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action on the promissory note, but made no adjudication on SECT. 3. the other issue, the award was held bad (m). And the same where the arbitrator adjudicated on the issues joined, but omitted to award damages on a new assignment, on which there was judgment by default (n). And where a cause and all matters in difference were referred to an arbitrator, and by his award he merely directed a verdict to be entered in favour of the plaintiff for one entire sum, the award was held not final, and therefore bad (o). So where, in a submission to arbitration, four actions between distinct parties, and all matters in difference, were referred to the arbitrator, and the award omitted to decide upon a fifth action pending between the parties, and of which the arbitrator had notice, it was held bad (p). So, where all matters in difference in a cause between parties in an action against two defendants were referred to arbitration, and the arbitrator refused to adjudicate upon the subject of four checks drawn by one of the defendants alone, on the ground that it was not a matter in difference between the parties to the reference, it was held, that the award was not final and conclusive, and that it must be set aside (q). So, where an action of ejectment on several demises was referred, and the arbitrator awarded that the plaintiff was entitled to a certain part of the land sought to be recovered, which he set out by metes and bounds, the award was held bad on the face of it for want of finality, because it did not appear that the remaining part of the premises had been taken into consideration, and also because it did not state on which of the demises the plaintiff had succeeded; and it was also doubted (but not decided) whether it ought not to have awarded nominal damages (r). Where the de

fendant was ordered to pay the plaintiff a sum of money, unless within twenty-one days he should exonerate himself by affidavit from certain payments, &c., in which case he was to pay a less sum; the award was holden bad (s). So, where the award ordered, amongst other things, that the defendant should do certain work, and that the plaintiff should be at liberty to produce evidence before the arbitrator of the insufficiency of the work at any time within two months, the court held that part of the award bad (t). So, where the award was, that the defendant should beg the plaintiff's pardon, in such manner and place as the plaintiff should appoint, it was holden bad; for the manner and place, which were the most material circumstances, were yet to be determined (u). But where the parties bound themselves to abide by the opinion of counsel on the construction of a statute, and the counsel gave his opinion in favour of one of the parties, it was holden that this opinion was final and conclusive, notwithstanding it

(m) Gisburne v. Hart, 7 Dowl. 402; 5 M. & W. 50, S. C.

(n) Wykes v. Shipton, 8 Ad. & El. 246, n. jo) Goode v. Burcher, 5 Dowl. 127. This would be good if the cause only were referred, though there were several causes of action. (See Bird v. Cooper, 4 Dowl. 148). And even where a cause and all matters in difference were referred, an award, after hearing allegations on each side," that defendant should pay plaintiff a sam of money in discharge of all demands in the cause, was held sufficiently

final, it not being shewn that anything
remained unadjudicated upon. (Day v.
Bonnin, 3 Bing. N. C. 219: see Brown v.
Croydon Canal Company, 1 Per. & D. 391).
(p) Stone v. Phillips, 6 Dowl. 247.

(q) Samuel v. Cooper, 4 Nev. & M. 520;
1 Harr. & W. 86: and see Phipps v. In-
gram, 3 Dowl. 669.

(r) Doe Madking v. Horner, 3 Nev. &
P. 344; 8 Ad. & El. 235, S. C.

(*) Pedley v. Goddard, 7 T. R. 73.
(t) Manser v. Heaver, 3 B. & Ad. 295.
(u) Glover v. Barrie, 1 Salk. 71.

PART II.

