Page images
PDF
EPUB

OF REFERENCES
TO ARBITRA-

TION, &c.

CHAP. III. but peremptorily that he shall state what is required; (k) and if it were merely that he shall state any point of law that may be raised, it would suffice if his award merely state the abstract questions of law without reference to any particular state of facts, and to certify that he has overruled them, and the Court would refuse to direct him to set forth the facts; and therefore the submission should, in a case of this nature, peremptorily require a specific statement of the facts. (1) But "the words shall or may state," &c., have been considered imperative on the arbitrator to comply.

Other suggest

ed terms.

Agreement of reference not under seal.

The like by cross bonds.

Indenture of reference.

Recital of general or particular griev

ances.

Stipulation to abide by award.

Power to enlarge.

The other terms of reference are entirely matter of particular agreement, but frequently require much precaution and consideration. In the subscribed note a few stipulations are stated so as to guard against inconveniences, which, it seems from different decisions, have occurred for want of proper terms having been inserted in the agreement or order of reference; and such of them as may be applicable to each particular case may readily be adopted, and the rest rejected. (m)

(k) Ante, 76, 78, and see Form in note, post, 90.

(1) Jag v. Byles, 3 Moore & Scott, 86, and ante, 76, 78; see forms of submission, post, 90.

day of

A. D.

(m) "Memorandum of an agreement made this between 4. B., of ——, and C. D., of · -, as follows; viz." &c. [state recitals and terms as below, or proceed at once to the statement of the agreement to refer, as below; but to bind heirs, and afford a preference in the administration of assets by an executor or administrator, a reference by deed or bond is preferable.]

If the submission be by cross bonds, the obligatory part is to be in the form of a common money bond; and then the condition should recite the differences, and the agreement to refer, as in the following indenture; and the condition should be, for abiding by the award to be made, in substance as in the indenture.

"This indenture, made the -day of- - A. D., between A. B., of and C. D., of - Whereas differences and disputes have arisen and are depending between the said A. B. and C. D.," [if these be special, and it is important expressly to limit the power to award upon one or more particular points, then it may be advisable here to specify them, and afterwards to limit the power expressly to the recited differences; but if the reference be general of all matters in difference, then no specification will be necessary, and the agreement or deed should immediately proceed thus]: "Now this indenture [or agreement] witnesseth that the said A. B. and C. D. do, and each and every of them doth, each for himself severally and respectively, and for his several and respective heirs, executors, administrators, and assigns respectively, covenant, promise and agree to and with each other, his heirs, executors, administrators and assigns, well and truly to stand to, obey, abide by, observe, perform, fulfil, and keep the award, order, arbitrament and final determination of G. H., of of and concerning the premises aforesaid, or any thing in anywise relating thereto; and also of and concerning all and all manner of action and actions, cause and causes of action, suits, bills, bonds, specialties, covenants, contracts, promises, accounts, reckonings, sums of money, judgments, executions, extents, quarrels, controversies, trespasses, damages and demands whatsoever, both at law and in equity, at any time heretofore, up to and upon the day of the date hereof, had, made, moved, brought, commenced, sued, prosecuted, committed, or depending by, or between the said parties, or any of them, and in particular of and concerning a certain cause now depending between the said . B. and C. D. in the Court of and all other matters in difference between them, up to the day of the date hereof, inclusive hereof, so as the said

[ocr errors]

CHAP. III.

If the reference be directed by a rule or order of the Court or a Judge, it may be amended by inserting such omitted matters OF REFERENCES

&c. Amendments

shall be made a rule of Court.

award of the said G. H. be made under his hand, on or before the day of of submission. next, or such further time or times as the said G. H. shall from time to time appoint by indorsement written thereupon, and signed by him: And it is also agreed by and Agreement that between the said parties, that these presents shall be made a rule of one of His Ma- the submission jesty's Courts of Law or Equity, at Westminster, to the end that the said parties respectively may be finally concluded by the said arbitration, and award thereon, pur- Parties and suant to the statute in such case made and provided: Also that the said parties or either of them and their witnesses may be examined on oath before the said arbi- witnesses to be trator: Also that all the costs and charges of the said action shall abide the event, examined on but that the costs and charges attending the present arbitration and award to be oath. thereupon made, shall be in the discretion of the said arbitrator. In witness Costs of action whereof they have hereunto set their hands and seals respectively, the day and above written.

