of the parties' own f!^^!^ p,,,'^, choosing, they cannot object to their decision as an un- reasonable judgment, or a judgment against law {cl). They cannot impeach it as an erroneous judgment on the facts {e), or raise objections to it which involve questions arising altogether on the merits {/), whether the arbitrators have expressed their determination in an award, or merely in a certificate (y). No court of law or equity has any cognizance by way of appeal from the arbitrator's decision (A). Thus where an action by a London apothecary for the Claim by amount of his bill was referred, and the arbitrator awarded '^^'° ^^^^' a certain sum to the plaintiff, the court refused to permit the award to be impeached by affidavits offered to show that the arbitrator had allowed charges for attendances, which a London apothecary was not legally entitled to make, and held the award conclusive, there being nothing on the face of it to warrant the objection (/). In a recent case, an arbitrator having awarded that some Decision on pleas demurred to were good, and the declaration bad in ^ '' '^™""'^''- substance, on a motion to set aside the award on the ground that the arbitrator had manifestly come to an erroneous decision respecting the validity of the pleas in law, the court refused to entertain the question, as the demurrers were among the things referred, and there was nothing in the reference empowering the parties to appeal to the court as a court of error upon the judgment given on the demurrers, and Wilde, 0. J., said, " The court has no more authority (d) Fuller V. Fenwick, 3 C. B. Bagiiloy v. Mackwick, 30 L. J, 705, S. C. IG L. J. C. P. 79; C. P. 342 ; S. C. 10 C. B. N. S. 61. Marsli, In re, 16 L. J. Q. B. 330; (/) Winter v. Lethbridge, 13 Steff V. Andi-ews, 2MacI(l. 6; Ives Price, 533; Bro\m v. Brown, 1 V. MetcaKe, 1 Atk. 63; Evans v. Vern. 157 ; Lancaster v. Heniing- Pratt, 3 M. & G. 759; Hogg v. ton, 4 A. & E. 345; Bouttilier V. Bui-gess, 3 H. & N. 293, S. 0. 27 Thick, 1 D. & E. 366 ; HiU v. L. J. Ex. 318 ; Hodgkinson v. Ball, 1 Dow. N. S. 164. Fernie, 27 L. J. C. P. 66, S. C. 3 (g) Price v. Price, 9 Dowl. 334. C. B. N. S. ISO ; Bagnley V. Mack- {h) Goodman v. Sayers, 2 J. & wick, 30 L. J. C. P. 342, S. C. 10 W. 249. C. B. N. S. 61. {i) Genskam v. Germain, 11 (e) Morgan v. Mather, 2 Ves. Moore, 1. 17 ; Dick v. Milligan, 2 Yes. 23 ; 294 now TO award. Part II. to review the arbitrator's decision upon a point of law c"- V- s- 8- referred to liini, than upon a point of fact. Whatever may have been formerly the understanding, it is enough to say that in modern times the decisions are distinct and uniform, that if parties choose to refer a matter of law to an arbi- trator, his decision uj)on the matter is final " {k). Liquidated On the same principle the court refused to grant a rule '^enaif^"^^ to sct aside an award on a suggestion that the arbitrator had improperly treated as a penalty that which was by the express contract of the parties stipulated and ascertained damages {I). Deciding So whcre the claims in an action of debt were referred, dama<'e°s^to ^^^^ the arbitrator received evidence of a claim for damages be a debt. foi> a breach of covenant in not delivering up some lands which were claimed as a debt notwithstanding the defendant objected that such claim did not constitute a debt recover- able in the action ; and the award was made for an amount which evidently included a compensation in respect of this claim, the Court of Exchequer granted a rule to enforce the award, saying that the arbitrator was the judge of law and fact, and that as he had taken upon himself to decide whether this claim was a debt, or only a ground for damages, and he had decided it to be a debt, though j)ossibly wrongly, the parties were concluded by his decision (tn). Decision j|- c^unot be alleged as a ground for setting aside an contrary to _ ° . . evidence, award, that the decision of the arbitrator is contrary to the evidence (n). Exceptions There are, however, very many cases which recognize an- on ground , -^ 7 ^ j o of mistake, cxtensivo head of exceptions on the ground of mistake, and which show that the com-ts, as a matter of course, in many cases investigated the correctness of the principles on which Reviewing the arbitrator founded his decision (o). Thus, where an attorney had brought an action on a bill not taxable, and it was referred to the clerk of assize, the Court of Exchequer {k\ Emmerson v. Simpson, I)oe L. J. C. P. 66, S. C. 3 C. B. N. S. d. Simpson v. Emmerson, Law 189. Times, June 5, 1847. (n) Bradshaw's Arbitration, 12 ^ (1) Fiiller T. Fenwick, 3 C. B. Q. B. 562. 705. (0) Hardy v. Innes, 6 Moore, {m) Faviel v. Eastern Counties 574 ; Johnson v. Durant, 2 B. & Eailway Company, 2 Ex. 344. Ad. 925. See Hodgkinson v. Fernie, 27 MISTAKE IN AWARD, 295 lieUl that it was competent for them to examine whetlier the p^^rt H- arbitrator had adopted the right rule of taxation {]>). en. t. s. 8. In Lord Ekhm's time a somewliat refined distinction was Pure ques- raade, for it was hehl th-it if a pto-e cpiestion of hiw were referred to an arbitrator, his decision on it, whether right or wrong, was final, as such a reference amounted in effect to an agreement by the parties to be bound by whatever he shoukl say to be the law between them {q); yet on a mixed mx^di question of law and fact, which tlie arbitrator was bound to ?a"vtnd' decide according to law, if intending to decide according to fact. law he arrived at a wrong conclusion on the question of law, it was said that the court would set the award aside, as it was not what he intended it to be, namely, a decision according to law (r). It was laid down as law, in 1715, by Lord Chancellor Harcourt, that if it appeared that the arbitrator proceeded upon a^^'/a/;? mistake, either as to the law, or in a matter of fact, the award would be set aside in like manner as it would for an error apj^earing in the body of the award (s). This view of the law was sanctioned in numerous in- pjaia mig. stances {f). But if the point of law were a doubtful one (ti), t^^^- or the error in tact could only be detected by unravelling matters of account (^), the Court of Chancery would give no relief against the decision of the arbitrator. Yet in one instance Lord Chancellor Loughborough said he could not set aside the award on motion, supposing that it appeared that by a mistake of calculation the arbitrators had awarded a wrong sum, though he intimated a doubt whether in the case of such an evident mistake the court would enforce the award by attachment (y). In a late case, where an action was referred at Nisi Prius, an attempt was made to set aside the award by bill in Chancer}'", on the ground chiefly that the arbitrator had {p) Broadliiu'st v. Darlington, (s) Cornefortli v. Greer, 2 Vern. 2 Dowl. 38. T05. {q) Cliing v. Cliing, 6 Ves. 281 ; {t) Anon. 3 Atk. 644 ; Eichard- Young T. Walter, 9 Ves. 364 ; son v. Nom-se, 3 B. & MA. 237. Steff V. Andrews, 2 Madd. 6 ; {u) Eidout v. Pain, 3 Atk. 486, Price V. HolHs, 1 M. & S. 105. S. C. 1 Ves. 11. (r) Kent v. Elstob, 3 East, lY ; (a-) Brown v. Brown, 1 Vern. Yomig V. Walter, 9 Ves. 364 ; 157. Broa&urst v. Darlington, 2 Dowl. {y) Morgan v. Mather, 2 Ves. 38. Jr. 15. 296 HOW TO AWAliD. Tart II, treated as a settled account a document which was not so. ^"- ^- ^- ^- Lord Cottenham, C, liowever, dismissed the bill, on the ground that the court had no jurisdiction to correct the mistake if there were one, there being no proof of mis- conduct on the part of the arbitrator, or fraud on that of the defendants {z). Award set rpj^g result of the numerous cases cited seems clearly to aside tor _ •' gross mis- establish that though the courts could not interfere with the arbitrator's decision on the simple ground that he had judged erroneously, yet where there was a clear gross mistake affecting the result of the award, and that admitted or made out to the satisfaction of the arbitrators (as to which Lord Thurlow insisted on having their afiftdavits), the courts both of law and equity would, as a general rule not many years ago, liave set aside the award {a). Jiodern Whether this rule will be followed in equity at the pre- rule, award . . i ./ j. not im- sent day is perhaps uncertain, as the courts of law are now IbTmistake. evidently inclined to hold that an award good on its face is not to be imi^eached on the ground of mistake alone {b). It is clear that for an admitted mistake of the arbitrator a court of equity will refer back an award (c). Mistake j^^ q^q cixse. A. claiming two sums to be due to him from am(jUnting ^ _ o to miscon- B., the Contention before the arbitrators was merely whether A. was entitled to both, or to only one of the simis, and the arbitrators, though meaning to give A. both sums, instead of adding them together, by mistake deducted the smaller from the greater, and instead of directing B. to pay A., awarded that the payment should be made by A. to B. The Court of Common Pleas, labouring to find a reason for setting aside this incorrect and inequitable award, did not rest on the simple ground of mistake, but adverting to the circumstance that the award did not express the intention of the arbitrators, held that the mistake and negligence were (2) Cliuck V. Cremer, 17 L. J. Ill ; Wade v. Huntley, 2 Tidd Clu 287. Pr. 841, 9tli ed. ; Hardy v. Eing- (a) Knox v. Symmonds, 1 Ves. rose, 1 H. & W. 185. Jr. 369; Anderson v. Darcy, 18 {h) Fuller v. Fenwick, 3 C. B. Ves. 447; Delver v. Barnes, 1 705; Hodgkinson v. Fernie, 27 duct. Taunt. 48; Anon. 2 Chitt. 44 Payne v. BaiUey, 7 Moore, 147 Ward V. Dean, 3 B. & Ad. 234 Potter V. Newman, 4 Dowl. 504 Rogers v. Dallimoro, 6 Taunt L. J. C. P. 66, S. C. 3 C. B. N. S. 189. (c) Mills V. Bowj^ev's Society, 3 Kay & J, 66. MISTAKE IN AWARP. 297 SO gross as to ainoiuit, in the judicial sense of the term, to Part li. misconduct in tlie arbitrators, and so to justify tlie court in ^"- ^' ^- ^ ' setting aside the award (c/), Tlie Court of Exchequer have gone still further from the Exdiequer old rule above cited, and have avowedly adopted the prin- asideaward ciple that awards ought not to be set aside for mistakes, f'"" '"is- . . . . take. and express their dissatisfaction with the above decision l7i re Hall . Part ii. in liis award a large sum atluiitted to l)e due to the ''^- ^- «• ^ plaintiff (/). Award by When a gross mistake has been made hy an arl)itrator, not the J^s wlien onc snm has been put for another, the award, miud of the thouffli the writing of the arbitrator, may in some cases arbitrator. ^ ° . . , , reasonably be considered as not his award, it not l)emg the intentional decision of his mind (in). Statements by arbi- trator after award made. Whether admissible to affect award. Statement of reasons delivered •with award, received. II. Effect of extrinsic statements hy the arbitrator showing a mistake on his partJ] — After the award is made, the power of the arbitrator is at an end to alter the rights of the parties as settled by it, except in so far as his statements made subse- quently to it are admissible to affect it. These subseqvient statements are to be distinguished from the statements made by the arbitrator during the reference. What the arbitrator says in the course of the proceedings may some- times be given in evidence as part of the transactions them- selves, for his statements may amount to acts, and are different from mere narrations of former acts or former processes of thought. In such case they are admissible in evidence when the rest of the jiroceedings in the reference can be inquired into. What we now proceed to consider is the effect of statements made subsequent to the award. When an award is good on its face, the cases do not all agree in showing how far the courts will allow it to be im- peached by extraneous evidence of statements of the arbi- trator, showing that he has decided on reasons not tenable in law. As the courts of law are now inclined to hold that awards are not to be impeached for mistakes in law or fact not apparent on the award, they will, it is apprehended, at the present day in general reject such statements (w). In the older cases, however, a different rule prevailed. On a reference respecting an injury to a ship at sea, where the arbitrator delivered a paper with his award, stating his {I) HutcMnson v. Shepperton, 13 a B. 955. (m) Brown v. Hellaby, 26 L.J. Ex. 217, S. 0. 6 H. & N. 729. See Whitniore v. Smitli, 31 L. J. Ex. 107, S. C. 7 H. & N. 509. {n) See Leggo v. Young, 16 C. B. 626, S. C. 24 L. J, 0. P. 200; Hogg V. Burgess, 27 L. J. Ex. 318, S. C. 3 H. & N. 293, explained in Holgate v. Killick, 31 L. J. Ex. 7, S. C. 7 H. «& N. 418. MISTAKE IN AWARD. 299 reasons, the court treated this statement as embodied in the Part ir. award, and consequently set tlic award aside, as it ai)peared ""•'^•^- ^- that the arbitrator liad acted on sume marine hiw, and not on the hiw of England, in deciding on the right to damages {o). In another instance, where the arbitrator, having decided Case stated . . .,„ . . with that the defendant was indebted to the plaintiff in a certain award, sum in the cause referred, delivered to the parties with his award a certificate, stating his wish that the defendant should not be precluded from taking the opinion of the Court of King's Bench on a point of law, and certifying certain facts which showed that the plaintiff and defendant were partners ; the court, as a matter of course, and without any objection made, took notice of the facts stated in the certificate, and set aside the award, holding the action not maintainable on the ground of the partnership (j»j). In a third case, where the arbitrator awarded a verdict Statement for the defendant, and annexed to the award a. certificate in paper statins; the facts, and that on his construction of the annexed to o ' award. Building Act the plaintiff was not entitled to recover, the validity of the arbitrator's decision was fully discussed on a rule to set aside the award, which was ultimately dis- charged, the court agreeing with the arbitrator in his view of the law {q). The court on one occasion took into consideration, and I'e,^*^'' °^ 1 • arbitrator. set aside an award on a letter of the arbitrator, showing that the award extended to matters not within the sub- mission (r). We have seen in the preceding pages that where a mis- Affidavit by take was alleged as the ground of setting aside an award, I] mistake. the statements of the arbitrator were not only admitted, but his affidavit in some instances required {s). Under the following circumstances, the Coiirt of Common Statement Pleas received a statement from the arbitrator to impeach ^Lurt's^ his decision. An action against executors for work done opinion, to the testator's house during his lifetime, was referred, (o) Kent V. Elstob, 3 East, 18 ; L. J. C. P. 201, per Wilde, C. J. Sharman v. BeU, o M. & S. 504. (r) The Ayi-e and Caldei; Navi- {p) Holmes v. Higgins, 1 B. & gation case, cited in Williams v. C. 74. Jones, o M. & E. 3. (g) Pratt v. Hillman, 4 B. & C. (s) See the previous division of 269. See Toby v. Lovibond, 17 this section. 300 HOW TO AWAllU. Taut II. "witli all matters in difFercncc between the i^arties and the cH.v. s. 8. jjgjj, Qf i\^Q testator, wlio became a party to the reference. The plaintiff had done work to the house after the testator's death. The arbitrator directed the verdict for the plaintiff to stand for a specified amount, and awarded that the })laintiff had no further claim ujion the defendants or the heir. The defendants having- applied to the arbitrator, the latter, for the purpose of enabling the defendants to make an application to the court to review his decision, stated that the construction he had put upon the order of reference was, that if anything were due to the jilaintiff either from the defendants or the heir, whether such debt were the suljject of the action or not, the verdict in that action was to stand for the whole amount, and that he had acted on that prin- ciple in making his award. It was held by the court that though such statements, after the i:)roceedings were finished, were not admissible in ordinary cases to imjoeach the award, yet that t^iey were admissible here, as this case was an ex- ception to the general rule, where the arbitrator on being told that his judgment was to be reviewed, for the purpose of enabling the defendant to appeal, assigned the ground of his judgment, and showed that he had mistaken his l^owers (t). In a recent case where the arbitrator for a like cause had, after award made, set forth in a letter the ground of his judgment, and Jones v. Cony {t) was relied upon in suj)port of an application to refer the award back that the arbitrator might state a case, the Court of Queen's Bench seemed dis- inclined to follow that decision, but distinguished the case before them, and refused the rule on the ground that the party had not applied to the arbitrator during the reference to state a case {u). Modern Older cases, however, are not wanting which show that ments of * ^10 courts liavc declined to receive statements of the arbi- thearbi- trator to impugn the award. trator not - ,. ,, receivable. Ihus, when prcvious matters have been settled by an Letter of award, a second arbitrator, to whom other differences were rejected, referred, the day before he made his aWard for the defendant (t) Jones V. Corry, oBing.N. C. v. St. Paul's, Shadwcll, 32 L. J. 187. Q.B. 30. («) The London Dock Company MlhiTAKE IN AWAltl). 301 wrote a letter to tlie plaiutifF'.s attorney, stating tliat he felt Part ir. himself bound to make an award in favour of the defendant, <^°- ^- ^- ^- on tlie ground that the matter in dispute liad arisen before the former reference, and that althougli lie thouglit the first arbitrator mistaken, he considered himself concluded by his award ; a motion liaving been made to set aside the award on the ground of tlie arbitrator being mistaken in supposing himself concluded by the first award, the court refused to entertain the question, the arl>itrator not having raised it on tlie award itself, or on any jjaper annexed (y). In another case, on a motion to set aside an award, where Letter of arbitrators, who were barristers, wrote letters explaining arbitrator, what were the matters in difference, and the course the mat- ters took on the reference, Pollock, C. B., seemed to think he might look upon the letters, since they were barristers', as good as affidavits, but Parke, B., doubted whether the court could notice them at all {x). Where an award ordered that if certain sums of money Statement were restored to the defendants they should pay them over award. "'^ to the plaintiff, the court refused to receive an affidavit of one of the arbitrators to explain the intention of this clause (;y). So, in a modern case, where the plaintiff was entitled to l^etter of the costs of the cause, and the arbitrator directed each party to show his to pay half the costs of the reference, and the master allowed i°*'eawon- the plaintifl" only half the costs of the Avitnesses examined on his part, the Court of Exchequer, on a motion by the plaintiff to review the taxation and allow him the whole costs of the witnesses as costs in the cause and not in the reference, refused to take notice of a letter written by the arbitrator to the plaintiff's attorney, stating that his intention was that the plaintiff should have the costs of the witnesses attending before him, saying, that if the arbitrator had made a mistake they could not rectify it (;::). So also in the Court of Queen's Bench, where an eject- Paper de- ment brought to recover two closes was referred with an a^a^f to "^^^ action of trespass, and tlie arbitrator ordered a ireneral i'™'* "^^^^'^ ^ diet. ((') Williams y. Jones, 5 M. & (y) GoicIoiiT.Mitclicll, oMoore, E. 3. 41. (a-) Keene & Atkinson, In ro, (z) Brown v. Nelson, 13 M. & Ex., Ap. 16. 1847. W. 397. 302 HOW TO AWARD. Part ii, verdict for tlie plaintiff in the ejectment, the court lield that °"- V- s- 8- tliey could not amend the postea in the ejectment by con- fining it to one of the two closes, although it apj)cared by a paper which the arbitrator delivered with his award, stating liis reasons, that he considered the plaintiff was entitled to one close only, and though he awarded in defendant's favour on a plea in the action of trespass, justifying by reason of the defendant's title to the other close (a). Letter of And still more recently the Court of Common Pleas umpire. pefuscd to uoticc a letter of an umpire accompanying his award in which he stated his opinion that the plaintiff ought to have had his costs, but that he had not awarded any costs to the plaintiff, as he, the umpire, had no power to do so, and that he would have awarded them to the plaintiff had he possessed the power (b). Inquiring III. Inquiry/ hj the court of the arbitrator's grounds of damaee^s" award.~\ — Under peculiar circumstances, when the parties do not object, the court will inquire of the arbitrator upon what grounds he has made his award. The inquiry will not, it seems, be made without such consent (c). Where the j)laintiff's attorney obtained an order of Nisi Prius referring the cause only, and served it on the arbitrator, and the defendant's attorney also obtained from the associate an order not strictly a duplicate, since it referred the cause and all matters in difference, and the arbitrator, among other things, directed the defendant to pay the jilaintiff a specified sum, the court ordered a reference to the associate to ascertain which of the two orders was in accordance with his minutes of the agreement made at the trial, and if the associate reported in favour of the defendant's order, then they directed a reference to the arbitrator, requesting him to state upon what ground he gave the damages (cl). As to what So in a later case in the Queen's Bench, where the arbi- awardedoD, trator was to award compensation to the prosecutor of an indictment for conspiracy, and the arbitrator stated in his (o) Doe d. Oxenden v. Cropper, (c) Brown v. The Croydon Canal 10 A. & E. 197. Company, 9 A. & E. 522. (6) Leggo V. Young, 16 C. B. {d) Alder v. SaviU, 5 Taimt. 626, S. C. 24 L. J. C. P. 200. 453. MISTAKE IN AVVAUK. 303 award that he liad not awarded anything in respect of Part II. damages to the prosecutor accruing between the tinic of c"- v-s- 8. filing the indictment and the reference, and it was proved that he had rejected evidence of damages accruing in the interval, the court directed an inquiry to he made of the arbitrator, whether he had rejected evidence of damages arising after the indictment filed from the old conspiracy, or merely evidence of damages from a new conspiracy sub- sequent to the tiling, being of oj^inion that under the sub- mission the prosecutor was entitled to com})ensation beyond the time of filing the indictment, if the injury were the result of the original cons})iracy (e). On an application made to enter a suggestion to deprive iDquhy in a plaintiff of his costs under the London Court of Requests °p^° *^°"^ ' Act, the arbitrator having awarded less than £5, part of the plaintiff's demand being for rent, and actions for rent being excepted from the operation of the statute, the affidavits not showing whether the plaintiff had been allowed anything for rent, it was agreed to apply for information to the arbitrator, who happened to be in court, and the arbitrator stating that he had made an allowance for rent, the court discharged the rule (/). In an old case in Chancery, on an inquiiy whether the Inquiry in court ought to decree an award, the Master of the Rolls was ^i"'*^- on appeal held justified in ordering the arbitrators to certify to the court whether they had considered certain particulars which were in issue in the cause, but which the party object- ing to the award asserted had not been considered (oints on which the court wanted information, they went into a long history of their con- (e) E. V. Brewer, Q. B., June East, 160. 11, 18-4o. (g) Sqiiib v. Bolton, Cas. in (./") Holden v. Newman, 13 Chanc. 186. 304 now TO AWAllD. Paut II. duct, on which account the court refused to read the cer- "!■ V- s- 8- tificate (//). Award stating grounds of decision, ■whetlier court will review them. Court not examine reasons un- less arbi- trator em- powered to raise point. Court not examine sufficiency of facts stated. IV. When the award sets forth the grounds of decision.'] — In other sections of tliis cliapter it is shown that the courts will invariably take notice of errors on the face of the award, if they be imperfections in the mode of deciding (J) or unwarranted assumptions of authority by the arbi- trator iji) ; but when the decision is one that comjjlies with all the rules previously laid down for the framing a valid award, and is confined strictly to matters within the arbi- trator's jurisdiction, it is not quite clear how far the courts will annul the decision when it is manifest from statements on the face of the award that the arbitrator has mistaken the law. In the older cases the courts seem generally to have con- sidered the statements and reasons assigned in the award as the ground of decision, and have set aside the award when the arbitrator has proceeded on principles contrary to law (/). Possibly, however, in many cases where the report does not give the submission, the arbitrator may have been authorized to state a case for the decision of the court. The Court of Queen's Bench, however, more recently refused to consider the validity of the legal principles on which arbitrators had proceeded, where they were not autho- rized to submit a point of law for their review {m). If the arbitrator, not being empowered to state facts for the purpose of raising any jioint of law for the decision of the court, set out in his award a statement of facts on which he professes to ground his decision, and those facts appa- rently do not warrant the conclusion at which he ultimately arrives, or the reasons he assigns are unsatisfactory, the (/() Morgan v. Mather, 2 Ves. Jr. 15. See Dobson v. Groves, 6 a B. 637, 643. (i) Ss. 3, 4, 5, 6, 7. (A-) S. 9, post. p. 311. (/) Pratt V. Hillman, 4 B. & C. 269 ; Sharman v. Bell, 5 M. & S. 504 ; Williams v. Jones, 5 M. & E. 3 ; Wood v. Ilotham, 5 M. & W. 674; Ames v. Milward, 8 Taunt. 637 ; Gaby v. Wilts Canal Com- pany, 3 M. & S. 580; Kent v. Elstob, 3 East, 18. See also Fuller V. Fenwick, 3 C. B. 705 ; Toby v. Lovibond, 17 L. J. C. P. 201. (?») Wright & Cromford Canal Company, In re, 1 Q. B. 98. MISTAKE IN AWARD. 305 court will in general decline to draw any conclusion tliem- Pa" il. selves from them so as to impeach the award, and will ' ' ' - su]iport it as valid, provided it contain a positive definite adjiulication on the matters in difference {tt) ; and according to one case, provided also there were any evidence which a judge would have been justified in leaving to a jury (o). They would refuse to interfere, even if their opinion were invited (/>). If an arbitrator, to settle the accounts pending bet"v^jeen Unneces- C. and L., direct L. to pay C. a certain sum, his stating in ^g^t^of the award, that he finds that no partnership existed between facts. L. and C. is not an excess of authority. It was simply un- necessary for him to make the statement, though the fact be the basis on which he has taken the accounts (q). In many cases the court will not presume that there were Court not no other facts to warrant the award than those recited in it ; facts the arbitrator may have a particular reason for stating stated only „ grounds. certain facts, as for instance, to clear the character of a party from an imputation (r). If, without special authority, the arbitrator, before the Stating Common Law Procedure Act, 1854, merely found certain out positive facts, and, instead of finally adjudicating on the points in ^°rl"1)ad^' difference, left the law to be applied by the court, the award would not have been final. For instance, where after stating the facts the award proceeded, " If on these facts the court be of opinion that the plaintiff is entitled, then I award in favour of the plaintiff, but if the court think the defendant entitled, then I award in favour of the defen- dant ; " such an hypothetical finding would have been insufficient (5). V. Stating case under the Common Law Procedure Act, Arbitrator {n) Archer v. Owen, 9 Dowl. (g) Harrison v. Lay, 13 C. B. 341. N. S. 528. (0) Ban-ett v. "Wilson, 1 C. M. (j-) Lancaster v. Hemington, 4 & R. 586, S. 0. 3 Dowl. 220; A. & E. 345; Teale v. Younge, Archer v. Owen, 9 Dowl. 341. M'Lel. & Y. 497. (^i) Barton v. Eansom, 3 M. & (s) Wright & Cromford Canal W. 322; Wright v.Cromford Canal Company, In re, 1 Q. B. 98; Company, 1 Q,. B. 98 ; Bradbee v. Anderson v. Fuller, 4 M. & W. Christ's Hospital, 4 M. & G. 757 ; 470. Scott V. Van Sandau, 6 Q. B. 237. 306 now TO AWARD. Part II. OH. T. R. 8. may state a special . case. General Rules, Mich. Vac. 1854, r. 14, as to mode of stating case. Whether the refer- ence be by consent or compul- sory. 1854.] — But by the last-mentioned Act (if), s. 5, "It shall be lawful for the arbitrator, upon any compulsory reference under this Act, or upon any reference by consent of parties Avhere the submission is or may be made a rule or order of any of the superior Courts of Law or Equity at Westminster, 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 com"t." By the General Rules of Michaelmas Vacation, 1854, r. 14, entitled " Special case stated by an arbitrator under s. 5 of the Common Law Procedm-e Act, 1854," it is ordered, " In the special case the arbitrator must state whether the arbitration is under a compulsory reference under this Act, or whether it is upon a reference by consent of parties where the submission has been or is to be made a rule or order of one of the superior Courts of Law or Equity at Westminster. In the former case the award must be entitled in the court and cause, and the rule or order of the court must be set forth. In the latter case the terms of the reference relating to the submission being made a rule or order of court, must be set forth." It is not compulsory on the arbitrator on the demand of a party to state a case under this section {u). Error will not lie to review the judgment of the court on such special case (x). If a party does not during the reference apply for a case, the courts will not refer back the award for the arbitrator to state a case afterwards, on his setting forth in a letter the wrong principles of law on which he had acted (y). When com- yi. Dufy of the arbitrator when empowered to raise a point state case. ?/ ^«^-] — If the terms of the submission be compulsory that the arbitrator shall state a case at the request of the (t) 17 & 18 Vict. c. 125. (u) Gibbon v. Parker, 5 L. T. N. S. 584 ; Baguley v. Markwick, 30 L. J. C. P. 342, S. C. 10 C. B. N. S. 61 ; Holloway v. Francis, 9 C. B. N. S. 559. {x) Gunner v. Fowler, 29 L. J. Q. B. 189. (y) The London Dock Company V. St. Paul's, ShadweU, 32 L. J. Q. B. 30. MISTAKE IN AWARD. 307 parties, it is the duty of the arbitrator to set forth fully in part it. his award all such facts as will raise all the questions of law <^"- "^'- ^- ^- on which the decision of the courts is desired, and it seems that the award will generally he bad if he foil to do so {z). To prevent any mistake, it is advisable for him to call upon the parties to furnish him with a written statement of the questions of law they require to be raised. But if Whenaiii- by the terms of the order of reference the arbitrator " be uberty. at liberty to raise any point for the opinion of the court at the request of either of the parties," he is not bound to do so unless he think fit : the clause is an enabling, not a com- pulsory one {a). S, 5 of the Common Law Procedm-e Act, 1854, set out in the preceding page, is an enabling, not a compulsory provision. Where the arbitrator has the same power as a judge at Power as Nisi Prius to decide as to the admissibility of evidence, and an^^points to reserve points of law for the decision of the court, he reserved as takes a correct view of his duty if he refuse to pledge him- Nisi piius. self beforehand to raise on the face of his award all the objections a party may bring forward, retaining to him- self a discretion on the subject {])). However, as the meaning of the above provision in the submission is, that the award is to be made subject to the exception as to evidence, and the points reserved, according to the analogy of Nisi Prius those points which the award reserves the court will decide ; and if any objections to the evidence be omitted which the party may think ought to have appeared, he will be free to avail himself of the stipulation in the order of reference, and call upon the court, if it sustain the objection, to set aside the verdict in consequence (c). When the arbitrator is at liberty, if he shall think fit, to Arbitrator report specially to the court, he does not duly exercise his fo°tii facts power if he set out in his award a long statement of the not evi- evidence, leaving the court to draw the inferences of fact. (z) Bradbee v. Christ's Hospital, as enabling, not compulsory. See 4 M. & G. 714. also Miller v. Shuttleworth, 7 C. B. (a) Wood V. Hotham, 5 M. & 105. W. 674. See Jay v. Byles, 3 M. & (6) Scott v. Van Saudau, 1 Q. B. Sc. 86, -wliere the provision, the 102. arbitrator "shall state points of (c) Scottv. VanSandau, 1 Q. B. law," seems to have been treated 102. X 2 308 • HOW TO AWARD. Part II. It is his duty to draw the necessary inferences from the °°- ''• «• 8- facts (d). Ari)itiator It Lcino^ a question in a cause whether the defendant, a should find t i i i i . . . „ positively, pawnbroker, had made proper inquiries of a person coming to pledge goods, an arbitrator, to whom the cause was referred to state a case, stated that he was unable to say whether or not the defendant had made the proper inquiries ; the court compelled the defendant to agree *to another reference to the arbitrator, in order that the latter should find positively in the affirmative or in the negative (e). Stating ab- In One case, where there was a provision " that the arbi- proposi-°^ trator shall state on his award any point or points of law lions. raised by either party," the arbitrator in his award set forth in terms certain abstract legal propositions contended for by the defendant as defeating the plaintiff's right to recover, and certified that he had overruled them, as upon con- sideration of the evidence it aj3peared to him none of the objections ought to prevail. The court refused to refer the award back to the arbitrator to set forth the facts on which the questions of law arose, or to set the award aside, the arbitrator having decided rightly the broad propositions of law set out in his award (jf). Point in- If it clearly appear from reading an award that an arbi- be"ieft open ^rator wlio was empowered to raise points intended to leave for the a particular question of law open, the court will consider it, although in terms the arbitrator may in one part of his award have determined it (^). Providing It docs not sccm necessary for an arbitrator (especially events of sinco the recent provision in the Common Law Procedure thecourt's ^gf 1854, s. 5), whou empowered to raise questions for the decision. ' i t ■,■ • ^ • to i court, to make an adjudication himself on the pomts he sub- mits for the opinion of the court, and it is apprehended, that on a reference at Nisi Prius it is sufficient for him, after stating the facts of the case in his award, and either leaving it generally for the court to decide on them whether the action or defence can be maintained, or setting forth special {d) Jeplisonv.Howkins, 2M.& (/) Jay v. Byles, 3 M. & Sc. G. 366. 86. (e) Ferguson V.Norman, 4 Bing. (g) Sherry v. Oke, 3 Dowl. 349, N. 0. 52. MISTAKE IN AWARD. 309 questions only for their determination, to conclude Ly Part ii. awarding that if the court shall be of opinion, on the facts ^"' '^' ^- ^- stated or the questions raised, as the case may be, that the plaintiff is entitled to recover, then that the verdict which has been taken for the plaintiff do stand, with such damages as the arbitrator may think proper ; but if the court shall be of opinion that the action is not maintainable, or that such and such questions raised ought to be decided in the defendant's favour, then that the verdict already entered for the plaintiff be set aside, and instead thereof a verdict be entered for the defendant {k). This form of awarding respecting the action is merely given to illustrate the principle involved, and cannot in itself be applicable to the infinite variety of cases that may occur ; for of course the arbitrator ought to provide for the effect of every possible decision of the court on the points submitted, so far as they may affect the various issues in the cause, the amount of damages recoverable, or other rights and liabilities of the parties regulated by the provisions of the award. In one instance, where an arbitrator was empowered to Kaising direct that a nonsuit or a verdict should be entered for the ^°|°(j^jt^i' *f plaintiff or the defendant as he should think proper, and custom and was, at the request of either party, to state any point of law n"n''X^ upon the face of his award for the opinion of the court, it s*3.nte vere- was held not incumbent on the arbitrator to decide finally as to the amount of damages to be recovered, and to direct how the judgment should be entered up, but that having by his award disposed of all the issues joined on the record, and assessed damages separately in respect of each grievance in the declaration, and having referred to the court, at the request of the defendant, by a sufficient statement of facts, the question as to the right of the plaintiff" to recover damages in respect of some of the grievances stated in the declaration, and, at the request of the plaintiff", the question as to the validity of a custom set out in a plea, and the alle- gations contained in it, and as to the plaintiff's right to judgment non obstante veredicto on the same j)lea, should the issue thereon be found for the defendant, he had pro {h) Eichards v. Easto, 15 M. & W. 244 ; Tlie Grocers' Company v. Donne, 3 Bing. N. C. 34. 310 HOW TO AWAED. Part II. perly discharged his duty, and was not bound to have defi- nitely determined as to the validity of the custom (/), OH. V Deciding Sometimes the arbitrator first finds the various issues in tiien raising tlic causc referred himself, subject to the opinion of the point for ^;QllJ.h and then, after settiner forth the whole facts, states the court. . ' ' ° , / . particular questions on which he requires the decision of the court, and concludes with the awarding, if the court shall decide a particular question one way, then he awards in one way ; if in another, then he awards in another {k). Arbitrator It is advisable for the arbitrator, though he determine the vide for^the Hiatter himself, to make a provision for the event of the court event of difiering from him in opinion, for if the arbitrator find for coui't clinGr- ing from the plaiutifi" in the action referred, and then state facts for ^™' the opinion of the court which show that the plaintiff ought to have been nonsuited, the court cannot direct a nonsuit to be entered, but can only set the award aside (/), and thus all the litigation becomes fruitless ; whereas, if he direct that in case the court differs from him the verdict shall be entered for the defendant, the decision of the court in favour of the latter will, according to many cases, entitle him to have the verdict entered for him {?n). Awarding Doubts, liowever, as to the validity and utility of an cai?y*^°*^' hypothetical finding were in one case thrown out. The arbitrator had found positively for the complainant, and then stating facts, awarded that if the court should be of such an opinion, then the sum to be paid should be increased to such another sum, and if of another opinion, that it should be reduced so much : the court, agreeing with the arbitrator, supported the award; but assuming the points of law to have been properly raised. Lord Denman, C. J., expressed a doubt whether, if the court had disagreed with the arbitrator, the hj^othetical finding and assessment could have stood, or whether the award must not have been set aside altogether (71). There does not, however, seem to be {{) Bradbee v. Christ's Hospital, 53 ; Waller v. Lacy, 1 M. & G. 4 M. & G. 714. 54 ; Ai-nold v. Mayor of Poole, 4 (k) WaUer v. Lacy, 1 M. & G. M. & G. 860 ; Webb, In re, 8 54 ; Arnold V. the Mayor of Poole, Taunt. 443; Bradbee v. Chi-ist's 4 M. & G. 860. Hospital, 4 M. & G. 714. (l) Peters V. Anderson, 1 Marsb. (n) Wrigbt v. Cromford Canal 238. Company, 1 Q. B. 98. (to) France v. White, 8 Dowl. AWARD BAD IN PART. 311 any case in whicli the court, assenting to one of the views Part ii. suggested by the arbitrator, have ever refused to enforce the °"' ^' ^' ' hypothetical finding dependent on it, and instead thereof set the award aside. On the contrary, an hypothetical decision providing for Hypotheti- the different views the court may take has, as will be seen g^^^*^ '"° from the cases previously cited on this subject, been either assumed or decided to be sufficiently final and certain, and acted on by the courts. In the following case, where the submission provided that the arbitrator should have the same power as a judge at Nisi Prius to decide as to the admissibility of evidence and to reserve points of law for the decision of the court, and the arbitrator, after making a special statement of facts affecting the admissibility of certain depositions in evidence, awarded that the verdict should be reduced to £1,356 if the court should be of opinion that the depositions of A. and B. were admissible, to £1,165 it the court should think the deposi- tions of A. only admissible, and to £579 if the court should think neither of the depositions admissible ; though the ob- servations of Lord Denman, in Wright v. Cromford Canal Company {o), were cited, the court held the award to be final, and likened it to the finding of a jury in a special verdict, and they observed that there was a positive finding for the plaintiff for the smallest of the three sums, and that it was only necessary for him to come to the court in case he wanted a larger amount. The court, however, on motion, gave the plaintiff the benefit of one of the hjqjothetical findings, and directed the verdict to stand for £1,165 (p). SECTION IX. THE AWARD THOUGH BAD IN PART, WHEN GOOD FOR THE REST. I. W/ien t/ie bad part of the anard is separable.'] — Award bad Though before the time of King James the First, according Jfegood'^f^ to Holt, C. J., an award void in part was considered void a^ "tatters (o) 1 Q. B. 98. (p) Scott V. Van Sandau, 6 Q. B. 237. 312 now TO AWARD. Pakt IL OH. V. s. 9, well de- cided. When bad part sepa- rable. Award bad in part for excess. Excess as to costs. Excess as to entry of verdict. Excess i altogether (q), it is now quite clear that an award bad in part may often be good for the rest. If, notwithstanding some portion of the award is clearly void, the remaining part con- tain a final and certain determination of every question submitted, the valid portion may frequently be maintained as the award, though the void part be rejected (r). The bad portion, however, must be clearly separable in its nature, in order that the award may be good for the resi- due (s). When it is so divisible, the faulty direction will alone be set aside, or treated as null {t). This position is illustrated by the numerous cases in which an arbitrator has exceeded his authority by directing something to be done which he had no power to order, and therefore made an award clearly invalid as to the unautho- rised direction {u). Thus, where the plaintiff seeks to enforce an award which orders the defendant to pay him a specified sum, and also the amount of the costs of an action between them, or of the reference, or to pay them at a particular time, and the arbitrator has no such power over the costs as he assumes, and consequently the direction as to costs is void ; yet if the latter be clearly separable from the other jDortion of the award, the court will compel the defendant to perform the rest of the award, and to pay the sum awarded {x). If an arbitrator determine the cause referred by finding the issues properly, and then without authority direct a verdict to be entered, the court will not set aside the good part of the award, since the unauthorized direction as to the verdict is separable, and may be rejected alone (y). An arbitrator who had no power to direct a judgment to be {q) Furlong v. Thornigold, 12 Mod. 533. (r) Stone V. PHllips, 4 Bing. N. C. 37. (s) Tandy v. Tandy, 9 Dowl. 1044; Auriol v. Smith, 1 Turn. & E. 121; Watkins v. Philpotts, M'Lel. & Y. 393; Nickels v. Han- cock, 7 De G. M. & a. 300. (t) Caledonian Railway Com- pany V. Lockhart, 3 Macq. 808. (u) Harrison v. Lay, C. P. 12 Feb. 1863, N. E. 437. (x) Candler v. Fuller, Willes, 62 ; A itcheson v. Cargey, 2 Bing, 199; Wliitehead v. Fii-th, 12 East, 166; Strutt v. Eogers, 7 Taunt. 212; Boodle v. Davies, 3 A. & E. 200; Barker v. Tibson, 2 TV. Bl. 953 ; Cockbui-n v. Newton, 9 Dowl. 676; Harder v. Cox, Cowp. 127; Filth v. Eobinson, 1 B. & C. 277; Eees V. Waters, 16 M. & W. 263. (y) Howett v. Clements, 1 C. B. 128 ; Hawkyard v. Stocks, 2 D. & L. 936. AWARD BAD IN PART. 313 entered, awarded on an action of ejectment in the following Part ii. terms : — " I award, order, and determine that judgment for °"' ""'• ^- ^- the plaintiff be entered in the said action, with one shilling *» entry of damages, and that the plaintiff do recover under the said judgment a plot or parcel of land," — describing it. The court, setting aside the direction as to the entering of judgment which had been entered up, refused to set aside the award, being of opinion that the direction as to the judgment might be rejected as surplusage, and that, if all mention of the judgment were struck out, there was a sufficient finding of the cause in the plaintiff's favour, and that it might be struck out without altering the intention of the award as to the matters within the arbitrator's jurisdiction {z). Where the award orders the defendant to pay one sum to Excess as the plaintiff and another to a stranger, or to execute a lease ^^^^ ^ ^^^' for life of certain lands to the plaintiff, with remainder in fee to a stranger, the defendant has been compelled to give the jilaintiff what the award directs, though he is not bound to obey the arbitrator as far as regards the stranger (a). So likewise, if one party, a banker, be ordered to pay the other a sum out of a stranger's money in his hands, though clearly the arbitrator has no right to meddle with funds of third parties, the party to whom the payment is ordered to be made may sustain the award as to other parts, if they be not affected b)'' the direction as to stranger's money {d). If the arbitrator order the j)arties to execute mutual Excess as releases of all matters in difference, when the submission is '^ ^^ ^^^^' confined to particular differences ; or of all differences up to the date of the award, the arbitrator having power only up to the date of the submission ; though in one case it was con- sidered that a release, being an entire instrument, could not be void in part and good in part {c), the courts have often held that this direction is good to comj)el the parties to execute releases as to the particular matters, and up to the date of the submission, but void as to the matters- not (2) Doe d. Body v. Cox, 4 D. & 444. L. 75. (c) Vanlore V. Tribb, Eolle Ab. (a) Bretton v. Prat, Cro. Eliz. Art). N. 1, p. 258, S. C. 1 Eolle 758 ; Bac. Ab. Arb. E. 1 ; Com. Eep. 437 contra ; Pickering v. Dig. Arb. E. 14. Watson, 2 W. Bl. 1118 contra. (6) Ingram y. Milnes, 8 East, 314 HOW TO AWARD. referred, and as to differences arising subsequent to the reference {d). So if on a submission respecting suits for tithes, the award order all suits between the parties to cease, there being suits for other things depending between the parties, the award is void as to the suits for the other things, and good as to the suits for tithes (e). In like manner when the costs of the action are to abide the event, if the arbitrator, after finding on all the issues, direct a stet processus, the direction is void, as being an excess of authority, but, being clearly separable, may be rejected without invalidating the rest of the award {/). Excess as When the main question was which of two parties jointly tions wiiat interested in a ship should pay the expenses incurred on shall be account of it after a certain date, and the arbitrator directed one of them to pay them, and to give the other a bond of indemnity against the payment of them, the majority of the court held the award good in toto : and Maule, J., though he doubted as to the award of the bond, was yet of opinion that, even if that were invalid, the award would only be bad pro tanto ((jf). Future re- An arbitrator aj)pointed to decide upon the method of pairs. draining certain lands, after ordering certain works, exceeded his authority by giving a direction respecting future repairs. The House of Lords held the award bad only for the excess, as by striking out that direction the rest of the award was Hypothe- not alFected {k). So where the arbitrator who had power to ticai pro- regulate the use of a stream of water flowing through certain ponds, after directing how it was to be used, added a j)ro- vision concerning the flow of the stream in case the ponds should be filled up at any time, the court, inclining to think this hypothetical finding an excess of the arbitrator's autho- rity, were clearly of opinion that it did not vitiate the other directions in the award (i). {d) Doe d. Williams v. Eicliard- 663. son, 8 Taunt. 697; Lee v. Elkins, (/) Ward v. Hall, 9 Dowl. 610. 12 Mod. 585; Squire v. Grevett, 2 {g) Brown v. Watson, 6 Bing. Ld. EajTn. 961; Hill v. Thorn, 2 N. C. 118. Mod. 309 ; Abrahat v. Brandon, (h) Johnston v. Cheape, 5 Dow. 10 Mod. 201; Anon. 12 Mod. 8; 247. Hooper V. Pierce, 12 Mod. 116. (i) Winter v. Lethbridge, 13 (e) Webb v. Ingram, Oro. Jac. Price, 533. vision. AWARD BAD IN PART. 315 An award to pay a certain amount for goods supplied con- Part II. tained a proviso that if lie who was to pay could, before a ch- y - s- 9- certain day, disprove tlic receipt of the goods, or give better Excess as proof of the jjayment of some sums of money, lie should be authority." relieved from payment of all such portions of the amount as should be so disproved or proved respectively. In one report of this case it is stated that the com't held the reser- vation void, but the award good, as an award to pay the whole amount, and that the provision respecting the proof of payment was simply void as surplusage, for that the authority of the arbitrator was at an end the moment the award was made (/'). In another report of the same case it was said the court took time to consider whether the reser- vation should frustrate the whole award, or whether the award should stand, and only the reservation be void (/). An arbitrator, to whom an action respecting a watercourse and all matters in difference was referred, directed a verdict for the plaintiff, and ordered certain works to be done by the defendant. He then added, that, as disputes might arise respecting the performance, the plaintiff", if dissatisfied with it, might (on giving notice to the defendant) bring evidence before the arbitrator of the insufficiency of the work, and the defendant might also give evidence on his part, in order that a final award might be made concerning tlie matters in difference ; but if no proceedings were taken by the plaintiff within two months after the work was done, the award then made should be final, and he enlarged the time for making his further and final award, if requested, to six months. The court held the latter part of the award bad, as it assumed to reserve a power over future differences, which was not authorized, but that the former part was good, as being a final decision of all the matters in cUflerence at the time of the submission, and that the clause as to making a i'lU'ther and final award was to be considered as having refer- ence to prospective differences only, and so not to affect the valid part of the instrument {in). It may be observed, with regard to the class of cases Who may above cited, that although the courts have refused to allow *^°™^ ^^ {k) Beckwith v. Warley, EoUe 218. Ab. Arb. H. 9, p. 250. (m) Manser v. Heaver, 3 B. & (0 Waiiey v. Beckwith, Hob. Ad. 295. 316 HOW TO AWAIID. Part IT, CH. V. s. 9. award •wholly bad for excess. Illegal matter. Poor rate and costs. Excess in conditiou precedeDt. tlic party who is ordered to do certain acts to object that the award is wholly void because the arbitrator has awarded something within his j)Ower, and also something beyond, yet it by no means follows that in many of them the award would not have been set aside in toto, had the complaint come from the other party that he could not, by reason of the badness of the award in one particular, receive all the benefit the arbitrator contemplated to give him {n). Where an arbitrator directed payment to the defendant of a sum of money, as the balance of the general account, and also of another sum stated on the face of the award to be due to the defendant on account of illegal insurance partner- ship transactions between him and the plaintiff, the award was held bad as to the latter sum only (o). But where some farmers, conceiving themselves overrated to the poor-rate in proportion to other parishioners, entered into a submission with the churchwardens and overseers, by which the validity of the rate, the costs of preparing for an appeal to the sessions respecting it, and the costs of the reference, were left to the arbitrators, who awarded on each matter; the majority of the Court of Exchequer held, that as the chief subject-matter, namely, the rate, was one which could not lawfully be referred to arbitration, the award respecting it was void, and, being void as to the principal matter, it was void as to the costs also (jy). Although the doing an act such as the executing mutual releases be made conditional upon payment of certain sums and certain costs, it has been held, that, although the direc- tion as to costs be void, it can be so far sej^arated in some cases as to permit of the award being sustained for the residue (q). Where the costs were in effect to abide the event, and the arbitrator, after directing the defendant to pay the plaintiff a certain sum for the debt due, and another sum stated in the award to be the amount of the plaintiff's costs, had ordered that after payment of the several sums each party should execute a release to the other . if required ; it was objected (??) Taylor v. Shuttle worth, 8 Dowl. 281. (o) Aubert v. Maze, 2 B. «& P. 371. (p) Thorp V. Cole, 4 Dowl. 457. (q) Aitcheson v. Cargey, 2 Bing. 199. AWAKD BAD IN TAKT. 317 tluit as the arbitrator had exceeded his autliority in ascer- Tart li. taining the amount of the costs, tlie direction as to that c"- ^- »• Q- payment was invalid, and tliat as the defendant's obtaining a release was made conditional on payment of that sum among others, so that the defendant could not obtain the release Avithout paying a sum the arbitrator had no right to imi)ose, the whole award was void. But Coleridge, J., agreeing that the arbitrator had no authority to tax the amount of the costs, yet feeling himself bound by the deci- sion of Aitcheson v. Cargey (r), sustained the award, holding the bad part separable, and that the defendant would pro- bably entitle himself to the release on payment of the costs regularly taxed, and the amount of the debt (5). Though the award be deficient as to a matter within the Bad pait submission, if it be separable the rest of the award may ^^^ll\ no often be supported. Thus, if the arbitrator, having power excess. over the costs, order the defendant to pay the plaintiff a sum of money for debt or damages, and also the costs of the action, but the direction as to the costs be bad for uncer- Award -"n tainty, as, for instance, if the amount of costs be not speci- iii^certam fied, and the action be in an inferior court, so that they cannot be taxed, and therefore the arbitrator ought to have fixed the sum, or if the arbitrator be specially directed to ascertain the amount himself, the cornet will hold the plaintiff may enforce the award as to the specified sum for the debt or damages {i). We have previously seen that in the case of an alternative Alternative award, if the award be bad as to one alternative, or if it be ^^^'^'^• impossible or uncertain, the award is good and absolute as to the other {li). II. ^Vhcn the had imrt of the anard is mseparable.'\ — Bad part If the objectionable provisions in the award be inseparable r^^^ie^" from the rest, or not so clearly separable that it can be seen award {t) 2 Bing. 199. Lev. 413; Pinkny v. Bullock, cited (s) Kendiick v. Davies, 5 Dowl. 3 Lev. 413; Addison v. Spittle, 693. 18 L. J. Q. B. 151. it) Morgan v. Smith, 1 Dowl. (?<) Simmons v. Swaine, 1 Taunt. N. S. 617 ; England v. Davison, 9 548 ; AVharton v. King, 2 B. & Dowl. 1052 ; Addison v. Gray, 2 Ad. 528 ; ante, p. 268. Wils. 293; Bargi-ave v. Atkins, 3 318 HOW TO AWARD. Part II. that the part of the award attempted to be supported is not °°- ^' g- Q- at all affected by the faulty portion, the aAvard will be alto- whoiiy gether avoided (x). void. rji^Q following- cases are examples of the rule, and show in what instances a direction which the arbitrator has no power to make will vitiate the award. Excess in- Where an arbitrator, who had no power to order a verdict Twnrd ^' to be entered, made an award in these terms : " I award and void, direct that a verdict in this cause be finally entered for the plaintiff, with £284 12s." damages, the court, agreeing that if the faulty part had been contained in a distinct paragraph it might have been rejected, and the rest sustained, held the award bad in toto, since, the whole being comprised in one sentence, the clause containing the excess could not be divided from the rest (y). Single sum If the arbitrator award collectively on matters within and matters matters not within the submission, so that the court cannot not re- ggg j^q^ niucli of the adjudication a2)plies to each, the award will be bad in toto. For example, if the arbitrator have no power to give interest beyond the submission, and he award one entire sum for principal and interest to a day subse- quent to the submission, unless the court can separate the amount given for interest beyond the submission, the whole award must be set aside (z). Lease for By the terms of an agreement, a lease of a colliery was to term. be granted for sixty-three years, from the 1st May, 1801, the lessees to be allowed three years for winning the colliery rent free. An arbitrator, to whom it was referred " to give such directions as to a lease, according to the agreement, as he should think fit," having directed a lease for sixty-three years from the 1st May, 1804, was held to have exceeded his authority, as the sixty-three years were, by the agreement, to be counted from the 1st May, 1801, and he had no power to go beyond the agreement ; and the award was held void altogether («). Price to be Where an arbitrator, appointed to determine the purchase {x) Candler v. Fuller, Willes, Y. 200. 62; Storke v. De Smeth, WiUes, (z) Watldnsv.Pliillpotta,M'Lel. 66 ; Bowes v. Fernie, 4 M. & C. & Y. 393. 150. (a) Bonner V. LiddeU, 1 B. & B. (y) Jackson v. Clarke, M'Lel. & 80. AWARD BAD IN PAUT. 319 price of an estate, exceeds his authority after fixing a price, Part ir. by directin«2^ pajmient at a future day, it seems the direction - ' ' as to the future day of payment is not separable, so as to ^^l^^ day. leave the award as to the price valid, for the court will not take upon itself to say that the time of payment has not some connexion with the amount awarded (b). Where the arbitrators awarded, among other things, that Costs as the action should cease, that the defendant should pay the attorney plaintiff 50/. towards the costs incmTcd in the cause and ^^'^ '=*''-''^*- reference ; that the iilantiff should pay his 0"svn costs of the cause and refei'ence, and should also pay to the defendant the costs of the defendant in the cause and reference, the said costs to be taxed as between attorney and client : the court, holding that the arbitrators had exceeded their autho- rity in awarding costs as between attorney and client, set aside the whole award, since the direction to tax the costs as between attorney and client was so connected with the benefit intended to be granted to the defendant, that they could not reject it and sustain the rest (en direct that no further proceedings shall be taken in the decided. action, though this award of a stet processus be void as an {d) Wildv.Holt, 9M.&W. 161. 442; Norris v. Daniel, 10 Bing. (e) Blancliard v. Lilly, 9 East, ' 507 ; Leeming & Fearnley, In re, 497; Gray v. Gray, Cro. Jac. 525. 5 B. & Ad. 403. (/) Hunt V. Hunt, 5 Dowl. 326 now TO AWARD ON A CAUSE. Part II. en. vr. s. 2, Awarding cause to cease bad. Award of general verdict. Replevin finding as to rent. excess of authority, yet it will not vitiate the award, as there being a decision on the issues, there is a legal event on which the officer of the court can tax the costs {g). So on the reference of an action of trover to which the defendant had jdeaded not guilty and not possessed, where the costs where to abide the event, and the arbitrator awarded that the cause should cease and be no further prosecuted, and that the defendant should pay a certain sum to the plaintiff, Erie, J. , held that the event was sufficiently determined {h). Merely directing the action to cease, either wholly or partially, is insufficient. Thus where the arbitrator found that the plaintiff had good cause of action on five out of eight counts, and ordered that the defendant should pay certain damages, and that no further proceedings should be had in the action, it was held that as there was no award as to three counts, and no event to authorize the taxation of costs on those counts, that consequently no part of the award could stand (J). But where the declara- tion contained eleven special counts for negligence, and also common counts for money paid, and there was a plea of the general issue, and the arbitrator found that the plaintiff had good cause of action for a specified sum, and directed a verdict to be entered for that sum, the award was considered sufficient, as a finding on all the counts (Ji). Directing that an action of replevin should cease and be no further prosecuted, that the rent agreed on was £14, and that £6 was due for such rent at the time of the distress complained of, was not considered a sufficient determination of the action in the defendant's favour ; since the rent for which the defendant avowed might have been a different rent from that awarded due, and so the award as to the rent was not necessarily a decision of the avowiy in the defendant's favour (/). Award on the whole II. What a sufficient decision before the new rules for {g) Ward V. HaU, 9 Dowl. 610. (//) Hobson V. Stewart, 16 L. J. Q. B. 145, S. C. 4 D. & L. 589. (i) Norris v. Daniel, 10 Bing. 507. See Hancock v. Eeid, 21 L. J. Q. B. 78. {k) Dicas v. Jay, 5 Biug. 281 ; Gisborae v. Hart, 5 M. & W. 50. (1) Leeming v. Fearnley, In re, 5 B. & Ad. 403. WHEN COSTS ABIDE THE EVENT. 327 taxing costs.l — It was sufficient, before the modern regula- Pakt ir. tions in the courts of law about taxing the costs of particular cn.vi. s. 2. issues for the party who succeeds on them, if looking- to the showing whole award, though there was no express termination of jg"?jg^_ the cause, the court could see that the cause was determined in favour of either party, so as to make an event on which costs could be taxed. Thus, on a reference of all matters in diiference, including an action by a landlord against his tenant for breach of covenants in a lease, the award awarding that the plaintiff had no claim or demand on the defendant on account of any alleged breaches of covenant or otherwise, and that the defendant had no claim on the plaintiff, was held to be a final decision and good (m). On a reference of a cause and all matters in difference, an award that " nothing is due to the plaintiff" has been held a sufficient finding that the plaintiff has no right to recover in the action referred (ii). An action for a nuisance, to which a plea of the general Action for issue was pleaded (before the new rules for pleading), was referred, the costs to abide the event : the arbitrator awarded that the plaintiff had not proved that the defendant was the cause of the injury, and that the verdict taken for the plain- tiff should be set aside and a nonsuit entered ; but he also ordered that the defendant should remove the nuisance within a month. This was held to be substantially a finding in favour of the defendant, and to entitle him to the costs of all witnesses that could be material to him for any defence under the general issue (o). An award in an action (in which £10 had been paid into court) that the plaintiff had no cause of action except for £10 lent by him to the defendant's wife when sole, and which had been brought into court, is an award in favour of the defendant, and determines the event as to costs (/?). On the reference of an action of ejectment before trial the submission provided that if the arbitrator should award that the plaintiff had any cause of action, he should have costs as in a court of law ; the award directed the defendant to give [m) Jackson y. Yabsley, 5 B. & (o) Eadcliffe v. Hall, 3 Dowl. A. 848. _ 802. {n) Dickins v. Jarvis, 5 B. & C. (p) Dawson v. Garrett, 2 Dowl. 528. 624. 328 now TO AWAKD ON A CAUSE. Part II. ou. VI. S.2, up tlic premises to the plaintiff, to pay the costs of the action, and to pay a specified sum for the loss of rent during the time he held over : the court considered this direction a sufficient decision, arid enforced payment of the sum and costs by attachment, although the arbitrator had not in terms awarded that the plaintiff had any cause of action (q). Cause re- ferred be- fore plea, arbitrator need not decide eacli count. Award of cause to cease and dainases. Cause to cease, and payment of balance. III. Deciding cause referred he/ore issue joiiied.'] — When a cause is referred before plea, notwithstanding the declaration contains several counts, the arbitrator is not bound by the modern rules for taxing the costs of the separate issues in favour of the party successful on each respectively (r) to find specifically on each count, though the costs of the cause abide the event, for before plea pleaded it is impossible to say what the issues will be (s). It is sufficient if he decide in whose favour the cause is determined. Thus an action of trespass, in which the declaration had been delivered, and an action of assumpsit in which a writ only had been issued by the same plaintiff against the same defendant, having been referred with all matters in difference ; although it was objected that the award, which ordered that all proceedings in the causes should cease and be no further prosecuted, and that the defendant should pay the plaintiff a sum of money '' in full of all demands in the said causes," was not final, as it did not determine the causes, but only decided that on the whole the plaintiff was entitled to a balance, and did not show any event on which the costs of the causes could be ascertained ; the court held the award good, as amounting to a determination of both causes in favour of the plaintiff; as they would reasonably import that the plaintiff was entitled to recover something in each of the actions, and that it was not necessary to specify how much the plaintiff was entitled to in each {£), So where an action to recover a sum alleged to be due on a balance of accounts was referred with all matters in dif- ference after appearance (the defendant claiming a set-off {q) Doe d. Williams v. Eichard- son, 8 Taimt. 697. (r) 1 Eeg. Gen. H. T. 2 W. IV. E. 74 ; 3 B. & Ad. 385. (s) Bearup v. Peacock, 2 D. & L. 850. {t) Wynne v. Edwards, 12 M. & W. 708. WHEN COSTS ABIDE THE EVENT. 329 exceeding tlie plaintiff's claim), and the arbitrators awarded Part ii. that the action should cease and be no further prosecuted, ^°- ^^- "• ^' that on the balance of accounts a certain sum was due from the plaintiff to the defendant which they directed the plain- tiff to pay the court, though deeming it incumbent on the arbitrators to show in whose favour the suit was determined, as well as to pronounce who was entitled on the balance of the accounts ; held that the award was final, since the arbi- trators had in fact determined the action in favour of the defendant by directing the action to cease, and awarding that on the balance of the accounts there was a sum due to the defendant {u). When a cause is referred before plea, and the arbitrator How to has no power to order a verdict to be entered, the legal and ^^^l^ j."? proper form of deciding the action, if in favour of the plain- ferred be- tiff, is, to award that the plaintiff has a good cause of action against the defendant, and then to assess and direct pay- ment of the amount to which the plaintiff is entitled in respect of the same ; if in favour of the defendant, to award that the plaintiff has no cause of action against the de- fendant {x). If a cause be referred after plea, but before issue joined, the arbitrator need not decide on the pleas (y). IV. Awarding on the issues since the new rules as to Cause re- costs.'] — When a cause is referred after issue joined, and the f*^"^*^ ^'^^^^ -1 _ J 7 issue costs of the cause are to abide the event of the award, it is joineJ.arbi- incumbent on the arbitrator, whether he has to make an find'on" "^ award or only a certificate, either to dispose specifically of «^cii. each issue, or so to adjudicate that it can be clearly inferred from the award or certificate in which way each of the issues has been determined, so as to enable the officer of the court to tax the costs for the party in whose favour each issue respectively has been found (z). {u) Eardley v. Steer, 4 Dowl. (z) Brooks v. Parsons, 1 D. & L. 423, S. C. 2 C. M. & E. 327 ; Hard- 691 ; Kilburn v. Kilbmn, 13 M. & ing V. Forshaw, 1 M. & W. 415. "W. G71; Bourke v. Lloyd, 2 Dowl. (cc) Eardley v. Steer, 2 C. M. & N. S. 452; Hunt v. Hunt, 5 Dowl. E. 327, S. C. 4 Dowl. 423; Hard- 442; Stoneliewer v. Farrar, 6 Q. ing V. Forsiiaw, 1 M. & W. 415. B. 730; Armitagev. Coates, 4 Ex. {y) Smith v. Eeece, 6 D. & L. 641; Humphreys v. Pearce, 7 Ex. 520. 696. 330 now TO AWARD ON A CAUSE. Part II. This necessity of determining each issue, although the OH. Yi. s. 2. nierits have been disposed of, arose from a rule of court, Rule for wliicli provided that " no costs shall be allowed on taxation of'setmrate^ ^^ ^ plaintiff, on any counts or issues upon which he has issues. not succeeded ; and the costs of all issues found for the defendant shall be deducted from the plaintiff's costs " {a). It will be evident that unless the arbitrator find distinctly on each issue, there is no legal event to authorize the taxation of costs by the master, in accordance with the above rule (b). The rule now in force, r. 62, Reg. Gen. H. T., 1853, imposes a similar duty on the arbitrator, for the like reason. No request In One instance, the Courts of Exchequer decided that necessaiy. ^yj^^g^g ^^ finding on Specific issues was material only with respect to costs, an award was not to be set aside for the omission to determine each issue, unless the arbitrator had been requested distinctly to find on each (). But an award "in favour of the lessors of the plaintiff" has been recently decided in the Court of Common Pleas to be a sufficient decision of both of two demises in ejectment for the plaintiff {q). Should spe- Though formerly if the plaintiff j^roved his title to any ci y an s. pQj.|.|Qjj ^f ^]^q lauds claimed, the practice was to enter the verdict for him for the whole (possession, however, only being taken for the part on which he succeeded), yet now, since it has been decided that the verdict in ejectment is distributable, the arbitrator, if he be of ojiinion that the 2^1aintiff has made out his claim to a part of the lands only, should, with a view of entitling the defendant to -costs on the issue raised by the plea of not guilty as to the residue of the lands, award for the defendant as to that portion even (o) Daubuz V. Packman, 4 Dowl. N. S. 694 ; Harrison v. Creswick, 129. 13 C. B. 399. (;;) Doe cl. Madkins V. Horner, 8 {q) Mays v. Cannoll, 24 L. J. A. & E. 235, S. C. 3 N. & P. 344 ; C. P. 41 ; Law v. Bluckbui-ow, 14 Doe d. Starling v. Hillen, 2 Dowl. C. B. Ti. WHEN COSTS ABIDE THE EVENT. 333 where other provisions of the award may render such finding Tart II. for the defendant immaterial for any other pm'poses than — — '—^ those of costs (r). The award will be bad if the arbitrator omit to decide all Arbitrator - . . must find the issues raised on the pleas. Thus where the arbitrator on each merely awarded that the plaintiff had no cause of action, and ^^^^' directed a verdict to be entered for the defendant, and ne- glected to decide the issues on the pleas, the court held that the award was bad, but that it was not to be set aside, provided the defendant would permit the costs of the issues on those pleas to be taxed for the plaintiff (s). Where on the reference of an action of debt for money whether lent, money paid, interest, and for money due on an account fi^jfiJf„"slff^ stated, to which the jjleas were, nunquam indebitatus, and ficient. payment, the arbitrator awarded that the plaintiff had good cause of action against the defendant, and directed the defendant to pay the plaintiff a specified sum, the court set the award aside for not deciding on each issue (t). It is to be observed the award does not show on which count in the declaration the money is recovered, though it substantially decides the issue on the plea of payment. Relying on the above case of Bourhv. Lloyd {u), Patteson, J., held bad for not specifically deciding each issue the certificate of an arbi- trator, who in an action of debt for work and labour, where the defendant had pleaded nunquam indebitatus, payment, and a set-off, had certified that a verdict should be entered for the plaintiff"; though it was urged that by finding a ver- dict for the plaintiff for a sum certain, the arbitrator must have found the issues on the pleas of payment and set-off against the defendant, and so subntantiallj decided each issue {x). This view of the law, that such a substantial decision was quite sufficient, was adopted by the Court of Exchequer, in a case where both the above cases were brought before their notice (y). That it was enough, had indeed been previously (r) Doe d. Bo^Tnan v. Lems, N. S. 452, S. 0. 10 M. & W. 550. 13 M. & W. 241, S. C. 2 D. & L. (»,) 2 Dowl. N. S. 452. 667. (.t) Brooks v. Parsons, 1 D. & (s) England V. Davison, 9 Dowl. L. 691. See Stonehewer v. Farrar, 1052 ; See Williamson v. Locke, 6 Q. B. 730, per Patteson, J., 742. 2 D. & L. 782. {y) Kilbiun v. Kilburn, 13 M. {€) Bourke v. Lloyd, 2 Dowl. «& W. 671. 334 HOW TO AWAllD ON A CAUSE. Pabt II. CH. VI. s. 2, Whether a general verdict a finding on each issue. Awarding verdict to stand, but damages to be reduced. laid down by the same judge, wlio decided the case of Brooks V. Parsons (z) just cited (a). The Coui't of Common Pleas also have decided that a finding of the arbitrator, leading by necessary inference to the decision of the issue, is sufficient (d). More recently, it has been decided that when an arbitrator finds that tlie j^laintiff has good cause of action in respect of a count to which several pleas are pleaded, each of which, if true, is a sufficient answer to the count, as, for example, in trover, where the defendant pleads not guilty and not possessed, such a finding amounts in fact to a distinct finding in the plaintiff's favour on each issue ( 1 1 • • n' ^ V damages oa directmg a verdict to be entered lor the plaintilr on each ot several the two issues raised by the pleas, with separate damages on '^^"®^- each, is sufficiently cei-fain as to the damages, as the verdict may be entered for the sum of the two separate amounts ; but finding an entire amount of damages on the single breach is the more correct method (p). The arbitrator cannot direct a verdict to be entered for a Damages sum exceeding the damages taken subject to the reference, exceed His discretion is limited by the amount of damages nomi- amount '' .... taken on nally found by the jury, as the verdict of a jury is limited by the verdict. those laid in the declaration. And if he direct the entry of a verdict for a larger sum, the award seems fo be bad in toto ; and the courts have, in one instance, decided that they will not permit a verdict to be entered for an amount reduced to the amount of the specified damages, on the ground that they have nothing to guide their discretion in cutting down the sum awarded (q). Where the cause and all matters in difference were re- ferred, and the Nisi Prius order directed that the verdict should be entered for such sum only (if any) as the arbitrator should find to be due (not saying in the cause) from the defendant to the plaintiff, the com-t held that the arbitrator could not award that there was due from the defendant to the plaintiff a larger simi than the amount of the damages taken on the verdict (r). From the terms of the above submission it would seem probable that the verdict was intended to stand as a security for the amount found to be due, whether in respect of matters in the cause or out of it. Generally, however, when a cause and all matters in dif- No limit of n 1 Tk.T- • -r-> • 1 T 1 damages as ference are referred at Nisi Prius, the verdict stands as a to matters security only for the damages found due in the cause, and the damages taken on the reference only limit the amount the arbitrator can give in the cause ; but there is no limit to out of cause. G {v) Ilobdell V. Miller, Bing. 139; Prentice v. Eecd, 1 Taunt. N. C. 292. 151 ; Taylor y. Shuttleworth, {p) Smith Y. Festiniog Railway Bing. N. C. 277. Company, 4 Bing. N. 0. 23. (r) Bonner y. Cliarlton, 5 East, {(j) Bonner y. Cliarlton, o East, 139. 346 HOW TO AWARD ON A CAUSE. Part II. CH. VI. s. 4. Limiting damages by plaintiff's particulars. Motion to increase damages. Stipulated debt as damages. the amount the arbitrator may award in respect of the other matters in difference (s). The arbitrator, therefore, should assess the damages in the cause separately from those out of it, and take care not to exceed the assigned limit in respect of the former (t). It seems, also, that the amount of damages the arbitrator may award is still further limited by the sum claimed in the i)laintiif 's particulars of demand, if the defendant bring the particulars before the arbitrator's notice (u). Where it was agreed by the order of reference, that in case the arbitrator should give damages to the plaintiff, the party against whom the action was really brought, though he was not the defendant on the record, should be allowed to retain a certain sum, and the plaintiffs should be paid only the balance ; and the award directed that the verdict should be altered to a sum exceeding the amount of the damages taken by consent, but less than that amount when a deduction for the sum to be retained was made ; the court gave their opinion that the judgment which had been entered for the sum awarded, pursuant to the verdict, should be reduced to the sum originally taken by consent, and that the plaintiff should be entitled to sue out execution for the real balance awarded due to him {x). In the above case, as the submission empowered the arbitrator to settle all matters in difference between the parties, and to determine what he should think fit to be done by either of them respecting the matters in dispute, Mansfield, C. J., threw out a suggestion that the arbitrator might have directed that an application should be made to the court to enlarge the verdict to a greater amount of damages, and that the defendant should consent to the enlargement (y). If an action for damages generally be brought on an agree- ment, which provides that in case of breach the sum of 100/. shall be recovered as a stipulated debt binding on each party as to the amount, and not as a penalty or in the nature of a penalty, and the arbitrator award a less amount to the (s) Pearse v. Cameron, 1 M. & S. 675. (t) Taylor v. Shuttlewortli, 6 Bing. N. C. 277 ; Tayler v. Marl- ing, 2 M. & G. 55. (u) Kenrick v. Phillips, 7 M. & W. 415. {x) Prentice v. Eeed, 1 Taunt. 151. (y) Prentice v. Eeed, 1 Taunt. 156. AAV'AKDING DAMAGES. 347 plaintiff, the award will not be set aside, at least unless the Part il, clause was pointed out to the arbitrator's attention, and he en- vr- «• ■*• was required to act upon it (z). In an action of debt, if the submission provide that a Amount to verdict be entered for the plaintiff witli 61. damages, thej^^^^^^^ " arbitrator is not limited to awarding 5/., but maj^ award the plaintiff' the amount in the declaration, for the action being- debt not assumpsit, a verdict for the plaintiff means a ver- dict for the debt mentioned in the declaration (no amount of debt being specified), and the damages are in addition, not in exclusion of the debt (a). In an action of debt on a money bond, to which the Amountnot defendant pleaded pajTuent by a co-obligor, the arbitrator jebt'on directed a verdict to be entered for the plaintiff generally, ^0"^^- not mentioning any amount. It was objected to the award that the arbitrator ought to have directed for what sum the verdict should have been entered and execution taken out, but the court held the award sufficient, as it did not appear that there was any question how much was due on the bond, and cbew a distinction between actions of assumpsit and actions of debt on bonds {b). The principle of this decision seems capable of a very general application. It seems very questionable, from the report of a modern Fixing Jay case, whether the arbitrator may appoint any particular day °fP''*^y"i^^*- or place for the pajonent of the damages for which the verdict is to be entered, though if the submission clothe him with the powers of a judge of Nisi Prius, he may award speedy execution, but merely fixing a day for the payment earlier than that on which the plaintiff would have been enabled to recover the same in due course of law, does not amount to award of speedy execution {c). Where a cause was referred by a judge's order with con- Awarding sent of the parties and of one Cole, and the arbitrator was ^a'^sTo empowered to. direct for whom and for what sum the verdict plaintiff should be finally entered, and to settle all matters in differ- added?^ ^ ence between the parties to the action and between the defendants and Cole, and to determine what he should think (z) Pinkerton v. C'aslon, 2 B. & 224. A. 704. (c) Eees v. Waters, 16 M. & W. (a) Annan v. Job, 10 Jiu-. 1083. 263, S. C. 4 D. «&; L. 567. lb) CajTne v. Watts, 3 D. & E. 348 HOW TO AWARD ON A CAUSE. Part II. fit to ])C done by either party, and the arhitrator awarded c"- YJ- s- 4. that all further proceedings in the action should cease, that the plaintiif had good cause of action against the defendants in the cause, and was entitled to a verdict therein ; and then awarded certain damages '' to be paid by the defendants to the plaintiff and Cole, who consented to become a party in the cause;" on an objection being made that under this submission the arbitrator was not entitled to treat Cole as a plaintiff and award damages to him and the original plaintiff jointly, the court refused to grant a rule to order the amount to be paid, considering the sufficiency of the award doubt- ful (d); but an action of debt being afterwards brought on the award by Cole and the plaintiff jointly, the court on de- murrer sustained the award as valid, Patteson, J., saying, '' It cannot be said the arbitrator has not determined the action, as he gives a verdict for the plaintiff with 40s. damages. He might afterwards say that Cole should have a joint interest in those damages " (e). •Where all matters in difference in an action of ejectment were, after issue joined, referred by a judge's order, which provided " that the costs of the suit, the reference, and award, were to abide the event of the award, that if the award should be in favour of the plaintiff he should be at liberty to sign judgment against the defendants in the same manner as if the cause had been tried at Nisi Prius, and to issue a wi'it or writs of possession thereon, and also to pro- ceed in the usual way for costs on such judgment ; and that if the award should be in favour of the defendants they should be at liberty to sign judgment as if the cause had been tried at Nisi Prius," Coleridge, J., intimated a doubt whether the arbitrator could expressly award damages, though he thought that the plaintiff, in signing judgment, might enter it for a shilling damages (/"). A verdict was taken subject to a reference to a valuer to say whether the plaintiff had suffered damage by reason of certain matters. The valuer found that the plaintiff had suffered no damage beyond a sum paid into court. The valuer had no power to direct a verdict for the defendant. It Special da^ mages in ejectment. Entering nominal {d) Hawkins v. Benton, 2 D. & L. 465. (e) Hawkins V. Benton, 15 L. J. Q. B. 139, S. C. 8 a B. 479. (/) Doe d. Madkins v. Horner, 8 A. & E. 235. AWARDING AS TO JUDGMENT. 349 was lield that on this finding- the verdict might be entered Part il, for the plaintiff for nominal damages {g). oh. ti. b. 5. All matters in difference in a cause and nothing beyond Cause only being referred, the arbitrator has no authority to order the award of plaintiff to pay the defendant any sum of money {h) ; though "Jj-g^J^J^t when the submission is Of the cause and all matters in dif- ference, the arbitrator ought to ascertain the amount of the defendant's claim, and if it exceed the plaintiff's demand, to direct the plaintiff to pay the balance (/). SECTION V. OF AWARDING AN ENTRY OR ARREST OF JUDGMENT. I. F oner to direct entnj of judgment.'] — On a reference of No implied a cause, in which there are only issues of fact to be deter- dh-ectentry mined, the arbitrator has no implied power to direct judg- of J'^'^g- ment to be entered up for either party, even though the submission empower him to direct the entry of a verdict, and to determine what he shall think fit to be done by either of the parties (Jt). In an action of ejectment the arbitrator awarded as fol- Unautho- lows : — " I award, order, and determine, that judgment for of judg- the plaintiff be entered in the said action with one shillinof "1'^"'' ^^'■' , . plusage. damages, and that the plaintiff do recover under the said judgment a plot or parcel of land," — describing it. The court entertaining no doubt that in directing judgment to be signed the arbitrator had exceeded his authority, set aside that portion of the award, but refused to set it aside wholly, being of opinion that if all mention of the judgment were struck out, there was a sufficient finding of the cause in the plaintiff's favour (J). But when the determination of the cause requires that the f'^^^'^ °^ ^ judgment {g) Sowton v. Mills, 30 L. J. bell, 2 A. & E. 52. Q. B. 175. (A) Angus v. Eedford, 11 M. & (A) Poyner v. Hatton, 7 M. & W. 69, S. C. 2 Dowl. N. S. 735 ; W. 211. AUen v. Lowe, 4 Q. B. 66 ; Toby (i) Maloney V. Stockley, 2 Dowl. v. Lovibond, 5 C. B. 770, S. C. 17 N. S. 122, S. C. 4 M. & G. 647 ; L. J. C. P. 201. Williams v. Moulsdale, 7 M. & (/) Doe d. Body y. Cox, 4 D. «S: W. 134. See Macarthui- v. Camp- L. 75. 350 HOW TO AWAliJ) ON A CAUSP], Tart II. en. VI. s. 5 on a de- murrer. Clause em- powering arbitrator to award judgment. Awai-d not specifying kind of judgment. arbitrator should find upon issues of law as well as of fact, it would seem he may order judgment to he entered on the issues in law (??i). Thus where, pending a demm-rer to one of the pleas, the cause and all matters in diiierence were re- ferred, and the arbitrator decided the demurrer by directing judgment to be entered thereon for the defendant ; on a motion to set aside the award on account of this du-ection, the court refused the rule, and seemed to think that the parties had, by referring the question of law, authorized him to decide as he had done {n). Where the submission respecting several actions autho- rized the arbitrators '' to discontinue or order the determina- tion of the actions, or to make or give any orders, or regu- lations, or directions, which they shall think proper as to the time and terms of such discontinuance, or any other matter or thing in anywise relating to the [said several actions," Coleridge, J., seemed to be of opinion that these powers were large enough to justify the arbitrators in ordering judgment to be entered {o). A judge's order empowered the arbitrator '' to order that final judgment, or judgment as in case of a nonsuit, be signed in this action by the plaintiff or defendants, as the case may be, or in such manner, or upon such terms as may be de- cided," by his certificate : he by that document directed that final judgment should be signed for the defendants. This was held sufiicient, though it did not specify the kind of judgment (p). Whether arbitrator can award judgment nou ob- stante vere- dicto. II. Power to decide on judxjment nan obstante veredicto."] — Previous to a modern decision in the Common Pleas, an arbitrator, acting under an order of Nisi Prius on the usual terms referring a cause and all matters in difierence, might have felt himself warranted in supposing that after deciding in favour of the defendant the issue raised on a plea, he was at liberty to entertain a question as to the suffi- ciency of such a plea, as a defence to the action. (m) Angus v. Eeclford, 11 M. & W. 69, per Ld. Abinger, p. 74. (n) Mathew v. Davis, 1 Dowl. N. S. 679. (o) Jones v. Powell, 6 Dowl. 483. (2)) Smith Y. Keece, 6 D. & L. 520. AWAIIDING AS TO JUDGMENT. 351 For though there is no actual decision in the Queen's Tart ii. Bench on the point, the opinion of that court, as gathered ^^•"^^•^•^- from the cases, seems to "be, — that the arbitrator has autho- Awarding rity to decide in eifect Avhetlier the paintift* be entitled to non ob- judgment non obstante veredicto, and if the question be ^^^J^ ^^^^' raised by the pleadings, and brought before the arbitrator by the parties, that the latter ought to decide it in his award, and to assess damages to the plaintiff in case he determines the plea to be insufficient in law to bar the action (q). Thus where the plaintiff declared in case, alleging that he was entitled to the reversion in a close, that a person named Hcarn had Avrongfully erected incumbrances thereon, and that the defendant -WTongfully kept and continued them ; and the defendant pleaded not guilty, and secondly, that Hearn did not erect the incumbrances ; and the arbitrator awarded that the verdict should stand for the plaintiff on the first issue, but without damages, and that the verdict should be entered for the defendant on the second issue ; the court expressed an opinion that the award was defective for not giving damages on the first issue for the plaintiff, which the arbitrator, they said, ought to have done, as the issue on the second plea was immaterial, and ought to have been disregarded by him {r). A statement of Patteson, J., in one of the cases just cited, that the Court of Queen's Bench would not set aside an award for not determining a question as to the validity of the pleadings, unless the point as to the plaintiff's right to judgment non obstante veredicto were raised before the arbitrator, assumes that it was the duty of the arbitrator to have decided the question (s). On motions by plaintiffs for leave to enter judgment non Court obstante veredicto, after the award made, the courts on '^'^^ °°* • 1 ^11 T • entertain several occasions have refused the applications, on the motion for ground that the arbitrator had the same power which the^Q^^^t"* court would have had in the matter, and that his award put stante rere- an end to the proceedings (t). {(j) Allen V. Lowe, 4 Q. B. G6. {t) See P. II. ch. 2, s. 1, p. 118, (r) Grenlell v. Edgcome, 7 Q. as to whetlier issues in law are B. 661. referred on the reference of a (s) Allen v. Lowe, 4 Q. B. 66. cause. 352 HOW TO AWARD ON A CAUSE. Part II. Wliero three pleas were pleaded in bar to a declaration in en. Yi. s. 5. trespass containing* only one count, and issues were joined on them, the arbitrator, having directed a verdict for the plaintiff on the two first issues, and for the defendant on the third, added, that if there had not been the third issue he should have awarded a shilling damages to the plaintiff on the other issues, the court held it not competent for the plaintiff to move for judgment non obstante veredicto on the third issue (?(). Held in c. The Court of Common Pleas, however, have held, that tor n^o' ^ ' on a reference of a cause and all matters in difference by power to order of Nisi Prius, an arbitrator cannot, without special right to power, decide on a question as to the plaintiff's right to ■'on^ob-^* judgment non obstante veredicto, on the ground that the stante vere- question is not a matter in difference at the time of the re- ference (x). It is to be noticed that neither Allen v. Lowe (y), nor Grenfell v. Edgcome {£), were cited before the court in this case. More recently the Court of Exchequer has expressly decided, that an arbitrator has no power to award judgment non obstante veredicto, unless the terms of the submission directly empower him to dispose of questions on the validity of the pleadings (a). Eaising An arbitrator, who was bound to state points of law at the thel-igU o'n i*equest of either party, was requested to raise on the fece of face of i^jg award the question as to the validity of a custom set forth in a plea, and if the custom were bad, whether the plaintiff was not entitled to judgment non obstante veredicto ; the award was held sufficiently final, which raised the j)oints for the opinion of the court, though the arbitrator did not express any positive determination of his own respecting them {b). III. Power to direct arrest of judgment.'] — As an arbitrator («) Steeple v. Bonsall, 4 A. & (z) 1 Q. B. 661. E. 950; Britt V. Pashley, 16 L. J. (a) Linegar v. Pearce, 9 Ex. Ex. 240, S. C. 1 Ex. E. 64. 417. ix) Toby V. Lovibond, 5 C. B. [h) Bradbee v. Christ's Hospital, 770. 4 M. & G. 714. {y) 4 Q. B. 66. AWARDING ON SUIT IN EQUITY. 3o3 cannot direct judgment to he entered, so is it eiiiialiy beyond l'^'^^ ii. his authority to direct the judgment to be arrested, even °"' ^^' ^' ^' though on tlie reference an objection is taken to the validity fo^^i^^^Td of the dechiration, and he is requested to direct an arrest of anestof the judgment in the cause (c). judgment. SECTION vr. OF AWARDING ON A SUIT IN EQUITY. An award that a suit in Chancery shall be dismissed is a Dismissing suflficiently final determination of the suit, for it intends a "*"'*' ^"'^^* substantial dismissal and a perpetual cessation of the suit, and is a conclusive decision on the rights of the parties with respect to all matters which are the subject of the suit (<:/). Where a Chancery suit, in which the plaintiffs prayed to be decreed entitled to a sum of money which the defendant claimed as a gift, was referred with all matters in difference, the award ordering the bill to be dismissed, and each party to pay his own costs, was held to be a sufficient decision of the suit, and also of the title of the defendant to the sum of money, the subject of it (e). If on the reference of a suit in erpiity to rescind an agree- Determin- ment, it be referred to the arbitrator to determine whether of^suit''^*^* the agreement should be rescinded and the suit put an end to, and the arbitrator award that the agreement shall be re- scinded, and that each party shall pay his own costs, this, it seems, is a sufficient determination of the suit (/). When an arbitrator is appointed by an order of Chancery Duty of made in a suit to take the accounts as the master, he, being ^hit^on^y merely substituted for the master, should make an award as the like a master's report, and it will be open to similar excep- ^^^ ^^' (c) Angus V. Redford, 11 M. & (e) Pearse v. Pearse, 9 B & C W. 69, S. C. 2 Dowl. N. S. 735. 484. (d) Knight v. Bui-ton, 1 Salk. (/) Tribe v. Upperton, In re, 75. 3 A. & E. 295. 854 HOW TO AWARD ON A CAUSE. Part II. tions. It will iiot, therefore, it i.s a^jprehended, be sufficient ""' ^'' ^' for liim to state a general balance only, but he ought, it seems, like the master, to set forth a schedule, of the items of the separate accounts, showing which he allows and which he disallows, and to state a balance of each account {g). {y) Dick V. Milligan, 2 Ve^. Jr. 23; 4 Bro. C. C. 117, 536. CHAPTER VII. THE DUTY OF THE AEBITEATOE IN AWARDING AS TO COSTS. As the question of costs necessarily arises on every re- ^^^'^ ^^■ ference, it lias been thought fit to devote a separate chapter ^"•^"•^••^' to the consideration of the duty of the arbitrator in respect ^^'"P® ^^^ contfints cf of costs under tlie various forms of submissions. the seventh The first section points out what j^ower he has over costs, <=^^p*^'"- and how he may exercise it, and the effect of awarding pay- ment of the costs of the cause. The second section considers what are the arbitrator's powers and duty, when costs abide the event of the award ; and examines what event of the award is meant in respective instances, whether the separate event of the award as to a particular matter, or the general event of the whole award. Section three shows the convenience of giving the arbi- trator power to certify for costs, and specifies the proper mode of executing such a power. SECTION I. OF THE ARBITRATOK's POWER AND DUTY IN AWARDING COSTS. I. What are costs of the cause, reference, and award.'\ — what costs It may be of use to note the distinction between costs of the '?r '^"^^^ ^'^ *' IP ^^^ cause. cause, costs of the reference, and costs of the aAvard. When an award, and not merely a certificate, is to be jaade, the costs of the cause comprise the costs incurred in the cause up to the time of the submission, the costs of the order of reference, and of making it a rule of court, and the costs of ulterior proceedings in the cause, if any, after the A A 2 356 HOW TO AWARD AS TO COSTS. Part II. OH.VH. s. 1, When arl)i- trat'ir to certify only. Costs of special case. What costs of the re- ference. When cer- tificate made. award {a). It includes also the costs of witnesses present at the trial ready to be examined, but not the costs of a witness who was subpcEnaed, but who did not arrive until after the cause was referred, though he was examined the same day before the arbitrator (b). When the arbitrator has only to make a certificate, or an award in the nature of a certificate, it Avill be seen a little further on that the costs of the reference are considered costs of the cause. If a verdict be taken by consent, subject to a special case to be stated by A. B. , who, in the event of the court deciding in favour of the plaintiff, is empowered to direct for what amount the verdict is to be entered, and to whom the action and all matters in difference, subject to the special case, are referred, all costs up to the judgment of the court on the special case are costs in the action (). Award III. Duty of the arbitrator in awarding costsP^ — In gene- costs ^^ ° ^^^? when a cause is referred the arbitrator need not, unless costs of he please, give any direction respecting the costs of the low verdict, cause. The result, if the award be silent on the question of costs, is, that the costs of the cause follow the verdict ; and the plaintiff is entitled to them, if the verdict awarded be in his favour, even although the award as to the other matters in difference directs the plaintiff to pay the defend- ant a large sum {f). {h) See P. II. ch. IX. as to award- (c^) 8 & 9 Vict. c. 16. See the ing under the Lands' Clauses Act ; Appendix of Statutes, see also E. v. J. J. York, 1 A. (e) 22 & 23 Vict. c. 59, ss. 27, & E. 828, as to what costs are 28. See Appendix of Statutes, costs of inquiry. See also ss. 51, (/) Young v. Gye, 10 Moore, 52, of the Lands' Clauses Act. 198 ; Mackintosh v. Blyth, 1 Bing. (c) 8 & 9 Vict. c. 20. See the 269. Appendix of Statutes. WHAT rowKR ()\'i;i{ COSTS. -if)! "When tlie costs of the cause, or of the reference or award, Part ii. are stated by the submission to be in the discretion of tlie cn-vn-s. i . arbitrator, it is important as a matter of prudence that tlie Costs of re- arbitrator shoukl always take care to give some direction ^^^^^^^^ *" respecting each of such costs, as in many cases it is probable that the courts may say that the award is not final unless the arbitrator decides something- respecting them. When the costs are in the discretion of the arbitrator, " who s/iall ascertain the same," it Avould seem, from some observations on the effect of that provision, that the arl)i- trator is bound to give some costs, and to fix their amount {ff). So also where it was provided that the costs of the sub- mission, reference, and award shall be in the discretion of the arbitrator, and '' shall be defrayed as he shall direct" (k). When the arbitrator thinks fit to exercise his power over Fixing the costs, his discretion is subject to few limitations. He g™"""^ ° may (if the submission make no provision for the costs being award, taxed) award a gross sum to be paid for costs, and the court will not review his discretion as to the amount, unless the sum be so excessive as to afford evidence of partiality (?). Instead of ascertaining the amount himself (if the reference be of a cause in one of the superior courts, or under a sub- mission which can be made a rule of court), he may award that one of the parties shall pay to the other the costs to be taxed by the Master (k), or costs generally, without saying who is to ascertain the amount, in which case the officer of the court will tax them (/). But if the submission provide that Special n 1 1 I'lT clause, ar- tlie costs of the reference and award are to be ni the discre- bitrator to tion of the arbitrator, " 7v/io shall ascertaiu the same,'''' and he ^^ amount. order a party to pay the costs, the award is bad, unless he ascertains their amount himself in the award, and the Master's taxation will not supply the omission (w). {g) Morgan v. Smith, 1 Dowl. {k) Winter v. Garlick, 6 Mod. N. S. 617, S. C. 9 M. tS: W. 427 ; 195, S. C. 1 Salk. 75 ; PecUey v. Angus V. Eedford, 2 Dowl. N. S. Goddard, 7 T. E. 73 ; Pratt v. Salt, 735, S. C. 11 M. & W. 69, per Cas. temp. Hardw. 161; Tidd's Parke, B. ; Grenfell v. Edgcome, Pract. 832, 9tli ed. 7 Q. B. 661, per Williams, J. {I) Browne v. Marsden, 1 H. Bl. (/i) Richardson v. Worsley, 5 223; Stokes v. Lewis, 2 Smith, 12; Ex. 613. Dudley v. Nettlefold, 2 Stra. 737 ; [i) Shephard v. Brand, Cas. Thorp v. Cole, 4 Dowl. 457 ; Ste- temp. Hardw. 53, S. C. 2 Barnard. phenson v. Browning, Barnes, 56. 463 ; Anon. 1 Chitt. 38 ; Turner (m) Morgan v. Smith, 1 Dowl. v. Eose, 1 Ld. Kenyon, 393. N. S. 617. 362 HOW TO AWAHD AS TO COSTS. Part II. Where the costs of the submission, reference, award, and cH.vii.s. 1. ^^f jnaking- the submission a rule of court, were in the discre- Awardiug tlon of the arbitrator, an award that the costs of the sub- submissioa mission, reference,, and award should be borne by the parties to be paid jj^ equal proportions, and that the costs of making the sub- disobeying mission a rule of court, should be paid by the parties dis- *^'^^' ■ obeying the award and obliging the submission to be made a rule of court, the award was held uncertain and not final as to the costs of making the submission a rule of court, for the award only provided for the case of disobedience to the award by a single party, and not for the case of disobedience by several i)arties, or where there was no disobedience at all ; and it was necessary in all cases to make the submission a rule of court with a view to the taxation of costs (n). The award was held by Coleridge, J. , insufficient which ordered '^ that the costs of making the submission a rule of court should be paid and borne by tlie party rendering it necessary or desu-able " (o). Cause in If the cause referred be in an inferior court, as there is no court. authorized officer to tax the costs of such a court recognized by the suj^erior courts, the arbitrator must take care to assess Reference them liunself, or the award will be deficient {p). So also if ' the reference be by agreement, which contains no provision for making it a rule of court, so that the court has no juris- diction over the matter, the Master cannot tax the costs of the reference ; and therefore the arbitrator, if he give them, must fix the sum in the award {q). Arbiuator When he has power over the costs, he may apportion tioY costs,^" them as he thinks right ; he may order either the plaintiff or the defendant to pay the whole amount of them, or that each shall pay in certain i^roportions (r). He may direct an infant party to the reference, or a person who, though not a party to any cause referred, has made himself a party to the reference, to pay the whole costs (s). Where the costs of the reference and award were " in the («) Williams v. Wilsou, 9 Ex. (q) Thorp y. Cole, 4 Dowl. 457. 90 ; Smith v. Wilson, 2 Ex. 327. (r) Cargey v. Aitcheson, 2 B. & (o) Morris v. Morris, 25 L. J. C. 170. Q. B. 261. (s) Proudfoot y. Poile, 3 D. & (p) Addison y. Gray, 2 Wils. L. 524. 293; Fox y. Smith, 2 Wils. 267. WHAT PUWEU OVE]{ COST^!. 'iQ'.i discretion of the arbitrators or of any two of them who shall by Takt il their award order and direct by whom, to whom, and in what c"V"-s-l- proportions and manner the same sliall be paid," the two ar- bitrators ordered that the three jjarties, A., B., and C., should each pay for the attendance of their own witnesses, and that the other costs of the reference and award sliould be paid by A., B., and C, in equal proportions. It was held that this award sufficiently disposed of the costs, as it showed that each of these parties were to pay one-third of the latter costs to the arbitrators, or to either of them (t). It is not unusual for an arbitrator, when he does not wish Awarding to e-ive a preference to either party, to award that one moiety ^^<^^ *° P^y „. , r J 7 J njoiety of of the costs of the reference and award be paid and borne by costs of re- the plaintiff, and the other moiety thereof by the defendant, conyenilnt. But this mode of deciding is often very inconyenient, for in order to see what each has to pay, it is necessary that the costs incurred by each in the reference be examined, con- tested, and settled by the Master, and also' that the costs of the award be taxed. On the whole amount thus thrown together into hotchpot each party will have to bear a moiety. Unless there be some especial reason for thus awarding, it is better to say that each party shall bear his own costs of the reference, and pay half the costs of the award. This wiU save the delay and trouble of taxing the costs of the parties. The amount of the costs of the award is seldom a matter of dispute {u). The arbitrator cannot, unless specially authorized, award ^°®*^ ^^ ^^' ' ^ '' ' tween at- any other than common costs, as between party and j^arty ; tomey and he has no implied power to order the costs either of the ^^^^ cause or reference to be taxed as between attorney and client {x). In one instance, however, where the reference was by agreement out of court, and the arbitrator awarded a certain sum for costs in the cause, stated to be the amount of costs ns between attorney and client ; the court thought (t) Young V. Bulman, 13 C. B, Darlington, 2 DowL 38 ; Tmner 623. V. Eose, 1 Ld. Kenyon, 393 ; Mar- («) Bates V. Townlej% 2 Ex. E. der v. Cox, Cowp. 127 ; Seckham 152. V. Babb, 8 Dowl. 167 ; Wbitehead (cc) Pratt V. Salt, Cas. temp. v. Fii'th, 12 East, 166 ; Browne v. Hardw. 161 ; Bartlo v. Musgrave, Mavsden, 1 H. Bl. 223. 1 Dowl. N. S. 325 ; Broadhm-st v. 364 now TO AWARD AS TO COSTS. Part II. sucli costs niiglit reasonably be given, and refused to interfere oH.Yii.s. 1. ^^[f\l that provision in the award (y). Costs of It was held, on an order of reference, by which the costs jury.'' of the cause were to abide the event, and the costs of the reference and of the special jury, which had been obtained on the motion of the defendant, were left in the arbitrator's discretion, that the arbitrator had only power of allowing the costs of the special jury, as costs in the cause, if the party who moved for the same had succeeded, and that the arbi- trator had exceeded his authority, after directing a verdict for the plaintiff, in ordering him to pay the c osts of the spe- cial jury (^). Costs of When an arbitrator has power over the costs of the refer- of refer°°^ ^ ^^^^ ^^^^ award, and he orders the parties to execute certain ence, deeds, he may impose on one party the whole burden of paying the costs of the deeds {a). Setting off When two actions are included in one submission, the cross ^^ arbitrator cannot order the costs of one to be set off against actions. the costs and damages in the other, so as to affect the lien of the attornies. The set-off must be subject to the lien (b). "Who to get If the arbitrator direct the defendant, on a specified day, to pay the plaintiff his costs to be taxed by the Master, it is no excuse for non-payment by the day that the plaintiff has not had them taxed, for it is incumbent on the defendant to procure them to be taxed in time, so that he may ascertain the amount, and have the money ready for the plaintiff according to the award (c). Arbitrator Though the costs of the reference and award are left in awarding the arbitrator's discretion, and we have seen that he may, if self. he please, ascertain in his award the amount of the costs of the reference, jet he should not in general award to himself any definite sum, by way of fee or compensation for his trouble, though such a course is sometimes unadvisedly pursued (d). He is not authorized to award a definite sum {y) Hartnellv. Hill, Forrest, 73. 93, 3 B. & Ad. 388. (z) Finlayson v. M'Leod, 1 B. (c) Candler v. Fuller, Willes, & A. 663. 62 ; Bigland v. Skelton, 12 East, (a) Boyes v. Black, 13 C. B. 436. 652, 669. {d) Seccombe v. Babb, 6 M. & (h) Cowellv. Bettely, 10 Bing. W. 129; Daubuz v. Eickman, 4 432 ; Figes v. Adams, 4 Tauut. Dowl. 129 ; Kendrick v. Davies, 632 ; Caddel y. Smart, 4 Dowl. 5 Dowl. 693. 760 ; Bag. Gen. H. T. 2 W. IV. the costs taxed. ■WHAT I'OWKR t»VKR COSTS. 365 to be paid into his liaiuls, incliuliiig in it mu intlefinitc allow- Taut II. ance to himself (e). If he fix in the award the amount of the "^•^" i'-l' costs of the award, that portion of the award, if objected to on good and sufficient reasons showing- an excessive charge, will, when the court has jurisdiction, be set aside ; for it is contrary to reason to allow an arbitrator to be judge in his own cause, and without control to determine the amount of what is to be paid to himself. The better course is for the arbitrator simply to direct which party is to pay the costs of the award, without nammg any sum in his award, and the officer of the court who taxes the costs will, if directed by the court, (and it seems without such direction, if objection be made) examine into the arbitrator's claim, or what the party has had to })ay on taking up the award, and determine as between the parties the proper amount to be allowed for the arbitrator's fees and charges (/). The arbitrator usually notifies to the parties the amount of his charges, and takes care to have them paid before he delivers up his award. In one case when the arbitrator ordered the defendant to pay the costs of the award, and sj)ecified their amount in the award, Coleridge, J., compelled the defendant by attachment to pay them, holding that it was no valid objection that the arbitrator had named the amount in the award, and that it was the business of the party affected, if he had objected to the amount, to have proceeded with due diligence to com- plain, and to have procured their taxation {(/). More recently, however, under similar circumstances, Blackburn, J., after consulting other judges, declined to act on that decision and refused to order payment of the amount (k). But the courts will not set aside or refer back an award because the arbi- trator has stated the amount in the award, unless there be an affidavit that the sum is excessive (i). If the award direct the parties to pay the costs of the (e) Robinson v. Henderson, G Coombs, 4 Ex. 839. M. & S. 270. {(/) Threlfall v. Fansba^ve, 19 (/) George v. Loiislev, 8 East, L. J. Q. B. 334. See Fernley v. 12 ; Miller v. Eobe, 3 Taunt. 461 ; Branson, 20 L. J. Q. B. 178. Fitzgerald v. Graves, 5 Taunt. (7t) Parkinson v. Smith, 30 L. 341 ; Barrett v. Parry, 4 Taunt. J. Q. B. 178. 657; Brazier V. Brvant, 2 Dowl. (;') Eose v. Eedfern, 10 W. E. 600; Moore v. Darley, 1 C. B. 91. 445. See ante, p. 357. In re 366 HOW TO A\VARr> AS TO COSTS. Part II. HAvard to ail attorney or other person on the plaintiff's behalf, cH.Tii.s.l. it does not seem open to objection in point of law {k). But it is better not to do so in the award. If the arbitrator be by the submission specially directed to ascertain the amount of the costs of the award, he should do so in the award (/) ; and if the reference be one over which the courts have no jurisdiction, so that the costs cannot be taxed by the taxing officer, it would seem, if he has power to give costs of the award, lie must, in order proj)erly to exer- cise it, fix the amount himself, lest the award be defective for want of certainty {m). Arbitrator H. was appointed by A. and the executrix of B. to act as himself as attorney in completing the dissolution of the trade partner- receiver. g]jip ijetween A. and B., and as receiver in respect of their law partnership estate, and effects, and as arbitrator in respect of all differences arising as to .both partnerships. H. was empowered to dispose of the estate, money, and effects of the law partnership in sucli manner as he should think best for the interests of A. and of the executrix. H. was also authorized to make one or more awards, and the costs of the reference and awards were left in his discretion. H. made an award stating that he had received and disposed of the estate and effects of the law partnership in such man- ner as he thought best for the interests of A. and of the executrix, and awarded a sum of money to be paid by the executrix to A., and that each party should pay their own costs of the reference ; and he stated in the award that he had deducted and retained to himself the costs of his award out of the moneys he had received as receiver. It was held by a majority of the judges in the Exchequer Chamber, reversing the judgment of the Common Pleas, that the award was good, although the award did not state what the amount of the costs of the award were, or which jaarty H. had charged witb them (n). The proper mode of awarding costs in references under (/c) Parkinson v. Smith, 30 L. {m) See P. II. ch. xi. s. 1, as J. Q. B. 178. to the arbitrator's right to remu- [l) Morgan v. Smith, 1 Dowl. neration. N. S. 617 ; Gillon v. Mersey & («) Eoberts v. Eberhardt, 3 C. Clyde Navigation Company, 3 B. B. N. S. 482, S. C. 27 L. J. C. P. & Ad. 493 ; Barnes v. Hayward, 70 ; reversed in Ex. Ch. 28 L. J. 1 H. & N. 742. C. P. 74. WHAT J^DWKI! OVKK COSTS, 367 tlie Lands' Clauses Consolidation Act, 1845, is discussed in Part ii. a sul)sequent chapter (o). ch.yh.h.I. IV. Effect of awarding 'payment of the costs of the cause. '\ Costs of — AVlien an arbitrator, having autlioi-ity, directs one party awarded to pay the other the costs of the cause, this direction, unless same as on a verdict. the context prevent it, will generally be imderstood to give a right to such costs, and such only, as the party Avould in the ordinary course of law have been entitled to, had the event of the cause been determined as it was, by the court or a jury instead of by the arbitrator. Thus after a verdict for the defendant, and a rule for a new trial obtained, the cause being referred, an award that the plaintiffs were en- titled to recover, and that the defendants should pay the costs of the cause, was held not to entitle the j)laintiifs to the costs of the first trial, for they would not have had a right to them had the cause been tried a second time, and a verdict found in their favour (jo). So where the arbitrator was to hear and decide on the costs of the cause, as if a plea which had been withdi-awn by consent had remained, and the arbitrator, after finding two issues for the plaintifi", and one which went to the whole merits for the defendants, directed the plaintiif to pay the defendants their costs in the cause, the court held that the plaintiff was entitled to the costs of the two issues found for him, and the defendants to the costs of the third ; and that as nothing was said in the award respecting the costs of the issue on the plea which had been withdrawn, the arbitrator was not to be con- sidered as having included them in the costs of the cause, or meant to give them to either party, consequently that each party would have to bear his own costs of that issue (<^). An award to the plaintiff of " the costs sustained in the Award of action," does not give him the costs of the reference (r). actiom'^ As cases decided on the construction of a direction in the submission to pay costs, illustrate what would be the effect (o) See P. II. cli. IX. & E. 326. {■p) Eigby T. Okell, 7 B. & 0. (r) Browne v. Marsden, 1 H. 57. Bl. 223. (9) Allenby v. Proudlock, 4 A. 368 HUM' 'JO AWAUD AS TO COSTS. Part II. C)f similar words in an award, the two following cases are o H.yn.s.2. cited here. Not include * By a judge's order referring a cause, the plaintiff was to ferencf "^"^ he at liberty to enter up judgment and sue out execution for the sum awarded due, together witli his costs ; it was decided by the Court of Common Pleas, in accordance with what was rej)orted to be the practice of the King's Bench, that this submission did not entitle the plaintiff to the costs of tlie reference (5). Costs of Where an indictment, removed into the King's Bench by the defendant, and made a special jury cause by the pro- secutor, was referred by an order of reference, which stated that if the arbitrator should be of opinion that the defendant w^as guilt}', and the prosecutor entitled to costs, the defend- ant agreed to pay the costs, and the arbitrator did so find ; it was held that the prosecutor could not recover the costs of the special jury, since tlie judge had not certified pursuant to the statute G Geo. IV. c. 50, s. 34, and the order of refer- ence did not expressly give a power of doing so to the arbi- trator, and that the general term " costs," in this order, did nor include those of the reference and award (t). special juiy. SECTION 11. OF THE POWEK AND DUTY OF THE ARBITKATOR WHEN COSTS ABIDE THE EVENT. r. . ,-, I. Power of the arbitrator when costs abide the eveiit.'] — Costs abide -^ ... . event. Instead of leaving the costs in the discretion of the arbi- trator, the submission often provides that they shall abide the event. " The When the submission provides that " the costs'' are to abide costs." the event of the award, that includes the costs both of the reference and of the cause {u). Costs of When costs are to abide the event, the arbitrator has no cause and reference. {s) Bradley v. Tunstow, 1 B. & (?;.) Wood v. O'Kelly, 9 East, P. M. 43(j. (0 E. V. Moate, 3 B. & Ad. 237. I WHEN COSTS ABIDE THE EVENT. 369 control over tlieni, and the award should be silent respecting Tart ii. tliem. It is an excess of authority on his part to ascertain c"-v"-9-?- their amount in the award (x), or to order the costs of the Arbitrator cause to be set oil' against the other party's damages and on costs costs in another action (?/), or to du-ect that they shall be abiding paid at any particular time or place {z). Sometimes, however, he has an indii-ect power of affecting Awarding them. For it would seem from the observations of Parke, execution. B., in a recent case, that when the arbitrator has all the powers of a judge of Nisi Prius, he may award speedy execu- tion of the costs and damages in the cause, and thus compel an earlier payment than the ordinary course of law would impose («). In another instance, a cause and all matters in difference, Awarding including a suit in ecpiity by the defendants in law against "'•'™*' ^°°* the plaintiffs in law, praying for an injunction to restrain the plaintiffs in law from proceeding in the action, were re- ferred, and the costs of the action, and of the suit in equity, were directed to abide the event of tlie award. On some of the issues in the action, the arbitrator found for the plaintiffs with damages, but as to so much of the suit in equity as regarded them, he awarded that the j^laintiffs should be restrained, and should not proceed to recover the damages found for them, nor costs. Tliis cause was complained of as an unauthorized inter- ference with the costs of the cause, which it was contended were to follow the event of the cause. But the court were of opinion that the arbitrator had not exceeded his autho- rity, as the event of the award, which the costs were to abide, meant the ultimate and general event, and not that of each particular part, and that as the suit in equity prayed an injunction, the arbitrator clearly had power to restrain on equitable grounds the plaintiffs from recovering that to which on legal grounds they were entitled, although it was true that he thus exercised an indirect jurisdiction over the costs at law {b). (x) Kendrick V. Davies, 5 Dowl. & W. 324. 693 ; Hemsworth v. Brian, 1 C. B. ((f) Eees v. "Waters, 16 M. & W. 131. 263, S. C. 4 D. & L. 567. {y) TJnstedv. Kidd, lCliitt.o26. {h) Reeyes v. Macgregor, 9 A. (z) Cockbiu-n v. Newton, 9 & E. 576. Dowl. 676 ; Clarke v. Owen, 2 H. 370 now TO AWARD AS TO COSTS. Part II. n. W//rrf tlie eoeiit^ when the costs of the cmise only abide ^^'^^^^ the event.'] — From tlie somewliat ambiguous provision ordi- Whatthe nai'ily inserted in a submission, referring a cause and all award. matters in difference, " tliat the costs of the cause shall abide the event of the award," it is not always easy to say on what event the costs of the cause are to depend, whether on the event of the award as to the cause, or on the general event of the whole av/ard {c). Costs of If the costs of the cause, or of all matters in difference in .ibidinf ^^^^ causc, be to abide the event of the award, and the sub- event of mission be silent as to i\\Q costs of the reference, or leave them in the arbitrator's discretion, the event construed to be meant, will be the event of the award as to the cause, and not the general event of the award, even although the event of the whole award be in favour of the party who fails in the action {(I). Arbitistor The arbitrator, therefore, in such case, is not justified in cause sepa- making a general award, but he must decide the cause lately. separately from the other matters in difference, in order that there may be an event of the cause on which the costs of the cause can be taxed. And for this end it is necessary that the cause should not merely be disposed of, but deter- mined in favour of one of the parties (e). Tlie proper manner of deciding the cause, the duty of finding on every issue joined, the powers and duties of the arbitrator as to the verdict, damages, and judgment have been fully discussed in the previous chapter {/). Separate An award of a gross smn in favour of either party is insuf- cause. ficient, because it leaves quite uncertain in whose favour the cause has been decided, since it is imjiossible to collect from it whether the sum is to be paid in respect of the action, or of any other matters in difference, so that there is no deter- mination of the event on which the costs of the cause To allow depend {g) ; and even if when a verdict has been taken, the taxing costs -^ ^ ^ 7 (c) See Cooper v. Pegg, 24 L. J. pany v. Peters, 25 L. J. Q. B. C. P. 167. 273, S. C. 6 E. & B. 215 ; Eey- {d) Lund V. Hudson, 1 D. & L. nolds v. Harris, 28 L. J. C. P. 26, 236 ; Crosbie v. Holmes, 3 D. & S. C. 3 0. B. N. S. 267. L. 566 ; Higligate Arcliway Com- (e) Learning v. Pearnley, In re, ' pany v. Nash, 2 B. & A. 597 ; 5 B. & Ad. 403. Pearson v. Archbold, 11 M & W. (/) P. II. Ch. 6, p. 323. 477; Matlock Gas Light Com- [g) Pearson v. Ai'chbold, 11 M. WHEN COSTS ABIDE THE EVENT. 371 issues are specilically decided, the finding is still defective, Tart li. because as there are no specific damages in the cause, the cnv n.8.2 . costs of the cause cannot be taxed on the verdict {/(). yenHct And the arbitrator should assess the true amount of debt to dcter- or damages in the cause separately, for in trespass and case mine right the right to costs may often depend upon the damages amounting to forty shillings (i). And in actions on contract And scale for a demand in the nature of a debt, the scale at which the costs of the cause are taxed depend upon whether the plaintiff recovers a sum exceeding £20 (/<;). When a declaration or plea contains, as is very commonly c^tsts of the case, several claims or several defences, the arbitrator tive should consider whether ^it may not be right for him to find pie^'i^'iiDSs. for a party on some specific matters, and against him as to the others, as such finding may materially affect the distri- bution of the costs (/). Where, however, a cause and all matters in difference What suffi- were referred, the costs of the cause, reference, and award, ^,]je,j ^rk. and all other costs to abide the event of the award, and to ^^'^^^^' ^^ tax costs. be taxed by the arbitrator, an award that a certain sum was due from the defendant to the plaintiff, and directing pay- ment, was held sufficient, though it did not show, how the arbitrator had decided the cause, what amount was given in respect of the matters in difference, or what portion of the sum the arbitrator had assessed for costs {m). III. W/iat the ccejit, when the costs of cause and reference Costs of abide the ecent.'] — When on a reference of a cause and all refeie^c°e matters in difierence, the submission provides that the costs abiding of the cause and of the reference are to abide the event of the award, that, as a general rule, according to the latest & W. 477 ; Crosbie v. Holmes, 3 See also Eule v. Bryde, 1 Exv E. D. »&; L. 566, S. 0. 15 L. J. Q. B. 151. 125. See Nicholson v. Sykes, 9 (?) Eeynolcls v. Harris, 28 L. J. Ex. 357. C. P. 26, S. C. 3 C. B. N. S. 267; [h) Taylor v. Shuttleworth, 8 Gore v. Baker, 4 E. & B. 470; Dowl. 281 ; Tayler v. Marling, 2 Crawshaw v. The York and North M. & Q. oo. Midland Eailway Company, 21 L. (0 Spain V. CadeU, 8 M. & W. J. Q. B. 274 ; Kalcey y. Stupples, 129. 32 L. J. Ex. 6. (A-) EUeman v. WiUiams, 2 D. {m) Bradley v. Phelps, 6 Ex. L. 46. See P. IH. Ch. 8, s. 2, 897. as to taxing the costs of the cause. B B 2 372 HOW TO AWAKD AS TO COSTS. Tart II. autliorities, will be construed to mean the general event of CH.VII.S.2. jr\iQ award, and eacli party will have to pay his own costs, unless everything be decided in favour of one party {n). No costs, Hence, where the costs of the action, submission, refer- ing part for cuce, and award, and all other matters in anywise relating each. thereto, were directed to abide the event of the award, and to be paid at such time or times as the arbitrator should direct, and the award found some matters in ftivour of each party, the arbitrator was held to have exceeded his authority in giving any directions respecting the payment of the costs {o). Where the costs of the action were to abide the event of the action and the costs of the reference and award to abide the event of the award, and the arbitrator found for the plaintiff in the action for 80/., and for the defendant as to the matters in difference beyond the action for 61., and ordered the defendant to pay the balance to the plaintiff; each party had to bear their own costs of the reference (p). Costs fui- Supposing there are several accounts between two mer- baTance. chants, and they agree that the whole accounts shall be referred to an arbitrator, the costs to abide the result of the award, and the arbitrator finds the balance upon some of the accounts in favour of one party, and upon others in favour of the other, but the final balance of the whole amount in favour of one of the two, the result on which the right to costs depends means the final determination of the whole matters in dispute, and the costs follow the balance : and this it seems is the case, although an action has been com- menced in resj)ect of some of the matters in account, and the cause and all matters in difference have been referred, the costs of the cause, reference, and award, to abide the result of the award, and the arbitrator has determined that in the action the plaintifi" is entitled to recover a certain amount, but that on the balance of all the accounts, taking (n) Boodle v. Davies, 3 A. & (o) Boodle v. Davies, 3 A. & E. E. 200 ; Jones v. Powell, 6 Dowl. 200. 483 ; Gribble v. Buchanan, 26 L. (p) Gribble v. Buchanan, 26 J. C. P. 24, S. C. 18 C. B. Eep. L. J. C. P. 24, S. 0. 18 C. B. Eep. 691 ; Eeynolds v. Harris, 28 L. J. 691. C. P. 26, S. 0. 3 0. B. N. S. 267. WHEN COSTS ABIDE THE EVENT. 373 into consideration the sum found due in the action, the Part II. plaintiff is indebted to tlie defendant (y). <^°-^"-^-^- On a chxim by a contractor for makhig seven separate Costs not portions of a railway under seven distinct contracts, the tive. action and all matters being referred, the costs of the cause and reference to abide the event, it was held that the arbitrator need not award separately as to each portion, the costs not being distributive according to the result of each (r). Where an action of trover for corn was referred, the costs When cosu to abide the event of the award, and the arbitrator awarded neraievent, to the plaintiff a right of entering into the defendant's barn, ^^'[^^^^^^''^j. Init did not decide the action, it was held that as the event need decide was substantially in the plaintiff's favour, the plaintiff was ^^"^°' entitled to his costs, and the court noticed the distinction that the costs were to abide the event '•'' of the award,'''' and not '■'• of the action " {s). When the costs of the suit, reference, and award, are to Awarding abide the event of the award, and, independently of the cease. cause, the award is partly in favour of the plaintiff, and partly of the defendant, as the event of the award as to costs has been already determined by this finding to be, that each party shall pay his own, it is not incumbent on the arbitrator to make a legal termination of the cause in favour of either party. On this ground, where an action for the price of some flints sold and delivered, and also for the use and occupation of a gravel pit, was referred, with all matters in difference, the costs of the suit, reference, and award, being to abide the event of the award, the court supported the award, which du'ected the defendant to deliver a certain quantity of flints to the plaintiff, and the plaintiff to pay the defendant a specified sum, upon payment of which the award ordered that all proceedings in the action should cease, and that each party should give the other a general release, the arbitrator expressing no opinion respecting the merits of the action (f). (9) Hemsworth v. Brian, 1 C. tion as to tlie advantage and effect B. isi. of distributive findings, p. 371. {r) Crawshaw v. The York and is) Anon. 1 Smitla, 426 North Midland Eailway Com- [t) Yates v. Knight, 2 Bing. pany, 21 L. J. Q. B. 274. See N. C. 277. the jireceding division of this sec- 374 now TO AWARD AS TO COSTS. Part If. OH. VII. s. 2, Costs of cause abiding event of cause. Costs of causes abiding event of each. Costs of cause and suit abldius: But although it may not be absolutely necessary, it is advisable in all cases, if possible, to decide on the merits of the cause separately, for in some cases where the costs of the cause, and of the reference and award, were to abide the event of the award, the court have construed the submission to mean that the costs of the cause were to depend on the event of the award as to the cause (ti), and in one instance, when the cause was decided for the defendant, and the general event of the reference was for the plaintiff, directed the Master to tax the defendant his costs of suit, and give the plaintiff the costs of the reference (x). From the peculiar terms of the submission, and the nature of the subject-matter, the direction that costs are to abide the event of the award, has been in particular cases con- strued to mean that the costs of each matter are to abide the decision on that matter. An action of replevin, and two actions of ejectment were referred, together with the subject- matters thereof, in one submission, and it was also agreed " that the costs of the said several actions, and of all matters and things relating thereto, shall abide the event of the award, and be borne and paid by the parties at such time and in such manner as the same shall be thereby ordered to be paid, and that the costs and charges of the submission, reference, and award, shall be in the discretion of the arbitrators." The arbitrators found two actions in favour of one party, and one in favour of the other, and then directed the costs of each action severally to be paid by the losing l^arty in each on a particular day. It was objected that the arbitrators had no power over the costs, as the event of the award was not wholly one way ; but the court held the arbitrators right in their direction, as in substance several actions, and nothing more, being referred, the agree- ment that the costs of the actions should abide the event of the award, meant the event of the award as to each action distributively (y). But where an action and a suit to restrain the plaintiff at law from proceeding with the action were referred, the costs (tt) Eardley v. Steer, 2 C. M. & & E. 691. ^' 327. [y) Jones v. Powell, 6 Dowl. (ck) Cliittendcn y. Walker, 3 A. 483. WHEN COSTS ABIDE THE EVENT. 