BOOK IV. also recommended that the printed statute should be compared with the parliament roll before the matter should be settled (z). So an award that one of the parties should pay a sum of money to the other, on a future day, in full of all demands, is sufficiently final (y); and an award that one should give the other his promissory note for a certain sum, is good, being the same as awarding payment at a future day (z). So, where the award was, that an action pending between the parties should be discontinued, and that each should pay his own costs, it was considered sufficiently final, being in effect an award of a stet processus (a). So, where a cause and all matters in difference were referred, the costs to abide the event, as upon a trial and final judgment, to be entered up by the successful party, the arbitrator awarded that the plaintiff had no cause of action, and that he should pay defendant a sum of money, but added that it was not intended to prevent plaintiff recovering on a certain agreement signed by the defendant, but only that at present he had no cause of action, the award was held sufficiently final (b). So, where by an order of Nisi Prius, an action at law and all matters in difference between the parties at law and in equity, including a Chancery suit, were referred to an arbitrator, who by his award ordered that a sum of money should be paid to the plaintiff in the action, and that the bill in Chancery should be dismissed, and that all proceedings thereon should utterly cease and determine; the Court of Queen's Bench held, that the suit in equity, and all matters in difference in that suit, and all matters in difference between the parties, were thereby finally determined; although one of the matters in dispute in the Chancery suit was brought before the arbitrator, as a matter in difference between the parties, and was not otherwise disposed of than by the ending of the Chancery suit (c). And where a cause and all matters in dispute between the parties being referred to arbitration, the arbitrators, "having heard the proofs and allegations of the parties touching the matters in difference between them," awarded, "concerning the same," that the defendant should pay plaintiff 117. 58. in full of all demands in the cause, it was held sufficiently final (d). And where a cause was referred to an arbitrator, who was to settle all matters in difference between the parties at law and in equity, so that he made his award by a certain day, (with power of enlargement), to be delivered to the parties, or, if either of them should be dead, to their personal representatives: the arbitrator was to be at liberty to make one or more awards at his discretion at the time of the submission two equity suits were pending, in which the parties to the action, and also certain infants, were concerned: before any award was made, one of the parties to the equity suits died: the arbitrator, by his award, ordered a verdict to be entered for the plaintiff, damages 5007.; and also that the defendant should pay to the plaintiff 3501. for grievances not included in his declaration : it

(x) Price v. Hollis, 1 M. & Sel. 105.
(y) Squire v. Grerett, 2 Ld. Raym.
961: Robinett v. Cobb, 3 Lev. 188.

(2) Booth v. Garnett, 2 Str. 1082.
(a) Blanchard v. Lilly, 9 East. 497: and
see Jackson v. Tabsley, 5 B. & Ald. 848.

(b) Harding v. Forshaw, 4 Dowl. 761. (c) Pearse v. Pearse, 9 B. & C. 494.

(d) Day v. Bonnin, 3 Bing. N. C. 20: see Brown v. Croydon Canal Company, 1 Per. & D. 391: but see Goode v. Burcher, 5 Dowl 127: ante, 1245.

was held, first, that the award was sufficiently final, although it did not dispose of the equity suits; secondly, that the circumstance of infants being parties to those suits did not invalidate it; thirdly, that the arbitrator's authority was not revoked by the death of one of the parties; and, lastly, that the award of 350l. was sufficiently certain (e). And where, in an action of trespass, the defendant pleaded the general issue and sundry justifications, and the cause was referred to an arbitrator, the costs to abide the event; the arbitrator awarded for the defendant on the general issue, and disposed of the rights contested in the pleas of justification, but did not in his award decide on or notice the issues upon those justifications; the Court of Common Pleas refused to set aside the award (f). So, where a cause in which the general issue and a set-off were pleaded was referred, the costs of the reference and award to abide the event, an award that the plaintiff had not any cause of action against the defendant was held sufficiently final; the arbitrator having thereby determined the action, and not being bound to decide upon each issue unless requested to do so (g). So, where one of the parties admits the claim of the other, but seeks to reduce the balance by a set-off, it is sufficient for the award to find a sum due to one party or the other, without noticing the set-off (h). So, where, on a reference of a cause, the costs to abide the event, the arbitrator finds for the defendant on a plea which covers the whole cause of action, it is no objection to the award, that, on other issues, he finds for the plaintiffs without damages(i). It may be added, that no other matters in difference than those decided on will be intended by the court, unless they have been made known to the arbitrator before he made his award (j).

SECT. 3.

4. That the

consistent.

4th. That the award is inconsistent:If one part of an award be inconsistent with another, it Award is inwill be bad: as, where the arbitrator awarded that A. should pay B. 1007., and both should give general releases, and that at a subsequent time B. should pay A. 201., the award was holden bad (k).

5th. That the award is illegal:

5. That it is

If the arbitrator award any of the parties to do an act which illegal. is illegal, the award is so far bad (7). And if a sum awarded appear on the face of it to have arisen out of an illegal transaction, the award will be bad pro tanto (m). It seems, however, that the award will not be held bad, merely because it contravenes some rule of practice (n). And where the award was written on a wrong stamp, the court refused to set it aside upon that account; although such a circumstance

(e) Wrightson v. Bywater, 6 Dowl. 359. (f) Dibden v. Marquis of Anglesey, 10 Bing. 568 and see also Re Leeming & Fearnley, 5 B. & Adol. 403: Wykes v. Shipton, 3 Nev. & M. 240.

(g) Duckworth v. Harrison, 7 Dowl. 71. (h) Brown v. Croydon Canal Company, 1 Per. & D. 391.