“Signed, sealed, and delivered, being first duly stamped, in the presence of us

year

d. B. (L. S.)
C. D." (L. S.)

"And that the award of the said arbitrators, or any two of them, whether expressed to be made by all or some, but signed only by two, shall be binding on the said parties." Thomas v. Harrup, 1 Sim. & Stu. 524.

to abide the event. All other costs in discretion of the arbitrator.

Proviso that an award signed by two or three arbitrators to suffice.

"And that the said arbitrators or the major part o them shall, either before or Power to apafter they have disagreed, or become unable to make their award in the premises, point fresh archoose, nominate, and appoint, in writing under their hands, one or more other bitrators or arbitrators or umpires or umpire, in the premises; and that provided such fresh umpire, and arbitrator, umpires or umpire shall have attended the meetings or parts of meet power for the ings before the said arbitrators, as shall in the judgment of such fresh arbitrators, latter to award umpires, or umpire, be sufficient, with the assistance of the minutes of evidence without a furtaken by the said arbitrators, or any one of them, to enable such umpires or um- ther meeting. pire to make a just and correct award; then it shall and may be lawful for them and him, to make their or his award or umpirage accordingly, after having had or without having had, any further meeting, and at any time within one month after the said arbitrators shall have declined proceeding further in the matter of the said reference, or within such further time as the said fresh arbitrators, umpires or umpire, shall in writing signed by them or him appoint." Bates v. Cook, 9 Bar. and Cres. 407.

"On or before the

[ocr errors]

day of, or on or before such further or ulterior Extensive powday or days as he the arbitrator shall or may from time to time appoint, in er to enlarge. writing signed by him, and indorsed on this agreement [or order,'] or upon any rule or order made thereupon before the time so limited shall have ex pired, whether or not any further rule or order shall have been made thereupon; or at any time before he shall have certified in writing, signed by him, that he declines proceeding any further upon the said reference, or at any time within one month next after notice in writing, signed byone of the parties, that he will not consent to any further delay in making the award, unless the Court or a Judge shall think fit to direct that the time shall be extended for a further time named in the rule or order for that purpose. Provided nevertheless, that the said arbitrator shall not enlarge the time for making his award in the premises beyond the day, without a Judge's order for that purpose having been obtained on or before that day." See necessity for or use of these stipulations, Mason v. Wallis, 10 B. & Cres. 107; and see Halden v. Glasscod, 5 B. & Ald. 390; Leggatt v. Finlay, 6 Bing. 255; 1 Young & J. 16. Too frequently the terms of submission very unnecessarily require the expense of a rule or successive rules, and from want of attention in obtaining the rule or order in time, the arbitrator's power is determined. The best course is to avoid the necessity for any rule.

"To whom the cause and all matters in difference between the said parties are Power to regureferred, with liberty and power to the said arbitrator to regulate the future en- late or fix the joyment, management, care, and cleansing of a certain stream or watercourse terms on which called or by some other name, by the said parties or either of them; and a nuisance may also with liberty and power to the said arbitrator, in case he shall find that any be continued. matter complained of by either party, hath been or is illegally erected or placed, or continued, then he shall or may award when and in what manner, and by whom, and at whose expense, the same or any, and what part thereof, shall be abated or removed, or shall or may be permitted to continue either in part or

CHAP. III. as were incident to the substance of the agreement of the parties; (n) but not to substitute A. for B. as an arbitrator. (0)

OF REFERENCES
TO ARBITRA-

TION, &c.

Order of reference of an in

dictment for nuisance.

Stipulation against revocation by death, marriage, bankruptcy,

&c.

Stipulation that

the death of the arbitrator shall not revoke, &c.

Power to examine parties and witnesses on oath.

Stipulation to state a candid and explicit account of claims, and produce documents.