375 of the action and suit to abide the event of the award, the '^^^'^ "• 1-11 I'l CH.VII. S. 2. court held that the event whicli the costs were to abide, meant the ultimate and general event, and not that of each H^J^^ particular part (z). By the agreement of reference between M. and W. refer- Costs of ring all matters in difference, it was provided that an action include by M. against W. should be discontinued, and that the costs of <=°s*» °^ the reference and award, including the costs of the action, should abide the event of the arbitration. The arbitrator found that W. was not guilty of the charges alleged in the action, but owed M. a certain sum. The court of Queen's Bench held neither party entitled to costs (a). And it was subsequently decided by the Court of Exchequer, that the one party who had paid the umpire's charges in order to take up the award, was entitled to recover half the amount by action from the other {b). Where a verdict was taken subject to a reference to an Costs of arbitrator to find the facts and state a case, the costs of the H be^costs reference and arbitration, and special case, to be costs in the of cause. cause, and to abide the event thereof, and the court below gave judgment for the plaintiff, but that was reversed in the Exchequer Chamber ; the court held that the event meant, not the ultimate event, but the event as if there had been a trial at law and no reference at all () Marsack v. Webber, 6 H. & E. 576. & N. 1. (a) Marsack v. Webber, 29 L. (c) Wbaley v. Laing, 5 H. & J. Q. B. 109. N. 480, S. C*. 29 L. J. Ex. 313. 376 HOW TO AWARD AS TO COSTS. Part II. costs of the first trial, the finding of the arbitrator gave the -^ — '-^-^ defendant no claim to those costs (d). So where the costs executors of a causc referred at Nisi Prius were to abide the event, and plaintiffs, ^i^g arbitrator awarded that there was not anything due to the plaintiffs, it was held, that as the plaintiffs were suing as executors, they were not liable to pay costs to the defen- dant, as they would not have been liable had the cause been Damages SO decided by the verdict of a juiy {e). So also where on a "vfr^f"^*^ similar reference the arbitrator awarded that the plaintiff's demand was thirty-seven shillings only, a sum under forty shillings, the court made absolute a rule referring it to the Master to tax the defendant his costs of the action, since if a jury had arrived at a like result, they would have per- mitted a suggestion to have been entered to entitle the defendant to costs (J"). Reference In an action for breach of covenant in a farmino- lease, the before . issue ; declaration complained that the defendant had not paid for *hintf/on c^^t^i^ expenses, had not farmed his land in a proper man- oue of ner, had not left proper fallows, and had carried ofi" straw matters in fi'o^ the farm. After plea, the cause was by judge's order the cause, referred to arbitration, " the costs of the reference to abide the event." An award found for the plaintiff for sixteen shillings on the breach charging the defendant with removing straw ; and that the plaintiff had sustained no damage by reason of any of the other alleged breaches. The Court of Exche- quer held that the plaintiff was not entitled to the costs of the reference, and drew a distinction between a reference before issue joined, and one where a verdict has been taken subject to the reference; and Pollock, C. B., said, "In the latter case the plaintiff gets his costs on the issues on which he succeeds, and the defendant his on the issues on which he succeeds ; and when on the whole, by gaining on the issues in the cause the plaintiff succeeds, he gets the general costs of the cause. But when there is a reference of an action before issue joined, with an agreement, as here, that the costs are to abide the event, and the plaintiff succeeds as to a (d) Thomas V. Hawkes, IDowl. E. 138. N. S. 346; Summers v. Formby, ( /") Butler v. Grubb, cited in 1 B. & C. 100. Swingleliui-st v. Altbam, 3 T. E. (e) Highnam v. Hassell, cited 138. in Swinglehurst v. Altham, 3 T. WHEN COSTS ABIDE TUE EVENT. 377 «i very small part of the claim fur which he brinn^s his action Tart li. . CII.VILS 2 against the defendant, and fails as to the greater part of his — ^ '—^ claim, is he to be entitled to the costs of the reference asainst the defendant ? I think not. If I am asked who has succeeded in the present case, I say the defendant " {(/). The attention of the court was there called to the case of Widens v. Cook (k), which was a reference at Nisi Prius, the record being withdrawn, and the plaintiff, who had had awarded to him a farthing damages on one of many counts, was held entitled by the Coiu't of Common Pleas to the costs of the cause which were to abide the event of the award. Where, however, " all matters in difference in the cause " Costs, in an action on the case to try a right to a watercourse were, ^™°"°red after issue joined, referred by a judge's order, the costs of by verdict, the cause to abide the event of the award, but no power was given to the arbitrator to certify under the statute 3 & 4 Vict. c. 24, s. 2, and the arbitrator found for the plaintiff on aU the issues, with sixpence damages, Coleridge, J., remarking Reference that the above-mentioned statute did not apply in terms, as verdict, the plaintiff did not recover his damages by the verdict of a jury, held the plaintiff entitled to full costs, construing the submission to mean that the payment of costs should follow the event of the award, namely, that he in whose favour the decision was, should be paid by the other party the costs of the suit (^). That decision has been recently followed in a case where the record was withdraii^Ti, and the arbitrator, who had all the j)owers as to certifj'iug as a judge at Nisi Prius, had on one count out of many awarded a farthing damages, but had not certified {k). So where a cause was referred before trial, the costs of the cause to abide the event, and the arbitrator awarded in the plaintiff's favour 3/., the coiu"t held that the plaintiff was entitled to the costs of the cause, and was not barred by the County Court Act, 13 & 14 Vict, c. 61, s. 11 (/). But, in recent instances, where a verdict 'Reference has been taken subject to the reference, an award for the ^■^^^ ^^^' plaintiff of less than forty shillings damages has been held (g) Kelcey v. Stupples, 32 L. J. J. Q. B. 336, S. 0. 4 D. & L. 109. Ex. 6. See P. III. Ch. 8, s. 2, {k) Wigens v. Cook, 28 L. J. C. as to taxation of costs. P. 312, S. C. 6 C. B. N. S. 784. {h) Wigens v. Cook, 6 0. B. N. {I) Jones v. Jones, 29 L. J. C. S. 784, S. C. 28 L. J. 0. P. 312. P. 151, S. C. 7 C. B. N. S. 832. {{) Griffith.8 V. Thomas, 15 L. 373 HOW TO AWAKD AS TO COSTS. Part II. OH. VII. s. 2. Compul- sory reference. When de- fendant arrested for too lartie sum. to bar liis right to costs, as amounting to a recovery by verdict of a jury within the above-mentioned statute, and Griffiths V. Thomas (m) was distinguished as being the case of a reference before verdict (n). On a compulsory reference to the Master, " costs to abide the event," where the Master certified for the plaintiff for 3/. Is. Qd.y it being shown that the matter arose witliin the jurisdiction of the Sheriffs' Court of London, it was held that the costs followed the legal event, and that the plaintiff was deprived of his costs by the London Small Debts Act, 15 & 16 Vict. c. Ixxvii. ; and the court distinguished the cases of Wigens v. Cook {o) and Jones v. Jones {p) as being references by consent before trial ( q). A determination of a cause by an arbitrator, where a verdict has been taken subject to the reference, has often been held equivalent to a trial, so as to entitle the defendant to costs under the 43 Geo. IIL c. 46, s. 3, where the plaintiff does not recover the sum for which the defendant was arrested, and the arrest was made without reasonable and probable cause (r). A similar decision has been arrived at with regard to applications under the statute 12 & 13 Vict. c. 106, s. 86, where the plaintiff makes an affidavit as to the amount of the debt, without reasonable or probable grounds (s). Nor is he precluded from applying, on the ground of other matters in difference being referred by the same submission, if the arbitrator have made a separate adjudication as to the cause {t). But if a cause be referred before trial, the costs to abide the event, and there is no award of a verdict, the defendant is not entitled to costs under the 43 Geo. IIL c. 46, s. 3, the sum awarded the plaintiff not being money recovered in the action within the meaning of the statute {u), (m) 15 L. J. Q. B. 336, S. C. 4 D. & L. 109. (n) Cooperv.Pegg,24L.J.C.P. 167 ; Eeid v. Asliby, 13 C. B. 897. (o) 6 C. B. N. S. 784, S. C. 28 L. J. C. B. 312. {p) 7 C. B. N. S. 832, S. C. 29 L. J. C. P. 151. (g) Eobertson v. Sterne, 31 L. J. C. P. 362. (r) Summers v. Grosvenor, 2 C. & M. 341 ; Summers v. FoiTaby, 1 B. & C. 100; Silversides v. Bowley, 1 Moore, 92 ; Eowe v. Ebodes, 2 C. & M. 379 ; Eeynolds V. Flower, 3 M. & Sc. 801 ; Payne V. Acton, 1 B. & B. 278; Watkins V. O'GormanMalion, 5 Dowl. 178. (s) Deere v. Kirkhouse, 20 L. J. Q. B. 195 ; HiU v. Merritt, 26 L. J. Ex. 126; Foster v. Hanson, 1 H. & N. 755. (t) Jones V. Jehu, 5 Dowl. 130. {u) Keene v. Deeble, 3 B. & 0. 491 ; Stevens v. Eussell, 1 H. «& N. 752. AVIIEN COSTS ABIDE THE EVENT. 379 even Avlion, by the submission, the costs arc to abide the Taut II. event in like manner as t)n a verdict (x). cn.vn.s.2. Where a cause and all matters in difference were referred, the costs of the cause to abide the event of the award, and the arbitrator found that at the commencement of the suit there Avas due from the defendant to the plaintiff £45, and that the plaintiii' had no reasonable or probable cause for arresting the defendant (as he had done) for £179, and that the defendant, by means thereof, was entitled to compensa- tion to the amount of £20 ; the court, in the exercise of theh' discretion, refused to allow the defendant costs under the 43 Geo. III. c. 46, inasmuch as by the terms of the sub- mission the costs were to abide the event of the award, and that was in favour of the plaintiff (]/). In a recent case, the question was raised, but not decided. Affidavit of whether the 5 & 6 Vict. c. 122, s. 19, which provides for too much, giving costs to the defendant when the plaintiff shall not recover the amount of the sum for which he has filed an affidavit of debt, and it appears to the court that he had no reasonable or probable cause for making the affidavit for the amount, applied to causes determined by awards {z). Where a replevin suit not at issue was referred, the costs Double to abide the event, and the arbitrator awarded in favour of replevin. the defendant, it was held that the defendant was not entitled to double costs under the statute 11 Geo. 11. c. 19. s. 22, as that Act gives double costs against a plaintiff in replevin only in three cases, namely, when he is nonsuited, discontinues his action, or has judgment given against him ; though had the arbitrator awarded a discontinuance it would perhaps have been different («). An action to recover the treble value of tithes not set out under 2 & 3 Edw. VI. c. 13, having been referred after demurrer, and the arbitrator having Costs in awarded tlie single value to be less than £6 VSs. 4d., the not setting plaintiff was held not entitled to costs on the counts for the °^* ^^^^^s. penalty under the statute 8 & 9 Will. TIL c. 11, s. 5, the value not having been found by the jury (b) ; but full costs (x) Holder v. Eaitt, 2 A. & E. D. & L. 490. 445. _ (a) Gurney v. Buller, 1 B. & A. (y) Thompson v. Atkinson, 6 B. 670. & C. 193. See also Tiuiier t. {h) Barnard v. Moss, 1 H. Bl. Prince, 2 M. & P. SOo. 107. (2) Higginson y. Broadhiirst, 1 380 now TO AWARD AS TO COSTS. Act, Costs of compensa tion in- quiry. Part II. were given wlieii there was a verdict taken subject to the CH.VII.S.2. i-eference, and the arbitrator directed a verdict to be entered Case within for tlic treble vahie, £1 10s. (c). An award of less than £5, Requests on the reference of a cause within the jurisdiction of the London Court of Requests, deprives the plaintiff of his right to costs (d), although there is no verdict (e). Where a party claiming compensation under a railway Act, agreed to refer his claim to arbitration, instead of taking the verdict of a jury under the provisions of the Act, and the deed of reference and the award were silent about costs, the party was not held entitled, on account of an award in his favour, to claim the costs of the reference from the com- pany, although, had a jmy given him by their verdict a similar amount of compensation, he would, according to the statute, have been entitled to the costs of summoning the jury, the expenses of a bond which the party was bound to execute, and the expenses of witnesses (/'). Costs under For the purposes of costs under the Small Debts Act Debts Acts, an award in a cause referred after issue joined, giving the wbeu plaintiff less than £20, seems to stand on the same footing award uw ■*• ' . ° der 20^. as a vcrdict (^). Waiving right to costs. V. Supporting award defective as to costs.^ — The award if defective in the finding as to costs, may in many cases be sustained as to the rest, if the party, in whose favour it is, desire it, by his consenting to waive his right to costs on the higher scale, or to costs of certain issues, or to all costs, or allowing costs undisposed of to his opponent, so that his opponent cannot be prejudiced by the omission of the arbi- trator (k). On a reference as to the amount of damages to be paid by the defendant, who was to pay all costs, the court granted a (c) Pedley v.Frampton, 2 Chitt. 155. {d) 39 & 40 G. III. c. 104, s. 12. Local Act. (e) Day v. Mearns, 2 Chitt. 157. See Holden v. NewTnan, 13 East, 160. ( /■) Eeynal, Ex parte, 16 L. J. Q. B. 304. (g) Morris y. Bosworth, 2 E. & B. 213. {h) Morgan v. Smith, 1 Dowl. N. S. 617 ; England v. Davison, 9 Dowl. 1052 ; Taylor v. Shuttle- worth, 8 Dowl. 281; Tayler v. Marling, 2 M. & G. 55 ; Smith v. Eeece, 6 D. & L. 520 ; Leeming v. Fearnley, 5 B. & Ad. 403. WHEN COSTS ABIDE THE EVENT. 381 rule to compel him to pay the damages awarded, as tlicy were rAni li. separable from the direction as to costs, wliich was objected "'•"^"•^•^' to by tlie defendant as insufficient, and no application was made for costs (?). SECTION III. OF THE DUTY OF THE ARBITRATOR WHEN EMPOWERED TO CERTIFY FOR COSTS. • By special provisions inserted in orders of reference the Po^er to arbitrator is frequently authorized as a judge of Nisi Prius costs to grant various certificates affecting the rio-ht to costs or the should be o o o given. amount of costs. Care should be taken to see that such provisions are in- Hardship serted in the submission, for cases of hardship often arise, „iyen. when the submission does not give the arbitrator such power. In an action of trespass referred, the costs to abide the event, the arbitrator awarded five shillings damages for an assault by the defendant in attempting to exercise a right of way negatived by the arbitrator : the court held the event meant the legal event, and that under the statute 22 & 23 Charles II. c. 9, the plaintiff could recover no more costs than damages, as the arbitrator's award was not tantamount to a judge's certificate under that Act, and such certificate was necessary to entitle the plaintiff to full costs (k). Even where the arbitrator, giving ten sbillings damages for a tres- pass, awarded in terms that the trespass was wilful, the court held they could not give the plaintiff his full costs of suit, though they regretted that provision for supplying the want of the judge's certificate had not been made in the submission (/). So where an indictment removed by the defendant into the Queen's Bench, and made a special jury cause at the instance of the prosecutors, was on the trial (i) Lloyd V. Si>ittlc, 6 D. & L. CHtt. 183. 531. (0 Ward v. MaUinder, 5 East, (A-) Swinglehiirst v. Althain, 3 489. T. R. 138; Willis v. Osborne, 1 882 HOW TO AWARD AS TO COSTS. , Part II. CH.VII. s,3. Oertifj ing cause fit to be tried liefore a judsje. Judge may certify at any time. Power transferred from judge to arbitra- tor. Arbitrator must cer- tify in award for referred, and the order of reference provided that if the arbitrator were of oi^inion tliat the defendant was guilty and the prosecutors entitled to costs, tlie defendant agreed to pay the costs, and tlie arbitrator did so find ; the court held that the prosecutor could not recover the costs of the sjiecial jury, since the judge had not certified for those costs pur- suant to the 6 Geo. IV. c. 50, s. 34, and the order of refer- ence gave no sucli power expressly to the arbitrator {ni). In many cases an express clause is very jiroperly inserted in the submission empowering the arbitrator to certify that the cause was a fit one to be tried before a judge of the sui^erior courts, so that if the plaintiff recover less than £20 lie may have his costs taxed for him on the higher scale if the arbitrator think fit to grant a certificate {n). If the submission omit such a provision, the arbitrator's certificate will not be of any force of itself, but if the cause were referred at Nisi Prius it may form the ground of an application to the judge before Avhom the cause was brought on for trial, who in the exercise of his discretion would, pro- bably, under the circumstances, grant a certificate to the same effect (d) ; for this certificate may be granted by the judge at any time (j(>), though it cannot be made by tlie court after the judge's death {q). If the arbitrator have a power to certify, and omit to exercise it, the judge before whom the cause came on for trial cannot, it seems, grant a certificate, his power being- transferred by the submission to the arbitrator (r). But a power given to the arbitrator to certify as a judge at Nisi Prius does not prevent a judge at chambers after- wards certifying under the stat. 13 & 14 Vict. c. 61, s. 13, that the county court and superior court had concurrent jurisdiction (s). Although the statute 5 G. IV. c. 30, s. 34, provides that the judge shall immediately after the verdict certify 07i the (to) E. v. Moate, 3 B. & Ad. 237. See Finlayson v. M'Leod, 1 B. & A. 663. (h) Hallen v. Smith, 7 Dowl. 394. (o) Nokes V. Frazcr, 3 Dowl. 330 ; Broggref v. Ilawke, 6 Dowl. 67. {fj) Ivey v. Young, 5 Dowl. 450. (r?) Astlcy v. Joy, 9 A. & E. 702. (r) Eicliardfton v. Kensitt, 6 M. & G. 712. (s) Sharp v. Eveleigh, 20 L. J. Ex. 282. CERTIFYING FOR COSTS. 383 hack of the record tliat the cause was proper to be tried by Part ii. a special jury, the arbitrator, when clothed l)y the submission c"-v"-s-3 - with the same powers as the judge of Nisi Prius, must costs of embody his cortiticate in his award, for as soon as he has ^^^^^ once awarded his jx^wcr is at an end ; so that if after making his award, he indorse on the back of the record a certificate that the cause Avas proper to l)e tried by a special jury, such certificate is of no avail to entitle the successful l)arty to the costs of tlie special jury {f). After an application to a judge to strike out the first or Ceitifying second counts in the declaration, as founded on the same matter of subject-matter, had been dismissed (the judge being satis- complaint fied that a distinct claim was intended to be made under count. each), the cause was referred. The arbitrator, who was empowered to certify for a special jury and to certify as a judge of Nisi Prius might have done "that no distinct sub- ject-matter of complaint was bona fide intended to be established in respect of each count," awarded for the plaintifi" on the second count, and for the defendant on the first and third counts, and certified " that the cause was fit to be tried by a special jury;" and also " that no distinct subject-matter of complaint was bona fide intended to be established in respect of either of the counts on nhich the plaintif had failed.'''' The court held this latter certificate ineffectual to deprive the plaintiff of his costs of the cause, as it did not show with sufficient clearness that the subject- matter of the second count was not distinct from that of the first, which was the question before the judge. Had the latter certificate been valid, the plaintift', though losing the costs of the cause, would not, it seems, have been deprived of the costs of the special jury {u). ' "When the submission gives the arbitrator power to t.'";titying o ^ action " certify for the pm-pose of costs in the same manner as a brought to judge at Nisi Prius," he has authority, if he award a verdict ^""^ ^ ^''"^*' for the plaintiff for nominal damages, to certify, under the 3 & 4 Yict. c. 24, s. 2, that the action was brought to try a right other than the mere right to damages (x). He has {t) Geeve v. Gorton, 3 D. & L. E. 913. 481. See Spain v. Cadell, 8 M. & (.r) Spain v. Cadell, 8 M. & W. 129, post. W. 129, S. C. 9 Dowl. 745. (m) De-vrar v. Swabey, 11 A. & 384 HOW TO AWAIRD AS TO COSTS. Part II. CH.VII. S.3, Limit ou power of certifying. Arbitrator miist cer- tify in the award. tlic same power wliicli a jutlgc lias under the statute, and the exercise of his discretion is open to review only when that of a judge of Nisi Prius could be questioned ; his dis- cretion, therefore, in granting or refusing the certificate, where the action may have been brought to try a right, is, it seems, quite unfettered (y). Where the arbitrator thinks fit to certify, it is not necessary that he should state in his award what right the action is brought to try (;;:). When an arbitrator has all the powers as to certifying as a judge at Nisi Prius, and the order of reference, no verdict being taken, provides that the costs of the cause shall abide the event of the award, it is not clear how far he can affect the costs by any certificate which he may give, for the parties have specially by agreement provided as to them {a). In giving the certificate, the arbitrator, in all substantial matters, should follow the rules laid down in the statute for the guidance of the judge. Yet although the statute enacts that " if the plaintiff in any action of trespass or trespass on the case shall recover by the verdict of a jiu'y less damages than 40s., such plaintiff shall not be entitled to recover or obtain from the defendant, in respect of such verdict, any costs whatever, unless the judge or presiding officer before whom such verdict shall be obtained shall immediatehj afterwards certify on the back of the record, or on the writ of trial, or writ of inquiry, that the action was really brought to try a right," &c. ; as it is imj)ossible that the arbitrator can follow these provisions literally, it is sufficient if he do so cy pres by inserting his certificate in his award ; for he may not make his award at one time, and certify as to the costs at another {h). The mode of certifying for the costs of a reference under the Lands Clauses Consolidation Act, 1845, is considered in a subsequent chapter () ; but where the submission is respecting the right, title, and i^ossession of certain land, the arbitrator has no authority to award that one of the parties shall procure the lord of the manor to grant a copyhold, or a stranger to make a release or a confirmation (c). An award to levy a fine is valid, for though it is an act of Directing the court, yet by the law and public justice of the kingdom court?^ it is not to be refused to any man, but if the award be to To levy command the justice to do it, this, it is said, is no good award, for the parties in effect pray leave to agree from the king himself, which is quite different from a command (d). An award to make a discontinuance of an action is good, for Discon- though the discontinuance be the act of the court, yet the default on which it necessarily proceeds is the act of the party. The same principle applies in the case of a direction Nonsuit, to submit to a nonsuit or to enter a retraxit (e). retraxit. If a person submit to an award on the part and behalf of Party sub- a stranger, the arbitrator has full authority to direct an act bebaif^of a to or by the stranger, not that he can bind the stranger stranger. himself by the award, but the party, when submitting on behalf of another, incurs the penalty of disobeying the (a) Kirk v. TJnwin, 6 Ex. 90S. {d) Bac. Ab. Ai-b. E. 4; EoUe (/») Coote v. Pooly, Eolle Ab. Ab. Arb. F. 3, 4, pp. 248, 249. Arb. E. 7, p. 247. (e) Com. Dig. Arb. E. 13 ; RoUo (c) Anon. F. Moore, 3 pi. 11. Ab. Arb. F. 7, p. 249. 424 WHAT THE AWARD MAY DIRECT. Part II. award, if that other fail to do wliat the award requires ^"•^"^■^•^- him (J'). Award on stranger's ])roperty void. Award to pay at stranger's house. Directing payment out of stranger's funds. Directing something to be III. Directions affecting a stranger's property.'] — As the submission only refers to the arbitrator questions between the parties, the moment he touches the interests of strangers, he exceeds his authority {g). A direction, however, to pay money at the house of a stranger is good ; for the party ordered to pay can come to the house without entering it, and a payment as near to the house as can be is, it seems, sufficient, and so the party can obey the award without being guilty of a trespass (Ji). But if the payment is to be on the land of a stranger, or at the house, and the owner of the house has the adjacent land, so that the party cannot go there without committing a tres- pass, the direction is void (J). In an old case, where money was awarded to be paid in the bishop's palace, it was held a good award, for it was said a licence would be intended, especially as in the particular case the bishop himself made the award (Ji). Where the arbitrator ordered some bankers, parties to the reference, to pay to the other party, the defendant, out of funds in their hands belonging to a firm of which the defendant was a member, a certain sum, stated to be the amount of a debt due to the defendant from his partners, these latter not being partners to the submission, the direc- tion was held invalid (/). Under the power to say what should be done, an arbitrator must be cautious in directing a party to do anything to pro- perty in which strangers are interested. Where the award, under a clause empowering the arbi- trator to direct what should be done, ordered a party to put (/) Shelf v. Baily, 1 Com. Eep. 183 ; Bacon v. Dubarry, 1 Ld. Eaym. 246 ; Cayiill v. Fitzgerald, 1 Wils. 28, 58; Adams v. Statham, 2 Lev. 235 ; Browne y. Meverell, Dyer, 216, b. ( q) Turner v. Swainson, 1 M. & W. 572. (//) Lynsey v. Aston, Eolle Ab. Arb. E. 2, p. 247, S. 0. 2 Bulst. 38 ; Anon. 1 Keb. 92 ; Bac. Ab. Arb. E. 4. (i) Taverner v. Skingley, Eolle Ab. Alb. E. 3, p. 247. {Ic) Horton v. Benson, Freem. 204. {I) Ingrain v. Millies, 8 East, 444. DIRECTIONS AS TO STRANGERS, 425 Up a stile and footbridge on land which appeared by the Part it. affidavits to belong to a stranger, the court set the award °°'^"''^' . aside so far as res-arded that provision : althoucrh it was '^°"^ °" ^ i. ' o stranger a sworn that no doubt the owner of the land would have land. granted permission to enter it for that purpose, and it did not apjicar that any attempt had been made to obtain his permission ; they added, however, that the award <^ood if would have been sufficient if the terms had been conditional, on consent namely, to do the acts required, provided the owners and ^^*^- occupiers of the land should consent (?w). And it seems the award need not be conditional, if it can be gathered from the agreement of reference that there was an undertaking on the part of the party ordered to do the act on the stranger's land to procure the consent of the owner and occupier of the land (w). When a reversioner complains of an injury to his house, though the arbitrator under the clause in question cannot order the parties to do anything to the house, without, it seems, being liable himself to an action of tresj)ass if his orders be obeyed, when the tenant of the injured premises is no party to the reference, yet he may (and if the sub- mission be cominilsory it seems he should) direct the defendant to do some act to remove the grievance, con- ditionally if the consent of the tenant can be obtained, or at all events at the end of the term, or he may order some compensation to the plaintiff in respect of the continuance of the injury {o). Under a like power, where the arbitrator ordered the Directing defendants, who were lessees of a water-mill, to make a com^niit*^ tumbling bay on the land in their tenancy for the discharge waste. of the water injuring the plaintiff's land ; the court held, that if the defendant had been seised in fee of the land the direction in the award would have been perfectly good, but that the power given to the arbitrator to determine what he should think fit to be done must be confined to reasonable acts, and that as the making a tumbling bay on the land held by them as tenants would render them liable to be (m) Turner v. Swainson, 1 M. 373. & W. 572. (o) Angus v. Eedford, 2 Dowl. (n) Nicliolls V. Jones, G Ex. N. S. 735, S. C. 11 M. & W. 69. 426 WHAT THE AWARD MAY DIRECT. Part IT. suecl by their landlord for waste, the award was void as to CH.VIII.S.4. that direction, hut good as to the rest {p). Party and Thougli to direct a party to meddle with property, with job% in- which he has no right to interfere, is an excess of authority, terested in yet where an award ordered the defendant to remove from a river certain hatches, two of which were the defendant's own property, while in the third he had only a share, and also further provided that the directions in the award should refer only to such interest as the defendant should have in the hatches, the court enforced the award by attachment, saying, that though the direction as to the hatch in which the defendant had only a share might be nugatory, the award as to the hatches of which i\\Q defendant was sole owner was to be obeyed {q). Showing in Whenever an arbitrator embodies in his award a direction the a\yard ^^ anythino; to be done by a strans^er to the submission, direction as jo j o ^ ^ 7 to stranger or affecting the property of a stranger, which prima facie •"^^ ^ ^ • would appear to be exceeding his authority, he is recom- mended to state on the face of the award sufficient facts to enable the court to see that he is justified in giving such directions. Where an arbitrator awarded that the defend- ants had no title to a certain roadway, but that they should have and enjoy another road which ran in a different direc- tion (not saying over whose lands), the court held the award bad, as it did not appear by the award that the defendants had any legal title to the road granted them, the award not stating that the ground of the road belonged to either of the parties (r). {p) Alder v. Savill, 5 Taunt. (r) Harris v. Cru'now, 2 CMtt. 453. 594. See Tvu-ner v. Swainson, 1 (5) Doddington v. Bailward, 7 M. & W. 572 ; semble contra. Dowl. 640. CHAPTER IX. THE AWAED UNDEE THE LANDS' CLAUSES CONSOLIDA- TION ACT, 1845. In this chapter, the provisions of the " Lands' Clauses Part ii. Consolidation Act, 1845" (a), respecting- awards under that ^"- ^^- Act, and the substance of the various decisions on that point, Awarding have been endeavoured to be collected. To what matters Lauds' the reference should be limited, and how the arbitrator S^''^"^t?j ■' _ _ Consouda- should be appointed, has been previously discussed {b). tion Act. On references within the provisions of the " The Lands' Clauses Consolidation Act, 1845," to settle the amount of compensation to be paid to parties for lands taken under the authority of parliament for the purposes of a public undertaking, or injuriously affected by the erection of the works, an important question arises, whether the arbitrators Sugges- are to assume the statement in the claim made by a party j^^^of ^he alleged to be interested or entitled to sell, as to his title and aibi- the nature of his interest, to be correct, and to estimate the compensation according to the interest claimed ; or whether they are to try the correctness of the claim, and if they find that the party has not the title .or the interest claimed, to award him nothing ; or whether they should award him a compensation according to such interest (different from that claimed) as he is proved to possess. When a party interested or entitled to sell desires to have claim the amount of compensation to be paid him settled by arbi- i""»'^) Bradsliaw's Arbiti'ation, 12 (/) Lawrence v. The' Great Q. B. 562. Northern Eailway Company, 16 (0 8 & 9 Vict. c. 20, s. 68—75; Q. B. 643. Manning v. Eastern Counties {m) In re Ware, 9 Ex. 395. Eailway Company, 12 M. & W. See Ware v. The Eei?ent"s Canal 237. Company, 3 De Gr. «fe"j. 222. {!:) Ware, In re, 9 Ex. 395. F F 2 436 HOW TO AWARD. Part II. In the House of Lords, under the Scotch Lands' Clauses CH- IX. Consolidation Act, 1845, 8 & 9 Vict. c. 19, where the arbi- trator had awarded compensation for damage likely to be sustained in future from the water in the Clyde being penned back by the works of the company, and thereby damaging the land of the complainant, Lord Chancellor Campbell said, " It was contended that such prospective damage could not properly be included in the award ; and that if any such damage should arise, the proper remedy would be an action against the company. But I am of opinion that the arbitrator was bound to take into his con- sideration the damage to the land of the claimant likely to be produced by the works which the company were authorized to construct by virtue of an Act of Parliament, and that no future action could be brought against the company, except for negligence in the original construction of these works, or in the manner in which these works were kept in repair ; '* and he added, that the right to compensation existed as to any land (whether near or at a distance) of the complainant, injuriously affected by the severance or the works. Lord Cranworth said, " When the legislature authorizes the making of a railway, and enables the company, for the purpose of its construction, to take the lands over which it passes, it expressly binds the company to compensate those whose land it takes, not only for the value of the land taken, but for all incidental damages which the making of the railway may occasion. When the amount to be paid to a landowner is left to be settled by an arbitrator, it is for him to say whether the probability of this incidental damage is so great as to enable him to treat it as a matter j)ractica]ly lessening the value of the property of the landowner not taken for the railway. If he is satisfied that it is so, he is not only authorized, but bound to award compensa- tion." Lord Wensleydale also, with reference to the objection that the arbitrator had awarded prospective and contingent damages, said, " The answer is, that he really has not done so. The compensation given is for the necessary damages by the construction of the railway, and for the highly pro- bable damages which would be occasioned in the ordinary course of events. It becomes, therefore, unnecessary to AWARD UNDER THE LANDs' CLAUSES ACT. 437 consider what would be the effect of awarding a sum for Taut ii. purely specidative damages not reasonably foreseen." ""• ^^- He further stated that, except in cases where by the No future special Acts comj^ensation might be given from time to tatnTbi" if time (?^), the price should be a full compensation once for unforeseen all for the injury to the landowner's rights ; and that if arise. afterwards unforeseen damage accrued to the landowner by the reasonable exercise by the company of the rights given to them by the statutes, no action would lie, and no fresh claim for compensation could be sustained ; and he doubted the soundness of the observation cited from Ware, In re, 9 Ex. 395, that compensation might be obtained under s. 68 for such future injuries, saying that it was a mere extra- judicial dictum (f). And in a recent case (/>) in the Exchequer Chamber, Erie, C. J., said, that "it is well known in law that a party must make one claim for damages, once for all for all damages that can be reasonably foreseen, and have one inquiry, and one compensation." Even if damage subsequently accruing be such as it was not possible to have been anticij^ated, there seems very great doubt whether a fresh compensation can be obtained (^). If injury arises afterwards from the neglect of the com- pany to do what the Act directs them to do, or from the negligent or improper manner in which the company's works are made or maintained, an action will lie (r). In awarding compensation to a landowner, the arbitrator Not to con- ought not to consider the possible claims of tenants, or with slbkcki^ms reference to them to give the landowner a larger sum, at the by tenants. same time directing him to indemnify the company against the tenants' claims (.s). («) The King v. Leeds & Selby Western Eailway Company, 32 Eailway Company, 3 A. »S: E. L. J. Q. B. 113. 683 ; Lee v. Milner, 2 M. & W. (r) Lawrence v. Tlie Great 839. Northern Eailway Company, 16 (o) The Caledonian Eailway Q. B. 643 ; The Caledonian Company y. Lockhart, 3 Macq. Eailway Company v. Lockhart, 808. 3 Macq. 808; Blagrave v. The {ip) Chamberlain v. The West Bristol Waterworks Company, 1 End of London & Crystal Palace n. & N. 369, S. C. 26 L. J. Ex. Eailway Company, 32 L. J. Q. 57. B. 173. (s) Caledonian Eailway Com- {q) Croft V. London & North- pany t. Lockhart, 3 Macq. 808. 438 HOW TO AWARD. Part II. CII. IX. Probable injury from the use of til e railway. Land of yearly tenant in- juriously affected. Damagea contingent on exercise of option by t!ie company. An important question yet remains, on wliicli there is no direct decision in terms, namely, whether an arbitrator may assess damages in respect of the injury to the premises likely to be caused after the works have been completed by reason of the use of them in the manner contemplated by the special Act. In one instance, where however it was not necessary to decide the point, Lord Campbell, C. J., and Erie, J., in- timated an opinion, that an arbitrator, in assessing com- pensation under s. 68, ought to give compensation for an injury to a house from vibration, caused by the running of trains during the construction of the works ; but not for injuries caused by vibration in working the line after the railway has been completed {t). But in no decided case has the operation of the com- pensation clauses been thus limited, and the language of the judges in many of the cases cited above is inconsistent with this view: and in a still more recent decision, where an attempt was made to claim compensation where, many years after the first award, houses were cracked by the subsidence of the soil, and otherwise injured by the constant vibration caused by the running of heavy trains, the Cornet of Queen's Bench refused to allow it, on the ground that the probability of such damage occurring to the building was so great that it must have been foreseen, and that it must be taken that the arbitrator, on the first inquiry, gave compensation for it (u). A tenant from year to year, no part of whose land is taken by a railway company, but whose interests in his land are injuriously affected by the railway works, is entitled to claim compensation under s. 68 of the Lands' Clauses Consolida- tion Act, 1845, and is not bound to go before justices, under s. 121 of the same Act, to obtain an assessment of the compensation due to him (x). A railway company was empowered to abandon, if they thought fit, certain old tramways which led to the applicant's works. The latter claimed compensation for the injury that {t) Penny v. The Soiitli-Eastern Eailway Company, 26 L. J. Q. B. 225, S. C. 7 E. & B. 660. (m) Croft V. The London & Kortli-WesteiT Eailway Com- pany, 32 L. J. Q. B. 113. (x) The Queen v. The Sheriff of Middlesex, In re Somers v. The Metropolitan Railway Com- pany, 31 L. J. Q. B. 261. AWARD UNDER THE LANDS' CLAUSES ACT. 439 would result to him if the company exercised their option Part ii. and stojipcd up the tramways. The um})irc awarded compen- cn. ix. sation " for damage sustained and which may be sustained " by execution of the railway works. The court intimated the inclination of their opinion that the award would not have been bad, if it had clearly given compensation for the damage contingent on the tramways being stoj)ped up (y). If the arbitrator be of opinion that the landowner has When no suffered no damage by severance, it is better that he should ^=^"''^26 by ,", ^ ' . severauce. say so in terms in his award. The award, however, will not be bad, if he simply confine his award to the assessment of the value of the land taken (z). By s. 34 of the Lands' Clauses Consolidation Act, 1845, Costs of rsfcrcncG " All the costs of any such arbitration, and incident thereto, and award. to be settled by the arbitrators, shall be borne by the pro- moters of the imdertakiug, unless the arbitrator shall award the same or a less smu than shall have been offered by the promoters of the undertaking ; in which case each party shall bear his own costs incident to the arbitration, and the costs of the arbitrators shall be borne by the parties in equal proportions. This provision applies not only to references respecting the purchase-price of lands taken, but also to arbitrations concerning the compensation to be paid, under s. 68, for lands being injuriously affected by the works of the pro- moters («). If the promoters make no offer of any sum by way of No offer by compensation for lands taken by them, or injured by their works, it is the same as if they had offered a less amount than the award gives, when any compensation is awarded {b). Within what time the promoters must make their offer How late has not been decided. But where a claimant had, imme- maj"°!ake diately on the expiration of the twenty-one days given by ^^ o^'^^- s. 68 of the Lands' Clauses Act, appointed an arbitrator, and had called on the promoters to aj)point one on their behalf [y) Brogden v. LljniTi Valley (o) Eichardson v. THe Soutli- Eailway Company, 30 L. J. C. P. Eastern Eailway Company, 20 L. 61, S. C. 9 C. B. N. S. 229. J. C. P. 236. (z) Duke of Beaufort v. Swan- (6) Martin v. The Leicester sea Harbour Trustees, 29 L. J. C. Waterworks Company, 27 L. J. P. 241, S. C. 8 C. B. N. S. 156. Ex. 432, S. C. 3 H. & N. 4G3. 440 now TO AWARD. Part II. without making an attempt to agree on a single arbitrator, ^^- ^^- and without showing that he had delivered the appointment to the arbitrator chosen by himself, it was held that the promoters were in time to make an offer, and as the award was a sum less than the amount offered, that the claimant was not entitled to costs ( • r> i» • J. ii 1 j_ sent back award tor a specmc purpose, as tor instance, the amendment f^j. specific of a clerical error or technical defect in form, in regard to purpose. which the arbitrator needs no assistance from either party, he is not bound to give either party notice to attend before him on his re-considering and amending his award. Thus, where it was objected to the award that the arbi- trator had described one of the parties by a wrong christian name, the court ordered that the award should be referred • back to the arbitrator "to re-consider and amend the same if he should think lit." The court held the arbitrator justified in making the amendm-ent without any communication with the parties. He was also held warranted in amending other errors in the award than those which formed the ground of motion. In the original award he had decided the cause simply by directing a verdict to be entered for the defendant, (y) Nickalls v. "Warren, 5 Q. B. (2) Baker v. Hunter, IG L. J. 615, S. C. 9 Jul-. 10. See the Ex. 203, S. C. 16 M. & W. 672. previous section, ji. 445. 454 REFERRING AWARD BACK. Part II. CH. X. s. 2, To find on one issue. For arbi- trator to amend directions as to weir. Referee to amend defective direction as to costs. which he had no authority to order ; in the amended award, lie directed the insertion of a clause stating that the de- fendant was not guilty of the grievances therein laid to his charge, or any or either of them, or any part thereof. A motion was again made to set aside the award on the ground that the action was improiDcrly decided by the unauthorized direction respecting the entry of a verdict ; but the court held that the objection as to the faulty mode of deciding the cause was raised too late, not being raised when the award was first objected to, and that at all events it was cured by the amendment which determined the issue, and left the direction as to the verdict simply useless (a). Where the arbitrator had omitted to decide on the issue raised on the count for an account stated, and the cause was referred back to him to set his award right, the court held the arbitrator justified in amending the error without re- hearing the parties {b). On the reference back of a poor law appeal, the order directed that the matters of the said appeal be referred back to the arbitrator on the ground that he had not ascertained the amount of the costs to be paid by the appellant. The arbitrator refused to hear evidence on the general merits of the appeal, though discovered since the first award, and made a fresh award identical in all respects with the first, except that he inserted the amount of the costs. Tlie court said that he had acted properly () Fernley v. Branson, 20 L. J. Q. B. 178 ; Barnes v. Haywai-d, 1 H. & N. 742 ; Barnes t. Braitb- waite, 2 H. & N. 569 ; Dossett v. GingeU, 2 M, & G. 870, note, 872. LIABILITY AT LAW. 461 111 a case where the award was set aside for a yi'oss Part ii. mistake of the arbitrator, a suggestion was thrown out by ^"- ^'- ^■'^' Tindal, C. J., whether, as the consideration seemed to have failed for which the money expended in taking up the award was jDaid, the amount could be recovered from the arbitrator. He, however, expressly guarded himself against being sup- posed to give an opinion on the point {/). II. Liability for misconduct or in respect of the award.'] — Whetiier An action, it is said, may be maintained against an arbi- liable iu trator for making a corrupt or partial award (rf). action for ° J- ^ _ ^"^ / corrupt On a motion to set aside an award in the time of Holt, award. C. J., the Court of Queen's Bench, though in opposition to that learned judge's opinion, who stated it to be contrary to all practice, ordered some arbitrators, who were accused of mismanagement and refusing to hear the defendant's case, to attend and be examined, saying that they deserved to be punished. The examination was made in court by affidavit as to all their proceedings, and it is stated great mismanage- ment appeared. It is not, however, reported whether any- thing was done to them in consequence (Ji). Under " The Companies' Clauses Consolidation Act, Mandamus 1845 " (^), if two arbitrators neglect to appoint an umpire, tors'to^ ^^' thev may, it is said, be compelled by mandamus to do so (Ii). •'appoint o, 1 . 1 -11 T- 1 1 • umpire and So also it seems a mandamus will lie to compel an arbitrator to assess to assess costs on a reference under " The Lands' Clauses *^°^*^' Consolidation Act, 1845 " (/)• If an arbitrator or umpire, after making and subscribing Misconduct the declaration required by " The Lands' Clauses Consolida- t^/^ LIT- tion Act, 1845" (/w), "The Railways' Clauses Consolida- demeanor under the tion Act, 1845" (?^), and "The Metropolitan Sewers Act, Lands' and 1848 " {o), that he will faithfully and honestly, and to the ^^^^^^ Acts, &c. (/■) HaU V. Hinds, In re, 2 M. L. J. Ch. 145. & G. 847. See In re Coombs, 4 (/) 8&9 Vict. c. IS; Tlie Queen Ex. 839. V. Biram, 17 Q. B. 969. [ij) WiUsv.Maccarmick,2Wils. (m) 8 & 9 Vict. c. 18, s. 33. See 148. the Appendix of Statutes. (A) MoiTis v. Eeynolds, 2 Ld. (») 8 & 9 Vict. c. 20, s. 134. EajTu. 857. See tlie Appendix of Statutes. (V) 8 & 9 Vict. c. 16. (o) 11 & 12 Vict. c. 112, s. 75. (/>■) Lord V. Copper Miners' Com- See the Appendix of Statutes, pany, 1 Kay & John. 90, S. C. 24 462 PEKSONAL ESTTEKESTS OF THE ARBITRATOR. Part II. OH. XI. s. 2, Arbitrator directing trespass liable to action. Liability forappoint- ing a re- ceiver. best of his skill and ability, hear and determine the matters referred to him, " shall wilfully act contrary thereto, he shall be guilty of a misdemeanor." Although there be no misconduct, an arbitrator may, it seems, sometimes render himself liable by the directions of his award. Thus, on the reference of an action by a land- lord against a stranger for an injury to his reversion, the arbitrator, it is said, will be guilty of a trespass, if, when the tenant is no party to the submission, he, without the latter's consent, order anything to be done to the demised pre- mises, and the party ordered carry out the directions of the award (p). If the arbitrator appoint a person as receiver to receive the debts due to a firm respecting whose interests he is empowered to award, it is possible the arbitrator may incur a liability in case the receiver so appointed becomes in- solvent {(j). Liability of arbitrator holding chattel to abide the award. Bank- ruptcy of party de- positing. Inter- pleader on adverse claims. III. Liability of the arbitrator when a stakeholder.'] — It is not uncommon for a sum of money or a chattel in dispute to be deposited in the arbitrator's hands to abide the event of the award. After depositing it, a party cannot divest it out of the arbitrator's custody, since the latter, being a stake- holder, has an authority coujjled with an interest, which cannot be revoked, and he is perfectly justified in detaining it until he has decided the question of title. Each party making claims before him has an interest in the fund or chattel dependent on the contingency of the award being wholly or partially made in his favour, and if the party depositing it afterwards become bankrupt, such contingent interest is all that passes to his assignees (r). On a fiat issuing after a deposit of money, nice questions often arise respecting the conflicting rights of the assignees and of the party to whom the award decrees it ; therefore if the arbitrator have not paid the sum over when adverse claims are made upon him, he should in prudence, for (p) Angus V. Eedford, 11 M. & W. 69, S. C. 2 Dowl. N. S. 735. [q) Lingood v. Eade, 2 Atk. 501. (r) Tayler v. Marling, 2 M. & G. 55 ; Gunton v. Nui'se, 5 Moore, 259. LIABILITY AT LAW. 4G3 security's sake, apply to the court under the Interpleader Part II. Act (s). In a modern instance, the court ordered that the on. xi. s. 2. arbitrator, who had made his award, should, after deducting the costs to which he had been i)ut, to be taxed by the Master, pay the residue into court, and thereon be dis- charged, the costs to be ultimately paid by the claimant who should be unsuccessful in the issue directed to be tried (f). In a case decided on the old bankrupt law before the 2 & 3 Liability Vict. c. 29, when the title of the assignees had relation had and back to the act of bankruptcy, it was held that they had no received, right to recover from an arbitrator a sum of money deposited in his hands by the bankrupt (after a secret act of bank- ruptcy), with the consent of a creditor who had made a claim on it, the arbitrator being appointed to ascertain the amount of the claim and to pay that amount to the creditor : it being proved that the arbitrator had kept the sum distinct from his own money, and after ascertaining the amount of the claim, had paid it over to the creditor without any notice of the act of bankruptcy. The assignees were held entitled to the balance remaining in the arbitrator's hands after paying the debt, but as to the portion paid over, the arbi- trator was looked upon as a mere channel of conveyance and therefore not liable (?^). If, on the trial of an action of trespass or trover respect- To whom ing a personal chattel, in which the defendant justifies by should de- alleging title to the property, a verdict be taken for the '^^^^ <^^'^*' plaintitf with damages the full value of the article, subject to a reference to an arbitrator, who is to decide the question of ownership, and in whose hands the chattel is deposited until the award is made ; and it is agreed that if he award for the plaintiff, the verdict shall stand as it is, but if for the defendant, that then a verdict shall be entered for the latter ; and the award find that the property was the plain- tiff's ; the arbitrator, if the submission do not point out what is to be done with the deposit, should not deliver it to the plaintiff (for he cannot be entitled both to the thing itself (.s) 1 & 2 W. rv. c. 58. (v) Tope v. Hocking, 7 B. & C. (0 Taylor v. Marling, 2 M. & 101. G. 55. 464 PEKSONAL INTEKESTS OF THE ARBITRATOK. Paut II. and to the full compensation in damages which the verdict CH. XI. s. 3. gives him), nor should he part with it to the defendant until the verdict for the plaintiff has been satisfied. But after payment of the damages, he should hand it over to the defendant ; for the effect of the verdict in law is, that by the payment the plaintiff's right of property is barred, and the property is vested in the defendant {x). If the defendant have relied on the title of another, a stranger to the action, who, though not a party to the sub- mission, in fact assented to the reference and the dej)Osit of the article, the stranger has no right whatever to demand it from the arbitrator, for the award concludes him from saying that the original property was not the plaintiff's, and the defendant, the party who is liable to the damages, is alone justified in claiming the goods (y). In the case of a verdict of a jury, it is to be observed that this principle of law applies only where the damages are estimated on the footing of the full value of the thing deposited {z) ; it is presumed, therefore, that a like dis- tinction should be made on a reference. Liability of If, after the decision is made, the unsuccessful party, not- tn trover^ withstanding the award, demand the property, and the arbi- for the trator refuse to deliver it to him, such refusal is perfectly chattel . 7 r J justifiable, as it is in effect saying, " I cannot deliver it to you, because I have awarded that it does not belong to you; " and it does not amount to an unlawful conversion for which an action of trover can be sustained (a). SECTION III. OF THE LIABILITY OF THE ARBITEATOR IN EQUITY. Arbitrator We now proceed to consider how far the arbitrator may fendant to ^^ made liable in equity as a defendant on a bill brought to bill to im- qqI aside the award. peach "'^^'" ■ (a;) Gunton v. Nm-se, 5 Moore, (z) Lacon v. Barnard, Cro. Car. 259 ; Cooper t. Shepherd, 3 C. B. 35 ; Holmes v. Wilson, 10 A. & E. 266; Adams V. Broughtou, 2 Stra. 511, note. 1078, S. C. Andr. 18. (a) Gunton v. Nxu-se, 5 Moore, (y) Gunton y. Niirse, 5 Moore, 259. 259. LIABILITY IN EQUITY. 465 As the plaintiff must by liis bill show some claim of in- Part ii, terest in the defendants in the subject of the suit which can ° °- ^^- ^- ^- make them liable to the plaintiffs demands, the arbitrator, He may if he be made a party to a bill filed to impeach the award, je^ui.. ^ may in general demur to the whole bill, as well to discovery as to relief ((^) ; but not if the bill charge him with fraud (c). If the award be impeachable for mistake or mis-calcula- Bill to tion, however palpable, the bill, to have it rectified, should Iward'for be brought only against the party in whose favour the award ^'stake. is made, and not against the arbitrator {d). It is reported that in one instance where an arbitrator striking accepted the office on the proviso that the parties would °"a\or's'' enter into a rule not to bring a bill in equity, and the party name as against whom the award was made nevertheless made the •arbitrator a defendant to a bill charging corruption and par- tiality, Lord Chancellor King, on motion by the arbitrator, directed that his name should be struck out from being a party to the cause (e). But V. C. Stuart recently refused to give any effect to a clause in a contract precluding the parties from bringing any action or suit against the arbitrator, where the charge against him was for fraudulently refusing to give his cer- tificate ( /). In some cases, however, where the award has been No demur- assailed on the ground of misconduct in the arbitrators, and groslmis- they have been made parties to the suit, the court has gone conduct so far as to order them to pay the costs (^). And in such " instances. Lord Redesdale considers that a demurrer to the bill would not have been allowed (k). In Lord Loyisdale v. Littledale ii), a demurrer by an arbitrator to a bill of this nature was in fact overruled, though not expressly upon the ground of the propriety of making an arbitrator a party, but because the bill charged {})) Steward v. E. I. Company, poration, 25 L. J. Chan. 227. 2 Vern. 380. (). able. gy„^' An award of a sum certain creates a debt which is prove- a warded able Under a commission of bankrujitcy, and is a good peti- tionbg^ '" tioning creditor's debt (c). creditor's Where, after an award for the plaintiff in an action for the balance of an account, the defendant, before judgment was entered on the verdict taken subject to the reference, com- mitted an act of bankruptcy by filing a declaration of insol- vency, and giving notice thereof immediately to the plaintiff, the court allowed the plaintiff to prove as a creditor for the amount awarded and for interest and costs {d). Penalty in When a party fails to perform the award, the arbitration bond'^ood" ^^o^f^ being forfeited, the penalty becomes a debt sufficient, petitioning until the award be set aside, as a j)etitioning creditor's debt, crGfiitiOi' s debt. to support a commission of bankruptcy. The mere filing a bill in Chancery to impeach the award will not suspend its effect, or make the debt insufficient (e). Attorney's VIII. jE^cct of an award on the attorney's lien for costs.'\ — lien on sum ^\-^q attorney of the plaintiff in the cause referred has a lien awarded. p -i • for his costs upon a sum awarded to the plaintiff as he has upon a sum recovered by verdict and judgment, and if, after notice of the lien, the defendant pay the money to the plain- Enforcing tiff, instead of to the plaintiff's attorney, the latter may of 'comt'i'u^ compel a repayment to himself by summary application to case of the court, and he will not be prejudiced by a collusive release from the plaintiff to the defendant {/). But the attorney's right to apply i^ersonally seems limited to the case of an attempt to defraud him. Not unless An arbitrator awarded that the plaintiff had no claim on from^doubt. ^^ defendant in the action, but ordered a third person, party to the reference, to pay the plaintiff a sum of money and the costs of the reference. The plaintiff having subse- {l) R. V. Davis, 9 East, 317 ; Gex, M. & Or. 367. Haswell v. Thorogood, 7 B. & C. (e) Lingood, Ex parte, 1 Atk. 705. 240. (c) Antramv. Chace, 15 East, (/) Ormerod v. Tate, 1 East, 208. 464 ; Symonds v. Mills, 8 Taunt. {d) Harding, Ex parte, 5 De 526. EFFECT OF TnE AWARD. 489 qiicntly become a bankrupt, his attorney, who claimed a lien Part III. for Ills costs on tlie sum awarded, applied for a rule calling °"' '• on the third party to pay him the amount, the latter having declined to do so, as the bankrupt's assignee would not sanc- tion the pajTTient. The court refused the motion on the ground tliat as such a rule would, under the 1 & 2 Vict. c. 110, s. 18, have the conclusive effect of a judgment, it would not be granted unless the claim were free from all doubt, which the court did not consider it to be in the case before them {g). In the above case the court also expressed a doubt whether Attorney the attorney could enforce his lien by applying for a rule have a rule calling on the opposite party to pay. In a later case the t*^ pay J"™ com't decided he could not. There the arbitrator found a on which verdict for the defendant in the cause, but directed h'im to l^e claims -' _ a uen. pay the plaintiff a sum of money in respect of the matters in difference, and ordered the plaintiff at the same time to pay the defendant the costs of the cause which were to abide the event of the award. The defendant, deducting his costs of the cause, paid the plaintiff's attornies the balance. They claimed a lien on the whole sum granted, but the court refused to grant them a rule to compel the defendant to pay them the amount he had deducted (Ji). If an uncertificated bankrupt bring an action for work When lien done by him subsequent to his bankruptcy, his attorney, if focl^m^of the action be referred, has a lien for his costs of the action assignees of and reference on the amount awarded to the bankrupt para- bkukrupt. mount to the claim of the assignees : and if in consequence of a claim by the assignees the defendant refuse to pay the amount to the bankrupt, and an action be commenced in the bankrupt's name on the award, the defendant may obtain an interpleader rule calling on the assignees to contest their right as against the attorney (/). The ninety-third rule of H. T. 2 Will. IV. (Z^, which pro- Set-off of vides that '' no set-off of damages or costs between parties a^arcS?^ shall be allowed to the prejudice of the attorney's lien for subject t<) costs in the particular suit against which the set-off is nen.' [cj] Holcroft V. Manby, 2 D. &. (/) Jones v. Tui-nbuU, 2 M. «& L. 319. W. 601. (/i) Dunn T. West, 10 C. B. (A;) Eeported 3 B. & Ad. 388. 420. 490 EFFECT OF THE AWARD. Tart III. soiiglit, provided, nevertheless, that interlocutory costs in ^"- ^- tlie same suit, awarded to the adverse party, may be de- ducted," is quite unqualified in its terms, and embraces causes referred as well as causes which are pursued to their legal result in court (/). The above rule of court is adopted verbatim in the Reg. Gen. of Hihuy Term, 1853, and forms the 63rd rule. Practice Prcvious to tliis rulc the practice of the courts did not nevv'ruies. coincide. In the Common Pleas, where an arbitrator awarded tlie costs of a nonsuit to be paid by the plaintiff, and a larger sum in respect of matters not in the cause to be paid as a debt by the defendant, the plaintiff was held entitled without motion to a set-off, without regard to tlie lien of the defendant's attorney. In the other courts the lien of the attorney was treated as paramount to the equi- table claims of the parties against each other (jn). But in the same Court of Common Pleas, on a reference of an action of ejectment and all matters in difference, the arbi- trator awarded a verdict for the plaintiff, but directed him to pay the defendants £50 as compensation for some buildings erected by them. The court directed that the sum awarded the defendants should be set off against the costs of the lessor of the plaintiff, saving the lien of the defendants' attorney (71). Decision Siuce the rule of H. T. 2 Will. IV. the Court of Exchequer !,T^°vMut made absolute a rule for setting off the defendant's costs in new luics. o an action referred and found for liim against a larger sum awarded to the plaintiff for matters out of the cause, but added the proviso that the set-off should be subject to the lien of the plaintiff's attorney for his costs {d). Setting off "Where cross actions were referred and the arbitrator menU*^ ° directed judgment for a certain sum for the respective plaintiffs in each, the court refused to allow one judgment to be set off against the other without first satisfying the attorney's lien {p). In a late case the plaintiff's attorney in the name of his [l) CoweU V. Betteley, 10 Biug. 5 Dowl. 26. 432. See Figea v. Adams, 4 (0) Caddell v. Smart, 4 Do-s\'!. Taunt. 632. 760. {m) Figes v. Adams, 4 Taunt. ( j:») Domett v. Hellvor, 2 Dowl. 632. * 540. [n) Doe d. Swinton y. Sinclair, EFFECT OF THE AWARD. 491 client obtained a rule f(n- tlic defendant to pay the amount Taut hi. awarded against liiin without reirard to the defendant's claim ^"' ^' against the plaintiflt" as a judgment creditor in another action (y to ascertain the effect of an award made under a statute, ^*''^^"*®- reference must be had to the particular provisions of the Act in cpiestion in each case. Much, however, has already incidentally been stated con- B.ankvupts. cerning the effect of awards made under the statutes relating Savings' (7) Brearej' v. Kemp, 24 L. J. ((/) See P. III. Ch. 3, s. 1, p. Q. B. 310. 505. (r) See P. I. Ch. 3, s. 2, cl. 1, (2) See P. III. Ch. 4, s. 1. p. 49. [a) See P. III. Ch. 3, s. 3, (s) Sec P. I. Cli. 3, «. 2, d. 5, pleading award at law, p. 522; P. p. 53. Ill, Ch. 4, s. 2, pleading award in (0 See P. I. Ch. 3, s. 3, d. 1, equity. p. 54. (h) Sec P. III. Ch. 3, s. 5. {u) See P. I. Ch. 3, s. G, dd. 1, (c) See P. III. Ch. G. 10, pp. 72, 87. Id) See P. III. Ch. 7. (x) See P. I. Ch. 3, s. 7, d. 1, (e) See P. III. Ch. 8. p. 91. 492 EFFECT OF THE AWARD. Part III. to Bankrupts and Insolvents {/), to Savings' Banks and c"- ^- Friendly and Benefit Societies (y), to Masters and Workmen Banks. jj^ trades and manufactures Ut). and concerninof the lands of Sucieties. Ecclcsiastical and Collegiate Corporations (z), and the ex- WorkmeD pcnscs of the keep of Prisoners in County Gaols (Ji). In the Kcciesias- same manner, attention has been drawn to the efiect of awards Corpora^- ' Under " The Lands' Clauses Consolidation Act, 1845," " The tions. , Railways' Clauses Consolidation Act, 1845," and "The Lands', Companies' Clauses Consolidation Act, 1845 " {I). Baiiways', rpj^g effect of awards under Inclosure Acts (m), and on a and Com- _ v /7 panics' reference by order of Quarter Sessions (n), has also been Acta. -, ■ J Tnclosure dlSCUSSCd. Acts, Quarter Sessions. Alteration xi. E^ect of altering an award.'] — The court has no power by the to alter or anaend the award (o). court. "\Ye have previously seen that after executing the award the arbitrator himself cannot alter its terms, and that his substitutino: one sum for another in the amount awarded after the award has been completed, is of no efiect whatever, any more than an obliteration or cancellation by accident (jo). Ey a party. A material alteration by a party interested in the award would probably have a much more serious effect, and might avoid the instrument altogether {q). By a Where there was a mistake in the recital of the umpirage sti anger. ^^ ^|^^ Christian name of one of the arbitrators who appointed the umpire, an alteration made by a stranger subsequently to the publication of the award by striking out the wrong and inserting the right Christian name, the court held did not vitiate the award, but left it in the state in which it was (/) See P. I. Cli. 2, s. 3, d. 1, II. Ch. 9, p. 427. p. 33 ; P. I. eh. 3, s. 7, d. 2, p. 92. (m) See d. 5, of this chapter, p. ig) See P. I. Ch. 2, s. 3, d. 2, 484. See also ante, p. 6. p. 35. {n) See P. I. Ch. 1, s. 1, d. 3, (/i) See P. I. Ch. 1, s. 1, d. 2, p. p. 9. 8; P. I. Ch. 2, a. 3, d. 5, p. 40; (o) Hall v. Alderson, 2 Bing. P. I. Ch. 3, s. 7, d. 7, p. 99. 476; Wood v. Duiacan, 7 Dowl. {{) See P. I. Ch. 2, s. 1, 3, d. 4, p. 91 ; Moore v. Butlin, 7 A. & E. 39. 595. (A:) See P. I. Ch. 3, s. 7, d. 7, (i>) Henfree v. Bromley, 6 East, p. 98. 308. See P. II. Ch. 3, s. 1, d. 3, (Z) See P. I. Ch. 1, s. 1, d. 2, p. p. 131. 6 ; P. I. Ch. 2, s. 3, d. 3, p. 38 ; (-?) Henfree v. Bromley, 6 East, P. I. Ch. 3, s. 7, d. 6, p. 94; P. 308; Pigott's Case, 11 Eep. 27, a. EFFECT OF THE AWARD. 493 before the alteration, the mistake being- immaterial. The Part hi. court, however, added, that if the alteration had been made <^"- ^• in any material part it would have been fatal (r). In an Material earlier case, however, just cited, where the alteration by the *^**^*'°'^- arbitrator, though in a material i)oint, was treated simply as nugatory, it was likened to a spoliation by a stranger, as if that were simply void (5). XII. E^ect of a defective award.'] — Tlie second part of this Award not work has fully treated of the effect of an award which leaves ^ ' a matter in difference brought before the arbitrator undis- Comli- posed oi{f)j or which decides conditionally (m), or in the Aiter- alternative (a;), or which delegates the decision to another, or "^'''^^ reserves it for the future determination of the arbitrator (y), or^refervln" or which is deficient in certainty and particularity {z), or authority. which is repugnant and inconsistent («), or which is founded ^i^certam. on a mistake either apparent on the face of the award or ^P^snant. AlisttikGii not (b'). or which contains directions which the arbitrator has „ ,. no power to order (c). authority. How awards open to any of the above objections are Conse- to be dealt with, to what extent they invalidate the defects in award (fl^), and in what cases defects in the award may be ^^''^'''^• taken advantage of by plea or demurrer (e), by giving them Taking in evidence in an action if), or by alleging them as grounds of defects by plea, (r) Trew v. Biirton, 1 C. & M. [h) See P. II. Ch. 5, s. 8, p. 533. 292. (s) Henfi-ee v. Bromley, 6 East, (c) See P. II. Ch. 5, s. 9, p. 308. 311 ; P. II. Cli. 6, s. 3, d. 3, p. {t) See P. 11. Ch. 5, s. 4, d. 2, 341, as to entering a verdict; P. p. 251 ; P. II. Cli. 6, ss. 1, 2, 4, 5, 11. Ch. 6, s. 5, p. 349, as to enter- as to a cause; P. II. Ch. 7, as to ingor arresting judgment ; P. II. costs. Ch. 7, s. 1, dd. 2, 3, pp. 358, 360, («) See P. II. Ch. 5, s. 4, d. 8, as to costs ; P. II. Ch. 8, s. 1, p. p. 266. 386, as to the satisfaction awarded; (a;) See P. II. Ch. 5, s. 4, d. 9, P. II. Ch. 8, s. 4, p. 418, as to p. 268. strangers to the submission. {y) See P. II. Ch. 5, s. 4, dd. {d) See P. II. Ch. 5, s. 9, p. 317, 10, 11, pp. 269, 272. award bad in part good for rest; (z) See P. II. Ch. 5, s. 5, p. P. III. Ch. 9, s. 7, d. 1, setting 275 ; P. n. Ch. 7, s. 1, d. 3, p. aside award in part; P. II. Ch. 360, as to costs; P. II. Ch. 8, s. 10, s. 1, p. 446, as to referring 2, d. 3, p. 413, as to act to be award back, done. (e) See P. III. Ch. 3, s. 4. (a) See P. II. Ch. 5, s. 7, p. (/) See P. III. Ch. 3, s. 5, d. 4. 288. 494 EFFECT OF THE AWAED. Part III. for a motion to set aside the award (y), is amply set forth in the later chapters of this part. (louuiiTer, j^ may, however, be as well to add that if an award be or evuleuce. . By motion defective by reason of directing an illegal act, it ouglit not to set asidu ^q ]jq obeyed, and could not be alleged by a party who Illegal obeyed it as justification {/i). award. (g) See P. III. Ch. 9. EaUway Company, 2 E. & B. {h) Eastern Union Railway 530. Company v. Eastern Counties CHAPTER 11. PERFORMANCE OP TUE AWARD. How the award is to be performed forms the subject of Pakt hi, the present cliapter. ^ 1. The first section shows generally what sort of performance Contents of is required ; the second is confined to an examination of the chapter. proper mode of com]>liance with an award directing- the execution of a deed, such as a conveyance or a release. SECTION I. AVHAT A SUFFICIENT PERFORMANCE OF THE AWARD. An award is to receive a liberal and sensible construction, Perfoim- and as far as iiossible to be governed bv the intent of the ^^\^?. 1 /. •/. " within a arbitrator ; therefore, if the arbitrator award a thing to be recasonabie done, without saying within what time, the party shall have *™^* a reasonable time, because it must be presumed that the arbitrator intends all things necessary to the doing the thino- he directs ; and a reasonable time is necessary («). Tliough an award cannot be made part at one time and rerform- part at another, yet it may be performed part at one time ^^'^^ ^^ • ^ '■ several and part at another ; for the nature of the thing may require times. performance at different places and times (d). Each party is bound to perform the award, and to comply with its directions, as far as regards himself. As the making the award is as much within the know- Paity LouuJ to {(() Bac. Ab. Arb. F. Freeman (i) Bac. Ab. Arb. F. V. Bernard, 1 Salk. 69. 496 WHAT SUFFICIENT PERFORMANCE. Paut III, ledge of one as of tlie other, no notice of its Leing made CH. II. 8. 1. ig necessary to impose the duty of obedience {c). take iH.tice But if moncy or any other chattel be deposited in the hands stake- ^'f ^ stakeholder to abide the award, it is not his duty to holder not ^^ke notlce of the award, but he should retain the property bound to . . . ' . . i. X J take notice m his posscssiou Until the arbitrator's judgment has been 01 award, communicated to him (d). Party must The party directed to do any act must substantially subbtaa-^^ comply witli the requisitions of the award. tiaiiy. In an action by a husband and wife (the husband being Award to jjjr^fjg ^ party Unwillingly) respecting the right of the wife to wife. to an annuity, the award ordered the arrears of the annuity to be paid to the wife; it was held to be no answer to an attachment for non-payment to her, that her husband had previously demanded them, and that they had been paid to him, it being evident that the payment to the husband was clearly collusive, and it having been known to the party in default, that it was intended by all parties, that the wife should enjoy the fruits of the action, if the decision were in her favour (e). To keep An award by commissioners under an Inclosure Act cleansed directed that the owners of lands over which a certain drain passed should cleanse and keep the same of a sufficient width and depth to carry off the water " intended to run down the same." The occupier of a close by which the drain passed, and whose lands were drained by it, subse- quently, for the better draining of his lands, opened a sough or under-drain into the awarded drain. It was held that this method of draining not being contemplated by the award, the owner of land lower down, across which the drain ran, was not bound to keep the awarded drain of sufficient capacity to carry off the additional water which was poured into it by the sough (/). Party must The award must be performed by the parties as far as ^ilTIs^ir they lawfully can ; and if several matters be directed to be lawful and clonc, all within the arbitrator's power to order, it is no possible. (c) Child V. Horden, 2 Bulst. A. & E. 536. 143 ; Gable v. Moss, 1 Bulst. 44 ; (e) Wynne v. Wynne, 4 M. & Ai-clib. PI. & Ev. 90, 2nd ed. ; G. 253, S. C. 1 Dowl. N. S. 723. Bell V. TwentjTnan, 1 Q. B. 766. (/) Sharpe v. Hancock, 7 M. & ((f) Wilkinson v. Godefioy, 9 G. 354. WHAT SUFFICIENT TERFORIVIANCE. 497 answer to an attachment for non-performance of the award Tart in. that as to one of the matters it is out of the party's power °"' "• "• ^ to do it, or that compliance Avouhl snhject him to an action, if he have done nothing to show his willingness to obey the award. Hence, where an umpire directed a defendant to prostrate Award to some weirs of which he was a proprietor, and also another ^^eirg weir in which he had only a share, and then said he made his award only to extend so far as any right or interest the defendant possessed, it was held by the court that it was the defendant's duty to obey as far as he could, and that if he could not remove his share of the latter weir without being liable to an action for tresj)ass, that would be an answer to that part of the award (y). If an award direct a party to reinstate premises which he To rein- has wrongfully pulled down, and to restore them exactly as premises before would be a violation of the provisions of a Building puHed Act passed subsequent to their original erection, the party is bound, under the order to reinstate, to erect the premises anew, but in conformity with the provisions of the statute, the increased expense of such erection having been, cast upon him by his own conduct (A). Where the lessees of some lands and coal-mines found or To dig for to be found, covenanted to sink for coal as far as could and ought to be accomjilished by persons acquainted with the nature of collieries and as in such cases was usual and customary, and immediately to erect such fire-engines as should be necessary ; an award ascertaining the damages occasioned by their default to do so fm'ther directed, that the lessees should sink to and through the coal-mines demised, and erect fire-engines thereon ready and comj)lete for working the mines and getting the coals according to the terms of the lease before a certain day ; it was held that they had sufiiciently performed the award on their showing that they had sunk for coal as far as they could and ought in the judgment of persons of competent skill in such works, and as far as was usual and customary in such cases, and that no coal could be got worth working (?). (r/) Doddington v. Bail ward, 7 Bing. 410. DoWl. 640. (0 Ilanson v. Bootliman, 13 (/i) Doddington v. Hudson, 1 East, 21. 498 VEBFORIHANCE OF THE AWARD. Tart III. Upon an award for the payment of money at a particular ^"- "• ^- •'• time and place, tlic party wlio is to pay ought to come and r;iity to tender tlic money at the time and place,' even if the other tender party he not there to receive it {k). money. ^ ^^^^^^ directed by an award to be paid for arrears of rent Must seek . out party of a liousG is a sum in gross payable without demand, and entitled. j-|^Q party directed to pay must seek out him who is to receive it (l). Must get So where the award orders the defendant to pay the plain- * tiif on a specified day his costs of suit, to be taxed by the proper officer, it is incumbent on the defendant to procm'e them to be taxed ready for payment on the day {?n). AViicn not Xf the arbitrators award that the defendant shall " enjoy a breach of ^ liousc paying rent to the plaintiff," the arbitration bond award. jg forfeited if the defendant fail in the payment. The payment of the rent is not a mere condition, on non- performance of which the estate of the defendant is to cease (71). But if the award be that one shall make a lease for years to the other, rendering certain rent to the lessor ; and the lessor make the lease, but the rent be not paid, the non-payment of the rent is no breach of the arbitra- tion bond, but distress or an action of debt for the rent are the proper remedies. If, however, the award du-ect the lessee to pay the rent the bond is forfeited by non- payment {0). When pro- Au a,ward directing all suits between A. and B. to cease is suit a "^ not broken by A. prosecuting a suit against B. and others breach. jointly (p). Eutenng An award that the lilaintiif should not prosecute nor pro- coutiuu- .., auce. ceed m an action m the same term, was held not to be broken by the entry of a continuance from term to term, for without such entry the party could never afterwards have By attor- gone un with his action (//). If the award be that he shall not continue the action, it is a breach if he continue it by (A-) Doyley v. Bui'tou, 1 Lord Eliz. 211. Eaym. 533. (q) Anon. F. Moore, 3, pi. 8. (l) Furser v. Prowd, Cro. Jac. (p) Barnardiston v. Fowler, 10 423. Mod. 204. (m) Candler v. Fuller, Willes, (q) Gray v. Gray, Cro. Jac. 62. 525, {■)}) Parsons v. Parsons, Cro. ney EXECUTING A DEED AWARDED. 490 attorney, but not so if the attorney enter tlie conliiiiiance Tart ill. Avithout In's privity (/•). c"- "• «• -• The court has no power to order an award (o he delivered up to be cancelled on paying the amount awarded {«). SECTION 11. PERFORMANCE OF AN AWARD DIRECTING THE EXECUTION OF A DEED. Where the arbitrator directed that on payment of the Whctiiei- mortgag-e debt the mortgagee should re-assign the mort- execute ^ gaged land, the duty of re-assigning was held to attach, tiie (i«d without any request from the mortgagor. And this distinc- tion was taken by the court, that no request was necessary, because the re-assignment might have been made without the presence of both })arties, but that it would have l.)ecn otherwise had the duty been to re-infeoff, because the intended feoffee must have been present to receive the livery (t). When the award orders conveyances of real or personal win. to property, difficulties often arise as to which of the parties is a,Ki temie- to prepare and bear the expense of the instruments, and tiic cniivej- tender them for execution. execution. In an old case it is said, if a man be awarded to convey an estate to another person by such a time, he is to pro- cure the conveyances to be made ; or to convey an estate to another by such conveyances as shall be api^roved of by such a counsel, he is certainly to prepare the con- veyances, and to procure them to be approved of by that counsel (k). In a modern instance, where the award directed the lessor of the plaintifl" to pay the defendant a certain sum for a piece of copyhold land, and that the defendant, in consider- ation of that sum, should, at the costs and charges of the {)■) Gray v. Gray, Cro. Jac. (t) Rosse v. Hodges, 1 Lcl. 525. Eaym. 233. (.s) Symouds v. MiUs, 8 Taimt. (-v) CancUer v. Fuller, Willcs, 526. 62. K II 2 500 PERFORMANCE OF THE AWARD. Part III. former, surrender the land to his use, and that on such OH. II. s. 2. g^rrender being made and delivered to him, he should pay the defendant the price awarded ; it was decided by the court that it was the defendant's business to prepare and execute the surrender, or at all events to give notice that she would attend on the steward of the manor to make it. It was proved that the defendant was requested to make the surrender, and that an offer was made to pay the price awarded, and the costs of the surrender, upon the surrender being effected by the defendant ; and the court granted an attachment against her {x). It being referred to an arbitrator to decide whether a contract subsisted for the purchase of some land, and the award found that the contract was in force, and directed the defendant to perform it, and to pay a certain sum on the conveyance of the land by the plaintiff to him, it was held that in order to bring the defendant into contempt for non-performance, the plaintiff should have executed and tendered a conveyance to the former and asked for the money (y). Both this case and the preceding one (z) were decided on what was supposed to be the general rule respecting the duty of a vendor on a contract for sale, to prepare and tender the conveyance for the execution of the vendee. But it seems, from the last edition of Sir Edward Sugden's work on Vendors and Purchasers, that the rule, which never was sanctioned by the practice of conveyancers, has ceased to be law. Ordinary "ji^g effect of wliat is there stated may be thus abridged : TU.16 Oil ii ^ o contract for When the contract for sale of lands is silent respecting the knds preparation and costs of the conveyance, it seems now to be settled law, notwithstanding ancient cases, and many dicta to the contrary, that it is the duty of the purchaser, at his own expense, to prepare and tender the conveyance to the vendor for execution. If the agreement expressly require the purchaser to prepare and bear the expense of the con- veyance, it was always clear that the vendor need not tender a conveyance. But when the conveyance is to be prepared (x) Doe d. Clarke v. Stillwell, 8 Taunt. 561. A. & E. 645. {z) Doe d. Clarke v. StiUweU, 8 {y) Standley v. Hemmington, 6 A. & E. 645. EXECUTING A DEED AWARDED. 501 at the expense of tlie vendor, and there is nothing in tlie Part ill. at^reeraent to show who is to prepare it, it has been decided ""• "• ^- ^' that the duty of preparing, as well as paying for ^lie instru- ments, falls on the vendor (a). Very often the direction in the award is to assign upon Deed request. When such is the case, the instrument, of which g^ouirbe execution is requested, should precisely agree with the terms drawn of the award, or refusal to execute it would probably be no to award, breach. An award directed the defendant to assign, according to law, a certain interest to one Duncan, upon request. The assignment tendered to the defendant for execution was an assignment to Duncan, his executors, administrators, and assigns ; it was objected that the assignment tendered was too large in its terms, and Lord Ellenborough was inclined to think a personal assignment to Duncan himself might be meant ; the case, however, was ultimately com- promised (I)). If an arbitrator direct a party to execute a deed, it is no Demanding excuse for non-performance that the deed was tendered, for by^gent execution by a person not authorized by power of attorney to make the demand. It is sufficient if the person present- ing the instrument were authorized so to do, and an attach- ment will issue on refusal. Demanding payment of money awarded is considered by the court to stand on a very different footing from demanding execution of a deed («?). If one party be ordered to pay a sum of money, and the Award to other, on the receipt thereof, to execute a release, the latter ^^^^^^'^ ' ^ ' ' release oa by refusing the sum, cannot free himself from his liability, payment. to perform the award, but must execute the release on the money being tendered to him (d). If the award direct payment to be made to a party or his Death of assigns within a specified period, and that on the payment j^gf^^^ each party should give the other a release, and the party payment. who is to receive the money die before the time has expired. (a) Sugd. Tend, and Purch. vol. 61. 1, p. 262, nth ed. See the cases (c?) Squire v. Grevett, 2 Ld. there cited. Eaym. 961 ; Linnen v. William- {b) Eussell V. Headington, 1 son. RoUe Ab. Ai-b. K. 16, p. Stark. 13. 254 ; Luniley v. Hutton, Cro. Jac. (c) Kenyonv.Grayaon, 2 Smith, 4-17 ; Simon v. Gavil, 1 Salk. 74. o02 PERFORMANCE OF THE AWARD. Tart III. payincnt must be made to his personal representatives, though <^"- "• 9- 2 . j^Qj^ named in the award, and the representative is bound to give a release of all demands the deceased has against the other (6^). Award of "Where an arbitrator exceeds his authority in awarding a ttmroV° I'elease of all claims until the time of the award, instead of award. limiting it to the date of the submission, if the party execute a release to the time of the submission, this is a good per- formance of the award {/). Deiiveriug If the defendant, being ordered to execute a release to the str^mjer for plaintiff, deliver a release properly executed to a stranger, piaintiii's to the usc of the plaintiif, which the latter refuses to accept, US6 such tender and refusal may be pleaded as a good perform- ance of the award, if no particular place be mentioned for the delivery {g). Award to If the arbitrator direct a party to execute a bond or cove- iudemuity i^'^i^t indemnifying another against the costs of an action, and the party execute the bond or covenant, the remedy on the arbitration bond is gone ; and in case of a fixilure to save the party harmless, proceedings must be taken on the indemnity bond or covenant (Ji). Award timt In debt ou bond for non-performance of an award, " that shaU stand ^ ^^^^^ ^^^ chauccry shall cease, and that the plaintiff shall acquitted stand acquitted of it," it is a sufficient plea that the defend- or a suit. . . . ant did not jirosecute the suit, and that the plaintiff " staret inde quietus," for the award orders no act to be done by the pariy, but says that by virtue of the award he shall stand acquitted. The mere filing a fresh bill in Chancery for the same matter is no breach of the award, for until a subpa3na issues on the bill the party is not damnified. But if one, being bound to save another harmless, obtain a process against him, this is a clear breach of the award (/). Award lo On an award that one '' shall acquit the other of such a dLbt.'* "^^ ^"^^^ ^^ suit," it is not sufficient to save the latter harmless, but the party directed to acquit ought to procure an actual {(') Dawiiey v. Vesey, 2 Vent. Drew, 2 Leon. 181. 249. (A) Phniips V. Knightley, 1 Bar- (/) Stevens v. Matthews, 1 Ld. nard, 463. Piayin. 116; Marks v. Marriot, 1 (/) Freeman v. Sheen, Cro. Jac. ].d. Eaym. 114. 339, S. 0. 2 Bulst. 93; 1 EoUe {(j) Alford y. Lea, 2 Leon. 110, Eep. 7. S. C. Cro. Eliz. 64 ; Freeman v. EXECUTING A DEED AWAllDED. 503 discharg-e {k). So, if one has a rent-charge out of the lands Part iir. (^f another, and as touching tliis they siihniit to an award, °"- "• ^- ^- and the arbitrator award for the hitter " (^uod staret (|uietus" Award of the rent, ho who has the rent ought to release the same to quietus of the other, for to he quit of the rent supposes the demand not lect- in being (l). (/.-) Frcomanv. Sheen, Oro.Jac. 93, per Doddridge, J. ^ Bac, Ab. n:5(). S. a. VmM. 93. Ail). V. (/) Freeman v. Sheen, 2 Bui;-;!. CHAPTER III. THE AWAED AS A GEOUND OP ACTION OE DEFENCE AT LAW. Part III. Qf tlie various modes of enforcing awards, the most iiniver- ^"- ™- sal is that by action at common law. An award may either Contents of f^yj^ ^he ground of an action, or may be used to resist a the third " . cbapt«r. claim attempted to be asserted by action. Both these uses are considered in the present chapter. The first section shows how to enforce an award by action, and the various kinds of actions available according to cir- cumstances. Section two points out how to state an award in pleading, with the necessary averments. The effect of an award, when pleaded as an answer to a claim, is examined in the third section. The fourth declares what sort of answer may be pleaded to defeat a claim, or invalidate a defence resting on an award pleaded by an opponent. The fifth section, after discussing the mode of proof of the submission and award, investigates the efi'ect of an award in evidence, as between the parties, and as regards strangers ; and concludes by pointing out how an award put in evidence, may be impeached by evidence in reply. ACTION ON AN AWARD. 505 SECTION I. HOW TO ENFORCE AN AWARD BY ACTION. I. An award a ground of action.~\ — An award may be en- ^^^"^ ^^'^• forced as of right by action, whether tlie submission be by '. ' parol, by writing not under seal (a), by bond (b), or deed (.•) BaufiU V. Loigh, 8 T. R. Eajnn. 1039. 571. (.r) Ilodsclen v. Ilarridgo, 2 (<) Bates V. ToYnilcy, 2 Ex. Saiind. 62, b. n. ; l*ui'slow v. 152. Baily, 2 Ld. Eajnn. 1039^ 508 THE AWARD IN ACTIOK. Part III. besides awarding money to be due, the arbitrator direct the °" "^•^' • performance of collateral acts, an action of debt may be maintained for the money awarded {y). By oWigor Six partners entered into two bonds of submission to arbi- tion bond tratiou : in the one, three of them gave a joint and several aijainst co- ]jond to the othcr three, conditioned for the performance of obligor. . the award, respecting all differences between the parties or any of them, and the three latter gave a similar bond to the three former. The arbitrator awarded that one of the three former should pay a certain sum to one of his co-obligors. It was held that an action of debt on the award might be brought by the one against the other alone, though no action on the bond would lie by one co-obligor against another (z). Against Formerly it was held that debt did not lie against an executor of . ^ • • i i^ i i i deceased cxccutor or an aclmmistrator, upon an award made on a sub- party, mission not under seal entered into by the deceased, on the ground that the latter might have waged his law, whereas the executor could not wage his law of a debt contracted by his testator (a). Since the modern statute for amending the law, wager of law has been done away, and an action of debt on simple contract is given against an executor or administrator {b). Against Where the submission was by the executor, and not the partv*°^ testator, debt on the award was held maintainable against the executor, even before the above statute (c). Debt lies iv. FM/orcing award by debt on the arbitration bond."] — - on the arbi^ j£ ^|^ submission be by bond, an action of debt for the bond. penalty in case of non-23erformance of the award, has Preferable always been maintainable. It is in some respects preferable remedy. ^^ ^^ actiou of debt on the award, since it throws upon the defendant the task of discharging himself from the penalty, by showing performance of the condition, and relieves the (?/) See form 2 CHtt. PI. 258, land, Cro. Eliz. 600 ; EiddeU v. eth ed. Sutton, 5 Bing. 200, S. C. 2 M. & (3) Winter v. White, 3 Moore, P. 345. 674, S. C. 1 B. & B. 350. (6) 3 & 4 W. IV. c. 42, es. 13, (a) Hampton v. Boyer, Cro. 14. Eliz. 557 ; Freeman v. Bernard, 1 (c) EiddeU v. Sutton, 5 Bing. Ld. Eaym. 247 ; Bowyer y. Gar- 200. ACTION ON AN AWARD. 509 plaintiff from the burden of proving a n)iihial submission, Part in. which he must allege and prove if traversed, in order to ""•"^•"•^- support the latter form of action (r/). Where the original submission is by bond, though tlie Time in the time be enlarged by deed, an action for non-performance of enhrg'Jd' by the award may be maintained on the bond, for altering the '^^^'^■ condition does not defeat the bond (e). But if the time for making the award be enlarged by agreement not under seal, and the award be made beyond the original time, but within the substituted period, no action can be maintained on the bond, but an action of assumpsit may be brought on the Eniaiged new submission by enlargement, in case obedience to the nfenf^debt award be withheld (J"). not lie. On the like principle, after an extent in aid had issued Altering against the defendant, and the defendant had entered into a of"reL't^ni- recognizance conditioned to abide by the award of A. B. ^ance by respecting debts claimed to be due from him to the prose- court, cutor, and, A. B. declining to act, by a rule of court a new 'arbitrator, C. D., was by consent substituted, and the latter made his award ; the court held that a scire facias on the recognizance was not maintainable, since the defendant, by disobeying the award of C. D., had not forfeited the recog- nizance which was to abide by the award of A. B. (y). V. Enforcing award hy covenant.'] — Where the submis- Covenant sion is by deed, an action of covenant will lie for the breach submis-i°n of any part of the award, though debt will lie only for the by deed. non-payment of money (Jt). In covenant against a woman and her husband, the decla- Revocation ration alleged that slie, before her marriage, covenanted to perfwm- abide by and perform an award, and protesting that she did a°ce not before her marriage observe her part of the indenture, averred that after the making the indenture, and the inter- marriage of the defendants, the arbitrator made his award, {d) Fen-er v. Oven, 7 B. & C. 262, S. C. 3 Y. & J. 101. 427. (/() Tomlin v. Mayor of Ford- (e) Greig v. Talbot, 2 B. & C. wich, 6 N. & M. 594 ; CLarnley 179. v. Winstanley, 5 East, 26(J ; (/) Brown v. Goodman, 3 T. E. Marsh v. BiUteel, 5 B. & A. 507 ; 592, cited in the notes. 2 Chitt. PI. 255, notes, 6th ed. ((/) li. V. Bingham, 1 Tyrw 510 THE AWARD IN ACTION. Pakt III. directing- lior to pay a sum of money. It then laid as a "^- '"•'^•l - breacli that the defendants did not pay the sum. On motion in arrest of judgment, on the gromid that the marriage of the female defendant was a revocation of the arbitrator's authority, and consequently that the award was void, and that therefore there could be no breach of covenant ; the court held, that although the i)laintiff had alleged his real grievance, viz., the revocation by the marriage, informally, and in a manner bad on special demurrer, yet as the ftict of the marriage before the award, which constituted a breach, appeared on the face of the declaration, tliere was sufficient to justify the court in giving judgment for the })laintifF (i). But in covenant to abide by and perform an award, and not prevent tlm ar])itrator from making an award, where tlie declaration alleged an award, and laid the breach in non- performance of it, and the defendant pleaded, that he had revoked the arbitrator's authority before the avv'ard y/as made ; the defendant, on demurrer, Avas held entitled to judgment, since the revocation defeated the claim on the award, and although a breach of covenant in itself did not entitle the plaintiff to recover, since a plaintiff can only recover in respect of some ground of action alleged in the declaration ; and the court distinguished this case from the case of Charnley v. Winstanley (Ji)^ remarking that there the revocation appeared on the face of the plaintiff's count, here only in the plea (/). Joining Where the defendant has revoked his submission, and an revocation award has notwithstanding been made, there seems to be and non- ^^ objection, in assumpsit or covenant, on the submission, to perform- . . . aiice. join a count for the revocation with a count on the award ; and the judge at Nisi Prius will not -compel the plaintiff to elect on which count he will rely at the trial ; and if the defendant prove the revocation in order to defeat the claim on the count on the award, the plaintiff will be entitled to damages on the other count {m). {I) Charnley v. Winstanley, 5 u07. East, 266. See Lo Bret v. Papillon, (?h) Brown v. Tanner, 1 C. & P. 4 East, 502. G51, S. C. M'Lel. & Y. 464; {k) 5 East, 266. Marsh y. Bulteel, 5 B. & A. 507. (Z) Marsh y. BiUteel, 5 B. & A. ACTION ON AN AW'AlU*. 611 VI. Enforc'mf/ award by action on the case.'\ — Where com- Part hi. missioncrs under an inclosurc Act award, that the owners or ""•'"•''•^; oc(uii)iers of hinds, across which a i)articuhir drain runs, C^i^c for shall keep the portions of it which respectively lie on tlieir fomiancc several lauds cleansed, and iu a fit state to carry off the"^'^"^^, ' _ _ •' awarded. water, and one of the owners in cpiestion neglect to do so, an action on the case for the wron<;ful neirlect seems to be a proper remedy fur any other owner or occupier of land who has ;r right to the benefit of the drain, and who has been injured by the def\uilt {ii). VII. Faints of jyractice in actions to enforce awards.'\ — Changing The venue in an action on an award cannot be changed on ^ ^^^'^^s- the common affidavit (o). Doubt was thrown uj)on this point by the observations of the court in a modern caseCji?), but a still later decision has expressly confirmed the old rule {(]). An affidavit of debt to hold a party to bail; which averred Affidavit of that the defendant was indebted to the plaintiff generally, ® ' ' on a bond conditioned for the performance of an award, which directed an apparent stranger to pay a sum of money on demand, Avas held to be defective, for not showing how the defendant was indebted, • and also for not averring a demand on the stranger, and a refusal by him to pay(r). So, where the award directed that a party should pay the expenses of the reference, and that the other should repay them on demand, and the former having paid them, made an affidavit of debt against the other, alleging such payment, but not stating any demand for repa3Tiient, the affidavit was held insufficient {s). An affidavit for the above purpose ought to show tlrc fact of the submission, the making of the award, and that the money was due at a day past at the time of the affi- davit {t). (h) Sharpo v. Hancock, 7 M. & (7) Martin v. Daw^, 1 D. & L. G. 354. 279. (0) "VVliitburn v. Staiacs, 2 B. & (r) Ai'mstrong v. Stratton, 1 P. 355; Stanway v. Hcslop, 3 B. Moore, 110. 6 C. 9 ; 2 Ai-chb. Pr. 958, 7tli cd. (s) Driver v. Uooa, 7 B. & C. {p) Monclel v. Steele, 8 M. & 494. W. G40 ; Greenway V. Carringtou, {t) Aiioii, 1 DowL 5. 7 Price, 5G4. 512 THE AWARD IN ACTION. Part III. CH. III. s. 2. Interest I'ecoverable on sum awarded. Referenr-e to the Mas- ter to com- pute pi-in- cipal and interest. Writ of in- quiry after judgment on issue nul tiel record. Where money due on a balance of account is awarded to be paid at a particular time and place, if duly demanded there on the day, interest from that day may be recovered, together with the principal, in an action on the award (m). So, where no particular time is mentioned, interest will run from the time the sum is demanded {oe). Interest, however, can only be recovered in an action, and not on a motion for an attachment (y) ; or on an execution issued on a judgment entered up pursuant to the award (z) ; or on an execution under the statute 1 & 2 Yict. c. 110 {a). After interlocutory judgment in an action on an award for a sum certain, the court will refer it to the Master to com- pute the amount of damages, instead of directing a writ of inquiry {b). Leave was given to the plaintiff, in debt on bond condi- tioned to perform an award, after judgment for him upon an issue of nul tiel record to a plea of judgment recovered, to execute a writ of inquiry upon the statute 8 & 9 Will. III., c. 11, s. 8, after a writ of error allowed, and to sign a new judgment on the terms of paying costs, and putting the defendant in statu quo {c). SECTION IL HOW TO STATE AN AWARD IN PLEADING. Pleading I. Averments in a pleading stating an award.'] — In the E^dtei of declaration in an action on an award, or in a plea relying on differences, an award, it is usual by way of inducement to state concisely that certain differences had existed, and were dejjending between the parties (o?). It is more common, though not (m) Pinhorn v. Tuckington, 3 Camp. 468. See 3 & 4 W. IV. c. 42, s. 28 ; Marquis of Anglesey V. Chafey, Manning's Digest, title Interest, A. a, pi. 19, cited in Cliiirclier v. Stringer, 2 B. »fe Ad. 777. (x) Jolmson v. Dm-ant, 4 C. & P. 327. (y) CliiU'clier v. Stringer, 2 B. & Ad. 777. (z) Lee T. Lingard, 1 East, 400. (a) Doe d. Moody v. Squii-e, 2 Dowl. N. S. 327. {h) Meggison v. , Tidd. Pr. 571, 9tli ed. (c) Hanbuiy v. Guest, 14 East, 401. {(1) 1 Chitt. PL 290, 6tli ed. ; 2 Chitt. PL 256, notes, 6tli ed. Seo STATING AN AWARD IN I'LEADINC. 013 necessary, to specify shortly the subject matter of the Part hi. dispute (6'). '"l^'-^^ There must be a statement of a mutual submission of the <>f mutual matters in difference to the award of the arbitrator. The submission need not to be set out at full length, or stated to be in writing, but the substance and legal effect of it ought to be given {/). It must ai)pear to be valid and binding in law, or the award on it cannot be supported, and the pleading will be bad on demurrer {(/). Though the reference be by order of a county court, it Order of need not so be stated ; if a mutual submission be alleged, it no"be°^^ is enough (/). stated. The arbitrator must be alleged to be nominated by the Of appoini- parties. Averring him appointed on their part and behalf is arbitrator insufficient (?). If the reference be to two arbitrators, who by writing Of appoint- indorsed on the submission, are to appoint a third arbi- ^[^■^^.^l trator to act with them, a declaration alleging that the two arbitrator •11 puisuant by writmg appomted a third to act with them, is bad on to the sub- general demurrer, if it do not state that they appointed him ^^^^^°'^- by writing indorsed on the submission (k). When the parties are bound by their submission, so as to incur i^eculiar liabilities, it is advisable to state the terms very fully, or to set the submission out verbatim (l). In assumpsit^ on a submission by agreement not under Averment seal, there must be an averment in the declaration of mutual l-o^^g^g j^ promises to perform the award. These promises are implied assumpsit. from the fact of the submission (;«). A plea of an award on a like submission should aver mutual promises in like manner. But in debt, an averment in the declaration of mutual Averment promises was held bad on special demurrer, as it was said to ^ej^t"^ make the action an action of debt to perform an award when made, and not an action of debt on the award itself. Such the Appendix of Forms for the [h] Eoper v. Le\'i, 21 L. J. Ex. forms of pleadings relating to 28. awards. (t) DiUey v. Polliill, 2 Stra. 923. [e] 2 CHtt. PI. 145, 255, 6tli ed. (A-) Bates v. Tomiley, 1 Ex. 572. (V) 2 Cliitt. PI. 256, notes; (/) Mansell v. Bmredge, 7 T. Hodsden v. Harridge, 2 Saimd. 61 R. 352 ; 2 Cliitt. PI. 256, notes, m. notes, 61 n. 6tli ed. {(]) BiddeU v. Dowse, 6 B. & C. {m) Lupart v. Welson, 11 Mod. 255. 171. 514 THE AWARD IN ACTION. Part III. a declaration might plausibly be argued to be either in debt OH. III. s. 2. Qp assumpsit {n). Averment The award must appear on the face of the pleading to be award jxiadc in pursuance of the submission as set forth, in all the niaae pur- ■'■ _ ' _ suatit to formal requisites. It will not be sufficient to aver that it was ' duly made. If the submission, as pleaded, require the award to be in writing, or under the hand of the arbitrator, or As to under his hand and seal, or before two witnesses, it must be requisite, stated in pleading that the arbitrator made his award, m writing, or under his hand, or under his hand and seal, or before two witnesses, as required (o). As to time, tj^q award must be pleaded as made within the time limited. If the submission provide that it be made on or before a certain day, an allegation that the award was made (to wit) on the day named as the limit will be good even on special demurrer ; for the averment of the day being material, will not be rendered immaterial by being laid under a videlicet, but will be taken to be a positive and traversable statement that the award was made on the day specified (p). Averring Though the submissiou require the award to be made on award . ready to be or before sucli a day, ready to be delivered to the parties, delivered. gj^Qwiug an award made on or before the day is good, with- out any averment that the award was ready to be delivered ; for when made, it will be intended to be ready to be deli- vered, and therefore it is not necessary to aver it : and if it were not in fact ready to be delivered, it has been said that in answer to an action on the award, the defendant should plead the matter specially (q). A plea that the arbitrators had made their award, and that the defendant, on the last day for making the award, required them to deliver it to him, but that they had neglected and {n) Sutcliflfe v. Brooke, 15 L. J. 331, S. C. Garth. 158, 1 Show. 98, Ex. 118, S. C. 3 D. & L. 302. 242; Doyley v. Burton, 1 Ld. (o)Everardv.Paterson, 2Marsli, Eaym. 533; Anon. 2 Ld. Eaym. 304 ; Henderson v. Williamson, 1 989; Bnsfield v. Busfield, Cro. Jac. Stra. 116 ; Hintonv. Cray, 3Keb. 577 ; Freeman v. Bernard, 1 Ld. 512; Wilson V. Constable, ILntw. Bajnu. 247 ; Bradsey v. Clyston, 536. _ Cro. Car. 541; Eobison v. Cal- {p) Skinner v. Andi-ews, 1 wood, 6 Mod. 82 ; Marks v. Mar- Saimd. 169, S. C. 1 Lev. 245, S. riot, 1 Ld. Eaym. 114 ; Gates v. C. 2 Keb. 361, 388, S. C. 1 Sid. BromMll, 6 Mod. 176, S. C. 1 Salk. 370; Bissex v. Bissex, 3 Bur. 75; Jonkinson v.Allisson,lFreem. 1730 ; Bac. Ab. Arb. Q. 415, contra, S. C. 3 Keb. 513. {q) Eowsby v. Manning, 3 Mod. STATING AN AWARD IN PLKADING. 515 refused to do so, was held supported by evidence that the Part hi. arbitrators liad made their aAvard on tlie day, but liad refused c°- J"- 8-2- to deliver it to the defendant, as it was not stamped, and to entitle the defendant to a verdict in his favour in an action on the arbitration bond (r). He might, however, it is pre- sumed, have given such special matter in evidence under a plea of no award {s). The ordinary precedents usually contain an averment of readiness to deliver {t). Where an award is to be ready to be delivered by a Award to particular day, at a particular place, the cases are not be delivered quite agreed whether an averment that it was made ^■^ ^ pa'*'- elsewhere, ready to be delivered at the specified place, be sufficient (u). An averment that it was made and delivered to the parties before the day, at another place, has been held good {x). It is proper to state in pleading that the award was made Averring "of and concerning the premises;" for when such aver- made of ment appears, the court will intend that the arbitrator has ^^^ 5°°' ^ A ■" earning the decided all the matters referred, until the contrary be made premises, manifest (y). It must be shown also on the face of the pleadings, that Showing TTi 1 (• • directions every direction of the award relied on as a ground of action in award is warranted by the terms of the submission set forth. For authorized. example, if a landlord, who has jDarted with his reversion, and has therefore by law no power to distrain, rely on an award giving him such a power, the arbitrator's authority to award a power to distrain must either appear by the express words of the submission, as set forth in the award, or else it must be brought within the general words of the submission by a distinct averment that the question as to whether the landlord should have such a power of distress, was one of the matters in difference between the parties {z). (>•) Wilson v. Wilson, cited in Cro. Jac. 577 ; Bac. Ab. Ai-b. G. Veale v. Warner, 1 Saund. 327, c. p. 254, 5tli ed. note m. (x) Elborough. v. Gates, 2 Lev. (.s) Dresser v. Stansfield, 14 M. 68. & W. 822. (y) Craven v. Craven, 7 Taunt. (t) 2 Chitt. PI. 256, note, 6th 642 ; Doyley v. Bui-ton, 1 Lord ed. ; Veale v. Warner, 1 Saund. Eaym. 533. 327, b. n. (z) Pascoe v. Pascoe, 3 Bing. («) Doyley v. Bui'ton, 1 Ld. N. C. 898 ; 2 Chitt. PL 256, notes, Eaj^m. 533 ; Busfield v. Busfield, 6th ed. L t 2 516 THE AWARD IN ACTION. Part III. cu. III. s. 2, When stat- ing part only of award sufficient. Part set out not deciding; all matters. Pleading parol award. A ward under seal profert un- necessary. Averring notice of award made. In an action on an award, the declaration need not show forth more of the award than is necessary to support the plaintiff's claim in the action, and it is sufficient to say that the arbitrator, '' among- other things," awarded the amount due ; and if the award be defective on its fice, or contain anything by way of condition precedent to the j)ayment of the money, the defendant must set it out in his plea. But in an action on the arbitration bond, if the plaintiff set out the award in his declaration or replication, he must set out the whole, or at least every part that is not void, or there will be a fatal variance in the proof (a). Where a declaration in covenant, for not performing the award, stated that the arbitrator, among other things, du*ected the defendant to do certain acts, and then alleged a breach in respect of those directions; Lord Denman, C. J., inti- mated an opinion that he would not hold the award void, or the declaration bad on demurrer, although it appeared that the arbitrator had to award on a particular matter, uncon- nected with the alleged breach, on which matter the portion of the award set out did not decide. No decision, however, was come to on the question, the award being bad on its face on other grounds (J)). In jsleading a parol award, it is not necessary to set forth the exact words ; it is sufficient to show the effect and sub- stance of what was awarded by word of mouth (c). An award, though indented under the hand and seal of the arbitrator, is no deed or specialty, but a writing under hand and seal, unless it be delivered by the arbitrator as a deed, and therefore it was not necessary in pleading to make profert of it {d). It is usual in practice to aver that the defendant had notice of the award, but such an averment has been held (a) Perry v. Nicholson, 1 Burr. 278; Leake y, Butler, Litt. 312; Smitli V. Kii'foot, 1 Leon. 72 ; Wood V. Wilson, 2 C. M. & E, 241 ; Tillbrclv. French., 1 Sid. 160; Foreland v. Marygold, 1 Salk. 72 ; Bac. Ab. Arb. Gr. ; Leach v. Mor- ris, 1 Mod. 36, contra. See 2 Chitt. PI. note h, where it is said if there be a condition j)recedent to the pajTnent of the money, it and performance of it should be aveiTed in the declaration, {h) TomHn v. Mayor of Ford- wich, 6 N, & M. 594. (r) Hanson v. Liversedge, 2 Vent. 242 ; Thomlinson v. AiTis- kin, 1 Com, Eep. 329, {d) Dod V, Herbert, Sty, 459 ; Perry v. Nicholson, 1 Burr. 278 ; Hodsden y, Harridge, 2 Saund, 62, b. n. STATING AN AWARD IN PLEADING. 517 not to be necessary, unless the submission provide that Part tit. notice of tlie award sliall be given, becnuse tlie defendant is en- "i- s.2. bound to take notice of the award being made as well as the plaintiff {e). If the award direct an act to be done on a particular day. Averring as, for instance, that the defendant is to pay the plaintiff a a'gtirm sum of money on a specified day, and the non-performance j^ccrued of the act in question is the ground of action, it is prudent suit com- to aver that the day in question had elapsed before the com- "*^"*=^^'- mencement of the suit ; for though, according to recent decisions, the courts will presume that the cause of action alleged in the declaration occurred before the suit issued, yet they will not in some cases set aside as frivolous a demurrer on the ground of the want of such an allega- tion (/> Generally, if an award dh'ect money to be paid, it is not Averring necessary to state any request for payment in the declaration perlbnu ° in an action on the award. But if the award be to pay a award. sum " on request," the declaration must allege an express request. The averment that the defendant, though often requested, has not jDaid, is insufficient (y). Ordering the money to be paid at a particular time and When place, does not impose the necessity of alleging a request, be paid at for the defendant is still under a general obligation to pav ; ■ijpoi'lted nor need the declaration m such case allege the attendance place. of the plaintiff at the place, or a demand by him there ; the utmost necessary to be stated is, that the defendant did not pay at the time and place, or at any other time or place. Readiness to pay at the time and place is only matter of defence {/i). If, however, the plaintiff be directed, on the receipt of the When money at the time and place, to do a concurrent act, as for j'ei'f'or'm a" instance, if, on the money being paid him, he is to give the concurrent (e) Fraunce's case, 8 Eop. 92, & L. 199; Granger v. Dacre, 12 b.; Hodsden v. Harridge, 2 Saund. M. & W. 431 ; Abbott v. Aslett, 1 62, n. 4; Child v. Ilorden, 2 Bnlst. M. & W. 209. 144 ; Gable v. Moss, 1 Bulst. 44 ; (r/) Waters v. Bridge, Cro. Jac. Juxon T. Thonihill, Cro. Car. 132. 639. See Brooke v. Mitcliell, 6 M. & W. {h) Eowe v. Young, 2 B. & B. 473. 165, per Ba'iley, J. 233 ; Lambard (/) Naters v. Sutton, 11 Jm-. v. Kingsford, Lutw. 558 ; Eoilham 87 ; Owen v. Waters, 2 U. & W. v. Strober, 3Keb. 830. 91 ; Sbepberd v. Sbepbcrd, 3 D. •^18 THE AWARD IN ACTION. Part III. defendant a covenant of indemnity, the plaintiff cannot sue CH. Ill, s. 2. fQj. ^]^g money without showing a readiness on his part to give tlie covenant ; and therefore lie must aver his own pre- sence at the place, and attendance during the whole period appointed for payment of the money {i). When costs Jf an action be brought on an award directing- one of the to be fc5 repaid. parties to pay the expenses of the reference, and that the other should repay them on demand, it would seem that an averment of payment and of a request for repayment is necessary (k). Eequest to Where the defendant promised to pay the plaintiff 401. , on terai sum. rcqucst in case he did not perform an award, it was held that an actual request was necessary before action brought, and that the declaration should have averred a special request; and a distinction was taken between a promise to pay a collateral sum on request, as this 40/. was, and a promise to pay a precedent debt or duty where no actual request is necessary (/). Averment In debt on au award by the assignee of an insolvent tor's con- debtor, there is no necessity that the declaration should s'ut to allege that the submission to arbitration was with consent I'eference ... byassignee. in writing of the major part of the creditors ; for the reference is good without such consent, although the want of it may render the assignee responsible to the creditors {m). Averment A party dying pending a reference, the arbitrator directed by execir payment to be made by his executors out of his assets. In tors of assumpsit asfainst the executors, a statement in the declara- deceased x o party. tiou that they had had notice of the award, that by reason thereof they became liable as executors to pay according to the tenor of the award, and that being so liable, the execu- tors aforesaid [not saying, as executors] promised to pay the amount according to the tenor of the award, was held to be a sufficient averment of a promise by them as executors to pay the amount out of the assets, and not a statement of a mere personal promise, for which there was no consideration (t) Eowe V. Young, 2 B. & B. (Z) Birks v. Trippet, 1 Saund. 165, per Bailey, J. 234 ; Phillips 32. V. KnigMly, 1 Barnard. 84, S. C. (m) SutcHffe v. Brooke, 3 D. «S; Fitzg. 53. L. 302. See P. I. Ch. 2, s. 3, d. (^•) Driver v. Hood, 7 B. & 0. 1, p. 33, reference by assignees of 494, S. C. 1 M. & E. 324. banki-upts and insolvents. STATING AN AWARD TN PLEADING. 519 stated. It was also decided, that it was not necessary to Part itt. aver tliat the executors liad any assets {n). "'•'"•^' "• Before the new rules of pleading, H. T. 4 Will. IV., which Indebitatus prohibited two counts for the same subject matter, it was the the award, practice in actions of debt or assumpsit on an award to add to the special count stating the submission and award in the manner previously recommended, a count alleging generally that the defendant was indebted to the plaintiff in a certain sum upon an award made by the arbitrator on a submission concerning the matters in difference between the plaintiff and defendant, by virtue of whicli the arbitrator had awarded the defendant to pay the sum claimed {o). The effect of such a count does not seem to have been much considered. On one occasion, Bayley, B., is reported to have said, " Is it quite clear that indebitatus assumpsit will lie on an award?" (jo). II. Averments in plead'mgs stating an award in debt on an Debt on arbitration bond.'] — Where in debt on bond conditioned for bouci^'^ the performance of an award, the plaintiff sets out the award award must ,. , , . T ,• 1 • T 1 be wbolly m his declaration or rephcation, we have previously seen he set out. must set out the whole or every part of it that is not void (y). Where, in such an action, the defendant pleaded no award, and the plaintiff in his replication set out part only of the award, and concluded with a profert, and the defendant claimed oyer, and (the award being set forth at large) demurred generally, it was held that the action could not be maintained on account of the variance (r). The plaintiff must assign breaches under the statute 8 & Plaintiff 9 Will. III. c. 1 1 , and cannot have judgment for the penalty JJ-gachS!^ and take out execution for the sum awarded, though there is only a single sum to be paid on the bond, namely, the amount of damages ascertained by the award ; for a bond to (n) Dowse v. Coxe, 3 Bing. 30. {q) See the previous division, p. See P. II. Qh.. 3, s. 3, d. 8, p. 162, 516. See the Appendix of Forms, effect of clause preventing death for the pleadings in debt on the ar- froni bcina: a revocation. bitration bond. (o) See the Forms, 2 Chitt. PI. (r) Fmiong v. Thornigold, 12 61, 146, 6th ed. Mod. 533, S. 0. Foreland v. Hor- (p) Crump V. Adney, 1 C. &M. nigold, 1 Lord Eayni. 715; Fore- 355, S. C. 3 Tjn-w. 279. land v. Marygold, 1 Salk. 72. 520 THE AWARD IN ACTION. Tart II f. jicrfomi ail award is, in other words, a bond to perform an ^"•"^•'^- ^- agreement, and comes directly within the words of the statnte {s). Replication In general, in an action of debt on bond for the perform- no aw^rd ^^^^^ °^ ^^^J ^^^ otlicr than an award, if the defendant plead must assign matter of excuse that admits a non-performance, the plaintiff need not assign a breach in his replication, but need only falsify the special matter alleged. But the case of an action on a bond to perform an award is an exception to this general rule {t). For there, if the defendant plead no award made, the replication, besides setting out the award, must also assign a breach ; and the reason alleged for the difference is this, that though an award be made, it may be void in part, and that therefore the plaintiff must not only show the award that the court may see that there was an award, but must also set forth the breach, that it may appear likewise that the non-performance was of a good part of the award, and not of a void part thereof, for in the latter it need not be performed (u). Breach as- And yet the breach, when assigned, is not issuable or travers- traversable, nor can the defendant give any answer to it, for ^^^^- the plea as between the parties has an issue before, and the breach is but an excrescence or surplusage (x) ; for any answer to the breach must necessarily admit the existence of an award, and consequently would be a plain departm'e from the plea ( y). Demurrer g|^Qi ^}jg want of assigning a breach is matter of substance, for not ° ° ' assigning and bad on general demurrer (z). The same is the case if breach. ^j^^ plaintiff assigu a bad breach, and it will not be aided after verdict {a). What a If the award to pay a sum of money and costs be bad as signnTent of ^0 the costs, a replication in an action on the bond assigning a breach. (s) Welcli V. Ii-eland, 6 East, 232 ; Bricklicad v. Arclibisliop of 613. York, Hob. 197. {t) Att.-Gen. v. Elliston, 1 Stra. {y) Morgan v. Man, T. Eaym 191 ; Com. Dig. Pleader, F. 4. 94 ; Gayle v. Betts, 1 Mod. 227 (m) Meredith v. AUeyn, 1 Salk. Bac. Ab. Arb. G. 138 ; Hayman v. Gerrard, 1 Saund. (z) Barret v. Fletcbor, Cro. Jac 102; Com. Dig. Pleader, P. 14; 220, S. C. Yelv. 152; Heard v SheUeyv. Wright, Willcs, 9 ; Bar- Baskerville, Hob. 232 ; Brickhead ret V. Fletcher, Yelv. 152; Lee v. v. Archbishop of York, Hob Elkins, 12 Mod. 585 ; Ormelade v. 197. Coke, Cro. Jac. 354. («) Com. Dig. Pleader, F. 14 (x) Heard y. Baskerville, Hob. Pit v. Wardal, Godb. 164. STATING AN AWARD TN TLEADING. 621 as a breach the non-payment of the money only is good {h). Part hi. So on an award that tlie defendant and a stranger slinll do en. nr.s. 2. an act, assigning a breach in the negk^'t of the defendant only is sufficient, when the direction as to the stranger is void ((•'). On a bond to perform an award, if the defendant plead in Wben effect traversing the submission, or any other collateral matter, ff "' "r^^ o T J 7 to assign the plaintiff may join issue thereon without assigning a breach in breach {cl). So, if the defendant show an award, and plead ^'^^ ^'^ ^ performance of part only, and issue be taken thereon {e). If the defendant plead any plea admitting the award and excusing non-performance, as if he plead a release of all demands after the award, whereby he offers a special point in issue, it is sufficient for the plaintiff to answer the release, or other special matter alleged by the defendant, without assigning any breach {/). Where an award is made that if the plaintiff pay the defendant ten jjounds, then the defendant shall assure to the plaintiff a certain manor ; if debt be brought on the arbitra- tion bond, and the defendant plead that the plaintiff has not paid him the ten pounds, it is a good replication for the plaintiff to say that he has paid the ten pounds, without saying further that the defendant has not assured him the manor ; for when the plaintiff has given a direct answer to the special matter alleged in bar, he need not make any other addition (^). When the defendant pleads no award, and the plaintiff ^I'cn/e replies setting out an award, it seems clear, from the case of concimie Fisher v. Pimhley {//), that such replication should conclude '■'''^^^ '^ ^®" with a verification, in order that the defendant may have an opportunity of pleading in his rejoinder matter which may show the award to be void in law (/). If in del)t on bond conditioned to perform an award the (b) Addison v. Gray, 2 Wils. Lutrr. 525. 293 ; Fox y. Smith. 2 Wils. 267. (c) Genne v. Tinker, 3 Lev. 24; (c) Oldfield y. AVilmer, 1 Leon. Com. Dig. Plead. F. 15. 140, 304, S. 0. Owen, 153 ; Pit (/) Jeffrey v. Guy, Yely. 78. y. Wardal, Godb, 164; Bac. Ab. (q) Baily y. Taylor, Yely. 24. Arb. G. h) 11 East, ISS. ((/) Com. Dig. Plead. F. 15 ; (/) Vcalo y. Warner, 1 Saund. Bac. Ab. i^-b. G. ; Kindy. Carter, 326, b. n. 1, b. 1 Sid. 290 ; Strike y. Benstey, 1 rification. 522 THE AWARD IN ACTION. Part III. defendant in his plea set out part only of the award, and ""•'"• '^•3- aver performance ; and the award as set out be bad, and the plaintiff in his replication set out the rest of the award, it is a question whether he ought to conclude it with a verifica- tion, or to the country. In the learned note to the case cited below, the opinion is expressed, that the proper conclusion should be to the country, on the ground that as the use of concluding with an averment is to give the opposite party an opportunity of traversing the new matter alleged, that did not apply here, as the defendant having, by pleading per- formance, admitted the validity of the award, could not, without being guilty of a departure, traverse the statements in the replication which show the award to be good (/«). Yet the award might not be correctly stated. To debt on bond conditioned to perform an award, the defendant pleaded an award and a tender pursuant to it ; the plaintiff replied, setting forth matter showing the award good, and traversing the tender, concluding to the country ; the court was divided as to the validity of the replication ; one part holding it ought to have concluded with a verifica- tion, and so permitted the defendant to traverse the allega- tions in it ; the other saying that the defendant by pleading performance had barred himself from traversing matter which went to support the validity of the award {I). SECTION IIL THE EFFECT OF AN AWARD AS A PLEA. When Though before the new rules of pleading an award might award must ggj^g^.^j|y have been given in evidence under the general issue in an action on the original demand, it was frequently advisable to plead it in order to compel the plaintiff in his replication to take issue on some particular part of the plea? {k) Veale v. Warner, 1 Saund. (l) Seal t. Crowe, 3 Lev. 164. 326, b. n. 1. PLEA OF AN AWARD. 523 and thereby admit the residue, or to reply specially. Now, Part hi. however, since the Reg. Gen. H. T. 4 "Will. IV., an award ch. iii.s.3. must be j)leadcd specially as a defence, when it operates as a discharge of the right to sue {m). In very old times, during which it was considered that When plea when the submission was. not under seal, no action could be witiiout maintained on an award directino; the doing: anything: but '^^^'■'^'-'"*°^ ® o J o perfoim- the payment of money, it was laid down that as the plaintiff ance good, had no means of compelling performance, such an award was no bar to an action for the original matters in dispute, until the defendant had performed what the award di- rected (/^). But since it has been decided that assumpsit lies on the When new award under such a submission, it has been held that when- J^^l i^^' ever the award gives a new duty in lieu of the former, or satisfaction awards any collateral matter in satisfaction of the debt or claim. grievance, it may be pleaded in bar without any averment of performance (o). In the following case a somewhat peculiar distinction was taken. In answer to an action of assumpsit for not deliver- ing some hops pm-suant to a contract, it was held that an award of mutual releases alone on a reference of all matters in difference could not be pleaded in bar without averring that the defendant had executed a release. A statement that he was always ready to execute was not considered sufficient, for the release, it was said, created no new duty in satisfaction of the claim {p). According to the old cases the award only extinguishes Old rule, the original claim sub modo ; for it is said that if the time tJnguisTe'a of performance be past before the action is brought, the sub mod o. award cannot be pleaded in bar without showing per- formance, though the plaintiff has a remedy by action on the award ; as for instance, if the award be to pay money or to execute a bond at a day past, the defendant ought to show (m) 2 Chitt. PI. 146, notes, Gtli 69, S. C. 1 Lord Ea^-m. 247; ed.; Allen V. Milner, 2C. &J. 47; Purslow v. Bailey, 1 8alk. 76, 3 CHtt. PL 793, notes, 6th ed. S. C. 6 Mod. 221 ; 2 Lord Pa^Tn. {n) Rolle Ab. Arb. X. 1, p. 1039; Allen v. Harris, 1 Lord 266. llaym. 122 ; Bac. Ab. Arb. G. (o) Gascoync v. Edwards, 1 Y. (p) Freeman v. Bernard, 1 Salk. & J. 19 ; Crofts v. Harris, Carth. 69, S. C. 1 Ld. Eaym. 247 ; Clap- 187 ; Freeman v. Bernard, 1 Salk. cott v. Da-\^% 4 Ld. Eaj-m. 611. 524 THE AWARD IN ACTION, Tart III. CH. III. S.3. Modern rule iis to pleading peiform- aiu-e. A v/ard negativing plaintiff's claim. that lie lias paid the money or given the bond, unless, indeed, the plaintiff is the cause of the award not being performed, as if the defendant tender the money at the day and the plaintiff refuse it (q). But it is apprehended that the courts would now hold, that the award either does not extinguish the original claim, or extinguishes it altogether. The modern doctrine seems to be this : — If an action be brought for a debt, whether the form be debt or assumpsit, an award respecting the claim, ascertain- ing the amount of the debt, and directing payment, cannot be pleaded in bar to the action without alleging j)erform- ance ; for the money until paid is due in respect of the original debt : as for instance, if the claim be for tolls the sum awarded is due for tolls still. But if the claim be of a different nature, as, for example, to have goods delivered, and the award direct payment of money in satisfaction of the demand, the right to have the goods seems to be gone, and the only right remaining is the substituted right to have the money awarded. So, if the demand be for a debt, and the award direct not payment in money, but payment in a collateral way, as by delivery of goods or performance of work, it seems the right to have payment in money is ex- tinguished. In like manner, if the claim be for unliqui- dated damages, an award of a sum certain in satisfaction is, it is apprehended, a good bar without alleging perform- ance (r). By a deed the defendant was to pay the jDlaintiff 6800^., of which 4800/. was to be subject to reduction in certain events, and it was also agreed, that if any difference should arise respecting the deductions, it should be referred to an arbitrator to award what amount, not exceeding 4800(?., should be deducted. The arbitrator awarded that the whole 4800/. should be deducted. To covenant by the plaintiff on the deed for the 6800/., a plea of the award was held a good bar as to 4800/. (s). {q) Com. Dig. Accord. D. 2, 3; Eolle Ab. Alb. Z. 267 ; Bac. Ab. Arb. Gr. ; Dighton v. Wbiting, 1 Lutw. 51 ; Linch. v. Dacy, 1 Kcb. 848 ; Hare v. George, Cro. Eliz. 66; Clapcott v. Davy, 1 Lord Eaym. 611. (r) Allen v. Milner, 2 C. & J. 47. (s) Parkes v. Smitb, 15 Q. B. 297. PLEA OF AN AWARD. 525 In all actions where accord and satisfaction is a good Part III. defence, an award may bo pleaded in bar (t). ^"' "'■^' ^' To an action of trespass a defendant may sometimes plead ^^^^^JjJ.g an award made on a snbmission between the plaintiff and a accord and stranger. An award between A. and B. for a trespass done a^bar!