BOOK IV. BOOK IV. PART II. ARBITRATION. SECT. 1. The Reference, 1220 to 1227. 3. Setting aside the Award, 1239 to 1254. Where there Court. Where there is a Cause in Court.] WHERE the matter inis a Cause in tended to be submitted to arbitration is also the subject of an action pending in one of the superior courts at Westminster, if the defendant has been holden to bail, it is usual to wait until the cause shall be called on at Nisi Prius, and then take a verdict for the damages stated in the declaration, subject to the award of the person to whom the cause is to be referred: otherwise, the reference to arbitration would be a discharge of the bail (a). But if the defendant have not been holden to bail, then the cause may be referred, at any time before trial, by judge's order or rule of court; or, when the cause is called on, by order of Nisi Prius, with or without a verdict being taken, as the parties shall judge proper. (a) Vol. I. 634: 2 Saund. 72 b. SECT. 1. Attorney has Where an attorney agreed to refer a cause at Nisi Prius, without the consent or knowledge of his client, the court refused to set aside the rule of reference on that account, Power to even although the application for that purpose was made refer. previously to any proceedings being had before the arbitrator (b). But it would seem that a client would not be bound by his attorney's unauthorized agreement to refer a cause in an unusual manner (c). of Reference, If the cause be referred at Nisi Prius, the leading coun- Rule or Order sel for both parties fix upon the arbitrator, indorse their how obtained. briefs accordingly, and hand them to the clerk of Nisi Prius, or associate, in order that he may draw up the order of Nisi Prius from them (d). But if the cause is to be referred before trial, then let each party get a motion-paper to that ef fect signed by counsel; take them to one of the masters, and draw up the rule (e). Or, by the attornies on both sides signing a consent, they may thereupon obtain a judge's order to the same effect (ƒ). After obtaining the rule or order, you proceed as is directed in the next Section. The rule should order that all proceedings in the action be stayed, otherwise it will not operate as a stay of proceedings (g). It may be here observed, that a judge's order for this purpose may be made a rule of court, even after revocation, with a view to costs (h). Where all matters in difference in the cause were agreed Amendment to be referred, and the associate, by mistake, drew up the Referent of order of reference generally, as to all matters in difference between the parties, the court refused to amend it, and said that the order of reference must be considered as a mere nullity, and the parties must go down again to trial (i). And, on the other hand, an order of Nisi Prius was refused to be amended, according to the terms of a paper signed by counsel at the trial, the intention of the parties appearing, from their subsequent acts, to be in favour of the terms of the order (k). of Arbitrator Where a cause was referred at Nisi Prius, and a verdict Substitution taken subject to the award of a barrister as to the damages; when first the barrister afterwards declined proceeding in the reference, unable to on the ground that his opinion had been previously taken proceed. by one of the parties relative to the matter in dispute; and the defendant thereupon refused to join in naming another arbitrator, insisting upon the matter being submitted to a jury: the court, upon application, ordered, that, unless the defendant would consent to refer the damages to another arbitrator, judgment should be entered up, and execution issued for the damages given by the verdict (1). But where the arbitrator died, and another was substituted by consent but afterwards objected to, the court held that the death of the arbitrator without making his award had the effect of (b) Filmer v. Delmer, 3 Taunt. 486: see Biddell v. Dowse, 6 B. & C. 255: see Vol. 1. 69. (e) See Iveson v. Carrington, 2 D. & R. 207; 1 B. & C. 160, S. C. (d) See form of order, Chit. Forms, 656. (e) See form of rule, Chit. Forms, 658. (f) See form of order, Chit. Forms, 660 (g) R. T., 1 Anne, 2 Ld. Raym. 789. (i) Rawtree v. King, 5 Moore, 167. BOOK IV. Opening the cause, and that it might be re-tried (m). See further as to this, post, 1233. PART II. Award as to exceed Da Declaration. It may be necessary to mention in this place, that the Cause cannot arbitrator cannot (as far as relates to the action referred) mages laid in award the payment of a greater sum than is laid as damages in the declaration; nor will the court, after a verdict taken as above mentioned, allow the declaration to be amended, so as to enlarge these damages, even upon affidavit that a greater debt can be proved before