OFREFERENCES TION, &c. MINARY OBSER HOWEVER imperfect and objectionable may be the mode of CHAP. III. deciding upon facts by a jury, it seems difficult to suggest a more satisfactory tribunal. The best informed individuals so frequently differ in opinion upon questions of fact, and even First, PRELIupon the clearest questions of ethics, that we cannot ever anti- VATIONS as to cipate a certain just and correct decision upon any subject, by References to Arbitration, and one or two individuals, even admitting that they are free from when, and unprejudice and from indulgence of resentment, and are, in every cumstances, sense of that term, just; and hence, men naturally prefer an they are expe open trial by jury, with the chance of a new trial, and of an appeal to a superior tribunal, to a private decision by an arbitrator. If the justice of this reason be doubted, let any one read the reports of the decisions, even of the Superior Judges, and especially those relating to criminal cases, where each (a) See a clear practical summary, Tidd's Practice, 9th ed. 819 to 846; see in general Kyd on Awards; Caldwell on Arbitrations; Watson on Arbitration; 2 Madd. Ch. Prac.; Com. Dig.; and Bac. Abr. tit. Arbitrement; 3 Chitty's der what cir dient. TO ARBITRA TION, &c. CHAP. III. Judge is necessarily most anxious to decide for the best; and OF REFERENCES where it will be found, that not unfrequently, upon apparently easy questions, eight will be of one opinion and seven of another.(c) Besides, if the proposed arbitrator have not had a professional education, he will be insufficiently acquainted with the principles of law and of evidence, and will consequently frequently err, even if wholly uninfluenced by any unjust partiality or prejudice; and if he be a Barrister, he will probably not have had great experience, because those who are in great practice cannot spare the time to devote several continuous hours, as is essential to a speedy conclusion of a reference, and numerous meetings frequently adjourned to distant periods, and perhaps of not two hours' duration, and attended by counsel on each side, are even more expensive than a trial. It is therefore a natural desire of litigating parties not to trust their case to the decision of a single arbitrator, or even of three; for if Judges will doubt, and sometimes misapprehend the law or the facts, what confidence can be justly reposed in the opinions of mem naturally supposed to be of inferior talent. As, therefore, trial by jury has long been considered every Englishman's birthright, it is not surprising that hitherto any attempt generally to take away that right, and force arbitration, even under the recommendation of a Judge, has been unsuccessful. (d) The principal instances of successful attempts to compel arbitrations, will be found in the Friendly Society Act, (e) and the Saving Bank Act, (f) and those relating to Labourers and Servants in certain trades; (g) in regard to which, respectively, acts have been passed prescribing that remedy. So, disputes respecting Seamen's wages were to be awarded upon, or settled by, a magistrate; (h) and certain claims for Salvage are to be settled by the award of magistrates. (i) The first class of these cases relates to persons little able to sustain the expense of formal litigation; and, therefore, it was even mercy to them to compel them to adopt a summary mode of settling the dispute; and as to salvage, as ships might be detained whilst (c) See Russ. & Ry. Crown Cases; (e) 10 Geo. 4. c. 56. sect. 27. bury, 8 Bing. 394; shewing, that in such case no action can be supported: and see the present Act, 10 Geo. 4, c. 56. (g) 5 Geo. 4, c. 96; and see Burn. J. tit. Servant. (h) 59 Geo. 3, c. 58; Minerva, 1 Hagg Rep. 54. (i) 1 & 2 Geo. 4, c. 75, Jonge Nicholaas, I Hagg. 201 a formal suit in the Admiralty was deciding, a more expeditious remedy for the service became essential for the interests of shipping and commerce. CHAP. III. OF REFERENCES TION, &c. The instances in which an arbitration should be adopted, in When a referpreference to any litigation, are principally those, when from ence is proper. the very nature of the subject, it would ultimately, by a judge and jury, be properly considered a case unfit to be tried in Court, as in cases of long and intricate accounts; and where, to obtain a clear understanding, it would be necessary to refer to numerous documents, and make or explain calculations, and through which each of the twelve jurors in the jury box could not conveniently proceed, so as to form his own judgment. In such and the like cases, even days might be consumed on a trial, without even the probability of the jury arriving at a just conclusion, and the party persisting in a formal trial would inevitably so predispose a jury against him as probably to suffer in the result. In such a case, the whole cause should be referred, in the first instance, or the party should agree to refer the matters of figure, and try the cause upon one or more distinct points of fact that may be readily, and within a convenient time, disposed of by the jury. Thus consenting to relieve the jury from too embarrassing an investigation, they will perceive that the parties are disposed to try the cause fairly, and will, consequently, give the single disputed point full and just consideration. Other cases fit to be referred, are frequently those where it would be impracticable or difficult to collect or keep together several witnesses, so as to attend upon a fixed day at Nisi Prius; or disputes between neighbours, respecting supposed nuisances by buildings or otherwise, to ancient lights or watercourses, ways or other property, where not only the rights of the parties may be referred, and the damages, but also the question whether, upon any and what terms, and subject to what modifications, the alleged nuisance shall or not be continued. So, as an award upon a title to land is binding on all the parties, it would be proper in questions of right to small property, to refer the matter to some competent person.