Effect of recitals.

Where a submission recited that the plaintiffs claimed a certain specified balance, and then referred all disputes and differences between the parties to an arbitrator, who was "to determine the account between the said parties," the Court held that the arbitrator's authority was general, extending to all matters in dispute, and was not limited to the matters included in the recited balance, and that the recital merely indicated the motive of the submission and did not limit the arbitrator's power (Charleton v. Spencer (1842), 3 Q. B. 693; 12 L. J. Q. B. 23). But where the submission, after reciting that a certain amount of profits had been made on a farm by trustees, referred to an arbitrator, among other things, the trustees' accounts of the profits of the farm and farming business carried on by them, so far, and so far only, as the said profits and produce had not been already ascertained, it was held that the arbitrator had no power to open the settled account as to the profits of the farm and disallow a portion of it (Skipworth v. Skipworth (1846), 9 Beav. 135).

A submission between two partners, after reciting that disputes had arisen between them, and that a bill had been filed in Chancery for a dissolution of the partnership, stated, that in order to put an end to the suit they agreed to refer all matters in dispute, arising out of the partnership accounts or otherwise, to certain arbitrators, who were also empowered to decide on the proportions each should pay of the costs of the reference and the costs of the bill in Chancery. The Court held that the arbitrators were not bound to award in respect of the Chancery suit or to take any notice of it except to apportion the costs of it (Marsh, In re (1847), 16 L. J. Q. B. 330).

Arbitration "in the usual manner."

3

Where an agreement provided that disputes should be settled by arbitration in the usual manner, it was held that this meant in the manner which was in fact usually adopted by the parties, and not necessarily in accordance with the provisions of the Arbitration Act (Bright v. Gibson (1916), 32 T. L. R. 533).

All suits "between them two."

If A. and B. submit "all suits and actions depending between them two," the arbitrator has no power to make an award respecting an action between B. and his wife on one side as plaintiffs or defendants, and A. on the other (Brockas v. Savage (1596), Rolle, Ab. Arb. D 4; Com. Dig. Arb. D 4; Morse v. Sury (1724), 8 Mod, 212); nor, on a general reference between the plaintiff and defendant, can he award that the defendant pay to the plaintiff compensation for the taking of property

in which the plaintiff and others are jointly interested (Fisher v. Pimbley (1809), 11 East, 188).

Submission by A. and B. of the one part and C. of the other.

It has been often held that a submission by A. and B. of the one part, and C. of the other, "of all matters in difference between them," authorises the arbitrator to decide on all matters that either of the two has against the third jointly or severally, such as an action by A. alone against C., on the ground that the words are to be taken distributively (Arnold v. Pole (1634), Rolle, Ab. Arb. D 5; Libtrat v. Field (1665), 1 Keb. 885; Athelston v. Moon (1736), Com. Rep. 547; Carter v. Carter (1684), 1 Vern. 259; Thomlinson v. Arriskin (1720), Com. Rep. 328; Bac. Ab. Arb. E; Com. Dig. Arb. D 4. See also Rees v. Waters (1847), 16 M. & W. 263). This view was adopted in the Court of Exchequer, and affirmed in the Exchequer Chamber (Adcock v. Wood (1851), 6 Ex. 814; 20 L. J. Ex. 435. In error (1852), 7 Ex. 468; 21 L. J. Ex. 204).

All matters in difference between parties to suit against estate
of testator.

It has been decided in Chancery that on a reference of all matters in difference between the parties to a Chancery suit to enforce a claim against the real and personal estate of a testator, where the executor and parties interested in the real estate are defendants, the arbitrators should not only adjudicate between the plaintiffs on one side and the defendants on the other, but decide respecting the claims of the co-defendants as against each other, and adjust the individual rights of each (Turner v. Turner (1827), 3 Russ. 494).

All matters between the parties "or any of them."

If the submission between A. and B. on the one part, and C. and D. on the other, be "of all matters in difference between them, or any of them," it is clear that the arbitrator may consider a claim by A. and B. against C. only (Joyce v. Haines (1666), Hard. 399). And it would seem that the arbitrator might award on a separate matter between A. and B.

Six partners by two bonds submitted to arbitration all matters relating to their trade. By the one bond three of them became jointly and severally bound to the other three to obey the award as to all matters between the partners or any of them; by the second bond the latter three became bound to the former three in like manner. It was held that the arbitrator was authorised to award on a matter in dispute between two co-obligors only, on the ground that the reference was of all matters between them or any or them (Winter v. White (1818), 1 B. & B. 350).

Joint and several promise to perform award.

Where two persons promised jointly and severally to perform an award, it was held that they were jointly and severally responsible for the sum which the arbitrator awarded to be paid by each (Mansell v. Burredge (1797), 7 T. R. 352).

Matters accruing before and after date of submission.

In a reference "of the cause, and all matters relating to an annuity in question in the cause," it was held that the arbitrator had power to deal with the arrears of the annuity accruing due after the cause of action arose (Wynne v. Wynne (1842), 4 M. & G. 253; 10 L. J. C. P. 301).