^*^*''"'^ by C.'s cattle, when in the possession of A., is a good bar to wi,en an an action by B. against C. for the same trespass (u). So, to ^^ '^jg^j^y an action of trespass the defendant may plead that the tres- by a stran- pass was committed by himself and another, and that the ^^^* matter was afterwards submitted to arbitration by the plain- tiff, the defendant, and the other trespasser, and determined by an award (.r). If a man pay money on a void award, and it be accepted, P'^y'^.^jit on \< it may be pleaded as an accord and satisfaction (y). award. An award which does not extend to the whole of the thing Award as demanded, is not a good plea to an action on the demand (z). demand. To an action on a bond for money, a plea that after the Plea of money became due the plaintiff and the defendant, by parol, parol sub- submitted to an award ; that the arbitrator aw^arded the '"issiou no defendant to pay the plaintiff a certain sum, and that he boud. tendered the sum, was held bad on demurrer, the debt being due by specialty (a). If a cause be referred after issue ioined, and the plaintiff Pleading 1-11 •!/» 1- a^ar'^ to nevertheless proceed with the action, and after an award in further the defendant's favour, take it down to trial, the award may ^=^'"^'^' ■ ' J nance of be pleaded as a j)lea to the further maintenance of the the action. action ; formerly it was by way of plea puis darreign con- tinuance. It is apprehended, to have the benefit of the award, the defendant must so i)lead it, for it seems to have been inadmissible in evidence even before the new rules of pleading {d). A replication in replevin justifying a distress under a power Replication to distrain given by an award, is a departure from an avowry ^^^ "'^* relying on the common law right to distrain for rent service (c). {t) Com. Dig. Accord. D. 1; Eaym. 611 ; Farrer v. Bates, Al. Blake's case, 6 Eep. 43, b, ; Bac. 4 ; Bac. Ab. Arb. G. Ab. Arb. G. (a) Luddington v. "V^Tiite, Sty. (») Com. Dig. Accord. D. 1; 350. EoUe Ab. Arb. B. 1, p. 268. (b) Lowes v. Kci-mode, 8 Taunt. (x) Thomlinson v. ^ii'riskin, 1 146 ; Storey v. Bloxliam, 2 Esp. Com. Eep. 328 ; Bac. Ab. i\jib. G. 503. () ; or that the two arbitrators made their award without exercising their own judgment, but according to the opinion of a thii'd person, by whose decision they had beforehand agreed to be bound (q). Nor can he show on such an issue that the award has been set aside, for he ought to have pleaded the fact (r). III. Misconduct or mistake of arbitrator not j)lcadahk.'] — Misconduct To an action of debt on bond for not performing an award, to/,^pt ^^" or to an action on the aAvard itself, the defendant cannot pleadable. [1) Gisborne v. Hart, 5 M. & W. & W. 822 ; Ai-niitage v. Coates, 4 50 ; Perry v. MitclieU. 2 D. & L. Ex. 641 ; Linsey y. Ashton, Godb. 452. 255. (m) Wade v. Dowling, 4 E. & ip) Adcockv. Wood, 6 Ex. 814. B. 44. {q) Whituiore V. Siiiitb, in error, • («) Harrison v. Creswick, 13 C. 7 H. & N. 509, S. C. 31 L. J. Ex. B. 399 ; Eoberts v. Eborliardt, 27 107, reversing tbc jucbnent of the L. J. C. P. 70, S. C. 3 C. B. N. S. Exchequer, reported 5 H. & N. 482 ; King v. Bowen, 8 M. & W. 824, S. C. 29 L. J. Ex. 402. G25 ; Elsom v. Eolfe, 2 Smith, (?•) Eoper v. Levi, 21 L. J. Ex. 459. 28. (o) Dresser v. Stausfield, 14 M. 530 THE AWARD IN ACTION. Part ITT. plead collusion or other misconduct of the arbitrator in cTi. III. s. . g^yQ^j^j^(3e Qf i}^Q awRTd (5). In the case of Veale v. Warner (f), the very learned re- porter Saunders, mentioning that he was reprehended for pleading so subtlelj as to trick the plaintiff, excuses his conduct by alleging that it was a case of very great hard- ship on the defendant, and that afterwards the defendant had relief in the Exchequer against the arbitration bond on the ground of bad practice of the plaintiff with the arbi- trator. Mr. Serjeant Williams, treating of a plea of collu- sion of the arbitrator, in his note on the above case says, " As such a plea would in the principal case have been supported by the facts, it may be pronounced almost with absolute certainty that so able a lawyer as the reporter is known to have been would have stated the facts as a defence to the action, and not have had recourse to the unworthy trick for which he was so justly censured, if the plea could have been supported in point of law." And he adds, " Tliere seems to be no case or dictum where a plea of this sort has been held to be ]3leadable, nor is a j^recedent of such a plea to be found in any of the books of entries" (u). A plea that the arbitrator refused the defendant reason- able time to bring forward his witnesses, though he had several material witnesses to examine, was held bad on demurrer, as imputing misconduct {cc). So, also, that he made his award without hearing the defendant or his wit- nesses (y). In this latter case. Lord Ellenborough, C. J., said, " How can the injustice of the arbitrator be pleaded against one of the parties without at least implicating him in it ? " If the observations of Mr. Serjeant Williams on Arbitrator the case of Veak V. Warner (z), previously cited, are good wi'th'^^art ^^^' ^^^^ collusion of a party would not render the matter more pleadable, for it is distinctly stated in that case that the defendant obtained relief against the bond in the (s) WMtmore v. Smith, 31 L (u) Veale v. "Warner, 1 Saund. J. Ex. 107, S. C. 7 H. & N. 509 ; 327, a. n. 3. Wills V. Maccarmick, 2 Wils. (x) Grazebrook v. Davis, 5 B. 148; Brazier V. Bryant, 10 Moore, & C. 534. 587 ; Chicot v. Lequesne, 2 Ves. {y) Braddick v. Thompson, 8 Sr. 315. East, 344. {f) 1 Saund. 327, a. n. 3. (2) 1 Saund. 237, a. n. 3. PLEADING TO DEFEAT AN AWARD. 531 Exchequer on the ground of the plaintiff's bad practice Part hi. with the arbitrator («). cn^uuB^ AVlierc the award directed an executrix to pay a sum of money, a plea by her that there was no admission or evi- dence of assets before the arbitrator, was held ill on general demurrer, as imputing misconduct to the arbitrator ; for directing a personal representative who had no assets to pay the debts of the deceased would be unjust (b). The mistake of an arbitrator cannot be pleaded in bar, any Mistake of more than his wilful misconduct (c). canuorbe pleaded. IV. Pleading j^erformance of the award.'] — In debt on bond Plea must for non-performance of an award, the defendant cannot plead award pei-- generally that he has performed it, but he must show the formed. award, and how he has performed it (cl). The plea should state a performance of every part of the ^lust aver award for which the defendant is liable, or it will be bad in forman^e!^ law. Where in debt on bond conditioned that the defendant and two others should perform an award, the defendant pleaded an award that he and each of the others should pay 20.5. each to the plaintiff, and that he had paid the 20s., but said nothing as to the sums to be paid by the other two, which he ought to have done, inasmuch as he was answer- able for the whole money, the plea was decided to be in- sufficient {e). Tender of rent awarded to be paid must be pleaded to ^'^a of ten- 1111 />i "^r of rent have been made on the land, and at the last hour of the awarded, appointed day {/). When an award directs a party to pay the rent mentioned Setting out in a certain indenture, in pleading performance he need not referred to set forth the indenture, but it will be sufficient to refer to it '° a^^'^^''^- generally. But if he be ordered by the award to pay it in such manner and at such times as is expressed in the inden- ture, then he must set the indenture out at length. A (rt) Dyer v. Dawson, cited in v. Durant, 2 B. & Ad. 925. Hemingv. Swinnerton, 1 Coop. C. {d) Anon. F. Moore, 3 pi. 9. C. 420, notes. (e) Genne v. Tinker, 3 Lev. 24 ; {h) Eiddell v. Sntton, 5 Bing. Veale v. Warner, 1 Saund. 324, a. 200, S. C. 2 M. & P. 345. 1, 3. (c) Hall & Hinds, In re, 2 M. & (/) Fm-ser v. Prowd, Cro. Jac. Gr. 847, see note p. 852 ; Johnson 423. 5e32 THE AWARD IN ACTION. Tart III. similar rule is applicable to an award directing payment of ""• "^- ^' ^' money bequeathed by a will {(j). PieaofSta- V. Other pleadings to defeat the award.'] — In debt on an nidations'" ^ward Under the hand and seal of the arbitrator, a jilea that the cause of action did not accrue within six years was for- merly held bad, since the Statute of Limitations, 1 James I. c. 16, s. 3, did not apply to awards under hand and seal, which were said to be quasi specialties, or, it is presumed, to any awards at all (//). Now, however, the plea would be good, since by the statute 3 & 4 W. IV. c. 42, s. 3, " all actions of debt upon any award, where the submission is not by specialty," shall be commenced and sued within three years after the end of the session in which the Act passed, or within six years after the cause of such action, but not after. Plea of re- -^ P^ea that the defendant revoked the authority of the vocation by arbitrator before the award was made, is a ffood answer to will of . ' . ? . party. any claim on the award, when the submission is one that cannot be made a rule of court, and so not within the opera- tion of the stat. 3 & 4 W. III. c. 42, s. 39, which prohibits revocation in such cases {{). By mar- The marriage of a female party to the submission pending riage of fe- j^^q reference may be pleaded as a revocation of the arbi- male party. . -^ ■■- trator's authority {k). By tank- But the bankruptcy or insolvency of a party before the ruptcy or award is executed cannot be pleaded as a revocation (I). insolvency, i • i though bankruptcy and insolvency may sometimes bar the claim on the award (m). Plea of fo- Ii^i t^ebt on bond, where the award was to pay money by reign at- r^ particular day, a plea that a foreign attachment in London issued the same day the money was payable, and that by virtue of it the money awarded was attached in the defend- ant's hands the day after, was held bad, because the penalty (r/) Anon. 1 Vent. 87 ; Hagh. v. (A') Chamley v. Winstanley, 5 Cliaclwick, 2 Keb. 667. East, 266. See P. II. Ch. 3, s. 3, (/i) Hodsden v. Harridge, 2 d. 6, p. 155. Saund. 61, m., S. 0. 2 Keb. 462. {I) See P. II. Ch. 3, s. 3, d. 4, See Bac. Ab. Arb. 228, 5 ed. contra. p. 153. {i) Marsb v. Bulteel, 5 B. & A. {m) See P. III. Cli. 1, d. 7, p. 507. • 487. PLEADING TO DEFEAT AN AWARD. 533 was due when tlie money was not paid by tlie day. But Paut hi. Holt, C. J. , said the plea would have been a good plea to ""• "^- ^- ^- an action of debt on the award, or to an action on the bond, if the attachment had been executed before the penalty had been incurred, but not to an action of debt on the bond after breacli {71). An agreement not under seal to waive and abandon tlie Of waiver award cannot be pleaded in answer to an action on the award, arbitration bond. The only remedy is by cross action against the plaintiff for suing on the bond in breach of the agreement (0). But where the declaration stated that by deed between the I'arol ac- parties it was agreed that it should be referred to arbitra- tisiaction, tion what sum should be paid the plaintiff by the defendant, ^^9^'^^ ^J''^- •^ . . mission by and that it was awarded that a certain sum should be paid deed. by instalments, and that the defendant had only paid part ; a plea that after breach of the award by non-payment of the first instalments it was agreed that the defendant should desist from doing a certain act, and pay a less sum at different dates in lieu of the sum awarded, and that he had paid such less sum, and that the plaintiff had accepted it in satisfaction, was held good ; as the deed of submission was merely inducement, and the action was on the award, and that therefore an accord and satisfaction not under seal was good (2)). A plea that the award was not made ready to be delivered Award uot within the time limited is said to be a good plea, though deUv^ered. ^ probably, in most cases, it would now be considered open to special demurrer as an augumentative plea of no award ((/). Where the submission contains no limit as to time, a plea Not made to an action on the award, that the arbitrators did not make their award within a reasonable time, is bad (r). time. To a plea of an award-, the plaintiff replied that the sub- Replication ject-matter of his action was not included in the reference ; covered by thouo'h the submission was of all matters in difference, and ^" '^""'^ , ^ ' pleaded. ()*) Ingram y. Bernard, 1 Lord {p) Smith y. Trowsdalc, 3 E. & Eaym. 636. See Eobbins v. B. S3. Standard, Sid. 327. See CoppeU (q) See P. HI. Cli. 3, s. 4, d. 2, y. Smith, 4 T. E. 312. p. 529. (0) Braddick v. Thompson, 8 (r) Cm-tis v. Potts, 3 M. «& S. East, 344. 145. within reasonable 534 THE AWARD IN ACTION. Paut III. the cause of action existed at the time of the submission, the C H. Ill, s. 5. plaintiff was allowed to show it was not referred {s). Deuiuner If the plaintiff set out an award bad on its face as stated stating bad ^^ the pleadings, the defendant should demur {t). award. SECTION V. EFFECT OF AN AWARD IN EVIDENCE. Execution i. Proof of the submission and award.'] — In debt on an sion by all award the submission of all the parties, if traversed, must be parties proved. If the submission be by agreement in writing, bond, proved. Or deed, evidence must be given by the plaintiff of the exe- cutioli of the instrument by himself and by every party to it, though they are not parties to the action {u). The like necessity is imposed on a defendant who relies on an award as a defence. As in the case of contracts for other purposes, the execution must be proved by the attesting witness, if there be one, unless his absence be sufficiently accounted for (x). Euie of A submission, in writing, and attested, is not sufficiently evkLnce of P^o^^d by evidence of a rule making the agreement a rule of submission court uudcr the stat. 9 & 10 W. III., c. 15 ; for the character ment. of ^hc instrument is not changed by being made a rule of court for the particular purpose of summary enforcement. As it is a contract deriving its force from the consent of the parties, and not from the rule, it ought to be proved like any other contract (y). But evi- But a submission by a judge's order is properly evidenced submis°sion ^^ ^^^'^ ^'^^^® ^^ court ; for the judge's order is itself a judicial by judge's act, and when made a rule is not altered in character, only in form, and the submission becomes a submission by rule of court just as much as if it had originally been so without a judge's order (z). (s) Eavee v. Farmer, 4 T. E. 208 ; Brazier v. Jones, 8 B. & C. 146. 124 ; Kingston v. Phelps, 1 Peake, (i^) Gisborne v. Hart, 5 M. & N. P. 299. "W. 50 ; Cargey v. Aitclieson, 2 B. {x) Sjiooner v. Payne, 4 C. B. & C. 170; Eisher v. Pimbley, 11 328, S. 0. 16 L. J. C. P. 225. East, 188. (,/) Berney v. Bead, 7 Q. B. 79. (m) Ferrer v. Oven, 7 B. & C. (z) Berney v. Bead, 7 Q. B. 79 ; 427; Antram v. Chace, 15 East, Still v. Halford, 4 Camp. 17. AN AWARD AS EVIDENCE. 535 An award ordered the defendant to sign a memorandum, Pakt hi. by wliicli he undertook not to pirate the i)laintiff'« inveu- c"-i" «-5. tious ; proof that he had signed a memorandum in terms I'erfoim- accordmg with the directions of the award, was held sufficient .leace of evidence of his having submitted to the arbitration («). submission. The recital in the award that the two arbitrators liad ap- Evidence of pointed a third to act with them pm'suant to the submission, u/ent of Avas held no evidence of the appointment of the third. Nor |''"|''' ^'''^^' could i^roof of the fact of his having acted with the other arbitrators in the course of the arbitration, and of his having signed the award, supply the proof of a formal appointment, since tlie mere suffering the third person to sit along with them and to sign the award would not be sufficient to vest in him any authority {b). A statement made by a plaintiff that he had before sub- Admission mitted his claim in the action to arbitration, and that the ^ arbitrator had awarded against him, is evidence against him of the submission and award (c). On a submission by rule of com't the production of the Prima f-M-ie rule of court and award (with proof of the execution of the ^^ikr*^^ " latter) is prima facie evidence in assumpsit on the award award. on the part of the plaintiff, and sustains the declaration, unless the validity of the award be imj)eached by evidence dehors on the part of the defendant {d). An award purporting to be made by three but signed by two only of the arbitrators, was held to support an averment alleging it made by the two (c). On an indictment for non-repair of a road, an award under ^yben no- XI Ai.1'1 ij.1 •• tices under an Inclosure Act, which empowered the commissioners, on inciosure giving certain notices to the parties to be affected, to adjudge ■^°*' Pj"*^" to which parish particular roads should belong, was tendered given. in evidence by the defendant parish to show that the road had been awarded to be in another parish ; but as there was evidence of repair and. other admissions by the defendants subsequent to the award, the court refused to receive the award without proof of the notices, since the usage contrary (a) Stviart V. Nicliolson, 3 Bing. 486. N. C. 11 3. {d ) Gisborne v. Hai t, 5 M. & W. (h) Still V. Halford, 4 Camp. 50. 17. (e) T\Tiitc T. Sharp, 12 M. & W. (c) Mui-ray y. Gregory, 5 Ex. 712. 536 THE AWAIID IN ACTION. Part III. to the award rebutted the prima facie presumption that all OH. Ill, s. 5. ^]j(3 proper steps had been taken (/). Order of Where an award under an Inclosure Act, after reciting the support *° consent and concurrence of two justices (necessary by the award pre- Act) stopped up a footpath, the court presumed the existence of the justices' order, though none could be found, the subse- quent enjoyment not being inconsistent with the award (ctrnent p . . ... of party. secutor of the indictment, was indebted to him in a certain sum ; the award of an arbitrator, to whom the action for the supiDosed debt had been referred, directing a verdict for the defendant, was held not to be admissible in evidence for the crown on the trial of the indictment ; on the ground that the decision of the arbitrator in respect of the action w'as no more than a declaration of his opinion, and that there was no instance of such a declaration of opinion being received as evidence of a fact against the ftarty to be affected by the proof of it, in any criminal case (r). III. Effect of an award as evidence as to strangers.~\ — It is Award no laid down as a universal rule, that it is only as regards the against parties to the submission, or those claiming under them, strangers. that an award has any force at all. No instance, it is said, can be proved in which strangers have been held to be in any way affected in their rights by an award, as evidence either of right or of rei:)utation {s). Hence, in an ejectment on the several demises of a mort- Not gagor and mortgagee (the lessor of the j)laintiff at the trial risht relying on the title of the mortgagee), the defendant was not ^^'"iist allowed to give in evidence an award in his favour respecting {p) Pearson v. Henry, o T. E. G. Q. B. 1028. See 2 Pitt Taylor on {q) AVorthingtou v. Barlow, 7 Evidence, 1114. T. E. 453. (a) Evans v. Eecs, 10 A. «& E. (r) E. v. Eontaiucnioreau, 11 Ijl. 538 THE AWARD IN ACTION. Part III. tliG Same land, made on a submission between himself and ""•"'•'^•^- the mortgagor subsequent to the mortgage ; although under that award the defendant had obtained and kept possession of the land, and the mortgagee had been present at one meeting in the reference, not however taking any part in it (t). Award for An award had been made in favour of the plaintiff's evMence^" tenant in an action brought by him for an injury to the for land- leased premises against the defendant's landlord. In an action by the plaintiff against the defendant for the injury to the reversion, the court, affirming Evans y. Rees (u), held that the award was inadmissible for the plaintiff, either as evi- dence of reputation, or on the ground of privity of interest, as the award, had it been the other way, would not have been evidence against the plaintiff, and it could not therefore when in her favom' be used for her {x). Award iu a We havc just sccu that the award in a cause, deciding evidence ^^^^ ^^® plaintiff has no claim, cannot be given in evidence for the })y the crowii agaiust the plaintiff on an indictment of the against latter for perjury, for alleging in an affidavit that the party. defendant was indebted to him, although the defendant be the prosecutor of the 'indictment (y). Award not Upou an indictment for non-repair of a highway, which reputetion ^^ ^^^ alleged the defendant was bound to repair ratioue against tenm'a3, an award on the question of liability, made under a " ' submission by a former tenant for years of the land, was held not receivable in evidence as an adjudication on the point, since an award only binds the parties to the sub- mission. Neither was it considered admissible as evidence of reputation, for evidence of the statements of witnesses before the arbitrator, even if. they were deceased, would not have been admissible as having been made " post litem motam," and the arbitrator's opinion, formed on those state- ments, and expressed in his award, could not be entitled to more credit {z). The latter objection, ii]j;leed, applies equally to the verdict of a jury ; so the com'ts, remarking that the {t) Doe d. Smitli v. Webber, 1 B. 44. A. & E. 119. {y) E. V. Fontainemoreau, II (n) 10 A. & E. 151. Q. B. 1028. See above, p. 537. (:>■) LadyWenman V.Mackenzie, (z) E. v. Cotton, 3 Camp. 444. o E. & B. 447, S. C. 25 L. J. Q. AN AWARD AS EVIDENCE. 539 rule of a verdict being evidence of reputation, stands more Part hi. upon authority tlian i)rinciple, refuse to extend it further ; ""• "i- »• 5- and thoug-h for many purposes an award is equivalent to a verdict, yet they will not consider it so for this ; nor on an issue respecting the boundary between two parishes in adjoining counties, will they admit as evidence of re- putation an award inter alios professing to set out the boundary («). In some particular instances an award may be available Award evi- in evidence for a person who is not a party to the submis- gt'^an^ger'^ sion. In an action for false imprisonment against a servant of the East India Company, the defendant was allowed to give in evidence, in mitigation of damages under the general issue, a release given by the plaintiff to the East India Com- pany, in pm'suance of an award between the plaintiff and the company, in which the plaintiff was awarded a large com- pensation for injuries done him by the company's servants, l)articularly by the defendant ; the matters in difference in terms comprehending the claim in the action ((5). An award respecting the right to a chattel deposited with Award evi- the arbitrator, precludes the party against whom the award arbitrator, is made from maintaining trover against the arbitrator for refusing to deliver up the chattel to him, since the award deciding against him is evidence that the withholding the chattel is no unlawful conversion (c). An award acted on may sometimes be admissible as ^^^^.rd "^ acted on, evidence between strangers. evidence In a case at Nisi Prius before Lord Tenterden, C. J. , an !f!!l''i"° award of the time of Henry VIII. between the Corporation Award and University of Cambrido-e, reo-ulatino- the amount of toll inspecting *' o 7 o o ^ ^ right to payable to the Corporation, was held inadmissible as evi- toils. dence of reputation respecting the right to tolls in an action between the lessee of the Corporation and a third party, there being no proof that it had been acted on ; yet a deed respecting the same question and founded on the award was admitted. In the same case, another award of the same {a) Evans t. Eecs, 10 A. & E. 616. 151. (c) Gunton y. Niu'sc, o Moore, {(>) ShoUing V. Farmer, 1 Stra. 259. 540 THE AWARD IN ACTION. Part III. reign, by wliicli certain parties were discharged of toll to the cii. III. s. 5. Corporation of Cambridge in consideration of a specified annual payment was admitted in evidence, the plaintiff un- dertaking to prove payment of the composition, but on his failing to do so the evidence of tlie latter award also was struck out {cl). Stranger Where a tenant under a sixty years' lease, having been i^nlward.°° scrvcd with a notice of an award made between two parties who had claimed rights (paramount to that of his lease) to enter and possess the lands to recover rent-charges in arrear, attorned and paid rent to the one to whose claim the award gave priority ; it was held on proof of these facts that he became tenant to iho, latter from jqqx to year (e). On an issue respecting the title to some growing crops seized by a creditor of the tenant of the land, an award between the landlord and tenant directing the tenancy to cease, and the tenant to deliver up possession, was held admissible in evidence, though of itself it could not transfer the property in the crops to the landlord {/). Award The right to a farm being in dispute, the parties agreed to estoppel' ^" ^® bound by the decision of an arbitrator, and he awarded against the one who had previously received rent as landlord from the tenant. Notice of the award was given to the tenant, and with the sanction of the losing claimant the tenant was directed in future to pay his rent to the success- ful party as his landlord. Afterwards, the former landlord being dissatisfied with the award, distrained on the tenant for rent. It was held in an action of replevin, that though the tenant was estopped from saying that his landlord had no title, the tenant here was at liberty to prove these circum- stances in evidence, to show that his landlord's title had determined, and that the loser was estopped from setting up his title of landlord, having himself induced the tenant to pay rent to another person {g). Evidence jy. Impeaching by evidence award put in evidence.'] — When award. an award is tendered in evidence the opposite party may (d) Brett v. Beales, 1 Moo. & (/) Tliorpo v. Eyre, 1 A. & E. M. 416. 926. (e) Doe d. Chawner v. Boulter, ((/) Downs v. Cooper, 2 Q. B. 6 A. i& E. 675. 256. AN AWARD AS EVIDENCE. 541 offer evidence in reply to impeach its validity, and so doing Part III. away with its binding effect, allow proof to he given of tlie ch- "i- «• »'»■ matters professed to he determined by it (Jt). Thus, an Proving award on a reference of all matters in difference being awarded"^ offered in evidence by the defendant, the plaintiff is at ""• liberty to prove, tliat on some of the matters referred the arbitrator has not awarded {i). To illustrate this principle further, it may be observed, issues un- that though a submission by rule of court referring an action, ^*^' ^ " and an award determining the action generally is prima facie e\'idence of a good award, yet evidence may be offered by a defendant under a plea of "no award," to show that there are several issues in the action referred, which the award has not determined, consequently that it is not final, and therefore of no effect (Jt). Tlie court will grant a new trial, if the judge at Nisi Showing Prius reject evidence offered to show that the subject matter ™ftii?n ^-^ of the action to which the award is offered as an answer, ference. was not included in the reference or determined by the award (J). In an old case, however, where the defendant in mitigation Evidence to of damages put in evidence a release by the plaintiff, made a^^^d*^^*^*^ in pursuance of an award on a submission between the plain- tiff and another, the court would not allow the plaintiff to give evidence to contradict the general terms of the award and release, which included the ground of action, and to show that the arbitrators had on certain grounds refused to take into consideration the claim in the action {m). The same principle which prohibits the pleading the mis- Evidence of take or misconduct of the arbitrator precludes the defendant OTmiTuk? from giving evidence on those grounds {n), and in an action of arbi- on an award from going into evidence to unravel the accounts admiss/bie. exhibited to the arbitrator, and so dispute the correctness of his decision {o). {h) Wliiteliead v. Tattersall, 1 (m) Shelling v. Fai-mer, 1 Stra. A. & E. 491. 646. (i) Ingi-am v. Milnes, 8 East, («) "WiUs v. Maccannick, 2 444. • Wils. 148 ; Dyer v. Dawson, cited (A') Dresser y. Stansfield, 14 M. in Heming v. Swinnerton, 1 Coop. & W. 822. C. C. 420, notes. (l) Eavee v. Farmer, 4 T. E. (o) Swinford v. Bum, Gow. N. 146. P. 5. 542 THE AWARD IN ACTION. Part III. The question whether in an action for £246 the defendant OH. in. 3. 5. -^yj^g entitled to a set-off for the like sum of £24G in respect of some silk, having been submitted to the arbitrator, and decided in the negative by the award, the defendant in an action on the award, to which he had pleaded a set-off, proposed to give evidence of a claim for the silk less than £246, and to show that the arbitrator had decided against his claim, simply because he had held himself bound by the words of the submission to decide against the defendant, unless a set-off was j)roved of the exact value of £246 : the court, however, rejected the evidence, holding that in an action on the award the decision of the arbitrator could not be impeached for a mistake (/>). In one instance at Nisi Prius, in an action of assumpsit on the award, the defence relied on was, that the irregular conduct of the umpire in examining one of the parties in the absence of the other vitiated the award. No objection, however, seems to have been made on the part of the plain- tiff to the reception of the evidence or to the nature of the defence {q). Evidence It was Said, in a case decided previou"s to the new rules of obtained by pleading, that if the submission were obtained by fraud, and fraud of r^n actiou were brought on the award, the defendant might plead no submission, and prove the fraud in evidence, which would authorize him to treat it as no submission ; or that he might plead no award, and show that the submission was obtained by fraud (r). But he could not, it seems, under any plea, be permitted to give evidence that the award was made as it was, in consequence of fraudulent conduct of the parties interested (s). Proving no A submissiou provided that if the arbitrator should award under ^ ^^^ ^^^^ defendants, who were executors, should purchase award. the plaintiff an annuity, he should and might award it with a proviso, that in case of a deficiency of assets the sum should abate. The arbitrator awarded the annuity without any proviso. On the general issue in assumpsit on the {p) Jolinson V. Dnrant, 2 B. & 39. Ad. 925. (s) Dyer v. Dawson, cited in {q) Matson v. Trower, Ey. & Hemingv. Swinnerton, 1 Coop. 0. M. 17. C. 420, notes. (?•) Sackott V. Owen, 2 Chitt. AN AWARD AS EVIDENCE. 643 award, before the new rules, the court allowed the de- Part hi. fendants to jirovc a deficiency of assets, holding that the °°- "'• ^- ^- arbitrator ought to have inserted the proviso, and that the defendants ought not to be the worse off for his neglect {t). (0 Crump V. Adnoy, 1 C. & ISI. 355. CHAPTER IV. THE AWAED AS A GEOUND OF PEOCEEDINGS OE DEFENCE IN EQUITY. Part III. In what cases and in wliat manner an award can be ren- CH. IV. s. 1. dered available in equity the present chapter endeavours to Contents of point OUt. chapten ^^ ^^^® ^^^^ section the inquiry is made, when a bill will lie to have specific performance of an award decreed. Tlie second section sets forth the effect of an award as a plea in bar of a bill in equity respecting the matters referred, or of a bill to set the award aside. The third section discusses the more summary modes, in which the assistance of equity to enforce an award may be obtained. SECTION I. EISTFORCING AN AWARD BY BILL IN EQUITY. Whatever I. JVken a bill in equity mill lie.^ — Whatever be the nature sion^^a'bi'n" ^^ ^^® submission, the jurisdiction of equity over the award may lie, seems to attach. Unless an award has been made, the Court of Equity cannot decree specific performance of an agreement, one part of which has been left to be determined by arbitra- tion {a). (rt) Darbeyv.'Wliitaker,4Dre'W. way Company, 11 Nov. 1862, 1 N. 134 ; Tillett v. The Charing Cross E. 8. See ante, P. I. Ch. 3, s. 4, Bridge Company, 26 Beav. 419; d. 3, p. 65. Baker v. The Metropolitan Eail- BILL FOR SrEC'lFlC PERFORJL\NCE. 545 Though tliG submission he by order of Nisi Priiis, wliich Pakt hi. is afterwards made a rule of a court of common law, and so ""• ly^-i- performance cajjahle of being enforced by attacliment from that court, Chancery may still entertain a bill for specific execution of the award {b). Even where the submission is by agreement containing a clause for making it a rule of a court of law under the statute, so that the Court of Chancery has no jurisdiction to set the award aside, yet a bill for specific performance may be filed, when the award is such as equity will execute (■) Bishop v. Webster, 1 Cas. in L. J. Ch. 110. Eq. Ab. 51, pi. 9. (A) Nickels v. Hancock, 7 De (?) Norton v. Mascall, 2 Eep. in G. M. & G. 300. _ Chanc. 304. {i) Bishop V. Bishop, 1 Eep. in BILL FOli Sl'ECUFlC PERFORMANCE. 547 which the dcfen(l;uit had commenced an action of eject- Pakt hi. ment {m). On the same princii)le, it was liekl, on awards by oh-i^-s-^- private submission directing one party to convey an estate or to deliver a lease, and the other to pay a sum of money, that a bill would lie, wlien the lease had been delivered up to enforce performance of the rest of the award (w), and on the other hand, to compel a conveyance, when the defendant had received tlie money, in consideration whereof he was to have conveyed the estate {o). Though an award be not good in strictness of law, yet if there have been an assent, and a part performance, the Court of Chancery has sometimes enforced it {p). In an old case, an award ordered that a party should have certain lands, and that if any doubts arose the arbitrators would exi)lain the same. Long after the award had been executed, and possession of the lands delivered pursuant to it, it was contended that the party only took a life interest under tlie award ; 1)ut the arbitrators having declared that they meant to give him a fee, and tliat the word '' heirs " had been left out of the award by mistake, the court decreed that the plaintiff, the purchaser from the party entitled by the award, should enjoy the land absolutely in fee(^). In another case, where the j)laintitr had paid part, and tendered the rest of the amount awarded due for a mortgage debt, but not within the time specified by the award, and brought a bill to have a re-conveyance of the mortgaged lands pursuant to the award ; the court, as the period fixed for payment had elapsed before the plaintiff had paid the money, decreed that the award was to be dissolved, that the Master, allowing for the money paid, should ascertain what was due to the defendant, and that the defendant, on pay- ment to him of what the Master found due, should re-convey the estate (r). Although a defendant' had to some extent acted on the what not suffick'nt part per- pursuant to it, it was held that there had not been such an I'ormance. award by nominating trustees, and electing to take licences '' CI 7 o part per [m) Poolo V. ripe, 3 Eep. in 2-1, Chanc. 11, 20, {q) Scott v. Wraj-, 1 Eep, in (h) Chnrch v. Eoper, 1 Eep. in Chanc. 45, 85. Chanc. 75, 1-11, (r) Ewes v. Blackwall, Cas. io) HaU V. Hardj', 3 P. W. 187. temp. Finch. 22. (p) Norton v. Mascall, 2 Vern. 648 ENFORCING TDE AWARD IN EQUITY. Part III. acquiescence in tlie award as to justify the court in enforcing oH.iv.s. 1. ^ specific performance against him on that ground, no one api)earing to have been misled by his acts (s). Offtring Where an agreement for the sale of lands, at a 2:)rice to in lieu of ^^6 fixed by arbitration, is secured by a penalty, the court of perform- equity, after the price is determined by the award, will decree a specific performance of the contract, and not compel the purchaser to accept the penalty in discharge of it (t). Proceedings Tlic circumstancc that the Court of King's Bench had law no^ bar granted an attachment against the defendant for non per- to bill. formance of the award, in 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, is no ground to prevent the Court of Chancery decreeing a specific performance (u). Whether Mere lapsc of time has been said to be no bar to the right time a bar. ^^ have the assistance of equity ; and specific performance of an award was decreed in Chancery, though twelve years had elapsed since the award had been made (w). In a recent case, however, it was said that the court will not compel specific performance of an award, unless the parties come as promptly as the nature of the case will permit. There it was referred to arbitrators to settle on what terms the defendant was to take a lease of a mine, of which he had entered into occupation. The award was made in April. The defendant worked the mine until the following December, when he abandoned it finally. After three years and a half the plaintiff filed his bill for a specific performance of the agreement, but the Lord-Chancellor Cranworth held that the delay was a bar to the relief sought. In the same case the defendant objected to the award on the ground of the conduct of the arbitrators, making their award on improper grounds, and executing it separately. It was held that the defendant was bound to take such objections promptly after he knew of them, if he intended to avail him- self of them, but that as the plaintiff had treated them as open to the defendant by entering a new negotiation respect- (s) Nickels v. Hancock, 7 De (u) Wood v. Griffith, 1 Wils. 0. G. M. & G. 300. C. 34, S. C. 1 Swanst. 43. {t) Belcliier v. Eeynolds, 2 Ld. {x) Sweet v. Hole, Cas. temp. Kenyon, Part 2, 87. inch. 384. BILL FOR SPECIFIC PERFORMANCE. 649 ing the lease, the court would examine into their merits (y). Pakt III. Oil a submission by recognizance, an award has some- o"-^v-s-i- times been enforced in equity by scire facias on the recogni- Scire facias / \ on subiriis- 2^^nce (xr). 3i„,^ i^y ,g. We have before seen, that on a voluntary submission, a cognizauce. bill of discovery will not lie in aid of the arbitration, though f„ver°*^?o^' it is otherwise on a compulsory reference («). aid arbi- tiatiou. n. W/ien award invalid or inequitable. '\ — Directions in an pireet'ons award, which are contrary to law, cannot be enforced in law. equity. If the parties agree by parol that the arbitrator shall determine whether a long lease shall be granted of certain premises, and he direct a lease to be made ; though the award be in WTiting, the agreement is within the Statute statute of of Frauds, and specific performance of that part of the award '"^^ ' which awards the lease cannot be enforced {b). Where an award directed, among other things, that the Directing a defendant should enjoy an estate tail in certain lands, but f®'"!'^''"^''^- should do no act to bar the plaintiff's reversion in the same; the court refused to decree the restraining clause of the award, on the ground that Chancery would not decree a perpetuity, and held the defendant's demm'rer as to that part to be good (c). Though equity will not compel the specific j^erformance Unreason- of an a(jreenient it deems unreasonable, it will nevertheless enforce an award, although it may consider it unreasonable ; for the parties give to the act of an arbitrator an authority which cannot be given to their own acts () Broadbent v. The Imperial Gas Company, 7 De G. M. & G. 436, S. C. 26 L. J. Ch. 276, affirmed in H. L. 29 L. J. Ch. 377, S. C. 6 H. L. Ca. 600. {q) Pusey V. Desbouvrie, 3 P. W. 315, per Ld. Talbot, C. ; Far- ringdon v. Chute, 1 Vern. 72. PLEADING AN AWARD IN BAR TO A IsILL. 553 between liimself and the pltiintifl' after an award in bis Part III. favour in relation to that very account ; for that is con- °"- ^^- ^- ^- chisive on all parties till an error is shown in taking the account, or partiality, or improper conduct in the arbi- trator (r). Some discussion has arisen on the question, whctlicr an "'iVlietlicr 11 1 ^ • pii-11 ^'"^ award award made under an agreement, entered into alter the bul ni.ide after has been filed, to refer the matter of the suit to arbitration, ^l'^ 'l'*!^, ' ^ pleadiible. can be set up in bar to the bill by plea put in, in the nature of a plea puis darreign continuance at law. This point was much considered by Lord Eldon in Rowey. Wood{s), and his opinion appears to have been eventually adverse to such a form of proceeding, the effect of which he considered might have been much more effectually obtained by a motion to stay proceedings in the cause. In Dry den v. Robinson (t), the question was again raised, and although in the marginal note it is stated as the opinion of the court that an award made under such circumstances may be pleaded, yet upon reference to the case it will be found that no such decision was come to. After the bill was filed, some of the parties had agreed to refer the subject of the suit, and an award was made ; but as all the parties to the suit were not parties to the submission, although the plaintiff' was a party to it, and as part of the prayer of the bill was for the execu- tion of the trusts of a deed, under which some of the parties to the suit were interested, who were not parties to the sub- mission, a plea of the award was ordered to stand for an answer, with liberty to excei)t (u). The case, therefore, of Dryden v. Robinson {x), it is said, can hardly be considered as an authority, especially in the face of the decision of Rowe v. Wood {if) y confirmed as the latter was by the House of Lords on appeal (z). It should, however, be observed, that in Rowe \. Wood {a), there was only an agree- ment pleaded, some of the terms of which were to be settled (r) Tittenson v. Peat, 3 Atk. (.r) 2 S. & S. 529. 529. ly) 1 J. & W. on appeal, 2 (s) IJ. & W. 315, S. C. 2 BUgh. Bligh, P. C. 595. P. C. 595 ; See 1 Dimioll's Clianc. {z) 1 DanioU's Chanc. Pract. by Pract. by Headlam, 037. Headlam, 637. it) 2 S. & S. 529. (rt) 1 J. & W. 315, 2 Bligli, P. (?t) Dryden v. Eobinson, 2 S. & C. 595. S. 529. 554 ENFOIICING THE AWARD IN EQUITY. Part III. CH. IV. s. 2. Denying by plea and answer cor- ruption charged in bill. Whether plea of award good, cor- ruption denied in answer oulv. Ly arbitration, but there was no averment that any award had been made. If the bill to set aside the award impeach it on the ground of fraud, corruption, or mistake, whether of the arbitrator or of a party, those charges must be denied both by averments in the plea, and by an answer in support of it ; and every other matter stated in the bill as a ground for impeaching the award must be denied in like manner {b). It has often been laid down that to a bill stating corrup- tion of the arbitrator, a plea of the award merely, leaving the charge of corruption untouched, is insufficient (c), and that an award nakedly pleaded is an " exceptio ejusdem rei cujus petitur dissolutio," and is therefore no bar without the denial of the corruption and partiality. Thus, where a bill charged the defendant with fraudulent concealment and deception of the arbitrator, and the de- fendant i)leaded the award alone, and did not put in^ny answer, the court held it impossible that the plea could be allowed, as the fraud was not denied (d). Some doubt has been thrown on the propriety of aver- ments denying the matter charged in the bill being put into the plea, for the Court of Exchequer, in two instances (e), where the bills were filed for the purpose of setting aside awards, charging that they had been obtained corruptly, and pleas were put in, setting up the award, and negativing the charges of corruption, held the pleas to be bad, as not bring- ing the cases to one point, and said the plea should merely set up the award, and not confain averments denying the charge of corruption, but that the answer supporting the pleas should deny those charges. On a subsequent occasion, however, Lord Eldon, C, expressed his disapprobation of the ruling of the Court of Exchequer in those cases (/), saying it was difficult to support those cases, and " that there was hardly one point of equitable proceedings with regard to pleas, which it was not extremely difficult to (h) 1 Daniell's Chanc. Pract. by Headlam, 636, 637; Mitford's Plead, in Chanc. 304, 5tli ed. (r) Evans v. Harris, 2 Ves. & B. 361, 364 ; Evitcher v. Cole, cited in Edmundson v. Hartley, 1 Anst. 90. (d) Gartside v. Gartside, 3 Anst. 735. {c) Pope V. Bish, 1 Anst. 59 ; Edmundson v. Hartlej', 1 Anst. 97. (/) Bayley v. Adams, 6 Yes. 586. PLEADING AN AWARD IN BAR TO A BILL. 555 reconcile to them " (y). It is apprehended, therefore, tliiit Part in. the doctrine previously laid down, as cited from Ld. Redes- ch. iv. s. 2. dale, of the necessity of such averments, is the law at the present day {//.). On a hill to impeach an award and for an account against the arbitrators and the party, a plea l)y the latter of the award as to the account was held good, but the plea by the arbitrators of the submission, as to a discovery of several particulars, and as to relief ng-anint them, was overruled as covering too much, viz. several particulars which might tend to show partiality in their proceedings (i). Tlic answer supporting the plea should sj)ecifically deny Answer the charges in the bill impeaching the award. ^argc^'^^i'u If the defendant swear that the accounts taken by the the bill arbitrators are true accounts, but do not answer to particular caiTy. " concealments and frauds charged in the bill, the court will overrule the plea (k). Where to a bill to set aside an award, on the ground of collusion and want of notice to the plaintiff to attend at the making of the award, the plea stated the arbitration, that the plaintiff had full notice, that an agent from him attended, and that there was a full discussion before the award was made ; and there was also an answer containing averments of the fairness of the transaction ; Lord Kenyon, M.E., held the plea good {(). On a bill to set aside an award, suggesting fraud of the arbitrator, the defendant pleaded the award, and insisted it was a fair award. The court, as the answer of the defendant was very loose, and the submission provided for amending any errors of the arbitrators, directed the plea to stand for an answer, with liberty to except {m). To a bill to open an account for fraud, a jilea of an award Plea of and release was ordered to stand for an answer, with liberty releaser" to except («). (.9) 1 Daniell'b Chanc. Pract. by Vin. Ab. Ai-b. 140, pi. 39. Headlain, 564 ; Bayley v. Adams, {I) Butcber v. Cole, cited in 6 Ves. 580, 598. Edmuudson v. Hartley, 1 Anst. {h) Mitford's Plead, in Chanc. 99. 304, 5th od. ('/») Kampsbirey.YouBg, 2 Atk. (/) Godfiey V. Bercber, Vin. Ab. 154. Arb., 139, pi. 38. {») Burton v. Ellington, 3 Bro. (A-) Soutb Sea Company V. Bnni- C. C. 196. stead, 2 Eq. Cas. Ab. SO, S. C. 3 556 ENFORCING THE AWARD IN EQUITY. Part III. After receiving tlie sum awarded, on a reference of all ^"- IV- s- 3. matters in difference, the plaintiff executed a general release, but afterwards brought a bill, suggesting that the arbitrator had awarded on one matter only, and praying for a general account as to all but that one matter. The defendant pleaded the release, but so informally that the plea was overruled, but the benefit of the plea was reserved to him at the hearing {o). An award made, and a release given pursuant thereto, cannot be pleaded as a defence to a suit by those who are submission, j^q parties to the submission (jo). Award no plea for stranger to SECTION III. Making award in a suit an order of Chancery. Held not neceasary to make award order of court. ENFORCING AN AWARD BY SUMMARY PROCEEDINGS IN EQUITY. I. Whether the award must he made an order of court before erf or cement. '\ — Much discussion has arisen as to whether, when a reference is made by an order of the Court of Chan- cery, in a cause in that court, it is necessary to make the award an order of that court, before an order can be made founded on the arbitrator's dii-ections. In one instance, on a reference of all matters in difference, by an order of the Court of Chancery made in the suit, where the question was raised, and a search was made for prece- dents. Sir John Leach, V.C, relying on the case of Sibley v. Sajfell, a decision of Lord Eldon, C, held, that it was not necessary, that the award should be made an order of court, to justify an application for an order on the defendant to pay the amount awarded {q). A motion that an award should be made a rule of Chan- cery, and that the court would direct payment pursuant to it, was held by Sir Anthony Hart, V.C, to be superfluous as to the former part. For that learned judge was of opinion, (o) Jones v. Bennett, 1 Bro. P. C. 528. {p) Davis V. Eea, Cas. temp. Ymok. 441. {q) Ormond v. KjTincrslcy, 2 S. & b. 15. SUMMARY PROCEEDINGS ON AN AWARD. 657 tliat Avlien an order was made l)y any court, it was not neccs- Tart III. sary to give the court jurisdiction with respect to the award, cR-'y-s^. that cither the submission or tlie award should he made a rule of court, and that when tlie reference was by order of Chancery, the Court of Chancery would lend its aid to enforce the award, without the award itself being made a rule of that court (r). On another occasion, upon a motion by the plaintiff that the defendant should pay the sum awarded, under a refer- ence of all matters by order in the suit, and on a cross motion by the defendant that the award might be set aside, the point being mooted as to the necessity of making the award an order of court. Lord Lyndhm'st, C, said it was not necessary (s). But where there was a reference of the matters in the cause only by order of Chancery, Sir John Leach, M. K, on a petition before him to have money paid out of court pur- suant to the award, though all the parties entitled to the fund were before the court, and though the case of the Marquis of Ormond v. Kynnersley (t), his own decision, was cited as a direct authority, refused to make an order for pay- ment, until the award had been made a rule of court, saying that the court must know judicially what the award was, before it could act upon it {u). Tlie latest case, however, supports the older decisions, for Ld. Langdale, M. K , after reviewing them all in a case where the suit and all matters in difference had been referred to arbitration by an order of court, decided that a motion might be sustained ordering a trustee in whose name money had been paid into the bank to abide the award, to sign and hand over a cheque for the payment of it pursuant to the award, though the latter instrument had not been made an order of court (x). By an order of Chancery made in a suit, all matters in Motion to difference mentioned or referred to in the pleadings in the ^^^^^ (r) Haggctt V. Welsh, 1 Sim. (t) 2 S. & S. 15. 134. {u) Salmon v. Osborn, 3 M. & (s) Tvirner v. Turner, MSS. K. 429. case, cited in Hemingv. Svinncr- (.r) Wood v. Taunton, 11 Eoa- ton, 1 Coop. C. C. 421, notes. van, 449. 558 ENFORCING THE AWARD IN EQUITY. Part III. snit wcrc siiljiiiittecl to arbitration, and it was ordered that OH. IV. s. 3. eitlicr party should he at liberty to ai)])ly to the court to liave the award made an order of court. The defendant gave notice of motion to have the award made an order of coiu"t, and that the plaintiff should pay a sum awarded. It was contended for the plaintiff, that the motion to make the award a rule of court was a motion of course, and that the order for payment of the money could not be made, until after the award had been made a rule of court, and the plaintiff been allowed an opportunity of moving to set it aside. The defendant argued, that the motion was one requiring notice, and could only be met by a cross motion to impeach the award, and the above-mentioned cases were cited. Vice-Chancellor Wigram, after consultation with the registrars, and making inquiry respecting the jiractice, decided, that considering the consequences of making an award an order of court, it was necessary tliat the motion should be a special motion, and that it required notice, but in consequence of the previous uncertainty as to tlie practice, he allowed the plaintiff until the next term to make a cross motion to set aside the award (y). The practice that it requires notice, and should not be an ex parte motion, has been adhered to since (z). Making Awards under ihe statute of William III., according to der^statute ^^'® ^isual practice, must be made orders of court before pro- order of ceedings be taken to enforce them («). . ancery. ^^ ^ rcccnt occasion, a submission under the statute of William and the award were made orders of Chancery by an ex parte application ; notwithstanding which the court set the award aside for irregular conduct of the arbitrator (d). Award can-" It may uot be unimportant to observe that at common a recS^at ^^^ *^^^^ ^^ ^^" mode of proceeding known by which an law. award can be made a matter of record (assed, it was determined in Chancery, oiniecrc'e." after consultation with the judges of the courts of common law, that the award on a submission under the statute was not in the nature of a judgment or decree, for the purpose of being enforced by any other summary process than the process of contempt given by the act ; and that, therefore, as this dies with the person, the remedy under the statute was lost on the death of the party, aud could not be enforced by scire facias against the heir or executor {(/). It may be enforced against the latter by attachment in certain cases (yJ). The steps to be taken (differing from those requisite for awards under orders in a suit) are as follow : — Before any proceedings be commenced to enforce the Practice award, the submission must be made an order of court in award ' the manner pointed out in the next chapter (/). ""^1^'' *''*^ Stilt II tc We have before stated that the usual practice requires, submission that the award nuist be made an order of court before any and award steps can be taken to compel obedience {k). made To obtain the order making the award an order of court, ardors. a notice of motion must be given to the other parties, or ^0^)0^ t|^ counsel must consent on their behalf (J), make At this stage of the proceedings the party may impeach ^^Hr. the award by a cross motion (w«). Cross mo ' tion to aside award. After the submission and award have been made orders of *'°jj*°^^* (p) 9 & 10 W. III. c. 15, s. 1. (A-) 2 Smith, Chanc. Pract. 451, (/) Aiu-iol V. Smith, 1 Tiu-n. & 3rcl eel. ; Harvey v. Shelton, 7 E. 121. Beav. 455. See the preceding {(j) Webster v. Bishop, Prec. in di-vision, p. 558. Chanc. 223, S. C. 2 Vern. 444. (/) 2 Smith, Chanc. Pract. 452, (/?) Joseph V. Webster, 1 Euss. 3rd ed. ; Wilkinson v. Pago, 1 & M. 496. See post, P. III. Ch. Hare, 276. 6, s. 1. {m) Wilkinson v. Page, 1 Hare, (0 See P. in. Ch. 5, s. 2. 276. 600 ENFORCING THE AWARD IN EQUITY. Pakt III. court {)/), a copy of the award sliould be personally served oii.jiv^^j^ on the party liable, and performance demanded, either by Service of the party entitled, or by some one acting under a power of driuandof attorney from him. If obedience be not tlien made to the perform- award, a notice of motion for an order to direct the party to Notice of ^^ ^^^^ which he is awarded to do, within a certain fixed motion for period, sliould be served on the recusant, according to the obey award, practice of the com't {o). Motion may The noticc of motiou may be given for any day in term, term or va- or for a Seal day during the sittings out of term, or by cation. special leave of the court first obtained, authorizing the party to give such notice, for any day in vacation (/j). This leave may be obtained on an ex parte application. Order to Qu the day mentioned in the notice, or soon after, withinlipe. according to the practice of the court (q), in case the party cified time, served do not appear, the court will, on affidavit of the service of the copy of the award, of the demand of the per- formance, of the non-performance, and of the service of the notice of motion, make an order directing the party to do what the award directs within a specified time (r). Personal When the above-mentioned order has been obtained, a th7order ^^i^^ ^^ ^^ must bc scrvcd personally on the recusant. Notice of If ^^6 still fail to obey, notice of motion for an order on motion to jj^j^ ^q perform what the award directs within four days after obey or be • t n /-% committed, servicc thereof, or to stand committed to the Queen s prison, must be served on him. Order to Qu affidavit of the service of the first order, of the stand com- demand, of the disobedience, and of the service of the last- mitted. mentioned notice of motion, an order will be drawn up in accordance with such notice. Order abso- Upon affidavit of personal service of such last-mentioned committal. Order, of a fresh demand and non-payment, the applicant is entitled to an order, upon a motion as of course, that the recusant do stand committed, until he shall have done the act which the award requires him to do. This order is (n) See Appendix for tlie Ta- Practice, pp. 45, 59. bular Statement of the steps (jj) 2 Daniell's Chanc. Pract. required for the summary enforce- by Headlam, 1453, 1454. ment of awards in equity. ( ^ of reference paper to move to make the submission a rule of court. This is a motion of course, and absolute in the first instance. No notice need be given to the other side, though very recently after the statute of William III. passed, it seems to have been thought requisite (s) ; for it is a mere matter of form, as it is compulsory on the court to make it a rule of court on the affidavit being produced. In term or It may be made a rule of court in vacation as well as in vacation. ^Q^m time, for the wording of the statute is construed with reference to the ordinary practice of the courts. On pro- duction of the affidavit and submission, a judge in vacation will grant his fiat for a rule. This, with a motion paper signed by counsel, must be taken to one of the Masters of the court, who will draw up the rule (t). (o) Clarke v. Elwick, 10 Mod. (q) Todd, Ex parte, W. AV. & 332, S. C. 1 Stra. 1 ; Weston v. D. 577. Faulkner, 1 Price, 308 ; Anon. (r) Eoss v. Eoss, 4 D. & L. 648. Barnes, 58. (,s) Anon. 12 Mod. 525. (p) Clarke v. Elwick, 10 Mod. {t) Milstead v. Craufield, 9 332. Dowl. 124 ; Taylor, In re, 3 B. IIULE OF A COURT OF LAW. 669 AVlictlicr tlic submission be made a rule by the common Tart III. law authority of the court or under the statute of William, ""• v- «• ^- the rule, if delivered out in vacation, must be dated on the Dating day of the month and week on Avhich it is delivered out, but ^" °' should be entitled as of the term immediately jircccding the vacation {u). The liberty of drawing up a rule in vacation is very convenient, for when a cause has been the subject of the reference, judgment may often be entered and execution issued in vacation for the amount awarded {x) ; and even where that remedy is not applicable, time is gained for making the demand and serving the rule of court during the vacation, so as to enable the party to make application for an attachment, or execution under the statute of Victoria, on the first day of the next term (y). If the time for making the award have been enlarged by Eoiarge- tlie arbitrator or by the parties, and the award have been ^^^^ ° ^ made after the original period has expired, the enlargements, of rule, verified by affidavit, should in general be made part of the rule of court with the submission (as the enlargement becomes as it were part of the original submission) ; in order, it is said, that the court may see on the face of the award that it has power to deal with the award ; since if the enlargements be not made part of the rule, the award will not appear to have been made under the submission, as it has not been made within the time limited by the sub- mission (;:■). For the same reason, in the case of an umpirage, the Also ap- appointment of the umpire should be made part of the orump^re. rule («). In very recent instances, the ordinary practice of making Not neces- enlargements of time part of the rule, has been considered ^^[i °y ^^ to be necessary only when the object is to enforce the award, set aside and has been condemned as a bad practice, when the making the submission a rule of court is Avith a view of moving to set aside the award (b). & A. 217 ; 2 Ai-clib. Vv. 1256, 7th W. 310. ed. ; E. v. Price, 2 C. & M. 212 ; (v/) Taylor, In re, 5 13. & A. 217. Eoss V. Eoss, IG L. J. Q. B. 138. (z) Smith & Blake, In re, 8 See the Appendix of Forms for Dowl. 130 ; Evans y. Thompson, the form of the rule. 5 East, 188. [h] Eeg. Gen. H. T. 1 Yict. 3; («) Smith & Eeeyes, In re, 5 Badman v. Pugh, b M. & Gr. 381. Dowl. 513. {x) Cremer v. Chiu-t, 15 M. & (i) Welsh, In re, 1 Dowl. N. S. 570 MAKING SUBMISSION RULE OF COURT. Part III, Notwitlistaiidiiig these decisions, it is the practice in the eg- y- s- 1- Queen's Bencli Eiile Office, in the case of an award made by an umpire, to require that the appointment of the umpii-e be made part of the rule, even although the object be to set aside the award (c). We shall see the court have recently decided that this is not necessary when the reference is under the Lands Clauses Consolidation Act (r/). All made The enlargement of time by the arbitrator, the appointment rule." °^ of the umpire, and the original suljmission, may be made a rule of court by one rule (e). If the enlargements be by judges' orders, they, like en- largements by the parties or the arbitrator, should be made part of the rule of court. The old practice seems to have been for the clerk of the rules to draw up separate rules for each order of a judge to enlarge the time ; in a late case, however, where there were several enlargements by judges' orders, the court allowed them to be made a rule of court by a single rule {/). Copy of If the submission be lost, the court will, on a verified copy mission' ^^ ^^j make it a rule of court (y). made rule. Where an order of reference with the appointment of the Copy of lost umpire and the enlargements of time for making the award ment°of indorsed thereon were accidentally destroyed, the court time and allowed a duplicate of the order, together with copies of the ment of indorsements verified by affidavit to the best of the depo- umpire. ncnt's knowledge and belief, to be made a rule of court (Ji). Duplicate. Where an arbitrator refused to deliver up an original order of reference (a judge's order), without payment of an exor- bitant fee, the court allowed a duplicate of the order to be made a rule of court {i). But when the party alleging only that he could not obtain the original submission, because it was in the hands of the opposite party, moved to make a Production copy of the submissiou a rule of court, the court refused the of submis- 331 ; Bottomley v. Buckley, 4 D. chapter, p. 516. «& L. 157. See post, p. 576, as to [e) Smith & Eocves, In re, 5 making appointment of umpire Dowl. 513. under the Lands ClaiTses Conso- (/) Tribe & Upperton, In ra, 3 ■ lidation Act a rule of court. A. & B. 295. (c) Ex relatione of the officers (7) Short v. Frank, 3 Jur. 341. of the Eule Office of the Court of (h) Parker v. Bach, 17 C. B. Queen's Bench. 512. ((/) See Bradshav/s Arbitration, [i) Thomas t. riiilby, 2 Dowl. 12 Q. B. 562. See s. 3 of this 145. IIULE OK A COURT OF I,AW. 571 application, Init grauted a rule calling upon the opposite p^ht m l)arty to show cause why he should not produce tlic original en. v. s. ]. submission, in order that it might be made a rule of sioucom- court (/'). On such a motion, where it appeared that two p^'^<^*^- parts of a deed of submission had been executed, but that the arbitrator had indorsed the enlargement of the time for making the award on one part only, the court compelled the party in whose possession that part was to make it a rule of court, but at the expense of the party making the appli- cation (/). In a modern case, it was laid down that the order of refer- Submission ence does not belong exclusively to either party, but that the |,ot^°par ° party holding it holds it for the benefit of both parties, and ties, is bound to produce it in order to its being made a rule of court ; and where the defendants in whose possession it was, and in whose favour the award Avas made, delayed making the order of reference a rule of court, till it was too late to move within the time ordinarily allowed for setting aside awards ; the court ordered the defendants either to make the order of reference a rule of court, or to file it with one of the masters, so as to enable the plaintifi:' to make it a rule of court, and allowed the plaintifi:' to move to set the award aside in a subsequent term " nunc pro tunc " {?n). A some- what similar course was pm-sued still more lately (w). In another case, where the party interested in opposing On refusal the motion refused to produce the agreement of reference for co/y made' the purpose of its being made a rule, the court permitted a '^"i*^- copy to be made a rule of court, and granted, thereupon, a rule nisi for setting the award aside {o). So, where the party in possession of the agreement of reference had pro- mised, but failed to make it a rule of court, the same course was followed, though Lord Denman, C. J., expressed a doubt whether the statute (meaning, it is apprehended, the Lands Clauses Consolidation Act) embraced the making a copy of the submission a rule of court (p). (A-) Ld. Bovton y. ]^[eshani, 8 & Heming, In re, 4 D. & L. 7SS. Dowl. 867. See Todd, Ex parte, Sec P. III. Ch. 9, s. 2, d. 1, as to W. W. & D. 577. the same case. (l) Smith & Blake, In re, 8 (a) Plews v. Middleton, 6 Q. B. Dowl. 131. Mo. ( m ) Bottomlev v. Bucklej', 4 (;)) Midland Eailway Company D. & L. 157. ' & Ileming, In re, 11 Jur. 904. (n) Midland Kailway Company 572 BIAKING aUBBIISSION IIULE OF COURT. Tart III. Tlic costs of making tlic submission a rule of court when a cii. V. s, 2, cause is referred, are generally costs in the cause («/). But if a party unnecessarily make the order of reference a rule of court, he will not he allowed to charge the other party with that expense (r). SECTION II. MAKING THE SUBMISSION A RULE OF CH.\NCERY. Practice When it is intended to make a submission under the "fbmSion statute 9 & 10 W. Ill, c. 15, an order of a court of equity, a under sta- notice of motioii should be given ; if then the opposite jmrty equity. do not appear, the court will make the order upon the pro- On notice duction of an affidavit of the service of the notice of motion, and an affidavit of the due execution of the submission. The affidavits should be entitled in the matter of the parties and in the matter of the statute 9 & 10 W. III., c. 15. On ex parte If^ howcvcr, the Submission give either j)arty liberty to app ica lOD. ^ppjy ^Q ^]^g court without reference to the other, it is unne- cessary to serve a notice of motion, and the order will be made on an ex parte application, supported by an affidavit of the due execution of the submission. On consent. When the opposite party consents, there need be no affidavit of service of notice of motion, or of the execution of the submission, but the order will be drawn up on the j^ro- duction of a consent brief. Order of Tlic Order is drawn up on the equity side of the Court of Chancery. It directs that the agreement to refer to arbitra- tion be made an order of court, to be observed and performed by the parties thereto, according to the true meaning thereof (s). An objection to the validity of the award apparent upon the award is not an objection to making the submission a (^7) Sec r. II. Ch. 1, s. 1, d. 1. Hcadlam, 1756. Sco notes to (r) Carter v. the Burial Board Heming y. Swinnerton, I Coop. of Tonge, 29 L. J. Ex. 293, S. C. C. C. 386 ; 2 Smith Chanc. Pract. 5 II. & N. 523. 437, 3rd ed. Sec the Appendix of (.s) 2 Daniell's Chanc. Tract, by Forms for the form of the order. nULE OF CHANCERY. 573 rule of court under the statute, nor tliat the time has expired Tart III. for moving to set the award aside (f). oh. y. s. 2. When a ])arty seeks to enforce the award, Loth the sub- Making tbe mission and award are somethnes made orders of Chancery ruig, by an ex parte application (tc). But it ■would now seem, the motion to make the award an order of Chancery, is a special motion, and requires notice {x). On one occasion, when the application was to make the award a rule of court, Sir J. Leach, V. C, said that it was wrong to ask that the award might be made a rule of court, and that the proper course under the statute was to make the submission a rule of court (y). Whether the application was to set aside or enforce the award in this case is not stated. Before the orders making the submission and award orders Filing sub- of the court can be passed by the Registrar, the submission award. and award must be filed in the Report Oflice, whence the parties can procure office copies {z). The orders do not set out the submissions and awards. Submission but merely describe them generally. But a note of the filing ^^^ s^et out is made on the margin of the orders, by which reference can i" ^^^ orders. be made to them in the Report Office («). By the general rules and orders for regulating the prac- Making _ tice of the Court of Bankruptcy, G. 0. xxxii., Jan. 12, 1832, inbank-'" it was ordered, "that all agreements of reference to beJ""Ptcya rule of made rules of the Court of Bankrujitcy, shall be so made court. by order of the Court of Review, and all matters arising thereon shall be heard and determined by the Com't of Review " {b). The statute, 10 & 11 Vict. c. 102, abolished the Court {t) Heming v. Swinncrton, 5 Headlam, 1756. Haro, 350. (a) Ex relatione of an officer of («) Harvey v. Shelton, 7 Bcav. the Eegistrar's Office. See A.]}- 455. pendix of Foi-ms for the forms of {x) "Wilkinson v. Page, 1 Ilaro, the orders. See 2 Smith's Chanc. 276. See last chapter, s. 3, d. 1, Tract. 437, 438, 3rd cd. for the p. 557. old practice. {y) Lewis v. Eley, May, 1823, [h) 1 Deacon & Chitty, xxix. cited in Heming v. Swinncrton, 1 See P. I. Ch. 3, s. 7, d. 2, as to Coop. C. C. 423, notes. See also submissions in bankruptcy ; P. I. Heming v. S-ftdiinerton, 16 L. J. Ch. 2, s. 2, d. 1, submission by Ch. 287. assignees. (z) 2 Danioll's Chanc. Pract. by 574 MAKING SUBMISSION RULE OF COURT. Part III. of Eeview, and transferred all its jurisdiction and authority °"- ^- ^- ^- to such one of the Vice-Chancellors as the Lord Chancellor should dh-ect. The General Bankruptcy Act, 12 & 13 Vict. c. 106, s. 154, enacts that an agreement of reference under the Act may be made a rule of any of the superior courts of law. SECTION III. MAKING A SUBMISSION UNDER THE LANDS CLAUSES CONSOLI- DATION ACT A RULE OF COURT. ^ Making By the Lands Clauses Consolidation Act, 1845, where the undei'ThT P^^^'^^^s do not agree on a single arbitrator, each party is to Lands appoint One, and such appointment " shall be deemed a Act a rule Submission to arbitration on the part of the farty by whom of court, the same shall be made" [s. 25]; and the "submis- sion to any such arbitration may be made a rule of any of the superior courts on the aj)plicatioii of either of the parties " [s. 36]. Entitling When the parties proceed in Chancery, the affidavits veri- Cbancery. fy^^^S ^^^ Submission, or the appointments of the arbitrators, and all other proceedings, should be entitled, " In the matter of the arbitration between A. B. and C. B., and in the matter of the " Acts or Acts which warrant the application to the court (c). ■Whether Tlie question has been raised in several of the courts mentrc'f whether, in order to make the submission to arbitration a both arbi- j>^^Iq of court, it is ucccssary that the appointments of both must be arbitrators should be jiroduced, or whether it is sufficient for made a ^j-^g party to i)roduce the appointment made to the arbitrator appointed by himself. In Trinity term, 1847, with a view to set aside an award under the Act, the submission was made a rule of court in the Queen's Bench, on the one appointment only being pro- duced. The appointment recited the fact of the other appointment. On moving to set the award aside, the ((■) Re Law, 4 Beav- 509. See forms in the Appendix of Forms. UNDEPw THE LANDS CLAUSES ACT. 676 counsel mentioned that the rule had ])een drawn up on the Paut hi. one appointment only. The court nevertheless granted the °°' '^- ^- ^' rule nisi, leaving- the other i)arty to raise the ohjection if he thought lit. The point, however, was not taken on showing cause, and the award was ultimately set aside (/). But it is apprehended that at the present day ^"•^^- ^•^- the com-ts woukl Lc very slow to grant an attachment on a parol award (z). Where the arbitrator made a mistake in his award in the Mistake in christian name of the defendant, the court refused to en- force it against the defendant by attachment {a). On a reference by a judge's order, where the award set forth a supposed submission by order of Nisi Prius, it was said in one case the court would not enforce the award by attach- ment {b). If there be any reasonable doubt as to whether the award Validity of^ be sufficient in law, or if tl;e cpiestion turn on a disputed doubtful. matter of fact, and the affidavits be contradictory, the courts will refuse the application, and leave the party to his action; for if an attachment issue, the aw^ard must be obeyed, and there is no means of appealing against the decision gf the court, and solemnly trying the validity of the award (). Though the award direct payment of money at a par- ticular time and place, and the party to whom it is awarded do not attend to receive it, a proper demand any time sub- sequent will be sufficient for an attachment, as the duty to pay the sum awarded is a continuing liability, unless indeed the award expressly order that it is to be payable on the particular day, and not after (q). There is no contempt if any condition precedent to the attaching of the duty remain unperformed. Hence, when a defendant is ordered to execute a convey- ance, if the plaintiff be bound to prepare and tender the' conveyance, the refusal of the defendant to convey the land is no ground for attachment, unless the proper deeds have been tendered to him for execution (r). And if the defendant is, " on or before a certain day," to (m) Tebbuttv. Ambler, 2 Dowl. N. S. 677 ; Kenyon v. Grayson, 2 Smith, 61 ; Lodge v. Portboiise, LoflPt. 388. {7i) Inman v. HUl, 4 M. & W. 7 ; Dennett v. Pass, 1 Bing. N. C. 638 ; Fortescue, Ex parte, 2 Dowl. 448 ; Mason v. Whitebouse, 6 Dowl. 602, contra ; S. C. 4 Bing. N. C. 692, ace. ; 2 Ai'chb. Pract. 1257, 7tb ed. (o) Hare v. Fleay, 11 0. B. 472. (p) Ormerod v. Tate, 1 East. 462. (q) Craike, In re, 7 Dowl. 603. (r) Standley v. Ilommington, 6 Taunt. 561; Doe d. Clarke v. Stillwell, 8 A. & E. 645. See Performance, ante, Ch, 2 of this part, p. 495, BRINGINO PARTY INTO CONTEMPT. 591 execute a conveyance to be prepared by the plaintiff, the Part III. latter must tender the conveyance for execution on or before ™' ^'' ^' ' the day. If ho allow the day to slip by, but demand ^^y to pass execution afterwards, no attachment will be granted, and it seems he will be wholly without remedy (s). If the arbitrator award on a matter not within his Demand authority, the demand should be only in respect of what is ^"jj^^^^^^gH well awarded, or it may be held bad as to the whole {t). awarded. Thus, where an arbitrator, without authority, awarded on the costs of the reference, and the demand was of one sum, including the costs, the rule for an. attachment was dis- charged {u). Where there had been a proper demand for costs awarded, but the amount was subsequently reduced pursuant to a judge's order, a fresh demand of the reduced amount was held necessary to ground an attachment (x). But if the award be of two distinct sums, one within the submission, and the other not, and a demand be made of both, a clear refusal to pay anything will be a contempt, and an attachment will issue in respect of the sum really due (y). Generally speaking, the demand of performance of an act beyond the power of the arbitrator to order, will not vitiate the demand as to other matters properly awarded {z). The precise thing awarded should be demanded. Where Demand of on an award to pay money, and to deliver a wine-warrant ^M^g ° for a certain hogshead of wine lying in the docks, a demand awarded. of the money and of the hogshead of wine was made ; the court let an attachment issue for all excepting the wine, and refused it for that, since a demand of the wine is not equiva- lent to demanding the wine-warrant, for the delivering the wine would impose upon the party the papnent of the dock dues, which the delivery of the warrant would not (a). II. Service of the ride, award, and other documents.'] — In Personal Eervice of (s) Doe cl. Williams v. Ho^-ell, {y) Poyner v. Hatton, 7 M. & 5 Exch. 299. W. 211 ; The Earl of Cardigan v. [t) See Whitelicad v. Firth, 12 nonderson, 22 L. J. Q. B. 83. East, 166. (z) Smith & Keeves, In re, o (h) Strutt V. Eogers, 7 Taunt. Dowl. 513. 214. (a) Hemsworth v. Brian, 1 C. (x) Spivy V. Webster, I Dowl, B. 131. 696. 502 ATTACHMENT ON THE AWARD. Tart III. CH. vi.s. 2. copy of award and rule. Of tlie blaster's allocatur. Of the agent's power of attorney. Showing originals. Giving no- tice of en- largement of time. What suflS- cient no- tice. general, besides the demand, in order to ground an attach- ment, there must be personally served on the party sought to be charged, at the time of making the demand, a copy of the award, and of the rule of court, founded on the sub- mission ; for a party cannot be held to be in contempt until he be made acquainted with the rule of court, for the dis- obedience to which it is sought to put him in contemj)t. Leaving a cojiy of the rule at the party's office is insufficient, though the original be shown him (b). If there be a demand of costs which have been taxed, a copy of the Master's allo- catur for them must also be given at the same time. And if an agent make the demand, there must be personally left with the party a copy of the power of attorney, or other authority under which the agent acts. The originals of all these several instruments must be produced and shown at the time of serving the copies (c), even though the party do not require to see them (rl) : serving a copy of the award one day and showing the original two days afterwards, when the demand was made, was insufficient (e). If the award have not been made within the period limited by the submission, but the time has been enlarged, notice of the enlargement, and that the award has been made within the extended time, must be given, in order to fix the party with a contempt {/). Mere verbal notice is sufficient. Though the submission require that the enlargement be made in writing, it is not necessary to produce the original to the party, or to serve him with a co-pj. It is enough to bring the knowledge of the enlargement home to the j)arty in any manner (j), A recital in the award that the arbitrator has enlarged the time to a certain day does not, it seems, amount to a good (6) Parker v. Burgess, 3 N. & M. 36. (c) Tidd Pr. 837, 9tli ed. ; Mayor of Bath V. Pincli, 4 Scott, 299 ; Boyes v. Hewetson, 2 Scott, 837 ; Gifford V. GiflPord, Porr. 80 ; Doe d. Hickman v. Hickman, 1 Scott, N. E. 398; Bass v. Maitland, 8 Moore, 44, contra ; Wadsworth v. MarshaU, 1 0. & M. 87 ; Anon. 12 Mod. 2o7 ; E. v. Tooley, 12 Mod. 312; Chanler V. Driver, 12 Mod. 317; King V. Packwood, 2 Dowl. 570; Laugher V. Laugher, 1 Dowl. 284, S. 0. 1 C. & J. 398. (d) Jackson v. Clarke, M'Lel. 72, S. C. 13 Price, 208 ; Eeid v. Deer, 7 D. & E. 612; E. v. Sloman, 1 Dowl. 618. (e) Lloyd v. Harris, 8 C. B. 63. (/) HUtonv.Hopwood, 1 Marsh. 66 ; Wohlenberg v. Lageman, 6 Taunt. 250. (/) Jolinson v. Latham, 20 L. S. 478. J. Q. B. 236 ; McEae v. McLean, («) Hare v. Flcav, 11 C. B. 2 E. & B. 94G. 472. ' (z) Wriglit V. Graham, 3 Ex. {w) Phillips V. Higgins, 20 L.J. 131. Q. B. 357. {(() Mackinnon v. Sligo and (a;) Davies v. Pratt, 16 C. B. Shannon Railway Company, 9 586, S. C. 25 L. J. C. P. 71. C. B. 250. C20 EXECUTION UNDER THE STATUTES. Part III. CH.vir. s. 2. Presump- tion condi- tion prece- dent per- formed. Presump- tive pay- ment of costs of award. Swearing money due. Award ordering payment to a stranger. Attorney of corporation not ap- pointed under seal. sliip with A., had never given A. any authority to sue in his name, and had had no notice of the action, or reference, or award, until the money was demanded {b). The court will presume that the arbitrator has performed a condition precedent necessary to give him power to make an award, though it be not stated in the award, or sworn to by affidavit (c). On such a motion it will not allow an award good on the face to be invalidated by reference to the pleadings, though brought before it by affidavit {d). Where the award directed the plaintiif to pay one moiety of the costs of the award, and the defendant the other moiety, the plaintiff took up the award (which was in his favour), and the Master allowed him on taxation half the costs of the award : it was held by the Court of Common Pleas no objection to a rule calling on the defendant to pay the sum awarded, and the costs found by the Master, that the plaintiff had not sworn that he had paid the whole expense of the award, for it was reasonable to suppose that the plaintiff had paid all the arbitrator's fees on taking up the award, and the objection, if any, was an objection to the Master's taxa- tion {e). The Court of Queen's Bench, however, it would seem, would require a positive affidavit that the plaintiff had paid the amount {/). But where the award ordered A. to repay B. if B. paid the arbitrator's costs, an affidavit by B. that A. had not paid him the amount of those costs, and that the amount was due and unpaid by A. to him, was held sufficient to ground a presumption that B. had paid the arbitrator, there being no affidavit to the contrary (f). The court will not grant a rule for B. to pay A. on an award between A. and B., directing that B. shall pay, for damage done to A., a certain smn to C, when the payment to C. does not appear on the face of the award to be for A.'s benefit {k). Where the defendants, a railway company, had been served with the writ in the action, and their attorney had 26 {h) Eobertson v. Hutton, L. J. Ex. 293. (c) Davies v. Pratt, 16 C. B. 586, S. C. 25 L. J. C. P. 71. {d) Davies v. Pratt, 16 C. B. 586, S. C. 25 L. J. C. P. 71. (e) Smith Y. Troup, 7 C. B. 597. (/) Butler V. Masters, 13 Q. B. 341 ; Smith, v. Beeves, 5 Dowl. 513. ((/) Parkinson v. Smith., 30 L. J. Q. B. 178. (h) Laing v. Todd, 13 C. B. 276. OBTAINING THE RULE. 621 entered an appearance for them, and liad ultimately referred ^''^'^ ^^i- the action, it was held they could not show, as cause against — — '—' a motion for a rule to pay the plaintiff the amount awarded, that the attorney had not been appointed under their corpo- rate seal (i). On making' the rule absolute, the court will impose such Making terms as seem equitable, as that a plaintiff shall undertake [^^ ^ °°' not to bring an action on the award, the defendant having previously entered into a bond with sureties to abide the event of such an action {k). If the award be shown to be invalid on showing cause Referring aG^ainst the rule for an attachment, the court will often I'^f^ '=' ' back. refer the award back to the arbitrator for amendment (/). As in case of an attachment, the rule will not be drawn up without producing and depositing with the Master the Producing . . , 1 / \ award on orignial award {?n). drawing up Though to warrant execution under the statute, the rule rule, must state on its face the amount of the money which it Kuie as to directs to be paid, yet when a rule directs costs to be paid, it need not specify their amount in order to receive the benefit of the act ; for costs stand on a different footing from other sums payable, and execution, it seems, may issue on the rule as soon as the officer of the court has ascertained how much is due for them (w). These observations respecting costs do not apply to the case of costs payable under an award, and already taxed by the Master, and demanded by the party before the motion for the rule ; for their amount must be stated in the rule. When the award orders money to be paid on a specified interest on day with interest to that day, the nde will be granted for gH^otTe^ the payment of the amount and interest up to the day, but coveiabie. not beyond ; though, in an action on the award, a jury might have given further interest (o). Though a year and a day have elapsed since the making Scire facias of a rule ordering the papnent of money or costs, no scire ^"°^*^®^' eary. (i) FavicU V. Eastern Counties Q. B. 134. Eailwav Co., 2 Ex. 344. (h) Jones v. Williams, 8 M. & {k) Mendell v. T'STiell, 1 Dowl. W. 349 ; Hodson v. Patterson, 4 N. S. 453, S. C. 9 M. & W. 217. M. & G. 333; Wright v. Bm- (0 See P. II. Ch. 10, s. 1, p. rouglies, 2 D. & L. 94. 445. (o) Doe d. Moody v. Squire, 2 (»0 Davis V. Potter, 21 L. J. Dowl. N. S. 327. 622 EXECUTION UNDER THE STATUTES. Tart III. facias or siDGcial ajjplication to tlic court is necessary to cH.Tii.s. 2. authorize the issuing of execution (jj). T, , , II. Mule to deliver land under the Common Law Procedure Rule to deliver Act^ 1854.] — By the Common Law Procedure Act, 1854, the of ianT°° 17 & 18 Vict. c. 125, s. 16, '^ when any award made on any pursuant g^ch submissiou, document, or order of reference as aforesaid, to be en- dirccts that possession of any lands or tenements capable ^ud^^me^nt* ^^ being the subject of an action of ejectment, shall be in eject- delivered to any party, either forthwith or at any future ^^" ■ time, or that any such party is entitled to the j)Ossession 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 of such lands or tenements, or any person in possession of the same, claiming under or put in possession 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." Railway jjj^ Enforcing award under the Railway Companies Arbi- Coin pftDics t/ t/ t/ J Arbitration tration Act, 1859.] — By this Act, the 22 & 23 Vict., c. 59, s. ^^^' 26, it is enacted, that " full effect shall be given by all the superior courts of law and equity in the United Kingdom, according to their respective jurisdiction, and by the com- panies respectively, and otherwise, to all agreements, refer- ences, arbitrations, and awards, in accordance with this Act: and the performance or observance thereof may, when 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 resj)ective property, that the courts, or any judge thereof, shall direct, and, where requisite, frame for that purpose." (p) Spooner v. Tayno, 12 Jur. 282. CHAPTER VIII. ENFORCING THE AWARD BY RROCEEDINGS IN THE CAUSE REFERRED. It is often convenient for a party in whose favour the I'^^t I'l- arbitrator has determined the cause referred, to enforce the ..°'^'"'^" award by issuing execution in the cause for the money or ^j^"^*^"^!}^^ costs awarded, instead of apj^lying for an attacliment, or a chapter. rule under the statute of Victoria on the award itself; as these latter courses would frequently be more dilatory, and cannot be obtained without a personal demand of payment of the money due, a thing sometimes difficult to eifect, and not necessary when proceeding in the cause. This chapter, therefore, is confined to investigating, in its sejjarate sections, under what circumstances, and in what manner, a verdict may be entered, costs taxed, judgment signed, and execution issued in the cause, according to the effect of the award. SECTION I. EKTEKING THE VERDICT PURSUANT TO THE AWAllD» When a cause is referred at Nisi Prius, and a verdict A nard in taken subject to the reference, the award of the arbitrator asVver-^ respecting the cause stands in the place of the finding of the '^ict. jury, and is followed with similar consequences. The ver- dict may be entered, the costs may be taxed, judgment may be signed, and execution may be issued, for the amount found due in the cause, and for that portion of the costs of 624 EXECUTION IN THE CAUSE REFERRED. Part III. the cause to which, under the submission and award, the cH-v'"-s-i- joarty is entitled («). Enforcing In one iustauce the arbitrator was to make two awards, in by^ufi''- ^^® fi^®^ ^^ which he was to state a case for the court, and ment con- asscss Contingent damages ; in the second he was to dispose submission, of the remaining matters, but payment under the first award was not to be enforced until the final award was made. The first award was made, the case stated and decided by the court, and damages found for the plaintiff on such decision. No second award was ever made, and the time had elapsed for making it. The court set aside the judgment entered by the plaintiff in the action subsequently to get his costs, on the ground that it was an enforcing payment contrary to the terms of the reference {b). "We have previously seen what sort of finding by the arbi- trator will authorize the j)arty in entering a verdict {c). Where no verdict is taken on the reference, and the arbi- trator is not empowered to order a verdict to be entered, or, being empowered, has not thought fit to direct the entry of a verdict, judgment cannot be signed either for the amount awarded or the costs {d). Pro form& Tlic plaintiff can take no advantage from the pro forma far avaii°^ vcrdict taken at Nisi Prius, excej^t what the award gives able. iiini. Where, after directing a verdict to be entered for the plaintiff on the several issues, the arbitrator awarded to him a gross sum by way of damages in respect of the cause and of other matters in difference, the court held, that although the pro forma verdict was not vacated, the plaintiff could not avail himself of it in any way, for there were no means of ascertaining how much of the damages was due in respect of the cause (e). It was also said, there would be a difficulty about taxing the costs of the cause, as no distinct damages were given in the cause; but though they could not be taxed on the verdict, and enforced by execution, they might, it seems, be taxed on the rule of court founded on the order (a) Borrowdale v. Hitcliener, 3 (c) See P. II. Ch. 6, s. 3, d. 2, B. & P. 244 ; Lee v. Lingard, 1 p. 339. East, 400; Cromer v. Chiirt, 15 (d) Gnindy v. Wilson, 7 Tatmt. M. & W. 310, S. C. 15 L. J. Ex. 699. 263. {f) Taylor v. Shuttle worth, 6 (?;) "Wood V. The Copper Miners' Bing. N. C. 277; Taylor v. Mar- Company, 24 L. J. C. P. 34. ling, 2 M. & G. 55. ENTERINa THE VERDICT. 625 of reference, and be recovered by attachment, or by cxe- Tart hi. cution under the 1 & 2 Vict. c. 110 (/). ""•^'"•^•^- On the reference at Nisi Prius the associate or clerk of Practice as assize makes a minute on the panel of the verdict given by verdict. the jury for the specified amount of the damages subject to the award, and he makes a full note of the terms of the reference in his minute-book, if there be any special terms. He detains in his own hands the Nisi Prius record, until the award is made. In order to proceed to judgment and execution, the party entitled to the verdict must make the order of Nisi Prius or other submission a rule of court. On his producing the certificate or award in his favour, the clerk of assize or associate will then deliver to him the Nisi Prius record, having first, in causes tried at the assizes, entered the postea on it for the amount of the sum awarded (y). In strictness, it is the duty of the associate to enter the postea in all cases, but in causes in the Queen's Bench or Exchequer, tried at the sittings in London or Middlesex, the record is frequently delivered out without the jDostea, which is in such case entered by the attorney of the success- ful party {/i). In the Common Pleas, the practice is for the associate to enter the postea in all cases {i). No application to the court is necessary to entitle the No appU- successfiU party {k), or (when the submission provides that court death shall not revoke the arbitrator's authority) the ^^ecessai-y. personal representative of a successful party who died before the making of the award (/), to have the verdict entered pursuant to the award, or to have the postea deli- vered up (/«). It seems the submission must be made a rule of court in" j^^ruie'^ before the court will entertain any motion respecting the ijefore entering of the verdict (yt). (/) Taj'lor V. Slmttleworth, 6 {k) Borrowdale v. Kitchener, 3 Bing. N. C. 277 ; Tayler v. Mar- B. & P. 244. ling, 2 M. & G. 55. (1) Lew-is v. Winter, W. W. & (r/) 2 Arehb. Pr. 1260, 7th ed. ; D. 47. Kenrickv. Phillips, 7 M. & W. 415. (m) Grimes v. Naish, 1 B. & P. (/*) See the statement as to the 480. See Piatt v. Hall, 2 M. & practice in 1 Archb. Pr. 328, 7th etl. W. 391. (i) Ex relatione of the Associate's {u) Kirkus v. Hodgson, 8 Taunt. officer. 733, S. 0. 3 Moore, 64. motion. 626 EXECUTION IN THE CAUSE REFERRED. Part III. If tliere be a positive award of a verdict in favour of one oH.vni.8.1. party, and then on the facts stated an hypothetical and con- Award of ditional award of a verdict in favour of the other, in case the ditionai on court shoukl determine for the Latter the point of law raised decision of on the facts, the one for whom the award positively deter- mines the cause need not make any application to the court, but may enter a verdict, sign judgment, and issue execution, as if there were no point of law raised (o). Whereas, the other party can only take advantage of the possible provision in his favour by application to the com-t to enter the verdict for him ; and this application must be made within the time allowed for motions to set the award aside, since it is in effect a motion to set aside the positive determination of the arbitrator, and to substitute another (p). We have elsewhere considered how far the courts will permit a party to have a verdict entered up for him when the arbitrator has awarded that he is entitled to the verdict, if the court decide in his favour a point of law properly raised in the award (q). Rule to A rule may be applied for in the alternative either to set verdict or aside the award, or to enter the verdict according to the opinion of the court on the facts found in the award (r). set aside award. Amending Where the arbitrator had awarded damages generally, the arbhrator's ^^^^^^ *^^ ^^^ occasion rejected an application to amend the notes. entry of the verdict by entering it on such of the alleged breaches of contract as were proved according to the arbitrator's notes, holding that they could make no order respecting the notes of an arbitrator any more than of a judge (s). (o) Scott V. Van Sandau, 6 Q. (q) See P. II. Ch. 5, s. 8, d. 6, B. 237 ; Ajiderson y. Fuller, 4 M. p. 310. & W. 470. {r) Anderson v. Fuller, 4 M. & (;)) Anderson v. Fuller, 4 M. «& W. 470. W. 470 ; Paxton v. Great Nortli (s) ScouguU v. Campbell, 1 of England Eailway Company, 8 Clutt. 283. Q. B. 938. TAXING THE COSTS. 627 SECTION 11. TAXING THE COSTS OF THE CAUSE. After giving proper notice of the taxation of costs, the Tart hi. attorney of the successful party shoukl take the postea with cn.viii.s.2. the verdict entered upon it according to the award, as above Taxing the directed {t), together with the rule making the submission a °°^*^' rule of court, and the award and the papers in the cause, to one of the Masters, who will thereupon mark the postea, and tax the costs, and sign judgment {u). The costs of the cause are pro]3erly taxed on the postea, of the as in the case of an ordinary verdict. We have before seen *^*"^®- that the costs of the reference are costs of the cause when the arbitrator lias only to certify (x). The costs of the Of the reference, which are ordinarily costs as between party and '^^f^^^'^'^*^- party (y), should strictly be taxed on the rule embodying the submission ; but by consent of parties to save expense, the costs both of the cause and of the reference are fre- quently included in one allocatur, and marked on the postea. No affidavit is required to verify the award. But if only a copy of the award were produced, and the adverse party objected to the taxation, the Master would probably decline to proceed except under the direction of the court or a judge (z). On the trial of an action a verdict was taken by consent. Costs of subject to a special case to be stated by A. B., who, in the case'^ event of the court deciding in favour of the plaintiffs, was <^°^*^ °^ thereby empowered to direct for what amount the verdict should be entered, and to whom the cause and all matters in diffcrei^e between the parties were thereby referred, subject to the special case, the costs of the action to be taxed to abide the event of the award, and the costs of and incident to the reference and award to be in the discretion of the arbitrator. Many meetings were held before the special case was settled. It divided the plaintiffs' claim into six parts, (t) See last section, p. 625. (?/) Eccles y. Blackbm-n, 30 L. (zi) 2 Ai-clib. Pr. 1261, 7tli. eel. J. M. C. 358. (x) Sim V. Edwards, 25 L. J. (2) Ex relatione of a Master of C. P. 174, S. C. 17 C. B. 527. the Comt of Queen's Bench. Ante, P. II. Ch. 7, s. 1, p. 357. 3 3 2 628 EXECUTION IN THE CAUSE REFEKRED. Part III. as to four of wliicli tlie court decided for the plaintiffs, but as "•^"'•^•^' to the last two for the defendants. The case was thereupon sent to the arbitrator, who directed a verdict for the plain- tiffs with damages, and ordered that " the costs of and incident to the reference and award should be paid and borne by the defendants." The Master disallowed to the j)laintiffs all costs incurred by them incident to that portion of then* demand comprised in the 6th and 6th heads of claim up to the time of the judgment of the court ui^on the special case, and allowed to the defendants their costs of and incident to those two heads, on the ground that the costs up to the judgment on the sj)ecial case were costs in the action^ and that the reference did not commence until after the judg- ment. The Court of Common Pleas held that the Master was right in his taxation {a). Costs on In an action for slander, to the second count for calling butive the plaintiff a thief the defendant pleaded a plea, alleging finding on three separate instances of theft. The arbitrator found for plea. the plaintiff with damages on the first count, and on the issue on the plea to the second count he found that so much of the plea as related to one of these instances of theft was proved, and that the rest of the plea was not proved. It was held in the Court of Common Pleas, dissenting in some measure from the principle of Biddulrph v. Chamber- layne{b), that- on taxation the Master ought to allow the plaintiff no costs of any part of the plea of justification, and the defendant's costs only of the part of the plea found to be true, including costs of evidence applicable to such part, though also applicable to the rest of the plea ; but not costs of any evidence apj^licable only to that part of the plea which was found to be untrue (e). Where a verdict was taken, subject to a reference to an arbitrator to find the facts and state a special case, the costs of the reference and arbitration and special case to be costs in the cause, and to abide the event of the award ; the arbitrator found the first issue for the defendant, and stated the case. Judgment was given thereon for the plaintiff in [a) Edwards v. The Great (c) Eeynolds v. Harris, 28 L. Western EaHway Company, 12 J. C. P. 26, S, 0. 3 C. B. N. S. C. B. 419. 267. {b) 17 Q. B. 351. TAXING THE COSTS. 629 tlic court below, but reversed in the Exchequer Chamber. Part hi. The Master allowed no general costs to either party ; but ""•^i^-^-- - having- regard to the s. 145 of the Common Law Procedure Act, 1852, allowed the plaintifi" the costs of the trial of the issues of fact, that is, all the costs commencing at the drawing up of the issue until the direction of the court below to enter the verdict. He allowed to the plaintiff the costs of the reference, special case, and argument. He allowed neither party any costs in error, and no costs at all to the defendant. Tlie court held that he had decided rightly {cl). An important distinction affecting the taxation of costs has been previously noticed between the case where a verdict is taken subject to a reference, and where the action is referred before issue joined, when costs abide the event (e). When a witness is rejected by an arbitrator, the costs of Costs of witD6SSGS. his attendance either at the assizes, when tlie cause was referred, or before the arbitrator, will not be allowed by the Master in taxing the costs as between party and party {/). Tliough the matters referred be of very great importance. Of counsel and two counsel attend the arbitrator for each party, the reference! costs of one counsel only will be allowed, according to the practice of the Common Pleas. It does not seem that there is any such rigid rule in the other courts of law {g). "SVe have before seen how far the Master will question the of the amount of the arbitrator's charges (Ji). ^^^"^ ' In one case before the Master the plaintiffs claimed to be Costs of allowed, as against the defendants the other party to the draw°^^ reference, 111. 145. bd., which they had paid on taking up award, the award, to the attorneys who had been employed by the arbitrator to di-aw it. Tliis sum consisted of 52/. lOs., the arbitrator's charges for four meetings, and 19/. 5s. QcL for the attorney's bill (the arbitrator being a layman). The IMaster disallowed all of the attorney's bill, except 1/. 15^. for the stamp duty on the award. The court refused to call on the Master to review his taxation, as without laying down any rule whether a lay arbitrator be entitled to charge for {d) Whaley v. Laing, 5 H. & N. [g) Hawkins v. Eigby, 29 L. J. 480, S. C. 29 L. J. Ex. 313. C. P. 228, S. C. 8 C. B. N. S. (e) See P. II. Ch. 7, s. 2, d. 4, 271. p. 377. {h) See P. n. Cli. 7, s. 1, d. 1, (/) Galloway v. Key worth, lu p. 3o7. C. B. 229. 630 EXECUTION IN THE CAUSE REFERRED. Part III. on.viii.s.2, How soon costs may be taxed. Eeg. Gen. H.T. 1853, r. 170. Compul- sory refer- ence. professional assistance in framing his award, tlicy held that the charge of fifty guineas for four meetings was amply sufficient to cover all the expenses which he might fairly have incurred in obtaining the aid of professional advice {i). Short-hand wiiters' notes cannot ordinarily he allowed on taxation of costs without consent {k). What are properly costs of the cause, reference, and award, have been already discussed when dealing with the arbitrator's duties as to costs (I). Till recently there was a difference in the practice of the courts as to the time of taxing costs. When a verdict was taken subject to a reference, the Court of Common Pleas were of opinion, that the costs ought not to be taxed until the time for moving to set aside the award had expired {m). The Court of Exchequer, however, held, that where the award was made after the four days from the return day of the distringas, the plaintiff might get his costs taxed and enter judgment at once (n). Where no verdict was taken, it was conceded in both courts that the Master might tax the costs without waiting for the expiration of the time for setting the award aside {o). This difference of practice between the courts was settled by a later rule. Keg. Gen. H. T., 1853, which provides, rule 170, "Costs may be taxed on an award, notwithstanding the time for setting aside the award has not elapsed." By the Common Law Procedure Act, 1854, 17 & 18 Vict, c. 125, s. 10, "Any award made on a compulsory reference under this Act, may, by the authority of a judge, on such terms as to him may seem reasonable, be enforced at any time after seven days from the time of publication, notwith- standing that the time for moving to set it aside has not elapsed." On such a reference judgment must be signed before execution can issue (ju). As the cause is not removed out (i) Galloway v. Keywortli, 15 C.B. 229. (k) Croom V. Gore, 1 H. & N. 14, S. 0. 25 L. J. Ex. 267. (I) P. II. Ch. 7, s. 1, p. 356. (m) HobdeU v. MUler, 2 Scott, N. E. 163; Ivesv. Jones, 10 C. B. 429 ; Haro v. Fleay, 11 0. B. 472. (n) Cromer v. Cliurt, 15 M. & W. 310. (o) Little V. Newton, 1 M. & G. 976; Ives v. Jones, 10 C. B. 429. (p) Kendil v. Merrett, 25 L. J. C. P. 251, S. 0. 18 0. B. 173. See the next section. TAXING THE COSTS. 031 of the coiu't by the reference, the costs must he taxed on the Part III. scale applicable to proceedings in the superior court (^). oh.yiii.s.2. If the award in an action on contract (other than cases On what wherein, by reason of the nature of the action, no writ of trial to be can at law be issued) find that the plaintiff is entitled to *^^'^*^- recover in the action an amount that shall not exceed 20/., and there be no certificate tliat tlie cause was proper to be tried before a judge of the superior courts, the Master will tax the costs of the action on the reduced scale, and if he tax tliem on tlie higher scale the court will order a reviewal of his taxation (r). Whether the reference take place before or after issue joined the amount awarded is a sum " recovered " in the action within the meaning of the rule ; for the term " recovered " is not limited to a recovery by verdict, but is used in a popular and not strictly legal sense, and means tliat if a party do not obtain more than 20/. as the fruits of his process, he is to be allowed costs of the cause according to the lower scale only {s). But this rule does not apply to costs of the reference, for Costs of though less than 20/. is recovered by the award, no reduction is made in their taxation on that account {t). When a cause is referred to arbitration under s. 3 of the Costs of Common Law Procedure Act, 1854, to a county court judge, to county the costs are to be taxed, not according to the county com-t courtjudge. scale, but according to the scale of the superior court, since the reference does not remove the proceedings out of the superior court (ti). Though no damages are awarded separately in the cause Taxing referred, but the arbitrator finds the issues for the plaintiff, g^use when and awards him a gross sum in respect of the cause and all ^'^ damages other matters together, it seems that the costs of the cause cannot be taxed on the verdict taken at Nisi Prius, but that they may be taxed for the plaintiff on the rule of court embodying the submission (x), (q) Edwards v. Edwai-ds, 5 (s) Elleman v. "Williams, 2 D. & C. B. N. S. 536, S. C. 28 L. J. L. 46 ; WaUcn v. Smith, 6 Dowl. C. P. 25. 103. (r) Limd v. Hudson, 1 D. & L. {t) Holland v. Vincent, 9 Ex. 236 ; Elleman v. Williams, 2 D. 274 ; Nicholson v. Sykes, 9 Ex. & L. 46. See directions to the 357. Masters of the superior coiu-ts, (?t) Edwards v. Edwards, 28 H. T. 1853, 13 C. B. 96 ; Walther L. J. C. P. 25. V. Mess, 7 Q. B. 189 ; 8 Q. B. 629. {x) Taylor v. Shuttleworth, 8 632 EXECUTION IN THE CAUSE .REFERRED. award. Court directing how costs to be taxed. Part III. Tlie Master must tax the costs according to the language cH.viir.s2. Qf ^i^Q award. If the arbitrator order costs to be taxed as Taxing between attorney and client, and the Master tax them on cording to that scalc, tlic court will not review the Master's taxation on the ground that the arbitrator had no authority to give such costs. The proper ai^plication is to move to set aside the award for the excess (y). The court on application will sometimes direct the Master how the costs are to be taxed, when there is a difficulty in construing the award as to its legal effect {z). Where the costs of the cause and reference were left to the arbitrator's discretion, and were to be recovered as if costs in the cause, and the fourth issue in the cause was withdrawn by consent, but the arbitrator was to decide on the costs of the cause, as if it had remained, and the award ordered the verdict to be entered on the first and second issues for the plaintiff with nominal damages, and for the defendant on the third, and did not notice the fourth ; the court directed the Master to tax the costs of the first and second issues for the plaintiff, and of the third for the defendant, and to disallow to either party the costs of the fourth issue («). On the reference of an action on the case after issue joined, where the declaration contained three counts, to each of which the defendant had pleaded several pleas, going to the whole cause of action in each, the arbitrator awarded that the plaintiif had good cause of action in respect of the second count, and was entitled to certain damages on it, but that he had no cause of action in respect of the first and third counts. The Master feeling a difficulty in taxing the costs, the issues raised on the pleas not being determined by the award ; the court on the application of the plaintifi", who contended that the finding on the second count in the plaintifi''s favour was a substantial decision for him of the issues raised on the pleas to that count, and who expressed Dowl. 281 ; Tayler v. Marling, 2 M. & G. 55. {>/) Bartle v. Musgrave, 1 Dowl. N. k 325. See P. n. Ch. 7, s. 1, d. 3, p. 363, duty of arbitrator in awarding costs. (z) See Reynolds v. Harris, 28 L. J. C. P. 26, S. C. 3 C. B. N. S. 267. («) Allenby v. Proudlock, 4 A. & E. 326. TAXING THE COSTS. 633 his willingness to allow the defendant the costs of the issues ^^^'^ ^^i* on the pleas to the other two counts, which the award had °°'^"^°' ' not determined, ordered the Master to tax the plaintiff his costs in the cause upon his allowing the costs of the first and third counts, and of the issues relating to them, to be taxed for the defendant {d). An award, in assumpsit on a special count, and also on a Award general count, ordered the defendant to pay to the plaintiff t^a'tfon"^' a certain sum ; the Master having taxed the costs on all the npt re- issues for the plaintiff, the court, on a motion to order a review of the taxation, discharged the rule : as on such an application the burthen lay on the applicant to show that the Master was wrong, and it was merely ambiguous whether the finding of the arbitrator applied to the special count as well as the general count, and there had been no applica- tion to set aside the award for the objection {c). When a submission by consent may be made a rule of Where sub- court, it is one of the consequences that the Master of the made°niie court has authority to tax the costs of the reference and "f court T / ,^ Master has award (rf). power to A cause in the Exchequer was referred, and the submis- *'^^- sion provided for its being made a rule of the Court of King's coasts" sub- Bench, and the arbitrator awarded costs to be taxed by the mission mlG of Master in the Exchequer ; the Court of Exchequer, though anothpr there was a suggestion of collusion between the attorneys to °°^''*- allow excessive costs, refused to review the Master's tax- ation, saying that they had no jurisdiction over him, as the reference not being made by that court, he did not act as their officer in taxing the costs ; but they intimated it might probably form a ground for setting aside the award in the Court of King's Bench {e). When there are two defendants in a cause referred, and Taxing the costs of the cause are to abide the event, it seems very g°f{f J ^i^g doubtful whether there can be a separate taxation of costs defendants for each defendant {/). sepaia e y. When the award is in the plaintiff's favour, and the {b) "Williamson v. Locke, 2 D. 269, S. C. 21 L. J. Ex. 127. & L. 782. (f) Chapman v. Lansdown, 1 (c) Rennie v. Mills, 5 Bing. N. Anst. 273. C. 249. (/) Dickins v. Jai-yis, o B. & {d) Bhear v. Harradine, 7 Ex. C. 528. G34 EXECUTION IN THE CAUSE REFERRED. Part III. defendant has to pay the costs of the cause, and of the OH. Tin. s 3. reference and award, the Master should make out two allo- Costs of caturs, one for the costs of the cause, and the other for the cause and ^ggj^g Qf fj^^Q reference and award ; for if the iudmient be reference ' . separately, entered up for a less amount of costs than that specified in Judgment the allocatur, it may he set aside ; and judgment cannot costs of properly be entered up for the costs of the reference and cause. award, but only for the costs in the cause ; though if the costs of the cause and reference and award be taxed together in one allocatur, and judgment be entered up for the whole amount, it is only an irregularity, which will be cured, unless the application to set aside the judgment be made in reason- able time, or if the defendant's attorney have consented to the taxing of all the costs together (y). Fresh taxa- After a reference back, the taxation of costs of the reference tion after i ••■,■, i • ■ mi reference made ou the origmal award becomes moperative. ihere back. must be a second taxation after the new award is made (k). Reference If an award being defective is referred back and a new of abortive ^ward made, giving the plaintiff the costs of the reference, award. ]iq ig not, according to a recent decision in the Exchequer, entitled to all the costs of the abortive award, such as the stamp, and expense of execution, but these being wholly thrown away, ought to be borne equally by each party {i). SECTION III. SIGNING JUDGMENT PURSUANT TO THE AWARD. No rule for Formerly it was sometimes held to be necessary, and requi^fte. Sometimes not, to obtain a rule to sign judgment, before judgment could be signed or execution issued on the verdict entered pursuant to the award (k). But now, by the rules made pursuant to the Common Law Procedure Act, 1852, Eeg. Gen. Reg. Gen. Hil. T. 1853, r. 55, " no rule for judgment shall H.T. 1853. ^ (g) Bignall v. Gale, 3 M. »& G. 400 ; Higginsonv. Nesbitt, 1 B. & 859. See ante, p. 627. P. 97 ; Borrowdale v. Hitchener, (h) Jolmson v. Latham, 20 L. 3 B. & P. 244 ; Kettle v. Grove, J. Q. B. 236. Barnes, 57 ; Eead v. Garnett, (i) Blair v. Jones, 6 Ex. 701. Barnes, 59; Hall v. Mister, 1 {Jc) Haywards v. Eibbans, 4 Salk. 84. East, 309 ; Lee v. Lingard, 1 East, s SIGNING JUDGMENT. 635 bo necessary ; and after the return of a writ of inquiry, Part hi. judgment may be signed at the expiration of four days from ch.viii.8.3. sucli return." This rale is to the like effect as a previous rule of all the courts ; H. T. 2 Will. IV. p. G7 (l). According to the practice of the Common Pleas, when a WLenjudg- verdict is taken subject to a reference, and an award is ]^ signed. made in vacation, Avhether before or after the return day of the habeas corpora juratorum, final judgment cannot be entered up till after the time for setting the award aside has expired (wi). But it has been held in the Exchequer, that when a ver- dict is taken, subject to a reference at Nisi Prius, and the award, or certificate, is not made till the four days after the retm'n day of the distrmgas have expired, the party in whose favour the arbitrator directs the verdict to be entered, may at once j)roceed to sign final judgment and issue execution, though in vacation, and need not wait until the losing party has had four days of term to move in to set aside the award (%). In deciding this point the court remarked that there was a judge always sitting who would interfere and stay execution if necessary, to prevent any injustice being done. Where a verdict was taken subject to a reference of a cause and all matters in difference, and the award made in vacation du-ected the verdict to stand for the plaintiff for 548/., but also awarded that 202/. was due from the plaintiff to the defendant in respect of the other matters in difference ; the Com-t of Queen's Bench held that the plaintiff was en- titled to sign judgment for the simi awarded in the action at the expiration of fom'teen days after the making of the award {o). A sum being awarded due, but payment directed to be Sam pay- . . . able at a made at a futiu-e day, it seems doubtful whether a plaintiff future day. can sign judgment before the day on which the amount is (I) 1 Archb. Pr. 330, 7tli ed. previous section as to taxing costs. (m) Wilkinson v. Stewart, 59 («) Cromer v. Chui't, 15 M. & G. III., cited by counsel in W. 310. See Eoss v. Eoss, 16 L. Thompson v. Jennings, 10 Moore, J. Q. B. 138, 110 ; 2 Tidd. Pr. 839, 9tli ed. ; (o) O'Toole v. Pott, 26 L. J. Q. Jones V. Ives, 10 C. B. 429; Hare B. 88, S. C. 7 E. & B. 102. V. Fleay, 11 C. B. 472. See the 636 EXECUTION IN THE CvVUSE REFEKRED. Part III. payable. It is clear tliat lie is not justified in issuing oH.Yin.s.3. execution (^:>). Signing Execution cannot issue on an award made under a corn- judgment p^^isory reference under the Common Law Procedure Act, on compul- . ... sory refer- 1854, witliout first signing judgment. And the form for a ^^'^^' fi-f(^'i No. 10 of the forms issued by the judges in Mich. Vac. 1854, and which omits the statement that the money has been recovered by judgment, is wrong (y). But judgment on such an award cannot, according to the practice of the Court of Exchequer, be signed without leave of a judge, be- fore the time for moving to set aside the award has expired. Entering Where the order of Nisi Prius contained the usual clause m^nt nunc Providing against the death of a party defeating the refer- pro tunc, ence, and the plaintiff died before the making of the award, which directed that a verdict should be entered for the plaintiff with damages, and that the plaintiff's executors should assign an annuity to the defendant ; the court made absolute a rule obtained by the plaintiff's executors to enter up judgment on the verdict, as of the term when the dis- tringas was returnable, upon their undertaking to assign the annuity (r). Under a similar submission, the defendant, in an action of trespass quare clausum fregit, having died before the making of the award, which directed a verdict for the defendant, and prescribed how a disputed boundary should in future run ; though it was objected that the heir might be affected by an award concerning the boundary of the land, the court permitted the personal representative of the defendant to enter up judgment, nunc pro tunc, as of a previous term (s). Award A vcrdict was taken subject to a reference at the Spring hst day of Assizes, 1854. The plaintiff died in April after the refer- term. ence. Tlie award was made on the last day of Michaelmas Term, 1854. It was held that the verdict was not complete until the award, and that the two months for entering judgment did not begin to run till the award was made ; that as the award was made on the last day of term, too late for entering judgment, the statute of Charles II. c. 86, s. 1, (j)) Callardv.Patersoii,4Taunt. (r) Tyler v. Jones, 3 B. & C. 318. 144. ((/) Kendil v. Merrett, 25 L. J. (s) Lewis v. Winter, W. W. & C. P. 251, S. C. 18 Q. B. 173. D. 47. SIGNING JUDGMENT. 637 gave tlic executor tlie two following terms in which to enter Tart ill. it, so that applying in Easter Term, 1855, to enter judg- ""•'^'"•'^- meiit nunc pro tunc as of the previous Easter Term, was in time (t). Though many terms often elapse after the reference before the award is made, it is not a matter of course to enter up judgment as of the term next after the assizes at which the verdict is found ; hut a special application for that purpose must be made to the court, and if the special ground alleged as the reason of the motion be answered by the affidavits on the other side, the rule will be discharged {u). If the award be lost, the court will nevertheless permit Judgment judgment to be entered up pm'suant to it on an aindavit ol award, its contents {x). When no verdict is taken subject to the reference, and the What form *' 111 ofjudgment arbitrator has no power to direct one to be entered, and the when no submission provides that final judgment is to be entered up '^^'^^c*- for the plaintiff or defendant according to the award ; if the arbitrator award that the plaintiff has no cause of action, it seems judgment ought to be entered up as on a judgment by confession (y). Where the order of reference provided that the successful ^jf*^!^ *^ party should be at liberty to sign final judgment for the ment for amount which should be payable under the award, and tax '^"°"jg*j his costs, and issue execution thereon for such amount, together with such costs so to be taxed ; the award being in the defendant's favour, the plaintiff disputed his right under this clause to sign judgment and issue execution for his costs, for strictly speaking there was no amount payable to him under the award ; but the court, looking to the intention of the parties, and putting a liberal construction on the terms, held, that the clause gave the defendant the right to sign judgment for his cdsts (z). A judge's order, referring an action of ejectment, directed Judgment that the costs of the suit, reference, and award, should abide ment as on the event of the award, that the party in whose favour the ^ *^""*^* {t) Heathcotc v. Wynn, 25 L. (x) nillv.Townsend,3Taunt.4o. J. 247. (v) Harding v. Forshaw, 1 M. {u) Brook V. Fcarns, 2 Dowl. & W. 415, per Parko, B., 410. 144. See Beeston v. Wliite, 7 (2) Maggs v. Yorstou, 6 Dowi. Price, 209. 481. 638 EXECUTION IN THE CAUSE REFERRED. Fart III. awai'cl sliould be made might sign judgment in the same OH. Yin, s. 3. jQf^nner, as if the cause had been tried at Nisi Prius, and that if in the plaintiff's favour, he might issue a writ of possession thereon, and proceed in the usual way for costs Entering on such judgment; it was said by the court, that if the damages to pl^iutiff rccovcred on one only out of two demises, the warrant defendant would be entitled to costs on the other ; and for costs, though the arbitrator awarded no damages, Coleridge, J., was of opinion that in signing judgment, the plaintiff might enter it for a shilling damages, so as to warrant the judg- ment for costs (a). Moving for Q^L the reference at Nisi Prius of an indictment for a on an in- nuisauce, if a verdict be taken for the crown, subject to the referred* ^"^^rd, and the arbitrator leave the verdict untouched, and direct that the nuisance shall be discontinued, the verdict remains to secure performance of the award, and the pro- secutor, in case the defendant neglects to obey the arbi- trator's directions, has the choice either of proceeding by attachment, or of moving for judgment on the verdict. In case the course is adopted of calling up the defendant for judgment, the motion should be made on affidavits, stating the award, and the fact of the defendant's non-performance. The defendant should have notice of the motion, and should be furnished with copies of the affidavits on which the motion is to be made {b). Award on On a reference of any matter of appeal to a court of reference^ of ggj^gj,^^ or cjuartcr scssious, which may be referred under appeal to statute 12 & 13 Vict. c. 45, when the submission is effected Sesdon^s bcforc the appeal is entered, the award by s. 12 is to be as may be en- binding and effectual as a regular judgment of the court of judgment general or quarter sessions, and may be enrolled among of the court ^^^ rccords of the court. When the submission is by order of sessions. , '' of the court of sessions, the award, on application made in due time, may be entered as the judgment of the com't of sessions in the appeal, and shall be as binding and effectual to all intents as if given by the court («?). (a) Doe d. Mad kins v. Horner, (r) See the Appendix of Sta- 8 A. &.E. 235. tutes. {b) K. V. Gore, 8 Dowl. 102. ISSUING EXECUTION. 639 SECTION IV. ISSUING EXECUTION TO THE AMOUNT AWARDED. Part III. CH.VIII.S. 4. Thoiigli, to warrant the criminal process of attachmenl-, ^^ demand personal service of the award on the party is necessary, no requisite such step need be taken before issuing execution on the cution. verdict for the amount awarded, as this is only civil pro- cess (r/). Execution can issue only for the sum awarded. Though Interest on the day for payment of the amount be long past, there can ed cannot be no additional charge for interest recoverable under this '^® levied. method of proceeding {e). If the party seek interest, he must bring an action on the awai'd, and then he may obtain both principal and interest {/). Where an arbitrator awarded to the plaintiff one sum in Obtaining respect of the matters in the action referred, and another ^^^ "of sum sum in respect of matters not in the action, the court made deposited . . , in court. absolute a rule entitling the plaintiff to have paid out of court to him the amount awarded in the action, out of a larger sum deposited by the defendant in court in lieu of bail ; but they refused to engraft on the rule a direction to pay over the residue to the defendant, saying that there ought for that purpose to be a separate application by the defendant, which the plaintiff should have the opportunity of answering by affidavit (f). If an award order a })ublic officer of a company in whose Execution name the company by statute are to sue and be sued, but cfmpanyby who is exempted from personal liability, to pay money or mandamus, costs in respect of an action referred ; if the Act give no power of taking out execution against the goods of the company, and no other- mode exist of enforcing payment, a mandamus will lie to the treasurer and directors, command- ing them to pay the sum awarded (/^). {(I) Borrowdalo v. Ilitchener, 3 & Ad. 777. B. & P. 244, overruling Eead v. (7) Fowio v. Steinkellor, 9 Garnett, Barnes, 58. Dowl. 1037. (e) Lee v. Lingard, 1 East, 400. (h) E. v. St. Katherine's Dock (/) Chiu-clier v. Stringer, 2 B. Compauy, 4 B. & Ad. 3G0. 6i0 EXECUTION ON THE CAUSE REFERRED. Part III. We have previously seen that by the stat. 22 & 23 Vict. 0H.YIII.S.4. f> 59^ g_ 26, it is provided that an award between railway Distress companies under this Act may be enforced by distress in- a"ainst finite and other process (i). railway companies. (i) See ante, P. III. Ch. 1, s. 2, d. 3, p. 622. CHAPTER IX. SETTING ASIDE AN AWARD ON MOTION. Having fully discussed the various modes of enforcing Part III. valid awards, we have now to see how a party may obtain °"- '^• relief at law against one that is void or defective. In the Scope and chapter treating of an award as a ground of action or ^^^ ^J;^ defence, it has been shown how the award relied on in an chapter, action may be impeached by pleading (a) or evidence {b). But a party who believes that an award made against him is open to objection, frequently desires to take the initiative, and have it avoided at once. This, if his objections be well founded, he may in general effect by the summary method pointed out in this chapter — of making a motion in court to set aside the award. On what references the courts of law have jurisdiction to entertain the motion, — within what period after the award has been published the motion must be made, — and for what causes the courts will set the award aside, are respectively set forth in the three first sections. The four succeeding sections treat of — the practical steps to be taken on making the application — the rule to show cause, — the answer that may be given by the party support- ing the award, — and the result of the motion. (a) See P. HI. Cli. 3, s. 4, p. (6) See P. IH. Ch. 3, s. 5, p. 526, 534. 642 SETTING ASIDE AJST AWAED. SECTION L THE JURISDICTION OF THE COUETS TO SET AN AWAED ASIDE ON MOTION. Pabt III. It is only wlien the submission is by rule of court, or OH. IX. 8. 1. ^^^ -^^ roade a rule of court, or has the effect of a rule of When sub- court (c), that the courts have any jurisdiction to set aside rule of an award on motion (d). When the submission was by court. agreement out of court, the courts of common law had no authority to set aside an award until the statute 9 & 10 Will. III. c. 15. For misbehaviour of the arbitrator, the only remedy was by bill in equity, since it could not be pleaded as a defence to an action on the award; and in such a case a bill in equity still remains the only means of relief, when the sub- mission, if made out of court, does not fall within the operation of the above-mentioned Act of Parliament {e), or the Common Law Procedure Act, 1854. Stat. 9 & The statute of Will. III. provides in effect, that in all c. 15. cases, where the submission contains an agreement for making it a rule of any of the superior courts of record, (among which the Court of Chancery is reckoned), the award, if j)rocured by corruption or undue means, shall be set aside on complaint made within a limited time to the court, of which the submission is agreed to be made a rule(/)._ Motion in The jurisdiction to set aside an award, whether at common court. j^^ ^j. ^Q(jgj. the statute, can alone be exercised on motion made for that purpose openly in the court of which the sub- Not before mission has been made a rule ; for a judge at chambers has chambers. ^^ powcr to Set aside an award, though in vacation he can stay all proceedings under the award till the next term, in order to allow time for an application to avoid it to be made to the court (^). (c) Bennett V. Watson, 29 L. J, (/) Dawson v. Sadler, 1 S. & Ex. 357, S. C. 5 H. & N. 831. S. 537. See P. I. Ch. 3, s. 3, p. {d) MitcheU v. Staveley, 16 54. East, 58. (g) Cromer v. Chm't, 15 M. & (e) Veale v. Warner, 1 Saund. W. 310. 327, c. notes. JURISDICTION OF THE COURTS. 643 An award made pursuant to an order of reference on the Part hi. trial at the Lancaster assizes of a cause in the Common ""• '^' "• ^' Pleas at Lancaster, cannot be impeached on motion in the Court of courts at AVestminster, for they do not acquire any jurisdic- pieae at tion for this purpose under the 4 & 5 Will. IV. c. 62, s. 26, Lancaster. which empowers the superior courts at Westminster, after trials of actions in the Common Pleas at Lancaster, to grant new trials or enter verdicts or nonsuits. But in this particular case the application may be made to any judge at chambers, all of the judges being appointed judges of the Common Pleas of Lancaster, under sect. 24 of the act (k). SECTION IL WITHIN WHAT PERIOD THE MOTION TO SET ASIDE AN AWARD MUST BE MADE. I. When award under the statute of William III.'] — It is Time for enacted by the 9 & 10 Will. IIL c. 15, s. 2, that awards TsSward procured by corruption or undue means shall be adjudged "°'^®'' ^'^^ to be void, and be set aside, provided '' complaint of such corruption or undue practice be made in the court where the rule is made for submission to such arbitration or umpu'age, before the last day of the next term after such arbitration or umpirage made and published to the parties." K an award be made in vacation, the motion to set it aside must be made before the last day of the ensuing term. If it be made in term time, the party has the remaining por- tion of that term, and until the last day of the following term, to make his application. Formerly it was held that an award made between the essoign day of Trinity Term and the commencement of the full term, was to be held as made in Trinity Term, and that therefore an application to set it aside made in Michaelmas Term, was within the time limited by the statute {i). But since the modern Act of 11 Geo. IV. & 1 Will. IV. c. 70, s. 6, which directs that each (A) BjTne v. Fitzhugh, 5 Tyi-w. (i) Burt, In re, 5 B. & C. 668. 221. 644 SETTING ASIDE AN AWARD. Part III. term shall commence on a particular day, as the three days CH. IX. s. 2 . previous to the first day of full term cannot any longer be considered as part of the following term, but as belonging to the previous vacation (/«), if an award be now made within them, the motion must be made in the term immediately commencing. Limit ap- At One time it was argued that a party need not apply to ever the Set aside the award until some step was taken to enforce it, ground of j^^^j^ Lord Mausficld held the words of the statute were too motion. plain to allow of such a construction (ly At another time it was contended that the limitation of the statute only applied to cases where the award was impeached for cor- ruption or undue practice, and that the award might be set aside at any time for objections manifest on the face of the instrument ; but the courts have clearly laid it down that the limitation given by the statute applies to all objections, intrinsic as well as extrinsic, and that an award, however defective on its face, cannot be set aside on any grounds after the time allotted by the act If, however, any attempt be made to enforce an award by attachment, the application may be resisted at any time, however late, for defects appear- ing on the face of the award (m). PubiicatiGu The statute of William III. {71) provides that the time for tie^ noUce Setting aside an award shall begin to run after the award is of award made '■'■ and published to tlie parties.'''' The limited period, therefore, is not necessarily to be computed from the making of the award, but from the pub- lication of it to the parties. An award is ordinarily said to be published, as soon as it has been executed by the arbitrator and announced as his final determination, so that he no longer retains any power of alteration, and the instrument is complete as an award {0). But the publishing in this sense is not the publishing re- quired by the statute, which demands a publishing to the parties. There is no publishing to the parties until they [k) Price v. Hughes, 1 Dowl. 781 ; Aiiriol v. Smith, 1 Turn. & 448. E.. 121 ; Dubois v. Medlycott, (Z) Preame v. Piimeger, 1 Cowp. Barnes, 55 ; Stevenson v. Brown- 23. ing, Barnes, 56. (m) Pedley v. Goddard, Y T. E. («) 9 & 10 W. III. c. 15. 