(k) So, subjects of delicacy, unfit to be exposed to public investigation, especially between near relations, should be referred, unless some injury to character has been occasioned. But, on the other hand, in cases of calumny, requiring public When a refercontradiction, or open apology, it would not be proper to reference is improto arbitration; nor should a claim for compensation for Crimi (k) Doe v. Russen, 3 East, 11; Prosser & Goringe, 3 Taunt. 426. per. OF REFERENCES TION, &c. CHAP. III. nal Conversation be so referred, because the House of Lords require the verdict of a jury antecedent to a divorce a vinculo matrimonii. If, however, the husband have no intention to seek such a divorce, a reference may be made. (1) We have seen, in a preceding page, that in general matters of a criminal nature cannot be legally or effectually referred to arbitration, unless by permission of the Court. (m) Again, when one or more witnesses to an important fact would require strict cross examination in public, before a judge and jury, so as to elicit truth, it might be dangerous to refer to arbitration, when the witnesses, if so disposed, would probably swear without apprehension of consequences. So, where sureties, or bail in an action or replevin suit, are responsible, a reference, without their concurrence, will, in some cases, although not in all, discharge them from liability.(n) Not when a de juris, unless terms. When the plaintiff or defendant resolves to stand upon some fence is stricti strict legal right or objection that may not accord with the under qualified equity or justice of the case, then it would be injudicious to refer, at least without expressly stipulating that if any legal objection, either to the evidence or to the result, should be taken, then absolutely, the party shall have the benefit of it, and negatively, that it shall not be in the discretion of the arbitrator to deny effect to it; for, unless expressly controlled in this respect, some arbitrators will exclude a legal ground of defence, such as usury, (o) or a forfeiture between landlord and tenant, and make their award according to what they consider is the justice of the case; and such award would, unless expressly provided otherwise, be sustained, and consequently the client prejudiced. (p) In such a case, the submission and rule of Court must be express; not that the arbitrator shall be at liberty to state the facts or objections specially, but that he shall stute the same, if requested by the party, so as to be peremptorily compulsory upon him; and even then, sometimes he might come to a conclusion, that no legal objection was raised by the evidence; so that in each particular case, it will be essential to be cautious in the terms of the reference. (g) in Richardson v. Nourse, 3 B. & Ald. 240; Wohlenburgh v. Lageman, 6 Taunt. 254; Price v. Hollis, 1 Maule & S. 105; Boutilleg v. Thick, 1 Dow. & Ry. 366; Cramp v. Symums, 7 J. B. Moore, 434; 1 Bing. 104, S. C.; Wood v. Griffith, 1 Swanst. 59; Ainsley v. Goff, Kyd on Awards, 351; and Watson on Arbitration, 162. (g) See form, post, 87, 88, 90. CHAP. III. OF REFERENCES TION, &c. Secondly, who may refer. An INFANT or married woman, cannot effectually refer to arbitration; and, although in general the party contracting with them would be bound to perform his part of the contract, there are exceptions to that rule as res- Secondly, who pects references, on account of the want of mutuality. (r) One may refer. of several PARTNERS may bind himself, but not the others, by his submission, even of matters arising out of the business of the firm. (s) With respect to AGENTS, in general, they must have express power to refer; but a power of attorney, "to act " on his behalf in dissolving a partnership, with authority to appoint any other person as he might think fit," authorizes the agent to submit the accounts to arbitration. (t) At law, a Counsel or Attorney may bind his client by his consent to an order of Nisi Prius, referring a particular case; nor will the Court allow the party to avoid the reference upon affidavit that it was wholly against his will, or even express prohibition. () And an attorney has equal power to consent to an enlargement of the time for making the award. (v) But it was held, in an old case, that in equity a solicitor cannot bind his client by agreement to refer, without express authority. (w) Nor at law, should counsel or an attorney take upon himself to refer a cause unless he have express authority or direction to act generally for the best, or the client refuses to communicate upon the subject; in either of which cases, he would be justified in acting according to the best of his judgment. The prudent course is always to have the client in Court, and let him decide for himself. Executors, we have seen, should not, when claimants, refer By executors, to arbitration without the concurrence of creditors, legatees, assignees, &c. and next of kin. (x) When defendants, they would incur the risk of an award, subjecting them personally to liability, unless by the terms of the reference the power so to award be carefully guarded against (y) Assignees of a bankrupt (z) or of an (r) Biddle v. Dowse, 6 B. & Cres. 255, overruling Dowse v. Core, 3 Bing. 20, as to infants; and ante, 1 Vol. 825. (s) Stead v. Salt, 3 Bing. 101 and 500; 4 J. B. Moore, 340; Strangford v. Green, Mood. 228; Mudy v. Osain, Litt. Rep. 30; 15 East, 209. (t) Healey v. Stoker, 8 B. & Cres. 16; and see Dyer, 216, b; Cayhill v. Fitzgerald, 1 Wils. 25, 58. The agent, in such a case, must take care that the submission do not make him personally liable; Bacon v. Dubarry, 1 Lord Raym. 246; and see, as to an agent's power, Godsım v. Brooke, 4 Campb. 163; 3 Taunt. 486, 378; 1 M. & S..719. (u) Filmer v. Delbar, 3 Taunt. 486, 1 Salk. 86; 1 Chit. R. 193, accord; 5 Taunt. 628; but see 6 B. & Cres. (v) Rex v. Hill, 7 Price, 644. (w) Colwell v. Child, 1 Chan. Cas. 86; 1 Chan. R. 104; Chit. Eq. Dig. Solicitor and Client, 1238. sed quære. (x) Ante, 1 Vol. 532; see notes, Bac. (y) Pearson v. Henry, 5 T. R. 6; Bar- (2) 6 Geo. 4, c. 16, s. 88; 1 & 2 W. |