(i) Savage v. Ashwin, 4 M. & W. 530; contra, if the plea covers only part. (Wood v. Duncan, 7 Dowl. 91).

(j) Ingrum v. Milnes, 8 Fast, 445: see Smith v. Johnson, 15 East, 13: Pinkerton v. Caslon, 2 B. & Ald. 704: sce Day v.

Bonnin, 3 Bing. N. C. 219.

(k) Storke v. De Smeth, Willes, 66: see Fixes v. Adams, 4 Taunt. 632: Ames v. Milward, 8 Id. 367, 2 Moore, 713, S. C.

(1) See Alder v. Savill, 8 Taunt. 454. But it may be good for all but the illegal part, semble, see Doddington v. Bailward, 7 Dowl. +40.

(m) Aubert v. Maize, 2 B. & P. 371; see Steers v. Lashley, 6 T. R. 61.

(n) See Re Badger, 2 B. & Ald. 691: Berlington v Southall, 4 Price, 232: see, however. Broadhurst v. Darlington, 2 Dowl. 38.

BOOK IV. would be a good answer to any application made to enforce it (n).

PART II.

6. That the

Proceedings were irregu

lent.

6th. That the proceedings were irregular or fraudulent:— If there have been any irregularity in the proceeding-as lar or fraudu- if no notice of the meeting (o), or of attendance by counsel(p), were given to the party against whom the award was made, or the like, the court will set aside the award (2). The court will not, however, set aside the award on the ground that the order of reference has been improperly obtained; the application in that case should be to set aside the order of reference itself, and should be made within a reasonable time after the order (r). As to irregularity in the appointment of an umpire, see ante, 1234.

7. That the Arbitrator has misconducted himself.

An award will not be set aside although the affidavits in support of the application disclose strong imputations upon the testimony of a material witness, who was examined before the arbitrator (s).

7th. That the arbitrator has misconducted himself, &c.:If the arbitrator have been guilty of any misconduct in the course of the proceedings, the court will set aside the award (t), (if the submission can be made a rule of court), or a court of equity may afford relief; but such misconduct will not, it seems, afford any defence to an action, or attachment (u). Where an arbitrator refuses to examine witnesses, or to receive evidence, the court will sometimes set aside the award (v); and this, though he thought that he had sufficient evidence, without examining the witnesses. But where he refused to examine a witness because he thought him inadmissible, the court refused to set aside an award (r); and they would not set aside the award in a case where the arbitrator refused to examine a party in the cause who could have contradicted a witness (y); nor would they set it aside where the arbitrator admitted an incompetent witness (). And Mr. Watson (a) states it to be now settled, that the arbitrator is to judge as to the competency of the witnesses; and if he receive the evidence of an incompetent witness, or reject the evidence of a competent witness, the court will not set aside the award. Where the arbitrator, after closing the examination, refused to call another meeting, and made his award, the court refused to set aside the award, although the defendant's attorney swore that he was in possession of evidence which would have repelled that upon which the award was founded (b). So, where the umpire re

(n) Preston v. Eastwood, 7 T. R. 95.
(0) Anon., 1 Salk. 71.

(p) Whatley v. Morland, 2 Dowl. 249.
For it is not reasonable that one party
should have the advantage of counsel and
the other not. (Per Bayley, B., Ibid.)
(q) Anon., 1 Salk. 71.

(r) Sackett v. Owen, 2 Chit. R. 39.
(8) Scales v. East London Water Works
Company, 1 Hodges, 91; MS., E. T., 5 W.
4, S. C.: Pilmore v. Hood, C. P.; 3 Jurist,
1153.

(t) See Lucas v. Wilson, 2 Burr. 701:
Anon., 1 Salk. 71: Braddick v. Thomson,
8 East, 344: Gragebrook v. Davis, 5 B. &
C. 534: Brazier v. Bryant, 10 Moore, 587;
3 Bing. 167, S. C.: 9 & 10 W. 3, c. 15, s. 3.
The misconduct need not be such in the

bad sense of the word. (See Phipps V. Ingram, 3 Dowl. 670).

(u) See 2 Saund. 327: Brazier v. Bryant, 3 Bing. 167.

(v) See Phipps v. Ingram, 3 Dowl. 09: Morris v. Reynolds, 2 Ld. Raym. 657; 1 Salk. 73, S. C.: Hewlett v. Laycock, 2 C. & P. 574: Samuel v. Cowper, 1 H. & W. 8. (x) Campbell v. Tremiore, 1 Price, 81. (y) Scales v. East London Water Werka Co., 1 Hodges, 91.

