evidence of reputation against C. Held that the award not only was not binding upon C., who was a stranger to it, but could not even be tendered as evidence of reputation against a stranger to it (R. v. Cotton (1813), 3 Camp. 444. See also Evans v. Rees, ante, p. 479).

2. A parish was indicted for non-repair of a highway. The defendant parish wished to give in evidence an award by commissioners acting under an Inclosure Act, which empowered them to determine to which parish certain roads belonged, after due notice. This award decided that the road in question was in a parish other than the defendant parish. There was evidence of repair and of other admissions of liability by the defendant parish since the award. Held that the award could not be received without proof that the commissioners had given the proper notices, on the ground that the repair and admissions removed the prima facie presumption that all proper steps had been taken (R. v. Haslingfield (Inhabitants) (1814), 2 M. & S. 558. See also Manning v. Eastern Counties Rail. Co. (1843), 12 M. & W. 237).

3. In a dispute as to tolls under the Corporation of Cambridge the plaintiffs produced an award made in the reign of Henry VIII., and a composition deed reciting the award and made in pursuance of it, for regulating disputes between the University and Town of Cambridge. Lord Tenterden, C.J., said: "The deed recites the award, so that the plaintiff will have the full benefit of the award by reading the deed only, which derives no additional authority from being made in pursuance of the award. I think I ought to receive the deed on its own account. In this case reputation is admissible evidence, and certainly such a solemn deed is admissible evidence of reputation" (Brett v. Beales (1829), Mood. & M. 416).

Award as evidence for a stranger.

In certain circumstances an award, although it cannot be evidence against, may be evidence in favour of, a stranger to it.

Illustration.

S. brought an action against F., a servant of the East India Company, for damages for false imprisonment. F. produced an award between S. and the company, in pursuance of which a release had been given by S. to the company, in return for a large payment of compensation paid to him in respect of injuries done to him by the company's servants, and in particular by F. The award was upon a submission of matters in dispute, the terms of which embraced the matters upon which the present action was founded. Held that this award and the release were good evidence on behalf of F. in mitigation of damages, although F. was a mere stranger to the award (Shelling v. Farmer (1725), 1 Stra. 646).

Award as evidence for arbitrator.

When a dispute relates to property, and the property is deposited with the arbitrator pending his award, the award may be given in

evidence by the arbitrator in any action brought by the unsuccessful party against him to recover the property.

Illustration.

In a former action by L. against the plaintiff's brother, for trespass in taking away a filly, it had been referred to an arbitrator to decide whose property the filly was, and she had been delivered to the arbitrator to keep for that purpose. He had awarded her to L., but she still remained in his possession. The plaintiff demanded her, and was refused, and brought an action for trover. Park, J., said: "In effect the defendant said, 'I cannot deliver the filly to you because I have awarded that she does not belong to you.' The detention, therefore, cannot be considered as an unlawful conversion, and more particularly so, as the defendant decided on the only point in issue in the former trial" (Gunton v. Nurse (1821), 5 Moore, C. P. 259).

Impeaching award put in evidence.

Where an award is tendered as evidence, the opposite party may offer evidence in reply to destroy its effect.

This evidence may be directed to impeaching the validity of the award, e.g. on the ground that the arbitrator did not award upon all the matters in dispute.

Illustrations.

1. The submission was of all matters in difference between the parties and the award was for £472 odd, "being the balance due on the banking account of J. M. (the defendant) with the plaintiffs." In an action for £800 balance of his banking account the defendant put in the award, and the plaintiffs endeavoured to prove the award bad in toto, as not dealing with all matters in dispute. The Court said that if it could be shown that there was any other matter in difference than the banking account, the award could not be sustained in any respect, but that it lay upon the party who impeached it to show that there was some other matter in difference between the parties (Ingram v. Milnes (1807), 8 East, 445).

2. The submission was of all matters in difference, and the indemnity of the defendant as a drawer of certain bills accepted by the plaintiff, and then outstanding, was at the time of the submission a matter in difference between the parties, and it was notified to the arbitrators, but there was nothing stated in the award respecting this matter. "They were called upon to act on a matter in controversy and have not acted. . . . The award, therefore, is not final. . . . That is an important difficulty against which the plaintiff has to contend, and it would be to no purpose to amend the pleadings" (per Lord Ellenborough, C.J., in Mitchell v. Staveley (1812), 16 East, 58, at p. 66).

3. "The award is alleged to have been made of and concerning the premises referred, that is, the cause, which means the issues in the cause.

It being alleged that there were no matters in difference between the parties except those in the cause, then, in order to make the award good and valid, it must be made on all matters in difference, that is on all the issues in the cause. Therefore a plea that there was no award, that is, no valid award, sufficiently raises this objection" (per Parke, B., in Dresser v. Stansfield (1845), 14 M. & W. 822, at p. 830).

4. To an action for the amount of an award of an umpire in respect of compensation for damage done to land by the execution of works under a private Act, the defendants pleaded that the umpire had awarded compensation in respect of matters not the subject of compensation under the Act. Held that the plaintiffs (on the construction of the private Act) were not entitled to the compensation awarded, as the arbitrator had not found damage in respect of any matter over which he had power (Rhodes v. Airedale Drainage Commissioners (1876), 1 C. P. D. 402).