73 ; Lowndes v. Lowndes, 1 East, (o) Brooke v. Mitchell, 6 M. & 276 ; Zachaiy v. Shepherd, 2 T. E. W. 473. LIMIT OF TIME FOR MOTION, 645 have notice that the award has been made {p). This notice Part hi. is sufficient ; and the time will run from the date of such °°- "• ^- ^- notice, although it be not until long after that the party has intimation of the contents of the award, or is served with a copy of it {q). As in cases of references not under the statute the courts Notice of commence the computation of the period allowed for setting award to be ^ ^ ° had on pay- aside the award from the publication to the parties by ment of ex- analogy to the statute (r), the following points decided on °®^^^^® ®^ this head on submissions by common law may conveniently be noticed here. In a case in the Common Pleas it was laid down that an award was to be considered as published to the parties, when the parties had notice that it was ready for delivery on payment of the reasonable charges ; and that when the arbitrator gave notice that the award was ready, but refused to deliver it except on j)a}Tnent of an alleged excessive charge, the court held that the award was not published until the arbitrator's charge had been taxed by the officer of the court (s). But, in a subsequent case, the Court of Queen's Bench expressed their dissent from the above decision, and held that an award was published, when the arbitrator gave notice that the award was ready to be delivered on payment of his charges, whether those charges were reasonable or not (f). And in this view the Court of Exchequer concur, on the ground that it leads to less dispute afterwards ,- whereas the rule in Musselbrook v. Dunkin (u), would make the time for moving to set aside the award depend upon the variable time when the Master might make his report as to the reasonableness of the charges (x). In a more recent case the Court of Common Pleas seem to have held that an award was published by a notice that it was ready for delivery on payment of a specified sum for the arbitrator's charges, although it was suggested that that sum was excessive ; for when the plaintiff moved to set (_p) Brooke v. Mitchell, 6 M. & (s) Musselbrook v. Dunkin, 9 W. 473 ; Potter v. Newman, 4 Bing. 605. Dowl. 504. (<) Macarthur v. Campbell, 5 B. (q) Hemswortk v. Brian, 7 M. & Ad. 518. & G. 1009. (u) 9 Bing. 605. (r) Potter v. Newman, 4 Dowl. [x) Brooke v. Mitcbell, 6 M. & 504. W. 473. 646 SETTING ASIDE AN AWARD. Part III. aside the award whicli had been taken up hy the defendant, ""• ^^ ^' ^- and alleged as an excuse for not applying within the proper time after this notice of the award being ready for delivery, that the fee demanded T)y the arbitrator was extortionate, and that therefore he had not taken up the award ; the court ex]3ressed a very decided opinion against the validity of the excuse, the party not having applied to the court to have the arbitrator's charges taxed by the Master (y). Whether Whether the courts have a discretionary power of allowing give further further time than the statute prescribes for the application time for j^q^ j^g doubted. moving. '' •111 It is true that where one of the parties improperly kept the submission, and thus, it was contended, prevented it being made a rule of court within the term following the making of the award, and rendered it impossible for the other party to apply to set aside the award within the statutable time; Williams, J., on a motion for an enlarge- ment on these grounds, made on the last day but one of the term, granted the party permission to move to set aside the award in the following term, and directed that, if a rule nisi should then be granted, it should be dated as of the pre- ceding term {z). But the propriety of the above decision has been ques- tioned by Coleridge, J., on several occasions. That learned judge, remarking that the application in Per7nng & Keymer, In re {a), was ex parte, under a somewhat similar state of facts, came to a contrary decision ; expressing strong doubts of the power of the courts to antedate the rule, and saying that he had no idea that the courts could dispense with the provisions of an Act of Parliament, though they might dispense with their own rules (d). On a more recent occasion, where a party, on the last day but one of the term next after the award was made, asked leave to be allowed to move on the last day of term to set aside the award, on the ground that the affidavit on which the motion was intended to be grounded had not arrived {y) Moore v. Darley, 1 C. B. (a) 3 Dowl. 98. 445. (b) Smith & Blake, In re, 8 (z) Perring & Keymer, In re, 3 Dowl. 133, S. C. 2 Jur. 1015 ; Dowl. 98. Eeynolds v. Askew, 5 Dowl. 682. LIMIT OF TIME FOR MOTION. 647 from the country, Maiile, J., refused the motion, saying, Part III. that to allow it would be to repeal the Act (). In like manner, the Court of Exchequer in one instance held the application to set aside an award made in the preceding term on a reference at Nisi Prius of a cause and all matters in difference to be too late {q). With respect to this case, Coleridge, J. , said that the report was so short that it was difficult to say on what principle the decision went, and that it seemed probable the attention of the court was not directed to the point in question (r). These cases, however, so far as they are really inconsistent with the rule adopted from analogy to the statute, may be considered as deliberately overruled, for that limit of time has been fixed after full consideration of all the decisions. It is the submission and not the award that decides the limit, for where by the order of Nisi Prius all matters in difference were referred with the cause, the application to set aside the award was permitted to be made after the first four days of term, although the arbitrator stated in his award that neither party had any claim against the other in respect of matters in difference out of the cause (s). As the award cannot be considered as a verdict when the cause, though alone, is referred at a stage earlier than the trial at Nisi' Prius by judge's order, or rule of court, the of England Eailway Company, 8 Q, B. 938 ; Hayward v. Phillips, 6 A. &E. 119. {n) Eawsthorn v. Arnold, 6 B. & C. 629. (0) Martin v. Burge, 4 A. & E. 973, S. 0. 6 N. & M. 201. {p) Lyng v. Sutton, 5 Dowl. 39. (?) SeU V. Carter, 2 Dowl. 245. (r) Allenby v. Proudlock, 4 Dowl. 54. (s) Moore v. Butlin, 7 A. & E. 595. IJMIT OF TTJIK FOR MOTION. 651 discretionary limit for setting aside tlie award in such cases Part hi. is the period given by the statute ; and of course the limit is ^^- ^^' »• 2- the same when matters beyond the cause are referred in addition {t). When the award directs the verdict for the plaintiff to Time for stand, subject to the opinion of the court, a motion to enter ^°ei"fer^ a verdict for the defendant jiursuant to a point raised on diet pur- the award (whether the arbitrator be or be not specially em- pointstated powered to raise questions), must be made within the same ^" award, time as a motion to set aside the award ; for the arbitrator having expressly decided for the plaintiff, the application is in fact an application to set aside his award ; and both terms may be included in one rule ; either to set aside the award or to enter the verdict according to the opinion of the court on the facts found (u). III. W//e)i the reference is cmnimhory.'] — By the Common Limit on Law Procedure Act, 1854, the 17 & 18 Vict. c. 125, s. 9, 'S'llcr^ " All applications to set aside any award made on a compul- sory reference imder this Act shall and may be made within the 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 discharged, such award shall be final between the parties " (x). IV, When further time allmved on awards at common Discretion- law.'\ — In all cases of references by common law, whether furt*her^'°^ the prescribed limit be that adopted from analogy to a ver- t'^e to diet, or that founded on analogy to the statute, the courts in the exercise of their discretion will, on sufficient grounds being shown to them, allow a further 23eriod for making the application to set aside the award (y). Thus, where an When no (<) Allenby v. Proudlock, 4 ported in Eiccarti . Kingdon, Dowl. 54 ; SjTige v. Jervoise, 8 notes, 3 D. & L. 773 Anderson v. East, 465 ; Eogers v. Dallimore, Fuller, 4 M. & W. 470. 6 Taunt. Ill ; Potter v. Newman, (x) See Bennett v. Watson, 29 4 Dowl. 504; Hare v. Fleay, 11 L.J. Ex. 357; S.C. 5H.&N.831. C. B. 472. {y) Allenby v. Proudlock, 4 (i<) Paxton V. Great North of Dowl. 54 ; Paxton v. Great North England Railway Company, re- of England Eailway Company, 8 652 SETTING ASIDE AN AWARD. Part III. CH. IX. s. 2. time to get counsel's opinion. Party keep- ing back order of reference. award was made on reference of a cause at Nisi Prius, the court, on a statement of facts showing that it was impossible for the attorney to prepare a case, and get counsel's opinion on the validity of tlie award within the first four days of term, on application for that purpose made on the second day of term, enlarged the time for making the motion to a day later than the fourth day of term (z). In a later case, on a reference by judge's order of a cause and all matters in diiferenee, where the defendant, in whose favour the award was, improperly kept the order of reference from the plaintiff and prevented its being made a rule of court till too late, Patteson, J. granted a rule giving the Counsel failing to move in time. First rule discharged on technical grounds. plaintiff an additional term to move to set aside the award, and directed that the rule to set aside the award, if granted, should bear date on the day of the application for the enlargement. The motion for leave to move (being made in Easter Term) asked leave to move in Trinity Term, but the argument on that rule not coming on until Michaelmas Term, it having been enlarged by consent, it was urged that the court would not make absolute a rule which could have no effect when granted, as Trinity Term had elapsed ; but the court intimated that they thought they had power to mould the rule accordingly, as it had stood over by consent ; and the rule was ultimately drawn up allowing the party to make his motion to set aside the award in the Michaelmas Term then instant («). Where a whole term had elapsed after an award made on a submission by a judge's order, the court entertained the motion in the second term, and set aside the award, the merits being clear, and the counsel having been instructed to move earlier, but having for some cause failed to do so (b). Where the rule to set aside the award was enlarged by consent to beyond the limited period, and then ultimately discharged on a preliminary technical objection, Patteson, J. , being of opinion that had the rule not been so enlarged, Q,. B. 938 ; Eogers v. Dallimore, 6 Taunt. Ill; Synge v. Jervoise, 8 East, 465 ; Hemsworth v. Brian, 7 M. & G. 1009 ; Worrall v. Deane, 2 Dowl. 261. (z) Bennett v. Skardon, 5 M. & E. 10. (a) Bottomley v. Buckley, 4 D. & L. 157. (&) Eogers v. Dallimore, 6 Taunt. 111. LIMIT OF TIME FOR MOTION. 6<53 but disposed of on the same ground within the first term, Pakt in. the party might within that term have moved again, thought ch. ix. a. 2. this a sufficient reason for allowing a second application as soon as the first rule was discharged (c). But a party who would take the case out of the ordinary stating ex- rule must show clearly to the court why the application is ^"1^^°'^* ^ made too late. Hence, if after the usual period information be obtained of facts which afford grounds for impeaching the award, the rule will be refused, unless the party positively allege that he did not know of the circumstances on which he relies in time {cl). It is no sufficient reason for delay on Party mis- the part of the plaintifi", that he failed to move in time, '^q'Jj^^^."^' as the defendant had misled him, by stating that he, the defendant, intended to move to set the award aside ; for the plaintifi" ought not to have relied on the defendant, but to have proceeded himself (e). In a recent case the Court of Exchequer considered that Bad health. an affidavit that the applicant was in bad health, and unfit on that account to attend to business, did not excuse a delay ; and Pollock, C. B., stated the rule could not be relaxed except a case of fraud was made out (J'). The cases which have been previously cited as showing Arbitrator that an award is to be considered as published to the parties, exMssive*^ although it can only be had on payment to the arbitrator of ^^e. an extortionate fee, prove also that the fact of the party on that ground having delayed to take up the award, and so remaining ignorant of its contents, is an insufficient excuse for not applying to set aside the award in time. If, however, the party had had the arbitrator's charges taxed, and had demanded the award, tendering the sum found reasonable by the Master, the court perhaps would have granted some indulgence if the arbitrator's continued refusal to deliver the award had obstructed the party's moving in due course (^). Where an arbitrator makes an award after one of the par- Recent ap- ties becomes insolvent, and the assignee is not appointed ^j,'^°*™''°*' assignee. (c) Sherry v. Oke, 3 Dowl. 349. N. S. 358. (d) Eeynolds v. Askew, 5 Dowl. (g) Macai-thur v. Campbell, 5 B. 682. & Ad. 518 ; Moore v. Darley, 1 C. (e) Emet v. Ogden, 7 Bing. 258. B. 445 ; Musselbrook v. Dmikin, (/) Guadiano v. Brown, 2 Jur. 9 Bing. 605. 654 SETTING ASIDE AN AWARD. Part III. until two terms have expired, the court, it seems, will not OH. IX. s. 3. iiear him, although he moves to set aside the award imme- Issuing diately on his appointment (Ji). So the circumstance that in bank- ^ ^^^ ^"^ bankruptcy has issued against the plaintiff is no ruptcy. reason for extending the time {i). SECTION III. FOR WHAT CAUSES AN AWARD MAY BE SET ASIDE ON MOTION. All equita- 1. Where the conduct of tlie arbitrator corrupt or irregular. "^ avafiabie — ^^ ^^^ remark as a general rule that every ground of relief in equity against an award is equally open in the courts of common law on motion in a summary way to set the award aside {Ji), Same An award on a compulsory reference under the Common fefetences" ^^^ ProceduTc Act, 1854, cau be set aside only on the same by com- grounds as awards on references by agreement {I). by consent. ^^ neither class of arbitrations can an award be im- Not for peached on the ground that it is an erroneous decision in kw or'fact ^^^ ^^ ^^^^ when the alleged error does not appear on the face of the award (m). Corruption In every court of law or equity the award will be set aside tid'ity'of '^^ motion, if it be proved that the arbitrator is corrupt or arbitrator, partial (w), or that he is secretly interested in the subject referred id). Legal mis- There may be ample misconduct in a legal sense to make arbitrator, the court Set aside an award, even where there is no ground (7i) Hobbs V. Ferrars, 8 Dowl. Brown v. Hellaby, 26 L. J. Ex. 779. 217, S. 0. 1 H. & N. 729 ; HoUo- (i) Hemswortb. v. Brian, 7 M. way v. Francis, 9 C. B. 559. 6 G. 1009. (to) Baggalay v. Bortbwick, 10 {k) E. T. Wbeeler, 3 Bui-r. C. B. N. S. 61, S. 0. sub nom. 1257 ; Lingood v. Eade, 2 Atk. Baguley v. Markwick, 30 L. J. 0. 501. P. 342. (Z) Hogg V. Burgess, 27 L. J. («) Tittenson v. Peat, 3 Atk. Ex. 318, S. 0. 3 H. & N. 293; 529; Morgan v. Mather, 2 Ves. Holgate V. KiUick, 31 L. J. Ex. Jr. 15. 7 ; Mundy v. Bluck, 9 C. B. N. (o) Earle v. Stocker, 2 Vern. S. 557, S. C. 30 L. J. C. P. 193 ; 251. WHAT A GIIOUNU OF MOTION. 655 for imputing the slightest improper motives to the arbitra- Part hi. tor (p). Thus the award will be set aside, if the arbitrator ""• "• "• ^- refuse to postpone a meeting for the purpose of allowing a party time to get counsel on his part, where the otlier side Refusing unexpectedly appears by counsel (q) ; so if he receives afifi- counsd. ^^ davits instead of viva voce evidence, when he is directed to examine the witnessess on oath (r) ; but not if he omit to Omitting to ., .. ,., iiii • 1 swear wit- swear the witnesses, and the party at the meetmg do not nesses. request him to administer the oath, or after objecting, sub- sequently acquiesce in the mode of examination (6-). The award may be impeached if the ai'bitrator make his Not hear- award without having heard all the evidence (t), or having ^°^ *^^' allowed the party reasonable opportunity of proving his whole case (u). So, also, if contrary to the principles of Examining natural justice he examine a witness or a party privately or party ab- in the absence of his opponent ; unless the irregularity be ^®°*'- subsequently waived by the parties {■x). If the arbitrator proceed ex parte without sufficient cause. Proceeding or without giving the party absenting himself clear notice of fmpToperly his intention so to proceed, the award will be avoided (y). So, likewise, if he refuse to hear evidence on a claim within Refusing to scope of the reference, on a mistaken supposition that it is matter in not within it (z) ; but not if he erroneously reject admissible ^lifference. or receive inadmissible evidence (a). His refusing to hear additional evidence tendered, when the whole case is referred back to him by the court, is fatal (d), but not so, when the award is sent back with a view to a particular amendment only being made (c). When there are several arbitrators, if one of them take One of several ar- (p) Pliipps v. Ingi-ain, 3 Dowl. 637 ; Harvey v. Shelton, 7 Beav. 669. 455. See -P. II. Ch. 4, s. 1, dd. (q) Whatlev V. Morland, 2Dowl. 9, 10, pp. 184, 188. 249. See P. II. Cli. 4, s. 1, d. 2, (y) Gladwin v. CKilcote, 9Dowl. p. 165. 550. See P. II. Ch. 4, s. 1, d. (r) Banks V. Banks, 1 Gale, 46. 11, p. 191. (s) Eidoat v. Pye, 1 B. «fe P. (2) Samuel v. Cooper, 2 A. & 91. See P. 11. Ch. 4, s. 1, d. 6, E. 752. P- 175. (rt) Hagger V. Baker, 14 M. & {t) Pliipps v. Ingram, 3 Dowl. W. 9. See P. II. Ch. 4, s. 1, d. 669. 12, p. 193. (m) Pepper v. Gorham, 4 Moore, (i) Nickalls v. Warren, 6 Q. B. 148. See P. H. Ch. 4, s. 1, d. 7, 615. p. 178. (c) Howett V. aements, 1 C. B. (x) Dobson V. Groves, 6 Q. B. 128. See P. H.Ch. 10,s.2,p. 453. 656 SETTING ASIDE AN AWARD. Part III. OH. IX. s. 3. bitrators usii g false case and opinion. Delegating authority to one another. Two of three arbi- trators act- ing alone. Arbitrators appointing umpire by lot. Umpire not re-heuring case. counsel's opinion on an incorrect statement of the facts, and knowingly act upon it, the award will be set aside, but not if he take an opinion on a case truly drawn up (d). So if one delegate his authority of deciding a point of law to another absolutely (e), but not if he merely give up his own opinion to the other (/). So also if they execute the award sepa- rately {g). Even when the submission provides, that an award made by any two out of the three arbitrators shall be valid, if two of them hold meetings alone, without notice to the third, the award may be impeached; but not if after notice the latter stay away (Ji) ; so it will be bad, if the two exclude the third from the meetings by force or fraud, or make an award without first taking his opinion {i). An umpirage, or award of an umpire, may be set aside, if the two arbitrators appoint the former by lot and not by choice (Ji), unless the parties have consented to that mode of appointment (/). So also, if the umpire make his award, refusing to rehear the evidence, his decision will be set aside; but the award will be sustained, if the parties, by the sub- mission, or by their conduct, have agreed to relieve him from the duty of re-examining the witnesses {m\ Erroneous judgment of arbi- trator. II, When the award a mistaken decision in law orfacf] — An award, good on its face, cannot be set aside for an erroneous judgment of the arbitrator on a question of law ; nor will the court review his decision as to the facts, or allow the merits of the case to be gone into (n) ; although in very early times the Court of Chancery took upon itself to examine the propriety of the arbitrator's decision as to the {d) Hare, In re, 6 Bing. N. C. 158. See P. II. Ch. 4, s. 2, d. 3, p. 203. (e) Little v. Newton, 9 Dowl. 437. (/) Eardley v. Steer, 4 Dowl. 423. See P. II. Ch. 4, s. 3, d. 3, p. 208. {g) Wade V. Bowling, 4 E. & B. 44. {h) Bailing v.Matcliett.'Willes, 215. (i) Templeman & Eeed, In re, 9 Dowl. 962. See P. II. Ch. 4, s. 3, d. 4, p. 210. {k) CasseU, In re, 9 B. & 0. 624. {I) Tunno & Bird, In re, 5 B. & Ad. 488. See P. n. Ch. 4, s. 4, d. 3, p. 222. {m) Salkeld & Slater, In re, 12 A. &. E. 767. See P. II. Ch. 4, s. 4, d. 6, p. 231. in) Lancaster v. Hemington, 4 A.&E. 345. SeeP.ILCh. 5, S.8, d. 1, p. 292. WHAT A GROUND OF MOTION. 657 nmouiit of damages, and set aside tlie award where the Pakt lii. damages awarded were deemed excessive (o), ch. ix. s. 3. The court will not set aside an award on a suggestion Arbitrator that the arbitrator has allowed in account premiums of igg^^nty^of insurance on an illegal voyage to a hostile port, the legality * contract of the ground of the insurance being for the consideration of the arbitrator (p). When the arbitrator has made a mere mistake in the com- Whether putation of the amount awarded, intending to give a different aside for sum than that set down in the award, the present inclination ff ^ ™'^ ' A take of ar- of the courts of law is to hold that the award cannot on that bitrator. account be set aside. The question how far an award is impeachable for a mistake, either apparent on the face of the instrument or not, whether made out by extrinsic state- ments of the arbitrator, ox raised purposely in his award for the oj^inion of the courts, has been abeady discussed at length {(j). There do not seem to have been any recent decisions in equity respecting the effect of a mistake in the award, so as to enable one to pronounce, how far the modern decisions of the common law courts on this head will meet with the sanction and adoption of the equity judges. It is, however, desirable that an uniformity of practice and principle should prevail in all the courts on subjects which in every court are to be decided on equitable grounds, and not on any technical rules of legal construction. III. Wken the award is a mdlity.~\ — If the award be alto- Void award gether void, and can be considered a nullity, and nothing aside. can be done upon it but by suit, as where the arbitrator's authority has been revoked, the court will not usually inter- fere to set it aside, because any suit brought to enforce it must fail. But there is an exception, where something may be done under the award, which renders the interference of the court necessary ; for instance, when the award orders a (fl) Cooper V. , 3 Eep. in {p) WoUenberg v. Lageman, 6 Chanc. 42, 76, A. D. 1672, S. C. 2 Taunt. 250. Vern. 251; 1 Eq. Cas. Ab. 49; {q) Phillips v. Evans, 12 M. & Younge V.Cooke, 3 Eep. in Chanc. W. 309. See P. 11. Ch. 5, s. 8, 45, 82 ; Brown v. Brown, 1 Vern. p. 292, 157, A. D. 1683. 658 SETTING ASIDE iVN AWARD. Part III. CH. IX. s. 3, Award made after time ex- pired. Or revoca- tion. Improper stamp. Deficieut recital. verdict to be entered, the court will set it aside, though the submission had been revoked ; since, if the award be allowed to stand, the party would be entitled to judgment, and might issue execution (/■). An award made after the time for making it has expired, will often be set aside (s), unless the conduct of the parties have amounted to an enlargement of the period {t) ; so also, as just noticed, will an award made after the submission has been revoked, either by the will of the party or by his death (u), Tlie want of a proper stamp is no ground for setting aside an award, when no steps have been taken to enforce it {x). Nor can it be attacked for the want of a recital to show that the arbitrator has jurisdiction (y), or for a false recital {z). Two awards, each decid- ing pai t, no final award. Award omitting to decide all matters. Reserving or delegat- ing deci- sion. IV. WJien the award is notjinal.'] — ^When the award is not final it will be set aside. If, without special power, the arbitrator make two awards, each deciding part of the matters referred, and not one entire award on all together, both may be set aside, for there is no one final award on all the subjects (a). So also if the award fail to decide on all the matters referred for determination (^), whether the omis- sion ai)pear on the face of the award, or be shown to the court by affidavit ; but it will not be set aside, if the question undecided were not notified to the arbitrator as a matter in difference, or the j^arties showed by their conduct that they did not mean him to decide it (c). So it will be avoided, if (r) Doe d. Tui'nbull v. Brown, 5 B. & C. 384 ; Hobbs v. Forrars, 8 Dowl. 779 ; WorraU v. Deane, 2 Dowl. 263. (s) Swinfoi-d & Horn, In re, 6 M. & S. 226. See P. 11. Ch. 3, s. 1 d. 2 13. 129. * (/) Hailett v.HaUett, 7 Dowl. 389. See P. II. Ch. 3, s. 2, d. 2, p. 137. (u) Clapham v. Higbam, 1 Bing. 87 ; Potts v. Ward, 1 Marsh, 366. See P. II. Ch. 3, s. 3, d. 8, p. 159. (a;) Preston V.Eastwood, 7 T.E. 95. {y) George v. Lousley, 8 East, 12. See P. II. Ch. 5, s. 2, p. 244. (2) Trew V. Burton, 1 C. & M. 533. See P. 11. Ch. 5, s. 2, p. 245. (a) Winter v. Munton, 2 Moore, 723. See P. II. Ch. 5, s. 3, p. 247. {h) Samuel v. Cooper, 2 A. »&; E. 752. See P. II. Ch. 5, s. 4, p. 253. (c) Eees v. Waters, 16 M. & W. 263. See P. II. Ch. 5, s. 4, d. 1, p. 249. WHAT A GROUND OF MOTION. 609 it reserve a point for the future decision of tlie arbitrator, Part hi. or delegate the determination of it to another (d) ; but no ""• '^- ^- ^- objection attaches to delegating to the master the taxing of costs, or appointing a stranger to perform a mere ministerial duty {e). It will also be set aside as not being final, if it dispose of NotdeciJ- a cause referred merely by directing a nonsuit {/) ; or when cause it ought, for the purposes of costs, to show in whose favour the cause is decided, if it award merely that the proceedings nor all the in the cause are to cease (y) ; or if it fail to decide every issue p,^^y^ ^*° joined in the cause {h). But a party in whose favour a mis- Mistake in take is made cannot avail himself of it to set aside the pYny"^ award. Thus a defendant cannot urge that the arbitrator moving. has improperly divided a i^lea of set-off, awarding i^art of the issue raised on that plea in his favour, and part for the plaintiff; whereas the whole issue ought to have been found for the latter (/). The award will be set aside in the Court of Queen's Directing Bench (but not in the Exchequer), if it decide a cause only "^g^ g°t,.y by an unauthorized dii-ection that a verdict should be of verdict. entered (k). If it omit to award damages on the issues found for the plaintiff (/T), it may be impeached, but not if there be an issue found for the defendant on a plea covering the whole cause of action (m). It may be assailed for omitting Omitting to assess damages on a new assignment, on which the plain- ^°,„^^^gs tiff has signed judgment for want of a plea (71) ; and probably properly. in many cases for not assessing contingent damages on a demurrer {0). When all matters in difference, as well as the cause, are Not finding referred, and the arbitrator finds for the defendant on the defeadaut's set-off. (r?) Tandy v. Tandy, 9 Dowl. 595. 1044. (A) Hawkyard v. Stocks, 2 D. & (e) Pedley v. Goddard, 7 T. E. L. 936 ; Cock v. Gent, 13 M. & 73. See P. II. Ch. 5, s. 4, dd. 10, W. 364. See P. n. Ch. 6, s. 3, d. 11, pp. 269, 272. 3, p. 341. (/) WM V. nolt, 9 M. & W. {I) Wood V. Duncan, 7 Dowl. 161. 91. (7) Hunt V. Hunt, 5 Dowl. {m) Warwick v. Cox, 1 D. & L. 422. See P. II. Ch. 6, s. 2, d. 1, 986. See P. XL Ch. 6, s. 4, p. p. 325. 343. (//) Kilbnru v. Kilbimi, 13 M. {11) Wykes v. Shipton, 8 A. & & W. 671. Sec P. n. Ch. 6, s. 2, E. 246. dd. 3, 4, pp. 328, 329. (0) Cooper v. Langdon, 9 M. & (0 Moore v. Butlin, 7 A. & E. W. 60. D u 2 660 SETTING ASIDE AN AWARD, Part TIL general issue in debt, the award may be set aside for failing CH. IX. s. 3. farther to ascertain the amount of the defendant's set-off (/>). Directing Deciding a cause by an unwarranted direction that a judg- edTntry°of ^®^^ ^^ entered, is a sufficient ground of motion ; but not if jiuigment, the award also show by other provisions how the cause has J\uigment bccu determined {q). If the arbitrator, when empowered, stante vere- i^eglcct, although requested, to decide a question raised by dicto. the j)leadings as to the plaintiff's right to judgment non obstante veredicto, the award will probably be set aside (r). Omitting When the arbitrator is bound to award some costs, and r\^]jon gives none, or to ascertain their amount, and fails to do so, costs. 2i motion may be made to impeach his decision (s). On a ingcau^"' general reference, when the costs of the cause abide the separately evcut of the award as to the cause, it will be a good ground matters, of motion, that the arbitrator has awarded one gross sum in respect of the cause and all other matters together, since it cannot be seen for whom the cause is decided {t) ; or if the cause be determined for the plaintiff, since it cannot be said what amount of damages he has recovered in the action, so as to give information on what scale his costs are to be Party taxcd (m). But if no injury can result to the defendant from injured by the omission to Separate the damages, the defendant will not omission, j^g allowed to impeach the award for this defect (x). Award not If an award respecting partnership matters be not final, foTdefi"^ for want of providing for the case of a deficiency of assets, cieiicy of and there be a deficiency in fact shown to the court, it will partner- • i / \ jsbip funds, be set aside (y). V. Whe7i the award is uncertain.'] — When the award is uncertain it may be set aside. Thus, if it be doubtful whether the award has decided the questions referred (^), or (/))Maloneyv.Stockley,2Dowl, (C) Crosbie v. Holmes, 3 D. «&: N. S. 122. See P. II. Ch. 6, s. 4, L. 566. p. 349. {u) Liiiid V. Hudson, 1 D. &L. (7) Doe d. Body v. Cox, 4 D. & 236. See P. II. Ch. 7, s. 2, d. 2, L. 75. See P. H. Ch. 6, s. 5, d. 1, p. 370. p. 349. {x) Taylor v. Shuttleworth, 6 (r) AUen v. Lowe, 4 Q. B. 66. Bing. N. C. 277. See P. n. Ch. 6, s. 5, d. 2, p. {y) Eouth v.Peach, 2 Anst. 519, 351. S. C. 3 Anst. 637. [s) Morgan v. Smith, 1 Dowl. (2) Tribe & Upperton, In re, 3 N. S. 617. See P. 11. Ch. 7, s. 1, A. & E. 295. d. 3, p. 361. WHAT A GROUND OF MOTION. GGl how it has determined them («) ; so, wheu it leaves a dis- Part III. puted amount of money, other than costs, unascertained (b) ; ""• '^- ^- ^- so when it does not specify which of two persons is to do a As to certain act {c) ; or, when empowered to give general direc- ^"^.^ ^g^J. tions what shall be done, the arbitrator fails to prescribe ing persons. them with sufficient particularity (d). Not precise ^ ./ \ / _ _ in its direc- On a reference by an executor, an award ascertaining a tious. balance due from the testator, and orderino^ the executor to ^°* ^'^^^^s ' " on assets. pay the amount " out of the assets," will not be set aside as uncertain for omitting to ascertain whether there are assets (e). When the award is substantially inconsistent and repug- ip^^'^n- nant, it will be set aside (/). repugnant. VI. W//) Templeman & Eeed, In re, {t) Imeson & Horner, In re, 8 9 Dowl. 962. Dowl. 651; Pike v. Newman, 14 (2) Hawkyard v. Stocks, 2 D. & C. B. 425. L. 936. (m) Whiteheadv. Firth, 12 East, 608 SETTING ASIDE .IN AWARD. Part III. agent of the plaintiff's attorney, " that the paper writing CH. IX. s. 4 . liereto annexed marked D. is a true coj)y of the award or umpirage of A. B. , as this deponent has been informed and believes," and that he received the said paj^er writing from the plaintiff's attorney in the country, was held a sufficient verification {a). So an affidavit by the defendant, " that the paj)er writing marked A. was on," &c., "delivered by the arbitrator personally into the hands of this deponent as a copy of the award made by him in this cause," was con- sidered to be a prima facie proof that the copy was a correct copy {d). So also, an affidavit, " that the paper writing annexed to the affidavit was, or contained, as the deponent (the defendant) believed, a true copy of the award, the depo- nent having been served with the same by the attorney of the plaintiff," was held sufficient (eing, as we have seen, at liberty to enforce it, and liable to its burdens as far as they have assets, have, it is pre- sumed, a clear right to apply to set it aside (/"). Bankrupt When bankruptcy or insolvency does not free the party from liability to perform an award, he cannot by such bank- ruptcy or insolvency be precluded from moving to set it aside, for he is clearly aggrieved by an improper award against him {g). (a) Hawkyard V. Stocks, 2 D. <& G. 55 ; Lewin v. Holbrook, 11 M. L. 936. &W. 110. ih) Lund V. Hudson, 1 D. & L. (/) Ex pai-te Kempsliead, 1 236. Eose, 149. (c) Hayward v. PhilliiDS, 6 A. & (), the submission must be made a rule of court (where it is not one already) before any application to set aside the award can be enter- tained (q). There is no inconsistency in a party's taking this step for the purpose of enabling him to impeach the award ; for it is the submission, and not the award itself, which is made a rule of court, and the party thereby only affirms that he has given an authority to the arbitrator which the latter has abused (r). The motion must be made by the party aggrieved, or by his counsel in open court, on affidavits verifying the award or copy of the award, and when the objection is extrinsic, stating the circumstances which it is contended render the award bad. Where an arbitrator, who by mutual agreement of the parties had closed the case, refused the application of the defendant's attorney for another hearing to receive new evidence in reply to some accounts put in by the plaintiff; a motion to set aside the award made on the affidavit of the defendant's attorney, alleging generally that he was not aware of the nature of the accounts, and that he was in possession of evidence sufficient to outweigh them, was refused (among other grounds) on this, that as he could only know the effect of the evidence from the defendant, the court could not set aside the award without an affidavit from the defendant himself {s). The arbitrator, if a barrister, will not in general, in accordance with a rule laid down by the bar, and sanctioned by the judges, make any affidavit in order to support or defeat an application to set aside the award {t) ; nor, though (o) Adcock V. West, Ex., May 8, 1849. (2^) Bennett v. Watson, 29 L. J. Ex. 857, S. C. 5TI. & N. 831. (7) Harrison v. Grundy, 2 Stra. 1178; Eottoniloy V. Buckley, 4 1). & L. 157 ; Perring & Keynier, In re, 3 Dowl. 98 ; Boss v. Boss, IG L. J. Q. B. 138. See P. IH. Ch. 5, s. 1, p. 565. (r) Heming v. Swinnerton, 16 L. J. Ch. 287. (s) Einger v. Joyce, 1 Marsli, 404. (t) See P. II. Oh. 11, s. 4, d. 3, p. 472. MAKING THE MOTION. 671 lie be ■willing to furnish the court with his notes of tlic Tart III. evidence for the purpose of the argument, will the court '^"- '^•^- **• receive them, or apjirove of a verified copy of them hc'mg used, as either course. would be an infringement of the spirit of the above rule {u). There is no objection to affidavits being made by lay Lay arbi- arbitrators ; they consequently are often the most material '^^ "^' witnesses as to the facts. How far the courts will take into statements consideration the statement of an arbitrator as to the tor^nof ^u grounds of his award not made uj^on oath, but brought oath. before the court by the afiidavit of another, has been pre- viously fully discussed (x). After the court has taken the objection that the application AflSdavits to set aside the award is made too late, the court will not tion. allow afiidavits to be then filed to account for the delay (y). Whether the rule nisi be refused or granted, the party Fiiip§ affi- must file the affidavits on which the motion is made ; but if he neglect to do so, the court will not grant a rule to compel him, until he has been called upon by his opponent to file them {z). The courts will very rarely permit a second application to Second mo- set aside an award, when the party has once failed in conse- ^°^i^^ ^®' quence of a defect in the way in which he has brought his award. case forward. The courts will assume that the objections taken on the first rule are all that can be taken to the award («). The only excej)ted instances are where the defects are in the title or jurat of the affidavit (b). In one instance, where the rule was discharged on a preliminary technical objection, that a copy of the award had not been annexed to the affidavit verifying it, and that therefore the court had not the contents of the award before it; Patteson, J., expressed his opinion that had the rule been discharged within the term limited for moving to set aside the award, the party might within the term, as a (m) Doe d. Haxby v. Preston, (z) Pilmore v. Hood, 8 Dowl. 3 D. & L. 768. See P. II. Cli. 11, 21. s. 4, d. 3, p. 473. {a) Hellyer & Snook, In re, 2 {x) P. II. Ch. 5, s. 8, d. 2, p. Chitt. 265 ; R. v. Great Western 298; P. II. Ch. 11, s. 4, d. 2, p. Railway Company, 1 D. & L. 470. 874. (y) Eiccard v. Kingdon, 15 L. (/;) E. v. Great Western Railway J. a. B. 269. Company, 1 D. & L. 874. 672 SETTING ASIDE AN AWARD. Part III. matter of course, have obtained a fresli rule on correcting CH. ix^. 5. ijjg mistake, as the defect was not in the substance of the affidavit, but a mere slip of form ; and he allowed a second application to set the award aside, although the term had expired, as the previous rule had been enlarged by con- sent {c) ; but on a subsequent occasion the same learned judge, with the concurrence of the full Court of Queen's Bench, intimated that in the above case he thought he had gone too far, and that the latitude then allowed was very questionable {d). SECTION V, THE RULE NISI ON MOTIONS TO SET ASIDE AN AWARD. Oa readiii'' !• Drawing up the rule nisi to set aside the award.'] — The what rule ^ule uisi for Setting aside the award should be drawn up on up, reading the rule of court embodying the submission. It is not enough that that rule should be set out in the affi- davits (e). It should be drawn up on reading also the affidavits on which the motion is grounded, and, according to one case in the Exchequer, on reading the award as well {/). Though a rule to enforce an award must be drawn up on reading the original award, it is in general held unnecessary to draw up a rule to set aside an award on reading the award, or even a copy of the award (though the latter course is frequently adopted) (y), or to make any distinct reference to the award in terms on" the face of the rule; for it has been decided, both in the Queen's Bench and Exchequer, that it is sufficient to draw it up " on reading the affidavit of A. B. and the paper writing (c) Sheri-y v. Oke, 3 Dowl. 349> 138. See Browne v. CoUyer, 20 {d) E. V. Great Western Railway L. J. Q. B. 426. Company, 1 D. & L. 874. (/) Barton v. Ransom, 5 Dowl. (e) Christie v. Hamlet, 2 M. & 597. P. 316, S. C. SBing. 195 ; Crosbie (7) Lund v. Hvidson, 1 D. & L. V. Holmes, 3 D. & L. 566, 568, 236; Crosbie v. Holmes, 3D. & L. note; Ross v. Ross, 16 L. J. Q. B. 566, 568, note. THE RULE NISI. 073 annexed," provided the affidavit verify the paper annexed as ^^^'^ ^^^• a copy of the award {//). — '- — 1-^ Where, however, the rule was drawn up " on reading the Amending affidavit of A. B.," which verified a copy of the award as '""^"'^'• a true copy, but no copy of tlie award was annexed to the affidavit, Patteson, J., hehl, that tlie court had not the award before it, and therefore discharged the rule (2). It was urged in that case, that he might allow the rule to be amended, but after consultation with the other judges of the Queen's Bench, he declared that the court had no power to allow an amendment ; and he observed, that if he were to allow an amendment to be made, it could only be done on an affidavit, that the document was in the same state at the time of granting the amended rule as at the time of obtaining the original one, and that then the rule would appear to be drawn up on reading an affidavit sworn after the rule had been granted. On one occasion, however, where a counsel who had obtained a rule nisi to set aside an award, moved the following day to be allowed to file another affidavit in sup- port of his rule, on the ground, that he had stated a fact at the time of making the motion, thinking it was supported by the affidavit, but had since found that it was not. Tlie court, though they had expressed a strong disinclination to depart from the general rule not to allow affidavits to be filed after a rule obtained, granted the application on con- dition of the affidavit being filed the same day (k). It is not always necessary to have the award or a copy Award net before the court when the objection is dehors the award, for *^^®" "f- where the motion was made on the ground, that two arbi- trators had made the award without the knowledge of the third, the court said, that the party was not bound to take up a useless award, which he was seeking to set aside (l). When the submission is under the statute, the rule nisi Not after for setting- aside an award cannot be amended after the time *^™®. ^°^ o _ moving ex- limited by the statute has expired by drawing it up on pired. (h) Havwarcl v. PluUips, 6 A. «& (A) Perrin v. Krmei; 1 H. & W. E. 119 ; Piatt v. Hall, 2 M. & W. 20, S. C. 4 N. & M. 477. 391. (/) Hinton v. Meade, 24 L. J. (i) Sherry v. Oke, 3 Dowl. 349. Ex. 140. 674 SETTING ASIDE AN AWARD. Pakt III. reading an additional affidavit, sworn on the last day of ""• ^^- ^- ^- term, a day too late under the statute (w^). Whether On a rule to set aside an award, as on a rule to set aside drawn up ^ verdict, the Court of Queen's Bench will look at the record on reading ^^ the causc if uccessary, although the rule be not drawn up on reading it ; but as in the Common Pleas a rule for setting aside a verdict is drawn up on reading the record, it is pre- sumed that in the case of setting aside an award in that court the same course should be pursued, whenever it is requisite to bring the record to their notice {n). On reading If, howcver, from the nature of the objections, it become when^iir necessary for the court to look at the pleadings in a second record. action referred together with the one, in which the order of reference is made and the verdict taken by consent, the pleadings in that second action ought to be brought before the court by the affidavits in support of the motion, and the rule is obtained improperly, if they be not stated in them ; though if the affidavits in answer set them forth, the court will look at the whole pleadings, and decide on the objec- tions raised {o). If a cause be referred before plea by a judge's order, and an objection to the award be founded on the contents of the declaration, it seems proper to draw up the rule nisi on reading the declaration (j»). Reg. Gen. II. Stating the grounds of motion in the rule ?^^s^.] — By the r 169 ^ ' general rules of practice made in Hilary Term, 1853, sub- Grounds of sequent to the passing of the Common Law Procedure Act, must be 1852, r. 169. " Where a rule to show cause is obtained to stated. ggt aside an award or an annuity, the several objections thereto intended to be insisted uj)on at the time of moving to make such rule absolute shall be stated in the rule to show cause." This rule being almost identically the same as the old rules of the several comets, the cases previously decided on them are still applicable. The rule requiring the grounds of objection to an award (m) Holloway & Monk, In re, (o) Allen v. Lowe, 4 Q. B. 66, 8 Dowl. 138. (p) Crosbie v. Holmes, 3 D. & (7i) Sherry v.Oke, 3Dowl. 349. L. 568, note. THE RULE NISI. 675 to be stated in the rule nisi, applies equally to a certiUcate, Part hi, whether the arbitrator is to certify generally, for whom the ch.ix. s.5. verdict is to be entered, or only to certify to the associate i^^'e the amount of damages, for which the verdict for the plaintiff certificate is to be entered (q). In one instance, where the grounds of^'^rbitra- were omitted, Bayley, B., held that the rule might be amended on that point (r). In general, however, the party cannot avail himself of any Party eoa- ground which he does not specify. Thus, where an award gi"o^unds was considered bad for not ffivino- damaofes on an issue found stated in ijUG nils for the plaintiff, the court said, that, as the objection was not hit by the rule nisi, they could not set aside the award (s). It is not sufficient to state in the rule the head of objec- Stating tion, on which the party means to rely, as that the award is specificTiIy. uncertain, not final, that the arbitrator has exceeded his authority, or that he has not awarded on all the matters referred to him ; but the rule should state each objection specifically, and show in what respect the award is uncertain, or not final, in what respect he has exceeded his authority, and in what respect he has failed to decide all the matters submitted; for the purposes of the regulation would be defeated, if parties might state a general objection, and then go into any number of particular objections, which might range themselves under it ; and as difierent objections might, on reading an award, occur to different minds, it might happen that a party suj)porting an award against a rule stating the objections in a general form, might raise some objection which had not been thought of by the oppo- site side (t). . The following objections, that " the facts stated by the Forms of arbitrator on the face of his award are not sufficient to toogenerai. enable the court to decide the points of law thereby intended to be raised, or the several points of law which he was requested by the defendant to raise;" "that the arbitrator has not by his said award raised the points, which on the (f/) CarmicliaelY.Hoiiclien, 3N. («) Grenfellv. Edgcome, 7Q.B. & M. 203; Whatloy V. Morland, 2 661. 0. & M. 347. {t) Boodle v. Davies, 3 A. & E. (r) Whatley v. Morland, 2 C. & 200 ; Jones v. Powell, 6 Dowl. M. 347. 483. 676 SETTING ASIDE AN AWARD. Whether general statement helped by specific affidavit. Part III. part of the plaintiff he was requested to raise ; " " that the CH. IX. s. 5. award is not final, certain, and mutually binding, because it raises points for the opinion of the court which the arbitrator was not requested by either party to raise or state on the face of his award" (u) ; " that the arbitrator has made his award under a misapprehension of the terms of the reference " (x) ; have all been considered to be too general. Sometimes, however, the generality of the statement of objection in the rule has been held to be cured by the particularity of the affidavit in pointing out the particular defect. Thus where the rule stated as the ground of moving, that the arbitrator had not decided all matters in difference, and the affidavit, on which it was obtained, speci- fied certain matters alleged to have been in difference, and which were not mentioned in the award ; the court held that the rule, coupled with the affidavit, sufficiently ex- plained the nature of the objection, so as to satisfy the general regulation (j/). This lax construction of the regulation of the court, that the rule nisi might be helped out by the affidavits, was dis- approved of in a following case, where the degree of particu- larity above stated to be requisite was held to be what was intended (z) ; and in a later instance Coleridge, J. , stated that Rawsthorn v. Arnold (a), was not an authority on which he was disposed to act (b). But in a more modern case in the Exchequer, where the rule nisi was obtained among others on a ground " that the arbitrator had not awarded on a matter in difference sub- mitted to him," and the objection was taken, that it was too general, and the two last-mentioned cases were cited, the court held it sufficient; as the object of the rule was, that parties should not wander about in search of the defect relied on by their opponents, and in the case before them the affidavits directed the attention to that matter in difference, which it was alleged by the rule had not been awarded (m) Bradbee v. Chi-ist's Hospital, 4 M. & G. 714. {or) Allenby v. Proudlock, 4 Dowl. 54. {ij) Eawstborn v. Arnold, 6 B. & C. 629. (z) Boodle V. Davies, 3 A. & E. 200. (a) 6 B. & C. 629. [h) Gray v. Leaf, 8 Dowl. 6u4. SHOWING CAUSE. 677 on(c). And later still, Wightman, J., refusing to allow a Part ill. party to rely on a statement in the rule nisi " that the °"- ^^- ^- *^- arbitrator had exceeded his authority," stated, that had the affidavits sijecifically pointed out any objection of the nature of excess, he should have considered himself bound by the authorities to hold it sufficient, until there had been a decla- ration of the court to the contrary (d). If the rule nisi state an objection in general words, which Particular are followed by particular words of complaint, even sup- J^^'jting posing under the general statement, if it stood alone, a par- general ticular defect might have been brought before the court, still by the latter clause the inquiry would be narrowed to the grievance sjjecified therein {e). The effect of a ground of objection being too general is statement merely to prevent the party taking advantage of it : it does ^oi/^"^"^*^ not hinder him relying on other grounds of objection, which are sufficiently specifically stated in the rule (y). If the rule be not drawn up agreeably to the motion made Amending in court, as, for instance, if it be moved on some grounds, [„^\^o*^°^*^" and others not specified in the application be added without motion, permission of the court, the party supporting the award should apply to have the rule amended (^). SECTION VI. SHOWING CAUSE AGAINST THE RULE TO SET ASIDE AN AWARD. I. Practice on showing cause against the rule.'] — Before Taking showing cause, the j^arty opposing the rule should take an "f '^ij°''^ office copy of the affidavits on which the rule has been vita, obtained (A), but he is not bound to take office copies of the (c) Dunn v. Warlters, 9 M. & (/) Boodle v. Davies, 3 A. & E. W. 293, S. C. 1 Dowl. N. S. 626. 200 ; Gray v. Leaf, 8 Dowl. 654. (d) Staples v. Hay, 13 L. J. Q. {g) Bradbee v. Christ's Hospital, B. 60, S. C. 1 D. & L. 711. 4 M. & G. 714, 745. (e) Boodle v. Davies, 3 A. & E. {h) Brown v. Probert, 1 Dowl, 200. 659. 678 SETTING ASIDE AN AWARD. Part III. award or other exhibits attached to the affidavits ; and the CH. IX. 3. 6. practice now is not to do so (i). Showing According to a rule of the Court of Queen's Bench (k), r.Tda" of ^^^ ^^^ practice of the Common Pleas (/), cause cannot be term. sliowu agaiust the rule for setting aside an award on the last day of term, but the rule will be enlarged and made peremp- tory for the next term. In the Exchequer, however, the practice does not seem so strict, for instances are not wanting when the argument against an award has been heard on the last day of the term (w). Turning Somctimes, when cause is about to be shown, if the facts Into^special ^^ Complicated, the court will direct that the matter be case. turned into a special case, and the validity of the award will be considered, when the case comes on for argument (n). Inspecting The original agreement of reference may be looked at on agreement a motion to Set aside an award, though the rule nisi be not of refer- clrawn up on reading it, for the rule nisi is drawn up on reading the rule making the agreement of reference a rule of court, and the agreement of reference is in law part of the rule embodying it (o). ence. Showing II. What may he shown for cause against the rule.'] — cause. rpj^g party supporting the award may show for cause why the Motion too p^iie should be discharged, the preliminary objections, that the application to set the award aside has been made too Affidavits late ( ») ; OT that the affidavits on which the motion has been defective. ^/ / ' made are defective {q) ; or that the rule nisi is improperly Grounds drawu up (f). So with regard to the merits he may bring fact. forward affidavits to deny or explain away the matters of Point of fact alleged as the grounds of motion ; or if the imputation fu7 ^'^^^^' he of a defect in law, he may support the sufficiency of the award by argument, so as at least to render it doubtful [i) Hawkyard v. Stocks, 2 D. & Bing. N. 0. 103. L. 936. (o) Oswald v. Ld. Grey, 24 L. ik) M. T. 36 G. ni. K. B. J. a B. 69. [T) Bignall v. Gale, 2 M. & G. (p) See s. 2 of tliis chapter, p. 364. The court acted on tliis inile, 643. In re Bm-don, May 8, 1858. {q) See s. 4 of this chapter, d. (m) PhilHps V. Evans, 12 M. & 1, p. 666. W. 309. (r) See s. 5 of this chapter, d. {n) Staniforth v. Lyall, 4 M. & 1, p. 672. P. 829; Hocken v. Grenfell, 4 SHOWING CAUSE. 679 "whether the award be bad, and if he succeed so far, the court Taut hi. will not set it aside (5). cii. ix. 3. 6. It may be shown as good cause, that the error for which I'^rror in the party is seeking to impeach the award is one in his own party favour, and by which he cannot possibly be injured {t). juoving. If the award be impeached on the ground of an irregu- Irreguia- larity in the proceedings before the arbitrator, it may be*'^'^'^^^ shown in answer to the motion, that the irregularity was waived by the subsequent conduct of the party attempting to rely on it ; as for instance by his lying by with know- ledge of the objection and taking the chance of an award in his favour (u). But when an award is impeached on the Not when ground of one party in the absence of the other holding P'^^^Y^^- private meetings with the arbitrator, similar misconduct ested. on the part of the other party cannot be relied on to prevent the court setting aside an award, for the matter concerns not the individual only, but the due administration of justice {x). If the ground of motion be, that the award was made Time en- after the limited time, and that the enlargement was by two consent. ^ arbitrators without the knowledge of the third, or that the award was made by two without consulting the third, it may be shown for cause that by his conduct the party ob- jecting had impliedly or expressly consented to the course adopted (y). When the ground charged is, that the award is not final for Matter leaving a particular question undecided, it may be answered °™^**'^*^ by proving that the question was never brought before the brougiit arbitrator at all (z), or only for a collateral purpose, and be'^ decided. not as a matter in difference for his decision (a), or that the parties had practically agreed that he need not deter- mine it (b). (s) Cock v. Gent, 13 M. & W. {x) Harvey v. Shelton, 7 Beav. 364 ; Bowenv. Williams, 3 Ex. 93. 455. {t) Taylor v. Shuttleworth, 6 (y) HaUett v. HaUett, 7 Dowl. Bing.N. C. 277; Moore v. Butlin, 389; Peterson v. AjTe, 23 L. J. 7 A. & E. 595 ; Bradshaw's Arbi- C. P. 129. See P. II. Ch. 3, s. 2, tration, 12 Q. B. 562. d. 2, p. 137. {h) Bignall v. Gale, 2 M. & G. (z) Middleton v. Weeks, Cro. 830; Wyld, Ex parte, 30 L. J., Jac. 200. Bank. 10. See P. II. CL. 4, s. 1, (a) Rees v. Waters, 16 M. & W. dd. 9, 10, pp. 184, 188. See P. 263. See P. U. Cli. 5, s. 4, d. 1, II. Ch. 4, s. 4, dd. 3, 5, pp. 222, p. 250. 231. (6) Eees v. Waters, 16 M. & W. 080 SETTING ASIDE AN AWARD. Part III. CH. IX. s. 6, No dispute about matter left undecided. Affidavits to support award bad ou face. Party moving Laving accepted money under the award. Having paid money awarded. If the award be assailed for uncertainty in not specifying the amount of a sum of money, or in any other particular, it may be argued that the court will presume there was no dispute about the question, or it may be shown that in fact there was none (c). In a modern case, an award being objected to, on the ground that a direction in it was uncertain, it was admitted that the direction was uncertain and void ; but it was con- tended that it was mere surplusage, and would therefore not affect the rest of the award, as it was said that the arbitrator had no power to make the direction at all ; it being, as was alleged, respecting a matter not in difference : on affidavits being referred to to prove that such was the fact. Lord Denman, C. J., expressed a doubt whether the court would look into affidavits to sujjport an award bad on its face {d). If the plaintiff have accepted the costs of the reference and award, which by the terms of the rule of reference were to be paid to him by the defendant, this is such an admission of the validity of the award (for if there were no award no costs would be due), that it may be shown as a conclusive answer to the plaintiff's attempt to set the award aside (e). If an arbitrator, who is to settle the price of land taken by a railway company, and to direct what conveyance is to be executed, merely award the price, saying nothing about a conveyance, the court, to support the award will, it seems, sometimes, under peculiar circumstances, presume that the company obtained title to the land between the order of reference and award, so that a conveyance became unne- cessary (/). It has' been decided in Chancery that a voluntary payment of the amount awarded, with full knowledge of all the facts on which the party relies to avoid the award, will prevent him from sustaining proceedings to set it aside (^). But in a more modern instance at common law, Patteson, J., on an 263 ; Cooper v. Langdon, 9 M. & W. 60. (c) Cargey v. Aitcheson, 2 B. & C. 170. See P. II. Ch. 5, s. 5, d. 4, p. 281. (d) Marshall & Dresser, In re, 3 a. B. 878. (e) Kennard v. Hanis, 2 B. & C. 801. See per ChanneU, B., in Smalley v. Blackbou-n Railway Company, 27 L. J., Ex. 65. (/) Smalley v. Blackbui-n Rail- way Company, 2 H. & N. 158 ; S. 0. 27 L. J., Ex. 65. {(/) Goodman v. Sayers, 2 J. & W. 249. RESULT OF THE MOTION. 681 ex parte application, said, tliat it did not appear to him that Part hi. the fact of having paid the money made any difference, or ch- ix. s. 7. prevented the party from moving to set the award aside ; and he granted a rule nisi for that purpose {h). It cannot be shown for cause, on a motion by a tenant, Allowing that by allowing his landlord, without objection, to do to acrou repairs to the demised premises, pursuant to the directions award. of the award, he has waived his right to impeach it (i). SECTION VII. DISCHARGING OR MAKING ABSOLUTE THE RULE TO SET ASIDE AN AWARD. I. Result of the motion to set aside the award.'] — The courts Courts of law will always construe awards, and hear motions validity of resj)ecting them, with a desire to sustain the judgment of ^^^'■'^^■ the tribunal, which the parties have selected, and which in so many instances acts most beneficially for them {k). On one occasion, however, Coleridge, J., observed, "There are many expressions in the cases as to the manner, in which the courts ought to construe awards, which appear to me to be often used with too r|;iuch strength. Awards are to be construed sensibly as all other instruments" (J). The courts will not set an award aside on motion, unless Award not it be clearly void on the grounds, on which it is impeached, unless because then there is an end of it altogether; whereas, if deaiiy . . . void. an action be brought, the question of its validity may be in general more formally raised, and taken to a court of error (jn). After cause has been shown, the court usually will either Allowing discharge the rule or make it absolute ; but on one occasion, affidavits. [h) Bartlo v. Musgrave, 1 Dowl. {I) Stoneliewer v. Farrar, 9 N. S. 325. Jm-. 203. {i) Haj-ward v. Pliillips, 6 A. {in) Cock v. Gent, 13 M. & W. & E. 119. 364 ; Stalworth v. Inns, 13 M. & {k) Templeman & Eeed, In re, W. 466. 9 Dowl. 962. C82 SETTING ASIDE AN AWARD. after the argument, tlie Court of Common Pleas enlarged the rule till the following term, to give the parties the opportunity of filing fresh affidavits, in order that the facts might be more fully stated : additional affidavits were accordingly filed, and the case was re-argued in the subse- quent term (n). Whether When the arbitrator has exceeded his power in awarding alide in^* 0^ ^ matter not submitted to him, or in giving unauthorized part only, directions, if the portion of the award containing the excess can be entirely separated, that alone may be rejected, while the rest of the award will stand good; but though con- sidered a nullity, the court will not usually make absolute the rule to set aside that part, but will discharge the rule wholly (o) ; but if the court cannot see that that part of the award made in the proper exercise of the arbitrator's authority is wholly unafiected by the objectionable pro- visions, the entire award must fall {p). So though it be not final (as when finding substantially for the plaintiff, it fails to decide all the issues, on the event of which the costs depend), the plaintiff, by allowing the defendant costs on all issues undetermined, may maintain the award as to the good part {q). So also if it be defective for want of certainty as to a part which is separable ; as, for instance, if it award costs without ascertaining their amount, when the arbitrator ought to have found it, the whole award need not be set aside ; but the rest may be supported, if the party alone intended to be benefited by the provisions as to the costs agree to waive all claim to them (r). Where a cause and all matters in difierence were referred, and the arbitrator found for the plaintiffs in the cause, and then stated facts pursuant to a power given in the sub- mission; the court, deciding that the action could not be maintained on the case stated in the award, directed a non- [n) Little v. Newton, 2 M. & what parts of it were bad for ex- G. 351, 353. cess. (o) See cases cited P. 11. Ch. 5, {p) Tandy v. Tandy, 9 Dowl. s. 9, p. 312. Boodle v. Davies, 3 1044. See P. 11. Ch. 5, s. 9, p. A. & E. 200, contra, where the 312. iTile was discharged in part only. {q) England v. Davison, 9 In The Caledonian Railway Com- Dowl. 1052. pany v. Lockhart, 3 Macq. 808, (r) Morgan v. Smith', 1 Dowl. the House of Lords, supporting N. S. 617. See P. II. Ch. 5, s. the award, declined to point out 9, d. 1, p. 311. COSTS or THE MOTION. 683 suit to be entered in tlic action, and that the rest of tlic Part hi. award should stand good. The report does not show °°- "• ^- ^- whether there was a conditional award of a non-suit in case the court should be of opinion that the plaintiff was not entitled to recover. It is also to be noticed, that the court came to this decision on an application to set the award aside (s). When a verdict is taken subject to a reference, if the New trial award be set aside there must be a new trial, as the verdict ^J^"j j^ ^ is subject to the award ; if one fall the other must follow (t). cause set II. Costs of the motion to set aside the award.'] — When Discharg- the rule is discharged, the court will, as in other cases, '°^/^'®, _ o ' ... with costs. exercise a discretion whether it is to be discharged with costs. If the motion have been made on slight grounds, the rule will generally be discharged with costs (u). Where the objection was, that the arbitrator had decided contrary to law, costs were refused, on the ground that the point had been fully submitted to the court when the rule was moved («). In a later case, where the award was assailed as repugnant for finding inconsistent issues in favour of the same party, costs were granted. Lord Denman, C. J., inti- mating that in such cases the practice was to discharge the rule with costs {y). Where a rule for setting aside an award on a cause is Costs of discharged, and nothing said about the costs of the motion, ^hencosts they will be costs in the cause (z). Where the arbitrator i^ ^^^ had dii-ected a verdict for the plaintiff, and stated special "^' facts in his award, on which the defendant moved to set it aside, but the court directed the verdict to stand for the plaintiff, but at an amount of damages less than the arbi- ■ trator had given ; the plaintiff was held to be entitled to the costs of showing cause against the rule, although the defendant had succeeded in part : for the practice has always been to consider these costs as costs in the cause, since there (s) Sherry v. Oke, 3 Dowl. 349. 638. {t) Thompson v. Jennings, 1 [y) Diike of Beaufort v. Welch, Moore, 110. 10 A. & E. 527. (w) Snook v. Hellyer, 2 Chitt. (z) Clarke v. Owen, 2 H. & W. 43. 324. (x) Wade v. Malpas, 2 Dowl. 684 SETTING ASIDE AN AWARD. Part III. is, ill fact, iio verdict until the discussion of the award is CH. IX. s. 7. over, and therefore all proceedings till then are steps in the cause (a). Where the defendant put a construction upon the award which induced the plaintiff to move to set it aside, and the court, considering the defendant's construction untenable, discharged the plaintiff's rule, it was held that the plaintiff was not entitled to the costs of the motion ; and Tindal, C. J., said, that as the award was not set aside, the motion must take the ordinary course, and the costs of it be costs in the cause {b). An award in the plaintiff^s favour being referred back, on a motion by defendant to set it aside, and sustained as valid on the arbitrator's explanation, the plaintiff was allowed the costs of the motion (- bill. matters in difference, and containing a provision that the submission and award might be made a rule of the Court of Chancery : the submission not having been made a rule of court, Shadwell, V. C, overruled a demurrer to the bill on the same ground that he took in NicJioU v. Roe {b) ; namely, that the submission not having been made a rule of court, the jurisdiction of Chancery remained. But Lord Cotten- ham, C, on appeal, reversed the decision, holding that it had already been solemnly settled in Nichols v. Roe (c), that the filing the bill before the submission had been made a rule was no matter of importance ; and that he fully approved of that construction of the statute, and would do nothing to disturb that decision : since it was impossible not to see that it was the intention of the Act, that the (z) Nichols v. Eoe, 5 Sim. 156. (h) 5 Sim. 156. (a) Nichols v. Eoe, 3 M. & K. (c) 3 M. & K. 431. 431. ON WHAT GROUNDS. 695 award should be set aside only by that court, of which the Part ill. submission was a rule ; and that as it was now clearly o h- xi. s. 2. decided that tlie jurisdiction of Chancery was altogether excluded, wlien the submission was to be made a rule of another court; so when it was to be made a rule of the Court of Chancery, he held that that com-t had jurisdiction to set the award aside, only in the summary manner pointed out by the Act, and not by bill, at least when the proceeding by motion was equally efficient (cl). No circumstances can give the Court of Chancery juris- Equity no diction, when the agreement is, that in pursuance of the for fraud, statute the submission shall be made a rule of a court of common law {e). On several occasions it was contended that the statute did not intend to take away the jurisdiction, when there was fraud on the part of the arbitrators or the parties, but Sir T. Plumer, V. C, Lord Eldon (/), and Sir John Leach, V. C. ( (/), all concur in holding, that the statute permits no special exception on this ground. SECTION IL FOR WHAT GROUNDS EQUITY WILL SET ASIDE AN AWAIlL<. As there seems in most cases to be no substantial distinc- Grounds in tion between the courts of law and equity as to the grounds same^as at on which awards may be set aside in each ( h) • to avoid common /. ,1 1 Ihw gener- repetition the general enumeration ot tho. grounds on which ally. an award may be successfully impeached, is confined to the chapter on setting aside awards on motion {i) ; and the points now considered ar6 those only, which for some cause {d) Heming v. Swinnerton, 1 E. 121. Coop. C. C. 386. {ij) Dawson v. Sadler, 1 S. & S. (e) Yates v. Barnard, cited in 537. Heming v. Swinnerton, 1 Coop. (/;) Lingoodv.Eade, 2Atk.501; C, C. 422, notes, per Sir J. Leach, R. v. "WTieeler, 3 Burr. 1257. V. C. (0 See P. in. Ch. 9, s. 3, p. (/) Auriol V. Smith, 1 Turn. & 654. 696 IMPEACHING AN AWARD IN EQUITY. Part III. OH. XI. s. 2. Mistake in submission. Grounds open vary- ing with form of submission. Varying ■with oliject of bill im- peaching award. For what grounds award made in action set aside. or other are more particularly connected with proceedings in equity. Equity can sometimes give relief where a court of law is powerless. Thus the Common Pleas held, that they had no power to set aside or refer back an award and to alter an order of reference on the ground of a serious mistake in figures made by the plaintiffs attorney's clerk in copying the items of an account annexed to and forming part of the order, but they suggested that relief might probably be had in a court of equity {k). In an old case, before the statute of William III., on a bill to be relieved against an award on a submission by bond, the court said, that they would neither confirm nor overthrow such awards, unless circumvention or corruption were proved. But otherwise if the award were made by order of court (I). It is said, that on a bill to set aside an award, and nothing more, the Court of Chancery will not let the party go into any legal objections, except the grounds of partiality and corruption ; but if the bill be for an account, and pray to set aside the award in order to let in such account, that then the plaintiff is at liberty to make legal objections {7n). Lord Hardwicke, C, lays it down, that when a bill is filed to set aside an award, and for an account, as the plaintifi" is entitled to an account, unless the award be a bar, the court will enter into all the legal objections against the award, which a court of law would have done, it being insisted on by the plea to prevent a general account {n). An action for the balance of an account was referred at Nisi Prius, subject to the certificate of an arbitrator. The arbitrator having certified in favour of the plaintiff for a specified sum, the defendant filed a bill in Chancery to set aside the award, on the ground that the arbitrator had received in evidence a certain account as an account stated, without sufficient evidence of its possessing that character ; that he had acted on it, declining to call for the books con- taining accounts of prior transactions ; and that he had (A-) Winn v. Nicholson, 7 C. B. 819. {I) Greenliill v. Churcli, 3 Eep. in Chanc. 49, 89. (to) Champion v. Wenham, Amb. 245. («,) Lingood v. Eade, 2 Atk. 501. ON WHAT GROUNDS. 697 refused to give the defendant credit for pajTnent of certain Part hi. sums, paid in respect of the transactions covered by the ""• ^'- ^- ^- account, though not included in it. The bill also alleged fraud in the plaintiff at law, and misconduct in the arbi- trator, but no attempt was made to prove either charge. An injunction had been granted by the V. C. to prevent the plaintiff at law issuing execution on the judgment. Lord Cottenham, C, dissolved the injunction, on the ground, that it was clearly within the arbitrator's jurisdiction to decide, whether the account produced were a settled account con- clusive between the j^arties, and that the plaintiff in equity had failed to show his title to credit for the sums which the arbitrator had refused to take into account. He also said, that he had disposed of the case on the facts, as in the state of the authorities as to the extent of the jurisdiction of Chancery, disposing of it on the point of law would hardly be satisfactory ; but he added, " what is there to give to a com-t of equity any peculiar jurisdiction in case of a judg- ment founded upon such an award, which it would not have had if it had been founded upon a verdict ? " " That failure at law from the errors of the judge, or the jury, or in the conduct of the cause, will not jygr se give this court juris- diction, is certain : does a different rule prevail where the failure is attributable to any conduct in the arbitrator? " {o). An award was made in favour of a contractor on the Effect of reference of an action by him against a railway company by "'y^'^'y^*'^. a rule of a court of common law, which contained the usual clause emjiowering the court to refer the award back. The company afterwards tiled a bill to set aside the award, alleging, that the defendant had been guilty of fraud in the performance of the works, which had been discovered since the award. Lord Langdale, M. R., dismissed the bill, on the ground, that there was nothing to show that the court of common law had not full power to grant the company every proper relief; and he relied especially on the clause authorizing the reconsideration of the award (p). It has been decided that no bill would lie on the equity Exchequer not ie\iew (o) Chuck V. Cremer, 2 Pliill. iiiskillen Eailway Company y. 477, S. C. 17 L. J. Ch. 287. Leisliman, 12 Beav. 423. (p) The Londonderry and En- 698 TMPEACniNG AN AWARD IN EQUITY, Part III, side of tlie Exchequer to review the decision, on points of C H. xr. s. 2. la^^ and fact, of an arbitrator appointed on a submission by award by Order of Chancery {q). Chancer Upou a bill by the assignee of a judgment against the Assisnee of conusor, stating the award, in which a certain sum was 1" '^I'h^"* found due upon the judgment, and praying that accounts bj award, might be taken against the conusor, upon the footing of the award and the judgment; the defendant, the conusor, cannot by his answer impeach the award, and raise questions which have been discussed before, and decided by the arbitrators, as to the state of the accounts between the defendant as conusor and the conusee of the judgment (r). Award con- The fact, that after the award mutual releases have been to all witii- executed, will not necessarily preclude inquiry into its in scope of validity (s). But if an award be made on a reference of all submission. • t/>p a • • matters m difference, a party, alter receiving the money awarded, and executing a general release, and acquiescing in the award for some years, will not, on a suggestion that the arbitrator has decided on one matter only, be permitted to maintain a bill against his opponent for a general account of all other transactions except what relates to that one matter {t). When evi- Though no bill lies to set aside an award on a question of mTdts°let ^^^^ decided by the arbitrators, yet evidence of the merits Ji»- will be let in, so far as it throws light on their conduct (u). Award Commissioners appointed by statute to ascertain the tuteTnacfe' ^ounds, and fix the rent payable to the crown for certain on mistake, mines, made an award, giving a benefit to a miner, on the faith of his having agreed to pay a sum for certain bygone workings of the mine. The commissioners were not author- ized by the statute in imposing on the miner such condition of payment. The miner having refused to comply with the supposed terms, an information was filed in Chancery, at the suit of the crown, with a view to enforce payment, or to set the award aside, on the ground of fraud and mistake : but the court being of opinion iJiat the miner had never entered (g) Pitcher v. Rigby, 9 Price, {t) Jones v. Bennett, 1 Bro. P. 79. C. 528. (r) HiU V. Ball, 2 BUgh, N. S. 1. {u) Goodman v. Sayers, 2 J. & (s) Morgan v. Pindar, 3 Eep. in W. 249, 259. Clianc. 76. MODES OF PROCEEDING. <^'^0 into the agreement, thoiigli the commissioners mistakenly Part hi. su])posod that he had, liehl the claim for the payment not " "• ^^- ^' ^' maintainable on the facts ; and they also refused to set aside the award, there being no fraud shown ; since, as the time limited by the Act for making the award had expired, the miner, if the award were set aside, would lose the whole benefit of the Act of Parliament, without any fault of his own, on account of a mistake of the commissioners {x). SECTION III. WHAT THE MODES OF PROCEEDING TO SET ASIDE AN AWARD IN EQUITY. I. Proceeding by bill to set aside an award.~\ — When the Submission submission is by judge's order, order of Nisi Prius, or rule "^g statute of a court of common law, or by private agreement not under bill lies to the statute of William III. , the proceedings to set aside the award. award must be by bill (y). After a reference on the trial of an issue du'ected out of Chancery, the jurisdiction of Chancery over the suit is at an end, and the court cannot direct a new trial of the issue though the party be dissatisfied with the award. If, how- ever, the award be objected to on the ground of corruption in the arbitrators, the facts may perhaps be brought before the court by a suppilemental bill {z). In a bill to set aside an 'award the particular ground on Bill must which it is sought to impeach it ought to be charged with all f^^ jge q^. its circumstances (a). jections to An award made on a submission by agreement between ^^^^' the plaintiff and defendant, who were partners, appointed persons in the nature of receivers to collect and pay the debts of the firm, and to pay over the surplus in moieties to the plaintiff and defendant. (x) Attorney-General v. Jack- (s) Woodney v. Jolinston, 1 son, 5 Hare, 355, Molloy, 394. (y) Greenliill v. Cliurch, 3 Eep. (a) Tittenson v. Peat, 3 Atk. in Chanc. 49, 89 ; Lord Lonsdale 529. V. Littledale, 2 Ves. Jr. 451. 700 IMPEACHING AN AWARD IN EQUITY. Part III. cn. XI. s. 3. Pleading the award in bar. What a ground of demurrer to the bill. Party pro- ceeding at law no ground of demurrer. The plaintiff filed a bill, which stating the award, and that there was a deficiency in the funds, and that several demands had been enforced by creditors against him, prayed contri- bution from the defendant, and an account generally. The defendant pleaded the award, and the court allowed the plea, as the bill did not state as a specific objection to the award that it was not final, for not having provided for a deficiency of assets, or set forth the deficiency, or show what debts the plaintiff had been forced to pay (b). On a rehearing, it appeared that by the award the plaintiff was to be at the risk of all debts incurred after a certain day, on which day the partnership was awarded to end. Tliough the bill stated that the debts in respect of which contribution was sought were incurred by the partnership, the court thought this might apply to debts incurred after the day, for as between credi- tors and the firm the partnership still existed ; and that as the arbitrators had proceeded on a supposition that the part- nership effects were sufficient to pay all demands up to that time, the court would presume the supposition well founded until it was expressly negatived : and so the order allowing the plea was afiirmed (c). The effect of the award itself as a plea in bar to the bill to set it aside, the averments which the plea must contain, and how it must be supported by an answer, have been already considered in the section treating of an award as a defence in equity {d). If the bill to set aside the award impeach it on grounds which the court cannot entertain, as for instance, that the arbitrator has come to a wrong decision on the matters referred ; demurring to the bill is the proper mode of ques- tioning the sufliciency of the objections (e). It is not a cause of demurrer to a bill to set aside an award, charging collusion and corruj)tion of the arbitrator, that the parties have j)roceeded in a court of law, and that there would be a remedy in that court ; for the proceeding under the authority of the court of law may be perfectly in- competent ; since that which would subvert the award may, {h) Eouth V. Peach, 2 Anst. {d) See P. III. Ch. 4, s. 2, p. 519. 552. (c) Eouth V. Peach, 3 Anst. (e) Pitcher v. Eigby, 9 Price, 637. 79. MODES OF PROCEEDING, 701 it was said, arise out of the answers in equity, and there is a Part III. great diiFerence in compelling that discovery in answer to oh. xi. s. 3. pointed interrogatories from affidavits at law, where the parties cannot be pressed to make a full answer (/). Tliis reasoning has lost much of its force, since parties may now be made to answer interrogatories at law. We have previously seen, that in case of such a bill the arbitrator, if made a defendant, cannot demur {g). In an old case, on a demurrer to a bill to be relieved against an award for excessive damages given, it was ordered that the defendant should answer, but the benefit of the demurrer should be saved to the hearing {h). We have previously seen that an arbitrator may be made When arbi- a defendant to a bill to set aside an award, when charged with ,„acie a corruption or gross misconduct, with a view to fix hun with defendant. payment of costs (^). When the arbitrators are properly made parties to a bill Answer of ,■■-,.■, ., J 1.- i> • ^ arbitrator to be relieved agamst an award on a suggestion oi mis be- read haviour on their part, according to Lord Northington, C, it is a ^P'}^^}' ^^' ... oil defendant. notorious fixed rule, that the plaintifi" is entitled to read their answer against their co-defendant interested in the award, who contends that the award ought to be supported {k). II. Proceeding by motion to set aside an award.'\ — If the Submission reference be by order of the Court of Chancery made in a equHy,^^ ° suit depending in that court, the usual and proper method ^^^^^^ s*^* of impeaching the award is by motion supported by affi- motion. davits {I). On a reference under the statute of William III. (/;?), Submission when the submission provides for its being made a rule of tute^ aw^id Chancery, in ordinary cases, it is clear, that the proceeding ^^t ^^'^^ "^"^ by motion summarily, according to the provisions of the Act, is the only available course {li). Even when the sub- (/) Lord Lonsdale v. Littledale, Steward v. East India Company, 2 Ves. Jr. 451. 2 Vern. 380, contra. (jr) SeeP. n. Ch. 11, s. 3,p. 465. {I) Crawshay v. Collins, 3 \K) Younge v. Cooke, 3 Eep. in Swanst. 90, S. C. 1 TVils. C. C. Chanc. 45, 82, a.d. 1673. 31 ; Dick v. Milligan, 2 Yes. Jr. (0 See P. II. Ch. 11, s. 3, p. 466. 23. (^•) Eybott V. BarreU, Coxe (m) 9 & 10 W. HI. c. 15. MSS. Line. Inn, S. C. 2 Eden, (h) Dawson v. Sadler, 1 S. & S. 131; cited also 1 Coop. C. C. 383: 537. 702 IMPEACHING AN AWARD IN EQUITY. Part III. on. XI. s. 3. Notice of motion. Motion ia term or out of term. Grounds of motion need not be stated. Entitling affidavits. Cross motion. Hearing the motion and judg- ment. No appeal against the decision. jects of reference include a suit in Chancery, Lord Cotten- Iiam, C, lias decided that the court has no jurisdiction by bill, when the objections are such, as can be as conveniently and effectually discussed in the former method of proceeding. He, however, guarded himself against deciding that a case might not arise in which the proceeding by bill could be admissible (•). g^j^ 1(5. And it is further agreed, tliat in the event of either of the parties, Power to their executors or administrators, beinji- dissowered to act, add the words, " or of any two of them " ] (?/). 2.5. [Instead of clause 4, Form J.] — so as "the said arbitrators" [or Formal " the said arbitrators or any two of them," or " the said arbitrators or requisites umpire "] — make and publish [" his or "] their award [" or umpirage "] in writing, under [" his or "] their hands, [or " under their hands and seals,"] of and concerning the matters referred, ready to be delivered to the parties or any of them (s). 26. [Instead of clause 6, Form /.] — [IVhen the arbitrator is to have Duration, no 2)0 we r to enlarge the time, omit all in clause 6 that follows the word po^'^'s to *^next"'] (a). [When the arbitrator is to have a limited power of en- ' ° largement, say'] on or before the [ ] day of [ ], or on or before any other day not later than the [ ] day of [ ] to which "the said arbitrator" [where there are arbitrators and an timpire icith the same limit of time, say, " the said arbitrators or umpire "] shall {it is better to add, " by any writing " or " by any writing signed by him " [or " him or them "], or "by any writing under his hand " [or " his or their hainds "] " at the foot of these presents ") enlarge the time for making his [or "his or their"] award {or "award and umpirage ") {b). 27. [Instead of clause 6, Form /.] — [ When there are two arbitrators Umpii-e and an umpire, but the latter is to have a later day for inaJcinqhis award, ^'''^ ' * I u rtb Gr adajit either of the preceding forms to the case of two arbitrators, and j^j,^y n^^^j add] and " in case the said arbitrators do not make and publish their arbitrator. award on or before the said [ ] day of [ ] [ichen no time is limited for the arbitrators, say, instead of the preceding clause, "in case the said arbitrators finally disagree about making an award "] then so as the said umpire make and publish his award or umpirage, &c., [continue adapting the clauses 4, 25, and 26, to the case of the wnjiire, giving him a later jteriod, or a general i^ower of enlargement] (c). 28. [This may be added explanatory of clause 5, Forin I.] — that the Death of submission hereby made shall not be defeated or affected by the death of P'"ty not the said parties, or any of them, pending the same, but shall or may be lefere^f-p proceeded in, and the matters in difference determined, in the same manner as if the award of the said arbitrators had been made or deter- mined in the lifetime of the party or parties so dying ; and the executor or administrator, executors or administrators of the party or parties so ()/) See P. II. Cli. 4, s. 3, p. 204, as power, to joint arbitrators. {b^ See P. II. Ch. 3, s. 2, p. 133, as {£) See P. II. Ch. 5, s. 1, p. 234, as to enlarging the time, to the formal requisites of the award. (c) See P. II. Ch. 4, s. 4, d. 4, p. ^«) See P. II. Cb. 3, s. 1, p. 1-26, 223, as to the commencement of the as to the duration of the ai-bitrator's umpire's authority. '20 APPENDIX OF FORMS. dying shall be, and be deemed and considered to be, a party or parties to the reference or submission hereby made, any rule of law or equity to the contrary notwithstanding {d). Costs of re- 29. [Instead of clause 7, Fonn J.] — that the costs of the reference and ference to award shall abide the event of the award (e). abide eveat. Costs of cause abide eveut. Costs of re- ference in arbitrator's discretion. Power to certify for costs. Costs as between attorney and client. Evidence taken by one arbitra* tor may be acted on by both, or by umpire. Umpire not to rehear case unless requested. Dispensing with regular evidence. 30. [Instead of clause 1, Farm /.] — [when a cause or suit is referred, with or without other matters, a common jjrovision is] that the costs " of the cause " [or "of the cause and ol' the special jury," or " of the suit "] shall abide the event of the award (/) as to the " cause" [or " suit"], and that the costs of the reference and award shall be in the discretion of the arbitrator, who may direct to, and by whom, and in what manner, the same or any part thereof shall be paid {ff). [The following addition is very useful with respect to the costs of an action when they abide the eventi — and that the arbitrator shall have all the powers of certifying, which a judge of Nisi Prius would have had on the trial of the said cause {h), 31. That the arbitrator shall be empowered to award costs to be paid as between attorney and client (t). 32. That the said X. Y. shall be at liberty forthwith, and alone, to take evidence, as he may think fit, relating to the said causes, suits, and matteis in difference; and that the said arbitrators and the umpire shall respectively be at liberty to proceed upon the evidence, which shall be taken before the ^aid arbitrators, or before the said X. Y. alone. 33. That the said umpire shall be at liberty to act upon the evidence taken before the said arbitrators, and (unless requested to hear evidence) to make his award without hearing any witnesses, or receiving any fresh evidence : provided nevertheless, that if either party request him to rehear the witnesses, or any of them, or tender any fresh evidence relative to the matters in difference, the said umpire shall rehear such witnesses and receive such evidence. 34. That it shall be lawful for the arbitrators or the um[)ire to obtain information upon or in respect of the premisses hereby referred, or any of them, either by the statements of the parties hereto, or of any of them, made either in private, or in the presence of the other party or parties, or by parol or written evidence, or by such other ways or means, as they (d) See P. II. Ch. 3, s 3, p. 158, as to death revoking authority. [e) See P. II. Ch. 7, s. 2, p. 368,_as to duty of arbitrator when costs abide the event. (/) See P. II. Ch. 7, s. 2, d. 2, p. 870, as to costs abiding the event. (g) See P. II. Ch. 7, s. 2, d. 2, p. 369, as to costs in discretion of arbi- trator. (A) See P. II. Ch. 7, s. 3, p. 381, as to ceitifying for costs. (?) See P. II. Ch. 7, s. 1, d. 3, p. 360, as to what costs arbitrator may award. suBmssioNS. 72 1 or he sliall in their or his judgment tliink most advisable, and deem most applicable to the nature and circumstances of the case(/i;). 35. [Instead of clause 11, Form /.]— that the said arbitrator shall Power to bo at liberty to proceed ex parte in case of the non-attendance of either •i''"t'''ito»' of the said parties, or of their witnesses, after [ ] clear days' pre- g^ parte. \ious notice in writing, imder the hand of the said arbitrator, given to the said i)arties respectively, or left at his or their respective offices, or of their attorneys or agents in London, notifying the time and place of meeting to proceed with the said reference (/). 36. That the said arbitrator " at the request of either party shall" [or Power to if if be not intended to be compulsory, " shall be at liberty to "] raise by arbitrator a sufficient stutemeut of facts any point of law on the face of his award ^^g for the opinion of the court {m), 37. That the arbitrator shall enter upon the reference and make a pre- Power to liminary award, stating the facts necessary to raise the question, whether make pre- [ for instance, "whether at law the defendants are concluded bv the "^"^^'y. •-•' / •' award rais- certiiiciites given by Mr. 0. P., the resident engineer of the defendants, ing a point and produced in court on the trial of this cause,] and that the opinion of o' '^^• the court be taken on that point, before the said arbitrator proceeds with the rest of the reference. 38. That the said arbitrator shall bo at liberty to direct a verdict to Power to be entered in the said cause for the plaintiff or the defendant, as he shall direct entry think proper («). of verdict. 39. That th.e said arbitrator shall be at liberty " to direct judgment to Power to be entered for the plaintiff or the defendant in tiie said cause" [or, a awardentry more restricted power, to "direct judgment by default to be entered" ^\^' against the defendants in the said action."] [Or a more general power, -^ , "to order such judgments and proceedings to be had and taken in or by default, about the said cause, suits, and matters in difference, as to the said arbi- ^c- trator, shall seem lit"] (o). 40. That the said arbitrator shall be at liberty to direct the said action Power to to be discontinued (^j), and the said suits to be dismissed with or without award dis- costs (q). «"'^^'°"-, ^■^■' ance and dismissal of {h) See P. II, Ch. 4, s. 1, dd. 9, 10, 1854, r. 14. ^'^'" pp. 184, 188, as to the ordinary mode (»i) See P. II. Ch. 6, s. 3, p. 337, of conducting the case. P. II. Ch. 4, as to awarding entry of a verdict, s. 2, p. 198, as to taking legal or sci- (o) See P. II. Ch. 6, s. 5, p. 349, entilie opinion. as to awarding entry of judgment. {I) See P. II. Ch. 4, s. 1, d. 11, p. {p) See P. II. Ch. 6, s. 1, p. 324, 191, as to proceediDg ex parte. as to disposing of a cause without de- (//i) See P. II. Ch. 6, s. 8, dd, 4, 5, ciding it. pp. 304, 305, as to statiug a case in (q) See P. II. Ch. 6, s. 6, p. 353, the award. See Keg. Gen. Nov. 27, us to awarding on a suit in equity. 3 A 1*22 APPENDIX OF FORMS. Relieving 41. [JJ7ien the costs of the cause abide the event, this clause may arbiti»,tor of(cu usefuUy he added 1 — that the &aid arbitrator shall, unless requested irom find- ... ... ., , iu<, ou the ^'^ writing to nnd on any specitic issues joined in the said cause, be at issues. liberty to find generally for the plaintiff or for the defendant; and that the costs of any specitic issues, if found, shall abide the event of the award on each (/•). Power to employ an accountant. 42. That the arbitrator, if he shall think it necessary, shall be at liberty, and is hereby authorized to appoint an accountant to assist him, at the expense of the said parties, who shall be liable to such accountant for his reasonable remuneration ; and that as between the said parties the expense of such accountant "shall be borne and paid in equal moieties by the said parties," [or " shall be in the discretion of the arbi- trator;"] such accountant to be required to make his solemn declaration, according to the statute, of the truth of the account or statement to be made out by him (s). Order of reference ; power to order drains to be made. 43. That the said arbitrator should in and by his said award or awards order and direct what shall be done to remove the annoyances complained of, with reference to the drainage, by whomsoever they were created, and shall direct what drains and other works shall be made, and at whose expense and by whom the said drains and works and any other drains already made should be used and maintained, so as to provide for the drainage, not only of the houses and premises of the parties in the said actions, but also of the houses and premises on the properties of the said C. D., E. F., and G. H., parties to this rule. Power to order re- moval of obstruc- tions. 44. That the said arbitrator shall have power to direct what shall be done respecting the removal of any of the obstructions charged in the declaration in the said cause, and to direct the prostration of the whole, or any part of the embankment in the indictment mentioned, as he shall think fit {t). Power to 45. \_In submissions respecting lands, the folloiving clause may be\ cause plans j^sey^^/, j — That it shall be lawful for the said arbitrators, or their umpire, of lands to to admeasure, or cause the said lands to be admeasured, and to make, or ' be made. cause to be made, a plan or map, or plans or maps, of the said messuage, farm lands, and hereditaments, and to do and execute all such further j and other acts, matters, and things, with respect to the same, as they or j he shall think necessary and proper for the purposes of this reference. Costs of 46. \_This may follow the jyrcccding clause.'] — and that the costs, i such maps charges, and expenses of preparing and executing these presents, and of J and plans. -■ (r) See P. II. Ch. 6, s. 2, p. 329, as to awarding on a cause and the issues ji ined in it, (s) See P. II. Ch. 4, s. 2, p. 198, as to the arbitrator delegating Lis power. (0 See P. II. Ch. 8, s. 2, p. 204, asj to arbitrator's duty in executing the] pover. See also award of prostratioaj of the embankment, post. SUBMISSIONS. 723 making such admeasurements, plans, and maps as aforesaid, [insert, lohen nccessnrt/, " and of making such valuation, appraisement, and division as aforesaid,"] and of all such other necessary acts, mitters, or things, which shall bo done and executed as aforesaid, " shall be borne and paid by and b tween the said A. B. and C. D. in equal sliares and proportions," [or "shall be in the discretion of the said arbitrators or umpire."] 47. That for the purpose of making the valuation of the portion of Principle Whiteacre Farm, mentioned in the schedule, the arbitrator shall pre- ^"^ wliich viouslj^fix and determine, and specify in his award, the best and most value of the improved yearly rent, for which the lands mentioned in the schedule land, might reasonably be expected to have been let at the date of this agree- ment, and shall calculate the value of the said lands at [ ] years' purchase of such improved rent. 48. That if either party shall by affected delay, or otherwise, wilfully Party prevent the arbitrator from proceeding in the reference, or from making preventing his award, he shall pay such costs to the other as " the above-mentioned 1 ' ' •' to pay court" [or " the arbitrator"] shall think reasonable (/«). costs. 49. And because the parties hereto on both sides are willing to make Makin^c the admissions hereinafter mentioned, so as to save the expense of pro v- admissions, ing the several matters so admitted, therefore "it is agreed" [or, if the submissioti be hy judge's order, say instead, " by the like consent I do further order; " ifhy order of Nisi Prius, say, "it is further ordered"] that the following admissions be made, that is to say, [here specify the admissions.'] 50. [Instead of Clause 16, Form 7.] — that in the event of any applica- Power to tion to the said court on the subject of this order, the reference, or the court to award, the court may, if it think fit, refef back to the said arbitrator ' ' [sometimes it may he as well to insert, " or to any other person whom the v^e fc court shall appoint,"] the whole or any part of the matter of this order, ai-bitrator. upon such terms as the said court shall think proper {x). 51 [ Where U. V. has been nominated as arbitrator by A. B., and X. Y. Pro^-isions htj C. D., it maybe convenient to add this clause,'] — that in case the said ^°^ appomt- . in" new U. V. shall die, or refuse, or become incapable to act as arbitrator, before arbitrators. the whole of the premises hereby referred shall be determined by the said arbitrators or their umpire, then the said A. B., his heirs, executors, or administrators, shall forthwith thereafter nominate and appoint some other fit and indifferent jjcrson to be arbitrator in the stead and place of the said U. V. ; and so in like manner upon the decease, or neglect, or (m) See P. I. Cb. 3, s. 8, d. 2, p. power of court to refer back, and also 101, as to moving for costs under this as to power and duty of arbitrator on clause. reference back. {x) See P. II. Ch. 10, p. 444, as to 3 A 2 724 APPENDIX OF FORMS. refusal to act, of any arbitrator succeeding to the place of the said U. V. [A similar clause should be itisertcd as to the arbitrator appointed by C. D. Then let it conclude'] that every arbitrator so to be appointed as a substitute for the said U. V. or X. Y., or any succeeding arbitrator, shall have the same powers and authorities as the arbitrator, for whom the substitution is made, would have had, had he continued to act {y). Liquidated 52. \_This may follow the preceding clause,'] — that if the said A. B. or am.iges ^i^ -q ^j. ^jjgjj. in^ii^ executors, or administrators, or any of them re- fer retusiug .' ' ' . . • to appoiut spectively, when bound to appoint a new arbitrator, pursuant to the new arbi- above provisions, in lieu of any arbitrator who may die, refuse to act, or become incapable, shall neglect, or refuse so to do for one-and-twenty days, after a notice in writing on the part of the party or parties entitled to require such appointment shall have been served on the party or parties bound to make such appointment, then the latter party or parties shall pay to the former party or parties the sum of £ [ ] by way of liquidating damages for such neglect or refusal (s). Penalty for 53, And for the due execution and observance of the agreement herein- breacL of before contained on the part of the said A. B. \_and also for any other ' party for whom A. B. is liable], the said A. B. doth hereby bind himself, his heirs, executors, and administrators, in the sum of £ [ ], [add a similar agreement by C. D.]. Parties to 54. And the said parties [or " the said attorneys of the said parties"] pay ai i- jointly and severally agree to and with the said arbitrator, in con- charges, sideration of his taking upon himself the burthen of the reference, to pay to the said arbitrator his reasonable charges for the arbitration and award. II. Agieement "We agree to refer all matters in difference between us to the award of of refer- -v- y ence, con- ' ' k xt cise form. • * CD. III. Agreement Memorandum of agreement made this [ ] day of [ ], of reference ^. d, [ ], between A. B. of [ ], and C. D. of [ ]. (y) See as to substituting new arbi- (2) See P. I. Ch. 3, s. 4, d. 2, p. trators, P. II. Ch. 3, s. 3, d. 7, p. 156. 63, as to liquidated damages. siTBMrssioxs. 725 Whereas the said A. B. is executor of tlie last will and testament of by executor E. 1'"., late of [ ], deceased, and wliereas certain dill'erences have ^^ to tes- arisen between the said A. B. as such executor and the said C. D., in ^*'°^^^ ' estate, regard to claims by the said A. B., as such executor, against the said C. D., and by the said C. D. against the said A. B., in respect of the said testator's estate ; it is hereby agreed by aud between the said parties, to refer ail matters in difference respecting the said testator's estate to the final award of X. Y. of [ ], for him to determine whether the said A. B., as such executor, has any and what claim against the said C. D., and whetlier the said C. D. has any and what claim against the said testator's estate, so as, &c., \_coiitinue as in Form I., clauses 4, 5, 6.] And it is further agreed, that this submission to arbitration shall not be Reference deemed or taken to be an admission by the said A. B, that he has assets "°* *° ';® of the said testator,* but that the said A. B. shall be at liberty to deny gj^^ ^^f before the said arbitrator " that at the date of this submission he had assets. any assets in his hands lawfully liable to the demands of the said C. D." [or "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 C. D."] ; and if the said A, B. shall make such denial as aforesaid that the said arbitrator, if requested by the said C. D., shall inquire *' whether at the date of this submission the said A. B. had " [or "whether Arbitrator at the time of such inquiry the said A. B. has "] assets of the said testator to inquire lawfully liable to pay the whole or any part of the sums claimed by the ^^ ^^ assets. aaid C. D. And if the said arbitrator shall on the balance find any pindin" money to be due to the said C. D., he shall, if he shall find that the said assets, to A. B. had, at the time to which the said inquiry referred, assets liable ""■^'^'' ^^" . . -1 ecutor to to the demands of the said C. D., direct the said A. B. to pay to the said pay sum C. D. the balance, or so much thereof as the assets so found to be liable due. shall be sufficient to satisfy. And if the said arbitrator shall find that Finding no the said A. B. had no such assets, or not enough of such assets to pay assets, ti> the whole amount so found due to the said C. D., he shall be at liberty direct ex- Gcutor to to award that the said A. B. shall pay to the said C. D. the said amount, p^y out (or as much thereof as the assets in hand do not avail to satisfy as afore- of assets said,) out of any assets which may have come into the hands of the said 1"'^°"°- A. B. since the time to which the said inquiry respecting the assets refers, or which may hereafter come into them. And that if the said Arbitrator arbitrator shall find any money due from the said C. D., he shall direct *° direct the latter to pay the same to the said A. B. [Add the clause for making executor of the submission a ride of court, Form /., clause 8, and such other clauses money due as may be suitable'] (a). IV. [Commence as in the previoiis Form as for as the asterisk,] — and that Agreement le said arbitrator shall not consider or inquire whether the said A. B. ?^ reiavcnce by executor (a) See P. I. Cb, 2, s. 2, d. 4, p. 32, as to executors parties to reference. 726 APPENDIX OF FORMS. as to liabi- had or has any asset3 of the said testator, nor shall his award conclude, hty, not as ^j. j^g construed to conclude, any questions as to assets, but shall leave to assets ' •/ J. ' the same entirely open. And it is further agreed, that if the said arbi- trator shall find any balance of money due to the said A. B. as such executor, he shall direct the said C. D. to pay the same to the said A. B. ; To direct ^ut if he shall find a balance in favour of the said C. D., he shall add a out of (iii'ection that the said A. B. shall pay the same to the said C. D. out of assets, it the assets (if any) which may be in his hands, or which may hereafttr ^"y- come to them ; and that it shall not be lawful for the said arbitrator to direct the said A. B. to pay in any other manner. [Conclude with the clause for making the submission a rule of court, Form J., clause 8, arid other needful clauses.] V. Agreement Articles of agreement made and conchided the [ ] day of to '•efer [" "j^ ^,d. |- j^ between A. B. of [ ], of the one part, and relating to ^' ^- °^ t ]' ^^ ^^^^ other part. Whereas the said A. B. did, contract for in or about the year A.D. [ ] by writing under his hand contract sale of with the said C, D, for the absolute sale to the latter of divers farms, lauds, tenements, and other hereditaments, situate or being in or near Eecital of [ ]> i" ^^^ county of [ ], and the inheritance thereof in contract, fee simple, at and for the price and sum of £ [ ], which sale so made to the said C. D. has not yet been completed. And whereas a certain farm and premises, called White Acre Farm, now let on lease Portion of uuder the yearly rent of £ [ ], is included in the contract for land to be gale so agreed to be made to the said C. D, ; and whereas the said C. D., excep ec ^^ ^j^^ special instance and request of the said A. B., hath consented and out 01 con- ^ ^ _ _ tract. agreed that such part of the said farm, called White Acre Farm, and containing [ ] acres, [ ] roods, and [ ] perches, as is specified in the schedule hereunder written, shall be discharged Price of from the above-recited contract, in consideration that the said C. D. portion to shall be allowed and entitled to deduct out of the said purchase-money , , •, . _ a compensation (the amount thereof to be ascertained by arbitration) for tion. the loss of the said [ ] acres, [ ] roods, and [ ] perches, the purchase of which shall be so relinquished by the said C. D. as aforesaid ; and that the said C. D. shall have, and be entitled to, a Amo t of y^^^-^y ^^^^ '^^ ^^™ (^'^^ amount thereof to be determined by arbitration), appor- to be paid and payable in respect of the remaining part of the said farm tioned rent and lands, called White Acre Farm, which is retained by, and intended bv arbitra- *'*' ^^ conveyed to, the said C. D., as and for the apportioned part of the tion. aforesaid yearly rent. And whereas a dispute has arisen between the Whether said parties, whether a certain farm and lands, called Black Acre Farm, certain are or ought to be included in, and bound by, the said contract for sale, nicliuied in ^^'^^^o'^ they be not mentioned in express words therein. And whereas contract. certain other lands and premises, called Green Acre Farm, are admitted Recital, by the said A. B. to form part of the estate so contracted to be sold to farm sup- SUBMISSIONS, 727 the said C. D. in fee simple, and were, when the said contract was entered posed free- into, considered by both parties to be of freehold tenure in fee simple, ''"''' 'l'""^ and the amount of the consideration money for tiie purcliase of the same \iM. was calculated on the supposition that the whole of tlic said estate and hereditaments were to be conveyed to the said C. D. in fee simple ; and Difference whereas the said farm and lands, called Green Acre Farm, have since 1"7^ "^ been discovered to be held by the said A. B. on leasehold tenure only ; leasehold and it has been agreed between the said parties that the said C. D. shall *"'■* ^'^^'^' be entitled to retain by way of compensation out of his said purchase- toi,exettle as liquidated damages; and the said arbitrator, if requested, shall proceed to hear and determine the said matters, notwithstanding such revocation, or attempted revocation (c). Submission by bond. Recital in condition. Subjects referred to two arbi- trators and umpire. Condition to abide award. YII. {d) Know all men, by these presents, that I, C. D., of [ ], am held and firmly bound to A. B., of [ ], in £ [ ], of good and lawful money of Great Britain, to be paid to the said A. B., or his certain attorney, executors, administrators, or assigns ; for which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents, sealed with my seal. Dated the [ ] day of [ ], in the year of our Lord [ ]. Whereas, \liere state the existence of differences between A. B. and C. D., or enumerate the special matters in dispute, as in a submission by agreement (See Fo?-m I.), and proceed,'] and it is agreed by and between the said A. B. and C. D. to refer "the same" {_if the ejiecial ^natters have been recited, and the reference is to be general, say, "the same and all matters in difference between them,"] to U.V., of [ ], and X. Y. of [ ], with liberty to them to choose and appoint an umpire. Now the'condition of this obligation is such, that if the above bounden C. D., his heirs, executors, and administrators, do and shall on his and their part and behalf in all things well and truly stand to, obey, abide by, observe, perform, fulfil, and keep the award, order, arbitra- {h) See P. I. Cb. 3, s. 4, d. 2, p. 63, as to liquidated damages. (c) See P. II. Cb. 3, s. 3, d. 3, p. 152, as to effect of award after revoca- tion in equity. See also P. II. Ch. 3, s. 3, d. 7, p. 157, as to substituting new arbitrators by statute. (rf) See P. I. Ch. 3, s. 2, d. 3, p. 51, as to submissions by bond. SUBMISSIONS. 729 ment, final end, and determination of the said arbitrators respecting the matters i-eferred ; so as the said arbitrators make and publish thtir award in writing of and concerning the same, ready to be delivered to the parties, or if they or cither of them shall be dead before the makinij of the award, to their respective personal representatives who sliall require the same ; on or before the [ ] day of [ ], or on or before any other day not later than the [ ] day of [ ], to which the said arbitrators shall by any writing signed by them, indorsed on these presents, enlarge the time for making their said award: and in case the said arbitrators shall not make an award of and Arbitrator concerning the jiremises within the time limited as aforesaid ; then if the "*^'' '"^'''"8 . . . . award, to said C. D., his heirs, executors, and administrators, do and shall upon abide his and tlieir part and behalf, in all tilings well and truly stand to, obey, award of abide by, observe, perform^ fulfil, and keep the award, order, arbitra- "'"P"^®- ment, umpirage, finaf end, and determination of the person so by the said arbitrators to be chosen and appointed as umpire as aforesaid ; so as the said umpire do make and publish his award or umpirage in writing \continue as in Form I, clauses 4, o, and 6, ailajding them to the case of an umpire'], then this obligation to be void, otherwise to remain in full force. And the said A. B. and C. D. do hereby consent and agree that Submission this submission shall be made a rule of the Court of Queen's Bench at *" ^^ raa.t^& the instance of either of the said parties, their executors, or administra- ^.^^^^.^ tors. And it is further agreed by and between the said A. B. and C. D. that [here add such of the clauses and provisions given in Form I. as are ajjpUcable.'] Signed, sealed, and delivered, in the presence of 0. P. C. D. (L. S.) \_A. B. should execute to C. D. a similar bond icith a similar con^ dition.l YITI. \_The bond the same as in the above precedent.'] — The condition of this Condition of obligation is such, that if the above bounden C. D., his heirs, executors, boud of ... , . , . 1 1 IP 1 Ti 1 1 • Ti submission and administrators, on his or their part or behali, shall and ao in all -^vithout a things well and truly stand to, obey, abide by, perform, fulfil, and keep recital. the award, order, arbitrament, and final determination of X. T., of [ ], appointed and named as well by and on the part and behalf Reference of the above-bounden C. D., as of the above-named A. B., to arbitrate, to one arbi- award, order, judge, and determine, "of and concerning all matters in difTeience between them ; " [or more commonly, " of and concerning all Subject and all manner of action and actions, cause and causes of actions, suits, matters bills, bonds, specialities, judgments, executions, extents, quarrels, tres- passes, damages, and demands whatsoever, at any time heretofore had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed, or depending by and between the said parties ; "] so as the above-mentioned arbitrator [conti7iue as in Form No, I., clauses 4, 5, 730 APPENDIX OF FOKMS. and 6,] then tliis obligation to be void, or else to remain in full force. [_Add the clause to tnake the submission a rule of court, and such other clauses as are requisite.^ Signed, sealed, and delivered, in the presence of 0. P. C. D. (L. S.) Submission by bond of all matters in differ- ence be- tween six partners. Condition. Subject matters referred. IX. [3Ionei/ bond by D., E., and F., jointly and severally to A,, B., and C] — Whereas the above-bounden D., E., and F., and the above-named A., B., and C, lately carried on the trade and business of [ ] in partnership ; and whereas divers differences and disputes have arisen between the said A., B., C, D., E., and F.,'with respect to such trade and business, and the accounts relating thereto ; and whereas it has been agreed to refer all such differences and disputes between the said parties, or any of them, to the award of X. Y., of [ ], an arbitrator appointed by and on the several parts and behalves, as well of the said D., E., and F., as of the said A., B., and C, to arbitrate respecting the same. Now the condition of the above-written obligation is such, that if the above-bounden D., E,, and F,, and each of them, their and each of their heirs, executors, and administrators, and every of them, shall, on his or their respective parts and behalves, in all things well and truly stand to, obey, perform, fulhl, and keep the award to be made by the said X. Y., of and concerning the said trade and dealings, and all accounts, differences, and disputes relative thereto, and of and con- cerning all actions, cause and causes of action, suits, claims, damages, and demands whatsoever, now or at any time heretofore had, made, moved, brought, commenced, or depending by or betvreen the said parties, or any of them : so as the above-mentioned arbitrator [continue as Form No. I,, clauses 4, 5, and 6], then this obligation to be void, otherwise to remain in full force (e). [^Add the clause for makiny the submission a rule of court, Form I., clause 8. Add such other clauses as may he advisable, as, for instance, the clause authoriziny the employ- ment of an accountant. See Form I., clause 42. lliere must be a similar bond from A., JB., and C, to D., F., and F., with a similar con- ditions] X. Submission This indenture, made between A. B., of [ ], and C. D., of by deed. [- -j^ ^f tj^^ g^st part ; E, F., of [ ], of the second part ; and G. H., of [ ], of the third part. Recital. Whereas differences have arisen, and are depending between the said A. B. and C. D., and the said E. F., and also between the said A. 13. and (e) See P. I. Cli. 3, s. 2, d. 3, p. 51, as to submission by bond. SUBMISSIONS. 7.*]! the said E. F., and also between the said E, F. and tlio said G. IT., touching and concerning [here sJiortli/ state the matters'] ; and in order to put an end to the said diflcreiiees, the said parties have agreed to Agrcrment refer "the same" [or "all matters ia diiference"] to the award of *■" '''^'^' *"• X. Y., of [ ]. Now this indenture witnesses, that they, the said A. B., C. D., E. F., and Gr. H., do and each of them doth, each for himself severally and respectively, and for his several and respective heirs, executors, and administrators, covenant and agree with each other, his heirs, executors, Covenant and administrators respectively, to stand to, abide by, observe, and per- *° abide form the award and determination of the said X. Y. of and concernin"- ^^^ the premises aforesaid; so as the above-mentioned arbitrator [continue as in Form I., clauses 4, 5, and 6]. And the said parties do hereby further agree that \_add a clause for maldng the submission a rule of court, Form J., clause 8, and other clauses considered advisable.'] In witness whereof the said parties hereto set their hands and seals, the [ ] day of [ ], in the year of our Lord [ ]. Signed, sealed, and delivered, by the said A. B., (L. S.) [ ], in the presence of C. D., (L. S.) E. F., (L. S.) a. H., (L. S.) XI. ^^ 'Q \ Upon hearing the attorneys or agents on both sides, and Submission v. > by their consent, I order that this cause ["and all other "yj^^'^^^ C. D. ; matters in difference between the parties "] be referred to the award, order, arbitrament, final end and determination of X. Y., of Harcourt Buildings, Temple, barrister-at-law ; so as he shall make and publish his award in writing of and concerning the premises ready to be An aid to delivered to the said parties, or to either of them ; or if they or either of be delivered them shall be dead before the making of the said award, to their respective ° P^'sunal ° ' ^ represeu- personal representatives who shall require the same ; on or before the tatives. [ ] day of [ ] term now next ensuing, or on or before po^-er to any other day, to which the said arbitrator shall by any writing under enlarge his hand, to be indorsed hereon, from time to time enlarge the time ittfiiiiS.?' making the said award. And, by the like consent I further ord»rjrJ^I?^l!)efrth no the death of either of the said parties shall not act as a revocation of the revocation. authority of the said arbitrator ; and that the costs of this action and of Costs. such reference (save and except the charges of the arbitrator and for the award) shall abide the event of the award, and that the costs and charges of the arbitrator and for the award shall be in the discretion of the arbitrator. And by the like consent I order that the said parties if Power to examined, together ■with their respective witnesses, sliall be sworn or examine affirmed before the said arbitrator, and examined upon oath or affirma- j^„,i \i\^. tion ; and that the said parties shall produce before the said arbitrator nesses on all books, deeds, papers, and writings, relating to the matters in differ- "''■*''• '32 APPENDIX OF FORMS. Power to call for books. Parties to keep the award. Parties not to sue. To pay costs for aS'ectcd delay. ence between them, as the said arbitrator shall require. And I do like- wise order, by and with the like consent, that the said parties shall on their respective parts in all things stand to, obey, abide by, perform, fulfil, and keep the award, order, arbitrament, final end, and determina- tion of the said arbitrator, so to be made and published as aforesaid : and that neither of the said parties shall bring or prosecute any writ of error, or any action or suit at law, or in equity, against the said arbi- trator, or against each other respectively concerning tlie mattei's referred by this order: and that if either party shall by affected delay, or otherwise, wilfully prevent the said arbitrator from proceeding in the reference, or from making his award, he shall pay such costs as to the Court of Queen's Bench shall appear just and reasonable. And by the like consent I do lastly order, that this order shall and may be made a rule of the said court, if the same court shall so please, \_21iese are the commo7i proviHtons in such an order, hut they may he varied as the parties ^j^ectse. It may he adrisable to add the clause for referring matters hack. See Form I., clauses 16 and 48] (/). [Signature of the Judge.] Dated this [ ] day of [ ], A. D. [ ]. Submission by judge's order, stranger added. Verdict entered subject to reference. XII. A B \ Upon hearing the attorneys on both sides, and for G. H. V. ( and by their consent, I do order, that a verdict be entered C. D. and { for the plaintiff, damages \_£ ], subject to the award • • ^ of the arbitrator hereinafter named, who shall be at liberty to order and direct for whom, and for what sum, the verdict shall be finally settled (^) : and that it be referred to the award, order, arbitrament, final end, and determination of X. Y., Esq., barrister-at-law, to settle all Oiatters and difi'erences between the said parties to this action, and between the said defendants and G. H. ; and to order and determine what be shall thiuk fit to be done by either party respecting the matters in dispute, who agree to be bound and concluded by such determination ; so as the said arbitrator make and publish his award, &c. [continue us in the preceding form.'] (Ji). xiir. Submission Essex ) ^^ ^^^ ass'zes held at Chelmsford in and for the county of )>y order of to wit. ) Essex, on Tuesday, the 3d day of March, in the year of our nn^tV^^^"^ Lord one thousand eight hundred and forty-six, before the Eight Honouralde Thoiuas Lord Denman, Chief Justice of our Lady theUueen, on the usual terms, (/) See P. I. Ch. 3, s. 6, d. 3, p. 73, as to submissions by judge's orders. (g) See P. II. Ch. 6, s. 3, p. 337, as to euteiiug a verdict. (A) See P. I. Ch. 3, s. 6, d. 1, p. 72, and also P. I. Ch. 2, s. 1, d. 7, p. 2:^, as to adding strangers to the cause as parties to the reference. SUBMISSIONS. 733 assigned to hold pleas before the Queen herself; the Honourable Sir Edward Ilall Aldtrson, Kiiiglit, one of the Barons of our J.ady the Qui en, of lier Court of Excheqmr at Westminsttr, and others their fellows Justices of our Lady the Queen, appointed to take the assizes for the said County of Essex, according to the form of the statute iu that case made and provided ; B. \ It is ordered by the court, with the consent of the parties, their Verdict V. I counsel and attorneys, that a verdict be entered for the plaintiff, **''''" ^"^" ^' J damages two thousand pounds, costs forty shillings, but that such awar*d verdict shall be subject to the award, order, [_ichen the arbitrator s at liberty to certify, add " certificate, "] arbitrament, final end, and deter- mination of X. Y., Esq., barrister- at-law; vrho is hereby empowered to Power to direct, that a verdict shall be entered for the plaintiff or the defendant direct ver- as he shall think proper; and to whom " this cause is " \^{f the reference '^'*^*' *^,^'* is to he yeneral, say " this cause and all matters in diilt-rerice between the said parties are"] liereby referred: to order and determine what he Power to shall think fit to be done by either of them respecting the matters in order what dispute (/) ; so rfs the said arbitrator shall make and publi>h his award j^ "^ [^add " or certificate" when there is a power to certify"] in writing con- cerning the matters referred, ready to be delivered to the said parties, or to either of them, or if they or either of them shall be dead before the Death of making of the said award, to their respective pt rsonal representatives, who P^'"*y °p ... revocation, shall require the same ; on or before the fourth day of next Easter Term, or on or before any other day to which the said arbitrator shall, by any Power to writing under his hand to be indorsed hereon, from time to time enlarge enlarge the time for makiag his said award [add as above " or certificate"]. And '™^' it is also ordered that the costs of this cause to be taxed shall abide the ^ " cause to event of the said award [" or certificate"], and that the costs of the abide reference and award [" or certificate "] shall be in the discretion of the event ;costs said arbitrator, who may direct and award to and by whom and in wliat ? "^f. ®'"®'"^® ' •' . "' . in discre- mauner the same shall be paid : and that the said aibitrator shall have tion. the same power to amend the record {J), and to certify, as a judge sitting Power to at Nisi Prius would have had upon a trial of the said cause. And it is amend also ordered by and with such consent as aforesaid that the said parties {k) ^.'^^'^^ , -r"' if examined shall, together with their respective witnesses-, be examined p ,• j upon oath, and that the said parties shall produce before the said arbi- witnesses, trator all books, deeds, papers, and writings relating to the matters in &<'•> to he difl'erence between them, as the said arbitrator shall require. And it is _, FowGr to also ordered by and with such consent as aforesaid, that the said parties ^.^u f^,. ^jg. shall, on their respective parts, in all things stand to, obey, abide by, cuments. perform, fulfil, and keep, the award, order, [" certificate"] arbitrament. Parties to final end, and determination of the said arbitrator, so to be made and °''^y award. (i) The power to direct what to be cases now entitled to give evidence on done is not one of the " usual terms." their own behalf, it seems that it should See P. I. Ch. 3, s. 6. p. 76. not be left to the judgment of the arbi- (ji') See P. II., Ch. 4, s. 1, d. 13, p. trator whether he will examine them as 195, as to amending the record. it was in the old form. {k) Since parties are by law in most 734 APPENDIX OF FORMS. Parties not i)ublished as aforesaid : and that neither party shall bring or prosecute to sue. any writ of error, or any action, or suit at law or in equity, against the said arbitrator or against each other respectively, concerning the matters referred by this order : and that if either party shall by affected delay or otherwise wilfully prevent the said arbitrator making his award ["or Party pre- certificate "], he or they shall pay such costs to the other, as the Court venting ^f Queen's Bench shall think reasonable. And lastly, it is ordered that pay costs either of the said parties shall be at liberty to move the said Court of Order to he Q-ueen's Bench, that this order may be made a rule of that court : and made rule that in the event of either of the said parties disputing the validity of coui . ^j^g award [" or certificate "], so to be made and published as aforesaid, rower to ^^ moving the said court to set aside the same or any part thereof, the refer back, said Court of Queen's Bench shall have power to remit the matters hereby referred, or any of them, to the reconsideration and determination of the said arbitrator, when and so often as the said court shall see fit {I). By the Court. R. D. Associate. XIV. Commence- "Middlesex"") ^* ^^® sitting of Nisi Prius, held "at Westminster,' ment of ^or " Lon- > [or " at the Guildhall in and for the City of London,"] miVLs don "] to wit.) on the [ _ ]dayof[ ], in the [ ] at the year of the re'gn of our Sovereign Lady Victoria, by the grace of God of sittings in tiie United Kingdom of Great Britain and Ireland, C^een, Defender of or London ^^® Faith, and in the year of our Lord [ ], before, &c. several judges XV. Style and " Before the Right Honourable Thomas Lord Denman, Chief Justice title of tLe of our Lady the Queen, assigned to hold pleas before the Queen her- self." [Or "before the Honourable Sir William Wightman, Knight, one of the Justices of our Lady the Queen, assigned to hold pleas before the Queen herself."] [Or " before the Right Honourable Sir Nicholas Conyngham Tindal, Knight, Chief Justice of our Lady the Queen, of her Court of Common Pleas."] [Or " before the Honourable Sir Thomas Coltman, Knight, one of the Justices of our Lady the Queen, of the Bench."] [Or "before the Right Honourable Sir Frederick Pollock, Knight, Chief Baron of our Lady the Queen, of her Court of Exchequer."] (I) See P. I. Ch. 3, s. 6, d. 4, p. 73, cular clauses, see the notes to the as to submissions by order of Nisi clauses in Form I. , Prius : and for the effect of the parti- SUBMISSIONS. 735 [Or "before the Honourable Sir Samuel Martin, Kniglit, one of the Barons of our Lady the Queen, of lier Court of ExchecLuer." XVI. \_Co)nmence as in the preceding forms.'] B_ ■\ It is ordered by the court, by and with the consent of the parties, Order of V. > their counsel and attorneys, that the last juryman sworn and im- j^'^'^srence, a !)• ) panneled in this cause be withdrawn out of the pannel, and that drawn*' this cause and all matters in difference be referred, &c. &c. XVII. \^Co77imence as in Forms XIII. or X7F.] A, B. 1 1 It is ordered by the court, by and with the consent of the Order of V- y parties, their counsel, and attorneys, that in each cause a ver- '"^'^''^iii-^ p" y.' < ; diet be entered for the plaintiff, damages mentioned in the actions. 'y_ ' ( several declarations, but that such verdicts shall be subject to A, B. ) I the award, &c. &c. [as in Form XIII.], who is hereby em- powered to direct that a verdict be entered for the plaintiff or the defendant in each cause as he shall think proper, and to whom these causes and all matters in difference between the said parties are hereby referred. [Co7itinue as in Form XIII., sahstituting " causes "yb»* " cause " wherever the word oceurs.l XVIII. [Commence as before in Forms XIII. or XIV., as far as the name o/" Order of the arbiti-atorl — " to whom this cause and all matters in difference be- '"f ^'■^"•^^ -" stranger tween the parties to the same and E. F., or any of them, are hereby added. referred to order," &c. &c. Continue as in Form XIII, taking care to add a clause for making the order of reference a rule of court. See Funn I., clause 8.] XIX. [Coinmence.as in Forms XIII. or XIV.] B, \ It is ordered by the court, by and with the consent of the parties, Order of V. I their counsel, and attorneys, that the jury find a verdict for the reference to D. ; plaintiff, damagts £4 4s., and costs forty-shillings; subject to the gpedalcase. statement of the facts in a special case by X. Y., Esq., barrister-at-law, fpo be made for the opinion of the Court of Queen's Bench ; with liberty to either a special party to turn it into a special verdict; so as the said X. T. do publish verdict, the special case ready to be delivered to the said parties, or either of 736 APPENDIX OF FORMS. Death no revocation. Power to enlarge time. Power to examine on oatli. Power to call for do- cuments. Costs of special jury- Costs for preventing special case. Power to proceed ex parte. Order to be made rule of court. them : or if they, or either of them, shall be dead before the making of the said special ease, to their respective personal representatives, requiring the same ; on or before the fourth day of Hillary Term next ; with liberty for the said X. Y., under his hand in writing at the foot hereof, to enlarge the time for making the said special case. And it is also ordered by the like consent, that the said X. Y. shall be at liberty, if he shall think fit, to examine the witnesses to the facts in this suit upon oath ; and for that purpose the said witnesses to be ex- amined before the said X. Y. touching the matters to be stated shall be sworn before the said X. Y. : and that the said parties shall produce before the said arbitrator all such books, deeds, papers, and writings in their or either of their custody or power relating to the matters in differ- ence, as the said X. Y. shall think fit to require. It is likewise ordered by and with the like consent, that. the costs of the special jury shall abide the event. It is further ordered by the like consent, that if either of the said par- ties shall, by affected delay or otherwise, wilfully prevent the said X. Y. from drawing up the said special case, or shall not attend after reason- able notice, and without such excuse as the said X. Y. shall be satisfied with, and adjudge to be reasonable; then the said X. Y. may proceed ex parte, and the party occasioning the delay shall pay to the other such costs, as the said court shall think reasonable and just. And lastly, it is ordered that the said court of our said Lady the Q,ueen before the Q,ueen herself may be prayed, that this order may be made a rule of the same court. By the court. T. D. Clerk at the sittings of Nisi Prius. Order of reference of indict- ment. Jurors dis- charged, or verdict of guilty sub- ject to award. Costs of prosecution and de- fence. XX. \_Commence as in an order of reference at. Nisi Prius. See Forms XIII. and XIV.] The Q,ueen on the ^l ^^ ^^ ordered by the court, by and with the consent prosecution of I of the prosecutors and defendants, their counsel, and A. B. and another [> attorneys, " that the jurors be discharged from giving against C. D. and ^ verdict" [or " that a verdict of guilty be entered -^ against the defendants"], subject to the award, order, arbitrament, final end, and determination of X. Y., Esq., barrister-at- law [ichen a verdict of guilty has been entered, add, " who is hereby empowered to order the verdict of guilty to be set aside, and a verdict of not guilty to be entered instead thereof, on behalf of all, or any, of the defendants, and"], to whom all matters in difference between the prosecutors and the defendants, or any or either of them, are hereby referred. [Continue as in Form XIII.'] And it is also ordered, that the costs of the prosecution and defence, and of the reference and award, shall be in the discretion of the said arbitrator, who, «&:c. [contiiiue as in Form XIII.] SUBMISSIONS. 