Stipulation that the arbitrator shall expressly, upon the face of his award, adjudicate separately upon each claim.

Stipulation that the arbitrator

shall if required state the evidence and points of law on the face of his award.

in the whole, and for what time, and on what terms." Rhodes v. Haugh, 2 B. and Cres. 345.

"And if the said arbitrator shall determine that there has been a nuisance, and shall be of opinion that the prosecutors are entitled to costs; then the said defendant agrees to consent to a verdict of guilty, and to pay the costs of the said prosecutors, and also of the said reference and award; and that it shall also be in the discretion of the said arbitrator, to determine and direct that the said defendant shall pay the costs of the special jury, and if he shall so award, then the said defendant agrees to pay the same.' See necessity, R. v. Moate, 3 B. and Adolp. 237.

"And it hereby agreed that in case of the death or bankruptcy, or marriage, or any illness or malady of the said parties, or either of them, it shall be lawful for the said arbitrator, nevertheless, to proceed and make his award in the premises, and that the same shall be binding on the survivor or survivors, and also upon the heir, executor, or administrator, and representative of each party, and also on his assignee, trustee, or committee, so far as the same can or may be by law; but so far only as to affect any assets legally applicable to the satisfaction of any sum or costs awarded, and not to bind or affect any such heir or representative personally, or other person, or to subject either of the said parties to liability from which he would have otherwise been discharged." 3 B. & Cres. 144; 6 B. & Cres. 255. In matter Joseph v. Webster, 1 Russ. & M. 496; see also post 102, 3.

"And it is hereby agreed, that in case the said arbitrator shall die, or become unable, or shall decline to proceed in the said reference, the power to arbitrate on the premises shall not thereupon abate or determine, but that it shall be lawful for the Court of or one of the Judges thereof, or the Clerk of the Rules thereof for the time being, to nominate and appoint one or more arbitrators to award upon the premises, in lieu of the said hereby named arbitrator, and that the agreement and the award thereupon shall extend and apply in all respects as if such person had been the original arbitrator." See post, 103, n. (k)

"With liberty to the said arbitrator to examine the said parties and their witnesses upon oath, or otherwise, as he shall think fit." Warne v. Bryant, 3 B. & Cres 590. See the necessity for this, 3 & 4 W. 4, c. 42, s. 41; ante, 83.

"And it is hereby agreed, that each of the said parties shall and will, at least two days before the first or any subsequent meeting appointed by the said arbitrator, produce and deliver to him a full, true, just, candid, and clear account or statement in writing, of all and every item of his claim, or set off, or advance, or payment or deduction, and shall and will thereby and therein admit such items on the other side as he knows to be correct, and endeavour to reduce the enquiry before the said arbitrator to as few items as may be possible; and that in default of either of the said parties so doing, then that the said arbitrator shall and may award such costs or sum of money, as stipulated damages in lieu of costs, to be paid by the party guilty of neglect in the premises, as he may think fit. And further, that each of the said parties shall and will, at each and every meeting before the said arbitrator, without any previous notice so to do, produce, and leave in the possession of the said arbitrator until he has made his award, all and every document whatever, that directly or indirectly relates to the matters in difference."

"And for the more explicitly, satisfactorily, and permanently adjusting and determining all and every matter of dispute or difference between the said parties that shall or may be brought before the said arbitrator, it is hereby agreed that the said arbitrator shall, at the request of the said parties, or either of them, when reasonably required so to do by writing signed by the party, and delivered to the said arbitrator at least twenty-four hours before he shall make his award, in and by his said award, state and separately adjudicate upon every claim made by or on the behalf of either party, and state whether he allows or disallows the same."

"And it is hereby expressly declared and agreed that the said arbitrator shall, at the instance and request of either of the said parties, state in explicit terms, upon the face of his award, the exact evidence and facts, in respect whereof either of the said parties shall think fit to state or raise any legal objection or question, whether upon the admissibility or competency of any evidence or witness, or upon

(n) 5 Taunt. 662; 4 Taunt. 254; but see 2 Chit. R. 29; 5 Moore, 167.

(0) Rex v. Bingham, 1 Cromp. & J.