A reference of all matters in difference gives an arbitrator power over all matters down to the period of the submission, but does not, except under very special circumstances, enable him to award on future and contingent claims, or to give damages in respect of money demands becoming due after the date of the submission, though pursuant to an agreement made previous to it, or indeed respecting any subjects of dispute arising after the reference (Brown and Croydon Canal Co, In re, (1839), 9 A. & E. 522; 8 L. J. (N. S.) Q. B. 92; Cockburn v. Newton (1841), 2 M. & G. 899; 10 L. J. C. P. 207; Manser v. Heaver (1832), 3 B. & Ad. 295; Harding v. Forshaw (1836), 1 M. & W. 415; Barnardiston v. Fowler (1714), 10 Mod. 204). Even if the submission be of all differences and "of anything in anywise relating thereto," these latter words do not extend the power of the arbitrators to matters which, though relating to the existing differences, arise after the date of the submission; nor do they authorise the calculation and awarding of interest subsequent to that date (Morphett, In re (1845), 2 D. & L. 967; 14 L. J. Q. B. 259).

Where arbitration bonds, dated the 9th of December, were on the 4th of January, before the proceedings had commenced, altered by the parties substituting a later day as the limit for making the award, and were then re-executed and re-delivered, the arbitrator was held to have cognizance of claims arising after the 9th of December and up to the 4th of January, since the execution of the bonds not only extended the time but amounted to a new submission on the 4th of January (Watkins v. Phillpotts (1825), M'Clel. & Y. 393).

It is said if the submission be respecting ewes with lamb, and the ewes, after the submission, but before the award, have lambs, that the arbitrator has no power to make any award touching the lambs (West's Symb., Part II., tit. "Compromise,” s. 33).

The parties may, however, if they please, give the arbitrator power to determine on contingent claims, or on matters in dispute or demands arising after the date of the submission (Brown and Croydon Canal Co.,

In re (1839), 9 A. & E. 522; 8 L. J. (N. S.) Q. B. 92; Morphett, In re (1845), 2 D. & L. 967; Lewis v. Rossiter (1875), 44 L. J. Ex. 136), and this course is often pursued. A reference "of all matters in difference, including the claim of the defendant in her set-off in the action," was construed to authorise the arbitrator to award to the defendant a sum which was not pleadable as a set-off strictly, because it was not due when the action commenced, nor till after the date of the reference (Petch v. Fountain (1839), 5 Bing. N. C. 442; 8 L. J. (N. S.) C. P. 305).

Mesne profits.

Where a railway company had taken the plaintiff's lands and held them many years, on a reference of all matters in difference to an arbitrator who was to settle the price to be paid for the lands and to direct conveyances, he was held entitled to take into consideration all claims for mesne profits down to the time of making his award (Smalley, v. Blackburn Rail. Co. (1857), 2 H. & N. 158; 27 L. J. Ex. 65).

Periodical assessment of damages.

Where an arbitrator was to make his award as to existing damages. before a certain day, and as to damages which should be thereafter sustained from the working of a certain mine, at the expiration of every two months from the day specified, he was held empowered to make, at the end of each two months, a periodical assessment of the damages accruing during the respective intervals, but not, after delaying till a third month, to include in one award a compensation for damages incurred subsequent to the second month, as well as for damages occurring during the first two months (Stephens v. Lowe (1832), 9 Bing. 32; 1 L. J. (N. S.) C. P. 150).

SECTION 3.

SUBMISSION TO OFFICIAL REFEREE.

1. Previous legislation.

2. What constitutes a submission.

3. Appointment and position of official referee.

4. Fees.

5. Conduct of reference.

6. "Subject to any order of the Court or a judge."

3. Where a submission provides that the reference shall be to an official referee, any official referee to whom application is made shall, subject to any order of the Court or a judge as to transfer or otherwise, hear and determine the matters agreed to be referred.

1. Previous legislation.

This section is a re-enactment of s. 11 of the Judicature Act, 1884, but in an abbreviated form.

The words in the Judicature Act "subject to any order which may be made by the Court or a judge for the transfer of the matter to any other official referee or otherwise" are now replaced in the Arbitration Act by the words "subject to any order of the Court or a judge as to transfer or otherwise."

It would seem that these words in the Arbitration Act mean the same as in the Judicature Act, and that notwithstanding an agreement, to refer to a particular official referee, the Court or a judge may transfer the matter to any other official referee.

2. What constitutes a submission.

As to what constitutes a submission within the meaning of the Act, see s. 27 and commentary thereon, post.

3. Appointment and position of official referee.

It would appear that the name of the official referee should be inserted in the submission, for the Act does not specifically provide any procedure for appointing any particular official referee, and it is not clear whether the powers of the Court under s. 5 would be applicable.

If an official referee acts under such a submission, he is in the same position and has the same powers and duties as any other arbitrator under a submission by consent out of Court. The repealed s. 11 of the Judicature Act, 1884, provided that "every such agreement shall be deemed to be an agreement to refer to arbitration within the meaning of ss. 11 and 17 of the Common Law Procedure Act, 1854."

The agreement (or appointment) must be lodged with a £1 stamp with the official referee's clerk. The reference will be put into the official referee's list of cases unless a special appointment is given to hear it.

4. Fees.

For fees payable, see Order as to Supreme Court Fees, 1884, Nos. 88 to 91, and Order as to Supreme Court Fees, 1903, Schedule I.

5. Conduct of reference.

Order XXXVI., rr. 48-55c, do not apply to references by consent out of Court, but to causes or matters or any question therein referred to an officer of the Court or to an official or special referee or arbitrator for enquiry or report or for trial under s. 13 or 14. Rule 55c, the proviso of which might be considered as making these rules applicable