7:j7 XXI. In the ** Queen's Bench " [or " Coinmou Pleas," or Submission " Exchequer of Pleas "]. '^y rule of Monday, the [ ] day of [ ], A. d. [ ]. (m). A, B. ) Upon hearing Mr. [ ] of counsel for the plaintill", and V. > Mr. [ ] of counsel for the defendant, and by their con- ^' ^- ) sent, it is ordered, that all matters in difference " in this cause " [or " between the parties in this cause," as the case may be] be referred to the award, order, arbitrament, final end, and determination of X. Y., Esq., barrister-at-law ; so as, &c. [as in Form No. I., clauses 4, 5, and 6.] And by the like consent, as aforesaid, it is further ordered, that the costs of the cause shall abide the event of the said award, and that the Costs, costs of the reference and of this rule shall be in the discretion of the said arbitrator. [Instead of this clause, any suitable variation of Form I., clause 20, 30, or 31, inay be adopted.^ And that [here add such other clauses as are deemed advisable. See Form /.] (n). By the Court. XXII. Master of the Rolls. Order in Thursday, the [ ] day of [ ], in Chancery the eleventh year of the reign of Her Majesty sulf^^d^f, Queen Victoria, 1848. matters in ( A. B. plaintiff ") Upon motion this day made unto this difference. Between I and > court by Mr. E. of counsel for the plaintiff, ( C. D. defendant. ) it was alleged, that, the plaintiff having exhibited his bill in this court against the defendant, he appeared thereto, and [state briefly the stage of the proceedings'] ; that the parties have agreed to refer all matters in difference between, them to the arbitration of X. T. and U. V., Esquires, barristers-at-law. And therefore it was prayed that the same may be referred accordingly. Whereupon, and upon hearing Mr. F. of counsel for the defendant, who consented thereto, this court doth by consent order, that this suit and all matters in differ- ence between the parties, be referred to the award, arbitrament, final end, and determination of the said X. Y. and U. V. ; who are to make To two their award in writing on or before the [ ] day of [ ], to arbitrate rs be delivered to the said parties, or either of them, who shall require the ^ ' j^', same ; but in case the said X. Y. and U. V. shall not be able to agree concerning the making of the said award, then and in such case, by the like consent, it is ordered, that they be at liberty to choose a third person as an umpire, who is to make his umpirage on or before the [ ] (hi) By the Reg. Gen. H. T. 1853, without reference to any other time or r. 149, "every rule of court shall be date." dated the day of the week, month, and (n) See P. I. Ch. 3, s. 6, d. 2, p. yeai-, on which the same is drawn up, 73, as to submissions by rule of court. 3 B 738 APPENDIX OF FORMS. day of [ ], to be delivered to the said parties, or either of them, who shall require the same ; which is to be fiual and conclusive between the parties. Puwer to ^^(J Jq ^.j^gg ^^^^ g^jj arbitrators shall not be able to make their award, " ' or the said umpire bis umpirage, by the time aforesaid, then such enlargement of the time for making and publishing the said award or umpirage is to be made, as the said arbitrators or umpire shall certify, and this court deem reasonable. And by the like consent, it is ordered that all and every, or any of the parties to this cause, and all and every, or any witness or witnesses to be by them, or any of ^hem respectively produced (if required by the said arbitrators or umpire, or any of the Witnesses parties), be examined upon interrogatories, as the said arbitrators or onl™te^o- ^™P"'^ shall direct; being first sworn before one of the Masters of this gatories, court, or before a master extraordinary : and that all books, vouchc rs, papers, and writings, in the custody or power of the said parties re- spectively, relating or touching, or in any wise concerning the matters in difference, be produced to the said arbitrators or umpire. And by the like consent the costs of this suit, and of this reference, and relating thereto, are to be at the discretion of the said arbitrators or umpire. And by the like consent neither the plaintiff nor defendant is to prosecute any action at law, or suit in equity, or commence any suit whatever against each other, or against the arbitrators or umpire, of and Aw-ord may concerning the premises so as aforesaid referred. And by the like con- order of ^^^* it is ordered, that either of the parties be at liberty to apply to this court. court to have the award or umpirage, to be made iu pursuance of this reference, made an order of this court (o). XXIII. Submission [After stating the title, proceed.'] — his lordship doth order, by consent by order of ^f ^^^^ Attorney-General, and of the relators, and plaintiffs, and of the of charity defendants, that the said causes and all matters in difl'erence between suit, &c. the said parties, respecting the subject-matters of the information in the said causes mentioned, he referred to the award of X. Y., of [ ], barrister-at-law ; with liberty for him to consider and determine, as the Attorney-General might have done, whether the supplemental informa- tion be properly filed, and be properly framed ; with power for him to direct what is proper to be done between the parties in the premises; so as the said X. Y. make his award on or before the first day of Easter Term, 1838, to be delivered to the parties in the said suits, or any of them, who shall require the same; with power to the said X. Y. to enlarge the time for making his said award. And by the like consent, it is ordered, that the costs of the said suits, and of the reference, and relating thereto, shall be iu the discretion of the said arbitrators. And (o) See P. I. Ch. 3, s. 7, d. 1, p. 91, See Lee v. Austen, V. C. of Engl., 5 as to submissions of a suit in equity. Aug, 1848, E. D. C, Reg. SUBMISSIONS. 739 by the like consent, it is ordered, tliat the deatli of any of the said parties shall not operate as a revocation of the autliority of the said arbitrator, but that his award shall be delivered to tlie personal repre- sentatives of the deceased party or parties ; and none of the said parties Parties not shall be at libert}' to revoke or dcteruiiue the reference hereby '^^ liberty IP to revoke, made, &c. xxiy. Whereas I, A. B., of [ ], received notice in writing from the Demand of "[ ] Railway Company," \_or the promoters of the public under- arbitration takiny, na^ning them by their proper title,'] that they required for the sitio^' purposes of their "railway" [or other public undertaldng'], the lands under tie and tenements specified in the said notice, comprising the lands and ^^'■^^ tenements specified in the underwritten schedule, and that they were Consolida- willing to treat for the purchase of the same, and that they intended to tion Act. take tlie same pursuant to the powers given them by certain acts of par- Recital; liament {p). And whereas the said " company" [or the irromoters] have i|'^tice lands offered me the sum of £ f 1> and no more, as the purchase » . e '-_-"_ ' '^ Amount ot money and compensation for my interest in the lands and tenements so compensa- intended to be taken, and for the damage that may be sustained by me t'o^i by reason of the execution of the works connected with the said " rail- way " [or other jniblic undertaking]. And whereas I am not satisfied Dispute with that amount, and do not agree to receive and accept the same as respecting sufficient compensation, and a dispute has arisen between me and the said "railway company " [or other promoters] respecting the same. [If no sum have been offered by the 2»'omoters, leave out the above paragraph, and say, " and whereas a dispute has arisen between me and the said ' railway company' [or other pro)noters) respecting the amount of pur- chase-money and compensation to be paid me for my interest in the said lands and tenements, and for the damage that will be sustained by me by reason of the execution of the works connected with the said ' rail- way ' {or other midertaking)"]. And whereas the said "company" [or the jiromoters] have not yet issued their warrant to the sheriff to summon a jury in respect of such lauds : — I hereby state, that I am Statement interested in the lands and tenements set out and described in the first pf I'lterest division of the said schedule, as tenant in fee simple, and in the lands lauds. and tenements set out and described in the second division of the said schedule, as tenant for years of the same, under a lease from H. K., of [ ], for fourteen years from " Michaelmas Day, A. d. 1841," [or as the case may be, takiny care to show the interest and the length of the term unexpired.] And I claim in respect of such my interest in the said Amount of lands and tenements the sum of £ [a sum exceeding Jiffy jjounds], as ^P"^P6"sa- purchase-money and compensation ; regard being to be had not only to claimed. {p) See P. I. Ch. 3, s. 7, d. 6, p. 94, as to submissions under the Lands Clauses Cousolidation Act, 1845. 3 B 2 740 APPENDIX OF FORMS. the value of the lands and tenements so intended to be taken, but also to the damage, which I shall sustain by reason of the severing of the lands and tenements intended to be taken from my other lands and tenements, or otherwise injuriously affecting such other lands and tene- ments by the exercise of the powers of the acts above referred to, or of any acts incorporated therewith. And I hereby give notice to the said Demand of "company" [or 2J>'o>note)'s'] that I desire to have the amount of such ar itration. compensation settled by arbitration, pursuant to the provisions of The Lands Clauses Consolidation Act, 1845.* And I request the said " com- Requesting pany " [or promoters] to concur with, me in the appointment of a single promoters arbitrator, and failing such concurrence, to nominate and appoint an arbi- ^Ppoin trator on their part, to whom, together with an arbitrator to be appointed tor. and nominated by me, the dispute respecting the amount of such compen- sation shall be referred. [Instead of the concluding words of this form, after the * there often follows an appoi^itment of an arbitrator by the Appoint- landowner. It may he in these words : " and I do hereby appoint A. B. ment of ar- ^f |- j ^^ |jg ^jjg arbitrator on my part to settle and determine the amount of the purchase-money and compensation to be paid to me by the said * company ' {or j^fomotcrs) in respect of my said interest in the aforesaid lands and tenements so intended to be taken, and I request the said ' company ' [or promoters) to nominate and appoint an arbi- trator on their part (^)"]. The[ ](iayof[ ], A. D. [ ]. A. B. To " the [ ] Railway Company," [or the irromoters of l^-c, as the case may be\ Schedule [here specifically describe the lands\ XXV. Demand of (r) Whereas I, A. B., am "the owner in fee of a certain messuage and arbitration premises, called [ ], with, the appurtenances," [or, " possessed cornne '°^- ^^ ^ certain farm and premises, with the appurtenances, called [ ], tiou for for the residue yet unexpired of a term of fourteen years, from Michael- premises mas, 1841."] [Or otherwise describe the particidar premises, and the inak'in" ^ interest ofthejjurty,'] situate at [ ], in the parish of [ ], railway, in the county of [ ]. And whereas my said lands and premises ^'c. have been injuriously affected by the execution of the works of the [here state the name of the railway, or other public undertaking'] in the manner following, that is to say, [here state shortly the nature of the injury]. And whereas I am entitled to compensation in respect of such injury. And whereas you the [the railway company or the promoters] have not made me satisfaction for the same : — I hereby give you notice ; that I {q) Before appointing an arbitrator Yates v. Mayor of Blackburn, 29 L. J. and calling on the promoters also to Ex. 447, S. C. 6 H. & N. 61. appoint one, an attempt should be (»•) See 8 & 9 Vict. c. 18, s. 68. made to agree on a single arbitrator. SUBMISSIONS. ^4 1 claim the sum of £ [a su7n exceedhif/ Jifty poioidsl, ^^ compensation for the aforesaid injury; and that unless, within twenty-one days after the receipt of this notice, you pay the said amount, or enter into a written agreement to pay the same, I desire to have the amount of such com- pensation settled by arbitration,* and request you to concur with me in the appointment of a single arbitrator, or to appoint an arbitrator on your part, to whom, together with an arbitrator to be appointed by me, the question as to such compensation shall be referred. [If the jmrti/ appoint an arbitrator at once, he may, instead of the concluding words after the star *, insert the appointment as in the last Form']. The[ ]dayof[ ], a. d. [ ]. To tlie l_the railway company or other 2}romoters'\. A. li. XXVI. Whereas, under the provisions of the "North Staffordshire Railway Appolnt- (Pottery line) Act, 1846," and the "North Statibrdshire Railway ™eut of (Churnet Valley line) Act, 1846," and of certain other acts incorporated m,jg,. ^j^g therewith, the North Staffordshire Railway Company are entitled to Lands take, and have given due notice in writing to Messrs. J. H., S. B., and tJlauses J. Gr., of [ ], in the county of Stafford, coalmasters, that they ^j^^^ ^^^ require for the purpose of the railway part of certain wharf land and j^pgif,] tenements, situate in the parish of Stoke upon Trent, in the said county ; notice lands in which the said Messrs. J. H., S. B., and J. G. are interested [state required. the interest] : which said land and tenements are specifically described in the said notice, and also in the "underwritten" [or "annexed"] schedule: and whereas the said company have offered to the said Messrs. Corapensa- J. H., S. B., and J. G., the sum of £ [ ], as compensation in tionoffered, respect of the said land and tenements : and whereas the said Messrs- ' J. H., S. B., and J. G. are not satisfied therewith, and have required arbitration, that the amount of such compensation should be determined by arbi- tration (s) : now these presents witness, that " the said North Stafford- shire Railway Company," [or, " the said Messrs. J. H., S. B., and J. G."] pursuant to the provisions of the said recited Acts, and of " The Lands Clauses Consolidation Act, 1845," and of the other acts incor- porated with the said recited Acts, do hereby appoint " G, M'D. of Appoint- [ ], in the said count}-, mining agent," [or, "J. H. B., of ™eut of [ ], in the said county, surveyor,"] to be an arbitrator to settle . and determine the amount of purchase-money and compensation to be ^jitter of paid by the said North Staffordshire Railway Company to the said reference. Messrs, J. H., S. B., and J. G., in respect of their interest in the said land and tenements so intended to be taken as aforesaid, and for the damage that may be sustained by them by reason of the execution of the (s) See P. I. Ch. 3. s. 7, d. 6, p. 94, as to submissions under the Lands Clauses Consolidation Act, 1845. 742 APPENDIX OF FORMS. works of the said railway ; regard being had by the said arbitrator not only to the value of the land and tenements so intended to be taken, but also to the damage, if any, to be sustained by the said Messrs. J. H., S. B., and J. G., by reason of the severing of the land and tene- ments so intended to be taken from the other lands and tenements of the said Messrs. J. H., S. B., and J. G., or otherwise injuriously affecting such other lands and tenements by the exercise of the powers of any of the said Acts. Dated this [ ] day of [ ], A. D. [ ] "W. T. C. ) Directors of the North Staffordshire J. R. ) Railway Company. [Or, 0. P., Secretary of the North Staffordshire Railway Company.] [Or when the appointment is hy the landowners] J. H. S. B. J. G. Schedule to the above. Schedule. [Here specifically describe the premises to he taken."] XXVII. Appoint- In pursuance of the provisions of " The East and West India Docks ment of and Birmingham Junction Railway Act, 1846," and of "The Lands arbitrator douses Consolidation Act, 1845," incorporated therewith; the East and way com- West India Docks and Birmingham Junction Railway Company, do, by pany under this writing under the hand of their secretary, nominate and appoint tlie Lauas -g^ -p ^^ r -i \yMdt. surveyor, to he the arbitrator on their behalf in Consolida- ^ question of disputed compensation, to be made by the said company to lion Act. J. L., of [ ]) ill the county of Middlesex, for his interest [Here state the interest thus, "as tenant in fee-simple in possession;" or " as tenant under a lease for seven years to expire at Michaelmas, 1860 ; " or as the case may be], in the lands and hereditaments specified in the schedule hereunder written, (which are required to be purchased by the said company,) and for the damage to be sustained by the said J. L. in the execution of the works of the said railway. Dated the first day of May, one thousand eight hundred and forty-seven. H. C. Secretary to the said company. Schedule above referred to. A piece or parcel of land as now staked and set out for the purposes of the before-mentioned railway ; together with all houses, buildings, timber and other trees, hedges, fences, waj's, rights, members, and appurtenances thereto belonging ; situate and being in the parish of St. John's, South Hackney, in the county of Middlesex ; and containing by admeasurement one acre, two roods, and nineteen perches, or there- abouts, be the same a little more or less ; being part of several closes or SUBlVirSSIONS. r43 parcels of land and hereditaments comprised in the plan of the said rail- way, deposited with the clerk of the peace for the county of ^liddlesex, and referred to by the before-mentioned act of parliament, and described in the book of reference deposited with the said plan, and also referred to by the said act as under. Parish of St. John, South Hackney, in the County of Middlesex. No. on Plan. Description of Property. Owner or Reputed Owner, Lessee. Occupier. 35 Pasture. The Rev. T, M, and J. L. J. L. XXVIII. Whereas the " [ ] Railway Company " [or other promoters, as the case may 6e,] lately gave me notice in writing that they required to take, for the purposes of their "railway," \or other xindertakiiig, folloioing the terms of the notice,'] certain lands and tenements specified in the said notice, and in the underwritten schedule. And whereas a dispute arose between me and the said " [ ] Railway Company" [or the ^rromoters'] respecting the amount of purchase- money and compensation to be paid to me by them, for my interest [state the interest as in the 2)>'e'vioiis form] in the said lands and tene- ments, and for the damage that might be sustained by me by reason of the execution of the works of the said "railway" [or other under- taking] ; regard being to be had, not only to the lands and tenements so intended to be taken, but also to the damage, if any, to be sustained by me, by reason of the severing of the lands and tenements so intended to be taken from my other lands and tenements, or otherwise injuriously affecting such other lands and tenements by the exercise of the powers given them by the Lands Clauses Consolidation Act, 1845, or by their special act, or by any act incorporated therewith. And whereas, before they issued their warrant to the sheriff to summon a jury in respect of such lands and tenements, I served them with a notice in writing, signifying my desire to have the amount of such com- pensation settled b}- arbitration, and stated in such notice the interest in respect of which I claimed compensation, and the amount of compensa- tion which I claimed, and requested them by such notice to appoint an arbitrator to determine such dispute, and stated in such notice the matter required to be referred to arbitration. And whereas I appointed J. fl, B., of [ ], to be an arbitrator to determine such dispute, and notified such appointment to the said "company," [or "promoters"]. And whereas the space of fourteen days has elapsed since the said dispute Appoint- ment of single arbi- trator to act for both parties, the promoters refusing to appoint an arbitrator. Recital, notice lands required. Dispute as to amount of compen- sation. Notice demanding ai-bitratioii and ap- pointment of arbitra- tor. 744 APPENDIX OF FORMS. Failure of promoters to appoint. Appoint- ment of arbitrator to act for both par- ties. arose, and since the service of the aforesaid request in writing, and since the appointment by me of such arbitrator, and the notification thereof to the "company" [or "promoters"]; and the said "company" [or " promoters "] have failed to appoint an arbitrator : — I now hereby, in pursuance of the provisions of the Lands Clauses Consolidation Act, 184o, and of the acts above referred to, appoint the said J. H. B. to act on behalf both of me and of the said company, in hearing and deter- mining the said dispute. Dated the [ ] day of [ ], a.d. [ ]. A. B. (0. Schedule. [jffere specify the lands, as in the. original appointment of the arhitrator']. Appoint- ment of arbitrator by party dissatisfied with sur- veyor's valuation. XXIX. (m) Whereas the [the railway company, or other promoters of the under- takiny'] " in consequence of my absence from the kingdom," [or " in con- sequence of my not having been found by them " ] procured a valuation to be made under the Lands Clauses Consolidation Act, 1845, of the com- pensation to be paid in respect of my estimated interest in the lands and premises described in the underwritten schedule ; and have deposited the amount of such valuation, being the sum of £ [ ], in the Bank of England, pursuant to the provisions of the above statute: and whereas I am dissatisfied with such valuation, and have given the said [railway company oi" promoters'] due notice in writing, requiring that the question of such compensation shall be submitted to arbitration, and calling upon them to appoint an arbitrator: — I hereby appoint 0. P., of [ ], an arbitrator, to determine, whether the said sum so deposited as afore- said by the said [the railway company, or other promoters'], was a sufficient sum ; or whether any, and what further sum, ought to be paid or depo- sited by them. The[ ]dayof[ ], a.d. [ ]. A. B. Appoint- ment of XXX. umpire by ^ ■ -, arbitrators contained provisions We, the within named U. Y. and X. Y., do hereby nominate and appoint Q,. E., of [ 1, to be the umpire, pursuant to the within [It is better to add, " provided he will accept such indorsed on office."] As witness our hands this [ ] day of [ ], a.d. submission, r n /j.\ Witness, U. V. 0. P. X. Y. {i) See Bradley v. London and North Western Railway Company, 5 Ex. 769 ; ante, P. I. Ch. 3, s. 7, d. 6, p. 96. (m) See 8 & 9 Vict. c. 18, ss. 68, 59, 64, 65. (.t) See P. II. Ch. 4, s. 4, p. 214, as to appointing an umpire. SUBMISSIONS. 745 XXXI. Pursuant to the powers given to us "by an agreement of reference, Appoint- made on the [ ] day of [ ], a. d. [ V (or ^' hy Tn^^^ hj the agreement of reference contained in the condition of two mutual arbitrators, bonds, made and executed on the [ ] day of [ ], a. d. [ ], by A. B., of [ ], and C. D., of [ ], re- spectively, each to the other; " or " by an order of Nisi Prius, made on the [ ] day of [ ], A. d. [ ], in a cause in which A. B. was plaintiff and C. D. defendant,") we, the thereby appointed arbitrators, do by these presents nominate and appoint Q,. B., of [ ], to be the umpire, according to the provisions of the above- mentioned " agreement of reference," [^or " bonds of submission," or " order of Nisi Prius,"] provided he be willing to accept such office. As witness our hands this [ ] day of [ ], a. d. [ ]. Witness, U. V. 0. P. X. Y. XXXII. In the matter of an arbitration 1 Upon hearing counsel for the appellant Judges' between J. L., appellant, and and for the respondents [except J. T. o^ler The Churchwardens and Over- j t> t? -i ^ j- ii ^c appointing <• ii T) * 4.1 -1, ^^^ K.. ±. I and upon reading the ain- ,"„:,„ seers 01 the Poor 01 the parish l , . » , „ . umpire of S. in the county of L. and davit of the appellant and the affidavits under the J. f.' coal- proprietor, and R. of A. B., of C. D., and of E. F.: I do Comnion r. coal-proprietor, and L. D., order thatT.T., Esq., Barrister-at-Law, cedm-eTct flour-dealer, respondents. J ^e appointed the umpire herem, pursuant 1S54. ' to the Common Law Procedure Act, 1854 (y). Dated the 13th day of December, 1854. J.T. C. XXXIII. We, — the undersigned Gr. M'D., of [ ], in the county of Staf- Appoint- ford, mining agent, appointed an arbitrator by and on behalf of the '^^°* °' North Staffordshire Railway Company ; and the undersigned J. H. B., of ^^^^^, ^^i^j. [ ], in the said county, surveyor, appointed an arbitrator by and trators on behalf of Messrs. J. H., S. B., and J, G., pursuant to the provisions J"'^^g*''*' of the Lands Clauses Consolidation Act, 1845, and the North Stafford- clauses shire Railway (Pottery line) Act, 184(3, and the North Statfordshii'e Rail- Consolida- way (Churnet Valley line) Act, 1846, and of the other acts incorporated ^^'^°^ ■'^'=''- with the two last recited acts ; to settle and determine the amount of purchase-money and compensation to be paid by the North Staffordshire (y) See 17 & 18 Vict. c. 12-5, s. 12. 746 APPENDIX OF FORMS. Railway Company to the said Messrs. J. H,, S. B., and J. G-., in respect oi their interest [Here stnte the interest as in Form XXVII.^ in the lands and hereditaments specifically described in the underwritten sche- dule, intended to be taken by the said company for the purposes of their railway, and in respect of the damage to be sustained by them by reason of the execution of the works of the railway : regard being to be had by us, not only to the value of the said lands and hereditaments so intended to be taken; but also to the damage, if any, to be sustained by the said Messrs. J. H., S. B., and J. G., by reason of the severing of the lands and hereditaments so intended to be taken from the other lands and hereditaments of the said Messrs. J. H., S. B., and J. G. ; or otherwise injuriously affecting such other lands and hereditaments by the exercise of the powers of any of the acts above referred to : — do hereby, before enter- ing upon the matters referred to us, nominate and appoint A. L. B., of [ ], in the county of Lancaster, mine agent, to be the umpire in the matter of the said arbitration, pursuant to the provisions of the Lands Clauses Consolidation Act, 1845. As Witness our hands this [ ]dayof[ ], A.D.[ ]. G. M'D. J. H. B. Schedule. [jETere specify the lands.^ Appoint- ment of umpire by Justices or the Com- missioners (if Railways under the Lands Clauses Consolida- . tion Act. XXXIV. Whereas the arbitrators appointed by the \_sfate the name and title of the railway company, or promoters of the public undertaking] and A. B., respectively, pursuant to the Lands Clauses Consolidation Act, 1845, and the \Jiere state the special act]; to settle and determine the amount of purchase-money and compensation to be paid by the said \_railway co7n- pany, or the jiromoters] to the said A. B., in respect of his interest [the interest should be stated as in Form XXVII., or may be specijied in the schedule] in the lands and premises specifically described ia the under- written schedule, intended to be taken by the said [railway company, or the promoters] for the purposes of their [the undertahing], and in respect of the damages to be sustained by him by reason of the execution of the works of the said [railway or undertaking] ; regard being to be had by them, not only to the lands and premises so intended to be taken ; but also to the damage (if any) to be sustained by the said A. B. by reason of the severing of the lands and premises so intended to be taken from the other lands and premises of the said A. B. ; or otherwise injuriously affecting such other lands and premises by the exercise of any of the powers of the said acts ; " have refused " [or " have for seven days after request from the said {the jironiotcrs or the landowner, as the case may be) neglected "] to appoint an umpire : and whereas application has been made by the said [t?ie promoters or the landowner, as the case may be]* " unto us, O. P. and Q. R., two of her Majesty's justices of the peace in and for the county of [county in which the latids are situated], assembled and SUBMISSIONS. 747 acting togetlicr, and not being interested in the matter, to appoint an umpire :— we, the said 0. P, and Q. 11., being such justices as aforesaid, and so assembled and acting together, and not being interested in the matter, do hereby appoint [in the case of a railivaj/ cnmpamj, ivhere the appointment is to be by the Board of Trade {z), substitute for the sentence after the asterish, " to tlie Board of Trade to appoint an umpire, the said Board do hereby appoint "] S. T. of [ ] to be tlie umpire to determine the matter of the said arbitration pursuant to the provisions of the Lands Clauses Consolidation Act, 1845, The [ ] day of [ ], a. d. [ ]. 0. P. Justices of the peace, acting in and Q,. R. for the county of [ ]. Schedule [Iiere specifically describe the lands, (§-c.] XXXV. [Commence as iri Forms XXX. or XXXI.'\ — do by this memorandum Appoint- in writing under our hands, made before we have entered upon the con- "?^°* ^^ sideration of the matters referred, nominate and appoint Q,. R. of [ ], arbitrators to be the third arbitrator to act with us in the consideration and deter- of a third mination of the same, according to the provisions of the "above-men- ^'^'^i**"^*^"''' tioned " [or "within-contained"] " agreement of reference" [or "bonds of submission," or " order of Nisi Prius "] («). As witness our hands the [ ] day of [ ], a.d. [ ]. Witness, U. V. 0. P. X. Y. XXXYI. To the D Waterworks Company, and all others whom it may concern. We the undersigned C. P., E. P., and J. G. P. of [ ], in the Notice to county of [ ], paper makers and stainers, send greeting. ^^^ '^°™" Whereas we the said C. P., E. P., and J. G. P. are, and from the time appoint- of the execution of the works by you the said company hereinafter ment of mentioned continually have been the occupies, under a lease for [ ] ^''l"|^'''^tor years yet unexpired [or, as the case may be, " the owners in fee "] of claimants, certain lands, tenements, hereditaments, and premises, that is to say of a certain paper miU and premises called the 11 Paper Works, in the township of [ ], in the parish of [ j, in the county of (z) P. II. Ch. 4, s. 4, d. 1, pp. 215, (a) See P. II. Cli. 4, s. 3, p. 205, 217. as to joint arbitrators. 748 APPENDIX OF FORMS. [ ], and we have been during all the time aforesaid, and still are, carrying on the business of paper makers in copartnership in tiie said mills and premises [omit this last imragraph if the claim is hy owners not in occupation'], and have been during all the time aforesaid, and are as such occupiers [or ''owners"] of the said paper mill and premises entitled [//" ^/«e claim is hxj owners, insert " for ourselves and the occupiers of. the said mill and premises "] to the full enjoyment of the water of a certain stream called Wendale Brook, which used to flow and still of right ought to flow through and past the said paper mill and pre- mises, and the water of which said stream we [" and the occupiers afore- said "] were and are entitled to use, and did use, and do use for the pur- poses of the said water mill. And whereas by reason of you the said com- pany having under the authority of the said D Waterworks Act, made and constructed and from thence continually maintained certain reservoirs and works, and having by reason thereof from the time of such construc- tion permanently diverted and abstracted part of the water of the said stream, and obstructed and interfered with the enjoyment by us [and the occupiers aforesaid] of the water of the said stream, and injured and deteriorated such water, the said paper mill and premises and the beneficial occupation thereof by us for the purposes aforesaid have been and are thereby injuriously affected, and the value of the said paper- mill and premises has been and is greatly diminished. And whereas we did on the [ ] day of [ ], in pursuance of the powers and provisions of the said first mentioned Act, give you the said company notice in writing that we as such occupiers [or "as such owners "] as aforesaid demanded as and for compensation for such injury the sum of £5000, and we in such notice desired that in the event of you the said company being unwilling to pay the said sum and of you the said com- pany neglecting or declining to enter into a written agreement for that purpose within twenty-one days after the receipt of the said notice by you the said company to have the amount of such compensation settled by arbitration according to the provisions of the Lands' Clauses Consoli- dation Act, 1845. And whereas you the said company have not paid the said amount of compensation so claimed by us as aforesaid, and have neglected to enter into any written agreement to pay the said amount of compensation although more than twenty-one days have elapsed since the receipt of the said notice by you the said company, and have not agreed with us in the appointment of a single arbitrator to settle the same. Now therefore know ye that we the said C. P., E. P,, and J. G. P. for the purpose of causing all questions and disputes between us and you the said company respecting the said compensation so claimed by us as aforesaid to be settled by arbitration in pursuance of the said 1) Waterworks Act, and the provisions of the Lands Clauses Consolidation Act, 1845, and of the several other Acts incorporated with the D Waterworks Act, do hereby on our part and behalf nominate and appoint A. B. of [ ], in the county of [ ], consulting engineer, to be an arbitrator to settle and determine all the questions and disputes between you the said company and us respecting the said SUBMISSIONS. 749 compensation so claimed by us as aforesaid, and to settle and determine the amount of such compensation to bo paid by you the said compmy to us for damajj;e whioh we have sustained, and also the damage which we may sustain for or by reason of such injuries as aforesaid or otherwise by reason of the said works having been executed by you as aforesaid, and to be an arbitrator by us on our part hereby nominated and ap- pointed to act in the business of the said arbitration in all respects according to and in pursuance of the provisions of the said Acts, in, about, and for the settlement and determination of all questions, dis- putes, and matters respecting the premises aforesaid ; and we hereby request you tlie said company to nominate and appoint an arbitrator on your behalf to act in respect of the compensation, damage, matters, and premises aforesaid. Dated the [ ] day of [ ], a. d. [ ]. E. P. C. P. J. G. P. XXXVII. To P, A. and D. A., gentlemen, attorneys of her Majesty's " Court of Warrant of Queen's Bench," [or " Common Pleas," or " Exchequer of Pleas "], at *!'**'™^y ^"^ Westminster, jointly and severally, or to any other attorney of the same to euforce court. delivery of These are to desire and authorize you, the attorneys above-named, or '*""®' ^J any one of you, or any other attorney of the " Court of Queen's Bench " \_or "Common Pleas," or " Exchequer of Pleas"] aforesaid, to appear for me, C. D. of [ ], in the said court, forthwith, or at any time or times hereafter,* and then and there to receive a writ for me in an action of trespass and ejectment at the suit of A. B. [select such of the followincj descriptions of property as are applicable'] for [ ] messuages, [ ] dwelling-houses, [ ] cottages, [ ] barns, [ ] stables, [ * ] outhouses, [ ] yards, [ ] gardens, [ ] orchards, [ ] acres of arable land, [ ] acres of meadow land, [ ] acres of pasture land, [ ] acres of land covered with wood, [ ] acres of land covered with water, and [ ] acres of other land, with the appurtenances, situate in the parish of [ ], in the county of [ ] ; of which the said A. B. , on the [ ] day of [ ], A. D. [ ], was entitled to be possessed ; and thereupon to confess Authority the same action, or else to sufier judgment for want of an appearance, t*^ f^^t^r • . ■ XI -J i- J X 1^ Vi judgment or otherwise, to pass against me in the said action, and to be thereupon ;„ eject- forthwith entered up against me of record in the same court, for the ment forth- recovery of the said term yet to come of and in the said tenements, with * ' the appurtenances, and also for the recovery of £ [ ] damages, besides costs of suit. And I, the said C. D., do hereby further authorize and empower you, the said attorneys or any one of you, or any other 750 APPENDIX OF FORMS. attorney as aforesaid, after tlie said judgment shall have heen entered up as aforesaid, for me and in my name and as my act and deed, to sign, seal, and execute a good and sufficient release, or good and sufficient releases in the law, to the said A. B., his heirs, executors, administrators, or assigns ; of all and all manner of error and errors, and writ and writs of error, and all benefit and advantage thereof, and all misprision of error and errors, defects and imperfections whatsoever, had, made, com- mitted, done, or sufiered, in, about, touching or concerning the aforesaid judgment, or in, about, touching or concerning any writ, warrant, pro- cess, entry, or other proceeding whatsoever, of or in anywise concern- ing the same : and for what you, the said attorneys, or any of you, shall do or cause to be done in the premises, or any of them, this shall be to you, or any of you, a sufficient warrant and authority. In witness whereof I have liereunto set my hand and seal, the [ ] day of [ ], in the year of our Lord [ ]. C. D. (L. S.) Attesta- Signed, sealed, and delivered by C. D. in the presence of, and wit- ^°'^" nessed by, me D. A. of [ ], attorney of the court of [ ], as the attorney of the said C. D. expressly named by him, and attending at his request to inform him of the nature and effect hereof before the same was executed ; and I hereby declare myself to be such attorney for the said C. D., and I subscribe myself as such attorney, having first in- formed him of the nature and efl'ect of this warrant of attorney, before he executed the same. D. A. Defeazance "Whereas [/iere recite the substance of the suhmission to reference re" Recital of sjjectinff the title or jJossession of the lands'] ; and wheruas the said [mes- retereuce. guages, lands, &c. &c.] are now in the occupation or possession of the B^ss^ss"^ said C. D. Now it is hereby agreed and declared, that the judgment so of the to be entered up against the said C. D. in pursuance of the above-written lands. warrant of attorney, is intended and agreed to be a security to the said Judgment ^^ ^^ his heirs, executors, administrators, and assigns, for the due per- rity for formauce by the said C. D., his heirs, executors, administrators, and perform- assigns, of the award to be made by the "feaid arbitrator respecting the ance ot lauds and tenements aforesaid ; and that no execution or executions No e ec - ^^^'^ ^® issued or taken out upon the said judgment, unless the arbitra- tion unless tor shall by his award direct the said C. D., or his heirs, executors, ad- arbitrator ministrators, or assigns, to deliver up to the said A. B., or to his heirs, !• . c' executors, administrators, or assigns, possession of the said lands and land. tenements, or of some part thereof, and the said C. D., his heirs, execu- tors, administrators, and assigns, shall refuse or neglect to deliver up possession of the same pursuant to the directions of the award : and that On refusal jq case and when such refusal and neglect shall take place, it shall be award^ex- l^'^f^^l ^0^ the said A. B., his heirs, executors, administrators, or assigns, ecution to to sue out execution or executions upon or by virtue of the said judgment, recover ^nd by means of such execution or executions to obtain and recover pos- awarded. session of so much of the said lands and tenements as the award shall direct to be delivered up as aforesaid. SUBMISSIONS. 751 And it is further declared and agreed that it shall not be necessary for Not neces- the said A. B., his heirs, executors, administrators, or assigns, to revive «''"7to >■«- or cause to be revived the said judgment, although the same shall have nieut*" ''' been entered of record for the space of one year and upwards : and that th lugh the said C. D., his heirs, executors, and administrators, shall not nor will >'''^'' have, receive, or take any plea, exception, proceeding, or other benefit, from the omission of the said A. B., his heirs, executors, administrators, or assigns, to keep on foot or revive the said judgment, although tlie same thail have been entered lor a year or upwards : and that if the said C. D., his heirs, executors, and administrators, shall attempt so to do by action or other legal proceeding or proceedings whatsoever, this present agreement shall and may be pleaded or shown in bar thereto, any rule or practice of the courts, or of any one of them, to the contrary thereof in any wise notwithstanding. As witness the hands of the said parties the day and year above written (i). Witness, C. D. D. A. . A. B. XXXYIII. [TAe heading arid commencement are the same as in the preceeding Form Warrant of XXXVII. as far as the asterisk'] — and then and there to receive a de- attorney to claration for me in an action of debt for £ [ ], [state a sum about ^^^^^ of*^^" double the amount lihelij to be awarded] for money borrowed at the suit money of A. B. of [ ], his executors or administrators ; and thereupon awarded. to confess the same action, or else to sufier a judgment by nil dicit, or otherwise to pass against me in the same action, and to be thereupon To enter entered up against me of record in the said court for the said sum of judgment £ [the su7n above mentioned], beside costs of suit. And I, the said C. D., J."^ f . , do hereby further authorize and empower you, the said attorneys, or any of you, after the said judgment shall be entered up as aforesaid ; for me and in my name, and as my act and deed, to sign, seal, and execute a good and sufficient release in "law to the said A. B., his heirs, executors, and administrators, of all and all manner of errors [continue as in above precedent.] "Whereas [here recite the substance of the submission, as for instance] Defeazance by a certain agreement in writing, made the [ ] day of [ ], Recital of between the said A. B. and the said C. D., reciting that certain differences reference, had arisen between them as to whether the said C. D. was indebted to the said A. B. in. any, and if any, in what amount of money ; it was agreed by and between the said parties to refer all matters in difference between them to the final determination and award of X. Y. of [ ], barrister-at-law. Now it is hereby declared that the judgment so to be Judi^meut (6) See P. I. Ch. 3, s. 1, d. 3, p. 44, as to taking collateral security for performance of the award. 753 APPENDIX OF rORMS. to be secu- entered up in pursuance of the above written warrant of attorney, is amount ^S^^^'^ and intended to be a security to the said A. B. for the payment awarded, to him of such sum, as the arbitrator shall award to be due from the said with iu- C. D. to the said A. B., with interest from the date of the making of the ■ award until the issuing of execution : and that no execution shall be tion unless issued or taken out upon the said judgment, unless the arbitrator shall sum award a sum to be" due from the said C. D. to the said A. B. ; and that if awarded, the arbitrator shall so award, then it shall be lawful for the said A. B., Execution jjjg executors, administrators, or assigns, to sue oat execution by virtue to issue for /. , ■, . , . ■, amount ^i the said judgment, and to levy the amount awarded due, with interest awarded, at five per cent, on the same from the time of making the award until the suing out of execution. [ Conclude as m the preceding Form from " And it is further declared and agreed," leaving out all mention of the heirs of A. B.'] with in- terest, XXXIX. Order of At the General Quarter Sessions of the Peace held by adiournment at re erence Preston, in and for the county palatine of Lancaster, on the 5th day of Court of April, in the year of our Lord one thousand eight hundred and fifty-four, Quarter upon the appeal of J. L. against the rate or assessment made for the bessions, j-giigf ^f ^y^q pgoj. Qf ^\^q parish of S. in the said county, at [ ] in to Stat. 12 the pound, on the [ ] day of [ ] last, and allowed on & 13 Vict, the [ ] day of [ ] last, in which appeal the church- *^' wardens and overseers of the poor of the said parish were respondents, being brought before the court, it is ordered by the court, with the consent of the parties, that the matters of such appeal be referred to arbitration to J, F. of [ ], gentleman, appointed on behalf of the respondents, and to F. D. of [ ], land agent, appointed on behalf of the appellant, in the manner and on the terms following, that is to say, that before entering upon the reference the arbitrators shall appoint an umpire, and in ease the said arbitrators cannot agree upon an award, then the matters shall be referred to the umpirage of such umpire, and that the costs of the appeal be in the discretion of the Court of Q,uarter Sessions, and the costs of the reference and award be in the discretion of the said arbitrators or umpire. And it is further ordered by the like consent, that the parties if examined, and the witnesses, shall be examined upon oath ; and that the said parties shall produce before the said arbitrators all books, deeds, papers, and writings, relating to the matters in difference between them, as the arbitrators shall require. Deputy C. P. On the motion of Mr. H. By the Court. RUBMISSIOXS. 753 XL. X. ■) Upon hearing the attorneys or agents on both sides, and upon Order of V- } reading the affidavit of A. B. and the affidavit of C. D., I do order compulsory Y I reference * '' that this cause be referred, pursuant to the Common Law Procedure u„(]er the Act, 1854, to A. B., Esq., barrister-at-law [^or "to one of the masters of Common this Honourable Court," or other arbitrator']. And I further order, that V^ ^^°' the costs of this cause to be taxed shall abide the event of the award, 1^54 * and that the costs of the reference and award shall be in the discretion of the said arbitrator, who may direct to and by whom, and in what manner, the same shall be paid (c). * XLI. Afterwards, on the day of ,18 , [the Jirst daj/ of the Tostea., sittings, or the day of the trial, or the commission day of the assizes'], 7^^" ^^^ at the Gruildhall of the City of London [or "at Westminster hall, in the the trial of county of Middlesex"], or at [ ], in the county [or " city"] of an issue in [ 1, at the assizes there holden, in and for the said county \or ^'*'^'' •'^'o''® . *j \- him directs " city"], before Sir [ ], knight, one of Her Majesty's justices of an arbitra- her Court of Queen's Bench [or "Common Pleas," or "one of the tion as to Barons of Her Majesty's Court of Exchequer"], came the parties within P*';* ° ^ mentioned by their respective attorneys, within mentioned, for the trial ^j^'g Com- of the said issue [or "issues"]; and as to the plaintiff's claim in the mon Law [ ] count of the declaration within mentioned [as the case may J^^^^^^l\ he], it appears to the said judge [or " baron"], that the questions arising /(^\ ' thereon, involve matter of account which cannot conveniently be tried before him; and hereupon the said judge [or " baron"] orders that the plaintiff's claim in the said [ ] count of the declaration men- tioned, be referred to E. F. of [ ], Esq., an arbitrator appointed by the said parties [or "to E. F., Esq., being one of the masters of the Court of Queen's Bench," or " Common Pleas," or " Exchequer of Pleas," or other officer of the court, stating his office], "upon the terms that," &c. [set forth the terms of the order]. And the said judge or baron decides each of the said issues, except those relating to the said [ ] count in favour of the plaintiff [or the statement of the decision may he in the affirmative or negative ivords of the issue, as for example, thus ; " and the said judge" [or " baron"] as to the first issue within joined, decides that the defendant is guilty as within in the (c) As to the clause respecting costs, specting the costs of tlie reference and see P. II. Ch. 7, s. 1, d. 2, p. 358. In award. The court, on motion, directed the case of Bell v. Postlewaite, decided the order of reference to be amended in the Queen's Bench, Nov. 23, 1S55, by adiing the clause respecting costs, the order of compulsory reference had as in Form XL. no clause respecting costs. The arbi- {d) Reg. Gen., Nov. 27, 1854, trator in his award gave directions re- Form 6. 3 754 APPENDIX OF FORMS. [ ] count of the declaration alleged ; and as to the second issue within joined, the said judge [or "baron"] decides, that the defendant did not commit the acts within in the [ ] count of the declara- tion alleged by the plaintifi''s leave]. And the said judge \_or "baron"] assesses the damages of the plaintiff on occasion of the premises within in the [ ] count of the declaration complained of, over and above his costs of suit to £ [ ]. [_07nit the assessment of damages if none made']. Therefore, &o. PROCEEDINGS DURING THE REFERENCE. 755 PROCEEDINGS DURINa THE REFERENCE. XLII. B. ^ (a) I appoint [3fondai/'], the [third] day of [Jamtanj'] next, for Appoint- J- } proceeding in this reference, at the hour oi [eleven] o'clock [in the ment for a ' ^ forenoon], at [the Guildhall Coffee House, King Street, Cheap- /j\ ^^q° side] (5). reference. [Dec. 22, 1855.] X. T. To Messrs. E. and F., attorneys for A. B., and to Mr. G. H., attorney for C. D. (c). Arbitrator. XLIII. B. ") I appoint [ilionr/ay], the [third] and [JVednesdar/] the [^^if/*] Appoint- '^' } days of [Januari/] next, for proceeding in this reference, at [mi/ J''^"*' ^°^ ' ' chambers. No. 3, Tanjield Court, Temple], at the hour of [eleven iugs. o^clock in the forenooyi, on the Monday], and of [seven o'clock in the evening, on the Wednesday]. [Dee. 22, 1855.] X. Y. Arbitrator. To Messrs. E. and F., attorneys for A. B., and to Mr. G. H., attorney for C. D. XLIV. B. ) {d) 1 appoint [Monday], the [third] day of [January] next, Peremptory '^' } peremptorily, for proceeding in this reference, at the hour of [eleven appoint- * ' o'clock in the forenoon], at [the Guildhall Coffee House, King ™^°''- Street, Cheapside], [Dec. 22, 1855.] X. Y. Arbitrator. To Messrs. E. and F., attorneys for A. B., and to Mr. G. H., attorney for C. D. (a) See P. II. Ch. 4, s. 1, d. 2, p. parties to the reference than two. 164, as to giving appointments. (f) If a party do not appear by attor- (6) Instead of heading the appoint- ney, but con proceeding in this reference, at the hour of [eleven o'clock in the bitrator * ^ forenoon\ at [the Guildhall Coffee House, King Street, Cheap- parte. will pro- side] : and I give notice that in case " either party" [if one party only !>ttf/^ Je delaying, say " you, A. B."] fail to attend without having previously shown to me good and sufficient cause " for his absenting himself" [or " for your absenting yourself"], I shall, at the request of " the party" [or " C. D., if"] present, go on with the reference ex parte. The [ ] day of [ ], a. d. [ ]. To Messrs. A. B. and C. D. [or to Mr. A. B.] X. Y. XLVI. Affidavit In the "Queen's Bench" [or "Common Pleas," or "Exchequer of for attend- Pleas"]. wTtnefs " Between A. B. plaintiff, and C. D. defendant." [If there he no cause in court, instead of the above, say, "In the matter of the arbitra- tion between A. B. and C. D."] 1. I, 0. P., of [ ], [attorney for the said A. B.] make oath, and say [here recite the submission shortly, for instance], "that by a certain order of Nisi Prius [if the order he annexed, say, " herewith annexed"], made in a cause in which the said A. B. is plaintiff and the said C. D. defendant, the said cause and all matters in difference between the said parties were referred to the award of X. Y. of [ ])" [o*" "that by a certain agreement in writing the said A. B. and C. D. agreed to refer certain differences to the award of X. Y. of [ ], and further agreed that their submission to arbitration should be made a rule of this court"] and that the said X. Y. has taken upon himself the burthen of the said reference, and has made and signed an appointment in writing [if the appointment be annexed, say, "herewith annexed;" if only a copy he annexed, say, "a true copy whereof is hereto annexed"] for a meeting upon the said reference [if neither original nor copy he annexed, say, "for a meeting upon the said reference, on the [ ] day of [ ] next, at [ ], at the hour of [ ] o'clock in the [ ]"]. 2. And I, this deponent, further say, that G. H. of [ ], who now resides at [ ], in the county of [ ] [or if the witness gttnnot be found, say so, and also state the facts to satisfy the court that such is the case], is a necessary and material witness for the said A. B. touching the matters referred as aforesaid ; and that it is necessary that the said G. H. should attend to be examined and give evidence before the said arbitrator at the time and place appointed for the said meeting in the reference. PROCEEDINGS DURING THE REFERENCE. 75^ 3. [Tfthe witness be required to produce documents, say'] And I, this deponent, further say, "that the said O. II." \or "that I have heen informed and verily believe that the said G. II."] has in his possession or control a certain [here describe the document or documents'] ; and that it is necessary and material for the case of the said A. B. that the said G. H. should produce the said "documents" to be read in evidence before the said arbitrator at such meeting as aforesaid; and that the said G. H. has not, as I believe, any just cause or reason for refusing to produce the said " documents" (e). Sworn, &c. 0. P. XLVII. [JStititle the certificate as in the preceding Fonn]. — I hereby certify Certificate that G. H. of [ ], who resides at [ ], in the county of f ^^^^^^ [ ], [or " who cannot now be found," stating facts as in the ance of 2n-ecedinff Form], is a necessary and material witness on the part of the wituess. said A. B. touching the matters referred ; and that it is necessary that the said G. H. should attend before Mr. X. T., the arbitrator, on the [ ] day of [ ], at [place of meeting], at the hour of [ ] o'clock in the [ J ; at which time and place the arbitrator has by a writing signed by him appointed a meeting to be held in the reference [if the witness is to produce documents, add] ; and that the said G. H. should, at the time and place aforesaid, produce before the arbitrator a certain [here describe the documents as in a sub- poena duces tecum]. Dated the [ ] of [ ], a. d. [ ] 0. P. Attorney for the above-named A. B. XL VIII. B. ") Upon reading the certificate of 0. P., attorney for "the plaintiff," Judge's V. \[or "A. B."], [or "upon reading the affidavit of 0. P., and the order for ^^ order of Nisi Prius, and paper writing and appointment thereto Qf^jj^ggg,. annexed"] I order and command that " G. H." [or "you G. H."] of [ ], do attend before X. Y., Esq., the arbitrator herein, on the [ ] day of [ ], at [place of meeting], at [ ] o'clock in the [ ] ; and do then and there submit to be examined upon oath or affirmation on behalf of the "said plaintiff" [or "said A. B."] touching the matters referred to the said arbitrator [if the witness is to produce documents, add]; and that "the said G. H." [or (e) See P. II. Cb. 4, s. 1, d. 3, p. 169, as to enforcing attendance of wit- nesses. 758 APPENDIX OF FORMS. "you"] bring with "him" [or "you"], and produce before the said arbitrator at the said time and place a certain \_here sjjecify the docu- ments as in a subpoena duces tecum'], pursuant to the statute. Dated [ ]dayof[ ], a. d. [ ] (/). [Judffe^s signature,] XLIX. Memoran' In the "Queen's Bench" [or "Common Pleas," or "Exchequer of ?""^/7 Pleas"], jurat or -■ witnesses. Between A. B. plaintiff, and C. D. defendant. Jurat for plaintiff. A. B. plaintiff. G. H.^ I. K. > witnesses. L. M. ) By "rule of court" [or "judge's order," or "baron's order," or " order of Nisi Prius' ']. Dated the [ ] day of [ ], a. d. [ ]{ff)' 0. P., plaintiff's attorney. Jurat of witnesses. In the " Queen's Bench" [or " Common Pleas," or " Exchequer of Pleas"]. A. B. against C. D. G. H. of [ ]. I. K. of[ ]. L. M. of [ ], &c. On the [ ] day of [ ], the above [ ] witnesses were severally sworn " in court" [or if before a Judge, say, " before me at my chambers in Rolls Garden"] to give evidence before the arbitrator to whom this cause stands referred. G. H. By the Court [if sworn before I, K. a judge, the signature of the L. M., &c. judge instead]. LI. Form of The evidence which you shall give before me the arbitrator, touching oath to be the matters in difference in this reference, shall be the truth, the whole arbitrat ^^ truth, and nothing but the truth j so help you God. (/) See P. II. Ct. 4, s. 1, d. 3, p. (g) See P. II. Ch. 4, s. ], d. 6, p. 169, as to enforcing attendance of wit- 175, as to swearing ■witnesses, nesses. PROCEEDINGS DURING THE REFERENCE. 759 LII. You shall true answers make to all such questions as shall be asked of Anollier you touching the matters in difi'erence in this reference ; so help you God. '^"'"'" "^ '' oath. LIII. T, A. B., being [or " having been"] one of the people called Quakers Form of [or " one of the united brethren called Moravians"] [or " bein"- a '^^'■'"^*''°°' Separatist"], do solemnly, sincerely, and truly affirm and declare,* that the evidence which I shall give before you, the arbitrator, touching the matters in difference in this reference, shall be the truth, the whole truth, and nothing but the truth. LIV. [Cominence as in the preceding Form LIII,, as far as the asterisk, Another a7id then continue] — that I will true answers make to all such questions ^^'"'" °^. as shall be asked of me touching the matters in diiFereuce in this refer- ^ ^"^^ ^^'^' ence. LV. In the matter of the arbitration between A. B., C. D., and E. F. Sir, In pursuance of the power given to me by the " order of reference" [or Demand by other submission, as the case may 6e], I require you to produce before me, arbitrator on Monday, the third day of January next, at the hour of eleven o'clock ffon o'f "*'' in the forenoon, at my chambers, Farrar's Buildings, Inner Temple, the documents, following documents relating to the matters in this reference, that is to say, [here enumerate the books, deeds, papers, and writings demanded, specifying and describing each with a reasonable degree of particularity as far as is practicable. It may often also be advisable to add, " and also all other books, deeds, papers, and writings, concerning the matters iu diflerence referred to my decision "] (A). Dee. 22, 1847. X. Y. To Mr. A. B. (e). Arbitrator. {h) See P. II. Ch. 4, s. 1, d. 8, p. whenever there is any doubt of the 183, as to the arbitrator's power to call party's willingness to comply with it • for documents. fur the courts, it is presumed, would not (i) A copy of this notice should be enforce obedience by attachment unless served personally, as in the case of a there were a personal service, with the demand of performance of an award, requisite foi'malities. 760 APPENDIX OF FORMS. LVI. Gentlemen, Request by In order that in forming my award I may not omit duly to estimate arbitrator every matter which is deemed of importance, I request you respectively °+ "t "'^ f ^ to furnish me with a statement in writing of the particular matters (other of the mat- than those included in the cause referred), which you desire me to take ters in dif- into my consideration as matters in difference in this reference (k). The[ ]dayof[ ], a. d. [ ]• Yours truly, ference. X. Y. To Mr. A. B. [or " Mr. G. H., attorney to Mr. A. B."], and to Mr. C. D. [or " Mr. I. K., attorney to Mr. C. D."]. LVII. Sir, Notice by "We hereby give you notice that we cannot and shall not be able to arbitrators agree in making an award, but have finally disagreed about the same, of final dis- ^^^ ^^^^ ^^^ ^^® ^^ liberty to proceed as umpire to consider and award agreement, upon the matters referred {I). The[ ]dayof[ ], a. d. [ To Q. R., Esq., umpire. Y* y" S Arbitrators. Enlarge- ment of time by arbitrator. LTIII. I enlarge the time for making my award respecting the matters referred to me by the {if the enlargement of time is to be indorsed on the submission, say, "within order of reference" [or other submission'], if it is to be written at the foot of the submission, say, " above order of reference " [or other submission'] ), until the [ ] day of [ ], A. D. [ ] i^^)' The [ ] day of [ ], a. d. [ ]. Witness, X. Y. 0. P. Enlarge- ment of time by tbe parties. LIX. [Enlargement endorsed on the submission.] — We, the within-named A. B. and C. D., do hereby agree to give and allow to the within-named (k) See P. II. Ch. 4, s. 1, d. 15, p. 197, as to requiring statement in writ- ing of matters in difference. (l) See P. II. Ch. 4, s. 4, d. 4, p. 223, as to commencement of the um- pire's authority. (m) See P. II. Ch. 3, s. 2, d. 1, p. 133, as to enlargement by the arbi- trator. PROCEEDINGS DURING THE REFERENf'R. 761 arbitrator a further time for making his award, namely, until the [ ] (lay of [ ], A. D. [ ] ; and we further declare and agree that all the provisions of the within- contained " agreement of reference " [or " bond of submission," or " order of Nisi Prius,"] shall continue of full force and effect ; except that the same shall be construed and read as if the day hereby given and allowed had been given and allowed for the making of the award by the " within-contained agree- ment of reference " [or " bond of submission," or " order of Nisi Prius "]. In witness whereof we have hereunto set " our hands" [if the submis- sion be by bandar deed, say, '* our hands and seals,"] this [ ] day of [ ], A. D. [ ] (n). Witness, A. B. 0. P. C. D. LX. In the Queen's Bench, Monday, the [ ] day of [ ], A. D. 1848, in the eleventh year of the reign of Q.ueen Victoria. B^ ^ Upon, reading the rule made on [date of rule embodying submis- ^^le for en- V. > sion], and upon hearing Mr. [ ], of counsel for the plaintiff, b ' con^°at ^- ) and Mr. [ ], of counsel for the defendant, and by their con- sent; it is ordered that the time limited for the arbitrator making his award between the parties be enlarged until the [ ] day of [ ]. By the Court. LXI. Master of the KoUs. Saturday, the [ ] day of [ ], in the eleventh year of the reign of her Majesty Queen Victoria, 1848, !A. B. plaintiff, ^POii motion this day made unto this Order of and court, by Mr. E, , of counsel for the plaintiff ; Chancery C. D. defendant, it was alleged, that by an order dated' the ^enTby^'" [ ] day of [ ■ ], it was, by consent, ordered that all matters conseut. in difference should be referred to the arbitration, award, and final determination of X. Y., Esquire, barrister-at-law, who was to make his award on or before the [ ] day of [ J ; [if the time has been enlarged before insert the following clause, " that by an order dated the (w) See P. II. Ch. 3, s. 2, d. 2, p. 137, as to enlargement of time by the parties. 762 APPENDIX OF FORMS. [ ] day of [ ], it was ordered that the time for the said arbitrator to make his award shall be enlarged until the [ day of [ ];" that the said arbitrator has not yet been able to make his award ; and therefore it was prayed that the time for the said arbitrator to make his award maybe [if the order he for a second enlarge- ment, say '* further "] enlarged to the [ ] day of [ ]. Which is ordered accordingly ; Mr. F., of counsel for the defendant, consenting thereto. LXII. Let the " plaintiff's " [or "defendant's "] attorney, or agent, attend me at my chambers, in Rolls Garden, at [ ] of the clock in the " forenoon," [or " afternoon,"] to show cause why* the time(o) limited for the arbitrator's making his award between the parties should not be enlarged until the [ ]. Dated the [ ] day of [ ], a. d. [ ] {p). [Judge's Signature.^ Summons g^ y, p^ r^^ a i^ for enlarge- ^j^g j^^t^gj. ^^ ^r- ment by a ^jitration between judge . B and C D "1 under the ^' ^- ^^°- ^- ^- J statute of wni. IV. LXIII. Upon hearing the attorneys or agents on both sides, and upon reading the affidavits of Gr. H. and I. K., I do order* that the time limited for the arbi- trator making his award between the parties " in of Will. iv. this cause " [or " in this matter "] be enlarged until [ ] next. Dated the [ ] day of [ ]. [Judge's Signature.'] Judge's B. V. D, [or "In order for the matter of ar- enlarge- bitration between ment under j^ g^ ^nd C. D."] the statute Rule nisi for enlarg- ing time under the statute of Will. IV, LXIV. In the Q,ueen's Bench. [ ]the[ ]dayof[ ], A. D. [ ], in the [ ] year of the reign of Queen Victoria. A. B. V. C. D. [or^ Upon reading the rule made in this " cause" [or " In the matter | << matter"] on [date of rule embodying submission], of arbitration be- f ^^ the affidavits of Gc. H. and I. K., it is ordered, 1 that " the defendant," [or " C. D. in the said rule J and affidavits mentioned "] upon notice of this rule tween A, C. D."] B. and (o) The expression in the statute is ' to enlarge the term;" see p. 140. (p) See P. II. Ch. 3, s. 2, d. 3, p. 139, as to enlargement of time by the courts. PROCEEDINGS DURING THE REFERENCE. 763 being given to him or his attorney, shall upon the [ ] day of [ ] show cause why* the time limited for the arbitrator making his award between the parties should not be enlarged until [ ]. Upon the motion of Mr. [ ]. By the Court. LXV. In the Queen's Bench. [ ]the[ ]dayof[ ], A. D, [ ], in the [ ] year of the reign of Queen Victoria. A. B. V. C. D. [or'] Upon reading the rule made in this "cause," [or Rule abso- "In the matter I " niatter,"] on [date of rule nisi] the affidavits of bite for of arbitration be- .G, h. and I. K, [the amdavii^ in answer,ifanv,lf'''^''^ tweeu A. B. and , i • ,t r -, n , "f 'J time under Q^ j)_»-| and upon hearing Mr. [ J ot counsel " for the statute J the plaintiff," [or "for A. B. in the said rule men- ofWiU. IV. tioned,"] and Mr. [ ] of counsel " for the defendant," [or " for C. D. in the said rule mentioned,"] it is ordered * that the time limited for the arbitrator making his award between the parties in this " cause" [or " matter "] be enlarged until [ ] next. By the Court. LXVI. In the matter of the arbi-") Upon hearing the attorneys or agents for Judge's tration between J. L., ap- I the appellant, and counsel for the respond- order en- ^:"d:n;r.Vo\yir''ot^-'». -^ up„o reading the affldari., or 1?^^^ the parish of S., in the ^- B-, C. D., and E. F., I do order that the stating county of L., respondents. J time for the umpire to make his award cause under herein be enlarged until the 1st day of May next, for the following cause, ^^^ l^w namely, that I am satisfied that no unreasonable delay has taken place. Procedure and that further time is requisite for the umpire to hear further evidence ' ISo*. and make his award (q). Dated the 13th day of November, 1855. w. w. LXVII. [Commence the summons as in Form LXIL, as far as the asterisk, and Summons continue — " the plaintiff" [or " the said A. B."] should not be at liberty for leave to to revoke and make void tlie power and authority of the arbitrator to ^^^" make his award in the reference herein. [Conclude as in the Form LXIL] (r). (2) See 17 & 18 Vict, c. 125, s. 15. (r) See P. II. Ch. 3, s. 3, d. 2, p. 147, as to revocation by leave of court. 764 APPENDIX OF FORMS. Judge's order for leave to revoke. LXVIII. [Commence the order as in Form LXIII., as far as the asterisk, and continue'] — that "the plaintiff " [or "the said A. B."] be at liberty to revoke and make void the power and authority of the ai-bitrator to make his award in the reference herein. [Conclude as in Form LXIII.] LXIX. Rule nisi [Commence the rule as in Form LXIV,, as far as the asterisk, and for leave to continue as in Fonii LXVIII., concluding as in Form LXV.] revoke. Rule abso- lute for leave to revoke. LXX. [ Co7nmence the rule as in Form LX V. , as far as the asterisk, and continue as in FonJi LXVIII., concluding as in Form LXV.] sion by a party, LXXI. Revocation Know all men by these presents, that I, A. B., of [ ], have re- of submis- voked, annulled, and made void, and by these presents do revoke, annul, and make void, all the power and authority which by [recite the submis- sion, for instance,] a certain agreement of reierence in writing, made the [ ] day of [ ], A. D. [ ] between me the said A. B. and C. D. of [ ], were conferred upon X. Y. of [ ], the arbitrator thereby appointed to award and determine on certain matters in difference between me and the said C. D. ; and I do hereby discharge and prohibit the said X. T. from making any award, or from any further proceeding in the said arbitration. As witness my "hand," [if the submission be by bond or deed, say " hand and seal,"] this [ ] day of [ ], a. d. [ ] (s). Witness, A. B. [if by deed, L. S.] 0. P. Notice of revocation to arbitra- tor. Sir, LXXII. I hereby give you notice that by a writing under my hand and seal, made on the [ ] day of [ ], A. d. [ ], I have revoked, annulled, and made void your authority as arbitrator : and I (s) See P. 11. Ch. 3, s. 3, d. 1, p. 143, as to revocation by a party. PROCEEDINGS DURTN(! THE REFERENCE. 765 hereby discharge and prohibit you from further proceeding in the matters of the arbitration between me and C. D. Dated the [ ] day of [ ], A. d. [ ]. To X. Y,, Esq. A. 15. LXXIII. Gentlemen, I hereby give you notice that I have made and published my award Notice to in writing respecting the matters in difference between Mr. A. B. and Parties of Mr. C. D. referred to me, and that it lies at " my chambers," [^or other Qj^de place speci/ied,'] ready to be delivered. The charges amount to £ [ ] (<). Yoiirs truly, X. Y. The [ ] day of [ ], a. d. [ ]. To Mr. A. B., and Mr. Gr. H., attorney for Mr. A. B., and to Mr. C. D., and Mr. I. K., attorney for Mr. C. D. (t) See P. II. Ch. 5, s. 1, dd. 2, 3, s. 2, d. 1, p. 644, as to effect of notice pp. 236, 237, as to publishing and de- on the parties, livering the awai-d. Also P. III. Ch. 9, 766 APPENDIX OF FORMS. AWARDS. LXXIV. Award on a {_See order of Nisi Prius on the usual terms, Form XIII.^ — (a) reference by Whereas at the assizes held at Kingston upon Thanaes, in and for the Nisi Prius county of Surrey, on Monday, the 23rd day of March, a.d. 1846, before on the usual the Right Honourable Thomas Lord Denman, Chief Justice of our Lady terms. ^j^g Queen, assigned to hold pleas before the Queen herself; the Honour- able Edward Hall Alderson, Knight, one of the Barons of our said Lady Recital of the Queen, of her Court of Exchequer ; and others their fellows, Justices ord ° f ^^ ^^^ ^^^^ Lady the Queen, appointed to take the assizes for the said Nisi Prius. County of Surrey, according to the form of the statute in that case made Of power to and provided : on the trial of a cause in which A. B. was plaintiff, and the arbitra- Q_ j)^ defendant ; it was ordered by the court, with the consent of the verdict parties, their counsel, and attorneys ; that a verdict should be entered for Of cause ^^^ plaintiiF, damages the amount in the declaration in the above cause and all mentioned, costs 40s. ; but that such verdict should be subject to the matters award, order, arbitrament, final end, and determination of me, X. Y. referred. . . Esq., barrister-at-law ; who was by the same order empowered to direct, that a verdict should be entered for the plaintiff or for the defendant, as I should think proper ; and to whom the above-mentioned cause, and all P^y®'' matters in difference between the parties, were thereby referred: to say what . . ' •' . shall be order and determine what I should think fit to be done by either of the done. said parties respecting the matters in dispute ; so as that I the said Of manner arbitrator should make and publish my award in writing respecting the jn winch matters referred, ready to be delivered to the said parties, or to either of award to be • <. i • made. them ; or if they, or either of them, should be dead before the making of the award, to their respective personal representatives who should require Of power to the same ; on or before the fourth day of the then next Easter term, or e arbitra- ^^ ^p before any other day, to which I the said arbitrator should, by any large the writing under my hand, to be indorsed on the said order, from time to time. time enlarge the time for making my award. Of power to And whereas it was also ordered that the costs of the said cause, to be the arbitra- taxed, should abide the event of the said award : and that the costs of tor over , costs. t^® reference and of my award, to be taxed, should be in the discretion of me the said arbitrator, who might direct and award to and by whom, and in what manner, the same should be paid. Of enlarge- And whereas I the said arbitrator, on the 2nd day of April, a.d. 1846, ™^°* °^ did, by writing under my hand, indorsed on the said order, enlarge the arbitrator.^ time for making my award until the fourth day of Michaelmas Term then next. Of further ^^^ whereas I the said arbitrator, on the 7th day of July, a.d. 1846, enlarge- did, by writing under my hand, indorsed on. the said order, further time ° enlarge the time for making my award until the fourth day of Michael- mas Term, a.d. 1846. (a) See P. II. Ch. 5, s. 2, p. 243, as to the form of the award. AWARDS. 767 Now I the said arbitrator having taken upon myself the burthen of Award of this reference, and having duly weighed and considered the several alle- '"^"'^ ■'^"'^'i, gations of the said parties, and also the proofs, vouchers, and documents .jj-emises which have been given in evidence before me ; do hereby make and pub- lish my award in writing of and concerning the matters above referred to me (b), in manner following, that is to say : — As to the issue firstly joined in the said cause (c), 1 award and adjudge. On issue ou that the defendant did promise in manner and form, as the plaintiff has ""° '^^' in the declaration in the said cause complained against him. And as to the issue secondly joined in the said cause, I award and On issue on adjudge, that the defendant did not pny to the plaintiff, nor did the traverse to plaintiff accept of and from the defendant the sums in the last plea of {^cat" ^^^" the defendant in the said cause mentioned, or any part of them, in full satisfaction and discharge of all the causes and rights of action in the declaration mentioned, in manner and form, as the defendant has in his last plea alleged. And I further award and adjudge, that the plaintiff has sustained Award of damages, by reason of the non-performance by the defendant of the pro- damages in mises in the declaration mentioned, to the amount of [ ] [_it is cause. better to state the sttm in ivords than in Jiyuresi pounds, which sum I Direction award and direct the defendant to pay to the plaintiff {d). to pay. And I further award and direct that the verdict which has been ^"^I'dict to entered for the ijlaintilf do stand ; but that the entry of damages be foj. reduced reduced to the sum of £ [ ] above mentioned (e). damages. And I further award and adjudge that there are no matters in differ- Award as enee between the parties other than those in the said cause. [Or, "And to other as to the matters in difference between the parties other than those in ™'^ters m the said cause, I award, adjudge, and direct, that the defendant do pay to the plaintiff the sum of [ ] pounds, in full satisfaction and discharge of all claims and demands by the plaintiff against the defendant in respect of the same (/)." Or, "And I further award and adjudge that the defendant has no claim or demand against the plaintiff in respect of any matters in difference betvTeen them {g)."'\ And I further award and direct that the defendant do pay to the Award de- plaintiff his costs of and incidental to the reference and the costs of the feudant to award, and that the defendant do bear his own costs of the same (A). \^1 ^^^T In witness whereof I have hereunto set my hand this 5th day of April, of reference A.B. 1847. ^^'^ award. Signed and published the 5th day of X, Y. April, 1847, in the presence of O, P. (6) See p. II. Ch. 5, s. 4, p. 248, as to awarding a verdict, to awarding of and concerning the pre- (/) See P. II. Ch. 5, s. 4, d. 2, p. mises, 254, as to awarding a gross sum. (c) See P. II. Ch. 6, s. 2, d. 4, p. (> • to the firm ^^ lollowing manner, viz. of £ [ ], due from G. H. of [ ]. of £ [ ], due from I. K. of [ ]. ditto ditto. [or if the amounts are set out in the schedule, say "of the particular items set forth in the schedule of debts due to the firm, appended to this award "]. Value of And I further award and adjudge, that the value of the effects, stock partnership jq trade, money securities, and property of the said firm of every kind ^ ^* and sort other than tlie said debts, is £20,000. Amount of And I further award and adjudge as between the said partners, that ^ ,f "^ ? the amount of debts due from the said firm to others than the said part- creditors 01 .... the firm, ners is £5,000, which last-mentioned sum is made up in the following manner, that is to say — Of £ [ ] due to L. M. of [ ], Of £ [ ] due to 0. P. of [ ], [or say, "is made up of the particular items set forth in the schedule of debts due from the said firm, appended to this award "]. Amount of And I further award and adjudge, that there is due from the said capital of firm, for capital and interest on the same to the date of the reference ; each part- ^^ ^ ^j^^ ^^^ ^^ £8,000 ; to B. the sum of £6,000 ; to C. the sum of £5,000. Deduction -A.nd I further find, that in estimating the amount to be divided as to be made profits, it is reasonable to deduct from the said sum of £10,000, the for bad and ^^ ^f ^g^ts due to the firm, the sum of £1,000 for bad and doubtful doubtful debts. debts ; and I award that the same be deducted. Balance re- And I further award and find, that on a balance of the above-men- maining. tioned sums, there remains the sum of £5,000 in favour of the firm. Deduction And as it had been agreed between the said partners that B. and C, for trouble yfY^Q intend to carry on the said business in partnership, shall be at the vei •^^' ^'^^^ trouble and expense of collecting in the money due to the firm, and paying the creditors of the same ; I award and adjudge, that the sum of £500 be deducted from the last-mentioned sum of £5,000, and be retained by them in equal moieties, as a compensation for such trouble and expense. (5) See P. I. Ch. 2. s. 2, d. 4, p. 31 ; P. II. Ch. 8, s. 1, d. 2, p. 394, as to awarding against executors. AWARDS. 779 I therefore further award, that the sum of £4,500 remains to be Amonnt to divided as profits. ^»i divided And I further award and adjudge, that A. is entitled to one half of the profits of the said firm, and B. and C. each to one quarter of the piofitg of said profits. each. And I further award and adjudge, that, adding the share of the profits Amount on to the amount of the capital of each, thtre is, on the whole, due to A. ,"' ^^ "^ ®, ^ due to each, the sum of £10,250; to B. the sum of £7,375 ; and to C. the sum of £6,375. And I further award and direct, that B. and C. shall pay to A. one I>irectioQto moiety of the said sum of £10,250 on or before the [ ] day of partner his [ ] next, and the remaining moiety of the said sum within one share, year from the last-mentioned day. And I further award, that A. shall receive the said sum of £10,250 in yariation full satisfaction of all his claims and interest in the said firm, or in any ^^ affect wise relating thereto, and shall not be entitled to any increase, or liable retiring to any de luction, in case the amounts of the debts or credits of the said P^'rtner. firm hereafter prove to be different from the sums at which they are estimated in this my award, but that the benefit or burthen of such difierence be borne wholly by B. and C. in equal proportions (c). 57. [Heference to settle terms of dissolution of partnership between Award of A, B. and C. JD.] — I do make this my award of and concerning the dissolution matters so referred to me as aforesaid, in the manner following, that is -^ ^ to say: — First, I do award, order, and adjudge, that the said partner- ship shall be deemed and taken to have ended and been determined on and from the [ ] day of [ ]. Secondly, I do award, order, and direct, that the said A. B., his A. B. to re- executors or administrators, shall and may have, demand, and receive, ^^^^^ t° ^'^ own US6 to his, her, or their own use, without interference of the said C. D., all jgi^jg jyg debts due and owing to the said partnership from any person whomso- to the firm. ever. And shall and may use the name of the said C. D., either alone or A. B. may iointlv, in any action or suit to be commenced for the recovery of any "^® '. ' ^ J J T J J J name m such d^bt or demand [d). action or Thirdly, I do award, order, and direct, that the said A. B., his suit, executors or administrators, shall and do bear, pay, and discharge all ^- '^- *° debts, demands, damages, and claim whatsoever, due or owing by the ligi^tg jug said partnership, or which any person hath or can make against the from the said co-partnership, or the said C. D. in respect thereof. '^' And shall and do iudemiiify and keep harmless the said C. D. from To indem- and against all such debts, demands, damages, and claims ; and from ^^'^y ^- ■*-*• and against any loss and damages that may be incurred or sustained by debts, and the said C. D. by reason of his name being used in any such action or costs of using his name. (c) See P. II. Ch. 8, s. 1, d. 4, p. {d) See P. II. Ch. 8, s. 1, d. 4, p. 396, as to awarding on partnership 400, as to awarding right to sue in matters. partner's name. 780 APPENDIX OF FORMS. A. B. to suit so to be commenced as aforesaid, in pursuance of the authority execute hereby given to the said A. B., his executors and administrators; and ddiiDity ^^^^^ ^^^ ^^^^ ^' ^' ishall seal, execute, and deliver his bond to the said C. D., in the penal sum of £ [ ], conditioned to indemnify and keep harmless the said C. D. from and against the above-mentioned debts, demands, damages, claims, and loss (e). C. p. to Fourthly, I do award, order, and direct, that the said C. D. shall and 11 7^\^^ f ^°' ^* ^°y ^^"^^ ^^ times, upon the request of the said A. B., his execu- tliefirm. ^^rs or administrators, deliver up to the said A. B., his executors or administrators, all and every the books, papers, and writings, which may be in the custody, power, or possession, of him the said C. D. in any wise relating to or concerning the said business of the said co-partnership. A. B. to Fifthly, I do award, order, and direct, that the said A. B. shall and pay C. D. ^Q Qjj^ ^]^Q j- -j ^^y. q£ I" -j next, at the house of the said money in ^' ^' ^^ aforesaid, jjay unto the said C. D., his executors or adminis- full of all trators, the sura of £ [ }: and that the said C. D. shall and do demands, accept and receive the same sum, in full satisfaction and discharge of all demands against the said A. B,, until the day of the date of the said submission. between partners A^t'ard 58. [On a submission between A. B. and C. D., 2}<^f'tn^^s, ivhen the amount owing to the firm is unascertained^ the following provision may be made.'\ — And whereas it cannot be ascertained what sums of money are due and owing to the said firm, I further award and direct, that the One to col- said A. B. shall use his utmost endeavours to ascertain, collect, and lect debts receive the debts due to the said firm as aforesaid, and that the said gj.jjj C. D. shall permit and suffer the said A. B. to collect and receive the same. \A clause may be added, emijowering A. B. to use C, Z).'s name to recover the debts, on an indemnity being given, as in clause 57 ; and then proceed.^ And pay to And I further award and direct, that the said A. B. shall, from time the other a ^q time, give to the said C. D. an account in writing of his proceedings each debt ^^ ^^^ ascertainment and recovery of the said debts, within six weeks as received, after a request in writing so to do shall have been served upon the said A. B. on the part of the said C. D. ; and shall also from time to time, as the said debts shall be respectively received, pay to the said C. D. one moiety thereof, after having first deducted all necessary expenses incurred touching the ascertaining, collecting, and recovering the same. Award of 59, I award and direct the said C. D., at the cost and charges of the assignment g^j^ ^ -q., to execute to the said A. B., his executors and administrators, a good and valid assignment of all that \Jiere describe the leasehold jjre- mises to be assigned'] ; and I further award and direct the said C. D., at the like cost and charges of the said A. B., to execute to the said A. B., (e) See P. II. Ch. 8, s. 1, d. 5, p. 400, as to awarding indemnity to be given. AWARDS. 'J'Sl liis heirs, executors, administrators, and assigns, a release of all the right, title, and interest of him, the said C. D., or his heirs, executors, or administrators, unto and in [here describe the ^jrewuses]. GO. And I further award and direct, that the said C. D. shall, within Award to one calendar month from the date of this award, deliver into the hands \^ '!®' "P of A. B., or his heirs, all deeds, and other writings, iu the custody, possession, or control of the said C. D., relating to, or in any way affecting the said freehold house, with the appurtenances, known by the name of [ ]. 61. And I further award and direct, that the said C. D. shall, within Award of one calendar month from the date hereof, convey, by a good and sufli- conveyance cient conveyance, by lease and release, the freehold house, with the jjj fgg appurtenances, known by the name of [ ], [or describe the pre- simple, inises jjarticularli/ as in the intended conveyance^, unto the said A. B., his heir or heirs, in fee simple ; and that the said A. B. shall, at his own Costs of costs, prepare and tender for execution, by the said CD., the laid lease P'^P'^^^'^S and release (/). 62. [Arbitrator, empowered to direct lohat shall he done, being desirous Award to to have as many hatches as possible removed from a river, but it beiny J'e'uove doubtful lohether third parties are not interested in some of them.'] — And ^^^ ^^ ^^_ I further award and direct, that the defendant shall remove from the feudant said river the said hatches at [ ], in the said river, and the said *'^°" hatches at [ ], lower down in the said river, provided always that these directions shall refer only to such interest as the defendant shall have in the said hatches {g). 63. [See the direction to j^rostrate an embankment, Form LXXVI.] Award to prostrate 64. [Reference between A. B. and C. D, Arbitrator empoivered to ^gnj; order what he shall think fit to be done.] — I further award and direct, Award of that for the future convenience of the said A. B. and others, having bridge to be occasion to pass along the said road, the said C. D. shall, at his own ^\^° ^ '^,^ ^ o ' _ _ ' stranger s expense, put up and fix a good and sufficient foot bridge across the said land, pro- stream, at the spot where the said road crosses the said stream, pro- vided he Tided that E. F. of [ ], the owner of the land where the said bridge is so directed to be put up, give his consent thereto. 65. [Submission between P., rector of A., and H., rector of B., and Award ad- other parties, to an arbitrator, *' to whom it is referred to ascertain what ■ , . ' i ' ' J right to lands are severally titheahle to the rectors of parishes A. and B., and tithes when tvhat description of tithe is due to each in respect of the farm lately impossible occupied by C. ; to devise all means to prevetit future litigation between ,° ^^^ ^ .^^^ if) See P. II. Ch. 8, s. 1, d. 7, p. 424, as to awarding concerning a stran- 404, as to awarding conveyances. ger's property. (g) See P. II. Ch. 8, s. 4, d. 3, p. 782 APPENDIX OF FORMS. Rectors to have pro- portionate shares of the whole tithes. the jmrties to this order, or between any or either of them during the Joint incumbences of P. as rector of A., and II. as rector of B. ; and generally to settle all matters in dijference between the parties to this order, or any or either of them ; and to order and determine what he shall think fit to be done respecting the matters in dispute by the parties, or either of them, who agree to be bound by such determination, and to remain contented and satisfied therewith."] — Whereas it has become impossible, touching the matters referred, to ascertain and distinguish the particular parcels of land to the tithes of which the rectors of A. and B. are respectively entitled ; I award that one fourth part of all the great and small tithes growing due from the farm lately occupied by C, are the right and property of H., rector of B., and that the remaining three fourth parts of such tithes are the right and property of P., rector of A, And I further award that one fourth part of all the great and small tithes growing due from such part of the west side of A., as formerly lay in tenantry, or was sheep-down, adjoining to, though not being part of the farm lately occupied by C, is likewise the right and property of H., rector of B. ; and that the remaining three fourth parts of such last- mentioned tithes are the right and property of P., rector of A. (A). Recital of differences Award how 66. Whereas by an agreement of reference made the [ ] day Ksedlnd °^ C ^' between B. of [ ], and D. of [ ] ; which repaired. recited that B. was the owner and occupier of a messuage and lands situate [ ], and D. the owner and occupier of a messuage adjoin- ing B.'s; that there was between the two houses a yard or passage, in which were a pump, brewhouse, and oven, and below, or at the end of which yard, was a crooked hedge and ditch, separating the lands of D. from the yard or passage ; that D. had erected a wall on what was alleged by B. to be part of the passage or yard ; that B. had fastened up the pump with a chain, which D. had broken, after receiving notice not to do so, nor to go to the pump ; that there was an entrance into the yard by means of a stile, and also by means of a doorway, which D. had closed up ; that B. alleged himself to be possessed of, or entitled to, the passage, yard, pump, brewhouse, and oven, and the land on which the wall was erected, as his sole, entire, and exclusive property, and to have a right of free ingress and egress into and out of the yard at his pleasure, by means of the doorway in question ; that B. charged D. with having at diflFerent times removed the hedge nearer to B.'s lands ; and that he denied any right in D. to break the chain, to take water from the pump after notice, to remove the hedge, or to keep the doorway into the yard closed ; and that B. had commenced an action of trespass against D. : it was agreed by and between the parties to refer all matters in difference to the arbitration of me, X. T., of [ ]^ Esq. ; and that I, the said arbitrator, should have power in my award to state how, and by whom, and in what manner, the passage or yard, {h) See P. II. Ch. 8, s. 2, d. 2, p. 410, as to awarding undivided shares. AWARDS. '^83 pump, doorway, hed^e and ditch, should in future be enjoyed and occu[)ied, and who should have the care and management tliereof ; and that if I should find any matter complained of had been illegally placed, erected, or continued, I should and miglit award when and how the same should be abated . Now I, the said arbitrator, S^c, [The award, afler deciding the cause in favour of B., may proceed as follows]. And I further award, that B. is possessed of and entitled to the said Award to passage or yard, pump, brewhouse, and oven, as his sole, entire, and " . ^ Y'^' exclusive property, but not to the land on which the said wall is erected, the yard, the said land not being part of the said yard or passage. And I further award that D. has a right to the free use of water from Award to the said pump, in common with B., and of ingress and egress into and ^- aright out of the said yard, by and over the said stile, for the purpose of p^mp fetching such water therefrom. And I also award and adjudge, that B. has a right of free ingress and Award to egress into and out of the said yard or passage, at his free will and ^- right of pleasure, by means of the said doorway, which I direct D. to unclose fi" /^^ u ^^ and leave open. doorway. And I also award and adjudge, that D. has not removed the said d, not re- crooked hedge into or nearer to the lands of B. than, it formerly was ; moved the and that he had a rij^ht to break the chain so placed around the said rf S®-, ^ , pump as atoresaid, and to take away water from the same. break the And in further exercise of the power, conferred upon me by the said chain, submission, I hereby award and declare, that the said pump shall in B. and D. future be repaired at the joint expense of B. and D. ; and that D., his J'-iiDtly to heirs and assigns, shall have free ingress and egress into and out of the p.j^p said yard, by and over the said stile, for the purpose of fetching and D. may use carrying water therefrom. pump. And I further award and direct, that the boundary between the pre- Present mises occupied by B. and D. respectively, shall remain as it is at present; boundary and that D. shall not be interrupted in the use of the said wall; but that *° remam. the same, and the land whereon it stands, shall be considered as his j.^^^'j^^^^ absolute and exclusive property. wall to D. And I further award, that subject to the provisions herein contained, Enjoyment the said yard and passage shall be enjoyed by B. as his absolute and of yard to exclusive freehold property ; and that the said hedge shall be kept in ^'^^^^^'^'^ repair by D., who shall be at liberty to make use of the mud in the right, ditch adjoining for the purpose of repairing the said hedge-bank, but D. to re- not further or otherwise ; and subject to the exercise of such privilege, P'"*""^ hedge, the said ditch shall be considered as the property of B., who shall be at ^^'^j j^^ ^.j^^ liberty to carry away the mud therefrom, as he shall think proper (?). ditch. 67. [Case, that defendants torongfidly delayed pulling dotcn their Award house, and w>'onyfully continued a hoarding obstructing footway to jdain- arbitrator tiff's shop for an wireasonahle time : that in pulling down their Aowse 1^°*®'.^ •^ -' "^ JT ^ T&\ss pomts (i) See P. II. Ch. 8, s, 2, dd. 2, 3, pp. 408, 413, aa to awarding what to be done. 784 Appendix of formrs. of law at negligentty, bricks and tiles fell on plaintiff^ s house, hreahing glass and the request damaging goods ; and that defendants so carelesslg underpinned and ties for the *^*o'"''^ "i-* ^^^^ ^^a/'^y-j^a/^ of jjlaintiff's house, that it sunk and was opinion of the court. Award as to first issue, defendants guilty of part of trespass. Assessment of damages separately. damaged. Pleas, 1st, not guilty, 2nd, as to continuing the hoarding, custom of London for Lord Mayor to grant licence to erect a hoarding ; licence from the Lord Mayor conditional on oltaining licence from the surveyor of pavements, and such surveyor's licence. Jteplication to this j^lea, de injuria [excepting the custom). 3rd j^lea, as to breaking panes of glass, accord and satisfaction by mending windows. Cause referred at Nisi Prius, verdict taken for the plaintiff with damages, subject to reference ; potoer to arbitrator to direct nonsuit or verdict; arbitrator to state points of law on request.^ As to the first issue joined between the said parties, I award and find, that the defendants, except as to the alleged careless, negligent, and improper conduct in shoring up the party-wall between the house of the defendants, in the declaration first mentioned, and the said house of the plaiutifi", are guilty of the premises in the declaration in the said cause mentioned. And I do assess the damages sustained by the plaintiff [if questions are to be raised by the award as to the right of the plaintiff to recover damages in respect of particular grievances alleged in the declaration, assess the damages sejMrately in respect of each, as thus'], by reason of the keeping and continuing of the hoarding so erected and placed as in the declaration For con- tinuing the hoarding -, ■< ^ • i • i j? during the is mentioned, and so obstructing the said lootway and the approach to time in plaintiff' 's house, at the sum of £100, in respect of the space of time the Lord mentioned in the licence of [the Lord Mai/o)-] in the second plea of the Mayor S ^n■,^■1^^^■^ licence. defendants mentioned, parcel of the time m the declaration in that behalf mentioned, and at the sum of £50 in respect of the residue of the For beyond time in the declaration in that behalf mentioned ; and I do assess the damages sustained by the plaintiff, by reason of the delaying and retard- ing of the pulling down and rebuilding of the said house in the said declaration in that behalf respectively mentioned, otherwise than by the keeping and continuing of the said hoarding, at the sum of £100 ; and I do assess the damages sustained by the plaintiff, by reason of the care- lessness, negligence, and improper conduct of the defendants, their agents, and workmen, in that behalf, in pulling down the house of the defendants in the declaration first mentioned, and in neglecting to use reasonable and proper precautions in that behalf, at the sum of £500 ; and I assess the damages sustained by the plaintiff by reason of the carelessness, negligence, and unskilfulness of the defendants, their agents, and workmen, in and about digging and clearing the ground for the foundations of the house so built on the site of the house of the defendants in the declaration first mentioned, and in and about underpinning the party- wall between that house and the messuage of the plaintiff, and in and about moving a certain part of the said party-wall, and connected therewith, at the sum of £200, Defendants And as to so much of the premises in the declaration contained, as the time licensed For delay in pulling down house. For injury by defend- ants' negli' gence in pulling down house. In under- pinning party wall. AWARDS. "(SS relates to the said careless, negligent, and improper conduct of the not guilty defendants in shoring up the party-wall between the house of the de- "^ "egji- fuudarits in the declaration first mentioned, and the said messuage of ^'i,orinff ud the plaintiff's, I award and liud, that the defendants are not guilty jarty-wall. thereof. And as to the second issue joined between the said parties, I find that Award as the defendants [^cerifying all the facts stated in the second 2}lca as to the !''^ second necessity of the hoarding, the licence of the Lord Mayor and of the sur- defendants. veyor of puvements, as nearly as jtossible in the ivords of the plea, omit- ting, however, all mention of the custom.'\ And as to the third issue joined between the said parties, I find that Award as the defendauts did not \ folio win n the words of the traverse to the third . ^ !! '-^ -f J issue for P'««-J plaintiff. And I do, at the request of the parties, state the following matters for Statement the opinion of the court [/tere find specifically all the facts necessary to offsets at raise the questions of law requested by the parties to be raised. If one o/„arties the questions to be raised is, ivhethcr the custom set out in the said plea is not bad, and the plaintiff therefore entitled to judgment tion obstante veredicto, proceed'\ — I further state that the defendants, in their second Raising plea, set out the following custom, that is to say, [here folloio the words ^"^^ y'\t^ of the plea] ; and I further state that the said custom was admitted by of custom the replication to the second plea, the plaintiff having only traversed the set out iu residuum causa3 as therein set forth. ^ ^^' And if the court shall be of opinion that the second plea of the Conditional defendants, setting up and justifying under the said custom, is by ?^? ° . reason of the badness of the said custom, not sufficient to bar the nou'ob- plaintiff from recovering his damages in respect of the grievances con- stante vere- fessed by the second plea, then, so far as I have power and authority ""^''"• so to do, I award and direct that judgment be entered for the plaintift' for the amount of the damage by him sustained by reason of such grievances, notwithstanding the finding of the said second issue for the defendants {k). [If another question be, whether the licences put in evidence sustained Raising the licences alleged in the said jjlca, proceed] and I further state that the question wncti lifer licence granted by the said [Lord Mayor] and by the said surveyor of jiygnces put pavements respectively, and given in evidence by the defendants, were in evidence as follows [here set out both licences verbatim], prove plea. And if the court shall be of opinion that the licences so given in Conditional evidence do not support the allegation of licences contained in the said ^j*'."'':.*!'!" second plea, or are not a justification of the matters in the introductory case court part of that plea mentioned ; then instead of the above finding for the of opinion defendants upon the second issue, I award and find, that the defendants, ^ °°* .... proved, of their own wrong, and without the said residue of the said cause, com- mitted the grievances in the introductory part of the said second plea mentioned, and thereby confessed [1). (Jc) See P. II. Ch. 6, s. 5, d. 2, p. (1) See P. II. Ch. 5, s. 8, d. 5, p. 350, as to awarding an entry of judg- 305, as to stating a case iu au award, meut nou obstante veredicto. 3 a 786 APPENDIX OF FORMS. Award raising spe- cial point for the opinion of the court. Statement of facts to raise point under the Building Act. Award of verdict for defendant, if court of opinion ob- jection to venue open, 68. [ Verdict taken at Nisi "Brius subject to a reference ; action, tres- 2)ctss ; plea, not yuilty hy statute. Arbitrator em^jotvered to raise points of law for the courts ojnnion (?«).] I award and adjudge, that the verdict which lias been entered fur the plaintift' do stand, but that the damages be reduced to forty shillings, subject, however, to the provisions hereinafter contained. And for the purpose of raising certain points of law for the opinion of the court, I award and direct as follows — that the cause referred to me is an action for trespass for placing bricks, stones, and building materials, on the wall and close of the plaintiff: that the defendant has pleaded a plea of not guilty by statute ; that the writ of summons in this action was issued on the 4th day of June, a.d. 1844, prior to the passing of the New Building Act, the 7 & 8 Vict. c. 84, and that the venue in this cause is laid in the county of Surrey. And I further award and find, that the houses of the plaintiff and defendant adjoin each other, being separated by a wall which has existed many years; that this wall is not a [larty-wall, or party-fence-wall, nor a wall in common between the plaintiff and defendant, but stands alto- gether on the land of the plaintiff, and is his wall exclusively ; that the trespasses complained of in the action consist in the defendant's having made an addition to each end of the wall in question by building on it ; that at the time of making such addition the defendant bonS, fide believed the wall to be a party-wall, and intended to comply with the Building Act then in force, stat. 14 Greo. III. c. 78 ; and that if the wall had been. a party-wall, his building on it as he did, would have been justified by the statute ; that the wall is not within the City of London or the liberties thereof, but is situate within the county of Surrey, and within the district over which the provisions of the stat. 14 Geo. III. c. 78, extended ; that the defence relied upon was, that the acts complained of were done in pursuance of the last-mentioned statute, and that consequently the venue was improperly laid in Surrey instead of in Middlesex. And I further award and adjudge, if the court shall be of opinion upon the facts stated above, that the defendant was entitled, under the statute 14 Geo. III. c. 78, to rely on the objection, that the venue was not laid in the county of Middlesex but in the county of Surrey ; and was not pre- vented by the statutes 5 & 6 Vict. c. 97, and 7 & 8 Vict. c. 84, or either of them, from giving the special matter of such objection in evidence under the plea of not guilty by statute ; or was at liberty to give such (m) The Reg. Gen., Nov. 27, 1854, Form XIV., contains the following direc- tions with respect to a special case, stated by an arbitrator, under s. 5 of the Common Law Procedure Act, 1854: — "In the special case, the arbitrator must state whether the arbitration is under a compulsory reference under the Act, or whether it is uijon a reference by consent of the parties, when the sub- mission has been or is to be made a rule or order of one of the superior courts of law or equity at Westminster. In the former case, the award must be entitled in the court and cause, and the rule or order of the court must be set forth. In the latter case, the terms of the re- ference relating to the submission being made a rule of court must be set forth." AWARDS. 787 special matter in evidence under the common plea of not guilty ; then that the verdict entered for the plaintiff be set aside, and instead tlieroof that a verdict be entered for the defendant. 69. [Actio?!, case for wronyfulhi and unskilfully making a sewer by Award which plaintiffs' house was damaged. Pica, 7iot guilty. Arbitrator r-'iisi'iK empowered to raise jwints of law.'] I award and find, that the defendant Ljniyn of is clerk to the Commissioners of Sewers of the City of London and the court. liberties thereof ; and that a deep sewer has lately been made by order, and under the direction of the said commissioners, in Princes-street in the said city, and within the jurisdiction of the said commissioners, near to the dwelliug-house of the plaintiffs in the declaration in the cause mentioned : that Princes-street is a narrow street, and that there are in most parts of it heavy buildings on one or other of the sides, and in some places on both sides of the street, one of which is the said house of the plaintiffs : that there are two modes of making a sewer practised in Two modes the City of London : the one by what is called tunnellins:, and the other "^•^'^'"o •' , .... a sewer, by what is called open cutting : that in Princes-street, as in most other tunnelling narrow streets with heavy buildings adjoining on them, a deep sewer and opeu cannot be made either by the one method or the other, without risk of ^^ '°^' damage to the adjoining buildings : that the amount of risk varies according to the nature of the soil ; that the soil of Princes-street is such as to make the risk considerable, and that the nature of the soil was known, or might, by due inquiry, or proper experiments, have been known to the said commissioners before the makins? of the same : that Open cut- the probability of damage accruing is in some degree less where the same *i"o less is made by open cutting than by tunnelling : that the sewer in this case • has been made by tunnelling : that the commissioners in directing the jury, same to be made, and in the making of it, were acting bona fide in the Sewer in honest discharge of their duty as commissioners; and that the sewer question was fit and proper to be made for the convenient drainage of the City of f* n-'''^^ London, and has been made in a workmanlike, skilful, and proper manner, in all respects, provided the commissioners were justified in making the same by the mode of tunnelling ; that in consequence of the Damage to making of the sewer, the house of the plaintiffs has been damaged to the P'a'iut'ffs amount of four hundred pounds. Upon the whole matter, therefore, I find that if the commissioners were authorized to make the sewer by the If tunnel- mode of tunnelling, the verdict ouyht to be for the defendant : but, if ^^"^ proper the commissioners were bound to pursue the mode which afforded jic^, f^^. the uttermost possible chance of preventing damage to the adjoining defendant, buildins^s, the verdict ought to be for the plaintiffs to the amount of , ".°'' /l!'^ £400. P^""^"'- And thereupon I award, that the verdict which has been taken for the Award of plaintiffs shall stand, if the court shall be of opinion tliat the verdict '''erdict ousht to be entered for the plaint ifts ; but if the court shall be of opinion oiTcoiirt's that the verdict ought to be entered for the defendant, then I award that opinion, the verdict already entered shall be set aside, and instead thereof that a verdict shall be entered for the defendant, 3 K :i 788 APPENDIX OF FORMS. Award in case for nuisance, &c., dis- tributive findings. 70. [Action, case fur nuisance,] I award, order, and direct that the said verdict so ordered to be entered as in the said rule or order men- tioned in the said action, in which the said S. B. is plaintiff, and the said J. H. is defendant, shall be set aside and vacated, and that in lieu thereof the verdict of the jury in the said action shall be varied and entered as hereinafter mentioned. And as to the issue joined upon the plea by the defendant, firstly pleaded to the whole declaration in the said last-mentioned action, so far as the same issue and plea relate to the first count and the second count of the declaration ; I find, award, and determine that the defendant was cot, and is not, guilty, as in the first and second counts respectively alleged. And I do therefore award, order, and direct that the said verdict of the said jury upon that issue, so far as the same relates to the said first and second counts, shall be entered for the defendant in accordance with my award, finding, and deter mina-- tion thereon hereinbefore contained : and as to the said issue joined on the said plea by the said last-named defendant firstly pleaded to tba whole doclaration as aforesaid, so far as th^ same issue and plea relate to the third count of the said declaration, I find, award, and determine that the said defendant was and is guilty of putting and placing, and causing to be put and placed, on land near to the messuage, buildings, and land of the plaintiff', in the said third count mentioned, certain chemical matters called alkali waste, from which off'ensive smells proceeded for short periods of time only after the same matters respectively were and had been put and placed upon such land as aforesaid, and that a part of such offensive smells did consequently, and for short periods, spread and diffuse themselves from the said chemical matters towards, and into, and over the said messuage, buildings, and lands, of the said plaintiff", whereby the same messuage, buildings, and land were during such short periods rendered less pleasant and less comfortable, but that the said messuage, buildings, and land were not otherwise injured or deteriorated in value : and I also find, award, and determine that the said last- mentioned plaintiff" has sustained damage to the amount of one farthing, by reason of the committing by the said last-named defendant, of the said grievances of which he is guilty as aforesaid ; and I also find, award, and determine that the said defendant was not, and is not, guilty of, and has not committed the residue of the alleged grievances in the said third count mentioned, that is to say, that the said defendant was not, and is not, guilty of, and has not committed, any of the said alleged grievances in the said tbird count mentioned, save and except those of which I have above determined and awarded that he was and is guilty. And I do therefore award, order, and direct tliat the said verdict of the said jury upon the said issue on the said first plea, so far as the same issue and plea are applicable to so much of the said third count as relates to the said matters which I have above determined and awarded that he was and is guilty, shall be entered for the plaintiff", and for one farthing damages, in accordance with my finding and determination thereon hereinbefore contained, and that the said verdict upon the same issue and pica, so far as they relate to the said residue of the said alleged AWARDS. 789 grievances in the said third count mentioned, shall be entered for the defendant in accordance with my finding and determination thereon hereinbefore contained. And as to the issue joined on the secmd plea ia the said last-mentioned action, I award, order, and direct that the said verdict of the said jury on that issue shall be entered for the plaintiff. And as to the issue joined on the third plea in the said last-mentioned action, I find, determine, and award that the plaintiff" was entitled to the use of the ditch or watercourse mentioned in the first count of the declaration in the said last-mentioned action for carrying away the surface-water of and from his land in the same count mentioned, as ia the same count alleged, that is to say, for carrying away the water falling from the heavens upon and running from and off" the surface of the same land, and that the same plaintiff" was not entitled to the use of the said ditch or watercourse for carrying away the dirty or impure water or drainage, or any other description of water, save and except such surface-water as aforesaid, of or from his land by reason or ia manner in his said first count mentioned. And I award, order, and direct that the said verdict of the said jury upon the said last-mentioned issue, so far as the same relates to the plaintiff beiug entitled to the use of the said ditch or watercourse for carrying away such surface-water as afore- said from and off" his said land as aforesaid, shall be entered fir the plaintiff, in accordance with my finding and determination thereon hereinbefore contained. And that the same verdict, so far as the same relates to the residue of the said last-mentioned issue and plea, shall be entered for the defendant, in accordance with my fiuding and determina- tion thereon hereinbefore contaiued. 71. [See the clause giving the arbitrator power to order draining to Award as be made, Form I. clause 43.] And I the said arbitrator do further to (iraiiis award, order, and direct that the following sewers or drains shall be ° ^ ™^ ^* made and executed, that is to say, that a brick culvert of four feet high and three feet wide shall be made along that part of the land at or near W aforesaid shown in the said plan, which is therein indicated by the parallel dotted lines coloured blue, between the two points or places which are respectively marked with the letters A and B on the said plan, and passing under the railway or railways between the said two points, and that the bottom of the said culvert shall be made of brick and curved, so that the curvature thereof shall correspond as nearlj' as may be with the bottom of the barrel culvert next hereinafter mentioned, and that the said culvert at the said point or part marked A, shaU be made so as to communicate with the existing sewer at that point, and so that the sewage which shall flow through the said culvert shall be enabled to pass with facility from the said culvert into the said last-mentioned sewer. That a barrel culvert or sewer three feet wide shall be made along and through that part of the land at W aforesaid shown in the said plan, which is there indicated by the parallel dotted Hues coloured blue, between the two points or places which are respectively marked with the letters B and C on the said plan, and that portions of the said 790 APPENDIX OF FORMS. Direction as to costs of making and main- taining drains. last-mentioned sewer which is to be made opposite to the south side of the messuage and premises of the said P. S., shall be so made and placed, that the centre line thereof shall coincide with the boundary line between the land of the said P. S., and the land of the said J. H. ; and that the said last- mentioned sewer at the said point or part marked B, shall be made so as to communicate with the end of the said culvert at the point B, and that the bottom of the said last-mentioned sewer and the bottom of the said culvert at the point B shall be in the same line of inclination or inclined plane, and shall be placed in such a position, that the sewage which shall flow along the said sewer, from the point marked C to the point marked B, shall be enabled to pass with facility from the said last-mentioned sewer into the said culvert. And I, the said arbitrator, do award, order, and direct that, until otherwise provided by law, the owners and occupiers of messuages or dwelling-houses, land, and other property on each side of each of the said sewers so to be made as aforesaid, shall be entitled to use the said sewers, in pursuance of and according to the said hereinbefore recited rule or order, for the purpose of carrying away from their respective premises all the sewage, sewage-water, and drainage-water and other water of and flowing from such premises respectively, and for that purpose each such owner or occupier shall be entitled at his own expense to make or lay branch drains or pipes communicating with the sewer opposite to his premises, for the conveyance of the sewage, sewage-water, drainage and other water of his premises into such sewer. And I do further award, order, and direct that tlie costs and expenses of and attending the making and completing the said brick culvert, and the said barrel culvert or sewer between the points F and G, and also, until otherwise provided by law, the costs and expenses of and attending the maintaining and repairing the same, shall be borne and paid by the said W. A. and the said J. H. in equal shares and proportions. Certificate of arbitra- tor finding for the plain tiff. LXXV. [ When a verdict has been taken on a reference at Nisi Prius subject to the certificate of the arbitrator.] In the Queen's Bench. B. ) Pursuant to the power conferred on me by an order of Nisi Prius ■^' ( made in this cause, I, X. Y., of [ ], barrister-at-law, do ' hereby certify, that the verdict which has been entered for the plaintifi' do stand, but that the damages be reduced to £ [ ]. \As in an award, the certificate shoidd find on each issue. Directions as to the costs, so far as the arbitrator has power over them, may follow here : but qucere whether the certificate does not become an award and require a stamp as such if the arbitrator decide on any other matters than those on ivhich the jury could give their verdict] (n). X. Y. To R. D,, Esq. [the associate or clerk of Nisi Prius]. (n) See P. II. Ch. 5, b. 2, p. 243 ; P. II. Ch. 6, s. 3, p. 339, as to a certificate. AWARDS. 791 Lxxvr. To all to whom these presents shall come, T, X. Y., of [ ], Award, on b;irrister-at-la\v, scud greeting. '"^^ indict- Wliereas by a certain order of court, made at the assizes holden at fcrred Maidstone, in and for the county of Kent, on Monday, the 11th day of directing March, A. D. 1844, before the lligiit Honourable Lord Dcnman, Chief J'^'-"*'!"^^'"'^ Justice of our Lady the Queen, Sir Edward Hall Alderson, Kniglit, one „ . , of the Barons of Her Majesty's Court of Exchequer, Justices of our said order of Lady the Queen, appointed to take the assizes for the county of Kent: Nisi i'rius. in a certain indictment then pending in the said court, wherein the Queen, on the prosecution of A. B., C. D., and E. F., was the prose- cutrix, and Sir R. D. Knight, (i. H., and I. K. were defendants ; after reciting that the said defendants had consented to a verdict of guilty against them, upon condition that the prosecutors of the said indictment Verdict of should enter into and be bound by the said order ; it was ordered by F^^'^y ^"''" the said court, with the consent of the said prosecutors and the said ference defendants, that I, the said X. Y., should be empowered, and I was Power to thereby empowered, to direct and order the prostration of the whole or arbitrator any part of the embankment in the said indictment mentioned, which I ^° order ,,,,.,„ IT,- 1 1,1 T ■ 1 , prostration should think fit ; such directions and order to be conditional upon, and of the em- subject to the opinion of the Court of Queen's Bench with respect to any liaukraent point or points of law that mi^ht arise to be stated as therein and here- ^^'^''<;ted as -1 T 1 • 1 1 • ,• , a nuisance, inafter mentioned ; so as I, the said arbitrator, should make and publish «, , . , , my award in writing concerning the matters referred, ready to be the opinion delivered to the^said parties, or to either of them ; or if they or either of of tlie them should be dead before the making of the said award, to their /x„„„„.„ respective personal representatives who should require the same ; on or Bench on before the fourth day of the then and now next Michaelmas Term, or on ^^y Point or before any other day to which I should by any writing under my ' ' hand, to be indorsed thereon, from time to time enlarge the time for making my said award ; and that I, the said arbitrator, should state for Arbitrator the opinion of the Court of Queen's Bench, at the request of the said to .state ^ • 1 1 1 • points 01 prosecutors or defendants, or of any or either ot them, any point ori-^^^jfre- points of law that' might be raised before me touching the matters quested. referred to me by the said order. And it was thereby also ordered, that the costs of the said reference and award, to be taxed, should be in the Costs in discretion of me the said arbitrator, who might direct and award, to, ^^ arbitra- and by whom, and in what manner, the same should be paid ; and that tor. I, the said arbitrator, should have the same power to amend the record, Power to and to certify, as a judge sitting at Nisi Prius would have upon a trial -"imcud the of the said indictment. And it was thereby also ordered, by and with ^Q certify. such consent as aforesaid, that it should be in the judgment of me, the said arbitrator, to examine the said prosecutors and the said defendants, or any or cither of them, who, together with their respective witnesses, should be examined upon oath ; as by the said order, reference being thereunto had, will, among other things, more fully appear. And whereas by a certain other order afterwards made in this indict- Recital of ment by the Honourable Sir John Taylor Coleridge, ono of the judges of J"*^se'a 792 APPENDIX OF FORMS. order em- powering arbitrator to alter verdict of guilty. Award de prfemissis. Arbitrator Dot request- ed to jaise point of law. Award of verdict of guilty as to seme, not guilty as to other de- fendants. Direction to prostrate embank- ment. Cei-tificate, certiorari proper ; and for special jury- Award some de- fendants to pay costs of reference. Her Majesty's Court of Queen's Bench, and purporting to bear date the 2nd day of July, 1844, the said last-mentioned judge did, upon hearing the attorneys or agents on both sides, and by consent, thereby order that the arbitrator, to whom this indictment stood referred, should be at liberty to order the verdict of guilty already entered against the defen- dants to be set aside, and a verdict of not guilty to be entered instead thereof on behalf of all or any of the defendants ; as by the said last- mentioned order, reference being had thereto, will more fully appear. And whereas I, the said arbitrator, did, directly after the making of said first-mentioned order, take upon myself the burthen of the said arbitration, and have been attended by the counsel, attorneys, and agents of the said prosecutors and the said defendants, and have examined upon oath all the witnesses which have been produced before me by each of the said parties, touching the matters so referred to me as aforesaid ; and have also viewed and inspected the said embankment in the said indictment mentioned ; and have heard and maturely considered all tlie evidence which has been adduced before me, touching the matters so referred to me as aforesaid ; and have not been called upon or requested during the said reference, by either the said prosecutors or defendants, or any or either of them, to state for the opinion of the Court of Queen's Bench any point or points of law that were raised before me touching the matters so referred to me as aforesaid, or to amend the record of the said indictment ; — I, the said arbitrator, do therefore make this my award in writing, of and concerning the matters so referred to me as aforesaid, in manner following, that is to say, I do order, that the verdict of guilty already entered against the defen- dants be set aside, and instead thereof that a verdict of guilty be entered against the defendants. Sir R. D. & Gr. H., and a verdict of not guilty against the defendant, I. K. And 1 do award, direct, and order, that the whole of the embankment in the said indictment mentioned shall with all reasonable speed, after the making and publishing of this my award, be prostrated by and at the expense of the said defendants. Sir R. D. & G. H. ; and the materials thereof be taken and carried away ; and the bed and soil of the river Thames, wherein the said embankment was erected, raised, and placed, be restored and made by them, at their expense, in the same state in which the same was before the said embankment was begun to be erected, raised, and placed. And I do hereby certify that the said indictment so referred to me was a proper indictment to be removed by certiorari, and to be tried by a special jury. And I do hereby further award, order, and direct that the costs of this reference and of this my award, when taxed, be paid on demand by the above-named defendants, Sir R. D. & G. H. In witness whereof I, the above-named X. Y., have hereunto set my hand, this fifth day of October, 1844. X. Y. Signed and published the fifth day of October, A. D. 1844, in the presence of 0. P. AWARDS. 793 LXXVII. Whereas, at the assizes holdca at Lewes, in and for the Countj- of Award on Sussex, on the [ ] day of [ ], a. d. [ ], before the llight actions, Honourable Sir James Parke, Knight, one of the Barons of our Lady the cf,unt3 Queen, of her Court of Exchequer, and the Right Honourable Sir Thomas mortgages, Coltman, Knight, one of the Justices of her Court of Common Pleas, and '''=^^ '** others their fellow justices : on the trial of cause wherein John Doe, on and posses- the joint demise of 0. C. & J. C, and on the several demises of F. & sion of pre- IL, was plaintiflf", and H. H. H. & H. M. H. were defendants ; and on '"'^^•'*- the trial of a certain other cause wherein W. P. was plaintiff and F. D. H. ^^<='**'' ^/' 1 p 1 • 11 11 ference of defendant : it was then and there ordered by the court, by and with the ejectment. consent of the said parties, their counsel and attorneys, and of E. S. H. Of second & B. H. ; that a verdict should be entered for the said plaintiff in the ^'^ '''"' said first-mentioned cause, damages one shilling, costs fortj' shillings ; but that such verdict should be subject to the award, order, arbitrament, final end, and determination of me X. Y., Esq., barrister-at-law ; wlio was thereby empowered to direct that a verdict should be entered for the plaintiff or defendant as I might think proper ; and to whom also by the like consent the said first-mentioned cause and all matters in difference All matters between the said lessors of the plaintiff, or any or either of them, and tietw-een all between H. H. H., H. M. H., E. S. H., F. D. H., & B. H., all or any of fe'^j.red!' ^^' them, or between all or any of the said last-mentioned parties, jointly with F. D. H., and between any one or more of them and any other one Other par- or more of them, were thereby referred. And it was then and there further ties added, ordered by and with the like consent as aforesaid, that a verdict should be entered in the cause secondly above-mentioned for the plaintiff, damages sixty-five pounds, costs forty shillings : but that such verdict should be subject to the award, order, arbitrament, final end, and deter- mination of me, the said X. T. ; who was thereby empowered to direct, Recital of that a verdict should be entered for the plaintiff or the defendant, as I arbitrator'a might think proper; and to whom the said secondly above-mentioned P''^^'^^' cause and all matters in diflerence between the said parties thereto were thereby referred : and that if I, the said arbitrator, should direct the ver- dict in the said last-mentioned cause to be entered for the last-mentioned defendant, that I the said arbitrator should direct that the said H. H. H., E. S. H., H. M. H., or some or any of them, should pay to the plaintiff in the said last-mentioned action his costs both of the action and refer- ence, to be taxed as between attorney and client, including any costs which he, the said last-mentioned plaintift', might have to pay to the said last-meutioued defendant, and should also pay to the said last-mentioned plaintiff the sum of sixty- five pounds paid by him for the purchase of the cows in question in the last-mentioned cause. And it was further ordered, by and with such consent as aforesaid, that I, the said arbitrator, should have power to order and determine what I should think fit to be done by the parties to the said reference ; so as I, the said arbitrator, should make and publish my award or awards in writing concerning the matters 794 APPENDIX OF FORMS. thereby referred, ready to be delivered to the said parties or any or either of them ; or if they or any or either of them should be dead before the making of the said award or awards, to their respective personal repre- sentatives, who should require the same ; on or before the fourth day of the then next Michaelmas Term, or on or before any other day, to which I, the said arbitrator, should by any writing under my hand, indorsed on tlie said order, from time to time enlarge the time for making my said award or awards. And it was also ordered that the costs of the cause firstly above-mentioned to be taxed should abide the event of the said award as to the above first-mentioned cause ; and that the costs of the said reference and award or awards, to be taxed, should be in the discre- tion of me, the said arbitrator, who might direct to. and by whom, and in what manner the same should be paid. Enlarge- And whereas I, the said arbitrator, did by two several indorsements ineiit of on the said order enlarge the time for making my award or awards, of arbitrate/ ^^^ concerning the said causes and matters, until the first day of Sep- tember, A. D. 1847. Award de Now I, the said arbitrator, having taken iipon myself the burthen of pra3iiiissis. the said arbitration, and having heard and maturely weighed and con- sidered the several allegations, vouchers, and proofs brought before me by and on behalf of the said several parties to the said reference ; in pursuance of the said reference, do make and publish this my award in writing of and upon the premises ; that is to say, As to eject- As to the first-mentioned cause ; I award that instead of the verdict meut. entered for the plaintiff in the said first-mentioned cause, that as to the issue joined on the first count in the said cause, a verdict shall be entered for the defendant ; and as to the issue joined on the second count in the said first-mentioned cause, that a verdict shall be entered for the plaintiff, damages one shilling, costs forty shillings. As to se- -^^^ ^^ ^0 ^he secondly above-mentioned cause ; instead of the verdict cond cause, entered for the plaintiff, I award and direct as to the first issue joined in the said last-mentioned cause, that the verdict shall be entered for the plaintiff, and that the costs of that issue shall be paid by the defendant to the plaintiff. And as to the second issue joined in the said last- mentioned cause, I direct that the verdict shall be entered for the defendant, and that the costs of that issue shall be paid by the plaintiff to the defendant. And as to the third issue joined in the said last- mentioned cause, I award and direct that the verdict shall be entered for the defendant, and that the costs of that issue shall be paid by the plaintiff to the defendant. Costs as be- And I further direct and order H. H. H. to pay to the plaintiff in the tween at- gr^i^ last-mentioned cause his costs, to be taxed as between attorney and client client, including the costs which the plaintiff in the last-mentioned cause will have to pay to the defendant in the said last-mentioned cause upon the verdict hereinbefore ordered to be entered for the defendant on the second and third issues in the said cause. And I further direct and order H. H. H. to pay to the plaintiff in the said last- mentioned cause the sum of £65, the price of the cows in ques- AWARDS. 