(2) Perriman v. Stergall, 9 Bing. 679; 3 Moo. & Scott, 93; 2 Dowl. 726.

(a)" Awards," p. 100, citing Lloyd v. Archbowl, 2 Taunt. 324: Perryman v. Stergall, 9 Bing. 679: 3 Moore & Scott, 93: 2 Dowl. 726, S. C.

(b) Ringer v. Joyce, 1 Marsh, 404: but

ceived the evidence from the arbitrators without examining the witnesses, the court held, that the award was not bad on that account, if the umpire had not been requested to examine them (e). So, where one of the defendant's witnesses was examined by the arbitrator, after the evidence on both sides was closed, and the plaintiff's attorney gone; although upon this second examination he gave a different evidence from what he had given before, and the arbitrator's decision was influenced by it, yet the court held, that this circumstance would not affect the award, unless it were brought about by the management of the defendant's attorney (d). And the same where he excluded the parties and witnesses, except those under examination (e). Also, an award cannot be set aside on a mere suspicion of favour; for instance, it cannot be set aside merely because the arbitrator is indebted to one of the parties, though the other party be ignorant of the fact, and object as soon as he becomes aware of it(f). Also, any objection on these grounds will be waived, by proceeding with a knowledge of it (g).

SECT. 3.

8th. That it appears on the face of the award that the 8. Mistake of arbitrator has mistaken the law:

If the arbitrator make a mistake in point of law, and it do not appear upon the face of the award, the court will not, in general, set aside the award upon a mere suggestion of the mistake, or upon affidavits of the facts (i); but if the mistake appear upon the face of the award, or even upon the face of another paper delivered with it (k), or if the arbitrator, on being told that an application is about to be made to the court, himself assigns the ground for his judgment for the purpose of enabling the party to make such application, and shews that he is mistaken (7), the award will be set aside, provided it be clearly erroneous (m). And where an action was brought by an attorney on a bill not taxable, and a verdict was taken subject to a reference as to the amount of the charges, and the arbitrator awarded a certain sum, it was held, that it was competent for the court to examine whether the arbitrator had adopted the right rule (n).

Law on the
Face of the

Award.

9th. That the award is bad in a part not separable from the . That the residue:

Award is bad in a Part not

due.

If an award be good in part, the performance of that part separable which is good may be enforced, provided it be final in itself from the Resiand perfectly distinct from, and independent of, that part which is bad (o). Therefore, an award directing a defendant

see Doddington v. Hudson, 1 Bing. 384; 8 Moore, 163, S. C.

(e) Hall v. Lawrence, 4 T. R. 589: see Re Turner, 5 B. & Adol. 488.

(d) Atkinson v. Abraham, 1 B. & P. 175: see Re Hick, 8 Taunt. 694.

(e) Hewlett v. Haycock, 2 C. & P. 574. (f) Morgan v. Morgan, 1 Dowl. 611. (g) Kingwell v. Elliott, 7 Dowl. 423. (i) Ashton v. Poynter, 3 Dowl. 201: Jupp v. Grayson, Id. 199; 1 C., M. & R. 523, S. C.: Perryinan v. Steggall, 3 Moo. & Scott, 93; 2 Dowl. 726, S. C.: Hardy v. Ringrose, 1 H. & W. 185; Chace v. Westmore, 13 East, 357: Boutillier v. Thick, 1 D. & R. 366: Crump v. Symons, 1 Bing. 104; 7 Moore, 434, S. C.: Cruven v. Craven, 1

Taunt. 644; 1 Moore, 403, S. C.: Delver
v. Barnes, 1 Taunt. 48; and see Sharman
v. Bell, 5 M. & Sel. 504: In re Badger, 2
B. & Ald. 691: Richardson v. Nourse, 3
Id. 237; 1 Chit. Rep. 674, S. C.: Gonsham
v. Germain, 11 Moore, 7: Symes v. Good-
fellow, 4 Dowl. 642: Armstrong v. Mar-
shall, 4 Dowl. 593.

(k) Kent v. Elstob, 3 East, 18.

(1) Jones v. Corry, 5 Bing. N. C. 187: but see Doe Orenden v. Cropper, 2 Per. & D. 490.

(m) Richardson v. Nourse, 3 B. & A. 237. (n) Broadhurst v. Darlington, 2 Dowl. 38. (0) Candler v. Fuller, willes, 64. 253: Addison v. Gray, 2 Wis. 293: Ingram v. Milnes, 8 East, 445: George v. Lousley,

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