245. As to a submission obtained by fraud, see Sackett v. Owen, 2 Chit. R. 39.

CHAP. III.

OF REFERENCES

TO ARBITRA

Although in order to make the submission a rule of Court, an affidavit of its execution may be made at any time after, and the making of such affidavit may be enforced, (p) yet it is in general most prudent to obtain the same at or immediately after the Secondly, The

TION, &c.

affidavit of the execution of the agreement

any question of law touching or in any wise relating to the interests of either party, respecting which his the said arbitrator's award is to be, or might or ought to be or deed of remade, together with the said arbitrator's opinion thereupon, and in so clear and ference. distinct a manner as to enable both or either of the said parties to obtain the opinion of the Court of touching such question or point of law, or the due effect to be given to such evidence, or to the opinion or decision of the said arbitrator, or the result and validity of his award in the whole or in part." See the necessity for this stipulation, Jong v. Byles, 3 Moore and Scott, 86; ante 87, 88.

"And it is hereby further agreed, that if either party, by affected or unreasonable Power to award delay or otherwise, shall hinder, prevent or impede, or endeavour to hinder, pre- costs of delay. vent or impede the said arbitrator from or in making his award so soon as he ought, or otherwise might do, he or she shall pay such costs or sum of money as the said arbitrator or the said Court shall award or adjudge right and just." Watson, 24; Aston v. George. 2 B. & Ald. 395; 1 Chit. R. 204, S. C.

"And it shall and may be lawful for the said arbitrator, at any appointed meeting Power to proor hearing by him had to proceed at and upon the appointed time, ex parte, to ceed ex parte, subject the party thereupon absent, or not adducing reasonable evidence sufficient in case of abto occupy the time of a meeting of two hours duration, to any reasonable expences, sence, or not the amount of which he shall or may by his award fix and direct to be paid, or he bringing formay direct that the same shall and may be taxed by the proper officer of the ward evidence. Court, and to be paid by such party when so taxed." The 3 & 4 W. 4, c. 42,

8. 39, expressly requires the arbitrator to proceed ex parte after revocation, and

declares that the award shall be valid.

"And it is further agreed, that if either of the said parties shall fail or neglect Power to proto attend before the said arbitrators or umpire, at any meeting appointed by them ceed ex parte, or him, after three days' previous notice shall have been given or sent to the said in a fuller parties thereof, then the said arbitrators or umpire shall be at liberty to proceed form. from time to time ex parte, and to make their or his award; and that the party absent shall at most be entitled at any subsequent meeting to require the arbitrator to state to him the substance of the evidence adduced when he was absent, and in case he shall desire to cross-examine any witness who has given any evidence whilst he was absent, he shall, at his own expence, obtain the attendance of such witness; but the opponent shall nevertheless give him facilities in obtaining the presence of such witness, and the absent party shall, at all events, pay every expence and increase of charge occasioned by his absence."

"And it is hereby agreed that the said shall not be personally liable to pay any Agreement to sum of money or costs, under or by virtue of the award to be made by the said prevent an exarbitrator, further or beyond the assets he hath or shall or may have, as the executor from ecutor of Mr. — and legally applicable to the satisfaction thereof; nor unless the said arbitrator shall, by his award, expressly find and decide that after paying all without assets. being liable debts of a higher nature or degree, the said cient to pay the sur, if any, found due by the said award, or some and what part thereof, together with the costs of the said action and of the reference and award, to be paid as the said arbitrator shall direct." See necessity for this qualification, ente; and Ruddell v. Sutton, 5 Bing. 200. In matter Joseph and Webster, 1 Russ. & M. 496. In re Wansborough, 2 Chit. R. 40.

hath assets in his hands suffi

judgment to secure pay

ment.