795 tion ia llie said cause, and also any costs, to be taxed, to wliich the said plaintiff may have been or may be put, in and about this reference. And as to the several matters in difference referred to me by the said Award as order, I award and determine that 11. H. H,, E. S. II., and II. :d. H., J'^'^^^''"''"" are not, nor are any or either of them, entitled to one-fourth or any part of the value of the farming stock claimed by them. That H. H. H., E. S. 11., and II. M. H., are not, nor are any or either Claim for of them, entitled to any indemnity from F. D. H. for any loss which may indemnity, ensue to them or either of them by reason of the failure of the plaintiff in the said secondly above-mentioned cause. And with respect to the farming accounts between H. 11. H., E. S. H., Farming and n. M. H., I determine as follows ; that is to say :— that there is due accouuts. from H. H. H. to F. D. H., on the said accounts, the sum of £314 ; and from E. S. H. to F. D. H., on the said accounts, the sum of £314 ; and from H. M. H. to F. D. H. , on the said accounts, the sum of £251 : — that there is not anything due on the balance of the said farming accounts from the said F. D. H. to the said H. H. H., E. S. H., and H. M. H., or any or either of them. That there is due on the said farming accounts from the said H, H. H. to the said H. M, H. the sum of £63. That there is due from the said E. S. H. to the said H. M. H. on the said farming accounts the sum of £63. With respect to the claim made by F. D. H. against H. H. H. and Other than H. M. H. jointly, but irrespective of, and distinct from, the said farming farming accounts, I award that there is due from the safd H. H. H. and H. M. H., jointly, to the said F. D. H. the sum of £360 ; and I award and order that each of them, the said H. H. H. and H. M. IT. shall pay to the said F. D. H. the sum of £1S0, being one moiety of the said sum of £360 at the time hereinafter directed. I further award that there is due from H. H. H. to F. D. H., on the Private private account between them, and irrespective of the sums above-men- accounts, tioned, the sum of £127. I further award, that there is due from the said H. M. H. to the said F. D. H., on the private account between them, and irrespective of the sums above-mentioned, the sum of £46. I further award, that F. D. H. is entitled to one-fifth part of the plate Claim to which formerly belonged to his mother, A. H., deceased, and which was piate. in the messuage called Dykes, on the [ ] day of [ ], a. d. [ ]• I further award, that the several sums of money hereinbefore deter- Direction mined and found to be due from H. H. H., E. S. H., and H. M. H., *» P^^- respectively, to F. D. H., shall be paid by the said H. H. H., E. S. H., H. M. H., respectively, to the said F. D. H., on the 25th day of Decem- ber, A. D. 1848 ; unless in the meantime a sale of the property in mortgage to 0. C. and J. C. shall have taken place ; in which case the said several sums of money shall be paid when and as soon as such sale shall be completed and the purchase-money paid to the vendors or vendor (o). (o) See P. II. Ch. 8, s. 1. d. 2, p. 391, as to awarding time of payment. 796 APPENDIX OF FORMS. T further award, that the several sums hereinbefore found to be due to H. M. H. from H. H. H. and £. S, H. respectively shall be paid by them respectively to the said H. M. H. on the said 25th day of December, 1848 ; or if such sale as hereinbefore mentioned shall take place in the meantime, as soon as such sale shall be completed, and the purchase- money paid to the vendors or vendor. And I award, that other than and except the sums above-mentioned there is not anything due to the said F. D. H. from the said E. S. H. and H. M. H. jointly, or from the said E. S. H. separately. Directions I further direct, that (unless in the meantime a sale thereof shall be to mortga- effected by C. E. C, or J, C, or the survivor of them or his heirs, or their O-ggg ^Q gg]J J 7 7 7 property, ^r his assigns, under a certain indenture bearing date the 19th day of August, 1842,) all the property comprised in, and conveyed by, a certain indenture, dated the 16th day of September, 1845, to T. G. "W., deceased, and to the said 0. C. & J. C, shall, on the 29th day of September, A. D. 1848, or as soon after as conveniently may be, be sold by the said O. C. & J. C, or the survivor of them ; and that the surplus money arising from such sale, after payment of the expenses of and attending such sale, and of the principal sura of £12,500 to the said mortgagees. To pay off and all interest thereon, and also after the payment of the sum of £2,500, mortgagees, ^nd all interest due thereon, to B. H. and her assigns, by virtue of her charge on the said property, shall be paid by the vendors or vendor to As to sur- the said C. E. C. & J. C, or the survivor of them or his heirs, or their or plus. }j^g assigns (if they will accept the same); and if they decline to accept the same, then that the said surplus shall be paid unto and between H. H. H., H. M, H., E. S. H., & F. D. H., in equal shares and proper- Parties to tions, or their respective executors, administrators, and assigns. And I concur in direct that all parties to this reference except W. P. shall concur in and ^^ ^' do all in their power to effectuate such sale. Amount of I further award, that the principal sum of £12,500 remains due to the mortgage said O. C. & J. C. on mortgage of the property comprised in, and eon- "®" veyed by, the said indenture of the 16th of September, 1845 ; and that all interest on the said sum of £12,500, calculated de die in diem up to, and inclusive of, the 21st day of July, A, B. 1847, has been paid, except the sum of £55 10s. Id., which still remains due to the said mortgagees : and that in case the property so mortgaged shall be sold by the said C. E. C. & J. C. under the trusts of the deed of the 19th of August, 1842, the said 0. C. & J. C. (the mortgagees) shall not, nor shall the survivor of them, his executors, administrators, or assigns, require or be entitled to any notice of the re-payment of the said principal sum of £12,500. Award as And I further order and direct, that the costs of this reference and of to costs of ^jjg several parties in relation thereto (except the costs of W. P., the and award phuutifF in the said secondly above-mentioned cause, which are herein- before directed to be paid by H. H. H.), and the costs of this my award, shall be paid and borne by H. H. H., H. M. H., E. S. H., & F. D. H., in equal shares and proportions. Parties to Lastly, I direct, that H. H. H. & H. M. H. shall, on the 29th day of deUver up September next, quit and deliver up possession to the said F. D. H. of AWARDS. 797 the messuaj^e called Pjkcs, and the other premises for which Ihey have possession been admitted to defend the said iirst-naeutioned cause : and that E. S. II, o'' premises. & B, H. shall, if in possession thereof or any part thereof, quit and deliver up the same to the said F. D. H. on the same day. In witness whereof I have hereunto set my hand this [ ] day of [ ], A.D. 1847. X. Y. Signed and published in the presence of 0. P., clerk to the said X. Y. LXXVIII. To all to whom these presents shall come, I, X, Y., of the Middle Award con- Temple, barrister- at-law, send greeting. chirdire^-^" Whereas by a certain order of court made at the assizes holden at tions as to Maidstone, in and for the county of Kent, on Monday, the eleventh day removing of March, One thousand eight hundred and forty-four, before the Right ". ' ', Honourable Lord Denman, the Chief Justice of our Lady the Queen, and regulating the Honourable Sir Edward Hall Alderson, Knight, one of the Barous of ^-te water- her Majesty's Court of Exchequer, Justices of our Lady the dueen, ap- ^he plain- pointed to take the assizes for the said county of Kent ; in a certain cause tiffs' pre- tlien pending in the said court, wherein R. D. & J. S. were plaintiffs, mises. and E. G., J. W., & W, S. F. were defendants ; it was ordered by the Recital of said court, with the consent of the said parties, their counsel and attor- j^^^^ Prius neys, that averdict should be entered for the said plaintiffs, with damages to the amount in the declaration mentioned, and costs forty shillings ; but that such verdict should be subject to the award, order, arbitrament, final end, and determination of me, the said X. Y. ; who was thereby empowered to direct, that a verdict should be entered for the plaintiffs or defendants as I should think proper ; to whom the said cause was thereby referred. And I was thereby empowered to order and determine, what I should Power to think fit to be done by either of the said parties with respect to the °^''^^ J^^^ removal of any of the obstructions charged in the declaration in the said ^^.j^j, ^e- cause ; and for the regulation of the water-way to, and from, and in front spect to of the premises of the said plaintiffs and their tenants ; and for the settle- ^^°^°^*[ °^ mentof all matters in the said action; so as I, the said arbitrator, should ti„ng^ ^nd make and publish my award in writing concerning the matters so re- regulation ferred, ready to be delivered to the said parties or to either of them ; or if "^^.^^^^^^^'^j they or either of them should be dead before the making of my said settlement award, to their respective personal representatives, who should require of matters the same ; on or before the fourth day of the then and now next Michael- ^^J^^^ mas Term, or on or before any other day, to which I, the said arbitrator, should by any writing under my hand to be indorsed thereon, from time to time enlarge the time for making my said award. And it was thereby further, by and with such consent as aforesaid, ordered that I, the said 798 APPENDIX OF FORMS. Award de I^rsemissis. On the action. Certificate for special Award as to costs. As to power to sny wliat to be done. arbitrator, should state for the opinion of the court, at the request of either party to the said action, any point or points of law that might be raised before me. And it was thereby also ordered, that the costs of the said cause, to be taxed, should abide the event of the said award ; and that the costs of the said reference and award, to be taxed, should be in the discretion of me, the said arbitrator, who might direct and award to, and by whom, and in what manner the same should be paid : and that I, the said arbitrator, should have the same power to amend the record, and to certify, as a judge sitting at Nisi Prius would have upon a trial of the said cause. And it was thereby also ordered, by and with such con- sent as aforesaid, that it should be in the judgment of me, the said arbi- trator, to examine the said parties ; who, together with their respective witnesses, should be examined upon oath ; as by the said order, reference being had thereto, will, amongst other things, more fully appear. And whereas I, the said arbitrator, did, shortly after the making of the said order, take upon myself the burthen of the said arbitration, and have been attended by the counsel, attorneys, and agents of the said parties, and heard all their evidence, touching the matters so referred to me as aforesaid ; and have also viewed and inspected the obstructions charged in the declaration in this action, and the water-way to, and from, and in front of, the premises of the said plaintiffs and their tenants; and have not been called upon or requested by any or either of the par- ties to the said action to state for the opinion of the court any point or points of law that were raised before me, or to amend the records in tliis action : — I do therefore make this my award in writing of and concern- ing the matters so referred to me as aforesaid in manner following : that is to say : — I do award, order, and direct, that the verdict in this action already entered for the said plaintiffs be set aside, and that instead thereof, a ver- dict be entered for the defendants on the issues, firstly, thirdly, fifthly, and lastly, within joined between the said parties ; and that a verdict be entered for the plaintiffs on all the other issues joined between the said parties in the said action. And I do hereby certify, that this was a proper cause to be tried by a special jury. And I do further award, order, and direct that the costs of the refer- ence and of this my award, of all the parties, when taxed, shall be added together in one sixm, and divided into three equal parts ; and that when so divided two equal third parts thereof shall be paid and borne by the said plaintiffs, and the other remaining third part thereof shall be paid and borne by the said defendants ; and if any or either of the said par- ties shall pay or shall have paid more than his just share or proportion of the said costs according to the proportions hereinbefore mentioned, that he or they shall be repaid the excess by the party or parties whom I have before directed to pay the same in the proportions already mentioned. And with reference to the authority given to me by the said order to order and determine, what I shall think fit to be done by either of the said parties with respect to the removal of any obstructions charged iu AWARDS. 799 the declaration : and for the regulation of the water-way to, and from, and in front of, the premises of the said plaiutiii's and their tenants ; and for the settlement of all matters in this action : — I do find, that the messuages and premises of the said plaintiffs in the Fin'ling of declaration in this action mentioned adjoin on the north on the bed, ^''^'^^^' shore, and water of the river Thames, for the space of sixty-nine feet and eleven inches ; and that the easternmost of the said messuages and pre- mises, and in the first count of the declaration described as being in the possession and occupation of H. 11. C. as tenant thereof to the said plaintifi"s, abuts in part on the eastern side thereof on certain public stairs called Garden Stairs ; and that at the time of the committing of the said grievances in tlie said declaration mentioned, and for many years before, the said stairs, called Garden Stairs, were and still are public landing stairs for all the liege subjects of our Lady the Q,ueen and her predecessors to land and embark at Greenwich from and into boats and *• other vessels on the river Thames at all times of the year at their free will and pleasure ; and that until the year one thousand eight hundred and thirty-six the said stairs were accessible to the public on the eastern side thereof, but that in or shortly after that year a certain pier was erected on the eastern side of the said stairs by a certain company called the Greenwich Pier Company (and in which said company the said plain- tiff's were and still are the holders of a large number of shares), wliich, since its erection, has cut off and still does cut off all access for the public to the said stairs on the eastern side thereof. And I further find, that until the erection and making of a certain embankment hereinafter mentioned, and the putting or throwing out of a certain brow, stage, or platform, across and athwart a part of the said river as hereinafter also mentioned, the said stairs, called Garden Stairs, were accessible to the public on the western side thereof; but that in the year one thousand eight hundred and forty-three the said plaintiffs erected and in part built a certain embankment on the western side of the said stairs in front of their said messuages and premises in the declaration mentioned, adjoining on one side the said stairs called Garden Stairs, and extending from their said messuages and premises in the declaration mentioned in a northernly direction for the depth of sixty feet and up- wards into the said river ; and that the said defendants, about the same period, put out and threw out a certain brow, stage, or platform, across and athwart a part of the river to the westward of the said embankment of the said plaintiffs, whereby access to the said stairs on the westward side thereof for row-boats, skiffs, and wherries, has ever since been, and still is, greatly obstructed. And I further find, that that part of the bed, shore, and water of the said river which so adjoins the said messuages and premises of the said plaintiffs as aforesaid, and whereon the said plaintiffs have erected and in part built their said embankment as aforesaid, from time whereof the memory of man runneth not to the contrary, until the creation of the said embankment and the putting or throwing out the said brow, stage, or platform as hereinbefore mentioned, had been used, and of right ought 800 APPENDIX OF FORMS. to have been used, and still of right ought to he used, hy watermen and others plying at tlie said stairs, called Garden Stairs, with boats for hire, to land and embark passengers there ; and to stow and moor their boats on the bed, shore, and water of the said river, along the whole extent and frontage of the said messuages and premises ; and for watermen plying for hire at Garden Stairs, and occupying or residing in any of the messuages or premises of the said plaintifi's in the declaration mentioned, to get into and from their boats, skiffs, and wherries lying upon the said part of the said bed, shore, and water of the said river, from and unto their said messuages and premises ; and that during all that time there ought to have been, and still of right ought to be, convenient access for row-boats, skiffs, and wherries to the said stairs, called Garden Stairs, from the north. And I further find, that before the introduction of steam navigation ■* on the river Thames, great numbers of the liege subjects of the kings and queens of England, having occasion to land and embark at Greenwich, from and into row-boats, skiffs, and wherries, were used and accustomed to land and embark, and of I'ight lauded and embarked at the said stairs ; but that for the last sixteen years or thereabouts, and since the introduc- tion of steam navigation on the said river, and in consequence thereof, very few of the said liege subjects have been used and accustomed to land and embark at the said stairs from and into row-boats, skiffs, and wherries ; and very great numbers who, but for the accommodation afforded to the public by the said steam-boats, would have required to land and embark at the said stairs from and into row-boats, skiffs, and wherries, have required to land and embark there on the western side from and into steam-boats. And I further find, that the landing and embarking of passengers at the said stairs, called Garden Stairs, from and into steam-boats, is a great accommodation to the public at large, and especially to the inhabitants of Greenwich and its neighbourhood, and to all persons resorting to those places ; and that in the present state of the river Thames there are not sufficient landing-places provided for the use of the public steam- boats, which navigate and ply for hire upon the said river from Green- wich, to land and embark passengers there ; and that the said stairs, called Garden Stairs, are capable, from their greatly diminished use as a public landing and embarking stairs from and into row-boats, skiffs, and wherries, and from their breadth (which I find to be nowhere less than sixteen feet from top to bottom, and a still greater width on the strand or causeway below the said stairs), of affording accommodation to all persons desirous of landing or embarking there, as well from and into row-boats, skiffs, and wherries, as from and into steam-boats ; and that the said stairs, and the strand and causeway thereof, may be so used without detriment to the public ; and that the occasions and necessities of the public, and of a great majority of those who reside at Greenwiph and its neighbourhood, and of those who resort there, require that they should be so used. And I further find, that the steam-boats cannot conveniently be AWARDS. 801 brought alongside Garden Stairs for the purpose of landing or embarking passengers there ; and that the most convenient mode of lauding and embarking passengers from and into steam- boats, at and from Garden Stairs, is by means of a barge or barges, dummy or dummies, moored in. the said river near to the said stairs, and communicating with the said stairs by means of bridges, brows, platforms, or stages ; and that such barge or barges, dummy or dummies, bridges, brows, platforms, or stages, may conveniently be moored, and placed, put out, and erected, in the manner hereinafter described, without detriment to the public, or impediment to the navigation of the said river, or the public use of Garden Stairs for the purposes of landing or embarking there from or into row-boats, skiffs, and wherries, or obstructing convenient water- ways to the said messuages and premises of the said plaintiffs in the said declaration mentioned. And I further find, that the said Company, called the Greenwich Pier Company, have, since the erection of the said pier, put out, and placed, and used, and still do use, certain barges or dummies in front of their said pier for the more convenient landing and embarking passengers at and from their pier, from and into steam-boats extending many feet into the water-way of the said river beyond their said pier. Now, with respect to so much of the matters so referred to me, as empowers me to order and determine, what I shall think fit to be done by either of the said parties with respect to the removal of any of the obstructions charged in the declaration : — I do hereby order, determine, and direct, as between the parties in Directions this action, that, as soon as the embankment hereinbefore mentioned ^^ to the re- has been prostrated by the said plaintiffs, and the materials thereof taken obstruc- or carried away, and the bed and soil of the river Thames restored and tions. made in the same state, in which the same was before the said embank- ment was commenced (and which I have ordered the said plaintiffs to do by a certain other award (p) bearing even date herewith), or sooner, if practicable ; the said defendants shall, with all reasonable speed, at their own expense, remove all and every barge, plank, dummy, rafter, timber, chain, cable, iron, rope, or other material, now belonging to the said defendants, or any of them, which now lie, or are placed in or upon the said river, or the bed or soil thereof, between the westernmost of the said messuages and premises in the said declaration mentioned, and in the fourth count of the declaration described as being in the possession of the said plaintiffs, and the said public stairs, called Garden Stairs ; or within sixty feet, measuring from each of the said messuages and pre- mises in the said declaration mentioned in a northernly direction ; or along or across the said river or the bed or shore thereof, in any part thereof to the west of the westernmost of the said messuages and pre- mises of the said plaintiffs, within sixty feet of the southern shore of the said river ; and all and every barge, plank, dummy, rafter, timber, chain, cable, iron, rope, or other material, belonging to the defendants (p) See award on an indictment, Form LXXVI. 3 ? 802 APPENDIX OF FORMS. or any of them, which extends further out into the stream of the said river than the said barge or barges, dummy or dummies, now used by the said Company, called the Greenwich Pier Company. Directions And with respect to so much of the matters referred to me as em- as to regu- pQ^^^j-g ^g iq order and determine, what I shall think iit to be done by water-way. either of the said parties for the regulation of the water-way to, from, and in front of, the premises of the said plaintiffs and their tenants : — I do hereby further order, determine and direct, as between the par- ties in this action, that from and after the removal of the said embank- ment and obstructions, which I have hereinbefore, and in my said other award directed to be removed in the manner and at the times so by me directed ; the said plaintiffs and their tenants shall at all times have a clear water-way (when there is sufficient water) to, from, and in front of, the said messuages and premises in the said declaration mentioned from the west of the westernmost of their said messuages and premises for the clear space of sixty feet, measuring in a northernly direction, and extend- ing from the said westernmost messuage all the way eastward to Garden Stairs ; and another clear water-way of six feet wide in a north-easternly direction from the easternmost of the said messuages and premises, and in the first count of their declaration described as being in the possession and occupation of the said H. R. C. as tenant thereof to the said plain- tiffs ; and that the said defendants shall not, nor shall any or either of them, at any time after such removal of such embankment, and such obstructions as aforesaid, put, or place, or have, or use, upon the said river, or upon the bed or shore thereof, any barge, plank, dummy, rafter, timber, chain, cable, iron, rope, or other material, upon any part of the water, bed, or shore of the said river within the limits hereinbefore defined, whereby the said water-ways for the said plaintiffs and their tenants, hereinbefore specified, or either of them, may be in any way obstructed; and that, subject to the said water ways so reserved and provided for the said plaintiffs and their tenants, the said defendants shall have a water- way in front of the said messuages and premises of the said plaintiffs in the said declaration mentioned to and from the said stairs, called Garden Stairs, to land and embark passengers there from and into steam-boats. Directions And with respect to so much of the matters referred to me, as em- as to settle- powers me to order and determine, what I shall think fit to be done by ™^?t '^ ■ either of the said parties for the settlement of all matters in this action ; the action, and one of the matters in difference between the parties in this action being as to the right of the said defendants to land and embark passengers at Greenwich from and into steam-boats at the stairs, called Garden Stairs, by means of barges or dummies placed opposite the said mes- suages and premises of the said plaintiffs : — I do hereby further order and determine, as between the parties in this action, that so long as the said stairs, called Garden Stairs, shall continue to be a public landing stairs, and until another as convenient public landing stairs as Garden Stairs shall be provided for the public using steam-boats on the River Thames to and from Greenwich, the said defendants shall and may have one barge or dummy for the purpose of AWARDS. 803 landing and embarking passengers from and into steam-boats in the river Thames at and from Garden Stairs aforesaid, not exceeding the length of eighty -six feet, and the breadth of fifteen feet and a half, near to Garden Stairs aforesaid, in that part of the said river which lies opposite to the Baid messuages and premises of the said plaintiffs ia the said declaration mentioned ; so as the same does at no time hereafter approach to the said messuages and premises of the said plaintiffs nearer than sixty feet from the northern boundary of the said messuages and premises ; and so as at no time hereafter the said barge or dummy shall extend further out from the south shore of the said river into the stream of the said river, than the barge or barges, dummy or dummies, now used by the said Company, called the Greenwich Pier Company ; and so as at no time the said barge or dummy of the said defendants shall be allowed to ground ; and also a certain other barge or dummy commonly called a monkey barge (not exceeding the width of eight feet and ten inches), on that part of the bed, shore, strand, causeway, or water of the said river, which lies in a line northwards with the bottom stair or step of the said stairs called Garden Stairs, on the easternmost side of the said bed, shore, strand, causeway or water ; and also such and so many bridges, brows, and stages communicating with the said barges or dummies, and that part of Garden Stairs which comprises eight feet thereof in width on the eastern- most side of the said stairs from the top to the bottom thereof ; so as the said defendants leave between the said barges or dummies a clear width of water-way, when there is sufficient water, and strand and causeway when there is not, of six feet for row-boats, skifts, and wherries to pass from and to the north-east to and from the said stairs, called , Garden Stairs, and to and from the said messuages and premises of the said plaintiffs in the said declaration mentioned ; and so as the said defend- ants leave sufficient head room under their barges, brows, or stages, communicating between one barge or dummy and their other barge or dummy, for persons using the said water-way to and from the north- east, to pass under the same sitting in their boats, skiffs, or wherries ; and so as such bridges, brows, or stages, as shall communicate with or extend over the said stairs, called Garden Stairs, shall not exceed eight feet in width, and shall be carried up, and put, and placed, and con- tinued on that part of the said stairs, called Garden Stairs, which com- prises eight feet in width on the easternmost side thereof ; and so as at all times to leave the westernmost eight feet in width of the said stairs, and of the strand and causeway at the foot thereof, for watermen and others having occasion to land or embark passengers at or from Garden Stairs, into and from row-boats, skiffs, and wherries, for their free use ; and so as at all times that all and every such barge, dummy, bridge, brow, or stage, which shall be used by the said defendants, or any of them, for any of the purposes aforesaid, shall have good and substantial railings, with proper openings therefrom and thereto, to prevent acci- dents to persons using the same. And I do hereby further order and direct, that the said defendants Plaintiffs using their suid barges, dummies, bridges, brows, and stages, and the 3 F 2 804 APPENDIX OF FOEMS. terferewith said stairs, called Garden Stairs, in manner and for the purposes herein- defendants' before directed, shall have, use, and enjoy the same, free from all acts of water-way iiiterruption by the said plaintiffs, or either of them, or any person or awarded, persons claiming by, from, or under them: and that neither of the said plaintiffs shall bring, prosecute, or carry on, against any or either of the said defendants, any proceedings at law or equity for erecting, placing, or using any of the said barges, dummies, bridges, brows, or stages, in the manner hereinbefore by me directed and authorised, or using the said water-way hereinbefore provided for them, or the said stairs in the manner hereinbefore provided. Plan an- And for the purpose of showing and explaining the manner and direc- nexed to be ^jqi^ {^ which I intend the said barges, dummies, monkey-barge, bridges, award. brows, and stages, to be erected, placed, and used, by the said defendants, I annex a plan thereof to this my award, and intend it to be taken as a part thereof. In witness whereof I have hereunto set my hand, this seventh day of October, 1844. X. Y. LXXIX. Award of To all to whom these presents shall come, I, A. L. B., of [ ], compensa- ^^ ^j^g county of Lancaster, mine agent, send greeting. umpire for Whereas by virtue of the " North Staffordshire Railway (Pottery Line) lands taken Act, 1846," and "The North Staffordshire Railway (Churnet Yalley under the Lj^g^ ^g{;^ 1846," and of certain other Acts of Parliament, incorporated Clauses with the above Acts, the North Staffordshire Railway Company were Consolida- authorized to take, for the purposes of a certain railway about to be con- ^°^_ ^ ■ structed by them, the piece or parcel of land and buildings, part of a Comnanv coal- wharf and buildings ; which part is hereinafter particularly men- autborized tioned in the schedule signed by me hereunder written and described to take on the plan signed by me hereto annexed, and coloured red on the said laud. 1 plan. Notice by And whereas, on or about the sixth day of January now last past, the Coiupany g^jd Company duly gave notice in writing to J. H., S. B., and J. G., of quired t ]' ^^ ^^^ parish of [ ], in the county of Stafford, coal masters and co-partners, the tenants or lessees of the said land and buildings so described in the said schedule, and coloured red in the said plan ; that they required and intended to take the same for the purposes of the said railway ; and that they were willing to treat for the purchase of the interest of the said J. H., S. B., and J. G. therein, and as to the compensation to be made to them for the damage that might be sustained by them by reason of the execution of the works of the said railway ; Demand of and in and by the said notice the said Company required the said J. H., particulars g_ g ^^^ j_ q ^.^ deliver a statement in writing of the particulars of of interest . . . . T /■ i i ■ and claim, their estate and interest in the said land and buildings, and of the claim made by them, in respect thereof. AWARDS. 805 And whereas, in pursuance of the said last-mentioned notice, the said Particulars J. H., S. B., and J. O., on or about the 26th day of January last pa-,t, ^[ij'jj^im' by a statement in writing, informed the said Company, that they, the for com- said J. H., S. B., and J. G., were lessees of the said land and buildings rensation. for a term of twenty-one years from the 24th day of June, 1839, under a lease from J. A., Esq., of L , aforesaid : and that they claimed the sum of £3380 as a compensation for the value of their said land and buildings so to be taken as aforesaid, and for the damage which would be sustained by them by reason of the execution of the works of the said railway, and of the severing of such land and buildings from their other lands and buildings. And whereas the said Railway Company offered to pay to the said Compensa- J. H., S. B., and J. G., the sum of £600 as and for the compensation ^^ ^^^^ for the value of the said land and buildings, and for such damage as Company, aforesaid, and have not offered to pay any other or larger sum whatever in respect of the same. And whereas, the said J. H., S. B., and J. G., and the said Railway Difference Company, did not agree as to the amount of compensation to be paid as ^^ ^ ^ - „.T, ,. , amount of aioresaid, but a dispute arose between them as to the same. compen- And whereas the said J. H., S. B., and J. G., by a notice in writing sation. under their hands, dated on or about the 18th day of August last, and Demand of delivered to the said Company before the said Company had issued their . Uni. warrant to the sheriff to summon a jury in respect of the said land and owner, buildings, signified their desire to the said Company to have the amount of compensation settled by arbitration ; and in the said notice stated th( interest in respect of which they claimed compensation and the amoun'. of compensation claimed by them, and the dispute respecting such amount which they required to be settled by arbitration. And whereas the said J. H., S. B., and J. G., and the said Company, did not concur in the appointment of a single arbitrator. And whereas, by the notice last aforesaid, the said J. H., S. B., and Notice to J. G., required the said Company to nominate and appoint an arbitrator |^o™r^".y on their part to whom the said dispute respecting the said compensation their arbi- should be referred. trator. And whereas the said J. H., S. B., and J. G., on or about the 30th day of August last, duly nominated and appointed, by writing under their hands, J. H. B., of L , aforesaid, auctioneer and surveyor, to be an arbitrator, to whom the question of such compensation as afore- said should be referred, and delivered the said appointment to the said J. H. B. And whereas, pursuant to the said notice, the said Company, on or Appoint- about the 13th day of September last, duly nominated and appointed, in ™^"|' °\^ writing under the hands of two of the directors of the said Company, ^j ^f^g G. M'D., of C ■, in the said county of Stafford, surveyor, to be an Company. arbitrator, to whom the question of such compensation as aforesaid should be referred, and delivered the said appointment to the said G. M'D. And whereas the said arbitrators, before they entered into the con- Arbitrator 806 APPENDIX OF FORMS. subscribed declaratioD. Arbitrators appointed umpire. A rbitratoi-s amdertook the refer- ence. Arbitrators enlarged the time. Arbitrators disagreed, and made no award. Umpire undertook reference. Subscribed declaration annexed. Considered value and conse- quential damage. Award. Sum due as compen- sation. For land taken, sideration of any of the matters so referred to them as afore.said, respectively duly made and subscribed in the presence of a justice duly authorized in that behalf, the declaration required by the before- mentioned Acts. And whereas the said arbitrators, before they entered upon the matters so referred to them, did, on the 18th day of September last, in pursuance of the said statutes, by writing under their hands, duly nominate and ai)point me, the before-mentioned A. L. B., to be the umpire in the matter of the said arbitration. And whereas the said arbitrators took upon themselves the burthen of the reference, and duly heard and considered the allegations and proofs of the said J. H., S. B,, and J. G., and of the said Company, respectively, concerning the amount of the said compensation. And whereas the said arbitrators, on or about the first day of October last, and within twenty-one days after the appointment of the last of the said arbitrators, by writing under their hands, duly appointed an extended time for the making of their award, namely, until the 19th day of November instant. And whereas the said arbitrators disagreed and differed respecting the matters referred to them, and by reason of such differences between them failed to make their award either within twenty-one days after the day on which the last of the said arbitrators was appointed, or within the extended time for making their award so appointed as aforesaid ; whereby the matters referred to the said arbitrators aforesaid duly came before me as umpire for determination. Now know ye that I, the said A, L. B,, having taken upon myself the burthen of the reference ; and having before entering upon or taking into consideration any of the matters referred to me, duly made and subscribed, in the presence of a justice duly authorized in that behalf, the declaration required by the said Acts, which said declaration is here- unto annexed : and having been attended by the parties and their wit- nesses, and having heard and considered the allegations and proofs of the respective parties, and having viewed the said land and buildings; and having also in making this my award regarded not only the value of the interest of the said J. H., S. B., and J. Gr., in the land and build- ings so to be taken by the said Company as aforesaid, but also the damage to be sustained by the said J. H., S. B., and J. Gr. by reason of the severing of the land and buildings so to be taken from the other lands of the said J. H., S. B., and J. Q., and by the otherwise in- juriously affecting such other lands by reason of the exercise by the said Company of the powers contained in the said Acts : — do make this my award, in writing, of and concerning the premises in the manner follow- ing ; that is to say, I do award, settle, order, and determine, that there is due from the said Railway Company unto the said J. H., S. B., and J. G., the sum of £2805 as and for the purchase money and compensation for the interest of the said J. H., S. B., and J. Gc,, in the said land and buildings so intended to be taken as aforesajd; and for all damages to be sustained AWARDS. 807 by the said J. H., S. B., and J, G., by reason of the severing of the said land and buildings from the other lands and buildings of the said J. 11., S. B., and J, G. ; and the otherwise injuriously affecting such other lands and premises, by the exercise by the said Hail way Company of the powers contained in the said Acts. And whereas the said sum of £280j which I have above awarded as such compensation, is greater than the sum offered by the said railway company as such compensation, whereby the costs of and incident to this arbitration are to be borne and paid by the said Bail way company ; I further award, adjudge, and settle the amount of the costs of this arbi- tration, and incident thereto, incurred by the said J. H., S. B., and J. G., at the sum of £ [ ], and the amount of the costs of and incident to the award, at the sum of £ [ ] {q). As witness my hand this twenty-fourth day of November, A. D. 1847. A. L. B. Signed and published on the day and year last above-mentioned, in the presence of J. F. S. The schedule above referred to. For sever- ance, And other injuries. Recital company liable to costs. * Award as- sessment of costs. Of party. Of award. Schedule. Parish or place and county in wLicli the lands and heredita- ments required are situate. L. in the parish of S. in the county of Stafford. Number on map or plan, and in the book of re- ference deposited with the Clerk of the Peace of county of - Stafford. 189 Description of the lands and hereditaments required. Part of a coal wharf and buildings. Quantity of the lands and hereditaments required. Acres. Rods. Perch. 27 A. L. B. Signed by the said A. L. B. on the day and year last above-mentioned, in the presence of J. F. S. \_Let the plmi he annexed, signed, and attested."] I, A. L. B., do solemnly and sincerely declare, that I will faithful!}' Declaration and honestly, and to the best of my skill and ability, hear and determine sul'scribed the matters referred to me under the provisions of the Act. Here recite'] jjgjjgj the name of the special Act or Acts,] A.L. B. Made and subscribed in the presence of [nanw of the justice]. The third day of November, a, d. 1847. (5) See P. 2, eh. 9, p. 440, as to making a separate certificate for the costs. 808 APPENDIX OF FORMS. Award amended on reference back. LXXX. [^Award defective for a mistake in the Christian name of one of the parties, and for deciding a cause hy directing a verdict to he e^itercd without any authority so to direct. This may he indorsed on the award."] Whereas by a rule of the Court of Common Pleas, made the [ ] day of [ ] last, it was ordered, that my award should be referred back to me to reconsider and amend the same if I should think fit ; now I, the within-named arbitrator, having reconsidered this my award within written, do hereby declare and award, that the same ought to be amended by substituting the name Joseph Howett for the name James Howett whenever such last-mentioned name occurs in the said award : and that the said award ought now to be read, as if the name Joseph Howett had originally stood therein, instead of the name James Howett, in every instance where such last-mentioned name occurs ; the name James Howett having been therein inserted by mistake, instead of the name Joseph Howett, and Joseph Howett being the person thereby meant and intended by me. And whereas with respect to the cause in which the said Joseph Howett is the defendant, I by my within award did award, order, and adjudge in the words following : " that a verdict shall be entered for the defendant, James Howett," meaning the said Joseph Howett: — now I award and direct, that the following amendment be made, that is to say, that the words "that a verdict shall be entered for the defendant, James Howett," shall be deemed to be expunged and erased from the said award, and that the award be read as if they had never been inserted, and that the following words, " that the defendant therein is not guilty of the grievances laid to his charge, or any or either of them, or of any part thereof," be inserted and read in my award in lieu of the words directed to be deemed erased and expunged (r). Award confirmed by arbi- trator on reference back. LXXXI. Whereas by a certain order of Nisi Prius, made on the trial of a cause in which A. B. was the plaintiflf, and C. D. the defendant, it was ordered among other things that the said cause, and all matters in difference between the said parties, should be referred to the award of me, X. T. of [ ], as by reference to the said order will more fully appear. And whereas I the said X. Y. did, pursuant to the said order, on the [ ] day of [ ], make and publish my award in writing of and concerning the matters referred by the said order of Nisi Prius. And whereas by a rule of the Court of Queen's Bench, made the [ ] day of [ ], A. D. [ ], it was ordered that it should be referred back to me, the said arbitrator, to reconsider the amount of the damages awarded by me to the plaintiff in the said cause, (r) See P. 2, ch. 10, s. 2, p. 453, as to referring back. AWARDS. 809 and that the costs of the further reference and award should be in my discretion. Now I the said X. Y. having taken upon myself the burthen of this further reference, and having heard and duly considered the allegations and proofs further made and adduced by the said parties, and liaviug, in pursuance of the said rule, reconsidered the amount of the said damages ; do hereby award and declare, that I see no reason to alter the amount of the said damages, and I do therefore hereby confirm my former award, and direct it to stand as to the said damages. And I further award and order, that the said C. D. shall pay and bear the costs of this my second award, and also pay to the said A. B. his costs of and incidental to this second reference. In witness whereof, &c. LXXXII. [Reference of a cause and all matters in difference between manufacturing Award as mill oivners oti the same stream, with power to the arbitrator to sau what *° *'*t , USG 01 tilG should be done between the parties for regulating the use of the waters to waters of which the action and differences related."] — I the said arbitrator do a well and hereby further award, order, and direct as follows (that is to say) : That s*^^*™- they the defendants and the occupiers or occupier for the time being of the said mill, land, and premises of the defendants at all times herein- after submitting to and permitting the plaintiff and the occupier or occupiers for the time being of the said mill and premises of the plaintifi^, or any part thereof, and such persons as he or they shall appoint for that purpose from time to time, to enter into and upon the said mill, lands. Power to and premises of the defendants in manner and for the purpose hereinafter plaintiflF mentioned, and from time to time make such examinations and in- jgf,,.j„ *'„ spections, and do and perform such acts, matters, and things as herein- mill and to after provided and mentioned ; and they the defendants, and the occu- inspect, piers or occupier for the time being of the said mill, lands, and premises of the defendants, also doing and performing all such acts, matters, and things as are hereinafter directed to be by them done and performed, and whilst and so long as the defendants and such last mentioned occupiers and occupier do and shall permit the plaintiff and the occupier and occupiers for the time being of the said mill and premises of the plaintiff, or of any part thereof, and such persons as he or they shall appoint from time to time, so to enter into and upon the said mill, lands, and premises of the defendants, and to make such examinations and inspections, and do and perform such acts, matters, and things as afore- said, and whilst and so long as the defendants and the said occupiers and occupier of their said mill, lands, and premises shall continue to do and perform all such acts, matters, and things to be by them done and performed as aforesaid, but not longer or otherwise, they the defendants, and the occupier or occapiers for the time being of their said mill, lands, 810 APPENDIX OF FORMS. Defendants to be per- mitted to take water of well for certain period. And to use the ■water for scouring ■wool. Polluted ■water to be discharged into stream at one place. and premises and every of them as against the plaintiff, and all persons ■who shall or may have any right or title to his said mill, land, and pre- mises, through, under, or in trust for him, shall at all times hereafter be entitled to take the ■water of the said •well and spring, calltd Baxter's Well ; and shall also at all times hereafter, save and except during all and every of the times "which shall elapse between the hours of two of the clock of the afternoon of every Saturday, and six of the clock of the morning of the next following Monday, and also save and except during all and every of the times which shall elapse once in every fortnight, bet^ween six of the clock of the evening of Wednesday the 23rd day of September Inst., and six of the clock of the following morning, and between six of the clock of the evening of every alternate Wednesday after the said 23rd day of September inst., and six of the clock of the follo"wing morning, be entitled to take the ■water of the said stream in the said declaration mentioned, or so much thereof as may be necessary for the purposes hereby authorized, from that part of the same stream which is sho^wn and marked S on the said plan ; and to use the ■waters which they shall or may take from the said well, called Baxter's Well, and from the said stream respectively, for the purpose of working a steam-engine in the said mill and premises of the defendants, and for the purpose of scouring wool and for washing or rinsing such scoured wool in the said last mentioned mill and premises, and in the same manner as now used by the defendants, but not for any other purpose whatsoever : Provided always, that after so using the said waters as aforesaid, they the defendants, and the occupiers and occupier for the time being of the said mill and premises of the defendants, shall at all times hereafter cause the same water, or so much thereof as shall not be lost or dissipated by evaporation, to be discharged from the said last- mentioned mill and premises in manner following (that is to say), the water used by the defendants or such occupiers or occupier as aforesaid in the scouring of wool, and which shall or may in consequence thereof have been polluted and rendered unlit for use in the manufacturing pro- cess carried on in the plaintiff's mill and premises, shall be discharged by means of such pipe or pipes as hereinafter mentioned into the said stream at a part thereof lower down the said stream than the said part shown and marked W in the said plan. And the water used in the said last-mentioned mill and premises by the defendants or the occupiers or occupier for the time being of the same mill and premises for the purpose of washing or rinsing scoured wool, and for condensing the steam of the steam-engine (if any) used in the same mill and premises, shall be dis- charged from the same mill and premises and caused to flow into the said stream, or into the bed or channel thereof, at a part thereof shown on the said plan, and therein marked X. And the said water shall be 80 caused to flow into the said stream as last aforesaid without any further or other pollution or deterioration in the quality of such water than shall be necessarily occasioned by using the same for such purposes as aforesaid. And further, that in so discharging such last-mentioned water from the said last-mentioned mill and premises, and causing the AWARDS. 811 same to flow into the said stream at the said part thereof shown and marked X in the said plan, the defendants and other the occupiers or occupier for the time being of the same mill and premises, shall at all times cause such water, or so much thereof as shall have been heated, to Defendants be cooled as much as can be efiected by causing the same to pass over a ^ *'^°! cooling surface, to be provided and kept in good order and repair by the water by defendants and such last-mentioned occupier or occupiers at their and Process his own expense, and such cooling surface shall consist of a flat inclined '*^^^■"'^'^• plane, the whole of which shall be without covering, so as to be open to the atmosphere, and shall be formed of stones, bricks, or other conve- nient material, and shall be at least eight feet long and at least four feet broad, and shall be so constructed and placed that the heated water discharged from the said mill of the defendants shall spread over the whole width of such inclined plane and pass down such inclined plane in a thin stream, so as to cause the same to^ be cooled or to be cooled as much as may be practicable : Provided always that the said water so to be discharged from the said last-mentioned mill and premises into the said stream at the said part thereof shown on the said plan marked X, as hereinbefore provided, shall not be so discharged at any time during which the plaintiff' or other the occupier or occupiers for the time being of the plaintiff''s mill and premises, or any part thereof, shall be entitled to take the whole of the water of the said stream as hereinafter men- tioned. And I further award, order, and direct that all dirty sediment water at any time hereafter discharged from any steam-engine or other boiler in the defendant's said mill, shall be conveyed by a pipe or pipes to a part of the said stream below and to the east of the said part shown and marked "W" in the said plan, and there discharged into the said stream in manner aforesaid, and that all such pipes as aforesaid shall be ^ip^s for provided by and at the expense of the defendants, and shall at all times water^tolje hereafter be kept in good and sufficient repair and condition by and at provided the expense of the defendants or others the occupiers or occupier for the ^^^ . time being of the said mill and premises of the defendants. And I do defendants further award, order, and direct that the plaintiff" and the occupier or occupiers for the time being of the said mill, land, and premises of the plaintiff", and every of them, as against the defendants and every of them, and all persons who shall or may have any right or title to the said mill, land, and premises of the defendants, or any part thereof, through, under, or in trust for the defendants, or any of them, shall at all times hereafter be entitled to have and to take all the water of the Plaintiff's said stream in the said declaration mentioned, (that is to say) all the rh^t to water which shall flow, or which ought to flow, down the bed or channel '^ " T*. ^^ . ° at certain of the said stream during all and every of the times which shall elapse periods. between the hours of two of the clock of the afternoon of every Saturday and six of the clock in the morning of the next following Monday, and also during all and every of the times which shall elapse once in every fortnight, between six of the clock in the evening of Wednesday, the 23rd day of September instant, and six of the clock of the following morning, and between six of the clock in the evening of every alternate 812 APPENDIX OF FORMS. Wednesday after the said 23rd day of September instant, and six of the following morning, without any hindrance, interruption, or disturbance whatsoever of or by the defendants or any of them, or of or by any other Occupiers or occupier of the said mill, lands, and premises of the defen- dants, or of any part thereof. And that the defendants, and other the occupiers or occupier for the time being of the said mill, lands, and premises of the defendants, shall at all times hereafter, at their or his own expense, repair, and maintain in proper repair, state, and condition, Defendants ^]j such parts of the channel of the said stream as lie in or pass through channel of ^^^ lands and premises of the defendants, and preserve and keep all stream on such parts of the said channel cleansed and free from all obstructions their own -^yhjc}! gan in any way impede the proper flow of water along the same, good order. ^^^ further, that during any of the said times when the plaintiff or other the occupier or occupiers for the time being of the said mill and premises of the plaintiff, shall be so entitled to take such water as afore- said, the defendants, and the occupiers and occupier for the time being of the said mill and premises of the defendants, shall not, nor shall any of them, take any of the water of the said stream, or any water which ought to flow into or down the bed or channel of the said stream. And that during all such times as the plaintiff, or other the occupier or occu- piers for the time being of the said mill and premises of the plaintiff, shall be so entitled to take such water as aforesaid, the defendants or other the occupiers or occupier for the time being of the said mill and premises of the defendants, shall raise or remove from the channel of Defendants ^j^g g^j^ stream the clough, and all other instruments and means used by obstruc- them or him for diverting and taking the water of the said stream, and tions and to shall close the entrance of every channel and pipe for diverting or con- ^^^^*^ P'P^^ veying water from the said stream into or to the mill, lands, and premises draw away ^^ ^^^ defendants, or any part thereof, so as to permit the free and unin- water. terrupted flow of the water of the said stream along the accustomed channel thereof, down towards and to the said mill of the plaintiff, and into the reservoir or reservoirs of the plaintiff, upon his land and pre- mises. PLEADINGS. 813 PLEADINGS. — ♦ — LXXXIII. In the Queen's Bench. The[ ]dayof[ ], A. D. [ ]. ICounti/'] ) A. B. by E. F., his attorney, ^or in person, as the case Declaration to wit. ) ,^at/ Je], sues C. D. For that whereas before the making of in assump- the promise of the defendant hereinafter next mentioned, certain dif- ^'^ °" ^"^ ferences had arisen, and were then depending between the plaintiff and defendant ; thereupon, for the putting an end to the said differences Recital the plaintiff and defendant heretofore to wit on the [ ] day of differences [ ], A. D. [ ], \_date of submission, or thereabouts,'] ®^^ '°°' and before the commencement of this suit, mutually submitted to the award of one X. Y., to be made between them of and concerning the ^'^^^^^^^ said differences ; and in consideration thereof, and that the plaintiff, at submission. the request of the defendant, had then promised the defendant to perform and fulfil the award of the said X. Y., to be so made between the jf„t,y„i plaintiff and defendant of and concerning the said differences, in all promises to things on the plaintiff's part to be performed and fulfilled; he, the P^^^^""^ defendant, then promised the plaintiff to perform and fulfil the said award in all things therein contained, on the defendant's part to be performed and fulfilled. And the plaintiff in fact saith, that the said X. Y., having taken upon himself the burthen of the said arbitration, Arbitrator afterwards to wit, on, \_date of award, or thereabouts,'} and before the made commencement of this suit, made his certain award between the plaintiff ^^^^d. and defendant of and concerning the said differences ; and did thereby award that the defendant should on [ ], pay to the plaintiff the Awarded sum of £100, in full satisfaction and discharge of the said matters in defendant difference. Of which said award the defendant, afterwards to wit, on j^^Jj the day and year last aforesaid had notice. And although he, the Notice to defendant, afterwards, and before the commencement of this suit, to wit, defendant, on the day and year last aforesaid, was requested by the plaintiff" to pay Request to him the said sum of £100, according to the tenor and effect of the said defendant award and his said promise ; yet the defendant not regarding his said P^^ " promise did not, nor would-, on the day and year last aforesaid, or when Dgfa,,,].,^* he was so requested as aforesaid, or at any time afterwards, pay the said not paid. sum of £100, or any part thereof, to the plaintiff, but hath hitherto wholly neglected and refused, and still neglects and refuses so to do. And the plaintiff claims £ [ ]. 814 APPENDIX OF FORMS. LXXXIY. In the Queen's Bench. The [ ] day of [ ], a. d. [ ]. Indebitatus ^Coic7iir/'] ) A, B. by E. F., his attorney, sues C. D., for money payable awaid!"^ ^" ^^ ^^^' ' ^y *^® defendant to the plaintiff for money awarded by X. Y., to be paid by the defendant to the plaintiff by an award of the said X. T., made under a submission to his arbitration by the plaintiff and defendant of matters in difference between them. And the plaintiff claims £ [ ] («)• LXXXV. In the Queen's Bench. The [ ] day of [ ], A. D. [ ]. Indebitatus \_County'] ) A. B. by E. F., his attorney, sues C. D., for money payable count on an to wit. ] by the defendant to the plaintiff for money awarded by " ' X. Y., to be paid by the defendant to the plaintiff by an umpirage of the said X. Y., duly appointed an umpire in that behalf by A. B. and C. D., under a submission by the plaintiff and the defendant of matters in difference between them to the arbitration of the said A. B. and CD., or of an umpire to be appointed by them in that behalf in case they should disagree in making an award. And the plaintiff claims £ [ .] LXXXTI. In the Queen's Bench. The[ ]dayof[ ], A. D. [ ]. Indebitatus \_CGunty'] ) A. B. by E. F., his attorney, sues C. D. for money pay- count for to wit. ] able by the defendant to the plaintiff for the costs duly taxed costs of J * " action ^^^ allowed to the plaintiff of a certain action and of a reference and reference, award in respect thereof awarded by X. Y., to be paid by the defendant and award. ^^ j^j^g plaintiff by an award of the said X. Y., made under a submission to his arbitration by the plaintiff and defendant of the said action, and of the costs of the said action, reference, and award. And the plaintiff claims £ [ ] (^)" LXXXVII. In the Court of Common Pleas. The[ ]dayof[ ], A. d. [ ]. Declaration Kent ) M. D. by 0. P., her attorney, sues E. B. and J. C, executors in assump- to wit. ] of the last will and testament of J. B, deceased. For that executors whereas before the making of the promise and undertaking of the (a) See Sim v. Edmands, 15 C. B. 240. (6) See Law v. Blackburrow, 14 C. B. 77. TLEADINGS. 815 defendants, hereinafter mentioned, certain differences had arisen, and of P^rly a certain suit was then depending in tlie High Court of Ciiancery, in ^'"'? •which the said plaintiff, M. D., was plaintiff, and P. H., J. B. since reference, deceased, and J. R., were defendants: and thereupon afterwards, and Recital of before the commencement of this suit, on the 14th day of June, A. d. diflferences. 1823, by an order of Sir John Leach, Vice-Chancellor, it was among.-t Averment other things ordered, with the consent of the attorneys of the parties in reference the fcaid suit, that the several matters in question in the suit, and all k^ '^^'^'^'^ '^^ \Jil£tQC€rV dis|>utes and differences then subsisting between the said plaintiff, M. D., and P. H., and J. B., since deceased, should be referred to the award, arbitrament, final end, and determination of M. C. ; who was to be at liberty to make one or more award or awards of and concerning the matters thereby referred to him, as he should think fit; so as such award or awards should be made in writing under the hand and seal of the said M. C, ready to be delivered to the said parties, or to sucli of them as should require the same ; on or before the 23rd day of June then next, or on or before any such ulterior day or days as the said M. C. should from time to time appoint in writing, by indorsement upon the said order ; and in case either of the said parties should happen to die before the making the final award under the said reference, the reference was not to abate, but the executors and administrators of the parties so dying were to be considered and taken as parties to the order, in like manner as their testator or intestate. And the plaintiff further says, Death of that before the making of the award hereinafter mentioned, to wit, on P^^'^y- the 28th day of June, A. D. 1824, the said J. B. died. And the plaintiff ^^^%' further says, that the said arbitrator, before the said 23rd day of June, time by to wit, on the 20th day of June, A, D. 1823, by indorsement in writing arbitrator, on the said order, enlarged the time for making his award until the last day of Trinity Term, A. D. 1825, and that the said arbitrator, during the said enlarged time for making his award, to wit, on the 7th day of -^"^ard July, A. D. 1824, made his award in writing, under his hand and seal, "** between the parties aforesaid, of and concerning the said matters re- (among ferred : and did thereby (among other things) award, that the defen- other dants, as executors of the said J. B. deceased, should out of the assets *^'°gs) de- of the said J. B., on the 27th day of July then next, between the hours p^y out of of eleven and twelve in the forenoon, at the chambers of Mr. B. B. of assets. Furnival's Inn, in the county of Middlesex, pay to the plaintiff the sum Notice to of £225 ; of which award the defendants, executors as aforesaid, after- "^''^"^"tS' wards, to wit, on the 7th day of July, in the year last aforesaid, had notice ; by reason of which said premises the defendants, as executors as jefg^j^t/ aforesaid, became liable to pay to the plaintiff the said sum of £225, according to the tenor of the said award ; and being so liable, they the defendants, as executors as aforesaid, afterwards, and before the com- mencement of this suit, to wit, on the [ ] day of [ ], a. d. [ ], in consideration thereof, undertook and faithfully promised the plaintill' to pay to her the said sum of £225, at the time and in manner as in the award was directed. And the plaintiff" further says, that though the defendants, executors Defendants not paid. 816 APPENDIX OF FORMS. as aforesaid, to wit, on, the said 27th day of July, which day had elapsed before the commencement of this suit, were ret^uested to pay the said sum of £225 to the plaintiff, according to the tenor and effect of the said award; yet the defendants, executors as aforesaid, not regarding their promises and undertaking, did not, nor would, when so requested, nor at any time before or since, pay the said sum of £225, or any part thereof, to the plaintiff, but have wholly neglected and refused so to do. And the plaintiff claims £ [ ]. Declaration in assump- sit by arbitrators for their costs of the award. Recital cause de- pending. Judge's order of reference. Appoint- ment of third arbi- trator. Averments, promise by defendants to pay plaintiffs' fees. Plaintiffs thereon undertook reference. LXXXVIII. In the Queen's Bench. The[ ]dayof[ ], A. D. [ ]. Ifiddlesex ) A. B., C. D., and E. F., by 0. P. their attorney, sue to wit. ) (J, H. and I. K. For that whereas before the making of the promise hereinafter mentioned, a cause was depending in the Court of Common Pleas, wherein the now defendants were plaintiffs, and L. M. was defendant. And whereas before the making of the promise hereinafter mentioned, to wit, on the [ ] day of [ ], A. D. [ ], by a certain order then made by Sir Thomas Coltman, Knight, then being one of the justices of our Lady the Queen, of her Court of Common Pleas, the said Sir Thomas Coltman did, with the consent of the now defendants, and the said L. M., order that all matters in difference between the now defendants, and the said L. M., should be referred to the award, order, final end, and determination of the said plaintiffs, A. B. and C. D., and of such third person as they should by writing under their hands appoint in that behalf, or of any two of them ; so as they, or any two of them, should make and publish their award in writing, &c. \_Here recite the rest of the order of reference, but in the past tense,'] And whereas afterwards, and before the making of the promise hereinafter mentioned, by a memorandum in writing, dated the [ ] day of [ ], A. d. [ ], under the hand of the plaintiffs, A. B. and C. D., and made before the plaintiffs, A. B. and C. D. entered on the said matters in difference, the plaintiffs, A. B. and C. D., did duly nominate the plaintiff, E. F., to be the third arbi- trator to whom, together with them the plaintiffs, A. B. and C. D., the matters should be referred, according to the tenor of the said order ; of all which premises the defendants then had notice ; thereupon the de- fendants afterwards, and before the commencement of this suit, to wit, on the [ ] day of [ ], A. D. [ ], in consideration that the plaintiffs, at the request of the defendants, would take upon themselves the burthen of the reference, undertook and promised the plaintiffs to pay them their fair and reasonable costs of the said award, in such manner, and at such times, as the plaintiffs, as such arbitrators, should by their said award in writing direct and appoint. And the plaintiffs, in fact, say, that they the said plaintiffs, confiding in the said PLEADINGS. 818 promise of the dofcndanta, did then accept and take tipon themselves the burthen of the reference, and did afterwards, to wit, on the [ ] day of [ ], A. D. [ ], and on divers other days and times, proceed in and with the said reference, and hear, examine, and consider the allegations and proofs made and adduced by the said parties thereto; Duly made and did afterwards, and before the commencement of this suit, to wit, ^ ^^'' , on the [ ] day of [ ], A. D. [ ], duly make and publish their award in writing nnder their hands, of and concerning the matters in dillerence so referred to them, ready to be delivered to the said parties in diflTerence ; and did thereby, among other things, award, Awarded order, and direct, that the costs of the said award of the plaintiffs, ^"^f'-'°''3'°'s amounting to £191 19s., should be in the first place paid to the plaintiffs them their by the now defendants immediately after the execution of the said costs. award ; but that the sum of £95 19s. 6c?., being one moiety, or equal half part thereof, should be repaid by the said L. M. to the now de- fendants, at the expiration of twelve months from the date of the said order ; whereof the defendants afterwards, to wit, on the [ ] day Notice to of [ ], A. D. [ ], had notice. Yet the defendants not 'l<^f*^"'l''^it''- regarding their said promise, did not, nor would, pay to the plaintiffs I>cfendant3 the said sum of £191 19s., or any part thereof, although the said sum is the fair and reasonable costs of the plaintiffs of the said award ; and although a reasonable time for the payment thereof has elapsed before the commencement of this suit ; but have wholly neglected and refused^ and hitherto wholly neglect and refuse^ so to do. And the plaintiffs claim £ [ ] (c). LXXXIX. In the Q,ueen's Bench. The [ ] day of [ ], a. d. [ ]. C^ J) -s The defendant by G. H. his attorney (or in person, as the case pjea of no ats. ) may be), says that the said X. Y. did not make any such award award. ^- B. ) of and concerning the matters referred as alleged. And for a second plea the defendant says that before the award was Revocation made as alleged, he revoked the said submission and reference to arbi- °^ ^^^y tration, and the authority of the said X. Y. to make any award con- authority, cerning the said matters in difference. XC. And for a further plea the defendant says, that aftei the making of Plea of an the promises in the said declaration mentioned, and before the commence- award ia mentofthissuit, towit, onthe[ ]dayof[ ], a d. [ ], rK*" the plaintiff and defendant mutually submitted themselves to refer, and au action. See P. 2, ch. 11, s. 1, p. 457, as to the right of the arbitrator to sue, 3 Q 818 APPENDIX OF FORMS. Submission by agree- ment. Mutual promises. Award made. Payment under it. did then refer all matters in difference between them to the award of X. Y., so as the said award should be made in writing. And the defen- dant further says, that afterwards, and before the commencement of this suit, to wit, on the day and year last aforesaid, in consideration that the defendant had then promised the plaintiff to perform and fulfil the said award, in all things on the part of the defendant to be performed and fulfilled, the plaintiff then promised the defendant to perform and fulfil the said award in all things on his, the plaintiff's, part, to be performed and fulfilled. And the defendant further says, that afterwards, and before the commencement of this suit, to wit, on the [ ] day of [ ] A. D. [ ], the said X. Y. having taken upon himself the burden of the said reference, made his award in writing of and con- cerning the premises so referred to him as aforesaid, and thereby directed the defendant to pay to the plaintiff £ [ ], in full satisfaction and discharge of all the said matters in difference so referred as aforesaid, and the defendant afterwards, and before the commencement of this suit, paid to the plaintiff the said sum of £ [ ], in pursuance and performance of the said award (d). Declaration in debt on an award on a sub- mission by bond. Recital of differences. Averment, submission by bond. Award made. XCI. In the Queen's Bench. The [ ] day of [ ] a. d. [ ] Kent, ) A. B., by E. F. his attorney, sues C. D. For that whereas to wit, ) certain differences having arisen between the plaintiff and the defendant, thereupon afterwards, to wit, on the [ ] day of [ ], A. D. [ ], the plaintiff, by a certain bond of arbitra- tion, became and was bound to the defendant in a certain penal sum in the said bond mentioned ; and on the day and year last aforesaid, the defendant by a certain bond of iirbitration became and was bound to the plaintiff in a certain penal sum in the said last-named bond men- tioned ; which bonds were respectively conditioned, in all things well and truly to abide by, stand to, observe, perform, fulfil, and keep the award of X. Y., an arbitrator elected and appointed by the plaintiff and defen- dant to arbitrate, award, and finally determine touching all matters in difference between them ; so as the said arbitrator should make his award in writing, signed by him, ready to be delivered to the parties, or if they, or either of them, should be dead before the making of the award, to their respective personal representatives who should require the same, on or before the [ ] day of [ ] next. And the plaintiff further says, that the said X. Y. having taken upon himself the burthen of the reference, did afterwards, and within the time in that behalf limited, and before the commencement of this suit, to wit, on the [ ] day of [ ] A. D. [ ], make his award in writing, signed by him, of and concerning the matters referred, ready (cZ) See P. 3, cL. 3, s. 3, p. 522, as to the effect of an award as a plea. PLEADINGS. 819 to bo delivered to the said parties : and did thereby, among other Orderinpr things, award and order the defendant to pay to the plaintiff the sum of ^^f^'^''"'"*' ^ [ ]; of all which premises the defendant had notice, to wit, „ .' on the day and year last aforesaid. Yet the defendant, though often defendant, requested, has not paid to the plaintiff the said sura of £ [ ], Defendant in the said award mentioned, or any part thereof, but has hitherto not paid. wholly neglected and refused, and still neglects and refuses so to do. Whereby an action has accrued to the plaintiff to demand, and have of and from the defendant the said sum of £ [ ], parcel of the said sum above demanded (e). XCII. l^Commence in the ordinary manner in actions by assiynees']. For that whereas heretofore, to wit, and before the making of the Declaration order of reference hereinafter mentioned, an action on promises by the in debt on now plaintiff, as such assignee, had been brought to recover the sura of ?" a^^f-rd £1000 due to the said insolvent, Jonas Ingram, for goods sold and of insol- delivered by him to the defendant, and for money due on an account "^^nt. stated: to which action the plaintiff pleaded non assumpsit; that the plain- Reciting tiff was not the assignee ; payment to the insolvent before action brought ; action by payment to the assignee before action brought ; and a set-off for work ^^^'Siiee. and labour: and the plaintiff traversed the plea of payment and set- off; and issue was joined on all the pleas. Thereupon, afterwards, the cause being about to be tried at the assizes, by a certain order, in writ- ing, of Sir Thomas Coltman, Knight, one of the judges of Her Majesty's Averment Court of Common Pleas, and the then Judge of Assize, made, to wit, on reference the [ ] day of [ ], a. d. [ ], it was (among other ^y '>]''^^l °^ things) ordered, by the consent of the parties to the action, that the ^f assize, record should be withdrawn, and that all matters in difference in the action and between the parties should be referred to arbitration ; so that the arbitrator should make his award, in writing, of and concerning the matters referred, ready to be delivered to the parties or either of them, on or before the 1st day of November then next ensuing, or within such time or times as he should on the said order indorse ; and also, that the parties should in all things abide by, perform, and keep the award of the said arbitrator ; that the costs of the said action should abide the event of the award, and that the costs of the reference and award should be in the discretion of the arbitrator : and also that the order of reference should be made a rule of court. And the plaintiff further says, that in the said order of reference the christian name of the said insolvent was, by mistake, written Joseph instead of Jonas. And the plaintiff further Mistake in says, that after the making of the said order of reference, and before the y^^u^e of said last-mentioned 1st day of November, to wit, on the 28th day of j^ the order of refer- (e) See P. 3, ch. 3, s. 1, d. 3, p. ch. 3, s. 2, p. 512, as to pleading an ^°*^®' 07, as to debt on an award. P. 3, award. 3 G 2 820 APPENDIX OF FOKMS. Enlarge- ment of time. Jiulge's order to amend mistake. Notice to defendant. Award made. Defendant to pay damiiges. Defendant to pay costs of i-eference and award. Notice to defendant of award. Order made rule of court. Taxation of costs. October, A. d. 1844, the said arbitrator took upon himself the burthen of the reference, and by indorsement on the order of reference, then duly enlarged the time for making his award until the first day of Michael- mas Term, A. d. 1845; before which day, to wit, on the 1st day of November, a.d, 1844, the said judge made a further order, in writing, that the said order of reference be amended, by altering the name of Joseph therein mentioned to that of Jonas, and that the arbitrator should proceed to make his award ; which amendment was made accord- ingly. Of all which premises the plaintiff and the defendant then had due notice. And the plaintiff further says, that afterwards, and before the said enlarged time for making the said award had elapsed, and before the commencement of this suit, to wit, oh the 22nd day of Janu- ary, A. D. 1845, the said arbitrator did make and publish his award in writing, of and concerning the matters referred, and did thereby find and award all the issues joined in the said cause for the plaintiff, except so much of the issue joined on the said first plea as related to the last count of the declaration, which the arbitrator thereby found for the defendant : that the plaintiff, as such assignee, was entitled to recover from the defendant on the first count the sum of £372 3s. : and the said aibitrator assessed the damages of the plaintiff on the first count at £372 3s., which sum the arbitrator then ordered, awarded, and directed the defendant to pay to the plaintiff, or his attorney or agent. And the said arbitrator thereby further declared that the defendant never made any payment to the plaintiff for, or in respect of, the causes of action in the first count mentioned, or any part thereof. And the arbitrator thereby awarded and declared, that in finding the said sum of £372 3s. to be due to the plaintiff, and assessing the said damages as aforesaid, he had allowed to the defendant, and given credit to him for all and singular the sum or sums which were ever paid by the defendant to the said Jonas Ingram before he became such insolvent debtor as in the declaration mentioned, for or in respect of the causes of action in the said first count mentioned, or any part thereof. And the said arbitrator further awarded, that no further proceedings should be had save the taxation of the costs of the award : and touching and concerning the matter in dispute between the said parties out of the said cause, that neither of the parties at the time of making the order had any claim or demand against the other. And the said arbitrator also awarded the defendant to pay the costs of the reference and award ; of which award tlie defendant afterwards, and before the commencement of this suit, to wit, on the day and year last aforesaid, had notice. And the plaintiff further says, that after the making of the said award, and before the commencement of the present suit, to wit, on the [ ] day of [ ], A. D. [ ], the said orders of the said judge were made a rule of her Majesty's Court of Exchequer ; and that afterwards, and before the commencement of this suit, to wit, on the 18th day of February, A. D. 1845, the costs of the plaintiff were taxed at £280 15s. ; of which the defendant then had notice ; and was afterwards, to wit, on the day and year last aforesaid, requested by the plaintiff to pay the 1>LEADINGS. 821 respective sums of £372 3s. and £280 15s., pursuant to the said Notice to award. And the plaintifl' further says, that although a reasonable time '^^'"''"'^^"t- for the payment thereof had elapsed before the commencement of this |^^f'^^"'^/'.j' suit, the defendant did not, nor would, pay the same or any part there- to pay. ^ of, but has hitherto neglected and refused, and still neglects and refuses. Defendant so to do. n<^t paid. XCIII. \_T7ie declaration may he on a common money bond withotit condition, Declaratioa or it may recite the condition in the usual manner, and then allege the ^° <^ebt(>u making of the award and the breaches, as in the form given in the repli- tratfoV cation to a plea of no award. See Form XCV.'] {f). bond. XCIV. [ When the declaration does not set forth the condition.'\ lu the Queen's Bench. The[ ]dayof[ ], A. d. [ ]. D. 1 The defendant by 0. P., his attorney, says that the said writing Tlea of no ^^- r obligatory in the said declaration mentioned was and is in the jrwtQ^JiQ ' words following \liere set out the bond'\ ; and the defendant further arbitration says that the said writing obligatory was and is subject to a certain con- bond, dition, which condition was and is in these words [here set forth the whole condition verbatitn']; and the defendant further says, that the said X. Y., the arbitrator named in the said condition, did not, on or before the said ]| ] day of [ ], a.d. [ ], in the said condition mentioned, make any award, in writing under his hand, of and concerning the premises in the said condition mentioned and so referred as aforesaid, ready to be delivered to the said parties in differ- ence, or to such of them as should require the same [as the case may he ; for the plea should traverse the mode of making the award prescribed by the condition^ [g). XCV. In the Queen's Bench. The[ ]dayof[ ], a. r. [ ]. A. B. '\ And the plaintiff as to the plea of the defendant by him Replication V. > [firstly] above pleaded says, that the said X. Y., the arbitrator i» Jebt ou ' in the said condition of the said writing obligatory mentioned, jj-ation ' (/) See P. 3, eh. 3, s. 1, d. 4, p. {g) See P. 3, ch. 3, s. 4, d. 2, p. 508 ; P. 3, ch. 3, s. 2, d. 2, p. 519, as 626, as to pleadLng no award, to debt on the arbitration bond. 822 APPENDIX OF FORMS. bond to a plea of no award, set- ting forth tlie award and breaches. Arbitrator made award. Notice to defendant. Breach. Further breach. within the time limited and appointed by the said condition for the making his award, and before the commencement of this suit, that is to say, on the [ ] day of [ ], A. d. [ ], did duly make his award, in writing under his hand, of and concerning the pre- mises in the said condition mentioned, and thereby referred to him as aforesaid, ready to be delivered to the said parties in difference, or to such of them as should require the same ; by which said award the said arbitrator did then award [here set out the whole of the atcarding part of the award in the past tensej ; of- which said award the defendant after- wards, to wit, on the [ ] day of [ ], A. D. [ ], had notice. And the plaintiff further says, that the defendant has not [here state the breach of the award ; if the award be for payment of money, it may be as follows : '* though often requested, paid to the plaintiff the said sum of £ [ ] in the said award mentioned, or any part thereof, but has hitherto wholly neglected and refused, and still neglects and refuses so to do"]. [If there has been another breach, add] And for assigning a further breach of the said award and of the said condition of the said writing obligatory, the plaintiff further says that [here state the further breach, following as near as may be the words of the award'\ (h). Rejoinder, no such award to replication setting forth award. XCVI. And the defendant, as to the replication of the plaintiff to the said [first] plea of the defendant, says, that the said X. Y. did not make any such award of and concerning the said premises in manner and form as the plaintiff has above, in his said replication, alleged (/). XCVII. Plea of [After setting out the bond and condition, 2}roceed] the defendant says, award and that after the making of the said writing obligatory, and before the perform- j- -j ^^^ ^f j- j^ ^ -p^ [■ j^ [-^/^g i{^^{f p^. ^^f^j-i^g debt on <^«6 aivard\ and before the commencement of this suit, to wit, on the the arbi- [ ] day of [ ], A. D. [ ], the said X. T. duly tration made his award, in writing under his hand, of and concerning the pre- mises in the said condition mentioned, and so referred to him as afore- said, ready to be delivered to the said parties in difference, or to such of them as should require the same ; by which said award the said X. Y. (A) See P. 3, ch. 3, 8. 2, d. 2, p. 519, as to pleadings in debt on the arbitration bond. (i) See P. 3, ch. 3, s. 4, d. 2, p. 626, as to pleading no award. PLEADINGS. 823 did thereby award [here set out the whole of the award without the recitals]. And the defendant further says, that afterwards, and be- fore the commencement of this suit, to wit, on the [ ] day of [ ], he the defendant [allege performance by the defendant of everything the award ordered the defendant to do, as near as may be in the words of the award, laying time for each acf] {k). XCVIII. In the Queen's Bench. The[ ]dayof[ ], a. d. [ ]. Kent, ) A. B. by E. P., his attorney, sues C. D. For that whereas. Declaration to wit. ) heretofore and before the making of the award hereinafter in covenant mentioned, to wit, on the [ ] day of \ 1 a. d. [ \ °° ^.^"H' •L i • • 1 . ,1 , , , , . mission by by a certain indenture then made between the plaintiff of the one part deed. and the defendant of the other ; after reciting that the plaintiff was pos- sessed of a certain messuage for a term of years under a lease from the Recital of defendant, and that divers questions and differences had arisen between diiferences. the plaintiff and defendant touching the said messuage and lease, and that to put an end to the said questions and differences it had been agreed to refer the same to the award and final determination of X. Y. ; each of the said parties did thereby, for himself, his heirs, executors, Covenant and administrators, covenant, promise, and agree to and with the other, to abide his heirs, executors, and administrators, well and truly to stand by, obey, ^^^^ ' perform, and keep the award of the said X. Y. of and concerning all matters in difference between the said parties touching the said messuage and lease, as by the said indenture, reference being thereunto had, will more fully and at large appear. And the plaintiff further says, that the said X. Y. afterwards, and Arbitrator before the commencement of this suit, to wit, on the [ ] day of ^^^^ [ ], A. D. [ ], made and published his award, in writing, of and concerning the premises so referred to him as aforesaid ; and thereby ordered the defendant within two months from the making of Ordering the said award, at his own costs and charges, to put the said messuage defendant into good and tenantable repair ; of which said award the defendant, to messua'-e. wit, on the day and year last mentioned, had notice. And the plaintiff' Notice to further says, that the defendant, although afterwards, and after the defendant making of the said award, to wit, on the [ ] day of [ ], ° ^^^i"" A. D. [ ], requested by the plaintiff so to do, did not nor would, j)efeadant ■within two calendar months from the making of the said award, which not re- period has long elapsed before the commencement of this suit, or at any paired, other time, put the said messuage into good and tenantable repair, as in the said award directed, but has hitherto wholly neglected and refused (k) See P. 3, ch. 3, s. 4, d. 4, p. 531, as to pleading performance. 824 APPEIHDIX OF FOEMS. SO to do, contrary to the tenor and effect of the said indenture and of the said covenant of the defendant in that behalf made as aforesaid. And so the plaintiff says that he, the defendant, has not kept with him the covenant so made between them as aforesaid, but has broken the same, and to keep the same with the plaintiff the defendant has hitherto wholly refused and still does refuse. And tie plaintiff claims £ [ 3 (0. (Z) See P. 3, oh, 3, 8. 1, d. 5, p. 609, as to covenant on a submission by deed. rilOCEEDINGS ON TEIE AWARD. 825 PEOCEEDINGS ON THE AWARD. XCIX. In the *' Queen's Bench" [or "Common Pleas," or "Exchequer of Pleas"]. 1. I, 0. P., of [ ], make oath and say, that on the [ ] Affidavit of day of [ ], A. D. [ ], I was present and did then see C. D. execution duly execute the hond or obligation hereunto annexed ; and that the ° ^°°".°f said C. D. did then sign, and as his act and deed deliver, the said bond or obligation in the presence of me this deponent ; and that the name C. D. at the foot thereof is of the proper handwriting of the said C. D. ; and that the name 0. P. subscribed to the said bond as the witness thereof is of the proper handwriting of me, this deponent (a). 0. P. Sworn, &c a . C. In the "Queen's Bench," or "Common Pleas," or "Exchequer of Pleas."] Between A. B. plaintiff, and C. D. defendant. [ When there is no cause in court omit all title of the parties, or say, " In the matter of the arbitration between A. B. and C. D."] 1. I, 0. P., of [ ], make oath and say, that I, this deponent. Affidavit of did, on the [ ] day of [ ], a. d. [ ], see X. Y. ^J*'^;'^"''' " sign and publish " \or " sign, seal, and publish," as the case may he'], award, "the award, in writing, hereto annexed" [or "his award, in writing, between A. B., of [ ], and C. D., of [ ], bearing date the day and year aforesaid "]. And I, this deponent, further say, that the name X. Y. set and subscribed to the said award as the party executing the same is of the proper handwriting of the said X. Y. ; and that the name 0. P., SQt and subscribed thereto as witness attesting the execution of the said award, is of the proper handwriting of me, this deponent (i). 0. P. Sworn, &c. (a) See P. 3, ch. 5, s. 1, p. 567, as {h) See P. 3, ch. 6, s. 3, d. 1, p. to making the submission a rule of 594, as to verifying the award, court. 826 APPENDIX OF FORMS. Aflulavit verifying copy of award on motion to set aside award. CI. In the Queen's Bench. In the matter of "W". B. and the [ ] Railway Company. 1. I, W. H., of [ ], solicitor for the above "W. B., make oath and say, that I, this deponent, on the [ ] day of [ ], received from M. T., the solicitor for the above-named company, a copy of the award made by M. P. in the matter above-mentioned ; and which said copy of the said award is hereunto annexed ; and which said award was taken up, and is now in the possession of the said M. T. as such solicitor as aforesaid, or of the said company, as I, this deponent, verily believe (c). W. H. Sworn in court this [ ] day of [ ], 1855. Affidavit of enlarge- ment of time. CII. [^Commence as in the previous Forms."] 2. And I, this deponent, further say, that the time for making the said award was on the [ ] day of [ ], a. d. [ ], duly enlarged to the [ ] day of [ ], A. d. [ ], by the writing under the hand of the said X. Y. indorsed on the said bond \or other submission, as the case may be"] ; and I, this deponent, further say, that the name of the said X. Y. set and subscribed to the said indorsement is of the proper hand- writing of the said X. Y. ; and I, this deponent, further say, that the said award was made and published on the [ ] day of [ ], A. D. [ ], and within the enlarged time for making and publishing the same. Rule mak- ing submis' sion by bond a rule of court. cm. In the Queen's Bench. Monday, the 22nd day of July, 1855, in the 19th year of Queen "Victoria. In the matter of) ^P"'^ reading the affidavit of 0. P., and the bond arbitration between > or obligation thereunto annexed, bearing date the A. B. and C. D. ) 9th day of August last past, and duly executed by A. B. of [ ], in the county of [ ], esquire, to C. D. of [ ], in the said county, corn dealer ; reciting, as therein is recited : that whereas \_here set out the recitals in the condition of the bond in the past tense] : — and upon reading the condition of the said obligation, and it thereby appearing that if [here set out the condition on (c) See P. 3, ch. 9, s. 4, d, 1. p. 667, as to sufficiently verifying the award. VKOCEEDINGS ON THE AWAItD. 827 which the bond in to be void in the past tense^ ; — and it tli^rcby appearing, that it was agreed by and between the said A. B. and C. D. [licre act out the atirecment as to making the submission a rule of court, as to the powers 0/ the ai'bitrator, and the rest of the terms in the condition."] [//"Making en- the time has been enlarged, add, "and upon reading a memorandum ''»;''8p"'eiit indorsed on the said bond, dated the [ ] day of [ ] now pjjrt, of the last past; whereby it appears, thatX. Y., the arbitrator in the said bond rule. of submission named, did, pursuant to the power given him by the terms of submission in the said condition to the said bond or obligation, thereby enlarge the time for making his award on the matters therein referred to his determination, until the [ ] of [ ] then next ensuing "] : — It is therefore ordered, that such the submission [if the time has been enlarged, add, "and memorandum"] made in manner aforesaid, be entered and made a rule of this court. Upon the motion of Mr. [ ] {d). By the Court. CIV. In the Queen's Bench. Tuesday, the [ ] day of [ ], A. d. [ ], in the 19th year of Q,ueen Victoria, jj^ig A. B. \ It is ordered that an order made " by the Eight Honourable making a V. > Thomas Lord Denman, the Lord Chief Justice of this court" for J^^S^ ^ ^ -p. I order a \j. v.) <( jjy t]jg Honourable Sir James Patteson, Knight, a Judge of rule of this court "], at his chambers in EoUs Garden, bearing date the [ ] court. day of [ ], be entered and made a rule of this court, which said order is in the words following, to wit \_here set out the whole order verhatini]. Upon the motion of Mr. [ ]. By the Court. CV. \_Entitle this as the preceding Form XCIX.] A. B. ) It ii^ ordered that an order made " at the sittings of Nisi Prius, j^^jg V. > holden at [ ]> on [ ], before " [describe the sittings making an C- D. ) at Nisi Prius, If the order was made at the assizes, state it ^i".^?"" °f Nisi Priua accordingly], be entered and made a rule of this court, which said order ^ j^jg ,jf is in the words and figures following, to wit [here set out the whole order court. verbatim]. Upon the motion of Mr. [ ]. By the Court. (d) See P. 1, cb. 3, s. 3, p. 54, as to the effect of making the submission a rule of court. 828 APPENDIX OF FORMS. CVI. Wednesday the twenty-third day of Novemher, in the eighteenth year of the reign of Queen Victoria. In the Queen's Bench. Rule mak- LancashireJ] It is ordered that an order made at the General Quarter ing orcer geggjong of the Peace, held by adjournment at Preston, in and for the by Quarter] County Palatine of Lancaster, on the fifth day of April, 1854, be entered Sessions a and made a rule of this court, which said order is as follows, that is rule of . court *<^^^y- \^Here set out the order of Sessions, ref erring the matters of appeal verbatim. See Form XXXIX.] Order mak- ing sub- mission •order of • Chancery. CVII. Vice-Chancellor of England. Wednesday, the [ ] day of [ ], in the [ ] year of the reign of her Majesty, Queen Victoria, 1848. In the matter of the arbitration between A. B. and C. D. And in the matter of the statute the 9 & 10 William III., entitled "An Act for determining Differences by Arbitration." Upon motion this day made into this court by Mr. E. of counsel for the said A. B., and upon producing "an agreement" \_or "bonds of submission," or " a deed"], bearing date the [ ] day of [ ], and " signed by the said A. B., and C. D." \_or " signed by G. H., solicitor for the said A. B., and by I. K., solicitor for the said C. D."], as by affidavit appears; it was, therefore, prayed that the said " agree- ment " \_or "bonds of submission," or "deed"] may be made an order of this court, and be observed and performed by all parties thereto, according to the tenor and true meaning thereof. Which is ordered accordingly. Mr. F. of counsel for the said C. D. consenting thereto (e). Rule mak- ing sub- mission under the ' ' Lands Clauses Consolida- tion Act " CVIII. In the Queen's Bench. Monday, the [ ] day of July, 1855, in the 19th year of Queen Victoria. ^ „ ., » ,■■ ,.. ,• . Upon reading the affidavit of K. L. Inthematter of the arbitration] \^ . ^. ^ ^ . r ■, , between the London and ^oT\h- \[^erifying appointment of arliirator Western Pi,ailway Company, under \hy the co7npany,] and the appoint- " the Lands Clauses Consolidation | ment of arbitrator or submission to Act, 1845," and 0. P. J arbitration on the part of the Lon- Makrell, V.C. of England, 14 Jan. 1846, H. H. Reg. ; Turnley v. Barber, (e) See Ex parte Clarke, deceased, V. C. K. B. 1 Aug. 1846 ; Fisher v. PROCEEDINGS ON THE AWARD. 829 don and North-Western Railway Company, under " The Lands Clauses rn\e of tbo Consolidation Act, 1845," and bearing date the [ ], day of [date ^^l^l^^ of ainwintmenf], and duly executed ** by A. B. and C. D., two of the directors of the said Company" \or "by E. F., secretary to the said Company"], thereto annexed, the affidavit of L. M. [verifying appoint- ment of arbitrator hij the landowner], and the appointment of arbitrator or submission to arbitration on the part of the said 0. P., bearing date the [ ] day of [date of appointnienf], thereto annexed, it is ordered that the said two several appointments of arbitrators, or submission to arbitration, be respectively entered and made a rule of this court : which two several appointments of arbitrators, or submission to arbitration, are in the words following; to wit [copij of the appointments verbatim']. Upon the motion of Mr. [ ] (/). By the Court. CIX. Vice-Chancellor Knight-Bruce. Wednesday, the 17th day of November, 1847 r i, .. nil \. • • i. V Upon motion this day Order mak hi the matter of the submission to arbi- , ^f"" ^ _ ^ ,,"';„„ „ „„k- tration of Benjamin Vallack Elliot, of Plymouth, in the County of Devon, Gen- tleman, and the South Devon Railway Company. And in the matter of "The South Devon Railway Act, 1844," and of " The South Devon Railway Act Amendment and Branches, 1846," and of "The Lands Clauses Consolidation Act, 1845." made unto this court by Mr. ^^S a sah- n. 1 n 1 i> T. mission Palmer, ot counsel tor lien- under the jamin Yallack Elliot, and " Lauds \ upon producing a submission ^'^"®®? to arbitration, bearing date ^i^^ Act" the 15th day of July, 1847, an order of and signed by William Carr, Chancery. secretary to the said South Devon Railway Company, as by affidavit appears ; and a submission to arbitration, bearing date, Plymouth, August 21st, 1847, and signed by Benjamin Vallack Elliot, as by affidavit also appears; it was prayed that the said two several submissions to arbitration may be made an order of this court, and be observed and performed by all parties thereto, according to the tenor and true meaning thereof: which is ordered accordingly {g). ex. In Chancery. In the matter of an arbitration between J. H., S. B., and J. G. and the N. S. Railway Company. Take notice, that by special permission this day obtained from his Special L. C. 31 July, 1846, E. D. C. Reg. ; to making a submission under the Fradiev v Haslam, M.R., 1 Ap. 18i7, Lands Clauses Act a rule of court. J. C. lleg. (ff) lieg. Lib. A. 1847, fol. 70, K (/) See P. 3, ch. 5, s. 3, p. 574, as D. C. 830 APPENDIX OF FORMS. notice of motion to make a submission to arbitra- tion under the "Lauds Clauses Consolida- tion Act" an order of Chancery. Honour V. C. Knight-Bruce, who has this day given leave to serve this notice of motion on or before Monday next, this court will be moved before his said Honour V. C. Knight-Bruce, on Wednesday, the 26th day of January next, by Mr. R., Mr. Mc, and Mr. H. H., on behalf of the N. S. Railway Company, that the submission to arbitration in this matter may be made a rule of this Honourable Court. And take notice that the following affidavits and documents, or such part thereof as counsel shall advise, will be read in support of the said motion ; namely, the affidavit of W. K. filed in this matter on the third day of December last, together with the appointment of G-. A. M'D. as arbitrator in the said reference (7i), and the appointment of A. L. B. as umpire in the said reference, respectively referred to in the said affidavit ; the affidavits of the said W. K. and J. F. S. both filed in this matter on the 8th day of December last, together with the award of the said A. L. B., referred to in the said last-mentioned affidavit ; the affidavit of J. H. filed in this matter on the 21st day of December last ; and the affidavit of Or, Y. this day filed in this matter. Dated the 22nd day of January, 1848. K. and S. Solicitors and agents for the Company* To the above-named, J. H., S. B., and J. G., all of L , in the County S , coal masters and co-partners. Ordermak- ing a sub- mission under the Lands Clauses Act an order of Chancery on one only of the two appoint- ments of arbitrators. CXT. Vice-Chancellor Knight-Bruce. Wednesday, the 26th day of January, 1848. In the matter of an arbitration be- A ^'^^'^^^ Mr. Russell, and Mr. tween John Hawley, Sampson Bridge- Malms, and Mr. Hugh Hill, of wood, and John Goodwin, and The ) counsel for the North Stafford- North Staffordshire Railway Com- pany («•). unto this court that the submission to arbitration in this matter might be made a rule of this court ; in the presence of Mr. Francis Simpkinson and Mr. Serjeant Allen, of counsel for the said John Hawley, Sampson Bridgewood, and John Goodwin: Whereupon, and upon hearing an appointment of arbitration made in pursuance of the provisions of the "North Staffordshire Railway (Pottery Line) Act, 1846," and the " North Staffordshire Railway (Churnet Yalley Line) Act, 1846," and shire Railway Company, this day moved and offered divers reasons (h) The appointment of the arbi- trator by the company. The appoint- ment of the arbitrator by the land- owners could not be procured, nor had the company a copy of it. (?') The order ought to have been en- titled in the matter of the statutes stat- ing their titles, as well as in the matter of the arbitration, as in Form CIX. mOOEEDINGS ON THE AWxVRD. 831 of "The Companies Clauses Consolidation Act, 1845," "The Lands Clauses Consolidation Act, 1845," and " The Ilailway Clauses Consoli- dation Act, 1845," respectively incorporated therewith, hearing date the 30th day of August, 1847, and signed W. T. Copeland, John Kidgway, two of the directors of the said Company; and appointment of umpire dated the 15th day of September, 1847, and signed G. A. M'Dermott, John Hi^ginbottom ; the writing of award bearing date the 29th day of November, 1847, under the hand and seal of A. L. Barton, and by him sealed and delivered in the presence of John Ferguson Smith ; an affi- davit of William Keary, sworn the 3rd day of December, 1847 ; another affidavit of William Keary, sworn the 8th day of December, 1847 ; an affidavit of John Ferguson Smith, sworn the 8th day of December, 1847; an affidavit of John Higginbottom, sworn the 21st day of December, 1847 ; another affidavit of the said William Keary, sworn the 12th day of January, 1848 ; an affidavit of George Young, sworn the 12th day of January, 1848 ; another affidavit of the said William Keary, sworn the 15th day of January, 1848 ; an affidavit of John Harding Sheppard and Samuel Williamson, sworn the lath day of January, 1848 ; an affidavit of George Haywood, sworn the 20th day of January, 1848 ; another affi- davit of the said George Young, sworn the 22nd day of January, 1848 ; and a notice, in writing, served on the said John Hawley and others, giving notice that the said Company would, at the hearing of the said motion, read the several affidavits and documents therein and herein- before mentioned, dated the 24th day of January, 1848 — read, and what was alleged by the counsel for the said North Staffisrdshire Ilailway Company, and for the said John Hawley and others : — This court doth Order, that the said submission to arbitration be made an order of this court, to be observed and performed by all parties thereto, according to the tenor and true meaning thereof (Jc). CXIL Master of the Eolls. • Wednesday, the [ ] day of [ ], in the [ ] year of the reign of her Majesty Q,ueen Victoria, 1848. iA. B. plaintiff, and C. D. defendant. Upon motion this day made unto this court by Mr. E., of counsel for Order mak- the plaintiff, it was prayed that the writing of award, bearing date the i°S a^'-'"'^ [ ] day of [ ], under the respective hands and seals of c^a^ncery X. Y. and U. V., Esquires, and by them sealed and delivered, being by consent. (i) Reg. Lib. A. 1847, fol. 380. E. D. C, Jun. See the case cit«d, p. 575. 832 APPENDIX OF FORMS. first duly stamped, in the presence of [ ]j D^ay be made an order of this court: Whereupon, and upon hearing Mr. F., of counsel for the defendant who consented thereto : — This court doth order, that the said award be made an order of this court ; and that the same be observed and performed by all parties thereto, according to the tenor and true meaning thereof [l). Order mak- ing award order of Chancery on affidavit of service CXIII. Vice-Chancellor of England. Tuesday, the [ ] day of [ ], in the [ ] year of the reign of her Majesty, Queen Victoria, 1848. Upon motion this day made unto this court by Mr. E., of counsel In the matter of the arbitration be- " tween A. B. and C. D. And in the matter of the statute [ e ,, „ • a . t! ;+ ^„„ ^^„^^a it, n o in 1T7 TTr 1= 4.-4.1 1 ) lor the said A. ii., it was prayeu the 9 & 10 W. III. c. 15, entitled/ . ' , , • "An Act for determining Differences that the writing of award, bearing of noticrof by Arbitration." J date the [ ] day of [ ], motion. under the hand of X. T., Esq., barrister-at-law, and by him signed and delivered to the said A. B., in the presence of [ }, may be made an order of this court : Whereupon, and upon hearing an affidavit of notice of this motion to the said A. B. read : — This court doth order, that the said award be made an order of this court ; and that the same be observed and performed by all parties thereto, according to the tenor and true meaning thereof. Order mak' ing award order of Chancery on motion opposed. CXIV. [^Entitle the ordei" as in Form CVII.'j Whereas Mr. E., of counsel for the plaintiff, this day moved, and offered divers reasons unto this court, that the writing of award, bearing date the [ ] day of [ ], under the hand of X. Y., of [ ], and by him signed and published in the presence of 0. P., might be made an order of this court, in the presence of Mr. F., of counsel for the defendant : Whereupon, and upon hearing an affidavit of G. H., sworn the [ } day of [ ], and an affidavit of I. K., sworn the [ ] day of [ ], read, and what was alleged by the counsel on both sides : — This court doth order, that the said award be made an order of this court; and that the same be observed and per- formed by all parties thereto, according to the tenor and true meaning thereof. (Z) This Foim, or Forms CXIII. or CXIV., must be used according to cir- cumstances. In the cases of Stanley v. Bluudell, V. C. E., 21st Dec., 1846; and -Fradley v. Haslam, M. R., 19 Ap. 1847, the awards have been made orders on similar foims. PBOCEEDINGS ON THE AWARD. 833 M 6 "??. 'J:^ O '^ t4H a, a, h n3 ;-i o t t» "aT ? (H tj .^ ^ O :*i is t" ■* n ^ _o TS O a> d o. 13 cj o m ... 0) +3 rJi ■t, P< ^ 2> m ~ — — — .J> (U 13 ftf < d cS t4-l o 0) o d d 4) a g 13 d d 2" a C j3 d «»- o -*< 00 1-1 !^ § J > .a '-^ s OQ - d aj 4j ti, s s s s:^^'^ d d 2 ■ 0) d ; ja a> *-< i-H ygprence a rule of court}, and the payment of allocatur of E. F., one of the Masters of this court thereon, the affidavit """J^^ ^'"^ of G. H. {_verifying the award], and the award thereto annexed, the awarded, afl&davit of I. K., and the affidavit of L. M. [^stating the facts necessary to briiig the party into contempf]: — It is ordered, that "CD., in the said rule, award, and affidavits named," {or " the defendant,"] upon notice of this rule to be given to him, shall upon [the day when cause is to be shown] show cause why a writ of attachment should not issue against him for his contempt in not paying the several sums of £ [sum atcarded] and £ [amount of costs taxed], pursuant to the said rule, the said Master's allocatur, and the said award. Upon the motion of Mr. [ ] ip). By the Court. CXIX. In the Queen's Bench. Friday, the [ ] day of [ ], 1864, in the 27th year of Queen Victoria. " In the matter of the arbi- 1 UP«^ reading the rule made in this Rule abso- tration between A. B. and f "matter" [or "cause"], on [date "/ <^« Schment C. D." [or if in a cause, I rule nisi], the affidavit of N. 0. and the f^^ non- "A. B. V. C. D."] ) affidavit of P. Q. [the affidavits in answer] payment of and upon hearing Mr. A., of counsel for " the said A. B. in the said rule, ^^^^^ ^^"^ awarded. (o) See P. 3, ch. 6, s. 2, p. 588, as {p) See P. 3, ch. 6. a. 3, d. 2, p. to the demand necessaiy before an at- 598, as- to the rule nisi for an attach- tachmeut. ment. S H 2 836 APPENDIX OF FORMS. named " [or " the plaintiif "], and Mr. B., of counsel for " the said C. D. in the said rule also named" [or " the defendant "] :— It is ordered, that a writ of attachment issue against "the said C. D." \_or "the de- fendant"], for his contempt in not paying the several sums of £ [sum awarded as in the rule nisi], and £ [taxed costs as in the rule nisi"], pursuant to the rule made in this " matter " [or " cause "], on [date of the rule making the order or agreement of reference a rule of court], and the allocatur of E. F., one of the Masters of this court thereon, and the award made hetween the parties {q). By the Court, Rule abso- lute for an attacli- inent, no cause being shown. cxx. In the Queen's Bench. Friday, the [ ] day of [ ], 1864, in the 27th year of Queen Victoria. "In the matter of the arbi- ) ^P^n reading the rule made in this tration between A. B. andf "matter" [or "cause"], on [date of the C. J). " [or if in a cause ^^ A. t rule nisi], and the affidavit of S. T. i>. V. L. D. J J [affidavit of service of the rule nisi], and no cause being shown to the contrary : — It is ordered [continue as in the preceding Form to the end, adding at the conclusion the words, " Upon the motion of Mr. [ ]" ]. By the Court. Rule ad- judging party at- tached in contempt and com- mitting him. CXXI. In the Common Pleas. Upon reading, &o., the said H. "W. H. (now present here in court) is by the court here adjudged in contempt : — It is therefore ordered, that the said H. "W. H. be committed to the custody of the keeper of the Queen's Bench Prison for the contempt aforesaid ; and it is further ordered, that the said keeper, or his deputy, do bring the said H. W. H. to the bar of this court on the 25th day of November instant, then and there to receive the judgment of this court for his said contempt (>•). CXXII. In the Common Pleas. Rule direct- Upon reading, &c., the said H. "W. H. (now present here in court) being brought to the bar of the court by the keeper of the Queen's ing iTn- prisonment {q) See P. 3, ch. 6, s. 3, d. 4, p. 604, as to the rule absolute for an attach- ment. {r) See R. v. Hemsworth, 3 C. B. 745. P. 3, ch. 6, s. 3, d. 5, p. 608, as to proceedings on the attachment. PROCEEDINGS ON THE AWARD. 837 Prison, in pursuance of the last-mentioned rule, is by the court here of party adjudged in contempt:— It is thereupon ordered that the said H. W. ][., !*^,*.'*^!'J'\ • for the contempt aforesaid, be imprisoned in the custody of the keeper of coutempt!" the Queen's Prison, for the space of two years from the date hereof, and that the said H. W. H. be remanded to the custody of the said keeper, to be by kirn kept in safe custody in execution of this judgment (s). CXXIII. IThis Forjn is the same as Form CXVIII. for the rule nisi for an Rule nisi to attachment, except that instead of the words between "show cause why" V^J «noney and "the several sums," there is to be substituted the following] — i^g ^d^ costs should not pay " to the said A. B. in the said rule, award, and affidavits to award, named" [or "to the plaintiff"]; [and there is to be added Just before the words, " upon motion,"] and why he should not pay the costs of this application, to be taxed by one of the Masters {t). CXXIV. [This Form is the same as the rule absolute for an attachment, Forms Ru]e abso- CXIX., CXX., except that for the ivords between " it is ordered that " lute for on(? " the several sums," there are to be substituted the words'] — "the T'^^^^nt of money aucl said C. D." [or " the defendant"] do pay to " the said A. B." [or "the costs plaintiff"]; [and there is to be added the clause] — and it is further awarded. ordered that it be referred to one of the Masters to tax the costs of this application ; which costs, when taxed, shall be paid by " the said C. D." [or "the defendant"], to "the said A. B." [or "the plaintiff"], his attorney, or agent (?<). cxxv. [Copy the special case and proceed thus.] "Afterwards, on the Judgment [ ] day of [ ], 18 , came here the parties aforesaid, and °° ^ special the court is of opinion that [state the opi)iion of the court on the question ^^^^ ® '\| ■ or questions stated in the case, in the affirmative or negative as the case tmtor may be]. Therefore it is considered that the plaintiff do recover against ^l"^'" -i the defendant the said £ [ ] and £ [ ] for his costs of suit, has^i^en [In the margin opposite the words "Therefore it is considered, &c." ordered (a). write "judgment signed the [ ] day of [ ], 18 ," inserting the day of signing final Judgment.] (s) See R. v. Hemsworth, 3 C. B. (u) See P. 3. ch. 7, s. 2, p. 619, as 745. P. 3, ch. 6, s. 3, d. 5, p. 009, as to the rule absolute to pay money to proceedings on the attachment. awarded. (0 See P. 3, ch. 7, s. 2, p. (517, as {x) Reg. Gen., 27 Nov., 1S54, Form to the rule nisi to pay money awarded. XV. 838 APPENDIX OF FORMS. "Writ of execution where matter of account is referred to and decided by an arbitrator &c., under the Com- mon Law Procedure Act, 1854. CXXVI. \_The same as in the ordinary cases of execution on a Judgment, except that instead of the writ stating the money to he levied as having been re- covered by a Jtidgment, and omitting the direction to levy interest, say"] £[ ], which by an "award" [or "certificate"], dated the [ ^ day of [ ], 18 , [date of award or certificate'], made " by E. F., Esquire, an arbitrator appointed by the parties" [or "by E. F., Esquire, one ot the masters [or other officer, naming his office] of our court of [ ]," or " by E. F., Esquire, the judge of the county court of [ ]," [as the case may be], pursuant to the third section of the Common Law Procedure Act, 1854, was "awarded" [or "certified"] to be due and payable from the said C. D. to ["the said"] A. B. [If by the award or certificate costs are ordered to he paid, it would seem that the writ should concltcde as in the case of a writ of execution, when the couH or a judge decides matters of account {y), with the following clause], "together with certain costs in the said award or [" certificate"] men- tioned, which said costs were afterwards, on the [ ] day of [ 3, 18 , taxed and allowed by the said court of [ ], at £ [ ]." [If the award or certificate direct that interest shall be paid, then the direction to levy it may he thus], " together also with interest in the sum of £ [ ] at the rate of £ [ ] per cent., from the said [ ] day of [ ], 18 ," [as the case may 6e, according to the award or certificate] (z). Writ of habere facias pos- sessionem on a rule to deliver possession of land pursuant to an award (a). CXXVII. Yictoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to the sheriff of [ ], greeting. We command you that you omit not by reason of any liberty of your county, but that you enter the same, and without delay you cause A. B. to have possession of [here describe the lands and tenements as in the rule for the delivery of possession], and which lands and tene- ments, by a rule of our Court of " Queen's Bench" [or " Common Pleas," or " Exchequer of Pleas"] dated the [ ] day of [ ], 18 , made pursuant to the sixteenth section of the Common Law Procedure Act, 1854, E. F. [t7ie party named in the rule] was ordered to deliver possession of to the said A. B., and in what manner you have executed this our writ make appear to us [or in Common Pleas, " to our Justices," or in Exchequer, " to the Barons of our Exchequer"], at Westminster, (y) Reg. Gen., 27 Nov., 1854, Form IX. (2) Form 126 (which is form No. 10 of the forms prepared by the judges in Mich. Vac, 1854) is it seems wrong for omitting the statement that the amount has been recovered by judgment. See Kendil v. Merrett, 25 L. J. C. P. 251. (a) Reg. Gen., 27 Nov., 1854, Form XVII. PROOEEDINGS ON THE AWARD. 839 immediately after the execution hereof, and have yon there tlicn this writ. "Witness [ ] at "Westminster, this [ ] day of [ ], in the year of our Lord [ }. CXXVIII. In the Queen's Bench. Upon, &c. &c. It is ordered that the plaintiff be at liberty to move Rule to during the present term to set aside the award in this cause ; and in the allow event of this court granting a nile, that the same may be drawn up and ^^'''^P^**' boar date as of "Wednesday, the 7th day of May in Easter Term last past, award and And it is further ordered, that the defendants, or their attorney, do ^^ ^^^"^ ^P make the order of reference in this cause a rule of court, and that the u" f ^"^' same bear date as of the last- mentioned day (&.) order of reference nunc pro tunc. CXXIX, In the Queen's Bench. Monday, the [ ] day of [ ], 1864, in the 27th year of Queen Victoria. [When the reference is not\ Upon reading the rule made in this Rule nisi in a cause, entitle if]' 'In t)iQ "matter" [or "cause"], on [date o/ *°' any of the matters referred to such barrister-at-law for the opinion of such one of gpe^ial case the superior courts of common law at Westminster as he shall direct, or to raise touching 840 APPENDIX OF STATUTES. 7 & 8 Vrcr. in any award to be at any time made by him any question or questions for tbe ' opinion of sucb court ; and such court shall hear and determine the matter according matter *° *^^ practice of the court in special cases, and make such order as to the costs, reitired to and by and to whom, and in what manner, the same shall be paid or borne, as to him, lui the such court shall seem meet, and the decision of the court shall be binding on such su',"dor°' * barrister in making his award. court S. 2. And be it declared and enacted, that in case any barrister who shall I ca e have been or shall hereafter be named, in pursuance of the said recited acts, barrister die or eithtr of them, or of this act, shall die, or refuse to act, or be disabled from before acting, either from ceasing to practise as a barrister, or for any other reason, ™*.'^i?^'^ ^^^ before making his award, the several parties in the said several acts mentioned, another one shall be authoriztd and required to name another barrister-at-law for all the to be purposes in the said several acts mentioned, or any of them, in like manner as chosen. if no appointment had been made under the same ; and the bai-rister so newly named shall have the same authority to decide the matters in difference as if no other appointment had been made ; and in every such case in which, before the passing of this act, a second barrister has been appointed to settle or deter- mine any matters in difference, left unsettled or undetermined by the barrister first appointed for that purpose, the appointment of such second barrister shall be deemed good, and the barrister so secondly appointed shall be deemed to have, and to have had, from his appointment, the same authority as if appointed under this act. ACTS CONCERNING MASTERS AND WORKMEN. 5 Geo. IV. 5 Geo. IV. c. c. 96. ~~ An Act to consoUdate and amend the Laws relative to the Arbitration of Disputes between Masters and Workmen. \2lst June, 1824.] Whereas it is expedient that the laws relative to the arbitration of disputes between Masters and Workmen should be consolidated and amended, and one general law made applicable to every description of trade and manufacture ; be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, that from and after the pasising of this act, so much of a certain act passed in the parliament of Ireland, in 2G. 2(I.Xin the third year of King George the Second, intituled, " An Act to prevent un- part. lawful Combinations of Workmen, Artificers, and Labourers employed in the sevei-al Trades and Manufactures of this Kingdom, and for the better Payment of their Wages ; as also to prevent Abuses in making of Bricks, and to ascertain their Dimensions," as relates to the decision of disputes as therein mentioned ; also a certain other act passed in the thirty-ninth and fortieth years of King 39ife40G. 3, George the Third, intituled, "An Act for settling Disputes which may arise ^- ^^' between Masters and Workmen engaged in the Cotton Manufacture in that part of Great Britain called England ; " also a certain other act passed in the thirty-ninth 39 & 40 G. 3, and fortieth years of King George the Third, intituled, *' An Act to repeal an Act c. 106. passed in the last Session of Parliament, intituled, ' An Act to prevent unlawful Combinations of Workmen,' and to substitute other Provisions in lieu thereof ; " also a certain other act passed in the _forty-first year of King George the Third, 41 G. 3, c. 38. intitult'd, " An Act to amend so much of an Act passed in the Thirty-ninth and Fortieth Years of the Reign of his present Majesty, intituled, ' An Act to repeal an Act passed in the last Session of Parliament, intituled, ' ' An Act to prevent un- lawful Combinations of Workmen," and to substitute other Provisions in lieu thereof,' as relates to the Forms of Convictions therein referred to ;" also a certain 43 G. 3, c. other act passed in the forty-third year of King George the Third, intituled, " An 151- Act for preventing and settling Disputes which may arise between Masters and Weavers engaged in the Cotton Manufacture in Scotland, and Persons employed by such Weavers, and persons engaged in ornamenting Cotton Goods by the Needle;" 44 G, 3, c. 87- also a certain other act passed in the forty-fourth year of King George the Third, MASTERS AJStD \V01lKM]EN. 847 lEtituled, "An Act to amend an Act passed in the Thirty-ninth and Fortieth 5 Geo. IV. Years of His present Majesty, intituled, ' An Act fur settling Disputes that may '^ arise between IMiisters and Workmen engaged in the Cotton Manufacture in that part of Great Britain called England ; ' " and also a certain other act passed in tiie fifty-third year of George the Third, intituled," An Act for the better regulation 53 0. 3,c. V5. of the Cotton Trade in Ireland," sliall be and the same are hereby repealed ; save Kepoaled. and except in as far as the same may have repealed any prior acts or enactments. S. 2. And be it further enacted, That the following subjects of dispute arising Rnumcra- between masters and workmen, or between workmen and those employed by them, tj""«'"t^iio in any trade or manufacture in any part of Great Britain and Ireland, may be Disimtethiit settled and adjusted in manner hereafter mentioned ; that is to say, disagreements may be respecting the price to be paid for work done, or in the course of being done, reteiTed. whether such disputes shall happen or arise between them respecting the payment of wages as agreed upon, or the hours of work as agreed upon, or any injury or damage done or alleged to have been done to the work, or respecting any delay or supposed delay in finishing the work or the not iiuishing the work in a good and workmanlike manner, or according to any contract, or to bad materials ; cases where the workmen are to be employed to work any new pattern which shall require them to purchase any new implements of manufacture, or to make any alteration upon the old implements for the working thereof, and the masters and workmen cannot agree upon the compensation to be made to such workmen for or in respect thereof ; disputes respecting the length, breadth, or quality of pieces of goods, or, in the case of cotton manufacture, the yarn thereof, or the quantity and quality of the wool thereof ; disputes respecting the wages or compensation to be jKiid for pieces of goods that are made of any great or extraordinary length ; disputes in the cotton manufacture respecting the manufacture of cravats, shawls, policat, romal, and other handkerchiefs, and the number to be contained in one piece of such handkerchiefs ; disputes arising out of, for, or touching the particular trade or manufacture, or contracts relative thereto, which cannot be otherwise mutually adjusted and settled ; disputes between masters and persons engaged in sizing or ornamenting goods : but nothing in this act contained shall authorize any justice or justices acting as hereinafter mentioned to establish a rate of wages or price of labour or workmanship at which the workmen shall in future be paid, unless with the mutual consent of both master and workman : Provided Limitation always, that all complaints by any workman as to bad materials shall be made °^ '-'"^ '^°'" within three weeks of his I'eceiving the same ; and all complaints arising from i^-jg^ their any other cause shall be made within six days after such cause of complaint complaints, shall arise. S. 3. And be it further enacted. That whenever such subjects of dispute shall Appoint arise as aforesaid, it shall be lawful for the master and workman, or either ™fg".g°s of them, to demand and have an arbitration or reference thereof in manner follow- ing ; that is to say, where the party complaining and the party complained of shall come before or agree by any writing under their hands to abide by the deter- mination of any justice of the peace or magistrate of any county, riding, division, stewartry, barony, city, burgh, town, or place within which the parties reside, it shall and may be lawful for such justice of the peace or magistrate to hear and finally determine, in a summary manner, the matter in dispute between such parties ; but if such parties shall not come before or so agree to abide by the determination of such justice of the peace or magistrate, then it shall be lawful for any such justice or magistrate, and such justice of the peace or magistrate is hereby required, on complaint made before him, and proof by the examination of the party making such complaint, that application has been made to the person or persons against whom such cause of cora|ilaint has arisen, or his, her, or their agent or agents, if such dispute has arisen with such agent or agents, to settle such dispute, and that the same has not been settled upon such complaint being made, or where the dispute relates to a bad warp, that such cause of complaint has not been done away with within forty-eight hours after such application, to summon before him such person or persons, or agent or agents, on some day not exceeding three days, exclusive of Sunday, after the making such complaint, giving notice to the person making such complaint of the time and place appointed in such summons for the attendance of such person or persons, agent or agents, as afore- said ; and if at such time and place tlie person or persons so summoned shall not appear by himself, herself, or themselves, or send some person on his, her, or their behalf, to settle such dispute, or appealing shall not do away such cause of 848 APPENDIX OF STATUTES. 5 Geo IV. c. 96. Appoint- unent of other re- ferees where thoHe ap- pointed refuse or delay to accept the reference, or, accept- ing, do not act there n. Meeting of referees, notice of which shall be given. Form of justice's order, certifying nomination of referees. complaint, tlien and in such case it shall be lawful for such justice, and he ia hereby required, at the request of either of such parties, to nominate arbitrators or referees for settling the matters in dispute ; and such justice shall then and there at such meeting propose not less than four nor more than six persons, one half of whom shall be master manufacturers, or agents or foremen of some master manu- facturer, and the other half of whom shall be workmen in such manufacture ; such respective persons residing in or near to the place where such disputes shall have ari.