FIRST SCHEDULE (i

COSTS.

"Costs of the reference."

"Costs of the award."

"Costs of umpire's award.

Arbitrator's right to remuneration.

Implied promise to pay.

Submission providing for remuneration.

Practice not to deliver award until charges paid. Lien for fe

Where no award made.

Costs of solicitor or counsel employed to draw up

Fees on award under the Lands Clauses Act.

"May tax or settle."

Settling own remuneration.

Fees may be taxed if amount not stated in award.

award.

Umpire's charges should be stated separately from arbitrators' charge Charges for remuneration and for disbursements should be separated. No costs recoverable if solicitor uncertificated.

Arbitrator should exercise his discretion as to costs.

May order successful party to pay costs.

Awarding each party to pay his own costs.

Power to direct taxation of costs.

Costs to be taxed by a certain day.

Costs as between solicitor and client.

Costs where award set aside.

Covenant in lease excluding jurisdiction of arbitrator.

Agreement by third person to be bound by award.

Costs may be taxed before expiration of time for setting aside award.
Taxation of costs by Master.

Costs should be taxed according to award.

[Unless a contrary intention is expressed in the submission (s. 2)]

(2) The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client.

The provisions of this clause are, in the absence of an expression of a contrary intention, deemed to be included in submissions made before or after the commencement of the Act (In re Williams and Stepney, [1891] 2 Q. B. 257; 60 L. J. Q. B. 36).

In order to understand how far the cases decided before the Arbitration Act as to costs are applicable at the present time, it must be borne in mind that an arbitrator before the Arbitration Act had no power over the costs of the reference and award, unless it was expressly given. to him by the terms of the submission.

Further, before the Arbitration Act the Court had power compulsorily to refer causes to arbitration, and when the Court did so, the arbitrator also had no power over the costs of the reference or award, unless such power was given by the order of compulsory arbitration.

The Arbitration Act now divides references into two kinds :

(1) References by consent out of Court; and

(2) References under order of the Court.

As regards references by consent out of Court, the costs are in the discretion of the arbitrator under this clause of the First Schedule to the Act, unless a contrary intention is expressed in the submission, and as regards references under order of Court, the referee or arbitrator has full power to deal with costs subject to any provision in the order of reference (see commentary on s. 15, Part II., post). It is unnecessary, therefore, for the Court to make any order as to costs in references under order of the Court, unless the Court wishes to limit the power of the referee, and as regards references by consent out of Court, no provision in the submission is necessary, unless the parties wish to limit the discretion vested in the arbitrator by clause (i) of the First Schedule to the Arbitration Act.

There is a third class of cases, namely, where the Court, with the the consent of the parties, orders a reference as to matters beyond its jurisdiction under the Arbitration Act, as, for instance, in cases where

the Court by consent orders the cause "and all matters in difference" to be referred. In such a case, the person to whom the reference is made is not an official of the Court, but an arbitrator under a submission by consent (Darlington Wagon Co. v. Harding, &c., [1891] 1 Q. B. 245), and his powers as to costs are, it would seem, defined by clause (i) of the First Schedule to the Arbitration Act, unless the order of reference places any limitation upon such powers. This subject is dealt with in Part II., in the commentary on s. 15, post.

"Costs of the reference."

The "costs of the reference" include all the expenses properly incurred by the parties in the course of the whole enquiry before the arbitrator. They may include the costs of negotiating and settling the terms of the submission, and of any fresh submission, between the parties. Thus, where on an action being stayed, as being contrary to an agreement of reference, the parties then prepared and executed a further submission, under which the arbitration took place, it was held that the costs of and incidental to the further submission were part of the costs of the reference (In re Autothreptic Steam Boiler Co. and Townsend, Hook & Co. (1888), 21 Q. B. D. 182; 57 L. J. Q. B. 488). They also include the costs incidental to the statement and argument of a special case on questions of law under s. 19 of the Arbitration Act (In re Knight and Tabernacle, &c., Building Society, [1892] 2 Q. B. 613. See also In re Holliday and Wakefield Corporation (1888), 57 L. J. Q. B. 620).

The costs of the reference include any special expenses incurred in connection with the arbitration by the parties or by the arbitrator with the consent of the parties; for example, the costs of an accountant employed by the arbitrator, by consent of the parties, to examine one party's books, and of the attendance of the other party's solicitor on the accountant (Hawkins v. Rigby (1860), 29 L. J. C. P. 228; 8 C. B. (N. S.) 271. See also Westwood & Co. v. Cape of Good Hope Government (1886), 2 T. L. R. 667).

Where by the terms of an agreement of reference the arbitrator was given authority to deal with the costs of the reference, it was held the costs of the award were included in the costs of the reference (In re Walker and Brown (1882), 9 Q. B. D. 434; 51 L. J. Q. B. 424).

"Costs of the award."

The amount of the costs of the award is the sum demanded by the arbitrator as the terms of giving up his award, on which he has a lien. But as between the parties to the submission, the amount of the costs of the award, if the costs are subject to taxation, is the amount allowed by the taxing Master on taxation, and the sum allowed by the taxing