"And it is hereby agreed that the said arbitrator may award and direct such pro- Power to award ceedings either as relate to pleading or practice, or the executing of a warrant of the entry of a attorney to confess judgment, or signing a cognovit, to be had, and such judgment to be entered, as he shall think fit, to secure the payment of all sums and costs by him awarded to be paid, and that each of the said parties will adopt such measures as shall be necessary or proper in that behalf, so as to observe such direction as nearly as may be." See Hutchinson v. Blackwell, 8 Bing. 331; I M. & S. 513. A submission to refer a cause and the issue therein to a barrister, does not authorise him to award a verdict to be entered: and semble, that unless a jury has been empanelled and sworn, it would be improper to award a feigned verdict to be entered, and that the only course would be to award that judgment be entered by confession, and relicta verificatione of the plea, or nolle prosequi against a plaintiff.

(p) Post, 92, note.

OFREFERENCES
TO ARBITRA-

CHAP. III. instrument has been signed, and the subscribed form is proper for the purpose; (q) and there should be a duplicate affidavit annexed to each part of the instrument of reference, and sworn, so that each party may have one to use.

TION, &c.

Thirdly, Of making the

submission a

rule of Court.

Stipulated damages to be

paid in case of unreasonable delay by either party.

Form of affidavit of signature to the agreement of reference by attesting wit

ness.

As the statute speaks only of Courts of Record, it has been considered that the Court of Chancery, which is not in strictness of record, is not within the act; (r) but the second section of the 9 & 10 W. 3, c. 15, imports that the Legislature intended to include the superior Courts of Equity; and in practice, Courts of Equity have long assumed concurrent jurisdiction. (s) And in equity as well as at law, a submission to reference may be made a rule of Court as well after the award has been made as before. (t) It may also be made a rule of Court in vacation as well as in term. (u) But when the reference is by agreement or deed, it is advisable to make it a rule shortly after the agreement has been entered into; because as an affidavit of the due execution of the agreement is required in order to make the same a rule of Court, death or absence, or refusal of the witness to make the requisite affidavit, might occasion at least delay, if not difficulty (1) Besides, when the parties and witnesses know that they are to act and give evidence under a rule already obtained,

“And in case either of the said parties shall by any unreasonable delay in proceedings or otherwise, hinder or prevent the said arbitrator from making his award, on or before the said day of -, or any time enlarged by him, then he shall pay to the other the sums following, that is to say; if the said defendant shall occasion such hindrance or prevention, then he shall pay to the said plaintiff the sum of 1. as being the estimated and stipulated and hereby agreed amount of the sum claimed by the said plaintiff, together with the costs which the said plaintiff has and probably will incur; and if the said plaintiff shall occasion such hindrance or prevention, then he shall pay to the said defendant the sum of 1.—, being the estimated, stipulated, and hereby agreed amount of the expences and costs which the said defendant hath and probably will incur in his defence of the premises. And that it shall and may be lawful for the said arbitrator to award within any reasonable time hereafter, that the said sum shall be paid accordingly; and also to award and direct what, if any, judgment shall be caused to be signed or entered, to secure the due payment thereof.

(9) In the Court of

A. B., of, &c. clerk of G. H., of attorney, maketh oath and saith, that he was present at the time of the signing the agreement hereunto annexed [or of the signing, sealing and delivery of the bond" or deed" hereunto annexed] ; and that C. D., of, and E. F., of

therein mentioned, did duly sign [or seal, and as his and their act and deed deliver] the said agreement [or bond or deed] in the presence of this deponent; and that the names of C. D. and E. F., set and subscribed to the said agreement for bond or deed] are respectively the proper hand-writing of the said C.

D. and E. F., and that the name of
d. B., set and subscribed as the witness
thereto, is of the proper hand-writing of
this deponent.
A. B.

[Sworn, &c.]

(r) Tidd. 9th ed. 821; but citing 2 Mad. Ch. Pr. 713.

(s) 2 Mad. Ch. R. 713, 4. Post. (t) Cheede v. Lequesne, 2 Ves. 315; Pownal v. King, 6 Ves. 10; Symes v. Smith, 5 Mad. Rep. 74, overruling Spellinge v. Carpenter, 3 P. Wms. 361.

(u) 5 B. & Ald. 217; Tidd. 836. (v) 1 Stra. 1; 10 Mod. 322, S. C.; Barnes, 58; 1 Price, 308; 1 Chit. R. 743.

« PreviousContinue »