-.en ; out of which master manufacturers, agents, or foremen, the master engaged in such dispute, or his agent, shall choose one, and out of which workmen so propostd the workman or his agent shall choose another, who shall have full power to hear and finally determine such dispute. S. 4. And be it further enacted. That in case any or either of the persons so proposed by any such justice shall refuse or delay to accept such arbitration, or accepting shall not act tlitrein, within two days after such nomination, the justice shall proceed to name another or other persons of the description aforesaid, in the room of the person so refusing as aforesaid to be arbitrator or arbitrators in the place of any such arbitrator or arbitrators so refusing or delaying to accept, or who shall not act ; and in every case of a second nomination the arbitrators shall meet within twenty-four hours after the application for the same, and at the same place at which the meeting of the referees first named was appointed, or at some other convenient place, as the justice may appoint ; and the expense of every such appli- cation for the appointment of a second referee shall be borne and defrayed by the party through whose default, or the default of whose referee, such application is rendered necessary ; and the justice making such second appointment shall certify the same in the form for that purpose hereafter .set forth, or in some other form to the like eifect ; and in every case where a second arbitrator shall be appointed as aforesaid, and such second arbitrator shall not attend at the same time and place appointed for settling the matters in dispute, it shall he lawful for the other arbitrator, at such time and place, to proceed by himself to the hearing and determining of the same matters in dispute ; and in such case the award of such sole arbitrator .shall be final and conclusive as to all matters in di.spute submitted to such arbitrator, without being subject to review, appeal, or suspension. S. 5. And be it further enacted. That the arbitrators or referees being so nominated as aforesaid, the said justice shall thereupon appoint a place of meeting according to the directions of this act, and also a day for the meeting, notice of ■which nomination, and of the day of meeting, shall thereupon be given by such justice to the persons so nominated arbitrators or referees, and to any party to any such dispute, who may not have attended the meeting before such justice as aforesaid ; which appointment shall be by such justice certified in the form following, or in some other form to the like effect ; That is to say, "I, A. B., one of the justices of the peace acting for , do hereby certify. That C. D. and E. F. are duly nominated referees to settle the matters in difference between G. H. of master manufacturer [or agent or foreman, as the case may 6e"', and I. K. of vreaver [or otherwise, as the case may be], pursuant to an act passed in the fifth year of the reign of his present Majesty ; and that the said referees are hereby directed to meet at on the day of at of the clock in the forenoon [or afternoon, as the case may be]. " A. B." " I, A. B. one of the justices of the peace acting for , do hereby certify that the above-named C. D. and K. F. [or one of them, as the case may he] having refused or delayed to act in the above-mentioned reference, L. M. and N. 0. [or L. M. only, as the case may be] are [or is] by me duly nominated referees [or referee], together with the above-named C. D [or E. F], to settle the mattei's in difference between the above-named G. H. and I. K. ; and the said C. D. or E. F., together with the said L. M. [or the said I. M. or N. 0., as the case may he], are directed to meet at the place above-mentioned, on the , day of in the year of our Lord , at of the clock in the forenoon [or afternoon, as the case may be]. " A. B." MASTEBS AND WORKMEN. 849 And the persons so appointed as aforesaid shall hear and examine the parties and 6 Geo. IV. tiieir witnesses, and determine such dispute within two days after such noniina- °- ^®" tion, exclusive of Sundays; and the determination of such arbitrators shall be final and conclusire. S. 6. And be it further enacted, That in all cases where complaints are made Place for tho respecting bad warps or utensils by workmen, the place of meeting of the referees nii;«tii)g of shall be at or as near as may be to the place where the work shall be carrying on, *" "'°'"'- and in all other cases at or as near as may be to the place or places where the work has been given out. S. 7. Provided also, and be it further enacted, That if any person so com- Attend.inca jdaining as aforesaid shall not attend, or send some person on his or her behalf at of parties, the time and place appointed by such justice of the peace, for the purpose of naming such persons as aforesaid, such person shall not in such case be eatitled to the benefit of this act ; and if any person against whom any such complaint shall have been made as aforesaid shall nut attend, or send some person on his or her behalf, the justice of the peace shall thereupon nominate a person for him out of such persons so proposed as aforesaid. S. 8. And be it further enacted, that the said arbitrators and referees shall Investiga- meet at the time and place fixed by the justice of the peace by whom such referees *''"^ of the were appointed, and shall, by inspection of the work in regard to which the ■^•""P'*"^''' dispute may hare arisen, by hearing and examining the parties, or any other persons on their behalf, or that attend to give evidence respecting the matters in dispute, upon oath (which the said arbitrators and referees are hereby empowered to administer), or otherwi.se, or by otherwise ascertaining the true state of the case, in such manner as to such arbitrators and referees shall appear necessary, proceed to determine the matter or matters in dispute referred to them ; and the award to be made by such arbitrators and referees shall be final and conclusive between the parties without being subject to review or challenge by any court or authority whatsoever. S. 9. And be it further enacted. That it shall be lawful for any arbitrator or Arrest and arbitrators, referee or referees, and he or they are hereby authorized and required commit- at the request in writing of any of the parties, to issue his or their summons to refractory any witness or witnesses to appear and give evidence before such arbitrator or wituessea. arbitrators, referee or referees, at the time and place appointed for hearing and determining any such dispute, and which time and place shall be specified in such summons ; and if any person, so summoned to appear as a witness as aforesaid, shall not appear before such arbitrator or arbitrators, referee or referees, at the time and place specified in such summons, or ofier some reasonable excuse for default, or, appearing according to such summons, shall not submit to be examined as a witness, and give his evidence before such arbitrator or arbitrators, referee or referees, touching the matter of such dispute, then and in every such case it shall be lawful for any one or more of his Majesty's justices of the peace acting in and for the county, stewartry, riding, division, barony, city, burgh, town, or place, where such dispute shall have arisen, and they are hereby authorized, (proof ou oath, in the case of any pei"son not appearing according to such summons, having been first made before such justice or justices of the due service of such summons on every such person by delivering the same to him, or by leaving the same twenty-four hours before the time appointed for such person to appear before such arbitrator or arbitrators, referee or referees, at the usual place of abode of such person), by warrant under the hands of any such justice or justices to commit any such person so making default in appearing, or appearing and refusing to give evidence, to some prison within the jurisdiction of any such justice or justices there to remain without bail or mainprize, for any time not exceeding two calendar months nor less than seven days, or until such person shall submit himself to be examined, and give his evidence before such arbitrator or arbitrators, referee or referees, as aforesaid : Provided always that in case such dispute shall be heard and deter- mined before such offender shall submit to be examined, and give evidence as aforesaid, then and in every such case he, she, or they shall be imprisoned to the full term of such commitment. S. 10. And be it further enacted, That in case such arbitrators and referees Adjourn- so appointed cannot agree upon and decide such matter or matters in dispute meutof the 80 referred as aforesaid, or shall not make aud sign their award within three days fjora'the after the date of the order of such justice certifying their appointment, then the referees to said arbitrators and referees shall, without delay, go before the justice by whom justice. 3 I 850 AI'I'ENDIX 01? STATOTES. 5 Geo. IV. c. 96. Proceeding where one referee re- fuses to go before the justice. Manufac- turer not to act as jus- tice. Disputes may be ad- justed by any other mode of arbitration upon which the parties may agree. Partners, agents, and servants of masters to be con- sidei'ed priuclpals. Masters not resident on the sjiot may depute another person to act for them. Provision for the case of the mas- ter becom- ing bank- rupt after proceedings commenced. tbey were appointed, and in case of his absence or indisposition, before any otter of his Majesty's justices of the peace acting in and for the county, stewartry, riding, division, barony, city, burgh, town, liberty or place, and residing nearest to the place whei'e the meeting to settle such dispute shall have taken place, and shall state to such justice or justices who may be present tlie points in difference between them the said arbitrators and referees, which jxiints in difference the said justice or justices shall and is and are hereby authorized and required to hear and determine upon the statement of the arbitratora and referees ; and the said justice or justices is and are hereby directed aud required to settle and deter- mine the matter in dispute v/ith all possible dispatch, and in all cases within the space of two days after the expiration of the time hereby allowed to the arbitra* tors and referees to make and sign their award ; and the determination of such justice or justices shall be final and conclusive between the parties so differing as aforesaid, without being subject to review or challenge by any court whatsoever. S. 11. And be it further enacted, That if either arbitrator or referee shall neglect or refuse to go before such justice of the 'peace in the manner herein directed, it shall and may be lawful for such justice, after summoning the arbitrators to attend him, to determine the matter or matters in dispute, upon the statement and representation of either of the arbitrators who shall come before him. S. 12. Provided always, and be it further enacted, That no justice of the peace, being also a master manufacturer or agent, shall act as such justice under this act. S. 13. Provided always, and be it further enacted. That as well in all such cases of dispute as aforesaid as in all other cases, if the pai'ties mutually agree that the matter in dispute shall be arbitrated and determined in a different mode to the one hereby prescribed, such agreement shall be valid, and the award and determi- nation thereon final and conclusive between the parties ; and the same proceedings of distress, sale, and imprisonment, as hereafter mentioned, shall be had towards enforcing such award (by application to any justice of the peace of the county, stewartry, riding, division, barony, city, town, burgh, or place within which the parties shall reside), as are by this act prescribed for enforcing awards made under and by virtue of its provisions. S. 14. Provided always, and be it further enacted, That where any work shall have been delivered to any workman by the agent or servant of any master or masters, to be when finished delivered to such agent or servant, and also where two or moi-e persons shall carry on the business of such manufacture as partners, in every such case respectively the like proceedings shall and may be had and made against such agent, servant, or any partner, and shall be as effectual as if the same had been had and made against the principal or all the partners ; and all the said persons respectively shall obey the award made thereupon, and all such order or orders as shall be made by the said justice or justices in or respecting the matters in dispute, and shall be subject to the same proceedings and conse- quences for refusing or delaying to abide by or perform the sfime, as if the pro- ceedings had been had against the principal, or against all the jiartuers. S. 15. Aud he it further enacted. That it shall be lawful in all cases for any master or workman by writing under his hand to authorize any person to act for him in submitting to arbitration aud attending arbitrators or justices touching the matter of any arbitration. S. 16. Provided also, and be it further enacted, That in all cases where any proceedings may be had against a master or masters under this act, or where such proceedings shall have been commenced, and the master or masters shall become or be bankrupt, or any assignment of his or their estate or effects shall have been made under the said bankruptcy, or otherwise by deetl or in law, the factor or trustee upon or the assignee or assignees of such estate or efl'ects shall be liable to the proceedings authorized by this act against the master or masters, as fully as the master or masters was or were before the bankruptcy or assigument ; and such proceedings may be commenced or carried on against such factor, trustee, assignee, or assignees, who shall fulfil and abide by the award made thereupon, and all such orders or order as shall be made by the said justice or justices in or respecting the matters in dispute, and shall be subject to the same proceedings and consequences for wilfully refusing or delaying to abide by or perform the same, as if the proceedings had been had against the master or masters before his or their bankruptcy, or the assigument of his or their estate or efi'ecls ; provided MASTERS AND WORKMEN. 851 that all suras of money to bo paid in pursuance of such award or orders sliall be ' ^^o«^^' recoverable only out of the estate or efl'ects of such master or masters, and not out " of the proper money of such ftictor, trustee, assignee, or assignees. S. 17. And be it further enacted, That where any married woman or infant In whose under the age of twenty-one years shall have cause of com])Iaint in any of the cases "■'^"'? P''o- provided for by this act against any master or masters, his or their agent or ser- .si^iau'bo vant, or factor or trustee, or assignee or assignees as aforesaid, such complaint may where the be lodged and all further proceedings thereupon had bj' and in the name of the complainant husband of such married woman, and of the father, or, if dead, of the mother, or, 't* "'*'"' '•^DLE. Fot'm of the award to he written at tliefoot or upon the hach of the order of the justices of the peace co'tifying the reference. We, I. K. and L. M. \_nafne and describe the referees], the referees appointed to settle the matters in dispute between the parties within named [or I. K. , one of the referees so appointed; or L. M., the other i-eferee appointed, having failed to attend ; or I., N. 0. the justice, as the case may be], do hereby adjudge and determine that [here set forth the determination : to which the referee or refereesy or justice, as the case may be, shall subscribe their names}. Form of endorsement, extending the time limited for mahing the awajii. We, A. B. and G. D., parties to the within reference, do hereby agree to extend the same to the day of inclusive. Witness our hands this day of Witness. A. B. C. J). Form of achnowledgment of fulfilment of the award, to 8c written at the foot or on the back thereof. I, A. B., do hereby acknowledge that the above award hath been fulfilled by C. D., who is hereby dischai-ged of the same. Witness my hand this day of Witness. A. B. Form of the oath to be administered bij the arbitrators or justice to the 2^arties and ivitnesses under the act. The evidence that you shall give before us, the arbitrators appointed by A. B. and C. D. [the parties] to determine the matters in ditference between tliem, under and by virtue of an act passed in the fifth year of the reiga of King George the Fourth intituled "An Act" [state the title of this act], shall be the truth, the whole truth, and nothing but the truth. So help you God. 854 APPENDIX OF STATUTES. 5 Geo. IV. Form of commilment of a person summoned as a witness Ijcfore tJie arbitrators, c 96. "^ ^ -f J Whereas proof on oath hath been made before me, one of his Majesty's justices of the peace for the county [or riding, stewartry, division, city, burgh, liberty, town, or place] of on this day of that A. B. hath been duly summoned, and hath neglected to appear and give evidence before C. D. and E. P. the arbitrators appointed by and between G-. H. and I. K. to determine the matters in dispute between them at in the county [or riding, stewartry, division, city, burgh, liberty, town, or place] of on the day of under and by virtue of an act made in the fifth year of the reign of his present Majesty, intituled "An Act" [here set forth the title of this act\ and the said A. B. being required by me, the said justice, to give evidence before the said arbitrators, and still refusing so to do, therefore I, the said justice, do hereby, in pursuance of the said act, commit the said A. B. to the [describing the prison and the house of correction\ there to remain without bail or mainprize for his [or her] offence aforesaid until he \or she] shall submit himself [or herself] to be examined, and give his [or her] evidence before the said arbitrators, touching the matters referred to them as aforesaid, or shall otherwise be discharged by due course of law : And you, the [constable cw other peace officer or officers to whom the vjarrant is directed^ are hereby authorized and required to take into your custody the body of the said A. B., and him [or her] safely to convey to the said prison [or house of cor- rection], and him [or her] there to deliver to the gaoler [or keeper] thereof, who is hereby authorized and required to receive into his custody the Ijody of the said A. B., and him [or her] safely to detain and keep, pursuant to this commitment. Given under my hand this day of in the year of our Lord [This commitment to he directed to the 'proper peace officer, and the gaoler [or keeper^ of the prison [or house of correct ionW Form of warrant of distress. To the constable of Whereas of tinder an award made by on the day of in the year of our Lord pursuant to an act passed in the fifth year of the reign of his present Majesty, intituled "An Act" [state the title of this act], is liable to pay to of the sum of and also the sum of and the said having refused or neglected to pay the same for the space of two days and upwards subsequent to the making such award, these are therefore to command you to levy the said sum of by distress and sale of the goods and chattels of the said ; and I do hereby order and direct the goods and chattels so to be distrained to be sold and dispo.sed of within days, unless the said sum of for which such distress shall be made, together with the reasonable charges of taking and keeping such distress, shall be sooner paid ; and you are also hereby commanded to certify to me what you shall do by virtue of this my warrant. Given under my hand and seal at the day of Form of the constable's return to the warrant of distress. I constable of do hereby certify to justice of the peace of that I have made diligent search for, but do not know of, nor can find any goods and chattels of by di,stress and sale whereof I may levy the sum of pursuant to his warrant for that purpose. Dated the day of in the year of our Lord . Given under my hand this day of in the year of our Lord Form of commitment thereupon to the house of correction. Here name ) To the constable of and also to the keeper of the the cotinty, \ house of correction of . MASTERS AWD WORKlVrEN, 855 Whereas of under an award made hj 5 Geo. IV. on tl>e day of in the year of our Lord °- ^'^- pursuant to an act passed in the fifth year of the reign of his present Majesty, intituled "An Act" [state the title of this act], became liable to pay to the sura of and also the sum of for costs, time, and e^spenses, making together the sum of and having refused or neglected to pay the same for the space of two days and upwards subsequent to the making of such award, my warrant was, according to the provisions of the said act, duly made and issued for the levying tlie said sum of by distress and sale of the goods and chattels of the said : And whereas it appears by the return of constable of - dated the day of that he hath made diligent search for, but doth not know of, nor can find any goods and chattels of the said by distress and sale whereof the said sum of ' may be levied pursuant to my said warrant : These are therefore to command you the said constable of to apprehend the said and convey him to the said house of correction at aforesaid, and deliver him there to the keeper of the Siiid house of correction ; and these are also to command you, the keeper of tlie said house of correction, to receive him the said into the said house of correction, and there keep him without bail or mainprize for the space of months, unless the said sum of so ordered to be paid as aforesaid, shall be sooner satisfied, with all reasonable expenses. Given under my hand and seal at tbe day of Form of commitment where the warrant of distress is withTield. Here name ) To the constable of and also to the keeper of the the county. \ house of correction at Whereas of Bnder an award made by on the day of in the year of our Lord pursuant to an act passed in the fifth year of the reign of his present Majesty, intituled "An Act" [state the title of this act], became liable to pay to the sum of and also the sum of for costs, time, and trouble, making together the sum of which he has refused or neglected to pay for the space of two days and upwards subsequent to the making of such award : And whereas it appears to me that the recovery of such sum and warrant of distress and sale of the goods and chattels of the said will be attended with consequences ruinous or in an especial manner injurious to the defaulter [and his family, ;/ a»)/], and I have therefore determined to withhold such warrant and to commit the said to prison, pursuant to the said act : These are thei-efure to command you, the said constable of to apprehend the said and convey him to the said house of correction at aforesaid, and to deliver him there to the keeper of the said house of correction : And these are also to command you, the keeper of the said house of correction, to receive him the said into the said house of correction, and there keep him without bail or mainprize for the space of months, unless the said sum of so ordered to be paid as aforesaid shall be sooner satisfied, with all reasonable expenses. Given under my hand and seal at the day of 7 Will. IV. & 1 Vict. c. 67. 7 Will. iv. & 1 Vict. An Act to ajnend an Act of the fifth year of his 3Iajesty, Kinfi George the ^' ^'' Fourth, for consolidating and amending the Laws relatire to the arbi- tration of disputes between blasters and Workmen, [\ath July, 1837. l Whereas an act was passed in the fifth year of the reign of his Majesty, 5 G. 4. c. 06. King Geoi'ge the Fourth, intituled " An Act to consolidate and amend the Laws relative to the arbitration of disputes between Masters and Workmen :" and 856 APPENDIX OF STATUTES. r Will. IV. '» tion any person making the same shall wilfully and corruptly give any false '"^''■"®^**' evidence, every person so offending shall be deemed and taken to be guilty of perjury, and shall be prosecuted and punished accordingly. S. *21. And be it enacted, that all the provisions of this act, in as far as the Provisions same can or may be applicable, shall apply to the trustees and managers of any ^'^ ''''^ ="^' ^° government annuity society, and to the parties purchasing annuities, and to the u,' .T. rules and regulations to be made for carrying the same into effect (b). of auuuiUes. (a) This act is now repealed. (b) This act is now repealed. 858 APPENDIX OF STATUTES, 20 Si 27VrcT. c. 87. Reference of disputes to baixister appointed to certify rules. Arbitrator empowered to inspect books and administer oath. ■ 26 & 27 Vict. c. 87. An Act to consolidate and ajncnd the laws relating to Savings' Banks. \2mi July, 1863.} [S. 1. After the 2QtJb Noremher, 1863, the acts and parts of acts in the Schedule A are repealed — but not so as to invalidate appointments under, or jn'oceedlngs had under former acts. The statiotes 9 Geo. I V. c. 92, and the 7 cfc 8 Vict. €, &3, are among others wholly repealed.^ S. 48. If any dispute shall arise between the trustees and managers of any Savings' Bank and any individual depositor therein, or any executor, admini- strator, next of kin, or creditor, or assignee of any depositor who may become bankrupt or insolvent, or any person claiming to be such executor, administrator, next of kin, creditor, or assignee, or to be entitled to any money deposited in sucb Savings' Bank ; then, and in every such case, the matter in dispute shall be referred in writing to the barrister-at-law appointed under the said hereby repealed acts, or this act, who shall have power to proceed ex parte on notice in writing to the said trustees or managers left or sent through the post-office by the said barrister to the office of the said Savings' Bank ; and whatever award, order, or determination shall be made by the said barrister shall be binding and conclu- sive on all parties, and shall be final to all intents and purposes, without any appeal. S. 49. On any such reference, it shall be lawful for the said barrister, and he is hereby authorized, to inspect any book or books belonging to the said Savings' Bank relating to the matter in dispute, and to administer an- oath to any witness appearing before him, or to take the affirmation in cases where affirmation is allowed by law instead of oath ; and if, upon such oath or affirmation, any persons making the same shall wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury, and shall b©' prosecuted and punished accordingly. ACTS CONCEUNING ECCLESIASTICAL AND COLLEGIATE LANDS: 2*3 Will. 2 & 3 "Will. IV. c. 80. IV. c. 80. An Act to antliorize the identifying of Lands and other PosscssioJis of certain Eeclesiastical and Collegiate Corporations. [Srd August, 1832.] Whereas the archbishops and bishops of the several dioceses, and the deans, and deans and chapters, archdeacons, prebendaries, and canons, and other digni- taries and officers of the several cathedral and collegiate churches and chapels, and the masters or other heads and fellows and scholars or other societies of the several colleges and halls in the universities of Oxford and Cambridge, and of the collegesof Winchester and Eton, are proprietors of divers manors, messuages, lands, tenements, tithes, and hereditaments, and in many cases the boundaries or quan- tities, and the identity of lands within such manors, and of such messuages, lands, tenements, and hereditaments, and of lands subject to any such tithes, or some part or parts thereof, are unknown or disputed, and it would be a greai benefit, as well to such proprietors respectively, as to their lessees, copyhold or cu.stomary tenants, sub-lessees or under-tenants, their, his, or her heirs, execu- tors, administrators, or assigns, if the said messuages, lands, tenements, tithes, and hereditaments were identified, and the boundaries and quantities thereof ascertained and finally settled : be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, that from and after the passing of this act it shall and may be lawful Archbishops to and for any archbishop, bishop, dean, dean and chapter, or other corporation ECCLESIASTICAL AND COLLEGIATE LANDS. 859 aggregate or sole hereinbefore mentioned, to enter into an agreement of reference ^.y'^'^^* or deed of submission with his or their lessee or lessees, copyhold or customary ' ' tenant or tenants, sub-lessee or sub-lessees, under-tenant or under-tenants, his, bishops her, or their heirs, executors, administrators, or assigns, or with tlie owner or deans and owners of any other hereditaments adjoining to or intermixed with the said cliaptors, manors, messuages, lands, tencniouts, tithes, or hereditaments, whereby it shall f '^i'.r"''to be agreed that any unknown or disputed boundaries or quantities of such manors, ajireemonta messuages, lands, tenements, tithes, or hereditaments, or any part thereof, shall or deeds of be referred to the adjudication of such person or persons as may be agreed upon reference and named by the said archbishop, bishop, dean, dean and chapter, or other lessees to corporation aggregate or sole, and by his or their lessee or lessees, copyhold or ascertain customary tenant or tenants, snb-lessee or sub-lessees, under-tenant or under- <*"'' settle tenants, his, her, or their heirs, executors, ailministrators, or assigns, or by such !}• "?^^^° '^'^ owner or owners of any other hereditaments situate as aforesaid ; and that such boundaries referee or referees shall be fully authorized to make or cause to be made surveys, orquamitiea maps, and admeasurements of the said manors, messuages, lands, tenements, °' m-iuors tithes, and hereditaments, or any part thereof, and to summon any persons as '' '^'"** ■witnesses, and examine them on oath (which oath he or they are hereby authorized I^eferees to to administer), touching or concerning any of the matters or things so referred as veys, maps, aforesaid, or in any way relating thereto ; and also to call for the production of all and admea- surveys, maps, deeds, books, papers, and writings in the custody or power of any suremeuts ; of the parties to the said refei-ence, or of any other person or persons, of or ^nd^ex^'^^'^ concerning the matters in question ; and the said referee or referees, having well amine wit- and sufficiently investigated and considered the same, and all matters to him or uessus up(jn them referred, shall and may make his or their award or awards in writing, °^\K' .'■'*,, under his or their hand and seal or hands and seals with a map or maps drawn (ieeds romo- S. 67. If the arbitrators shall determine that the sum so deposited was sufficient, '■'^'"^ '" Pi'y the costs of, and incident to such arbitration, to be determined by the arbitrators, pame'wi'tliin shall be in the discretion of the arbitrators ; but if the arbitrators shall determine fourteen that a further sum ought to be paid or deposite<.l by the promoters of the under- days. taking, all the costs of and incident to the arbitration shall be borue by the Costs oft 'c '^' . ,, 1 , , . •' arbitration promoters ot the undertaking. S. 68. If any party shall be entitled to any compensation in respect of any To be settled lauds, or of any interest therein, which shall have been taken for or injuriously tjo^ or jm-V affected by the execution of the works, and for which the promoters of the under- at tlieojitifn taking shall not have made satisfaction under the provisions of this or the special of the p>irty act, or any act incorporated therewith, and if the compensation claimed in such ciMC"ing case shall exceed the sum of fifty pounds, such party may have the same settled tiou. either by arbitration or by the verdict of a jury, as he shall think fit ; and if such party desire to have the same settled by arbitration, it shall be lawful for him to give notice in writing to the promoters of the undertaking of such his desire, stating in such notice the nature of the interest in such lands in respect of which he claims compensation, and the amount of the compensation so claimed therein ; and unless tue promoters of the undertaking be willing to pay the amount of com- pensation so claimed, and shall enter into a written agi'eement for that purpose •within twenty-one days after the receipt of any such notice from any party so entitled, the same shall be settled by arbitration in the manner herein provided ; or if the party so entitled as aforesaid desire to have such question of compensation settled by a jury, it shall be lawful for him to give notice in writing of such his desire to the promoters of the undertaking, stating such particulars as aforesaid, and unless the promoters of the undertaking be willing to pay the amount of compensation so claimed, and enter into a written agreement for that purpose, they shall, within twenty-one days after the receipt of such notice, issue their warrant to the sheriff to summon a jury for settling the same in the manner herein provided, and in default thereof they shall he liable to pay to the party so entitled as aforesaid the amount of compensation so claimed, and the same may be recovered by him, with costs, by action in any of the superior courts. [By s. 105, amount of compensation in respect of common or waste lands, and by s. 114, as to paying off mortgages prematurely, to be settled as in other cases of disputed compensation.] And with respect to interest in lands which have by mistake been omitted to Interetts , 1 1 1 -1 . 1 r 11 omitted to be be purchased, be it enacted as lollows : nurcfiased S. 124. If, at any time after the promoters of the undertaking shall have promoters entered upon any lands which under the 'provisions of this or the special act, or of the any act incorporated therewith, they were authorized to purchase, and which shall uudertAking be permanently required for the purposes of the special act, any party shall appear ^^"pui^haso to be entitled to any estate, right, or interest in or charge affecting such lands im^rosts iu which the promoters of the undertaking shall through mistake or inadvertence isnda, the have failed or omitted duly to purchase or to pay compensation for, then, whether I^.'J*^*^^'^;*®^? the period allowed for the purchase of lands shall have expired or not, the pro- n^_.^y'"^avo moteis of the undertaking shallremain in the undisturbed possession of such lands, been provided, wathin six months after notice of such estate, right, interest, or charge, omitte.i by in case the same shall not be disputed by the promoters of the undertaking, or in mistake, case the same shall be disputed, then within six months after the right thereto shall have been finally established by law in favour of the party claiming the same, the promoters of the undertaking shall purchase or pay compensation for the same, and shall also pay to such party, or to any other party who may establish a right thereto, full compensation for the mesne profits or interest which would have accrued to such parties respectively in respect thereof during the interval between the entry of the promoters of the undertaking thereon and the time of the payment of such purchase-money or compensation by the promoters of the 3 K 2 APPENDIX OF STATUTES. 8 & 9 Vicf. c. 18. How value of such lands to be estimated. Sale of superfluous land. Differences fs to price to be f-ettled by arbitra- tion. undertaking, so far as such mesne profits or interest may be recoverable in law or equity ; and such purchase-money or compensation shall be agreed on or awarded and paid in like manner as according to the provisions of this act the same respec- tively would have been agreed on or awarded and paid in case the promoters of the undertaking had purchased such estate, right, interest, or charge before their entering upon such land, or as near thereto as circumstances will admit. S. 125. In estimating the compensation to be given for any such last-mentioned lands, or any estate or intere.st in the same, or for any mesne profits thereof, the jury, or arbitrators, or justices, as the case may be, shall assess the same accord- ing to what they shall find to have been the value of such lands, estate, or interest and profits, at the time such lands were entered upon by the promoters of the undertaking, and without regard to any improvements or works made in the said lands by the promoters of the undertaking, and as though the works had not been constructed. And with respect to lands acquired by the promoters of the undertaking under the provisions of this or the special act, or any act incorporated therewith, but which shall not be required for the purposes thereof, be it enacted as follows : [SS. 127, 128, 129, 7Jroi'iVZe that they shall be sold, and that the offer of •purchase shall first he made to the owner of the land from which they were oririinally taJcen, then to the owners of adjoining lands.] S. 130. If any jjerson entitled to such pre-emption be desirous of purchasing any such lands, and such person and the promoters of the undertaking do not agree as to the price thereof, then such price shall be ascertained by arbitration, and the costs of such arbitration shall be in the discretion of the arbitrators. 8 & 9 Vict. c. 20. Arbitration. .Appoint- TOent of arbitr.^tor8 when ques- tions are to be deter- mined by arbitration. 8 & 9 Vict. c. 20. An Act for consolidating in one Act certain provisions usually inserted in Acts authorizing the making of Railways (e). [8t where the mode *^' ^'^' of determiuiiig the same is specially provided for), and in case of any matter ~. I which by this act is authorized or directed to Imj settled by arbitration, tlieu, rJLvviua to unless both parties concur in the appointment of a single arbitrator, each party, arbitration, on the request of the other, shall appoint an arbitrator, to whom the matter shall be referred ; and every such appointment wheu made on the behalf of tiie Local Board of Health, shall (in the case of a non-corporate district) be under their seal and the hands of any five or more of their number, or under the common seal in case of a corporate district, and on the behalf of any other party under his hand, or if such party be a corporation aggregate under the common seal thereof ; and such appointment shall be delivered to the arbitrators and shall be deemed a submission to ai-bitration by the parties making the same ; and after the making of any such appointment the same shall not be revoked without the consent of both parties, nor shall the death of either party operate as a revocation ; and if for the space of fourteen days after any such matter shall have arisen, and notice in writing by one party who has himself duly appointed an arbitrator to the other party, stating the matter to be referred, and accom- panied by a copy of such appointment, the party to whom notice is given fail to appoint an arbitrator, the arbitrator appointed by the party giving the notice shall be deemed to be appointed by and shall act on behalf of both parties ; and the award of any arbitrator or arbitrators appointed in pursuance of this act shall be binding, final, and conclusive upon all persons, and to all intents and purposes whatsoever. S. 124. And be it enacted, that if before the determination of any matter so Death, ^'ot of ^ under their hands an umpire ((/}, and if the person appointed to be umpire die, "iie'i'arties- or become incapable to act, the arbitrators shall forthwith appoint another person in his stead ; and in case the arbitrators neglect or refuse to appoint an umpire for seven days after being requested so to do by any party to the arbitration, the Court of General or Quarter Sessions shall on the application of any such By Quarter l^arty, appoint an umpire ; and the award of the umpire shall be binding, tinal. Sessions, and conclusive upon all persons and to all intents and purposes whatsoever ; and in case the arbitrators fail to make their award within twenty-one days after the day on which the last of them was appointed, or within sueh extended time, if any, as shall have been duly appointed by them for that purpose, the matters referred shall be determined by the umpire ; and the provisions of this act with respect to the time for making an award, and with respect to extending to the same in the case of a single arbitrator, shall apply to an umpirage. S. 126. Provided always, and be it enacted, that the time for making an Time within award under this act shall not be extended beyond the period of three months wliichaward from the date of the submission or from the day on which the umpire shall have ™"jy_ * been appointed (as the case may be). S. 127. And be it enacted, that any arbitrator, arbitrators, or umpire appointed Poiyer to by virtue of this act, may require the production of such documents in the posses- aJ'bitrator to sion or power of either party as they or he may think necessary for determining dtietion of the matters referred, and may examine the parties or their witnesses on oath ; documents, and the costs of and consequent upon the reference shall be in the discretion of (a) Holdsworth v. Barabain, 31 L. J. Q. B. 145, appointment of umpire ; S. C. in error, Ho'ldswonh v. Wilson, 32 h. J. Q. B. 289. APPENDIX OF STATUTES. 11 &. 12 Vict, c. 63. As to costs of reference. Submission may be made a rule of court. Declaration to be made by arbitra- tor and umpire. Compensa- tion in case of damage by Local Board. the arbitrator or arbitrators, or of the umpire (in case the matters referred are determined by an umpire under the power hereinbefore contained in that behalf) ; and any submission to arbitration under the provisions of this act may be made a rule of any of the superior courts, on the application of any party thereto. S. 128. And be it enacted, that before any arbitrator or umjdre shall enter upon any such reference as aforesaid, he shall make and subscribe the following declaration before a justice of the peace ; (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 Public Health Act, 1848. "A. B." And such declaration shall be annexed to the award when made ; and if any arbitrator or umpire shall wilfully act contrary to such declaration, he shall be guilty of a misdemeanour. S. 144. And be it enacted, that full compensation shall be made, out of the general or special district rates to be levied under this act, to all persons sustain- ing any damage by reason of the exercise of any of the powers of this act ; and in case of dispute as to amount, the same shall be settled by arbitration in the manner provided by this act ; or, if the compensation claimed do not exceed the sum of twenty pounds, the same may be ascertained by and recovered before justices in a summary manner (h). 12 & IS Vict. c. 45. Eeferonce after notice of appeal to Quarter Sessions by judge's order or consent. 12 & 13 Vict. o. 45. An Act to amend the procedure in courts of General and Quarter Sessions of the Peace in England and Wales, and for the better advancement of justice in cases within the Jurisdiction of those courts. [28th July, 1849.] S. 12. And whereas, by a statute pas?ed in the 10th year of King William III., intituled "An Act for determining differences by Arbitration," provision was made for rendering more effectual the awards of arbitrators in the case of contro- versies and disputes, for which thei-e 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 Quarter Sessions of the Peace : Be it enacted, that at any time after notice given of appeal to any Court of General or Quarter Sessions of the Peace, against any order, rule, or other matter (excepit a summary conviction, or an order in bastardy, or any proceeding under or by virtue of any of the statutes relating to Her Majesty's revenue of excise or customs, stamps, taxes, or post-office), for which the remedy is by such appeal, it shall be lawful for the parties by themselves or their attor- neys, 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 themselves respectively to submit to the award or umpirage of such person or persons ; and thereupon such and the like proceedings in all respects shall and may be taken with regard to submissions under this act, and to enforcing awards or umpirages thereupon, and to setting aside the same, as are authorized by the said act of King William III., ■with regard to the cases therein provided for ; and every award or umpirage duly made under this act shall be as binding and effectual to all intents as if the same had been a regular judgment 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. (h) See The Queen v. The Burslem Local Board of Health, 28 L, J. Q. B. 345 ; 29 L. J. Q. B. 21 ; in error, 29 L. J. Q. B. 242 ; also in 1 E. & E. 1077. QUARTER SESSIONS. ^73 S. 13. And be it enacted, that it shall be lawful for any Court of General or 12 & 13 Vict. Quarter Sessions of the Peace before which any appeal (except against a summary ' conviction, or an order iu bastardy, or any proceeding under or by virtue of any Reference of the statutes relating to Her Majesty's revenue of excise or customs, stanips, by order of taxes, or post-office), shall be brought to order, with con.scnt of the parties or Court of their attorneys, that the matter or matters of such appeal be referred to arbitra- Sessions. tion to such person or persons, and in such manner and on such terms as the said court shall think reasonable and proper ; 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 effectual to all intents as if given by the said court : Provided always, that the Court of Queen's Bench may, if it think fit, on application within the term next after the making and publication of such award or umpirage, either refer the case back again to the said arbitrator, arbitrators or umpire, or wholly set aside the award or umpirage already made, and may in the latter event order the Court of General or Quarter Sessions to enter continuances and hear the appeal. _ Where re- S. 14. And be it enacted, that if upon any reference to arbitration under this fereuce act it shall be made to appear to the Court of Queen's Bench that either from the abortive, death of the arbitrator or arbitrators or umpire, or from any other cause, it has ^^'^^"'^ been impossible that an award or umpirage can be made, it shall be lawful for ^,y^^y ggg. the said court to order the Court of General or Quarter Sessions of the Peace to sions to enter continuances and hear the appeal. ^^^^ appeal S. 15. And be it enacted, that the several provisions relating to arbitrations 3* 4 Will, contained in an act of the fourth year of King William IV., intituled "An Act {,eapp1t'° for the further Amendment of the Law, and the better Advancement of Justice," cable to shall be deemed and taken to be applicable to arbitrations under this act ; and references in every such arbitration, the arbitrator or arbitrators or 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. to have power of amcud- meuC 12 & 13 Vict. o. 106. ^^ c. m"^" ay An Act to amend and consolidate the Laws relating to Bankrupts. [Ist August, 1849.] S. 153. That the assignees, with the leave of the court first obtained, upon Assignees application to such court, but not otherwise, may commence, prosecute or defend FJ^J^'"*"-'" any action at law or suit in equity which the bankrupt might have commenced, deieild prosecuted or defended, and in such case the costs to which they may be put in actions or respect of such suit or action shall be allowed out of the proceeds of the estate suits and and effects of the bankrupt ; and with like leave of the court, after notice to f^^^^bts such creditors, and subject to such conditions (if any), as to obtaining the consent due to the of creditors, as the court shall think fit to direct, the assignees may take such estate, or reasonable part of any debts due to the bankrupt's estate as may by composition p'l^Jg'',^"^^^. be gotten, or may give time, or take security for the payment of such debts, and |,ltl^^ti^,^, may submit to arbitration any difference or dispute between the assignee and any other person for or on account or by reason of anything relating to the estate and effects of the bankrupt. S. 154. That if the assignee shall agree in manner aforesaid to refer any Such re- matter in dispute to arbitration, such agreement of reference may be made a 1^®^^^^^^®^'^''^ rule of any of Her Majesty's superior courts of law at Westminster, whether such „^i™of^* agreement contain a clause to that effect or not. court. 874 APPENDIX OF STATUTES. 17 .fe 18 Vict. c. 125. Power to court or judge to direct arbi- tration be- fore trial. Special case may be stated, and question of luct tried. Arbitrator may state special case. Power to judge to direct arbi- tration at time of trial ■when issues of fact left to his decision. Proceedings before and ]-ower of such arbi- trator. Power to send back to arbitra- tor. 17 & 18 Vict. c. 125. An Act for the further amendment of the process^ practice, and mode of pleading in and enlarging the jurisdiction of the Superior Courts of Common Law at Westininster, and of the Superior Cotirts of Common Law of the counties palatine of Lancaster and Durham. {\2th August, 1854.] [The Common Laio Procedure Act, 1854.] S 3. If it be made appear at any time after the issuing of the writ, to the satisfaction of the court or a judge, upon the 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 lawftil 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 the judge of any county court (z), 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 finding of a jury upon the matter referred. S. 4. If it shall appear to the court or judge that the allowance or disallowance of any particular item in such account depends upon a question of law tit to be decided by the coui-t, or upon a question of fact fit to be decided by a jury, or by a judge, upon the con.sent of both parties as hereinbefore provided, it shall be lawful for 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 arbiti'ator as conclusive. S. 5. 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 Westminster, 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. S. 6. 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 tiied before him, it shall be lawful for him, at his discretion, to order that such matter of account be referred to an arbitrator appointed by the parties, or to an officer of the court, or, in country causes, to a judge of any county court (i), upon such terms as to costs, and otherwise, as such judge shall think reasonable ; and the award or certificate of such referee shall have the same effect as hereinbefore provided as to the award or certificate of a referee before trial ; and it shall be competent for the judge to proceed to try and dispose of any other matters in question, not referred, in like manner as if no reference had been made. S. 7. The proceedings upon any such arbitration as aforesaid shall, except otherwise directed hereby or by the submission or document authorizing the reference, be conducted in like manner, and subject to the same rules and enactments, as to the power of the arbitrator and of the court, the attendance of witnesses, the production of documents, enforcing or setting aside the award, and otherwise, as upon a reference made by consent under a rule of court or judge's order (/). S. 8. In any case where reference shall be made to arbitration as aforesaid, the court or a judge shall have power at any time, and from time to time, to remit the matters referred, or any or either of them, to the re-consideration and (?) Repealed .as to county court Jiidge, by the stat. 21 & ?2 Vict c. 74. (i) Repealed as to county coiut juiigcs, by the stat. 21 & 22 Vict. c. 74. (0 Hogg v. Burgess, 3 U. & N. 293 ; 8. C. 27 L. J. Ex. 818. THE COMMON LAW rROCEDURE ACT, 1854. 875 re-detcrmination of the said arbitrator, upon such terms, as to costs and other- ^^ * ^f.Y"^' wise, as to the said court or judge may seem pro])er (m). ' S. d. All applications to set aside any award made on a compulsory reference Application nndcr this act shall and may be made within the first seven days of the term to net a-sido next following the publication of the award to the parties, whether made in "^* award, 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 discharged, such award shall be final between the parties. S. 10. Any award made on a compulsoty reference under this act may, by Enforcing of authority of a judge, on such terms as to him may seem reasonable, be enforced ^^y'}''.'^^ at any time after seven days from the time of publication, notwithstanding that poriod for the time for moving to set it aside has not elapsed. set ting them S. H. Whenever the parties to any deed or instrument in writing to be here- aside, after made or executed, or any of them, shall agree that any then existing or If action future diflerences between them or any of them shall be referred to arbitration, by'oiiTparty and any one or more of the parties so agreeing, or any person or persons claiming aftcrallhavo through or under him or them, shall nevertheless commence any action at law agreed to or suit in equity against the other party or parties, or any of them, or against arbitration, any person or persons claiming through or under him or them in respect of the judge may matters so agreed to be referred, or any of them, it shall be lawful for the stay pro- court in which the action or suit is brought, or a judire thereof, on application ceediugs. by the defendant or defendants, 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 arbitra- tion, to make a rule or order staying all proceedings ia such action or suit, on such terms as to costs and otherwise as to such court or judge may seem fit : Pro- vided always, that any such rule or order may at any time afterwards be discharged or varied as justice may require. S. 12. If in any case of arbitration the document authorizing the reference pro- Ou failure of vide that the reference shall be to a single arbitrator, and all the parties do not, ari>itrat/)rs after differences have arisen, concur in the appointment of an arbitrator ; or if any judge niay' appointed arbitrator refuse to act, or become incapable of acting, or die, and the appoint terms of such document do not show that it was intended that such vacancy should single arbl- not be supplied, and the parties do not concur in appointing a new one; or if, vimpire. 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 arbi- trator ; or if any appointed umpire or third arbitrator refuse to act, or become incapable of acting, or die, and the terms of the document authorizing the reference do not show that it was intended such a vacancy should not be sup- plied, and the parties or arbitrators respectively do not appoint a new one : then in every such instance any party may serve the remaining parties or the arbi- trators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator respectively ; and if within seven clear days after such notice shall have been served no arbitrator, umpire, or third arbitrator be appointed, it shall be lawful for any judge of any of the superior courts of law or equity at Westminster, upon summonses to be taken out by the party having 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 have the like power to act in the reference and make an award as if he had been appointed by consent of all parties. S. 13. When the reference' is or is intended to be to two arbitrators, one ^hen re- appointed by each party, it shall be lawful for either party, in the case of the to'twoVfbi- death, refusal to act, or incapacity of any arbitrator appointed by him to substitute trators and a new arbitrator, unless the document authorizing the reference show that it was one party intended that the vacancy should not be supplied ; and if on such a reference one ^''j.' ^ '"^^j party fail to appoint an arbitrator, either originally or by way of substitution as party may aforesaid, for seven clear days after the other party shall have appointed an arbi- appoint ar- trator, and shall have served the party so failing to appoint with notice in writing I'ltmtorto ' ^ 1 " '■'■ ■= act alone. (m) Morris v. Moms, 6 E. & B. 383 ; S. C. 25 L. J. Q. B. '261. 876 APPENDIX OF STATUTES. 17 & 18 Vict. c. U6. Two arbi- trators may appoint umpire. Award to be made in three mouths, unless par- ties or court enlarge time. Rule to de- liver posses- sion of laud pursuant to award to be enforced as a judgment in eject- ment. Agreement or submis- sion in writing may be made rule of court, lUiless a contrary intention appear. to make the appointment, the party who has appointed an arbitrator may appoint such arbitrator to act as sole arbitrator in the reference, and aa award made by him shall be binding on both parties, as if the appointment had been by consent; provided, however, that the court or a judge may revoke such appointment on such terms as shall seem just. S. 14. When the reference is to two arbitrators, and the terms of the document authorizing it do not show that it was intended that there should not be an umpire, or provide otherwise for the appointment of an umpire, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award, unless they be called upon by notice as aforesaid to make the appointment sooner. S. 15. The arbitrator acting under any such document or compulsory order of reference as aforesaid, or under any order referring 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 .""or any juJge 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 on award, or shall Lave delivered to any party or to the umpire a notice in writing stating that they cannot agree. S. 1(3, When any award made on any such submission, document, 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 pai'ty either forthwith or at any future time, or that any such party is entitled to the posses- sion 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 tenements, or any person in possession of the same claiming under or put in possession 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. S. 17. Every agreement or submission to arbitration by consent, whether by deed or instrument in writing not under seal, may be made a rule of any one of the superior courts of law or equity at Westminster, on the application of any party thereto, unless such agreement or submission contain words purporting that the parties intend that it should not be made a rule of court ; and if in any such agreement or submission 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 authoiizing 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 jurisdiction to entertain any motion respecting the arbitration or award. ACTS RELATING TO FRIENDLY SOCIETIES. 877 ACTS RELATING TO FRIENDLY SOCIETIES. 17&18Vu.t. C. 56. 17 & 18 Vict. o. 56. An Act to mnhe further Provisions in relation to certain Friendhf Societies. ['6lst Jult/, ISoi.] [By s. 1 the act extends onhj to friendly societies, which grant policies of assur- ance payable at death exceedhig the sum of 1000/.] S. 6. All powers and provisions of any act or acts of parliament for ordering Enforcinj? and enforcing the attendance of witnesses before an arbitrator under any reference attendance made a rule of court, and for punishing disobedience to any such order sliall apply °' witnesses, to any arbitration of any difference or di.spute under or pursuant to the rules of any of the societies intended to be effected and provided for by this act for which purpose a copy of the resolution of the board of directors, or committee, or board of management of any such society authorizing such reference signed by the chairman or any director, or the secretary of such society may be made a rule of any of her Majesty's courts at Westminster. 18 & 19 Vict. o. 63. 18 & 19 Vict c. 63. An Act to consolidate and amend the Law relating to Friendhf Societies. [2'drd July, 1855.] \S. 1 repeals a number of acts, including the 10 Geo. IV. c. 5G; the id: 5 Will. IV. c. 40; the 9 <& 10 Vict. c. 27; 15 tt 16 Vict. c. 65; 17 & 18 Vict. c. 101.] [By s. 40 disputes are to be decided as directed by the rules of the society.] „ ., S. 41. In all friendly societies established under this act or any of the said putea and'^" repealed acts, all applications for the removal of any trustee, or for any other enforcing relief, order, or direction, or for the settlement of disputes that may arise or may award by have arisen in any society the rules of which do not prescribe any other mode of fo county'^ settling such disputes, or to enforce the decision of any arbitrators, or to hear or court, determine any dispute, if no arbitrators shall have been appointed, or if no deci- sion shall be made by the said arbitrators within forty days after application has been made by the member or person claiming through or under a member, or under the rules of the society, shall be made to the county court of the district within which the usual or principal place of business of the society shall be situate ; and such court shall, upon the application of any person interested in the matter, entertain such application and give such relief, and make such orders in relation to the matter of such application, as hereinafter mentioned, or as may now be given or made by the Court of Chancery in respect either of its ordinary, or its special or its statutory jurisdiction ; and the decision of such county court upon and in relation to such application as aforesaid, shall not be subject to any appeal. Provided always, that in Scotland the sheriff within his county, and in Ireland the assistant barrister within his district, shall have the same jurisdiction as is hereby given to the judge of a county court (w). THE LOCAL GOVERNMENT ACT, 1858, 21 & 22 Vict. c. 98. 21 & 22 Vict. c. 98. An Act to amend the Public Health Act, 1848, and to make further provision for the local tjovernment of toicns and populous districts. [2nd August, 1858.] S. 1. Short title, " The Local Government Act, 1858." Short Titio S. 64. "All questions referable to arbitration under the Public Health Act, IS 18, jj^tters or this act or any act incorporated therewith, may when the amount in dispute is under £20 less than £20, be determined before two justices in a summary manner," &c. tobedecided by two (n) See the 23 & 2-1 Vict, c 58. justices. 878 APPENDIX OF STATUTES. 21 & 22 Vict. c. 98. Arbitration as to iu ju- ries by woiks. What Looal Board may do after award luade. Difference between Local Board and otlier-s as to drain- age to be settled by arbitration. S. 69. [ WJien certain worlcs proposed to be done hy a local hoard interfere with the improvements of any river, canal, urd of the arbitrator so appointed shall for the purposes of this act be deemed to be ^^''^'^^■ appointed by the company so failing. Appoiut- S. 9. When the reference is made to two or more arbitrators, if before the ™*^"' °5 „ _ , , . , , . ,. , ' . , , arbitrators matters referred to them are determineil any arbitrator dies, or becomes incapable ^v Com- or unfit, or for seven consecutive days fails to act as arbitrator, the company by i.anies to' which he was appointed shall by writing under their common seal appoint an supply arbitrator m his place. S. 10. Where the company by which an arbitrator ought to be appointed in the ^elit'of" place of the arbitrator so deceased, incapable, unlit, or failing to act, fail to make urbitnitoi-s the appointment within fourteen days after being thereunto requested in writing by Board of by the other company, or by the other companies or any of them, then, on the '^■a*!*! to application of the companies or any of them, the Board of Trade may appoint an vacancies, arbitrator ; and the arbitrator so appointed by the Board of Trade shall for the Appoint- jiurposes of this act be deemed to be appointed by the company so failing. nicnt of S. 11. When any appointment of an arbitrator is made, the company making arbiii-ator the appointment shall have no power to revoke the apix)intment, witliout the pre- cable, vious consent in writing of the other company, or every other company in writing Anpoiiit- tiuder their common seal. meut of S. 12. Where two or more arbitrators are appointed, they shall, before entering umpire by on the business of the reference, appoint by writing under their hands an impar- aibitr.itorB. tial aud qualified person to be their umpire, nient'of ' S. 13. If the arbitrators do not appoint an umpire within seven days after the umpire by reference is made to the arbitrators, then, on the application of the companies, or Board of any of them, the Board of Trade may appoint an umpire ; and the umpire eo Trade, appointed shall for the purposes of this act be deemed to be appointed by the Appoiut- arbitrators. _ _ _ mopire by S. 14. Where two or more arbitrators are appointed, if before the matters arbitrators referred to them are determined their umpire dies, or becomes incapable or unfit, to supply or for seven consecutive days fails to act as umpire, the arbitrators shall by vacancy, writing under their hands appoint an impartial iind qualified person to be their Appoiut- umpire in his place. _ _ "mpire'by S. 15. If the arbitrators fail to appoint an umpire within seven days after uoard of notice in writing to them of the decease, incapacity, unfitness, or failure to act of Tiade to their umpire, then, on the application of the companies, or any of them, the Board ''."1''''^ . 880 Al^PENDIX OF STATUTES. 22 & 23 Vict. c. 59. Succeeding aiuiL atoi's and ump.res to have powers of prede- cessors. Releroiice to Umpire. Power for arbitrators &c. to call for boolcs, iic, and administer oatLi. Procedure in the arbi- tratiou. Arbitration may proceed in absence of Companies. Several awards may be made. Awards made in due time to bind all parties. Power for umpire to extend period for making his award. Awards not to be set aside for in- formality. Awards to be obeyed. Agree- ments, arbi- tration.s, and awards to have efiect. Costs of arbitration and award of Trade may appoint an umpire; and the umpire so appointed shall for the pur- poses of this act be deemed to be appointed by the arbitrators so failing. S. 16. Every arbitrator appointed in the place of a preceding arbitrator, and every umpire appointed in the place of a preceding umpire, shall respectively have the lilfe powers and authorities as his respective predece.ssor. S. 17. Where there are two or more arbitrators, if they do not, within sucli a time as the companies agree on, or, failing such agreement, withia thirty days ne.Kt after the reference is made to the arbitrators, agree on their award thereon, tlien the matters referred to them, or such of those matters as are not then deter' mined, shall stand referred to their umpire. S. 18. The arbitrator, and the arbitrators, and the umpire respectively may call for the production of auy documents or evidence in the possession or power of the companies respectively, or which they respectively can produce, and which the arbitrator, or the arbitrators, or the umpire shall think necessary for deter- mining the matters referred, and may examine the witnesses of the companies respectively on oath, and may administer the requisite oath ; and in Scotland may grant diligence for the recovery of the documents or evidence, and for citing wit- nesses, and on application to the Lord Ordinary he may issue letters of supplement or other necessary writs in support of the diligence. S. 19. Except where and as the companies otherwise agree, the arbitrator, and the arbitrators, and the umpire respectively may proceed in the business of the reference in such manner as he and they respectively shall think fit. S. 20. The arbitrator, and the arbitrators, and the umpire respectively may proceed in the absence of all or any of the companies in every case in which, after giving notice in that behalf to the cimpanies respectively, the arbitrator, or the arbitrators, or the umpire shall think fit so to proceed. S. 21. The arbitrator, and the arbitrators, and the umpire respectively may, if he and they respectively tliink fit, make several awards, each on part of the matters referred, instead of one award on all the matters referred ; and every such award on jjart of the matters shall for such time as shall be stated in the award, the same being such as shall have been specified in the agreement for arbitration, or in the event of no time having been so specified, for any time which tiie arbitrator may be legally entitled to fix, be binding as to all the matter.^ to which it extends, and as if the matters awarded on were all the matters referred, and that notwithstanding the other matters or any of them be not then or there- after awarded on. S. 22. The award of the arbitrator, or of the arbitrators, or of the umpire, if made in writing under his or their respective hand or hands, and ready to be delivered to the companies within such a time as the companies agree on, or, failing such agreement, within thirty days next after the matters in difference are referred to (as the case may be) the arbitrator, or the arbitrators, or the umpire, shall be binding and conclusive on all the companies. S. 23. Provided always, that (except where and as the companies otherwise agree) the umpire, from time to time by writing under his hand, may extend the period within which his award is to be made ; and if it be made and ready to be delivered within the extended time, it shall be as valid and effectual as if made witbiu the prescribed period. S. 24. No award made on any arbiti-ation in accordance with this act shall be set aside for any in-egularity or informality. S. 25. Except only so far as the companies bound by any award in accordance with this act from time to time otherwise agree, all things by every award in accordance with this act lawfully required to be done, omitted, or suffered, shall be done, omitted, or suffered accordingly. S. 26. Full effect shall be given by all the superior courts of law and equity in the United Kingdom, according to their respective jurisdiction, and by the com- panies respectively, and otherwise, to all agreements, references, arbitrations, and awards in accordance with tliis act ; and the performance 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 com- panies respectively or their respective property that the courts or any judge thereof shall direct, and where requisite frame for the purpose. S. 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 arbitrators, and the umpire respectively. THE RAILWAY CLAUSES ACT, 1863. 881 S. 28. Except where and as the companies otherwise agree, and if and so far 22 & 23 Vict. as the award does not otherwise determine, the costs of and attending the arbi- °- ^^- tiation and the award shall be borne and paid by the companies in equal shares. Payment of and in other respects the companies shall bear their own respective costs. costs. S. 29. The submission to any arbitration in accordance with this act may at any Submission time be made a rule of any of Her Majesty's superior courts of record at West- to arbitra- minster, 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 arbi- o"^court'^" ° trators, or to the umpire, with any directions the court think fit. 26 & 27 Vict. O. 92. 26 & 27 Vict. C. 92. An Act for Consolidating in one Act certain Provisions frequently inserted in Acts relating to Railways. [28ard, 507. debt lies on award of money, 507. by obligor of arbitration bond against co-obligor, 507. against executor of deceased party, 507. against executor party to reference, 507. enforcing award by debt on the arbitration bond, 508. debL lies on the bond, when award not periormed, 508, 3 L 2 884 INDEX. ACTION {continued). preferable to debt on the award, 508. penalty of the bond, limit of the damages, 51. time in condition of the bond may be enlarged by deed, 509. enlarged by agreement, debt not lie, only assumpsit, 509. altering condition of recognizance by rule of court, 509. enforcing award by covenant, 509. covenant lies on submission by deed, 509. revocation by marriage, breach of covenant, 509. alleging breach wrongly, 509. joining counts for revocation and non-performance, 610. enforcing award by action on the case, 511. case, neglect of duty on award under statute, 511. points of practice in actions to enforce awards, 511. venue cannot be changed on the common affidavit, 511. affidavit of debt, alleging demand, 511. interest recoverable on sum awarded, 512. reference to the Master to compute principal and interest, 512. writ of inquiry after judgment on nul tiel record, 512. Pleadings in an action on an award, 512 ; see tit. Pleading. ADMINISTRATOR, see tit. Executor. ADMISSION of mistake by arbitrator, setting aside award for, 295, 666. remitting back award for, 448. made by party before arbitrator, when evidence, 469. ADMITTED jDEMAND, a matter in difference, 116, 256. ADULTERY, receiving evidence of, though not pleaded, 194. ADVOCATES, arbitrators acting as, improper, 205. AFFECTED DELAY, moving for costs for, 101. AFFIDAVIT to obtain order for witness's attendance on the reference, 170. of execution of submission, compelling attesting witness to make, 567. of arbitrator, admitting mistake in award, 295. to explain intention, not receivable, 471. barrister not usually make, 472. on motion for attachment on award, 594 ; see tit. Attachment. to set aside award, 670 ; see tit. Settino Aside. must be filed, 670. to show matter not awarded on, 256. to support award bad on its face, 680. to hold to bail for debt due by award, 511. entitling, on motion to make submission order of Chancery, 572. set aside award in equity, 702. evidence by, when admissible on a reference, 178. AFFIRMATION of witness, arbitrator empowered to take, 177. of Quaker, &c., attachment granted on, 598. AGENT, reference by, 25. what sufficient authority to refer, 25. arbitrator acting as, improper, 205. demand by, of thing awarded, 589, 600 ; see tit. Attachment. demanding execution of a deed awarded, 501, 511. AGREEMENT of reference, termed a submission, 41. by writing not under seal, 50. requires stamp, 50. under the statute of William ; see tit. Statute op William III. to refer future disputes. effect of, as a submission, 62. when arbitrator not named in, 62. when arbitrator named in, 62. when specified, how arbitrator to be appointed, 62. whether assent, after difference arisen, neces- sary, 63. INDEX. 885 AGREEMENT {continued). effect in law of agreement to refer future disputes*, C3. whether action for breach, liquidated damages, t)3. no plea in law to bar action, 63. , when condition precedent to action, 64. ground for application to stay action, 64. effect in equity of agreement to refer future disputes, G5. no specific performance of agreement, 65. no plea of, in equity, 65. howr useful in equity, 66. no ground for injunction, 66. distinguished from a covenant not to sue, 66. not to proceed at law or equity, 68. effect in law of agreement not to sue, 68. agreement enforced by action, by setting aside proceedings, 03. by attachment, 68. discretion in enforcing it, 69. no plea on equitable ground, 69. agreement prohibits motion to arrest judgment, 70. or for judgment non obstante veredicto, 70. not prevent motion to set aside award, 70. effect in equity of agreement not to sue, 70. plea of agreement sometimes allowed, 71. distinguished from mere agreement to refer, 71. to refer void, setting aside when unnecessary, 79. to make submission a rule of court, 55, 59. award a rule of court, 60. award order of Chancery, 556. enlarging time by, 137 ; see tit. Enlargement. by parol, when submission by bond, 509. ALIMONY, suit for, reference of, 11 ; see tit. Ecclesiastical Court. ALL MATTERS IN DIFFERENCE, what included, 115; see tit. Submission. award must decide as to all, 248 ; see tit. Award. ALLOCATUR, separate for costs of cause and reference, 687. unless consent to single, 688. new, requisite after award on reference back, 634. ALLOTMENT OF LANDS ; see tit. Inclosure Act. ALTERATION of order of reference by way of amendment, 80. court cannot make without consent, except in furtherance of agreement, 80. striking out clause not to file bill in equity or bring error, 81. amending clerical error, 82. amending compulsory order of reference, 81. damages not allowed to be increased, 74. no amendment of material mistake of office, 82. of terms of reference without altering submission, 83. allowing particular of set-off after reference, 83. enlarging particulars of demand, 84. no new plea allowed, 84. allowing plea to further maintenance, 84. of submission, error in account delivered, 82. of condition of arbitration bond, valid if by deed, 509. not so if by agreement, 509. of recognizance, by rule of court ineffectual, 509. of the record, power of the arbitrator on the reference, 195. of award, arbitrator cannot make, 131, 492. court cannot make, 492. by paity, may destroy award, 492. by a stranger, effect of, 492. on reference back, arbitrator may make, 4^3. of verdict, not made according to arbitrator's notes, 626. of rule nisi to set aside award, 673, 677. 886 INDEX. ALTERNATIVE AWARD, 268 ; see tit. Award. A. or B. to do an act, 284. defendant or his executors to release, 281. AMENDMENT, see tit.- Alteration. AMOUNT awarded, certainty as to, 276 ; see tit. Award. AiSTIMUS ARBITRANDI necessary in award, 242. ANNUITY, matters relating to, reference of, 123. release of, awarding, 409. ANSWER to support plea of award to bill in equity, 554 ; see tit. Equity. of arbitrator, read against co-defendant in bill to set aside award, 701. APPEAL at Quarter Sessions refei-able, 9 ; see Quarter Sessions. attorney may refer, 27. not lie to House of Lords on award in Chancery under statute, 702. APPOINTMENT of arbitrator concerning prison expenses, 98. under the Lands Clauses Act, 95. should be in duplicate, 576. making rule of court, 574. of third arbitrator, recital in award no evidence of, 535. for a meeting in a reference, 164. APPORTIONING tithe rent charge, 417. APPRAISEMENT not an award, 241. APPRENTICESHIP INDENTURES, awarding cancellation of, 390. ARBITRATION BOND, averments in action on, 519 ; see tit. PLEADiira. ARBITRATION PENDING, no plea in action as to the matters referred, 45. ARBITRATOR. appointing pursuant to arbitration clause, 64. form of appointment, 65. Who may he an arhitrator, 1 05. any person, 105 ; not interested or partial, 106. known interest not disqualify, 106. party arbiti'ator in his own cause, 107. when foreigner not good arbitrator by French law, 107. special arbitrators by statute, 107. manufacturers and workmen, 107. barrister, 108. barrister to certify rules of savings' banks, 103. the master an arbitrator to settle costs of compensation-jury, 108. on a compulsory reference, 108. what amounts to an appointment of, 42. appointing under the Lands Clauses Act, 95, 576. under the Railways Clauses Act, 94. by will bad, 43. made trustee to convey lands pursuant to award, 45. appointed by judge when pai-ties fail to agree, 66, 205. moral qualities requisite in an arbitrator, 108. incorruption and impartiality, 109. taking money of party before award made, 109. purchasing claim in dispute before him, 109. bon^ fide agreement with party, 109. imposing terms on a party, 110. principles by which the arbitrator should be guided, 110. characters filled by arbitrator, 111. judge of law and fact — ^jury — ^judge at Nisi Prius, 111 ; court in bank. 111. Master in Chancerv — Lord Chancellor — Attorney-General, dic- tator, 111. principles of decision generally, 111. when all matters referred, 111, power according to law, 112. legal and equitable authority, 112. INDEX. 887 ARBITRATOR (continued). reforming a deed, 112. arbitration not bound by rule of practice, 112. moral considerations, llS. power beyond law, 113. Over what matters the submission gives the arbitrator jcrisdic- TU>N, 115 ; see tit. Submission. Duration op tuk arbitrator's authoritt, 126. Duration when not enlarged or revoked, 126. when the submission provides no time within which (he award is to be made, 126. natural duration, 127. duration three mouths, when no limit in submission, 127. no limit by jury pi'ocess, on reference at Nisi Prius, 128. or when arbitrator to certify, 128. limit on Scotch reference — one year, 1 28. arbitrator cannot fix a limit, 129. when the submission prescribes a limited time for mahing the award, 129. award must be within time limited, 129. " within " includes the last day, 129. limit "until" a certain day, 129, months lunar, not calendar, 129. Taluatiou be made on a day fixed, 129. periodical limits, 130. limit under the Lands Clauses Act, 130. two arbitrators acting, 130; one of two acting, 130. single arbitrator, 130. limit on reference between Post Office and Railway Companies, 131. limit under Railway Companies Arbitration Act, 131. authority of the arbitrator determined by maklnrj the award, 131. arbitrator cannot con-ect mistake in award, 132. award set aside, arbitrator cannot make new one, 132. power to make several awards, 132. making new award under a statute, when first void, 132. Enlarging the time for making the award, 133; see tit. Enlargement. Revoking the arbitrator's authority, 143 ; see tit. Revocation. notice to arbitrator of revocation, when nt-cessary, 145. mistake of arbitrator in law, good ground for revocation, 150. corrected on motion to revoke, 193. when award made after revocation effective, 1 47. bankruptcy no revocation when arbitrator a stakeholder, IS."), death, or refusal to act of the arbitrator, a revocation, 156 ; see tit. Revocation. death, incapacity, or refusal, supplying vacancy, 67, 157. Power and duty of the arbitrator before making the award, 163. Proceedings in the reference, 163. serving the submission on the arbitrator, 163. procuring order of reference, 164. power of the arbitrator to regulate the proceedings in the reference, 164. arbitrator to decide Low reference to be conducted, 164. appointing time and place of meetings, 164. serving appointment on opponent, 165. rescinding appointment, 165. when court will review exercise of arbitrator's discretion, 165. notice of attendance by counsel, 165. ordinary course of a reference, 166, 167. refusing to hear counsel, 166. refusing to allow stranger to attend, 166. excluding son of party and shorthand- writer, 166. calling in attorney, 167. examining sick witness at his own house, 167. whether particulars of demand before arbitrator, 167. arbitrator must perform condition precedent, 168. 888 INDEX. ARBITRATOR (continued). declaration under the Lands and Railways Clauses Acts, con- dition precedent, 168. power under Railway Companies Arbitration Act, 168. under the Common Law Procedure Act, 172. examination of the witnesses on oath, 175. when requisite to swear witnesses, 175. when discretionary, 175. old practice, swearing witnesses, 176. before the court or a judge, 176. not before commissioners for taking affidavits, 176. arbitrator no power to administer oath, 176. new practice, — arbitrator empowered to swear witnesses by 3 & 4 W. IV., c. 42, s. 41, 177. witnesses sworn at the meeting, 177. concurrent power of court and arbitrator, 177. arbitrator empowered to administer oath under Lands, Rail- ways, and Companies Clauses Acts, 177. power on county court_ reference, 178. evidence by affidavits, when admissible, 178. duty of the arbitrator to hear the evidence, 178. arbitrator should hear all the evidence, 178. evidence must be tendered, 178, how arbitrator may be set right by motion to revoke, 179, 198. award bad, if made without hearing evidence, 178. hearing one side only, 179. when arbitrator may refuse to hear evidence, 180. when peculiarly skilled, 180. usage to value on inspection, 180. rejecting evidence of want of assets, 181. misleading party, awarding before case closed, 181. closing ease too hastily, 181. party asking for time, 182. refusing to reopen it, 182. arbitrator should take notes of the evidence, 182. examining party as witness, 183. examining parties under the Lands, Railways, and Companies Clauses Acts, 183. power of the arbitrator to call for documents, 183. provision in the order of reference, 183. under the Lands, Railways, and Companies Clauses Acts, and Railway Companies Arbitration Act, 184. duty of the arbitrator to receive no evidence unless both parties are present, 184. arbitrator should not receive a private statement from a party, 184. should examine witness in presence of both parties, 184. irregular examination avoids award, 184. held, in the Common Pleas, — only when party in fault, 185. held, in the Queen's Bench, — though party not in fault, 185. examining witness, both parties absent, bad, 186. examining party in private bad on public grounds, 187. no exception in case of merchant arbitrators, 187. inquiring whether party admits or disputes items, 187. private statements to accountant, 188. private meeting, nothing done in the reference, 188. vxiivinrj objection to irregular conduct of the arbitrator, 188. v parties may waive irregularity, 189. waiving improper enlargement of time, 189. improper appointment of umpire, 189. irregular meeting, 189. waiver, by lying by without objecting, 190. arbitrator's course to cure irregularity, giving full notice, 190. when the arbitrator empowered to jyroceed ex parte, 190. power to proceed ex parte implied, 191. INDKX. 889 ARBITRATOR (continued). arbitrator may not proceed ex parte without good cause, 191. party refusing to attend, 191. attempting to revoke, 191. notice of intention to proceed ex parte, 191. peremptory notice for each meeting, 192. ■whether notice requisite when authority denied, 192. Railway Companies Arbitration Act, 1858, 192. dui)/ of the arbitrator in deciding paints of evidence, 192. arbitrator bound by the rules of evidence, 193. but his decision not open to review, 193. refusing to hear evidence on a matter is not a mere mistake of evidence, 193. determining claim for damages to be a debt, 193. if doubtful, arbitrator should receive the evidence, 193. receiving evidence of adultery in assumpsit, when not pleaded, 194. rejecting evidence after accounts closed, 194. knowingly receiving evidence not admissible in law, 194. evidence of collateral matters, 194. power to apply to the court for directions, 194. of barrister arbitrating between counties and boroughs, 195. party retaining power of objecting to evidence, 195. duty of the arhitrator token empotcered to amend, 195. imposing terms on amending the record, 195. power of the arbitrator to make or decline to make an award, 196. court no power to compel arbitrator to award, 196. compelled to award by the civil law, 196. court no power to prevent award, 196. no compulsory reference to county court judge, 90, 196. when proceedings in arbitration restrained by injunction, 196. closing the case, 197. arbitrator should give notice that the case is closed, 197. reopening case, 197. requiring matters in difference to be stated in writing, 197. making interlocutory award, 197. wh&n arhitrator about to aivard wrongly, 198. setting him right on motion to revoke, 198. stating case or trying issue pending the reference, 198. Delegating authority before award, 198. power of the arbitrator to adopt the opinion of another, 198. arbitrator may not delegate his judicial functions, 199. arbitrator may adopt opinion of another, 199. but not when he believes it wrong, 201. may take assessors, 200. calling in a valuer, 200. when objectionable to call in attorney, 200. duty of the arbitrator in taking an opinion on a matter of fact, 201. whether arbitrator should examine adviser as a witness, 202. duty of the arbitrator in taking an opinion on a j)oint of law, 202. arbitrator may consult counsel as to framing award, 202. taking counsel's opinion on a case, 203. on a case stated incorrectly, 203. power of the arbitrator to delegate a ministerial act, 204. whether accountant ministerial oflB.cer, 204. Duty of joint arbitrators, 204. power of two arbitrators to appoint umpire, 204, 213 ; see tit. Umpire. disadvantages of a reference to several arbitrators, 205. arbitrators often advocates of party appointing, 205. mistake as to nature of duty, 205. two arbitrators appointing a third, 205. judge appointing third arbitrator, 205, 215. ambiguity of submission, 206. additional liability to failure, 206. 890 INDEX. ARBITRATOR (continued). _ duty of all the arbitrators to act, 206. if one refuse, no award can be made, 206. waiver of objection to not acting, 207. the arbitrators may not delegate to each other, 207. agreeing beforehand to be bound by a stranger's opinion, 207j one cannot proceed if other merely fail to attend, 208. may adopt each other's opinion, 208. all the arbitrators must act together, 208. separate examination of witnesses, irregular, 208. absence of one arbitrator procured by a party, 208. all should execute award together, 209. appointment of umpire sometimes condition precedent to acting, 208. under the Lands, Railways, and Companies Clauses Acts, and Railway Companies Arbitration Act, 209. disagreement of joint arbitrators, 225 ; see tit. Umpire. arbitrators' charges may be costs of umpirage, 232, 357. or of the reference, 367. duty of the arbitrators when award by less than all valid, 209. before commencing two must choose a third, 209. on failure of parties or arbitrators, judge may appoint, 215. third arbitrator not an umpire, 209. enlarging time before appointing third arbitrator, 210. recital in award no evidence of appointment of third arbitrator, 535. two may act alone, if third refuse, 210. where no refusal, third must be consulted, 210. death, refusal, or incapacity of one of two arbitrators under the Lands, Railways, and Companies Clauses Acts, and Railway Companies Arbitration Act, 211, 212. what a refusal to act, 212. Power and duty of an umpire, 213 ; see tit. Umpire. Duty of the arbitrator in making his award, 234 ; see tit. Award. power to employ attorney to draw award, 629. How TO AWARD ON THE CAUSE REFERRED, 324 ; SCe tit. CaUSE. How TO AWARD A3 TO COSTS, 355 ; See tit. Costs. How to award under the Lands Clauses Act, 427 ; see tit. Lands Clauses Consolidation Act. "What directions may be given in the award, 385. Directions under the general powers of the arbitrator, 386. what kind of satisfaction may be directed, 386. arbitrator no implied power over person or land of party, 387. over personal estate only, 387. no power to award lien on land, 387. or to direct two parties to marry, 387. whether arbitrator may award other satisfaction than money, 387. awarding defendant to keep plaintiff's goods, 387. on salvage of goods burnt, 388. bond to be delivered up, 388. begging pardon, 388. no power to order tenant to replace fixtures, 388. or party to take disputed title with all faults, 389. awarding power of distress invalid, unless dispute respecting right to power, 389. matter in difference necessitating special directions, 389. awarding agent to verify vouchers, 389. regulating future payment of tithes, 390. ordering indentures of apprenticeship to be cancelled good, 390. assignment of apprentice void, 390. no power to direct illegal act, 391, or to order party to commit a trespass, 391. directions as to payment of money, 391 ; see tit. Payment. INDEX. 891 ARBITRATOR (continued). as to payment of interest, 395 ; see tit. Ihteiiest. i)i cases of partnership, 396 ; see tit. Partnehsuip. as to giving an iiulemnity, 400 ; see tit. Indkmnitt. as to executing releases, 402 ; see tit. Release. as to execatiiig conveyances, 404 ; see tit. Conveyance. as to allotting lands, 416; see tit. Inolosurk Act. in making partition of lands, 417 ; see lit. Partition. directions affecting strangers to the submission, 418 ; see tit. Stramobe. directing a paymeivt to he made to a stranger, 418. a stranger to do an act, 421. directions affecting a stranger's property, 424. directions under a power to award what shall be done, 405. whether clause to say what shall be done compulsory, 405. words " shall or may " construed imperative, 406. " what if anything shall be done" permissive, 406. award to enjoy property as before, bad, 406. that nothing be done, good, 407. whether award bad when faulty direction, what to be done, 407. injunction where no directions in award and nuisance recover- ing, 408. directions as to what shall be done held valid, 408. no objections to directions allowed as to the merits, 408. directions when presumed certain, 409. awarding release of annuity, 4u9. undivided shares of tithes, 410. easement, 410. imposing duty of repairing, 411. regulating a stream of water, 411. provision for possible change of course of stream, 411. directing change from wooden to iron machinery, 411. giving liberty to sue in other party's name, 411. directing specific performance of agreement, 411. to pull down wall, 412. directing running of trains on railway, 412. diavctions as to what shall be held void, 413. directing entry of verdict, 413. awarding too large a right of way, 413. directing surveyor to fix water-marks, 413. uncertain dii-ectious invalid, 414. not specifying fixtures, 414. what precautions to be taken, 414. what process of filtering to be used, 414. arbitrator should award specifically on scientific matters, 414. award not si^ecifying capacity of drain awarded, 415. advisable to annex a plan to the award, 415. The award how far affected by a mistake of the arbitrator, 292 ; see tit. jyilSTAKE. effect of extrinsic statements by the arbitrator showing a mistake on his part, 298. statement by arbitrator of wrong reasons for decision, 298. whether admissible to impeach award, ii98. old practice to act on such statements, 298. statement of reasons delivered with award, 298. case stated with award, 299. letter admitting excess of jurisdiction, 299. affidavit of mistake, 299. statement with a view to the court's opinion, 299. modern rule, statements of arbitrator not receivable, bOO. letter of arbitrator rejected, 300, of barrister arbitrator, 301. statement to explain award, 301. letter of arbitrator to show his intention, 301. paper delivered with awai-d to limit verdict, SOI. 892 INDEX. AEBITRATOR (continued). inquiry by the court of the arbitrator's grounds of award, 302. on what matters arbitrator has awarded, 302. damages up to what date, 303. inquiry in open court, 303. in equity, 303. not without consent of parties, 303. stating ca^e under the Common Law Procedure Act, 1854, 305. arbitrator may state a special case, 305. whether reference by consent or compulsory, 306. duty of the arbitrator when empowered to raise a point of law, 306, clause in submission when compulsory, 306. when enabling, 307. power as to evidence and points reserved as a judge at Nisi Prius, 307. how to state a case in an award, 307 ; see tit. Award. Personal interests of the arbitrator, 456. arbitrator's right to remuneration, 457. whether arbitrator can sue for fees, 457. when express promise to pay his charges, 457. whether remedy for fees by attachment, 457, 581. practice not to deliver award until fees paid, 458. lien of arbitrator on award for his fees, 442, 458. costs of attorney drawing award, 458. fees on award under Lands Clauses Act, 459. liability of the arbitrator at law, 459. liability in respect of fees, 459. arbitrator attempting to extort excessive fee, 459 . whether liable to action for withholding award, 460. not liable to attachment, 460. court no jurisdiction over arbitrator, 460. excess extorted recoverable by action, 460. liability for misconduct or in respect of the award, 461. whether arbitrator liable to action for corrupt award, 461. mandamus to arbitrator to appoint umpire and assess costs, 461. misconduct'of arbitrator a misdemeanour under the Lands and Railways Clauses Acts, 461. arbitrator directing trespass liable to action, 462. liability for appointing a receiver, 462. liability of the arbitrator when a stakeholder, 462. arbitrator holding chattel to abide award, 462. bankruptcy of party depositing it, 462. interpleader on adverse claims, 462. liability of arbitrator for money had and received, 463. to whom arbitrator should deliver chattel, 463. liability of arbitrator to trover for the chattel, 46 4. award evidence of no conversion, 464. liability of the arbitrator in equity, 464. arbitrator made defendant to a bill to impeach award, 464, 701. may generally demur, 465. bill to impeach award for mistake, arbitrator should not be made party, 465. striking out arbitrator's name as defendant, 465. arbitrator cannot demur when gross misconduct charged, 465. costs may be prayed against corrupt arbitrator, 466. no decree against arbitrator except for costs, 466. arbitrator need not answer as to grounds of award, 466. but must as to chai-ge of corruption, 466. arbitrator may be entitled to costs, 467. condemned to pay costs when corruption proved, 467, 701. testimony by the arbitrator, 467. arbitrator called as a witness, 467. INDEX. 893 ARBITRATOR {continued). not privileged to refuse testimony, 418. need not stai^ grounds of award, 463. inquiriiiy ot arbitrator whether he considered a matter, 4C3. arbitrator may prove proceedings in the reference, 468. proving admissions made by parties before him, 469. what admissions receivable, 469. not admissions with a view to a compromise, 469. voluntary statements by the arbitrator, 470. whether arbitrator should state grounds of award to a party, 470. affidavit by arbitrator of mistake in award, 471. to explain award not receivable, 471. as to proceedings in the reference, 472. when, the arbitrator is a barrister, 472. barrister arbitrator not usually make affidavit, 472. nsing arbitrator's notes on motion to set aside award, 473. barrister arbitrator declining to explain to the parties, 473. whether court can notice explanatory letter of arbitrator, 473. court inquiring of the arbitrator the grounds of his award, 474. court not amend verdict by notes of, 626. misbehaviour of, when bill in equity only remedy, 642. Duty of arbitrator when award referred back. arbitrator's powers revived by reference back, 452. same power over costs of second reference as of first, 452. limit of time on reference back, 127, 452. arbitrator when bound to hear evidence, 452, award sent back for specific purpose, 453. to be amended, 453. mode of framing second award, 455. ARREST, reference of cause no discharge of defendant from, 87. award no discbarge of defendant from, 486. privilege from, attending reference, 175. of party on attachment, 605. ARREST OF JUDGMENT, prohibited by agreement not to sue, 70. ASSAULT, indictment for, referable, 13. ASSENT to reference, bind stranger, 22. ASSETS, reference when admission of, by executor, 32 ; see tit. Executor. by assignee of bankrupt, 33 ; see tit. Assignee. award as to ; see tit. Executor. ASSIGNEE of bankrupt, reference by ; see tit. Bankrupt. of contract or debt, reference by, 24. of insolvent, reference by ; see tit. Insolvent. of insolvent petitioner, reference by, 33. of bankrupt depositor in a savings' bank, 35. of right in difi'erence cannot sue on award in his own name, 506. may sue the assignor, if he receive the sum awarded, 486. of judgment bound by award, 698. ASSIGNING BREACHES in action on the arbitration bond, 519 ; see tit. Pleading. ASSISTANCE, WRIT OF, to enforce award in equity, 562. ASSIZE, JUDGE OF, submission by order of, 73. ASSOCIATE draws up order of reference, 164. ASSUMPSIT on an award, 506 ; see tit. Action. for money paid on taking up award, 507. ATTACHMENT lies to enforce submission, 87. for breach of agreement not to sue, 68. for preventing award being made, 100. for revoking submission made rule of court, 145. to compel attendance of witness, 171. production of documents by the parties, 1S3. not lie against arbitrator, 460. 894 INDEX. ATTACHMENT {continued). award in equity enforced by, 661. Enforcing the award b? attachment at law, 578. In what cases an attachment will be granted, .578. only when submission a rule of court, 578, when submission a rule, not performing award contempt of court, 678. when attachment first granted at common law to enforce award, 578. attachment in equity, 579. under stat. Will. III., 579. lies when submission can be made a rule, 579. and not otherwise, 579. not when cause has abated by death, 680. lies to enforce award on indictment, 680. for whom and for what an attachment will be granted, 680. for party or representative, 681. not for a stranger, 581. whether for arbitrator, 457, 581. attachment lies if award not performed, 681. to compel plaintiff to dismiss bill in equity, pursuant to award, 563. for costs as well as damages awarded, 581. for money overpaid on taking up award, 681. not for interest on sum awarded, 581. second motion for, on new facts, 582. who not liable tO'be attached, 582. not peers or members of parliament, 582. or executor of party, 582. liability of executors, trustees, and assignees, when parties, 582. whether husband of woman in default, 683. when bankrupt, 155, 583. not public officer defendant by statute, 583. not a corporation as such, 583. party beyond jurisdiction, 583. on what awards attachment refused, 683. on compulsory reference of cause, 583. when award fails to ascertain amount, 584. does not order payment, 584. directs A. or B. to do act, 684. unreasonable award, 584. whether on parol award, 584. when mistake in award, 685. not when validity of award doubtful, 585. delay in applying unexplained, 585. No proceeding hy attachment and action at the same time, 586. old rule, attachment granted, through action brought, 686. party sometimes put to his election, 586. attachment granted ou discontinuing action, 687. filing affidavit of debt not bar attachment, 587. if action brought, attachment discharged, 587. imprisonment for contempt not bar action, 587. Steps necessary to bring the party into contempt, 688. Demanding performance of the award, 688. submission must be made rule of court, 688. rule no relation back, 688. costs must be taxed before demand, 588. demand of performance must be made, 588. though party not paid at time and place prescribed, 688. not good pending motion to set aside award, 589. demand by all parties entitled, 589. of money by one plaintiif, 589. or under power of attorney from all, 589. agunt to demand money must act under power of attorney, 589. not, when demand to execute a deed, 589. INDEX. 895 ATTACHMENT {continued). demand by attorney, whether good, 590. when award orders payment to plaintiff or his attorney. 590. when party has not attended to receive sum awarded, 690. condition precedent must be performed, 590. demand to execute deed after appointed day is past, 590. must be of only what is well awarded, 591. of precise thing awarded, 591. service of the ride, award, and other documents, 591. service must be personal, 592. copy of award and rule must be left, 592. so of allocatur and agent's power of attorney (if any),, 592. originals must be shown, 592. originals shown two days after service of copies, bad, 592. notice of enlargement of time must be given, 692. verbal notice sufficient, 592. serving submission not requisite, 593. tendering copies and leaving them good service, 593. no attachment, if party cannot be served, 693. unless award, &c., already in his possession, 593. what errors in copy served fotal, 593. The course of the motion for an attachment, 594. ajidavits on the motion for an attachment, 594. when cause referred, affidavits must be entitled in it, 594. when reference out of court, no title necessary, 594. often entitled in the matter, 594. affidavits on showing cause entitled in the same manner, 594. so also rule to show cause, 696. so also affidavit of service of rule nisi, 695, 005. after attachment granted, title should be, " Queen against party," 595. objection, want of title, cannot be waived, 595. award must be verified by affidavit, 595. should be shown made in time, 595. enlargements of time should be made pai-t of rule with submis- sion, 696. affidavit must show demand and service, 596. execution of power of attorney, 697. non-performance of award, 697. performance of condition precedent, 597. presumption as to payment of costs of award, 597. misnomer in affidavit, 698. attachment granted on copy of award, original lost, 598. on affirmation of a Quaker, &c., 598. the rule nisi, for an attachmeiU, 598. cannot be moved for on last day of term, 598. nor cause shown on that day, 598. may be moved for against one of several defendants, 598. separate attachments for separate sums, 598. rule drawn up on reading what, 598. on reading rule embodying submission, award and affidavits, 698. • Master may refuse to draw up rule on unstamped award, 242, 599. rule, rule nisi only, 699. service of rule nisi must generally be personal, 699. waiving want of personal service, 599. by appearing, by consenting to enlarging rule, 599. what may he shown for cause against the rule, 600. irregularity in demand or service of documents, 600. defect in affidavits, COO. defects on face of award, 600. not misconduct of arbitrator or matter omitted, 600. 896 INDEX. ATTACHMENT {continued). award made after time elapsed, 601. after revocation, 601. appointment of umpire by arbitrators separately, 601. validity of awai'd but doubtful, 601. party not liable to attachment, 602. award performed as far as possible, 602, when bankruptcy an answer, 602. when claim barred by certificate, 602. inability to pay from want of means no answer, 603. cross-demand not brought forward no answer, 603, set ofT an answer, 603. foreign attachment no answer, 603. discharging or making absolute the rule, 604, cross-motion to set aside award heard with motion for attach- ment, 604. moulding the rule, 604. rule, when discharged with costs, 604. making rule absolute, no cause shown, 605. title of affidavits, 605. making rule absolute on terms, 605. producing award on drawing up rule, 605. Proceedings on the attachment, 605. drawing up rule, 605. procuring attachment, 605. arresting party in contempt, 605. attachment on award, civil process, 606. setting aside attachment, on what affidavit, 606. officer making arrest not entitled to receive amount awarded, 606. party in contempt imprisoned, 606. sometimes examined on interrogatories, 606. fined and imprisoned, if reported in contempt, 606. discharged, if Master report him not in contempt, 606. discharge no bar to bill in equity to enforce award, 607. ♦ discharging on bail to appear and be examined, 607. practice in the Common Pleas, 607. party arrested, discharged on recognizances, 607. interrogatories, reported in contempt, 608. affidavits in mitigation and aggravation, 608. brought up for judgment and sentenced, 608. discharging bankrupt as to debt covered by his certificate, 609. discharging insolvent, 610. costs of attachment, 610. ATTACHMENT, FOREIGN. See Foreign Attachment. ATTAINTED PERSON cannot refer, 15. ATTESTING WITNESS to submission compelled to make affidavit of execution, 567. verifying award, 595. ATTORNEY, power of, to bind client by reference, 25. of cause, 25 of all matters in difference, 25. town agent of, 28. power of solicitor, 27. consent of, good for enlargement of time, 26, 139. to make submission rule of court, 26. clerk of, no power to consent to appointment of umpire by lot, 28, 222. of corporation, authority to refer need not be under seal, 26, 620. when personally bound by referring, 27. may refer appeal at Quarter Sessions, 27. not suit in equity as to infant plaintiffs, 27. attending reference privileged from arrest, 175. called in by arbitrator, 167. demand by, of sum awarded, 590. INDEX. 897 ATTORNEY (continued). has a lien on sum awarded, 4S8, enforcing lien by rule of court, in case of fraud, 488. not unless claim free from doubt, 4b8, G15. no rule to enforce lien in his own name, 48l», 615. when lien paraiuount to claim of assignees, 489. set-off cross sums awarded, sulgect to lien of, 489. practice before and since new rules, 4U0. setting (iff cross-judgments awarded, 490. bill of, award to pay amount of, 282. to draw award, costs of, 629. ATTORNEY AND CLIENT, awarding costs as between, 319, 363. taxing costs as between, 632. ATTORNEY-GENERAL, Arbitrator as. 111. consent of, to reference of charity suit necessary, 23. to enforce award in charity suit, 563. ATTORNEY, POWER OF. Agent making demand of money awarded must have, 589. ATTORNEY, WARRANT OF, tating, to enforce award, 44. as to possession of lands, 44. AUTER DROIT, demand in, a matter in difference, 116. AUTHORITY of agent to refer, what sufficient, 24. of arbitrator ; see tit. Arbitkator. of umpire ; see tit. Umpire. of court ; see tit. Court. of equity ; see tit. Equity. AVERMENTS in pleading an award, 512 ; see tit. Pleading. in plea stating award in equity, 552 ; see tit. Equitt. in bill to set aside award, 699 ; see tit. Equity. AWARD, preventing, breach of submission, 101 ; see tit. Submission. when to be made, 126 ; see tit. Arbitrator. - interlocutory, making, 197. on part by arbitrators precludes umpire acting, 226. How THE award is TO BIJ MADE. Formal requisites of the award, 234. Making the uivaid, 234. award must follow submission, 234. parol award valid, 235. signing award, 235. joint execution by all arbitrators, 235. practice — two copies made, 236. award under the Lands and Railways Clauses Acts, 236. declaration of arbitrator to be annexed, 236, publishing the award, 236. award published when executed, 236. by all arbitiators, 236. publishing to the parties, 237, 644. delivering the award, 237. award when made ready to be delivered, 238. when delivery necessary, 238. delivery on payment of fees, 238. awaril under the Lands Clauses Act to be delivered to the promoters, 2;i9 ; see tit. Lands Clauses Consolidation Aci. stamping the award, 239 ; see tit. Stamp, Form of the award, 243. any words expressing a decision an award, 243. no recitals necessary in awaid, 244. award need not show jurisdiction, 244. •what recitals advisable, 244. specifying matters in difference, 245. false recitals not give authority, 245. not vitiate award, 245. certificate addressed to the olticer of the court, 2 46. 898 INDEX. AWARD (continued). The award must be entire, 247. award cannot be made in parts, 247. consulting as to parts, 247. made up of two certificates, good, 248. arbitrator empowered to make several awards, 248. first award not, final when dependent on second, 248. The award must be final, 248. effect of clause " ita quod fiat de prcemissis," in submission, 248. old rule when no "ita quod" award on part good, 249. modern rule —whether parties intend award to be on all matters, 249. arbitrator empowered to make several awards, 249. omitting to decide matter not brought forward, 250. not brought forward as a matter in difi'erence, 250. award void if matter left undecided, 251. excepting matter from decision on face of award, 251. not deciding between co-defendants, 251. not deciding on matter subject of suit, 251. awarding nothing due at present, 252. nothing due at date of reference, 253. mattei's not to be matters in difference, 253. award shoM'ing matter left undecided, 253. no direction as to rent, 253. awarding in one sum on all matters, 254. not deciding cause separately, 254. clerical error in description of .subject-matter, 254. omitting to award balance of set-off to defendant, 255. arbitrator making partition of land must direct conveyances, 255. omission not appearing on face of award, 256. awaixl bad, omission being proved, 25t5. failing to decide ejectment, 256. admitted demand is a matter in difference, 256. not so, a claim aViandoned, 256. omitting to award on claim to indemnity, 251, 256. proof that matter is omitted must be clear, 256. arbitrator must decide the question, not settle the case, 257. omitting to decide as to all parties, 257. awarding on the cause and costs, 257 ; see tit. Cause, Costs. award of mutual releases a decision of all matters, 257 ; see tit. IIelease. rule, awardincj de pi'cemims, 258. award de prsemissis presumed final, 258. purporting to be on all matters, an award de prjemissis, 259. award de 2>rcemissis general finding presumed final, 269. awarding a gross sum on all matters, 259. instances, 260. award de prwmissis particular finding presumed final, 261. respecliug banking account on general reference, 261. ordering release to day before submission, 2t)l. on cause only, presumed no other matters in difference, 263. whether matter presumed decided when award silent, 263. award silent decisiim sometimes presumed, 263. deciding action, silent as to equitable claim, held good, 263. deciding action, silent as to defendant's claim, held good, 263. on action, silent as to claim beyond, held bad, 264. on action, silent as to claim for indemnity, bad, 264. guiding rule as to when .silence sufficient, 265. conditional award, 266. event conditional on voluntary act of opponent, 266. what condition may be good, 266. conditional direction valid, 267. to do act on stranger's land, on condition stranger consents, 267. award conditioned to be void on a certain event, bad, 267. INDEX, 899 AWARD (contimuid). alternatire award good, 2G8. to pay by instalments, or on failure of one, to pay whole sura at once, 268. one alternative uncertain or impossible, 2')8. award reserving or delegatixg judicial aufkorit;/, 269. arbitrator may not reserve or delegate authority, 269. reservation of future power to liiinself bad, 269. when reservation mere excess, may be good for the rest, 270. award to abide by the decision of another bad, 270. partial delegation bad, 270. to repair to satisfaction of another, 270. delegating to party to decide in his own cause, 271. exception delegating to the Master the taxing of costs, 271. Master ministerial officer, 271. aicard reserving or delegating ministerial duty, 272, arbitrator may delegate ministerial duty, 272. measurement of land, 272. whether valuer ministerial officer, 273. reserving power to settle deeds, 273. reservation to arbitrator void, 273. to stranger void, 273. to counsel valid, 274. counsel act ministerially, 274. to court if they think fit, 274. The award must be certain, 275. what certainty requisite, 275. certainty to a common intent, 275. award need not specify time, or place, 275. bad, if doubtful whether matter decideil, 275, bad, if doubtful how matter decided, 276, not iinding as to assets, 276. awarding separately on separate matters, 276. certainty as to the amount awarded, 276. arbitrator must fix the amount to be paid, 276. instances of awards not specifying sums, 277. not specifying amount of bond ordered, 283. to pay money due for task work, 277. so much as the land is worth, 277. arrears of rent, 277. according to market price, 277. sufiicient to release securities, 277. money, received, if any, 278. share of expenses, 278. of joint damages to plaintiff and stranger to cause, 278. of money due from A, 15, and C, some or one of them, 278, certainty as to costs awarded, 279. arbitrator need not ascertain amount of costs, 279, except costs in inferior court, 279. giving rule for computing amount, 279. made certain by reference to other document, 280, costs of reference taxable on rule of court, 280. aivard when pyesitmed certain, 281. not specifying amount, presumption no dispute about it, 281. to pay interest from date of liist settlement, 581. to pay debt in proportion to shares in ship, 281. to pay amount of bill delivered, 282. to pay distributive shares, 282. certainty as to general directions, 282 ; see tit. Arbitrator. arbitrator awarding security must specify its nature, 263. must specify property to be delivered up, 233. reasonable precision sufficient, 283. to pull down nuisance on defendant's land, 283. defendant or his executors to release, 2S4. not deciding which of two parlies to do act, 284. 3 M 2 900 INDEX. AWARD (continued). award to pay plaintiff oi" his attorney good, 284. not saying to whom costs to be paid, 284. to pay upon pi oof of certain things done, 284. The award must be mutual, 285. must benefit both parties, 285. compensation awarded must be in discharge of claim, 285. old rule of construction, 285, 320. modern rule, 321. award de prsemissis, 286. sum awarded presumed in satisfaction, 286. manifestly unequal, 287. when infants parties, 20, 287. when married women parties, 17, 287. The award must be possible and consistent, 288. impossible, unintelligible, bad, 288. contradictory, repugnant, bad, 289. finding for defendant on inconsistent pleas, 2£0. whether must be reasonable, 291. Award how far affected by mistake of arbitrator, 292; see tit. Mistake. Award when arbitrator empowered to raise a point of law, 306 ; see tit. Arbitrator. should state facts, not evidence, 307. should find positively, 308. stating abstract legal propositions, 308. point intended to be left for court's decision, 308. should provide for the events of the court's opinion, 308, 310. raising point as to validity of custom, 309. as to judgment non obstante veredicto, 309. deciding case first, then raising point for court, 310. awarding hypothetically, 310. Award, though bad in part, when oood for the rest, 311. when the bad part of the award is separable, 311. may be good if all matters well decided, 312. bad in part for excess, 312. excess as to costs, 312. as to entry of verdict, 312 as to entry of judgment, 313. as to strangers, 313. as to releases, 313. as to suits, 314. as to diri-ctions what to be done, 314. as to future repairs, 314. as to hypothetical provisions for the future, 314. as to reservation of authority, 315. who may complain, award wholly bad for excess, 315. bad as to illegal subject matter, 316. whether bad, when faulty direction what to be done, 407. when excess a condition precedent, 316. bad part separable, though no excess, 317. uncertain as to part, 317. alternative, one alternative bad, 317. when the bad part of the award is inseparable, 317. award wholly void, 317. excess inseparable, award void, 318. award of one sum including matters not referred, 318. lease for too long a terra, 318. price to be paid at a future day, 318. costs as between attorney and client, 319. making unauthorized deductions, 319. direction depending on the excess, 320. difficulty in separating bad and good parts, 320. old rule, award good if something well awarded to each, 320. modern rule, award bad if reciprocity altered, 321. INDEX. 901 AWARD (conthnierj). costs affected by void part, 322. excess affecting decision as to residue, 322. What directions may bk given in tue awakd, 335, see tit. Arbi- trator. how to award under the Lands Clauses Act, 427, see tit. La.nds Clauses Consolidation Act. how to award on the cause referred, 324 ; see tit. Cause. how to award as to costs, 355 ; see tit. Costs. ■what are costs of the award, 355. when costs to be tixed, 630. costs of award, action for, 506, 507. Effect of the award, 476. the award affinal judgment in law and equity, 476. certificate equally final, 476. drawing up rule pursuant to award, 476. discharge of claim referred when new duty created in lieu, 523. reductio in possessioueiu of wife's choses in action, 481. in equity as a decree, 477. sometimes effective in equity, though made after time, 477. parol valid, 477. undtT seal no deed, 477. cannot be made a record at law, 60. may be made order of equity, 556, 573. on compulsory reference of an action enforceable as a verdict, 89. on appeal entered as judgment of Quarter Sessions, 638. efect of a colorable award, 477. agreement in Scotland put Into form of a submission and de- creet arbitral, 477. effect of an award on matters in difference not brought forward 478. no action lies for matters within submission, 478. arbitrator concluded by former award, 478. effect of award on demand rejected by arbitrator, 478. whether suit will lie in equity for matter omitted, 478. accidental omission, 479. party made to account for item omitted, 479. not conclude matters not in difference, 479. no waiver of extrinsic objections, 480. effect of an award on some special matters, 480. on a cause referred, 480 ; see tit. Cause. on costs, 480 ; see tit. Costs. on the rights of a married woman, 481. on matters not referable, 481. on matters criminal, 481. effect of an award to transfer property, 481. cannot transfer right to land, 481. may decide title as between parties, 482. not give title as against a stranger, 482. cannot transfer personal property, 4S2. transferring title to chattel deposited to abide award, 463. award by statute may operate as a conveyance, 484. award under Inclosure Act, 434 ; see tit. Inclosurb Act. award to deliver land enforceable as a judgment in ejectment, 44, 622. effect of an award on the parties and strangers, 485. on infants, 485 ; see tit. Infants. corporations, 485 ; see tit. Corporations. parties added, 485 ; see tit. Parties to the reference. agents, 486 ; see tit. Agents. attorneys, 486 ; see tit. Attorney. executors, 31, 486 ; see tit. E-^cecutor. trustees, 486 ; see tit. Trustee. assignees, 486 ; see tit. Assignee. public oflScer, 486 ; see tit. Public Officer. 902 INDEX. AWARD (continued). strangers to submission, 486 ; see tit. Strangek. award no discharge of defendant from arrest, 486. proceeding with cause after award, 486. assigning contingent right before award, 486. effect of the award on the arbitrator, 487 ; see tit. Arbt- TKATOR. effect of an award on a party lanhnipt, 487 ; see tit. Bankrupt. ^ect of an award on the attorney's lien for costs, 488 ; see tit. Attorney. effect of an award under the various Mnds of submissions, 491 ; see tit. Submission. agreement to make award rule of a court of law, 60. enforcing award by action, 505 ; see tit. Action, by attachment, 578 ; see tit. Attachment . by execution under the statute of Victoria, 611; see tit. Execution. ander the Railway Companies Arbitration Act, 622. by judgment and execution in the cause referred, 623 ; see tit. Execution. by bill in equity, 544 ; see tit. Equity. by motion and petition in equity, 559 ; see tit. Equity. pleading an, 512 ; see tit. Pleading. plea of, in bar to action, 522 ; see tit. Plea. to bill in equity, 552 ; see tit. Equity. effect of, in evidence, 536; see tit. Evidence. effect of awards under particular statutes, 491. awards under statute concerning bankrupts, 492 ; see tit. Bankrupts. insolvents, 492 ; see tit. iNSOLVENTg. savings' banks, 492 ; see tit. Savings' Banks. friendly societies, 492 ; see tit. Friendly Societiks. masters and workmen, 492 ; see tit. Masters and Workmen. ecclesiastical, &e., corporations, 492 ; see tit. Ecclesi- astical AND Collegiate Corporations. prisoner's expenses, 492 ; see tit. Counties and Boroughs. Lands, Railways, and Companies Clauses Acts, 492 ; see tit. Lands Clauses Consolidation Act ; Rail- ways Clausits Consolidation Act ; Companies Clauses Consolidation Act. Inclosure Acts, 492 ; see tit. Inclosure Act. effect of altering an aivard, 132, 492 ; see tit. Alteration. effect of a defective award, 493. illegal award void, 494, taking advantage of defects by plea, 494, 526 ; see tit. Plka. by demurrer, 494, 552 ; see tit. Pleading, Equity. by evidence, 494, 540 ; see tit. Evidence. by motion to set aside award, 494, 642 ; see tit. Setting Aside. by motion to set aside judgment in cause referred, ■ 685 ; see tit. Setting Aside, referring back award, see tit. Referring Back. impeaching award in equity, 689 ; see tit. Equity. How award should be performed, 495 ; see tit, Pekeormanoe. B. BAIL, discharge of, by reference of action, 86, of replevin sureties, 87. indulgence to, on execution against defendant, 707. INDEX. 903 BAIL {continued). discharging a party attached on, to appear and be examined, 607. BALANCE not awarded to defendant, setting aside award for, 659. BANKRUPT, matters concerning estate of, referable under statute, 8. cannot be party to such reference, 33. submission by, binds himself, 34. reference by assignee of, 33, 92. whether valid, without creditor's consent, 33. such consent need not be averred in action on the award, 33, 518. no stamp on submission or award, 93, 239. jtersonal liability of assignee, 34. reference when admission of funds in hand, 33. assignee adopting previous reference by bankrupt, 33. when liable to attachment on the award, 582. may move to set aside award, 668. recent appointment no excuse for not moving in time, 653. mailing submission order of court, 92, 573. bankruptcy no revocation of submission, 153 ; see tit. Revocation. of opponent, plea of, to action for revocation, 146. plea of, 532 ; see tit. Plea. award not avoided by subsequent, 487. sum awarded good petitioning creditor's debt, 488. so penalty in arbitration bond, on breach, 488, when claim to debt awarded barred by, 48S. no bar to claim for costs not proveable, 488. when answer to motion for attachment, 602, 607. when ground of discharge from attachment, 609. no ground for setting aside judgment in cause referred, 687. lien of attorney of, on snm awarded, 489. whether bankrupt may move to set aside award, 668. depositing chattel to abide award, liability of arbitrator, 463 ; see tit. Arbitrator. BANKRUPTCY, submission in, 92. BARRISTER as counsel, power to refer, 25 ; see tit. CouNSEii. to certify rules of savings' banks, reference to, 35. arbitrator between counties and boroughs by statute, 99. arbitrator not make affidavit, 472 ; see tit. Arbitratoe. not on motion to set aside award, 670. notes of, not to be used on the motion, 473, 670. letter of, whether receivable by the court, 301, 473. BENEFIT BUILDING SOCIETIES, reference of disputes concerning, 8. when reference compulsory, 37. equity cannot question award good on face unless arbitrators are corrupt, 38. BILL IN EQUITY, how to award on, 353 ; see tit. Cause. award suit to be dismissed, final, 353. to enforce award, 544 ; see tit. Equity. for specific performance of contract, reference failing, 709 ; see tit. Equity. to set aside award, 699 ; see tit. Equity. when only remedy for misbehaviour of arbitrator, 642. against arbitrator, when it lies, 464 ; see tit. Arbitrator. defendant moving to dismiss, pursuant to award, 563. BISHOPS, reference by, as to estates, 39. BLANK in submission for limit of time for making award, 128. BOARD OF TRADE, appointment of umpire by, 98, 215, 219. 904 INDEX. BOND, submission by, penalty not limit damages, 51. altering submission by bond, 52, separate bonds — two bonds many parties — bond to arbi- trator, 52. stamp on bond, 52. effect of, 52. sufficient writing under Statute of Frauds, 53. averments in action on, 519 ; see tit. Pleading. executed by opponent, made rule, 567. BOROUGHS AND COUNTIES, reference between; see tit. Counties and Boroughs. BREACHES, assignment of, in action on arbitration bond, 519 ; see tit. Pleading. C. CANCELLATION of award, court no power to order, 499. CASE, stating pending tbe reference, 198. under Common Law Procedure Act, 305. how to state in award, 307. enforcing award by action on tbe, 511 ; see tit. Actiok. costs of special case, costs of cause, 627. CAUSE. How CAUSE AT LAW REFERRED, 72. Forms of suhmission in a cause, 72. submission must be by parties on the record, 72. strangers may be added, 72. no stamp on submission, 73. suhmission hy rule of court — how obtained, 73. submission by judge's order — how obtained, 73. by judge of assize, 73. submission by order of Nisi Prius — how dravm tup, 73, 164. effect, when order not drawn up, 74. taking verdict subject to reference — benefit of, 74. verdict security for damages in cause only, 75. juror withdrawn, or jury discharged, 75. real actions referable by order of Nisi Prius, 75. all matters in difference — indictment, 75. not issue out of Chancery, 76. not cause tried before sheriff, 7S. reference on the usual terms, 76. what the usual terms are, 77. clause relieving from finding on each issue, 78. clause for making order of Nisi Prius rule of court, 78. clause to raise point of law in award, 306 ; see tit. Arbi- trator, Award. setting aside a suhmission made in a cause, 78. for fraud, or mistake, or bad faith, 79. amending a submission made in a cause, 80 ; see tit. Alteration. altering terms of 7-eference without altering suhmission, 83 ; see tit. Alteration. submission in a cause a stay of proceedings, 46, 85. whether without express clause, 85. I express agreement to stay proceedings enforced, 85. when to apply to stay proceedings, 86. waiver of peremptory undertaking, 86. staying proceedings under Common Law Procedure Act, 1854, 86. submission in a cause a discharge of hail, 86. discharge of replevin sureties, 87. no discharge of defendant from custody, 87. what referred by reference of a cause, 117; see tit. Submission. "cause," or "all matters in the cause," same effect, 117. whether issues at law as well as fact referred, 118. INDEX. 905 CAUSE {continued). reference of, refers matters up to date of writ, 122. Award on, presumed final, though reference general, 263. How TO AWARD ON THE CAUSE REFERRED, 324. Disposing of, without deciding it, 324. when sufficient, 324. awarding suits to cease, 324. award of a nonsuit not final, 324. directing a stet processus, 325. Awarding on, when costs abide the event, 325. the arbitrator must decide the cause when costs abide event, 325. merely disposing of cause insufficient, 325. award of a stet processus, or cause to cease, bad, 325, 326. no legal event as to costs, 325. award deciding issues and directing stet processus, 325. award of a genei-al verdict, effect of, 320. cause must be decided separately from other matters, 370 ; see tit. Costs. with separate damages and specified amount, 370. what a sufficient decision before the new rules for taxing costs, 326. award on the whole, showing cause decided, sufficient, 327. award neither party has any claim, 327. nothing due to plaintiff, 327. plaintiff not proved defendant caused the injury, 327. plaintiff no case except for money brought into couit, 327. in ejectment, defendant to deliver up premises, and pay for rent, 327. decidinrf cause referred before issiie joined, 328. arbitrator not bound to find on each count, 328. sufficient if he decide cause for either party, 328. when advisable to award on separate claims, 328. award of cause to cease and damages, good, 328. cause to cease and payment of balance, 328. proper mode of awarding on cause referred before plea, 329. cause referred after plea and before issue joined, how to award, 329. awarding on the issues since the new rules as to costs, 329. arbitrator must award on each issue, 329. though not requested so to do, 330. arbitrator must award on each count, 330. award not deciding on account stated, 330. award defendant indebted does not show on what count, 331. award sum due to plaintiff "in respect of all the matters re- ferred," 331. award plaintiff has good cause of action as stated in the decla- ration, 331. award on non-assumpsit for plaintiff is award on all counts, 331. costs when issue joined, but not made up, 331. arbitrator must find on each demise in ejectment, 332. awarding in favour of lessors of plaintiff, 332. should specify lands awarded on in ejectment, 332. must award on each plea, 3o3. whether substantial finding on each sufficient, 333. specific finding sometimes held necessary, 333. substantial decision held sufficient, 333. whether award of general verdict a finding on each, 334. award verdict to stand but damages to be reduced, 334. proper mode of awarding on the issues, 335. awarding distributively and on pleas of set-off and payment, 335. finding on specific claim in a general count, 336. when arbitrator need not find on the issues, 336. when to tax costs himself, 336. clause in submission relieving him, 336. need not award on each issue when costs of reference only abide event, 337. 906 INDEX. CAUSE (continued). Awarding an entry of a verdict, 337. when arbitrator emfowered to direct a verdict to he entered, 837. no implied power to award entry of verdict, 338. no implied power when no verdict taken at Nisi Prius, 338. express power in submission, 338. verdict taken, power to settle the cause, 338. power to order verdict on the issues, 338. verdict taken on one issue only, 339. power in one cause gives no power in another, 839. dutj of the arbitrator in awarding a verdict, 339. substantial decision sufficient direction, 339. awarding verdict in ejectment, 340. specifying lands by metes and bounds, 341. awarding verdict subject to opinion of court, 341. effect of an unauthorized award of a verdict, 341. unauthorized award of a verdict, bad, 341. not equivalent to a direction to pay, 342. when rejected as surplusage, 343. for lessors of plaintiff in ejectment, 333, 343. Duty of the arbitrator in awarding damages, 343. arbitrator finding for plaintiff should award damages, 343. not when pleas found for defendant answer claim, 343. when plea immaterial, 344. damages on new assignment, 344. contingent damages on a demurrer, 344. general damages on all issues, 344. one breach damages on several issues, 345, damages should not exceed amount taken on the reference, 74, 315. no limit to damages as to matters out of cause, 74, 345. limiting damages by plaintiff's particulars, 346. motion to increase damages, 346. stipulated debt as damages, 346. amount to be awarded in debt, 347. not specifying amount in debt, 347. fixing day of payment of damages, 347, 392. awarding speedy execution, 347. awarding joint damages to plaintiff and party added, 347. damages in ejectment, 348. no damages to be awarded to defendant, cause only referred, 349. Awarding an entry or arrest of judgment, 349. power to direct entry of judgment, 349. no implied power, 349. when award of judgment surplusage, 349. awarding judgment on a demurrer, 349. special clause empowering arbitrator to award judgment, 350. award not specifying kind of judgment, 351. power to decide on judgment non obstante veredicto, 350. awarding damages non obstante veredicto, 351. court no power to decide on right to judgment non obstante veredicto, 352. arbitrator no power, 352. raising point as to the right on face of award, 352. piower to direct arrest of judgment, 352. arbitrator no implied powei", 353. Awarding on a suit in equity, 353. dismissing suit final, 353. determining subject of suit, 353. when arbitrator substituted for the Master in Chancery to take accounts, 353. whether exceptions lie to award, 703. costs of cause, power and duty of arbitrator as to ; see tit. Costs. what are costs of, 355 ; see tit. Costs. INDEX. 