the arbitrator (n). But judgment may be entered up for the amount of the verdict or damages laid; and if it be entered up for the greater sum, it may be amended (o). Where there Court. By Deed or Warrant of Where there is no Cause in Court.] Matters in difference is no Cause in between parties, which are not the subject of any action pending at the time, may be referred to arbitration in any of the three following ways:-1st, By mutual bonds or other deed or written agreement of submission, merely; 2ndly, By such bonds, deed, or agreement, containing also the parties' assent that such submission shall be made a rule of court (p); and, 3rdly, By parol agreement; in which case, however, the submission cannot be made a rule of court, even although the parties consent to it (q). It is sometimes prudent to take a warrant of attorney as a collateral security to compel performance of an award; as, for instance, in the submission of the title to land; for if a party in possession be awarded to deliver possession of land to the other, the only mode by which the party can obtain possession is by ejectment; whereas, a warrant of attorney to confess judgment in ejectment with a defeazance, that no execution should be taken out, unless the arbitrator should, by his award, direct the defendant to yield possession, and he should neglect to do so on or before the day appointed by the award, would obviate the necessity of an ejectment in such cases, and would not put the opposite party in any worse condition (r). The submission, if by deed, should be executed by the parties themselves, and not by their attornies, unless by virtue of a power of attorney. Submission by Person thority, &c. Even one of two or more partners cannot bind the others without Au- by a submission to arbitration of matters arising out of the business of the firm (s), without a power of attorney authorizing him to do so. And where a person signed a submission as attorney for another without a power authorizing him to do so, and the arbitrator awarded that the attorney should pay a sum of money, the court held that the attorney should perform the award, and that his principal was not bound by the submission (†). Also, where two persons bound themselves jointly and severally to perform an award, and the arbitrator awarded a sum to be paid by each, (m) Harper v. Abrahams, 4 Moore, 3. (p) 9 & 10 W. 3, c. 15, s. 1. See form (9) Ansell v. Evans, 7 T. R. 1: Godfrey v. Wade, 6 Moore, 488. (r) Bythewood's Conveyancing, Vol. 2, p. 639. (8) Stead v. Salt, 10 Moore, 389; 3 Bing. 101, S. C.: Adams v. Bankart, 1 C., M. & R. 681; 1 Gale, 48, S. C.: see Ber nell v. Minot, 4 Moore, 340. (t) Bacon v. Dubarry, 1 Ld. Raym 246; 1 Salk. 70, S. C. SECT. I. Stamps, when required. mission may the court held that both were jointly liable for each of the sums so awarded (u). Where several underwriters on a policy agreed to refer the Several demand of the assured, it was holden that, as they had a community of interest in the subject of the insurance, and were all underwriters on the same policy, one stamp for the submission and one stamp for the award were sufficient (v). The submission, in order that it may be made a rule of What Subcourt pursuant to a clause of consent for that purpose, (post, be made a 1124), under stat. 9 & 10 W. 3, c. 15, s. 2(x), must be in Rule of writing, for a parol submission cannot be made a rule of Court. court, even by consent (y); also, it must be of some controversy or suit, "for which there is no other remedy but by personal action or suit in equity." Therefore, the court have refused to make a submission a rule of court, where part of the matter agreed to be referred (namely, an assault) had been made the subject of an indictment (z). It has been holden that the right of real property cannot pass by mere award (a); but it is clear that a conveyance or release of land may be awarded, if within the terms of the submission (b). what it in The submission should distinctly specify the matter of Form of Sub. controversy submitted; or, if stated generally, it should be mission, and "of all matters in difference between the parties." Where cludes. an action is pending, it may be "of all matters in dispute in the cause between the parties, or "of all matters in dispute between the parties in the cause" (c); the former confining the submission to the matter of the suit then pending (d), the latter extending it to all matters in difference; and the costs being to abide the event makes no difference (e). It is now more usual, in case of a general reference, to use the phrase "of all matters in difference between the parties,' and "of all matters in difference in the cause, where the (u) Mansell v. Burridge, 7 T. R. 352; see Barnes, 55. (v) Goodson v. Forbes, 1 Marsh. 525; 6 Taunt. 