907 CAUSE {continued). proceeding in, to enforce award, 623 ; see tit. ExKcirrioN. not decided properly, setting aside award for, 069 ; see tit. Setting aside. award in, at common law, equity can set aside, 689. REFERENCE FAILING PUOOE'.EDINd WITH TUB CAUSE KKFEKUED, 705. action proceeds, unless cause terminated, 705. juror withdrawn on reference, eBect of, 70tf. wheh verdict taken, a new trial must be had, 706. trial by proviso, infant plaintiff rciiudiating award, 706. award set aside, first verdict falls with it, 7u6. when no award made, first verdict must be set aside, 706. new verdict irregular until first verdict set aside, 7o6. award set aside, costs of first trial not follow second trial, 707. allowing plaintiff to issue execution, unless defendant will refer again, 707. when only amount of damages referred, 707. when cause referred altogether, 708. held in Queen's Bench, court has power to allow execu- tion, if defendant refuse, 708. discretionary when to grant it, 708. held in Exchequer, court has no power, 708. court cannot order verdict for defendant, plaintiff refusing to refer again, 708. in equity, reference failing, suit proceeds, 709. reserved liberty to apply, 709. CAUSE, SHOWING, against motion for attachment, 600 ; see tit. Attachment. against rule to pay money awarded, 618. against rule to set aside award, 677 ; see tit. Setting ASIDE. against order nisi to set aside award in equity, 702. CERTAIN, award must be, 275 ; see tit. Award. CERTIFICATE, arbitrator to make, instead of award, 246. not require stamp, 243. two certificates forming one aw^ard, 248, same effect as award, 476. entering verdict pursuant to, 339. may be set aside as an award, 649. rule to set aside, must state ground of motion, 668. CERTIFYING for costs, 381 ; see tit. Costs. for speedy execution, 347. award referred back when certificate defective, 449. CHAMBERS, judge at, no power to set aside award, 642 ; see tit. Judge. showing cause at, against rule to pay amount awarded, 618. CHANCE, appointing umpire by, bad, 220 ; see tit. Umpire. CHANCELLOR, arbitrator sometimes as. 111. CHANCERY, submission and award in ; see tit. Submission, Equitv, a court of record, 56. CHAPTERS, reference by, 39. CHARGES of arbitrator,, whether action lies for, 457 ; see tit. Arbitrator. CHARITY suit, consent of Attorney-general to reference necessary, 23. so to proceeding on award in equity, 563. corporation compelled to renew lease, 563. awarding as to lease of estates of a, 465. CHATTEL of wife, husband may bind by reference, 19. deposited with arbitrator to abide award, 462, 464. whether arbitrator may award, 387. CHOSES IN ACTION of wife, award reduces into possession, 19, 4S1. CIVIL INTERESTS ; see tit. Subject matters op REruiiENCE, CIVIL LAW will compel arbitrator to award, 196. 908 INDEX. CLAIM admitted is a matter in difference, 116, 256. abandoned is not a matter in difference, 116, 256. for compensation under the Lands Glauses Act, award on, 427 ; see tit. Lands Clauses Consolidation Act. CLERICAL ERROR in submission, amending, 82. in award, in description of subject matter, not material, 254. CLERK to attorney no power to consent to appointment of umpire by lot, 29, 222. of Nisi Prius draws up order of reference, 164. CLIENT, when bound by reference by his attorney, 25. or his counsel, 29. CLIENT AND ATTORNEY, awarding costs as between, 319, 363. COAL, award to dig for, performance of, 497. CO-DEFENDANTS, mutual claims of, referred by general reference, 122. COLLEGE, reference by master and fellows, 22. COLLEGIATE CORPORATIONS, reference by, 39. COLLUSION of arbitrator not pleadable, 530 ; see tit. Plea. charging, in bill to impeach award, 466. to procure arbitrator's absence, 208. COLORABLE AWARD, effect of, 477. COMMENCEMENT of arbitrator's authority, 126 ; see tit. Arbitrator. of umpire's, 223; see tit. Umpire. COMMISSIONERS OP PARTITION, powers of, 417. COMMITTAL to Queen's Prison of party not performing award in equity, 560, COMMITTEE OF LUNATIC, power of to refer, 32; see tit. Lunatic. COMMON LAW PROCEDURE ACT, 1854. compulsory reference of action for matters of account, after writ, 7, 88. at the trial, 7, 88. judge at Nisi Prius cannot order, 90. in what cases ordered, 90. arbitrator no impUed power over costs of, 89, 359. same powers and duties as in other references, 171. award exempt from stamp, 240. time for enforcing award, 630. time for setting aside award, 651. action or suit may be stayed after any agreement to refer, 46 ; see Staying PROCEEDiNoa. any agreement of reference in writing made rule unless contrary intention appear, 61. revocabiliiy of such agreement, 61, 148. on failure of parties or arbitrators, judge may appoint single arbitrator, or umpire or third arbitrator, 67, 157, 205, 219. on reference to two arbitrators one party failing to appoint, other arbitrator may act alone, 67, 157. two arbitrators may appoint umpire, unless it be otherwise provided, 67, 205. death, incapacity, or refusal of arbitrator or umpire, how vacancy to be supplied, 67, 68. can no longer refer to County Court judge, 93. submission not limiting time, duration of arbitrator's authority, three months, 127. same limit when award referred back, 127, 452. parties may enlarge time by writing, 127. court or judge may enlarge for good cause, to be stated in the order, 127, 142. enlargement not specified to be for one month, 127, 142. umpire's time commences on expiration of arbitrator's time, or their disagreement, 127. INDEX. 909 COMMON LAW PROCEDURE ACT, 1854 [continued). whether reference ot luilictnient, or suit by order in Equity, revocable, lis, 172 ; see Addenda. whether s. 7, as to proceedings in the reference, be limited to cuiupulsory references, 172. power to refer back (s. 8) general, not limited to compulsory references, 173, 445. stating a case or trying an is.sue pending the reference, 198. arbitrator may slate a special case, 305. whether reference by consent or compulsory, 306. pleadings to be awarded on distributively, 335. award cannot be enforced by attachment, 578. or rule to pay, 610. signing judgment on compulsory reference, 636. rule to deliver possession of land pursuant to award, 45, 562, 622. costs on reference, 89, 359. costs on compulsory reference, 630. COMMONS, inclosure of, by award, 6 ; see tit. Inclosure Act. COMMONS, HOUSE OF, no attachment on award against member of, 582. COMPANIES GLAUSES CONSOLIDATION ACT, reference under, 98. matters authorized or directed to be referred concerning incorporated Joint Stock Companies, 8. unless both parties concur, each to appoint arbitrator, 98. submission not revocable without consent, 98, 152. not revocable by death of party, 162. on death or incapacity of sole arbitrator, matter referred de novo, 98, 158. on decath, incapacity, refusal, or neglect of one of two ai'bitrators, new one may be appointed, 98, 158, 212. arbitrators to appoint umpire before entering on reference, 215, 219. appointment to be in writing, 215, 223. effect, if they cannot agree as to an umpire, 98. judge may appoint by Common Law Procedure Act, 1854, 219. on death, refusal, or neglect, new umpire, 219. submission to be made rule of court, 98, 577. costs of arbitration in discretion of arbitrators or their umpire, 360. arbitrators and umpire may administer oath, 177, 133. may examine on oath parties and witnesses, 177, 183. may call for documents, 183. COMPANY, mandamus against, to enforce award, 639. COMPENSATION for future damage, reference of, 124. may he awarded for lands taken for public undertakings, 6. award of, under the Lands Clauses Act, 427 ; see tit. Lanhs Clauses Consolidation Act. inquiry, costs of, 380. COMPULSORY REFERENCE, 8, 88, 181 ; see tit. Common Law Procedcre Act, 1854. COMPUTATION of time for making award, 129. COMPUTING principal and interest on award, 512. CONCEALMENT, fraudulent, ground for setting aside award, 662. CONCURRENT ACT awarded, averring performance of, in pleading, 517. CONDITION of bond may be altered by deed, 508. arbitrator imposing condition on party, improper, 110, 698. CONDITION PRECEDENT to arbitrators entering on reference, 168. making declaration under Lands Clauses Act, 168. sometimes appointment of umj'ire, 209, 218. sometimes of third arbitrator, '210. awarded must be performed before attachment, 590. 910 INDEX. CONDITIONAL AWARD, 260 ; see tit. Award. of a yerdict, 626. CONDITIONAL DIRECTION in award as to stranger, 425. CONDUCT of parties a consent to enlargement, 138. CONSENT of creditors to reference by assignee of bankrupt, 32. to reference binds stranger, 22. to award binds stranger, 551. of parties to appointment of umpire by lot, 221 ; see tit. Umpire. to enlarge time for making award, 137. cures irregularity in proceedings, 655. to marriage, plea to action for revocation by maiTiage, 147. CONSENT CLAUSE, what a sufficient, under stat. Will. III., 59. CONSEQUENCES of the award, 475 ; see tit. Award. CONSISTENT, award must be, 288 ; see tit. Award. finding on inconsistent pleas for same party, when valid, 290. CONSPIRACY, indictment for, referable, 12, 123. CONSTRUCTION OF AWARD, Uberal, 495. with a view to support award, 681. CONTEMPT of court, breach of submission made rule is a, 69, 88. revocation of submission made rule is a, 145. disobedience to award is a, 578 ; see tit. Attachment. party reported in, sentence, 607, 608 ; see tit. Attachment. CONTINGENT CLAIMS, reference of, 123, 124. CONTRACT, enforcing, though reference fail, 710 ; see tit. Equity. CONTRADICTORY AWARD, 239 ; see tit. Award. CONVEYANCE, arbitrator making partition should award, 255, 418. should award to pass title to land, 404. must specify nature of, 404. need not draw it, 404. reserving power to settle, when good, 273 ; see tit. Award. advisable to award who to prepare, 405. award silent, who bound to prepare and tender, 499. costs of preparing, 499. award to execute, enforced in equity, 545. CONVEYING lands to arbitrator on trust to abide award, 45. CO-OBLIGORS, action between, on the award, 508. COPY of submission, making rule of court, 571. of allocatur, error in, effect on motion for attachment, 593. of award, &c., serving, in attachment, 592. of award, moving to set aside on, 667. CORPORATION, reference by, sole or aggregate, 21. _ rector as to tithes during his incumbency, 21. deans and chapters, mayors and commonalty, 21. charitable, with consent of Attorney-general, 21. attorney of, appointment need not be under seal, 26, 620. ' ecclesiastical and collegiate, by statute, 39. no attachment or award against, 583. compelled to renew lease awarded, 564. Joint Stock Incorporated Companies ; see tit. Companies Clauses Consolidation Act. CORRUPTION, or undue means, what amount to, 665. of arbitrator ground for setting aside award, 654 ; see tit. Set- ting Aside. charged in bill to impeach award, 466. must be denied by plea and answer, 554. INDEX. 911 COSTS, moving for, wlicn award prevented beiug made, 101. DUTY OP THK ARBITHATOR IN AWAH^JlxNO AS TO, 355. The arbitrator's power and duty in awarding costs, 355. what are tlcc costs of the cause, reference, and award, 355. what costs costs of cause, 355, 375. ■what costs of reference, 356, 375. costs of witnesses costs of reference, 356. costs of accountant, 356. costs of witnesses rejected by arbitrator not allowed, G'29. arbitrator's fees when costs of reference, 357. costs of reference need not be taxed before action, 505. costs of deeds awarded to be executed, 364, what costs of award, 357. costs of attorney to draw award, 629, costs of award, action for, 506, 507. when costs of reference costs of cause, 357. costs of showing cause, rule to set aside award, 358, 6S3. costs of umpirage, arbitrator's fees may be, 232, 357. (he power of the arbitrator over costs, 358. arbitrator has implied power over costs of cause, 359. not of reference or award, 359. costs of compulsory reference of action, 89, 359. costs of indictment, 359. under the Lands Clauses Act, 96, 359, 440. of compensation enquiry settled by Master, 108. under the Railways Clauses Act, 96, 359. under the Companies Clauses Act, 360. diifj/ of the arbitrator in aimrding costs, 360. award silent as to costs, 360, costs of cause follow verdict, 360, of reference and award, how borne, 361, when arbitrator bound to award sume costs, 361. fixing amount of costs in award, 361. what sufiScient certainty as to amount, 279. delegating taxation of, to the Master, 271. when arbitrator bound to fix amount, 361, special clause, 361. cause in inferior court, 361. reference out of court, 361. what a sufficient award, 370. arbitrator may apportion costs, 361 . costs as between attorney and client, 319, 363, costs of special jury, 364. setting off costs in cross actions, 364. awarding costs to be paid by party disobeying award, 362. awarding eat-h party to pay moiety, inconvenient, 363» ■who to get costs taxed, 364. arbitrator awarding a fee to himself, 364. excess as to costs when separable, award good, 312, when inseparable, award set aside, 318, 322. effect of awarding payment of the costs of the cause, 367. costs of cause awarded same as on a verdict, 367, award, of costs in the action not give costs of reference, 367, costs of special jury, 368. Power and duty of the arbitrator when costs abide the event, 368, power of the arbitrator when costs abide the event, 368, " the costs," costs of cause and reference, 368, arbitrator no power on costs abiding event, 369. awarding speedy execution, 369. awarding injunction, 369. what the event when the costs of cause only abide the event, 370. costs of cause abiding event of cause, 370. how to award on the cause, 325 ; see tit. Causk. arbitrator must decide cause sci arately, 370. must give separate damages in cause, 370. 912 INDEX. COSTS (continued). to allow taxing costs on verdict, 370. to determine right to costs, 371. aud scale of taxation, 371. cost of claims when not distiibutive, 371. waiving right to costs, 371. what the event when the costs of cause and reference abide the event, 371. event, general event of whole award, 371 . no costs, awaid finding part for each, 372. costs following balance, 372. when costs follow general event, whether arbitrator need decide cause, 373. awarding action to cease, 373. costs of cause abiding event of cause, 373. of causes abiding event of each, 373. of cause and suit abiding general event, 373. costs not abiding event, how to award on the cause, 337 ; see tit. Cause. effect of the award when costs abide the event, 375. awai'd same effect as a verdict, 375. as to costs of first trial, 375. of executors plaintiffs, 376. damages under forty shillings, 376. reference before issue finding on one matter for plaintiff, 376. amount recovered by verdict, 377. reference after verdict, 377. compulsory reference, 378. costs when defendant arrested for too large a sum, 378. affidavit of debt for too much, 379. double costs in replevin, 379. costs in action for not setting out tithes, 379. depriving of costs, Court of Requests Act, 380. costs of compensation inquiry, 380. costs under Small Debts Act, 380. supporting award defective as to costs, 380. waiving right to costs, 380. Duty of the arbitrator when empowered to certify for costs, 381. no implied power, 381. hardship when not given, 381. certifying cause fit to be tried before a judge, 382. judge may certify at any time, 382. power transferred from judge to arbitrator, 382. not prevent judge's other power, 382. arbitrator must certify in award for costs of special jury, 382. certifying no distinct matter of complaint on each count, 383. action brought to try a right, 383. arbitrator must ceitify in the award, 384. costs of preparing conveyance awarded, who to bear, 499. effect of award on attorney's lien for costs, 488 ; see tit. Attorney. when, bankrupt's certificate no discharge from costs, 609 ; see tit. Bankrupt. when admiuistrator liable to, 32 ; see tit. Executor. taxation of, 627 ; see tit. Execution. when to be taxed, 630. party ordered to pay must get taxed in time, 498. new taxation after award on reference back, 634. costs of abortive award after reference back, 634. attachment lies for costs awarded, 581. not for arbitrator for his fees, 457. rule to pay costs awarded, specifying amount, 621. setting award aside for not deciding properly r.s to, 662 ; see tit. Set- ting ASIDE, of first trial, award set aside and new trial had, 707. may be prayed in equity against corrupt arbitrator, 466. rNDEx. 913 COUNCIL OF BOROUGH, reference by, 98 ; see tit. Counties and Boeouqus, COUNSEL, power of, to refer the cause, 27. when with full information of facts, 28. in the Scotch courts, 29. attending by, on reference, 165. arbitrator taking opinion of, 202. no ground for setting aside award, 656. refusing party time to get, 655. refusing to hear, 166. refusing to hear on Friendly Society reference, 37. employed by arbitrator to draw up award, 203. reservation in award to, to settle deeds, 274. opinion of, whether an award, 242. acting as arbitrator ; see tit. Barristee. costs of, 629. COUNT in declaration awarding on each, 329. COUNTIES AND BOROUGHS, may refer disputes concerning prison expenses, 8. appointment of arbitrator by judge of assize on disagreement, 98. death, refusal, or disability of arbitrator, 98. new one to be appointed, 98, 157. COUNTY COURT, submission by order o^ 93. not revocable, 151. arbitrator no power to administer oath, 178. judge, no compulsory reference to, 90, 196. COURT in bank, arbitrator sometimes as, 110. consent of, to reference of indictment, 14. may compel reference of action for matters of account, 89. jurisdiction of, when submission cannot be made rule, 53. when made rule under the 9 & 10 WiU. III. c. 15, 54. no summary before submission be made rule, 665. to enforce submission in a cause, 87. to set aside submission, 79. to amend submission, 80. to alter terms of reference, 83. allowing new particulars, new plea, 84. to enlarge time for making award, 139 ; see tit. Enlarob- MENT. to give leave to revoke submission, 147 ; see tit. Revoca- tion. to compel attendance of witnesses before the arbitrator, 169. productiou of documents by witnesses, 170; by the parties, 183. to swear the witnesses on the reference, 176. none, to compel arbitrator to award, 196. when to restrain him making award, 196. none, to make him to refund excessive fee, 460. none, to alter award, 492. none, to compel delivery up of satisfied award, 499. to enforce award at law, see tit. Action, Attachment, Execution. to enforce award in equity, 545 ; see tit. Equity. to review arbitrator's decision, see tit. Arbitrator, Award. inquiring of arbitrator the grounds of his award, 303, 473; see tit. Arbitrator. to set aside award at law, 641 ; see tit. Setting Asidb. to set aside award in equity, 689 ; see tit. Equity. to set aside judgment entered pursuant to award, 685 ; see tit. Setting aside. to refer back award, 444 ; see tit. Referring back. to compel defendant to refer again, first award set aside, 707 ; see tit. Cause. favours awards, 681. will presume award good until proved bad, 258 ; see tit. Award. 3 N 914 INDEX. COVENANT not to sue, effect of, 68. enforcing award by action of, 509 ; see tit. Action. COVERTURE, party referring with knowledge of opponent's, 18, 287. award not set aside, 664. CRIMINAL MATTERS, when referable, 11 ; see tit. Subject matters of ee- FERENOE. CROSS ACTIONS, arbitrator cannot award costs of to be set off, 364. CROSS DEMAND, an answer to motion for attachment on award, 603. CROSS MOTIONS for attachment and setting aside award together, 604. to set aside, on motion to make award order of equity, 702. D. DAMAGES to accrue to a mine periodically, reference of, 125. liquidated, for breach of agreement to refer, 63. from severance or otherwise what included, 121. awarding, 343 ; see tit. Cause. in cause, limited by verdict taken on the reference, 74. omitting to assess, award set aside, 659. award conclusive as to amount of, 536. DATE of reference, matters arising after, not within submission, 123. of award, when computed from delivery, 275. DE PR^MISSIS, award ; see tit. Award. averring award made, 515. DEAN AND CHAPTER, reference by, 21. DEATH of a party when a revocation of submission, 1 58 ; see tit. Revocation. clause to prevent it being a revocation, 161 ; see tit. Revocation. when not prevent enlargement of time, 134. award prepared but not executed before, void, 710. sum awarded must be paid to personal representative, 501. cause abating by, no attachment on award, 580. of arbitrator when a revocation, 167; see tit. Revocation. of arbitrator or umpire, supplying vacancy, 67, 68, 157. concerning prisoners expenses by statute, effect, 98. DEBT, certain, reference of, 4 ; see tit. Subject matters of rkfbrenck. awarding as to amount of, 347. damages to be, 294. on the arbitration bond, 508 ; see tit. Action. on the award, 507 ; see tit. Action. DEBTS AND CREDITS of a firm, awarding on, 397. DECEIT of party, award set aside for, 662. DECLARATION in action on award, averments in, 512; see tit. Pleading. of arbitrator under the Lands and Railways Clauses Act, 168. to be annexed to the award, 442. wilfully acting contrary to, a misdemeanor, 461. DECREE, effect of award as a, 476. DECREET ARBITRAL, agreement put in form of, 477. DEED, submission by, 53. one party only executing under seal, 53. •when must be executed by all parties before arbitrator has power, 126. or parties bound, 20. effect of, 53. revocation by, when necessary, 144. award under seal no deed, 241. award to execute ; see tit. Conveyance. reserving power to settle, 273 ; see tit. Award. awarded, executing, 499 ; see tit. Peeformanob. INDEX. 915 DEFECT in award may be shown as cause to defeat attachment, 600. DEFENDANT arrested, not entitled to discharge on reference, 87, or on award made, 48(3. award of money to, bad, cause only referred, 349. balance not awarded to, on general reference, setting aside award for, 660. court no power to direct verdict for, plaintiff refusing to refer again, 708. DEFICIENCY, setting aside award for not providing as to, 660. DELAY, affected and wilful, preventing award, costs for, 101. in applying, bar to attachment, 585. DELEGATION of authority by arbitrator, 199, 207 ; see tit. Arbitrator. in award, 269, 272 ; see tit. Award. setting aside award for, 656, 659. DELIVERY of award, 238 ; see tit. Award. up of award, court no power to order, 499. DEMAND omitted, effect of award on, 478 ; see tit. Award. of obedience to award necessary before attachment, 588 ; see tit. Attachment. on rule to pay sum awarded, 615 ; see tit. Exeoutiok. before enforcing award in equity, 560. DEMURRER, whether referred by referring cause, 118, contingent damages on, 344. awarding judgment on, 350. award on conclusive, though wrong in law, 293. to award bad on its face as pleaded, 534. to bill in equity setting out void award, 552. to bill to set aside award in equity, 700 ; see tit. Eqoitt. by arbitrator when made defendant to bill to set aside award, 465 ; see tit. Arbitrator. DEPARTURE, rejoining payment after plea of no award, 528. replying distress by power under award after avowry of common law power, 526. DEVASTAVIT, when reference by executor a, 32. DIRECTIONS in award, 385 ; see tit. Arbitrator. conditional in award, 267, 424 ; see tit. Award. DISABILITY of arbitrator between Counties and Boroughs, new one appointed, 99. DISAGREEMENT of arbitrators, termination of their authority, 156. what is a, 225 ; see tit. Umpire. umpire's authority commences, 127. DISCHARGING JURY on reference at Nisi Prius, 75. DISCONTINUANCE, award of, 324, 325, 423. DISCOVERY, equity not grant in aid of voluntary reference, 92, 549. aliter on compulsory reference, 92, 549. pleading award in bar of, in equity, 552 ; see tit. Equiti. of new matter, award whether set aside for, 662 ; see tit. Sbttiho ASIDE. DISCRETIONARY, with cpurt to grant attachment, 684. or rule to pay money awarded, 614. DISMISS bill, defendant moving to, pursuant to award, 563, DISTRESS to enforce award between masters and workmen, 99. power of, when arbitrator may award, 389. infinite under Railway Companies Arbitration Act, 622. DISTRIBUTIVE finding on double plea cost of, 628. DIVORCE, suit for, reference of, 10 ; see tit. Ecolksiastioal court. DOCUMENTS, power of arbitrator to call for, 183. production of, how enforced, 170, 172, 183. 3 N 2 916 INDEX. DRAIN, award of, capacity not specified, 415, 496. DRAINAGE, damage by, reference of, 39. DUPLICATE orders of reference not agreeing, 302. order of reference made rule of court, 570. appointment of arbitrators under Lands Clauses Act, 576. DURATION of arbitrator's authority, 126; see tit. Arbitrator. of umpire's authority, 227; see tit. Umpire. E. EASEMENT, awarding, 410. ECCLESIASTICAL AND COLLEGIATE CORPORATIONS, reference by, by statute as to their lands, 39. ECCLESIASTICAL COURT, suits in, reference of, 10. for divorce and alimony, 10. terms of separation referable, 10. refei-ence of, within stat. W, III., 58. EFFECT of the award, 476 ; see tit. Award. of an award in evidence, 536 ; see tit. Evidence. of failure of the reference, 705 ; see tit. Cause and Eqditt. EJECTMENT, awarding verdict in, 340. on each demise, 332. award to enter verdict for lessor of plaintiffs, 332, 340. award in, conclusive as to title to land, 482, 637. judgment in, 637 ; see tit. Execution. rule to deliver possession of land awarded enforceable as judgment in, 45, 562, 622. when award bad for not deciding, 256. ELECTING to proceed by action or attachment on award, 586, ELEGIT to enforce award in equity, 562. ENFORCING submission in a cause, 87. award by action, 505 ; see tit. Action. by attachment, 578 ; see tit. Attachment. by proceedings in the cause referred, 623; see tit. Exe- cution. by execution under the statute, 611; see tit. Execution. in equity, 544 ; see tit. Equity. contract dependent on abortive reference, 709 ; see tit. Equity. ENLARGEMENT of the time hy the arbitrator, 133. no implied power to enlarge, 133. should be made during original period, 1 33. after period under special power good, 134. enlarging "until" a certain day, 134. defective clause to enlarge, 134. enlarging after death of party, 134. judge's order for, when to be made, 135. by two of three arbitrators, 135. how it should be made, 135. according to submission, 135. often by writing indorsed on submission, 136. no particular form of words, 136. from time to time, 136. by umpire not enure for arbitrators, 137, 227. under the Lands Clauses Act, 137. of the time by consent of the parties, 137. by consent, a new submission, 137. when consent to be in writing, 138. by deed, not defeat action on arbitration bond, 509. INDEX. U17 ENLARGEMENT {continued). conduct of parties often a consent to, 138. attending meetings after time expired, 138. bringing forward new claims after time, 13i>. stating future day as limit, 139. enlarging time by consent a discharge of surety, 139. enlarging time under Common Law Procedure Act, 18/14, 127, 1 12. of the time by the courts of Imv, 139. no common law power to enlarge, 139. power given by Stat. 3 & 4 W. IV c. 42, s. 39, 140. court can enlarge though no attempt to revoke, 140. court can enlarge when arbitrator can enlarge, 140. enlarging umpire's time, 141. court may enlarge after time elapsed, 141. after award, 141. rule to enlarge not granted ex parte, 142. drawing up rule, 142. enlarging time under Common Law Procedure Act, 1854, 127, 142. statute not empower coui-ts of equity, 143, but see Addenda. practical enlargement of time in equity, 143. not an entering on the matters referred, 218. before appointment of third arbitrator the two cannot enlarge, 210. by umpire before disagreement of arbitrators, 227. making part of rule with submission, 570. unnecessary on motion to set aside award, 569. notice of, what sufficient for attachment, 592. ENQUIRY, WRIT OF, when unnecessary in action on award, 512. after judgment on nul tiel record, 512. ENTERING verdict, 623 ; see tit. Verdict, Execution. judgment, 634; see tit. Judgment, Execution. ENTIRE, award must be, 247 ; see tit. Award. ENTITLING affidavits ; see tit. Affidavits. EQUITY, submission by order of court of, 91. stay of proceedings in equity, 91. revocable at will of a party, 148, 152. will grant discovery on compulsory reference not on voluntary, 92, 549. statute prohibiting revocation not apply to, 148. no jurisdiction by statute of Will. IV. to enlarge time, 143. practical enlargement, 143. jurisdiction of, under statute of Will. III., 55. relief on mistake in submission, 696. practice making submission under statute, order of, 572 ; see tit. Sub- mission. under the Lands Clauses Act, 575; see tit. Lands Clauses Consolidation Act. issue from court of, not referable by court of Nisi Prius, 76, 92. jurisdiction of, gone by such reference, 92. eiiect of an award as a decree, 476. whether suit will lie for matter omitted in award, 479. the award as a ground of proceedings or defence in equity, 544. Enforcing an award by bill in equity, 544. when a bill in equity will lie, 544. whatever the submission bill will lie, 544. performance of award enforced :is of a contract, 544. no bill lies to enforce award for payment of money only, 544. bill lies to enforce award of lease or conveyance of lands, 544. under Lands Clauses Act, 545. old rule, no bill lay unless award ratified or part performed, 646. award bad in law enforced when part performed, 547. party not bound to take penalty in lieu of performance, 518. proceeding at law no bar to bill, 548. whether lapse of time a bar, 548. 918 INDEX. EQUITY {continued). scire facias on submission by recognisance, 549. when award invalid or inequitable, 549. no bill lies to enforce award contrary to law, 549. illegal direction not enforceable, 549. award directing a perpetuity, 549. unreasonable award, 549. inequitable award, 549. award affecting infant, whether enforced, 19, 549. affecting married woman's lands, 550. enforcing award against stranger consenting to it, 551. stranger bound through laches, 651. stranger cannot enforce award, 551. demurrer to bill setting forth Toid award, 552. award Toid in part, 552. injunction to prevent breach of award, 552. to restrain continuing nuisance not prohibited by award, 552. Pleading an award in bar to a bill in equity, 552. pleading award to bill to set it aside, 552. to open the account, 552. plea good to merits and discovery, 552. whether award made after bill filed pleadable, 553. ground of motion to stay proceedings, 553. corruption or fraud charged in bill, 554. must be denied by plea and answer, 554. whether plea of award good when corruption denied in answer only, 554. answer must deny specifically charges in bill, 555. plea of award and release, 555. no plea for a stranger to submission, 556. Enforcing an award by summary proceedings in equity, 556, whether the award must he made an order of court before enforce- ment, 556. held not necessary, 656. motion to make award order of court requires notice, 557. making award under the statute an order of Chancery, 558. award cannot be made a record at law, 558. motion and petition to enforce award, 559. award under the statute of Will. III., 569. award not a judgment or decree, 559. practice enforcing award under the statute, 559. submission and award must be made orders of court, 559. notice of motion to make award order, 559. when cross motion to set aside may be made, 559. service of award and demand of performance, 560. notice of motion for order to obey award, 560. motion may be made in term or vacation, 560. order to obey award within a specified time, 560. order must be served personally, 560. order to obey, or stand committed, 560. order absolute for committal, 560. party imprisoned until he obey, 561. I practice when award made under order of equity in a suit, 561. award must be made order of court, 561. notice of motion to obey award, 561. order to perform within specified time, 561. order enforced as order in a suit, 561. by attachment, 561, 579. sequestration, 562. serjeant-at-arms, 562. writ of assistance, 562. order to deliver possession of land enforced as a judgment in ejectment, 42, 562, 622. INDEX. 010 EQUITY (continued). enforcing payment of sum awarded under statute of Victoria, 5&2. fieri facias and elegit, one month after order passed and entered, 562. motion to pay money out of court according to award, 663. defendant cannot move to dismiss plaintiff's bill, submi.ssion rule of court of common law, oGii. enforcing award in a charity suit by petition, 563. consent of Attorney-General requisite, 563. charitable corporation compelled to renew a lease, 563. IMPEACHINO AN AWARD IN EQUITY, 689. In what cases Chancery has jurisdiction to set aside an award, 689. When award not under the statute of William III., 689. Chancery has jurisdiction, 689. when reference by private agreement, 690. when reference in a cause at common law, 690. not affected by the statute of Will. III., 690. when award under the statute of William III., 690. whether equity has jurisdiction when submission made a rule of a court of common law, 690. early cases held equity had juiisdiction, 690. concurrent jurisdiction of law and equity, 691. later cases show equity has no jurisdiction, 692. though submission not made rule until after award made, 692. or until after bill filed, 693. though submission is to be a rule of Chancery, Chancery no jurisdiction by bill, 694. but by motion, 694. equity no jurisdiction, even in case of fraud, 695. On what grounds equity will set aside an award, 695, grounds usually same in equity as at law, 695. mistake in submission, 696. grounds open varying with form of submission, 696. grounds open varying with object of bill, 696. whether for eiTor of arbiti-ator in a cause, 697. effect of clause in submission to refer back award, 697. Exchequer not review decision of arbitrator under order of Chancery, 697. award conclusive in equity as to all within submission, 697. evidence as to merits let in to impeach conduct of arbitrator, 698. award under a statute made on a mistake, not set aside, 698. What the modes of proceeding to set aside an award in equity, 699. proceeding by bill to set aside an award, 699. bill lies when submission not under statute of Will. III. , 689. on reference of suit at trial of an issue, jurisiliction of equity gone, 699. grounds of objection must be stated particularly in bill, 699. pleading the award in bar, 700. demurrer when grounds alleged insufficient, 700. not that parties have proceeded at law, 700. arbitrator charged with corruption cannot demur, 700. when arbitrator to be made a defendant, 701. froceeding by motion to set aside an award, 701. whether submission be in a suit or under statute of Will. III. 701. submission must be made order of court before motion, 702. notice of motion must be given, 702. motion may be in term or out of term, 702. notice of motion need not state grounds, 7 02. how affidavits to be entitled, 702. cross motion to set aside, on motion to make award order of court, 702. 920 INDEX. EQUITY (continued). giving further time for setting aside than statute allows, 648. no appeal to House of Lords against decision of Chancery, 702. order nisi to set aside award under Lands Clauses Act, 703. filing exceptions to an award in a suit, 703. old practice to file exceptions to awards, 703. present practice no exceptions, but when arbitrator put for the Master, 703. reference failing, suit proceeds, 709. reserved liberty to apply to the court, 709. enforcing in equity a contract dependent on an abortive reference, 709. when reference of essential terms, no bill will lie to enforce contract, 709. equity not divide an estate, or fix purchase price, 710. party dying after award prepared, but not executed, 710. contract enforced when submission not of essence and part performance, 710. though reference respecting price, when part performance, 711. acts of arbitrators, as surveying, not part performance, 711. award made after time elapsed, when enforced, 711. ERROR, clause prohibiting striking out, 81. clerical, amending, 82. of arbitrator as to evidence, whether ground of setting aside award in equity, 697. in judgment, award not set aside for, 656. ESTATE, equity not divide, reference failing, 710. ESTOPPEL, award acted on an, 540. EVENT OF AWARD, when costs abide what is ; see tit. Costs, Cause. EVIDENCE, duty of arbitrator to hear, 178 ; see tit. Abbitrator. arbitrator bound by rules of, 193; see tit. Arbitrator. should decide points of, 193 ; see tit. Arbitratob. should take notes of, 182. should hear, on reference back, generally, 452. by affidavits, when admissible on reference, 178. rejecting, no ground for setting aside award, 655. awarding contrary to, no ground, 294. new discovered, whether ground, 662. admitting improper, when ground for revocation, 150, 151. Proof of submission and award, 534. in debt on award, execution of all parties must be proved, 534, rule embodying submission no evidence of the agreement of reference, 534. but evidence of submission when by judge's order, 534. performanca of award evidence of submission, 535. recital in award no evidence of appointment of third arbitrator, .535. acting no proof of appointment, 535. admission by plaintiff, 535. production of submission and award primS, facie evidence, 635. award purporting to be by three, executed by two arbitrators, 535. ] when notices under Inclosure Act presumed from award, 535. order of justices presumed, 536. Effect of an award in evidence, 536. valid award conclusive as, 536. when evidence on non assumpsit, 536. not evidence as an account stated, 536. unless adopted and acted on, 536. in ejectment, award respecting title to land conclusive, 536. conclusive as to amount of damages, 536. when award conclusive against an executor as to assets, 537. award merely finding debt existing, not conclusive, £37. INDEX. 921 EVIDENCE (continued). award directing execator to pay, conclusive, 537. award in an action not evidence against party on an indictment, 537. effect of an award as evidence as to slramjers, 537. no evidence of right or reputation against stranger, 537, 538. award for tenant not evidence for landlord, 538. not evidence for the crown against party, 538, award sometimes evidence for a stranger, 539. award evidence for arbitrator, 539. award acted on evidence as to stranger, 539. award respecting right to tolls, 539. stranger acquiescing in award, 540. award acted on an estoppel, 540. impeaching by evidence award put in evidence, 540. proving matter not awarded on, 541. issues in cause not decided, 541. showing demand in action not within reference, 541. evidence of misconduct or mistake of arbitrator not admissible, 541. correctness of arbitrator's decision cannot be questioned, 542. proving submission obtained by fraud, 542. proving deficiency of assets, proviso in submission for abatement, 542. EX PARTE, proceeding, 197 ; see tit. Arbitrator. provision as to in statute, 191. when ground for setting aside award, 655. EXAMINATION on oath by the arbitrator, 175. of parties, 183; of witnesses, 184; see tit. Arbitrator. EXCEPTIONS, filing to award, 703 ; see tit. Equity. EXCESS in award, 312 ; see tit. Award, Arbitrator. not cured by recital in award, 245. setting aside award for, 661; see tit. SETTiNa aside. EXCUSE for delay in moving to set aside award, 651 ; see tit. Setting aside. EXECUTION of the submission, what necessary, 43 , of the award, 234 ; see tit. Award, by joint arbitrators, 209, 235. of a deed awarded, 499 ; see tit. Performance, execution under the statute op Victoria, 611. rule to pay the amount awarded, 611. no summary execution on goods before statute, 611. Stat, 1 & 2 Vict. c. 110, s. 18, 612. gives to rules to pay effect of judgments, 612. rule embodying submission not a rule by which money is payable, 612. construction of the statute, 612. award cannot be made a record at law, 558. proper course to move for rule to pay amount awarded, 612. rule granted by common law power of the courts, 613. statute gives it eifect of a judgment, 613. discretionary with court to grant rule, 614. award containing no direction to pay, 614. rule refused when right doubtful, 614. when award does not specify amount, 614. when party pursues other remedy, 614. attorney cannot have rule to enforce lien in his own name, 615. no rule for costs under Lands Clauses Act award, 615. practice as to obtaining the ride, 615. demand of performance same as in attachment, 615. service of award, &c., same as in attachment, 616. service of copy award, showing original afterwards, 616. sometimes personal service dispensed with, 616. 922 INDEX. EXECUTION (continued). demand by attorney good, award to pay plaintiff or attorney, 616. party ■with knowledge of award avoiding service, 616. moving on last day of term, 617. rule, rule nisi only, 617. rule need not state party abandons right to attachment, 617. or party at liberty to issue execution, 617. on reading what, rule drawn up, 617. rule, six day rule, 617. whether cause can be shown at chambers, 618. service of rule nisi must generally be personal, 618. cause cannot be shown last day of term, 618. official manager of company being wound up may show cause, 618. same objections to award open aa on motion for attachment, 618. rule refused in case of set-off, 618. no objection time for setting aside award not expired, 619. no rule when misnomer of party in award, 619. after reference back no rule granted on old allocatur, 619. rule against company being wound up refused, 619. presumption of payment of costs of award, 620. no rule award ordering payment to a strangei-, 620, attorney of corporation not appointed under seal no answer to motion, 620. making rule absolute on terms, 621. on motion for rule award referred back, 621. producing award on drawing up rule, 621. specifying amount of costs in rule, 621. interest on sum awarded not recoverable, 621. no scire facias necessary after a year and a day, 621. under the statute of Victoria, in equity, 562. by fieri facias, and elegit, 562. rule to deliver land under the Common Law Procedure Act, 1854, 622. process under the Kailway Companies Arbitration Act, 622. EXECUTION IN THE CAUSK REFERRED, 623. entering the verdict pursuant to the award, 623. award in the cause same effect as finding of jury, 623. verdict taken on the reference modified by award, 623. no enforcing judgment contrary to the submission, 624. taxing costs of cause when no award of separate damages in the cause, 624. practice as to entering verdict, 625. submission must be made rule of court, 625. postea entered pursuant to award, 625. no application to court necessary, 625. submission must be made rule before any application to court, 625. award of verdict conditional on court's decision, 626. when party must apply to court, 626. rule may be to enter verdict or set aside award, 626. verdict cannot be amended by arbitrator's notes, 626. taxing the costs of the cause and reference, 627. practice, 627. costs of cause taxed on postea, 627. of reference on nile embodying submission, 627. sometimes by consent on postea, 627. costs of special case costs of cause, 627. costs on distributive finding on double jjlea, 628. distinction when reference before or after Terdict, 629. costs of counsel, 629. how far Master will question arbitrator's charges, 629. costs of attorney to draw award, 629. how soon costs may be taxed, 630. INDEX. 923 EXECUTION (continued). on compulsory reference, 630. on what scale costs to be taxed, 631. costs of reference, 631. to county court judge, 631. taxing costs of cause when no damages awarded, 631. master must tax according to award, 632. taxing costs as between attorney and client, 632. court directing how costs to be taxed, 632. costs of issues, 632. taxation not reviewed because award ambiguous, 633. whenever submission made rule Master may tax costs, 633. taxing costs when submission rule of another court, 633. whether for each defendant separately, 633. new taxation after award on reference back, 634. taxing costs of cause and reference separately, 634. judgment, properly for costs of cause only, 634. by consent may be for all costs, 634. reference back costs of abortive award, 634. signing judgment pursuant to award, 634. no rule for judgment requisite, 634. when judgment may be signed, 634. before party has had time to move to set aside, 634. may sign judgment in vacation, 634. judge at chambers can stay execution, 634. when sum awarded to be paid at a future day, 634. signing judgment on compulsory reference, 636. entering up judgment nunc pro tunc, 636. on a special application, 636. award on last day of term when judgment to be entered, 636. award lost, entering up judgment on, 637. what form of judgment when no verdict taken, 637. clause, to sign judgment for amount awarded, 637. judgment in ejectment as on a trial at Nisi Prius, 637. entering nominal damages to warrant judgment for costs 638. moving for judgment on an indictment referred, 638. entering award on appeal as judgment of Quarter Sessions. 638. issuing execution for the amount awarded, 639. no demand requisite before issuing execution, 639. interest on sum awarded cannot be levied, 639. obtaining payment out of sum deposited in court, 639. execution against a company by mandamus, 639. setting aside execution, 685 ; see tit. Setting aside. EXECUTOR, reference by, 31. demand as, matter in difference on general reference, 116. when reference by, a devastavit, 32. how far reference by, an admission of assets, 32. may show arbitrator that he has no assets, 181. personal liability of, from referring, 32. when award conclusive against as to assets, 537, 582. no direction in the award to pay, 32, 394. direction to pay, 32, 394. to pay out of assets not conclusive against, 32, 394. not set aside, 276, 661. to pay out of assets quando, 32, 394. how arbitrator should direct executors to pay, 394. liability to costs as executors, 376. personal liability to costs, 32. action on award against, 506, 508. averment of promise to pay as executors, 518. clause in submission by testator, death not to be a reTOcation, 161. not bound to attend before arbitrator, 162. bound as to assets by award against testator, 162. 924 INDEX. EXECUTOK (contimied) not liable to attachment, 582. payment to, 501. may have attachment to enforce award, 581. may move to set aside bad award, 668. EXTORTION of excessive fee by arbitrator, 459 ; see tit. Arbitrator. FACTS, stating in award, 304. duty of arbitrator as to stating, 306, 307, 311. FAILURE of the reference, effect of, 765 ; see tit. Cause and Equity. FEE, award of, by arbitrator to himself 364. of arbitrator, delivering award on payment of, 238. retaining award until payment of, 458. whether action or attachment lies for, 457. liability of arbitrator in respect of, 459. FELON pai-ty examined, award not set aside, 663. FELONY not submissible, 11. FEMALE, marriage by, revocation of submission, 1 55. FEME COVERT, reference by, 16 ; see tit. Wife. FENCES, to erect, awarding, 418. FIERI FACIAS to enforce award in equity, 562. FILING- submission and award in Chancery, 573. FILTERING, award as to, not specifying what process, 414. FINAL, award must be, 248 ; see tit. Award. FINALITY, want of, ground of setting aside award, 658 ; see tit. Setting aside. FINE, awarding to levy, 423. FIXTURES, where arbitrator may not order replacement, 388. when award bad for not specifying quality, &c., 414. FOREIGN ATTACHMENT, no answer to motion for attachment, 603, plea of, in debt on arbitration bond, bad, 532. in debt on award, good, 532. FOREIGNER, when not good arbitrator by French law, 107. FRAUD, setting aside submission for, 79. proving in action submission obtained by, 542. setting aside award for, 662. not give equity jurisdiction over award under stat. Will. III., 695. FRAUDS, STATUTE OF ; see tit. Statute of Frauds. FRIENDLY SOCIETY, disputes concerning, settled by arbitration according to the rules, 36. arbitrators not bound to have counsel, 37. FURTHER time for moving to set aside award, 646, 651 ; see tit. Setting aside. maintenance of action, pleading award to, 525. FUTURE claims, reference of, 124, 125. differences, 5. use of property, 5. (J. GENERAL ISSUE, award when evidence under, 536. GENERAL VERDICT, effect of award of, 334. INDEX. 925 GROUNDS of award, arbitrator need not state, 4m, 467. for setting aside award, 654 ; see tit. Setting aside. must be stated in rule nisi, 674. for setting aside judgment, need not, G88. for setting aside award in equity, 696 ; see tit. Equity. GUARDIAN, death of infant, revocation of submission by, 161. award to give bond for infant to convey, held unreasonable, 550. GUILTY, verdict of, should be taken on reference of indictment, 76. H. HIGHWAY, indictment for non-repair of, arbitrable, 13. award on not evidence of liability against stranger, 538. HOSPITAL, reference by master and fellows of, 22. HOUSE OF COMMONS, no attachment on award lies against member of, 582. HOUSE OF LORDS, no appeal to on award under statute of Will. IIL, 702. HUSBAND AND WIFE, submission between, when valid, 17. between husband's and wife's trustee, 17. husband, right of, to refer wife's chattels, 17. wife's chattels as executrix, 18. wife's real estate, 18 binding wife in equity, 550, 551. civiliter mortuus, wife may refer alone, 16 ; see tit. Wife. award of payment to wife only, 395. husband whether liable to attachment on award for default of wife, 18, 583. HYPOTHETICAL award, 310; see tit. Award. finding on pleas, for costs, 290. I. ILLEGALITY, matters tainted with, not referable, 5. award to do illegal act invalid, 391, 494. arbitrator awarding illegal act liable personally, 462. when arbitrator judge of, award not set aside, 657. IMPEACHING award by motion to set it aside ; see tit. Setting aside. by evidence, 540 ; see tit. Evidence. in equity ; see tit. Equity. IMPOSSIBLE award bad, 288 ; see tit. Award. IMPRISONMENT for contempt in disobeying award, 561, 579, 609. INCAPACITY of arbitrator or umpire supplying vacancy, 67, 157. IN CLOSURE ACT, objects of effected by arbitration, 6. powers of arbitrator under, 416. giving allotment for right not extinguished, bad, 416. exchanged lands should be specified, 416. proper consents should be recited, 416. award to surveyors of highways and their successor, 416. good as a parliamentary declaration of parties to hold, 417, 485. ■when unnecessary to specify lands liable to rent charge, 417. what a neglecting to make an award, 417. no ad valorem stamp necessary on award, 241. award under, effect of, 484. title not generally given by allotment before award, 485 allotment for tithes extinguished, 484. when title to compensation money complete, 485. notices under, when presumed given, 535. order of justices under, when presumed given, 536. 926 INDEX. INCONSISTENT award bad, 289 ; see tit. Award. Betting aside, 661. INDEBITATUS COUNT on award, 519. INDEMNITY, arbitrator has no general power to award, 400. only when a necessary provision, 400. award of, against costs of action, 400. against joint debts, 401. award omitting to decide on claim for, bad, 252, 256, INDICTMENT for felony not submissible, 11. for misdemeanor what referable, 11; see tit. Misdemeanor. before Quarter Sessions, referable, 14. whether consent of court to reference requisite, 14. referable at Nisi Prius, 75. on reference verdict of guilty should be taken, 76. reference of, not within statute Will. III., 59. revocable, 148. whether revocable since Common Law Procedure Act, 1854, 59, 148, 173. 174. costs incident to, what are, 359. awarding compensation for injury after, 123. moving for judgment on, pursuant to award, 638. attachment lies to enfoi'ce award on, 580. award in a cause not evidence on, 537, 538. INDORSEMENT, new submission incorporating terras within, 59. enlarging time by, when necessary, 136. appointing umpire by, when necessary, 223. INEQUITABLE award, enforcing in equity, 549. INFANT, submission of, voidable not void, 18. when plaintiff in a suit, attorney cannot bind by referring, 27. party bound for, 18. whether equity will enforce award affecting, 19, 549. reference to the master whether arbitration for infant's benefit, 19. mutuality of infant's submission, 19, 287. parties referring with full knowledge of the infancy, 19. award not set aside because infant party, 664. plaintiff avoiding award defendant may proceed in action, 706. INFERIOR COURT, costs of cause in, award must fix amount, 279, 362. INJUNCTION to restrain arbitrator from proceeding in the reference, 196. awarding, against recovering at law, 369. equity may grant against proceeding on award, 690. to prevent breach of award, 552. to prevent recurrence of nuisance awarded on, 408. INJURIOUSLY affecting land by railway works, 431. INQUIRY by court of arbitrator as to grounds of award, 302 ; see tit. Arbi- trator. INQUIRY, WRIT OP, when unnecessary in action on award, 512. reference on trial on ; see tit. Sheriff. INSOLVENT, matters concerning estate of, referable, 8. reference by assignee of, 34. liability of assignee, 34. consent of creditors to reference, 34. need not be averred in action on the award, 34, 518. insolvency, whether revocation of submission by, 155. plea of, effect, 532 ; see tit. Plea. when discharged from award by, 487. when award set aside for, 664. may move to set aside award, 668. INSOLVENT PETITIONER, reference by assignee of, 35. INSPECTION OF PREMISES, discretionary in arbitration, 187. deciding on without evidence, 187. INDEX. 027 INSTALMENTS, payment by, award of, 392. awarded, when assunijjsit lies for, 50C. INTENDMENT of court, award good unless proved bad, 268, 681 ; see tit. Award. INTEREST, right to, is a question of fact, 395. arbitrator may allow, when court cannot, 397. awarding interest as damages, 396. award of, from date of last settlement, 281. in case of r>enefit Building Society, 296. on sum awarded, recoverable in action, 512. not by attachment, 581. nor by execution in the cause referred, G39. nor on rule to pay sum awarded, 621. INTERLOCUTORY award, 197. INTERPLEADER on adverse claims to money deposited with arbitrator, 462. INTERROGATORIES, filing on attachment, 606 ; see tit. Attachment. IRREGULARITY of arbitrator in conducting the reference ; see tit. Arbitrator. in examination of witnesses, 184. ground for setting aside award, 655. no answer to motion for attachment, 600. may be waived, 188. improper enlargement of time, 189. improper appointment of umpire, 189. course to cure, 190. setting aside judgment on award for, 687. waiver of in entering judgment, 687. in proceedings for contempt answer to motion for attachment, 600. ISSUE of law, whether referred by referring cause, 118. directed pending reference, 198. duty of arbitrator to award on each, 329 ; see tit. Cause. clause relieving from finding on each, 78. costs of, how to be taxed, 632 ; see tit. Execution. not decided properly, setting aside award for, 659. out of Chancery, not referable by court of Nisi Prius, 76. reference of, abandons suit, 92. no new trial if award unsatisfactory to party, 699. ITA quod, clause in submission, effect, 248 ; see tit. Award. J. JOINDER of third party on reference of a cause, 72. JOINT DAMAGES awarding to plaintiff and third party, 347. JOINT AND SEVERAL disputes, by what words referred, 121. how to award on, 122. JOINT STOCK COMPANY, reference by, 39; see tit. Companibs Clavsks Consolidation Act. . JUDGE may compel reference of action for matters of account, 88. order of, reference of cause by, 73. making rule of court after revocation, 101. containing consent clause, made rule though no action, 68. of county court not revocable, 151. of Nisi Prius, the arbitrator as, 110. of law and fact, the arbitrator, 110. arbitrator with same power as, as to evidence, 307. as to certifying for costs, 373, 384. power of to certify for costs after award, 382. when transferred to arbitrator, 382. 928 INDEX. JUDGE (continued). power of, to enlarge time, by the submission, 1 35. by statute of Will. IV., 140. by Common Law Procedure Act, 1854, 127 142. to revoke by statute, 147. to appoint arbitrator or umpire on disagreement, under Common Law Procedure Act, 1854, 66, 205, 215. on reference under Companies Clauses Act, 215. to compel attendance of witnesses before the arbitrator, 169. and production of documents, 169. no power to set aside award, 642. except in cause in Common Pleas of Lancaster, 643. may stay proceedings on award, 642. of assize, order of referring cause, 73. JUDGMENT, effect of award as a, 476. award of, 349 ; see tit. Cause. award of arrest of, 353 ; see tit. Cause. cannot be signed when no verdict, 624. unless provided in submission, 637. signing pursuant to award, 634 ; see tit. Execution. when to be entered award last day of term, 636. non obstante veredicto, whether right to referred by referring cause, 118. motion for, prohibited by agreement not to sue, 70. excess in award, as to entry of, 313. unauthorized entry, setting aside award for, 660. setting aside, 685 ; see tit. Setting Aside. rule to pay sum awarded has effect of, 612 ; see tit. Exeoutioh. assignee of bound by award, 698. of Quarter Sessions, entering award as, 638. in ejectment rule to deliver land effect as, 45, 562, 622. JUDICIAL FUNCTIONS, arbitrator delegating before award, 199, 204 ; see tit. Arbitrator. by award, 269 ; see tit. Award. JURISDICTION of the arbitrator ; see tit. Arbitrator. of a judge ; see tit. Judge. of court ; see tit. Court. of Chancery ; see tit. Equity. attachment on award lies against party beyond, 583. JUROR withdrawn, reference of cause, 75. cause not necessarily terminated, 706. JURY discharged, reference of cause, 75. arbitrator in the place of, 110. award is as finding of, 623. JUSTICE, pi-oceeding contrary to, " undue means," 665. LACHES of solicitor in objecting to reference by counsel, 28. stranger guilty of, bound by award, 23, 551. LANCASTER Common Pleas, setting aside award on cause in, 643. LAND, questions relating to referable, 4. not settled to separate use, wife cannot refer as to, 16. taking warrant of attorney to abide awaixl as to, 44. may not be awarded in satisfaction for personal matters, 387. lien on, cannot be awarded, 387. award in ejectment should specify parcels of, 341. of a charitable corporation, award as to, 405, 563. of a stranger, awarding act to be done on, 424 ; see tit. Steanokk, INDEX. 020 Land {continued), award as to, determines title as between parties, 482. not convey title as against stranger, 482. excejjt under statue, 484 ; see tit. Inclosure Act. to deliver possession enforced as judgment in ejectment, 45, 502, 622. conveyance of, should be awarded to pass title, 255, 481. how to be awarded, 404 ; see tit. Conveyance. award may direct measurement of, 272. taken by statue, compensation for, 6 ; see tit. Lands Clauses Consoli- DATtoN Act. reference as to price of, failing — enforcing contract in equity, 709. LANDOWNER ; see tit. Lands CLAtrsES Consolidation Act. reference as to drainage operations, 39, LANDS CLAUSES CONSOLIDATION ACT. what matters referable. compensation for lands taken for public undertaking, 6. taken, used, or injured by Railways, 6. Markets and Fairs — Harbours, Docks, and Piers, 7. for Water-works — Improvements in towns — Cemeteries, 7. for injuries by drainage by statute, 7. price of lands resold, 7. matters authorized or directed to be referred, 94. parties to the reference. promoters of the undertaking, and parties claiming interest in lands, 38. landowners and parties draining by statute, 39. how siibmission to he made. notice by promoters lands reqiiired, 94. claim by party for compensation exceeding fifty pounds, 94. demand of arbitration by party, 94. compulsory on promoters, 94. should be limited to compensation, 94. parties should try to agree on single arbitrator, 96. unless agreeing in one, each to appoint an arbitrator, 95. appointment of arbitrator, the submission, 95. submission not revocable without consent, 95, 152. nor by death of party, 95, 162. one side refusing to appoint, single arbitrator to act for both, 96. signature of secretary or clerk binds promoters, 96. on death or incapacity of sole arbitrator, matter referred de novo, 96, 158. of one of two, new arbitrator appointed, 96, 158, 21 1. or remaining arbitrator acts alone, 96, 158, 211. on refusal or neglect to act of one of two, remaining arbitrator may proceed alone, 96, 158, 211. what not a refusal to act, 211, 226. arbitrators to appoint umpire before entering on matters referred, 97, 214, 219. appointment by, to be in writing, 214, 223. and within three months after their own appointment, 219. to appoint new umpire on death or incapacity, 214. on refusal or neglect of arbitrators, two justices to appoint umpire, 214, 215. when Railway Company party, Board of Trade to appoint, 215. submission to be made a rule of court, 97. costs of arbitration, how to be borne, 97, 359. rule to pay costs of award not granted, 615. costs of inquiry settled by master as arbitrator, 108. declaration by arbitrators and umpire Iwfore entering on reference, 168. wilfully acting contrary to, a misdemeanor, 461. may be made before any justice, 168. 3 930 INDEX. LANDS CLAUSES CONSOLIDATION ACT (continued). arbitrators and umpire may administer oath, 177, 183. examine on oath parties and witnesses, 177, 183. call for documents, 183. arbitrator to award within twenty-one days unless time enlarged, 130. may enlarge to three months from appointment, 137. sole arbiti-ator has three months to award in, 130. same limit on reference under s. 68, 131. umpire, authority of, when it commences, 227, 229. duration of power of, three months from duty devolving, 229. duty of, to rehear case, 231. how award to be made, 427. suggestions as to duty of arbitrators, 427. claim must state nature of interest, 427. whether arbitrators can go beyond claim, 428. arbitrators not to try title, 428. party failing to make title deposit of compensation in bank, 428. on deposit estate to vest in promoters, 428. title to be assumed when claim under s. 68, 429. party may contest that claimant is damaged, 429. party claiming greater title than he has, 429. under Sewers Act, and Public Health Act, arbitration only for amount of compensation, 430. apportionment by equity of compensation, 430. arbitrator not empowered to try whether claim well founded, 430. though claim doubtful, arbitrator should assess compensation, 430. test when land injuriously affected, 431. no compensation for injury to amenities or personal inconvenience, 432. distinction between injury during construction and afterwards, 432. special damage from obstruction of highway, 433. arbitrator may not consider excuse for not paying damages, 433. duty of arbitrator in assessing compensation, 434. verbal award by justices to yearly tenant, 434. under Public Health Act, 434. awarding compensation for purchase price and damage in one sum, 434. duty in estimating damage by severance, 435. arbitrator has no power to set out approaches, 435, compensation should be for necessary and probable damages, 435„ no future claim sustainable if unforeseen damage arise, 437. not to consider claim by tenant in awarding for owner, 437. considering probable injury from use of railway, 438. yearly tenant whose land is injured, not taken, need not go before justices, 433. damages contingent on Company's option, 438. when no damage by severance, 439. costs of reference and award, 439. how late promoters may offer compensation, 439. whether to settle costs in award, 440, costs of separate claims, 441. what recitals advisable in award, 441. misdescription of subject matter, 441. delivery of award to promoters, 442. declaration to be annexed to award, 442. compelling promoters to take up award, 442. award not void for defect of form, 442. moving to set aside award not bar right to costs of title, 443. award not prevent deviation, 443. enforceable in equity as a contract, 443. how submission to be made a rule of court, 574. entitling affidavits for, in Chancery, 574. whether appointments of both arbitrators must be made rule, 574. practice in the Queen's Bench to require both, 675. INDEX. 931 LANDS CLAUSES CONSOLIDATION ACT {cmtinued). in equity order drawn up upon one only under special circom- stances, 575. advisable to make the appointments of the arbitrators in dupli- cate, 576. appointment of umpire need not be made rule, 676. order nisi in equity to set aside award under, 703. reference failing settling compensation by jury, 709. LAPSE OF TIME, -whether bar to bill to enforce award, 548. LAST DAY OF TERM, no attachment granted on, 598, 617. no cause shown on, against attachment, 598. motion for rule to pay money awarded, 617. no showing cause on, against rule, 618. motion to set aside award rarely allowed on, 669. whether cause can be shown on, against rule, 678. LAWFUL, award must be performed as far as is, 497. LAY ARBITRATOR, award of, same effect as of legal, 292. affidavit by, on motion to set aside award, 671. LEASE, award of ; see tit. Conveyance. of charity lands, 405 ; enforcing, 563. LEAVE OF COURT to revoke, 147 ; see tit. Revocation. LEGAL arbitrator, award of, same effect as of lay, 292. misconduct of arbitrator, what amounts to, 654. LETTER of arbitrator, whether receivable to affect award, 299, 300, 301. of barrister arbitrator, whether receivable as an affidavit, 474. LIABILITY by referring, of executors ; see tit. Exkodtor. of trustees ; see tit. Trustee, of agent ; see tit. Agent. of assignee; see tit. Assignee. of arbitrator ; see tit. Arbitrator. LIBERTY RESERVED to apply to the court, 709. LIEN cannot be awarded on land, 387. of attorney on sum awarded ; see tit. Attorney, of arbitrator on award for his fees, 442, 458. LIMIT OF TIME for matters in difference to arise, 122 ; see tit. SrsMissioN. for award under a statute when directory only, 131. for setting aside award, 643 ; see tit. Setting aside. LIMITATIONS, STATUTE OF, plea of, in action on award, 532. LIQUIDATED DAMAGES, for breach of agreement to refer, 63. LOCAL BOARDS, damage by works of, reference of, 9. LORDS, HOUSE OF, no appeal to form decision on an award under statute, 702, LOST submission, copy made rule of court, 570, award, attachment granted on copy, 598. entering judgment on, 637. LOT, appointing umpire by, bad, 220 ; see tit. Umpire. award set aside for, 656. LUNAR months, time in submission computed by, 129. LUNATIC, power of committee of to refer, 32. by leave of Chancery, 32. of wife 0^ 32. M. MACHINERY, change from wood to iron, awarding, 411, MAILS, reference respecting conveyance of; see tit. Post-Master-Qbnkral and Railways. 3 o 2 933 INDEX. MANDAMUS to savings' bank, to ai)point arbitrator, 3(5. to enforce award against a company, 583, 639. MARRIAGE, arbitrator cannot award, 387. of female party, a revocation, 155, 509. revocation complete without notice to arbitrator, 145, 156. plea of, in action on an award, 532 ; see tit. Plea. plea of consent to, in action for revocation, 147. whether attachment lies against woman after, 17. MARRIED "WOMAN ; see tit. Wife. MASTER, reference to, whether arbitration for infant's benefit, 19. whether for lunatic's benefit, 32. not, whether for married woman's benefit, 16. under Common Law Procedure Act, 89. whether party disobeying award is in contempt, 600, 608. to settle terms of lease, reference failing, 710. arbitrator as, whether exceptions lie to award, 703. to settle costs of inquiry under Lands Clauses Act, 108. award delegating to, to tax costs, 271. taxation of costs by, award not ascertaining amount, 279. practice taxing costs on award, 630 ; see tit. Exec0tion. MASTERS AND WORKMEN, disputes between, settled by arbitration, by statute, 8. reference between, who parties to, 40. when married women or infants concerned, 40. how matters referred, 99, no stamp on submission or award, 99, 239. award enforced by distress, 99. MATTER OMITTED from award, no action lies for, 478. whether suit in equity lies, 478. ground for setting aside award, 248, 663. MATTERS IN DIFFERENCE, what are, 115 ; see tit. Submission. award must decide on all, 248 ; see tit. Award. MATTERS OF ACCOUNT, compulsory reference of action for, 7, 89. MEASUREMENT of land, ministerial duty, 272. MEETING in reference, parties bound to attend, 164 ; see tit. Arbitrator. MEMBER OF PARLIAMENT not liable to attachment on award, 572. MERCHANT- ARBITRATORS not authorized to examine parties apart, 187. not to delegate decision of legal point to barrister arbitrator, 207. MERITS, award not set aside for objections on the, 408, 656. evidence of, let in, as to arbitrator's conduct, 698. pleading award to in equity, 652 ; see tit. Equity. MINERS, verdict of jury of, no award, 241. award as to, made under mistake, 698. MINISTERIAL duty, delegating pei-formance of, before award, 199 ; see tit. Arbitrator. by award, 272 ; see tit. Award. MISBEHAVIOUR of arbitrator ; see tit. Misconddot. MISCONDUCT, liability of arbitrator for ; see tit. Arbitrator, Personal Interests. of arbitrator not pleadable in action on award, 529; see tit. Plea. evidence of, not admissible, 541 ; see tit. Evidenok. of party pleadable to action for revocation, 146. cannot be shown for cause against attachment, 600. or against rule to pay sum awarded, 618. ground for setting aside award, 654 ; see tit. Setting aside. gi-oss mistake treated as, 296. when bill in equity only remedy, 642. MISDEMEANOR, what referable, 11. when remedy by action, misdemeanor i-eferable, 12. whether conspiracy referable, 12. I INDEX. 0:j3 MISDEMEANOR (continued). offence of public nature not referable, 12. riot— obstructing public officer not referable, 12. offence against Toleration Act not referable, 13. assault — nuisance, 13. perjury, charge of, not referable, 13. non-repair of highway, 13. how referred after indictment, 1 4 ; sec tit. Indictment. MISNOMER, referring back award to amend, 446. in affidavit of service, 598. in copy of allocatur, 594. MISTAKE in submission, amending, 82. relief in equity, 696. setting aside submission for, 79. of arbitrator as to evidence, when ground of revocation, 149, 150. in recital of award immaterial, 245. clerical, in misdescribing subject-matter, 254. OF ARBITRATOR, THE AWARD HOW FAR AFFECTED BY, 292. ^Dhcu award good on its face. award of lay and legal arbitrator same effect, 292. erroneous judgment of arbitrator, court not review, 292, 656. deciding apothecary may charge for attendances, 293. demurrer wrongly, 293. liquidated damages to be a penalty, 294. claim for damages recoverable in debt, 294. contrary to evidence, 294. as to legality of contract, 657. exceptions to the rule, 294. examination whether arbitrator taxed costs rightly, 294. whether mixed question of law and fact rightly decided, 295. in equity, award set aside for gross mistake admitted by arbitrator, 295. admitted, setting aside at law, 1 66. referring back for, 448. even under statute of William III., 665. whether bill lies when arbitrator mistaken on point of evidence, 697. at law, modem rule, award not impeachable for mistake, 296, 656. not referred back for, 449. mistake amounting to misconduct, 296. in favour of party moving, no ground for setting aside award, 6.i9, 660, 679. in Exchequer award not impeachable for gross mistake, 297. aliter in Queen's Bench, 297. award by mistake not the award of arbitrator, 298. affidavit by arbitrator of, 297, 47"2. statement as to by arbitrator, effect of, 298 ; see tit. Arbitrator. award setting forth grounds of decision. whether court will review them for mistake alleged, 304. old practice, courts reviewed decision, 304. when arbitrator wrong in law, 304. wrong in construction of statute, 304. Queen's Bench not review them, unless power to state case, 304, court not examine sufficiency of facts stated, 304. stating insufficient reasons, 304. court not presume facts stated only grounds of award, 305. stating facts without positive decision formerly bad, 305. where positive finding, statement held surplusage, 305. of arbitrator not pleadable to action on award, 530 ; see tit. Plea. evidence of, not admissible in action, 541 ; see tit. Evidence. in award when a bar to attachment, 585. award made under, when not set aside, 698. arbitrator not to be made defendant to bill to set aside, for, 465. MOIETIES, awai-d of, to pay and receive in, 397. 934 INDEX. MONEY, arbitrator may award, 386. MONET BOND, award o^ 391. MONTHS, lunar, not calendar, time for awarding computed by, 129. MORAL CONSIDERATIONS, whether arbitrator may notice, 113. MORAVIAN, affirmation of, attachment granted on, 598. MOTION for arrest of judgment iDrohibited by agreement not to sue, 70. so for judgment non obstante veredicto, 70. for costs for preventing award, 101. for leave to revoke, 147 ; see tit. Revocation. for enlargement of time, 140 ; see tit. Enlakgement. for attendance of witnesses, 169. for production of documents, 169, 184. for attachment on the award, 694 ; see tit. Attachment. for setting aside award, 641 : see tit. Setting aside. for referring back award, 444. to enter verdict pursuant to point raised, within what time, 661. in equity to enforce award, 560, 561 ; see tit. Eqtjitt. to set aside award, 701 ; see tit. Equity. MUTUAL, award must be, 285 ; see tit. Award. MUTUAL PROMISES to abide award, averment of, in pleading, 513. MUTUAL RELEASES, award of, 257 ; see tit. Releases, mutual. N. NAME of other party, award to sue in, 400, 411. NEGATIVE COVENANT not to sue ; see tit. Agreement. NEGLECT to make an award, what is a, 97, 417. NEW ASSIGNMENT, awarding on, 344, NEW MATTER discovered, whether award set aside, 662. NEW TRIAL, when award in a cause set aside, 683, 706; see tit. Cause. costs of first trial not follow success on, 707. not granted when issue from Chancery referred, 699. NEXT FRIEND of wife, whether to be party to reference, 17. of infant, not boimd by attorney refeiTing suit, 19. NISI PRIUS, order of ; see tit. Order, Cause. NO AWARD, plea of, in action on award, 526 ; see tit. Plea. NON OBSTANTE VEREDICTO, awarding judgment, 350 ; see tit. Cause. NON REPAIR of road, indictment for, referable, 13. NONSUIT, award of, 324, 423. NOTES of the evidence, arbitrator should take, 182. of arbitrator used by umpire as evidence, 230. barrister not to be used on motion to set aside aTrard, 473, 670. court not amend verdict by, 626. NOTICE to arbitrator of matter in difference, 250. of appointment for meetings, must be given to aU parties, 165. to all the arbitrators, 210, 656. to appoint arbitrator or umpire, 67. of intention to attend reference by counsel, 165. that arbitrator will proceed ex parte, 191. of enlargement may be verbal, for attachment, 592. of revocation, when to be given to arbitrator, 145, 156. need not be averred in pleading revocation, 146. of award made, need not be given to party, 496, 616. publication to the parties, 644. averring in action on the award, 616. INDEX. 935 NOTICE (continued). requiring arbitration to settle compensation, 94 ; see tit. Lands Clauses Consolidation Act. of motion to make award order of Chancery, 558. of motion to set aside award in Equity, 702. under Inclosure Act, when presumed given, 535. NUISANCE, indictment for, referable, 13. attachment to enforce award on, 480. moving for judgment on, 638. injunction to prevent recurrence of, 408. NUL AGARD ; see tit. No Award. NULLITY, setting aside award when a, 657. NUNC PKO TUNC, making submission rule of court, 666. entering judgment, 636 ; see tit. Execution. rule to set aside award drawn up, 646, 652. NUNQUAM INDEBITATUS, whether pleadable in debt on award, 526. 0. OATH, power of arbitrator to administer, 175. examination of witness on, 175. OBJECTION, GROUNDS OF, for setting aside award, 654 ; see tit. Settino ASIDE. OFFICE COPIES, taking of affidavits on stowing cause against rule to set aside, 677. OFFICIAL MANAGER under -winding up act may show cause for company, 618. OPINION, scientific, adoption of, by arbitrator, 199, 201. positive, an award, 243. of counsel, whether an award, 242. arbitrator taking, award not set aside, 656. ORDER of a judge ; see tit. Judge. submission by ; see tit. Cause. of Nisi Prius, submission by ; see tit. Cause. revoking, a contempt of court, 100. ground of action, 100. revocable by writing not under seal, 1 45. amendment of ; see tit. Alteration. of equity referring suit, whether revocable since Common Law Proc dure Act, 1854, 148, 172. ■ to obey award in equity, 560. nisi in equity, to set aside award, 703. of inferior court referring cause made rule of court, 58. ORIGINAL award, &c., showing, on demand of performance, 593. OUTLAW, cannot refer, 15. PARDON, begging, arbitrator may award, 388. PARISH OFFICERS, award of land to, 416 ; see tit. Inolosttrk Act. PARLIAMENT, MEMBER OF, not liable to attachment on award, 682. PAROL, submission, though valid, disadvantageous, 49. cannot be made rule of court, 49, 57. effect of Statute of Frauds on, 50. award on, no plea to action on bond, 525. revocation of arbitration bond by, 144. award valid, 235 ; effect of, 477. pleading substance of, sufficient, 516. whether attachment lies on, 584. 936 INDEX. PART of award only set aside, 682. PART PERFORMANCE of award, effect of, in equity, 546. enforcing contract on, though reference failed, 711. PARTIALITY of arbitrator ; see tit. Misconduct. PARTICULARITY, award set aside for want of, 660. PARTICULARS of demand, whether limit to damages, 346. enlarged after reference, 83. not necessarily before arbitrator, 167. of set-off not allowed after reference, 83. PARTIES TO A REFERENCE. persons interested in the subject matters, 15. persons capable of contracting, 15. not persons attainted or outlaws, 15. married women, 16 ; see tit. Wife. husband and wife, 17 ; see tit. Husband and Wife. infant, 18 ; see tit. Infant. partners and parties with joint interests, 20 ; see tit. Partners. corporations, 21 ; see tit. Corporation. parties interested added, on reference of a cause, 22. added afterwards, by subsequent consent, 22. by acquiescence, 22 ; laches, 23. fersons not interested. authorized agent, 23 ; see tit. Agent. attornies and solicitors, 25 ; see tit. AttorNjET. counsel, 27 ; see tit. Counsel. executors and administrators, 19 ; see tit. Exeoutok. trustees, 32 ; see tit. Trustee. committee of lunatic, 32 ; see tit. Lunatic. public officer, 32 ; see tit. Public Officer. persons empowered to refer by statute. assignees of bankrupts and insolvents, 33 ; see tit. Assigniib. trustees of Savings Banks and Friendly Societies, 35 ; see tit. Savihqs Bank, Friendly Society. Benefit Building Societies, 37 ; see tit. Benefit Building Societies. promoters of public undertakings, 38. parties interested in lands taken, &c., 38; see tit. Lands Clauses Consolidation Act. parties draining by statute, 39. Railway Companies, 39 ; see tit. Railways Clauses Consolidatioh Act. Joint Stock Companies, 39 ; see tit. Companies Clauses Consolidation Act. ecclesiastical and collegiate corporations, 39 ; see tit. Ecclesiasticaii AND Collegiate Corporations. masters and workmen, 40 ; see tit. Masters and Workmen. counties and boroughs, 8, 98 ; see tit. Counties and Boroughs, of a cause must be those on the record, 72. examination of, as witnesses, 183 ; see tit. Arbitrator. one found to be a felon, whether award set aside, 663. excluding from meetings, 166. attending reference privileged from arrest, 1 75. award must decide as to all, 257. effect of, on ; see tit. Award. deceased, liability of executor of ; see tit. Executor. dying before sum awarded paid, 501. deceiving opponent or arbitrator, award set aside, 662. PARTITION, powers of commissioners of, 417. awarding right of way over allotment, 413. directing lots to be fenced off, 418. awarding two separated lots to one party, 418. arbitrator making, must award a conveyance, 255, 418. i^DEX. . 937 PARTNERS, reference by, not bind co-partners, 20, power to sue not give power to refer, 20. bound for others, 21. when all must execute or none bound, 20, 126, reference of all matters between all or any, 51, 122. effect of arbitration clause in deed between, 62 ; see tit. Agree- ment. liow to award on the joint debts and credits of a firm, 396. awarding to pay and receive in moieties, 397. when unnecessary to specify amounts, 398. awarding all debts and credits to one, 398. appointing a receiver, 398. awarding on the partnership stock, 399. omitting to provide for deficiency of assets, 399. awarding dissolution of partnership, 399. settling terms of dissolution of partnership, 399. awarding right to sue in partner's name, 400. restraining one party from trading in particular town, 400. accounting in equity for item omitted in award, 479. no bill lies for stranger to enforce award between, 551. PARTY interested added, 23, by subsequent consent, 24. by acquiescence or laches, 24. PAYMENT, how arbitrator should award as to, 391. arbitrator should direct, 391. no attachment on award without, 391. may fix time ^d place of, 391. awarding promissory note or money bond to be given, 391, by instalments, 392. on a Sunday, 392. penalty for non-payment at time specified, 392. when fixing time of, improper, 392. when arbitrator to ascertain purchase price, 392. ■when awarding damages on a verdict, 347, 392. ordering payment of rent not yet due, bad, 392. setting off cross claims, 392. extent of power as to directing, 393. award to pay plaintifl" or his attorney, good, 284. party dying, how to award executor to make, 393. in case of Benefit Building Society, 393. reference by executor, proper mode of directing, 394. awarding executor to pay, 394. testator indebted, 394. executor to pay out of assets quando, 394. to pay out of assets, 394. directing assignees to repay sum paid by mistake, 395. directing, to be made to wife, and not husband and wife, 395. plea of, awarding on, 335. of money awarded, how to be made, 498. out of sum in court of law, 639. out of money in court of equity, 562. whether, precludes motion to set aside, 680. PEER, no attachment on award against, 582. PENALTY, arbitrator may impose, in award, 392. ofier of, no discharge from performance of award, 548. PEREMPTORY undertaking, waiver of, by reference, 86. notice of appointment for a meeting, 192. PERFORMANCE, what a sufScient, of the award, 495.. party has a reasonable time for, 495. may be at several times, 495. party bound to take notice of award being made, 405. stranger stakeholder not bound to take notice, 496. 938 INDEX. PERFORMANCE (continued). party must obey award substantially, 496. award to pay money to wife, 496. to keep drain cleansed, 496. party must comply as far as lawful and possible, 496. such performance answer to attachment, 602. award to remove weirs, stranger interested, 497. to reinstate premises pulled down, 497. to dig for coal, 497. party to pay must tender money, 498. must seek out party entitled, 498. must get costs taxed, if requisite, 498. award to enjoy house paying rent, 498. to make a lease rendering rent, 498, award, all suits to cease, 498. when proceeding in a suit a breach, 498. court no power to order award to be delivered up on payment, 499. Of an award directing the execution of a deed, 499. when request to execute deed necessary, 499. who to prepare and tender conveyance, 499. ordinary rule between vendor and purchaser, 500. deed tendered should agree with award, 500. demanding execution by agent, 501. no power of attorney to agent requisite, 501. award to execute release on payment, 501. death of party, payment to executor, 501. award of release to time of award, 502 . delivering release to stranger for party's use, 502. award to execute indemnity, 502. that plaintiff shall stand acquitted of a suit, 502. to acquit of a debt, 502. quod staret quietus of rent, 503. of award, evidence of submission, 535. pleading, 631 ; see tit. Plea. plea of award without alleging performance, when good, 523 : see tit Plea. of award enforcing, in equity, 544 ; see tit. Eqxtity. PERIOD ; see tit. Time. PERIODICAL claims, reference of, 125. limits for awarding, 130. PERJURY, indictment for not referable, 13. witness on reference liable for, 117, 664. not on reference under Small Debts Act, 178. of witness, when award set aside for, 664 ; see tit. Witness. PERPETUITY, award of, bad, 549. PERSON of party not subject to arbitrator, 386. PERSONAL CHATTELS, disputes concerning, referable, 3. PERSONAL ESTATE subject to award, 386. PERSONAL REPRESENTATIVE ; see tit. Executor. PERSONAL SERVICE of award, &c., when necessary, 592 ; see tit. Attachment. PERSONAL WRONGS referable, 3. PETITION to enforce award in a charity suit, 563 ; see tit. Equity, PETITIONING CREDITOJl, sum awarded good debt of, 488. so penalty in arbitration bond, 488. PLACE AND TIME of payment, award need not specify, 275. pleading award of money to be paid at specified, 617. award to pay at, attachment on, 590. INDEX. 939 PLEA of arbitration pending, not good, 45. of agreement not to sue, when good in equity, 70. of judgment recovered allowed to executor pending reference 84 awarding on each, 333 ; see tit. Cause. ' ' finding on inconsistent, 290 ; see tit. AwABD. Effect of an award as a, 522. award must generally be pleaded, 522. when plea of award without averment of performance good 523 when new duty created in satisfaction of old claim, 523. old rule, if time passed, performance must be averred 523 modern rule, old claim barred not at all or entirely, 524 award a bar when accord and satisfaction a bar, 525. sometimes available for a stranger, 525. payment according to void award, accord and satisfaction, 525 award as to part of a thing demanded, 525. award on parol submission no plea to action on a bond, 525. of award to further maintenance of action, 525. replication, power of distress by award, departure from avowry of common law power, 525. of award, averments in, 512 ; see tit. Pleading. of an award in bar to a bill in equity, 552 ; see tit. Equity. m bar of a bill to set aside award, 699, How to answer in pleading an award pleaded, 626. traversing the submission, 526. in debt on bond and covenant, traverse, non est factum, 526. in assumpsit, non assumpsit, 526. whether nunquam indebitatus traverse in debt, 626 pleadmg no award made, 526. plea of no award formerly meant no award in fact, 626. plea of no award in action on arbitration bond, 527. pleading award with averments showing it void, 528. rejoining performance a departure, 528. plea of no award in action on award, 528. means no award according to submission, 528. _ not every objection to award open on plea of no award 529 misconduct or mistake of arbitrator not pleadable, 529. ' of arbitrator colluding with party, bad, 630. of mistake of arbitrator, bad, 531. pleading performance of award, 531. must show how performed, 531. must aver entire performance, 531. setting out document referred to in award, 531. other jileadings to defeat award, 532, of Statute of Limitations, good, 532. of revocation by will of party, 532. by marriage of female party, 509, 532. not by bankruptcy or insolvency, 532. of foreign attachment, 532. of waiver of award bad, to action on bond, 533. parol accord and satisfaction, 533. award not ready to be delivered, 533. not made within reasonable time, bad, 533. replication claim not covered by award pleaded, 533. demurrer to pleading stating bad award, 534. PLEADING. How to state an award in, 512. averments in a pleading stating an award, 512. recital of differences, 512. ofmutual submission, 513. of appointment of arbitrator by the parties, 513. averment of mutual promises in assumpsit 513 bad in debt, 513. averment, award made pursuant to submission, 5U. as to time, 514. 940 INDEX. PLEADING (continued). though laid under a videlicet material and traversable, 514. averring award ready to be delivered unnecessary, 514. but usual, 515. ready to be delivered at particular place, 515. averring award made of and concerning the premises, 515. showing directions in award authorized, 515. stating part of award sufficient in action on the award, 516. whole award must be stated in debt on the arbitration bond, 516. pai"t set out not deciding all matters, 516. pleading substance of parol award sufficient, 516. award under seal no deed — profert unnecessary, 516. averring notice of award made, usual, but unnecessary, 516. averring cause of action accrued before action commenced, 517. averring request to perform award when necessary, 517. averring attendance at time and place for money to be paid, 517. when plaintiff to do concurrent act, 517. averring demand when costs to be repaid on demand, 518. averring request to pay collateral penalty, 518. assignee need not aver consent of creditors to reference, 518. averment of promise by executors as executors, 518. indebitatus count on an award, 519. Averments in debt on the arbitration bond, 519. whole award must be set out, 519. plaintiff must assign breaches, 519. replication to plea of no award must assign breach, 520. breach assigned not traversable, 520. want of assignment ground of general demurrer, 520. breach must be as to good part of award, 520. when submission traversed, no need to assign breach, 621. when part performance pleaded, 521. when plea admitting award excuses non-performance, 521, replication setting out award after a plea of no award, 522. after a plea setting out part and averring performance, 522. PLEADINGS, when rule to set aside, to be drawn up on reading, 674. POOR RATE, validity of, not referable before notice of appeal, 10. referable on appeal, 10 ; see tit. Quarter Sessions. levy of, stayed, contrary to good faith, 10. POSSESSION of land delivered by sheriff pursuant to award, 45, 562, 622. POSSIBLE, award must be, 288 ; see tit. Award. award must be performed as far as, 496. POSTEA in cause referred, how entered, 625. POSTMASTER GENERAL AND RAILWAYS. limit of time for awarding between, 1 31 . appointment of umpire on reference between, 217. appointment to be before arbitrator's act, 219. duration of umpire's authority, 230. POWER of arbitrator ; see tit. Arbitrator. of umpire ; see tit. Umpire. of court ; see tit. Court. POWER OF ATTORNEY, agent demanding money awarded must have, 589. demanding execution of a deed need not, 501, 589. PRACTICE, arbitrator not bound by rule of, 112. making submission rule of coui-t, 565 ; see tit. Submission. moving to enforce award in equity, 556 ; see tit. Equity. making award rule of Chancery, 572 ; see tit. Submission. points of, in action on award, 511 ; see tit. Action. entering verdict on award, 625 ; see tit. Execution. moving for attachment, 688, 592 ; see tit. Attachment. INDEX. 941 PRACTICE (coniimied). obtaining rule to pay amount awarded, 615 ; see tit. Execution. moving to set aside award, 66G ; see tit. Setting Asidk. in equity, 701 ; see tit. Eciuiir. on reference back, 445. PR^MISSIS, DE; see tit. Db PK^iirssig. PRECAUTIONS, award to take all proper, not specific enough, 414. PRECEDENT CONDITION ; see Condition Precedent. PREMISES, awarding of and concerning ; see tit. Award. PRESUMPTION OF COURT in favour of award, 258, 681 ; see tit. Awakd. PRICE OF PURCHASE ; see tit. Purchase Price. PRINCIPAL, when bound by reference by agent, 26 ; see tit. Aqknt. PRINCIPLES on which arbitrator to decide, 111. PRISON, committal to, for not performing award, 579, 606, 608. in equity, 561, PRISONERS, expenses of, arbitration on ; see tit. Counties and BoROuang. PRIVATE ACT OF PARLIAMENT, submission by, 99. PRIVILEGE from arrest while attending reference, 175. PROCEEDINGS, stay of, reference of action, 85. of suit, 91, 553. in the reference, 164; see tit. Arbitrator. to enforce attendance of witnesses, 170. to enforce submission, 100 ; see tit. Submission. contrary to agreement not to sue, set aside, 69. to enforce award at law, see tit. Action ; Attachment ; Exe- cution. in equity, see tit. Equity. to set aside award at law ; see tit. Settino Aside. in equity ; see tit. Equity. PRODUCTION of documents, how enforced, 170, 183. PRO FEET of award under seal unnecessary, 516. PROMISSORY NOTE, reference as to Uability on, 4. award liability to remain as before, bad, 252. award of, good, 391. PROMOTERS OF PUBLIC UNDERTAKINGS, reference by, 38 ; see tit. Lands Clauses Consolidation Act. PROOF ; see tit. Evidence. PUBLIC HEALTH ACT, submission under, to be made rule of court, practice, 677. PUBLIC JUSTICE, breach of, cannot be waived by a party, 679. PUBLIC OFFICER, reference by, 32. no attachment against, 583. PUBLIC RIGHTS, referable by statute, 5. PUBLICATION of award, what is a, 237 ; see tit. Award. to the parties, what is, 237, 644. PURCHASE PRICE, duty of arbitrator appointed to fix, 392. equity not fix, reference failing, 710. Q. QUAKER, affirmation of, attachment granted on, 598. QUARTER SESSIONS, indictment at, referable after conviction, 14, submission by order of, 94. reference of appeal at, may be by attornies, 29, 942 moEX. QUARTER SESSIONS (continued). matters of appeal generally referable, 9 . award entered as judgment of sessions, 10, 638. ■when award abortive, re-hearing appeal, 709. QUEEN'S PRISON ; see tit. Prison. B. RAILWAY COMPANY AND POSTMASTER GENERAL, reference between : see tit. Postmaster General and Railways. disputes with contractors and persons working line, 39. RAILWAYS GLAUSES CONSOLIDATION ACT. what matters referable. compensation for lands taken, used, or injured by Railways, 7. for injuries to mines by Railways, 7. disputes as to sufficiency of carriages and engines, 7. matters authorized or directed to be referred, 39, 94. how submission made, 39, 94. compensation for lands taken, &c., to be under Lands Clauses Act, 7 ; see tit. Lands Clauses Consolidation Act. unless both parties concur in one, each to appoint arbitrator, 94. appointment of arbitrator by railway under hand of seci-etary or two directors, 95. appointment of arbitrators, the submission, 95. one side refusing to appoint, single arbitrator to act for both, 96. submission not revocable without consent, 95, 152, 162. nor by death of party, 95, 162. on death or incapacity of sole arbitrator, matter referred de novo, 97, 158. of one of two, new arbitrator appointed, 92, 158, 216. or remaining arbitrator acts alone, 92, 158, 217. on refusal or neglect to act of one, remaining arbitrator may proceed alone, 92, 158, 217. arbitrators to appoint umpire before entering on reference, 92, 217, 219. appointment to be in writing, 215, 223. to appoint new umpire on death or incapacity, 215. on their refusal or neglect. Commissioners of Railways to appoint, 215. how Commissioners to appoint, 223. Commissioners of Railways replaced by Board of Trade, 217. submission to be made rule of court, 97. practice in making it, rule, 577. costs of arbitration in discretion of arbitrators, 97, 359. declaration by arbitrators and umpire before entering on reference, 168. to be annexed to award, 236. wilfully acting contrary to, a misdemeaDor, 461. arbitrators and umpire may administer oath, 177, 183. may examine on oath parties and witnesses, 177, 183. may call for documents, 183. award not void for want of form, 236. Railway Company bound to make communications between severed lands, 435. to provide drains and watering places for cattle, &c., 435. RAILWAYS, COMMISSIONERS OP ; see tit. Railways Clauses Consolidation Act. RAILWAY COMPANIES' ARBITRATION ACT, reference under, 98. power of arbitrator under, 168. power to call for documents, 184. appointment of umpire under, 209. limit of time to award, 131. appointment of new arbitrator, 212. when by Board of Trade, 212, costs of arbitration, 360. enforcing award under, 622. INDEX. 943 READY to be delivered, award is, whea made, 515. REAL ACTIONS referable at Nisi Prius, 75. REAL PROPERTY ; see tit. Land. REASONABLE TIME allowed to perform award, 495. REASSIGNING lands pursuant to award, 499. RECEIVER, award appointing, 398. set aside, 602. liability of arbitrator for appointing, 462. RECEIVING inadmissible evidence, no ground for setting aside award, 655. RECITAL in submission, whether limiting reference, 120. in award, effect of, 244 ; see tit. Award. no evidence of appointment of third arbitrator, 535. error in, no ground of setting aside, 658. RECOGNIZANCE, submission by, 93. condition of not alterable by rule of court, 509. scire facias on, to enforce award, 549. RECORD, submission by, 93 ; see tit. Recognizance. Chancery court of, under stat. Will. III., 56. parties on, necessary to refer the cause, 72. power of arbitrator to amend, 195. award cannot be made matter of, 558. when rule to set aside award to be drawn up on reading, 634. RECTOR, referring right to tithes during his incumbency, 22. RE-EXAMINING witnesses, setting aside umpirage for not, 656. REFERENCE to arbitration ; see tit. Submission. on the usual terms, what is a, 76. proceedings in, 164; see tit. Arbitrator. costs of, what are, 356. on what scale to be taxed, 631. need not be taxed before action, 505. compulsory, of matters of account in action, 8, 88. to the master ; see tit. Master. failing, proceeding in the cause referred, 705. enforcing contract in equity, 709 ; see tit. Equity. back, 445 ; see tit. Referring back. of indictment, verdict of guilty should be taken, 76. REFERRING BACK award to arbitrator, 444. power and duty of arbitrator, 444; see Arbitrator. clause empowering court to refer back award, 445. under the Common Law Procedure Act, 445. on compulsory references or by consent, 445. on what motions award may be sent back, 455. for what causes award will be sent back, 446. discovery of new evidence, 447. to explain letter, 447. award good on face not for mistake in law, 448. unless admitted by arbitrator, 448. to find on specific items, 449. limit of time for application, 449. referring back, though time for setting award aside expired, 450. rule absolute in first instance conditionally, 450. whether court can refer back more than once, 451. clause to refer to same or difierent arbitrator, 451. effect of clause to refer back in Chancery, 451. after new award fresh taxation of costs necess;iry, 634. costs of abortive award after reference back, 634. REFORM a deed, power of arbitrator to, 112. 944 INDEX. REFUSAL of arbitrator to act, effect of, 156; see tit. Arbitrator. failing to attend meeting not a, 208, 212. to make an award, 97, 417. supplying vacancy on, 66, 67, 157. under statute concerning prison expenses, 157. under Lands, Railways, and Companies Clauses Acts, 97, 158, 212. to proceed in the reference any further, 196. to deliver award untU fee paid, 238, 458. of party to attend meeting, 191. to produce documents, 183. REHEARING case, setting aside award for umpire not, 656. REINSTATE premises, award to, 497. REJECTING- evidence, no ground for setting aside award, 655, RELEASE, award all suits to cease, operates as, 286. pursuant to award, no plea for stranger in equity, 555. award to execute on payment, 502. forthwith, 403. RELEASES MUTUAL, arbitrator may award to be given, 402. of bonds, &c., by which debts referred are due, 402. not of matters beyond cause, cause only referred, 403. not of arbitration bond, 403. not beyond submission, 403. as to time of matters accruing, 403. not to defeat claim awarded, 403. need not specify form of, 404. award of, effect of, 256, 257. decides all matters referred, 268. construction of, 403. to a day before submission, 262. to a day later than submission, 403. to time of award, 502. to use of stranger, 286. as to matters beyond submission, void pro tanto, 313, 403. REMUNERATION of arbitrator, 457 ; see tit. Arbitrator. RENT not due, awarding payment of, 125, 392. when non-payment breach of award, 498. RENT CHA.RGE for tithes, submission to determine, 99. awarding as to, 417. REPAIRS, awarding liability to, 410. REPLEVIN, sureties, discharge of by reference, 87. effect of award, as to double costs of, 379. REPLICATION in action on arbitration bond, 520 ; see tit. PLEADiNa. REPUGNANT, award must not be, 289 ; see tit. Award. setting aside, 289, 661. REPUTATION, award no evidence of, 537 ; see tit. Evidenck. REQUEST to perform award when necessary, 499 ; see tit. Performance. when necessary to aver in pleading, 517. in award equivalent to order, 244. RESERVATION of authority avoids award, 269; see tit. Award. setting aside award for, 659. RESERVED LIBERTY to apply to the court, effect of in equity, 709. RESTRAIN arbitrator from awarding, court no power to, 147. RESTRAINT of trade, awarding, 400. RETRAXIT, award of, valid, 423. INDEX. 94. J RETURN DAY of jury process, uo limit to arbitrator's power, 128. REVIEW decision of arbitrator as to evidence, no bill in equity to, C97. REVOCATION of the arbitrator's authority, 143. b. no second motion to .set aside award, 670. except first failing for defect of jurat or title of affidavit, 670. The rule nisi on a motion to set aside an award, 672. drawing up the rule nisi to set aside the award, 672. on reading what rule drawn up, 672. amending rule nisi, 673. not after time allowed for moving elapsed, 673. moving though award not taken uj), 673. whether rule to be drawn up on reading the record, 674. on reading pleadings, 674. Stating the grounds of motion in the rule nisi, 674. grounds of motion must be set out in rule, 674. whether awai'd or certificate made, 675. pai-ty limited to grounds stated, 675. objections must be stated specifically, 675. whether general statement helped by specific affidavit, 676. particular wurJs limit general statement, 677. statement too general void, 677. amending rule nisi according to motion, 677. 950 INDEX. SETTING ASIDE (continued). Showing cause against the rule to set aside an award, 677. practice on showing cause against the rule, 677. party must take oiBce copies of affidavits, 677. but not of award or exhibits, 678. whether cause can be shown on last day of term, 6/ 8. turning motion into special case, 678. vjhat may be shown for cause against the rule, 678. motion made too late, 678. affidavits defective, 678. grounds false in fact, 678. award bad or doubtful in law, 678. error in favour of party moving, 679. irregularity waived, 679. not when public justice interested, 679. time enlarged by consent, 679. matter omitted never notified to arbitrator, 679. no dispute about matter left unascertaiued, 680. afiidavits to support award bad on its face, 680. party accepting money under award, 680. party having paid money awarded, 680. allowing opponent to act on award, 681. Dlssoharging or making absolute the rule to set aside an awai-d, 681. res.ult of the motion to set aside an award, 681. court favors awards, 681. not set aside unless clearly void, 681. allowing fresh affidavit.3 after argument, 681. award set aside in part only, 682. when bad part of award separable, 682. new trial, when award in a cause set aside, 683. costs of the motion to set aside an award, 683. discretionary with court to discharge rule with costs, 68.31. costs usually granted, 683. rule silent, costs of motion costs in the cause, 35S, 683. SKTTINO ASIDE THE JUDGMENT ENTERED 0P PURSUANT TO AN AWAKD, 6S5. judgment and award may both be set aside, 685. judgment set aside if arbitrator no power to award judgment, 685. though award not set aside, 685. judgment entered after reference on a writ of trial, 685. judgment set aside, though limit for setting aside award passed, 685. though motion to set aside award discharged, 686. for defects in award apparent on face, 686. bankruptcy before award no ground, 687. party's conduct precludes objection, 687. irregularity in entering judgment, 687. ■when motion to be made, 687. within reasonable time after entry of in-egular judgment, 687. consent cures irregularity in entry as to c().sts, 687. rule nisi need not set fortli grounds of motion, 688. Setting aside an award in equity, 689 ; see tit. Equity. Setting aside the attachment to enforce award, 606 ; see tit. Attachment. S15VERANCE, damage from what is, 121, 435; see tit. Lands Clauses Conso- lidation Act. SEWERS, PRESENTMENT BEFORE COMMISSIONERS OF, referable, 14. SHALL OR MAY, construed imperative, 406. SIIARES, distributive, award to pay, 282. in ship, award to pay in proportion to, 281. SHERIFF, no power to refer cause on writ of trial, 76. cannot give arbitrator power to alter verdict of jury, 76. verdict taken on reference by, irregular, not null, 707. must be set aside before new trial, 707. award may be good though verdict cannot be entered, 6S5. SHORTHAND WRITER, excluded by arbitrator, 166. iNPrx. 051 SHOWING- CAUSE against motion for attacliraent, 600 ; see tit. Attachment. whether at chambers against rule to pay sum awarded, 618. against rule to set aside award, 678 ; see tit. Setting asidb. SILENCE, effect of, in award, as to a matter iu difference, 263 ; see tit. Award. SMALL DEBTS may be referred, 9. award as verdict as to costs, 3 SO. SOLE TRADER in London, feme covert may refer, 16. SOLICITOR ; see tit. Attorney. SPECIAL CASE, arbitrator may state by Common Law Procedure Act, 1854, "IDS. error will not lie to review judgment, 315. SPECIAL JURY, costs of, limited reference as to, 364. how arbitrator should certify for, 383. SPECIFIC PERFORMANCE, not of agreement to refer, 65. of award, when enforced in equity, 545 ; see tit. Equity. when made beyond time, 143. of contract dependent on abortive reference, 710 ; see tit. Equity. SPEEDY EXECUTION, awarding, 369. STAKEHOLDER, arbitrator as, liability, 155, 462 ; see tit. Arbitrator. requires notice of award being made, 49o. STAMP requisite on submission by agi'eement, 50. by bond, 52. many parties with common interest, 50. not requisite on submission in a cause, 73, nor where matter of reference is under £5 value, 50. not requisite on submission or award as to Bankrupt's estates, 93, 240, nor between Masters and Workmen, 99, 239. nor in case of Savings Banks, 36, 239, not requisite on appointment of umpire by arbitrators, 223, requisite on award, 239. exceptions by statute, 239, informal award must have, 240. several parties, one stamp, 240. inclosure award not require ad valorem stamp, 240. award under seal no deed, 241. appraisement no award, 241. party agreeing to be bound by decision of another, 241. verdict of miners' jury, 241. no animus arbitrandi, 242. opinion of counsel, whether award, 242. " matter annexed" to award, 242. on award may be imposed at any time, 242. master may object to unstamped award, 242, 599. may refuse to draw up rule for attachment on, 242, 599. not requisite on certificate of arbitrator, 243. on award on compulsory reference of action, 240, on athdavit to set aside award, 667, want of, no ground of setting aside award, 658, STATEMENT in writing of matters in difference, arbitrator requiring, 307, of grounds of decision in award, 304 ; see tit. Award. of case in award, 306; see tit. Arbitrator, Award. by arbitrator as to grounds of award after award made, 298 ; see tit. Arbitrator. STATUTE, award under, may operate as a conveyance, 484 ; see tit. Inoloscre Act. STATUTE OF FRAUDS, written award on parol submission, parol contract under, 50. sometimes void as to lands, 50, 549. award on submission by bond as to price of lauds valid under, 52, 952 INDEX. STATUTE OF LIMITATIONS, plea of, in action on award, 532. STATUTE OF VICTORIA, enforcing award under, atlaw, 611 ; see tit. Execution. in equity, 5tJ2. STATUTE OF WILLIAM III., submission to reference under, 54. effect of the statute, 54. agreement of reference may be made by consent a rule of court, 54. Chancery court of record within statute, 56. practice making agreement a rule, 565 ; see tit. Submission. making award under, order of equity, 558, 673. awa- d may be enforced summarily, 65. by attachment, 579. no limit of time for enforcing, 56. by bill in equity, though submission rule of a court of law, 545. rule of court, not a judgment or decree, — no execution on, 57. award may be set aside on motion if procured by corruption or undue means, 55, 665. what amounts to "corruption or undue means," 665. setting aside award at law, 642 ; see tit. Setting Aside. limit of time for setting aside, 56, 643, equity cannot set aside when submission rule of court of law, 56, 690 ; see tit. Equity. when rule of Chancery, only on motion, 694, 701. no appeal to House of Lords against decision of equity, 702. what references within the statute, 51. not parol submission, 57. reference of cause and all matters, 57. reference of cause by agreement, 57. of cause to be made rule of another court, 58. of either of two courts, 68. of same court by agreement, 58. matters in ecclesiastical suit, 58. not indictment, 59. but indictment within Common Law Procedure Act, 1854, 59. differences not existing before submission, 59. ivhat a sufficient consent clause, 59. clause written under bond, 59. clause within incorporated, 60. conditional clause, 60. not specifying of which court rule to be, 60. of either of two courts, 60. consent to make award rule of court, 60. STAY OF PROCEEDINGS, reference of a cause, when, 85. STAYING PROCEEDINGS contrary to reference, 46. under Common Law Procedure Act, 1854, 46. in what cases, 47. at law by a court of equity, 90. STET PROCESSUS, award of, 324, 325. bad when costs abide event, 325. STRANGER to the record may be added as party on reference of a cause, 22, 72. may be added afterwards, 22. may become party by acquiescence in award, 22, 551. by laches, 23, 651. arbitrator refusing to allow attendance of, 166. STRANGER TO THE SUBMISSION, EFFECT OP AWARD AS TO, 418. directing a payment to be made to, 419. direction to pay money to, generally void, 419. rest of award sometimes good, though direction void, 419. when bad part separable, 313. direction valid when for party's benefit, 419. to pay party's servant, 419. to pay stranger for party's use, 419. to discharge a joint debt to a stranger, 419. payment to executor of, 420. INDEX. 953 STRANGER (continued). whether benefit need appear on face of award, 420. not expressly authorized to receive money, 420. directing payment to plaiiitifl' or his attorney, 420. directing payment to arbitrator for party's benefit, 421. directimj a strarujer to do an act, 421. direction generally void, 421. awarding party to execute bond with sureties, 421. one arbitrator to be surety, 421. wife not a party to join in conveyance, 422. to deliver up deed or house in possession of another, 422. directing stranger to pay costs, 422. arbitrator to api)ly funds pursuant to award, 422. direction valid when stranger bound to obey, 422. awarding party to procure discharge of a bond, 422. direction to cancel note on condition stranger not demand costs, 423. when stranger merely ministerial, 423. awarding presentment by tenants of manor good, 423. but not so, to procure Lord of Manor to grant, 423. reserving to stranger, to settle deeds, 273. arbitrators agreeing to be bound by opinion of, 207. directing act to be done by the court, 423. award to levy a fine, 423. of a discontinuance, nonsuit, retraxit, 423. directions affecting the property of a stranyer, 424. award as to property of, generally void, 424. directing payment at house of, 424. out of funds of, void, 424. directing act to be done on land of, 424. direction bad, unless made conditional on consent had, 425. directing tenant to commit waste, void, 425. to remove property partly belonging to a stranger, 426. directing award to be obeyed as far as party may lawfully, 497. award should show direction as to stranger, justified, 426. delivery of deed awarded to, for party's use, 502. not obeying award, party bound for, liable, 22, 423. cannot avail himself of the award by bill in equity, 651. cannot plead the award as a defence to a suit, 556. attachment not lie for, for sum awarded to, 581. nor rule to pay, 620. effect of award in evidence as to, 537 ; see tit. Evidknce. STREAM, regulating use of a, by award, 411. SUBJECT MATTERS OF REFERENCE. Civil interests of the parties, 3. civil rights of a private character, 3. all matters concerning personal chattels or personal wrongs, 3. debts certain, 3. matters concerning real property, 4. questions of law, 4. actions and suits, 5. not matters illegal, 5. illegal items in account, 5. future use of property, 5. future difi"ereuces, 5. pnhlic and private rights hy statute, 5. inclosing commons, commuting tithes, 6 ; see tit. Tnclosure Act. compensation for lands taken for or injured by undertakings of a public nature, 6 ; see tit. Lands Clauses Consoi-idation Act. for lands taken, used, or injuriously affected in constructing Rivilways, 6 ; see tit. Railways Clauses Consolida- tion Act. for Markets and Fairs, Harbors, Docks, and Piers, 7. for Waterworks, Improvements in Towns, Cemeteiioe, 7. 954 INDEX. SUBJECT MATTERS OF REFERENCE (continued). for injuries by drainage, by railways to mines, 7. compulsory reference of matters of account, 7. expenses of pi-isoners, 71 ; see tit. Counties and BoROuaHS. disputes between masters and workmen, 8 ; see tit. Masters and Workmen. disputes relating to Savings Bank, 8 ; see tit. Savings Bank. Benefit Building Society, 8 ; see tit. Bene kit Building Societies. Local Boards, damage by works of, 9. Bankrupts' and Insolvents' estates, 8 ; see tit. Bankrupt and Insolvent. Joint Stock Companies' affairs, 8 ; see tit. Companies Clauses Consolidation Act. Ecclesiastical lands, 9. small debts, 9. civil proceedings at Quarter Sessions, 9 ; see tit. Quarter Sessions. suits in jDiiwce Court, 10 ; see tit. Ecclesiastical Court. Matters of a criminal nature, 11. felonies not referable, 1 1. what misdemeanors, 11 ; see tit. Misdemeanor. after indictment, 11 ; see tit. Indictment. presentment before commissioners of sewers, referable, 14. What referred by particular phrases, 115; see tit- Submission. SUBMISSION, How to be made, no particular form of words necessary, 42. must show intention of parties to be bound by awai-d, 42. in wi-iting may be made rule of court unless contrary intention appear, 63. arbitrator cannot be appointed by will, 43. appointment of arbitrator to be complete must be notified, 43. when advisable to t:ike warrant of attorney to enforce award, 44. when dispute as to possessions of lands, 44. conveying lands to arbitrator on trust to abide award, 45. Different kinds of. at common law, wJiich cannot be made rules of court. by parol, 49 ; see tit. Parol. by writing not under seal, 50 ; see tit. Agreement. by bond, 51 ; see tit. Bond. by deed, 53 ; see tit. Deed. disadvantages of submissions which cannot be made rules of court, 63. submission revocable, 53. no setting aside award at law, 53. no summary means of enforcement, 54. only by action and suit, 54. binder the statute of William III., 54 ; see tit. Statute of William III. arbitration clause in agreements, to refer all disputes, 62 ; see tit. Agreement. in a cause at common law, 72 ; see tit. Cause. on the usual terms, what is, 76. enforcing by attachment, 87. award on, how enforced, 88. a stay of proceedings, 85. a discharge of bail, 86. compulsory reference of action for matters of account, 88 ; see tit. Common Law Procedure Act, 1854. judicial and statutable submissions, not made in a cause at law, 91. by order in Equity, 91 ; see tit. Equity. in Bankruptcy, 92 ; see tit. Bankrupt. by record, 93. by recognizance, not alterable by rule of court, 93. INDEX. 955 SUBMISSION {continued). by Older of a County Court, 93, by order of Quarter Sessions, 9, 94. under the Lands Clauses Act, 94 ; see tit. Lands Clauses Consoli- dation Act. under the Railways Clauses Act, 94 ; see tit. Railwafs Clauses Consolidation Act. under the Companies Clauses Act, 98 ; see tit. Companies Clauses Consolidation Act. concerning prison expenses, 98 ; see tit. Counties and Boroughs. between masters and workmen, 99 ; see tit. Masters and Workmen. in case of Friendly Societies ; see tit. Friendly Society. between Postmaster-General and Railway Companies j see tit. Post- master-General AND Railways. by private Act of Parliament, 99. Over what matters the submission gives the arbitrator jurisdiction, 115. effect of particular terms to refer particular matters, 115. all matters in difference, 115. demand in auter droit, 116. demand admitted, 11(3. ■within former submission, 116. not claim abandoned, 116. all suits, controversies, and demands, 116. all debts, trespasses, and injuries, 116. all demands due and owing, 116. all actions and complaints, 117. cause and all questions, in Scotland, 117. cause, or all matters in the cause, 117. whether issue at law referred, 118. whether demurier, 118. not right to judgment non obstante veredicto, 118, 350. when cause and all matters referred, 119. wool in process of woolling, &c., 119. money laid out on request, 119. effect of recital in, 120. as to settled account, 120. as to suit in Chancery, 120. » damage from railway works, 121, 431. sul'ject matter whether joint or several, 121. all suits " between them two," 121. between A. & B. on one part, and C. on the other, 121. adverse rights of defendants in equity, 122. all matters *' between the parties or any of them," 122. up to what date matters in difference may arise, 122. no claim in cause arising after writ, 122. by special provisions claim after writ, 123. matters relating to annuity in the cause, 123. indictment, clause for comi)ensation, 123. all matters in difference means up to time of reference, 1'23. re-executing at a later day, 124. parties may submit future claims, 124. money not due till after reference, 124. periodical award of damages, 125. money not due at date of award, 125. Effect of the submission. no bar to action for matters referred, 45. arbitration pending no plea, 45. agreement to refer when accord and satisfaction, 45. action by assignees after reference by insolvent, 46. proceedings stayed inaction brought after, 46, 85 ; see tit. Stating Proceedings. in a cause ; see tit. Cause. in a suit ; see tit. Equity. alteration and amendment of, 80, 82 ; see tit. Alteration. 956 INDEX. SUBMISSION {continued). setting aside, 78 ; see tit. Setting Asidk. preventing award, a breach cif, 100. a forfeiture of arbitration bond, 100. ground of action, 100. punishable by attachment, 100. revocation, a breach of, 100, 145; see tit. Revocation. Effect of particuhir clauses in the submission, of recitals in, 120. of clause, how award to be made, 234 ; see tit. Award. preventing death revoking, 161 ; see tit. Revocation. limiting time for award, 129 ; see tit. Arbitrator. giving power of enlargement, 133 ; see tit. Enlargement. giving power over costs, 358 ; see tit. Costs. costs to abide event, 368 ; see tit. Costs, Cause. power to certify for costs, 381 ; see tit. Costs. giving costs for aifected delay, &c., 101. wilfully preventing award ground of motion, 101. revocation, unless justified, ground, 101. party may justify, 101. court cannot give costs without clause, 102. no power when awaid made, 102. consent clause, to make submission rule of court, 54 ; see tit. Statute op William III. power to order what to be done, 405 ; see tit. Arbitrator. power to examine parties, 183 ; see tit. Arbitrator. to administer oath, 175; see tit. Arbitrator. ^ to call in a valuer, 200. to proceed ex parte, 191 ; see tit. Arbitrator. to state a case in award, 306 ; see tit. Arbitrator, to amend the record, 195 ; see tit. Arbitrator. parties to abide by award, 100, 491, 544 ; see tit. Action ; Equitt. not to proceed at law or equity, 68 ; see tit. Agreement. not to bring writ of error, 70. to refer back, 452 ; see tit. Arbitrator ; Referring Baok. referring to joint arbitrators, 204 ; see tit. Arbitrator. for appointment of umpire, 218 ; see tit. Umiire. to award entry of verdict, 338 ; see tit. Cause. of judgment, 349 ; see tit. Cause. to enter judgment pursuant to award, 348. to sign judgment for amount awarded, 637. liquidated damages for i-efusing to rel'er, 63 ; see tit. Agreement. Making the submission a rule of court, 565. making the suhinission a rule of a court of law, 565. submission by agreement cannot be made rule after revocation, 145, by judge's order, may be made rule though revoked, 101, 145. necessary before enlargement of time by the court, 141. before summary enforcement of award, 565. except on compulsory reference of cause, 565. before entering verdict in cause referred, 625. before application to the court, 626. before attachment, 588. before motion to set aside award, 670, 672. may be made rule at any time, 566, with any object, 566. both at law and equity, 566. when made rule of law, awai'd enforceable iu equity, 515. when by common law may be set aside in equity, 689. when under the statute of Will. III., cannot, 690 ; see tit. Equity. drawing up rule nunc pro tunc, when allowed, 566, 647. practice, making submission in a cause a rule of law, 5G7. rule absolute in first instance, 567. submission under stat. Will. III., affidavit of execution of, 567. bond executed by opponent made rule, 567. wheu execution of all parties must be verified, 567. INDEX. 957 SUBMISSION {continued). compelling attesting w.tuess to make affidavit, 567. practice, makmg agreement of reference a i-ule, 5t>8. rule aiisulute in first instance, SOS. may be made rule in term or vacation, 568. dating rule, 56i). making enlargements of time part of the rule, 569. also appointment of umpire, 56U. not necessary on motions to set aside award, 569. all made one rule, 570. when submission lost, copy made rule, 570. duplicate made rule, arbitrator withholding original, 670. compelling party to produce, 570. belongs to both parties, 571. on refusal to produce submission copy made rule, 571. maTcing the submission a rule of Chancery, 5~rl. necessary before motion to enforce award, 572. before motion to set aside award, 701. notice of motion to make submission order of court, 572. order made on affidavit of notice and of execution, 572. when without notice, 572. consent dispenses with notice and proof of execution, 572. order how drawn up, 572, 573. making award a rule, 572. filing submission and award, 573. submission and award not set out in the orders, 573. making submission in bankruptcy a rule of the Court of Bankruptcy, 573. maldng the submission a rule under the Lands Clauses Act, 574 ; see tit. Lands Clauses Consolidation Act. SUIT in equity ; see tit. Equity. award on, 353. to cease, award of, 498. proceeding in, reference failing, 709 ; see tit. EQUiir. SUNDAY, award of payment on, 392. no arrest on under attachment for non-performance, 606. SURETIES in replevin, discharge of, by reference, 87. discharge of by enlarging time, 140. award ordering party to procure, bad, 269, 321, 421. SURPLUSAGE, award of verdict when, 343. award of judgment when, 349, 685. words in title of affidavit treated as, 666. SURPRISE, setting aside award for, 663. SURRENDER copyhold, award to, performance of, 500. SURVEYORS and their successors, award of herbage to, 416. SURVIVOR of two co-parties, when death no revocation as to, 153. enforcing award against opponent, 162. TAKING UP award compulsory under Lands Clauses Act, 442. TAXATION OF COSTS, 627 ; delegating to the Master, 271 ; see tit. Costs. of the cause and reference, 627 ; see tit. Execution. party to pay should procure, 365, 498. TENDER of money awarded should be made, 498. for execution of deed awarded, 499. TERMINATION of arbitrator's authority; see tit. Arbitrator. TESTATOR, award respecting estate of, 394; see tit. Execux'ou. TESTIMONY by arbitrator, 467 ; see tit. Arbitrator. 958 INDEX. THIRD ARBITRATOR ; see tit, Arbitratoe, TIME, computation of, in submission, by lunar months, 1"20. for making award, three months unless limit specified, 127; see tit. Arbi- trator, Umpire. under inclosure act directory only, 131. to appoint umpire, 218; see tit. Umpire. to appoint third arbitrator, 210. party asking for further time, 182. elapsed, compelling defendant to refer again, 707. for doing act directed, award need not fix, 275. award to pay at specified, attachment on, 590. how to plead such award, 517. allegation award made in time material and traversable, 514. for setting aside award, 643 ; see tit. Setting Aside. for setting aside judgment, 687. for motion to refer back, 449. TITHES, dispute as to composition for, awarding on, 390. submission by statute as to commutation of, 6, 100. award extinguishing right to, 484. apportioning rent charge, 417. awarding undivided moieties of, 410. TITLE of affidavits ; see tit. Affidavit. to property award may decide, 481 ; cannot give, 482. TOLERATION ACT, indictment under, not referable, 13. TOSSING UP for choice of umpire bad, 220. TOWN AGENT of attorney binds client by reference, 27. TRADE, restraint of, awarding, 400. TRANSFER property, award cannot, 481 ; see tit. Award. TRAVERSE of the submission in action on award, 526 ; see tit. Plka. TRESPASS, award ordering party to commit, 391, 425. set aside, 662. liability of arbitrator ordering, 462. award in, -when good plea for a stranger, 525. TROVER, liability of arbitrator to, for chattel deposited to abide award, 4^4. TRUSTEE, reference by, personal liability, 32. to attachment on award, 582. of Savings Bank, reference by ; see tit. Savings Bank. of Friendly Society ; see tit. Friendly Society. of wife, and husband, reference between, 17. of infant, death of infant revokes reference as to, 161. u. UMPIRAGE, arbitrator's fees may be costs of, 232, 357; see tit. Umpire. UMPIRE, by whom to be appointed, 204, 213. office of, 213. power of arbitrators to appoint, 68, 204, 213. under Common Law Procedure Act, 1854, 205, 213, 21.5, 216, 219. appointing, to decide between arbitrators, bad, 214. when limited to points on which arbitrators differ, 214. appointment to act in future, 219. death, incapacity, or refusal supplying vacancy, 67, 68. appointment under the Lands Clauses Act, 99, 214. need not be made rule of court on motion to set aside award, 576. under the Railways and Companies Clauses Acts, 215. under Railway Companies Arbitrator Act, 1859, 215. or references between the Post Office and Railway Companies, 217. lIs'DEX. 059 UMPIRE (continued). when the arbitrators should appjint, 217. at time prescribed uy Kuljinission, 218, when appoiiinut'ut condition precedent to acting, 218, when 110 nine prescribed, 218. better course to appoint before hearing case, 218. when ai>poiiitnieut to be made under the Lands, Railways, and Com- panies Clauses Acts, 219. on reference between Post Office and Railways Companies, 219. appointment under Lands Clauses Acts to be within first three months, 219. appointment by judge or court, parties or arbitrators failing to agree, 67, 205, 216. how the arbitrators are to choose, 220. appointment must be by choice, not chance, 220. not by lot, 220 ; award set aside for, 656, consent of parties renders valid appointment by lot, 221. assent must be with full knowledge of facts, 222. attorneys' clerks not competent to consent, 222. appointing fresh umpire if first refuse, 222. no special form of appointment, 223, appointment in writing under the Lands, Railways, and Companies Clauses Acts, 223. by commissioners of railways how executed, 223. commencement and duration of authority of, 223, commencement when no time limited for the arbitrators, 223. when time limited for the arbitrators' award, 224. on disagreement of arbitrators, 127; subject to their agreeing again, 224. when named in submission with same time as arbitrators, 224, when arbitrators to appoint, and one period limited, 225. what a disagreement of the arbitrators, 225. empowered to enlarge time before disagreement, 226. no power when arbitrators award on part, 226 ; unless specially given, 214. duration of authority, 227. three months when no limit stated, 127. court or judge can enlarge time, 227. enlargement by umpire not enure for arbitrators, 227. duration under the Lands Clauses Act, three months, 227. when authority commences under the Lands Clauses Act, 228. three months for, to be computed from duty devolving on him, 229. duration on references between the Post Office and Railway Companies, 230. power and duty of, 230. same as of arbitrators, 230. must rehear case, 230. agreement award to be made on arbitrator's notes, 230. party waiving objection to not rehearing, 231. not tendering evidence, 231. under the Lands Clauses Act, 231. joint award by arbitrators and umpire, bad, 232. umpire may charge arbitrator's fees as costs of umpirage, 232. umpirage in which arbitrators join, good, 199, 232. umpirage, setting aside, 656 ; see tit. Settinq Aside. not set aside for false recital, 245. appointment of, made part of rule with submission, 569, UNCERTAIN, award must not be, 275 ; see tit. Award. alternative in award, 268 ; see tit. Award. directions in award bad, 414. setting aside award when, 660. UNDUE MEANS of procuring award, what amounts to, 208. UNINTELLIGIBLE, award must not be, 289 ; see tit. Award, UNREASONABLE award, court will enforce, 291, 549. attachment on, refused, 584, 960 INDEX. UNSTAMPED award, rule for attachment not drawn up on, 599 ; see tit. Stamp. UNTIL a certain day, enlarging time, eflect, 129. USUAL TERMS, reference on the, what is a, 76. VACATION, making submission rule of court in, 568. signing judgment in, 635, moving in, to enforce award in equity, 560. VALIDITY of award doubtful, no attachment, 585. VALUATION to be made on a specified day, 130. by inspection only, 180, VALUER, whether ministerial officer, 273, arbitrator, calling in, 200, not arbitrator, 43, 107, VENUE, change of, in action on award, 511. VERDICT taken, subject to reference, effect of, 73. of guilty shuuld be taken on reference of indictment, 76. enforcing second reference under pain of execution on, 707. court cannot order entry of, for defendant, 708, power of ai'bitrator to award, 338 ; see tit. Cause. clause to say what to be done not give jjower, 413. unauthorized award of, not a direction to pay, 584. setting aside award for, 659. not when separable and surplusage, 312. general award of, a finding on all pleas, 290, 334. award on compulsory reference enforceable as, 89. entering, pursuant to award, 623 ; see tit. Execution. awarded, not to be limited by statement of arbitrator, 301. or amended by his notes, 626. when to move to enter on point raised in award, 657. moving to set aside, 669. taken on reference falls when award set aside, 706. must be set aside before new trial, reference failing, 70(i. of miners' jury no award, 241. VERIFICATION, replication in action on bond, when to conclude with, 521 ; see tit. Pleading. VICTORIA, STATUTE OF, enforcing award under, at law, 611 ; see tit. Execu- IION. in equity, 562. VIEW of premises discretionary in arbitrator, 187. when empowered to decide on, without evidence, 187. VOID AWARD, when set aside, 657. VOLUNTARY STATEMENTS by arbitrator, 470 ; see tit. Arbitrator, VOUCHERS, to verify, when arbitrator may order party, 390, w. WAIVER of Irregularity, 188 ; see tit. Arbitrator. showing as cause against rule to set aside award, 679, of improper appointment of umpire, 656. of umpire not hearing evidence, 231. of award, plea of, 533 ; see tit. Plea. of right to costs awarded, 380. WARRANT OF ATTORNEY, taking to enforce award, 41, INDEX. OCl WASTE, award to commit, bad, 425 ; set aside, 662. WEIRS, award to remove, performance of, 497. WIFE, power of, to bind herself by referring, 15. husbaud, civiliter mortuus, l(j. trausported — alien eueniy, 16. whether when lunatic, '62. sole trader in London, 1 (5. as to separate estate in equity, 16. not as to real estate, not to separate use, 16. reference between, and her husband, 17 ; see tit. Husband and Wife. trustees of, and her husband, reference between, 17. reference as to chattels of, 17 ; see tit. Husband and Wife. reference with, by party knowing her coverture, binding, 17, 287. award not set aside, G64. award of payment to, good, 395. enforced by attachment, 496. when award to convey her lands enforced in equity, 550. feme sole party, by becoming, revokes submission, 155. commits breach of suV)mission, 510. award against when sole, whether attachment lies on after marriage, 17 5i3 WILLIAM III., STATUTE OF ; see tit. Statute op William III. WINE, demand of, not same as demand of wine warrant, 591. WITHDRAWING JUROR on reference, whether cause terminated, 75, 706. WITHIN a certain time includes last day, 129. WITNESS, enforcing attendance of, on the reference, 169. when attendance compulsory, 169. when voluntary, 169. compulsory provision by 3 & 4 W. IV. c. 42, s. 40, 169. practice obtaining order for attendance of, 170. and for production of documents, 170. rule absolute in first instance, 170. serving the rule or order, 171. disobedience a contempt of court, 171. Habeas Corpus to bring up prisoner, 171. statute not extend to equity, 171. See Addenda. nor when order of Nisi Prius not drawn up, 172. no consent clause in agreement, 172. statute not apply to the parties, 172. parties bound by submission to produce documents, 172. criminal prisoners, stat. 16 & 17 Vict. c. 30, 172. attending the arbitrator, privileged from arrest, 175. parties, attorneys, and witnesses privileged, 175. eundo, morando, et redeundo, 175. bow far privileged during adjournments, 175. examination of on" oath, 175; see tit. Arbitrator of sick witness at his own house, 167. of parties as, 183. not sworn, award when set aside, 655. in private, award set aside, 655. attesting submission compelled to make aflBdavit, 567. attesting award should verify it, 595. indictable for perjury, 177. on county court reference sworn by arbitrator not indictable for per- jury, 178. perjury of, setting aside award for, 664. not f(ir mere incorrect statement of, 664. arbitrator refusing to hear, award set aside, 179. rejecting wrongly as incompetent, award not set aside, 193. umpire refusing to rehear, award set aside, 230. costs of, costs of reference, 356. rejected by arbitrator costs of not allowed, 629. 3 Q 962 iisrDEX. WOMAN, MARRIED ; see tit. Wife, WOOL, IN PROCESS OF WOOLLING, damage to, referred, 119. WORKMEN AND MASTERS ; see tit. Masters and Workmen. WRIT OF ASSISTANCE issues to enforce award in equity, 562. WRIT OF ERROR, clause prohibiting, bars arrest of judgment, 70, WRIT OF INQUIRY, when not necessary in action on award, 512. WRIT OF TRIAL, reference by sheriff on ; see tit. Sheriff. WRONG, his own, party cannot plead iu equity, 711. THE END. BRADBTOY AKD EVANS, PHlNTEftS, WtnTETTtlARS. (^/ I UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 857 049