171, S. C. (a) That section enacts that "it shall and may be lawful for all merchants and traders, and others desiring to end any controversy, suit or quarrel, controversies, suits or quarrels, for which there is no other remedy but by personal action or suit in equity, by arbitration, to agree that their submission of their suit to the award or umpirage of any person or persons should be made a rule of any of his Majesty's courts of record which the parties shall choose, and to insert such their agreement in their submission, or the condition of the bond or promise, whereby they oblige themselves respect ively to submit to the award or umpirage of any person or persons, which agreement being so made and inserted in their submission or promise, or condition of their respective bonds, shall or may, upon producing an affidavit thereof made by the witness thereunto, or any one of them, in the court of which the same is agreed to be made a rule, and reading and filing the said affidavit in court, be entered of record in such court, and a rule shall thereupon be made by the said court, that the parties shall submit to, and finally be concluded by, the arbitration or umpirage which shall be made concerning them by (y) Ansell v. Evans, 7 T. R. 1. (2) Watson v. M'Cullum, 8 T. R. 520: see R. v. Cotesbatch, 2 D. & R. 265: R. v. Bardell, 1 Nev. & P. 74: but see Baker v. Townsend, 7 Taunt. 422; 1 Moore, 120, 287. BOOK IV. Clause of Consent to make Submission a Rule of Court. Alteration of &c. action alone is referred. It has been holden, that a reference "of all matters in difference between the parties" does not preclude one of the parties from afterwards suing for a cause of action subsisting at the time of the reference, if such matter were not a matter in difference between the parties, nor laid before the arbitrator (g); but, in a case where the reference was "of all actions and causes of actions between the parties, and, after the award made, the party thereby ordered to pay a sum of money wished to deduct from it a sum due to him by the opposite party, and which had not been under the consideration of the arbitrators, the court held that he could not do so; for the rule of reference was large enough to include that transaction, and it should have been discussed before the arbitrator (h). A submission to arbitration by an executor or administrator is not of itself an admission of assets (i); but it impliedly includes in it a submission of the question whether the executor have assets; and if the arbitrator award that he shall pay a sum of money, this is virtually an award that he has assets to that amount, and he must pay it (k). Where a verdict is taken subject to an award or certificate on the cause, and all matters in difference, the arbitrator is in the place of a jury, and, therefore, should find for the defendant only on the issues proved by him, though by the terms of the submission, if nothing be found due to the plaintiff, a verdict is to be entered for the defendant (7). The clause of consent in the submission that it shall be made a rule of court may be to this effect: that the parties do thereby "consent and agree that this their submission to the arbitration or umpirage above mentioned shall be made a rule of her majesty's Court of Queen's Bench at Westminster, pursuant to the statute in such case made and provided. Where this clause mentioned only "the court," without stating which court, the Court of Common Pleas allowed the submission to be made a rule of that court (m). And where the consent was, that the "award" instead of the "submission should be made a rule of court, the court held the mistake to be immaterial (n). Also, where the clause was conditional, thus: "And if the obligor shall consent that this submission be made a rule of court, that then” &c., the court held it to be sufficient (o). It seems, that the act only authorizes making the submission a rule of one court, and not of more than one (p). Alteration of Submission.] After a submission by deed, a new arbitrator may be substituted in the place of one of the original arbitrators, by consent of both parties without deed, (g) Rance v. Farmer, 4 T. R. 146: Thorpe v. Cooper, 5 Bing. 129; 2 Moo. & P. 245, S. C.: Seddon v. Tutop, 6 T. R. 607. (h) Smith v. Johnson, 15 East, 213: Dunn v. Murray, 9 B. & C. 780: and see Martin v. Thornton, 4 Esp. 180: Shelling v. Farmer, 1 Str. 646. (1) Woolfe v. Cooper, 6 Dowl. 617; 4 Bing. N. Č. 449, S. C. (m) Soilleux v. Herbst, 2 B. & P. 444. (n) Pedley v. Westmacott, 3 East, 603: Er p. Storey, 2 Nev. & P. 667; 7 Ád. & El. 602: overruling Harrison v. Grundy, 2 Str. 1178, contra. (0) Cheesly v. Baily, 1 Ld. Raym. 674; 1 Salk. 72, S. C. See Chit. Forms, 660, (i) Pearson v. Henry, 5 T. R. 6. (p) Winpenny v. Butes, 2 C. & J. F |