Thus, on a reference at Nisi Prius, where the arbitrator stands very much in the place of a jury, he should, it is presumed, ordinarily decide the cause upon the same principles which a judge at Nisi Prius would have laid down for the guidance of the jury. And yet in one instance, where the verdict in a cause had depended on the result of the award, Lord Kenyon, without expressing any disapprobation, suggested that possibly, in arriving at his conclusions as to the verdict, the arbitrator had proceeded to cut the knot, rather than unloose it according to the strict rules of law, from a wish to do complete justice between the parties (ƒ). PART II. CH. I. S. 3. matters The various statements of judges respecting the principles When all of decision by which an arbitrator should be guided, especially referred. on a reference "of all matters in difference," it is not quite easy to reconcile. But disregarding special exceptions, there is abundant authority for laying down a general rule that an arbitrator, like every other judge, is bound by the principles of law (g), and that it is beyond his authority to award anything contrary to law; for the ordinary presumption is, that the parties intend to submit to him only the legal consequences of their transactions and engagements (); so that when parties refer their legal rights to arbitration, the arbitrator Power according to law. must endeavour to award according to law; although a mere mistake in law, as we shall see hereafter, is rarely fatal to the award (i). authority. The word "legal" is here used in an enlarged sense, for an Legal and arbitrator on a general reference should always have taken equitable into his consideration the rights of the parties in equity as well as at common law (k). deed. On a reference between two partners, it being contended Reforming a that the deed of partnership had been erroneously drawn up, the arbitrator allowed the draft of the deed to be put in evidence to show the mistake, and pronounced the deed to be wrong, and decided between the parties, on the construction of the deed, according to what he thought the deed was 38. (ƒ) Habershon v. Troby, 3 Esp. (g) Aubert v. Maze, 2 B. & P. 375; Badger, In re, 2 B. & A. 691. (h) Badger, In re, 2 B. & A. 691; Morgan v. Mather, 2 Ves. jun. 15; Young v. Walter, 9 Ves. 364. (i) Blennerhasset v. Day, 2 Ball & Beatty, 104. See P. II. ch. 5, s. 8, as to a mistake in law. (k) Delver v. Barnes, 1 Taunt. 48; Craven v. Craven, 7 Taunt. 642. PART II. CH. I. S. 3. Arbitrator not bound by rule of practice. Moral considerations. intended to have been; on its being objected that he had exceeded his authority in so doing, Parke, B., said "All disputes respecting the interests of the parties were referred to the arbitrator; he consequently had power to decide all questions of law and equity; therefore, if it were a question in dispute before him whether the deed was drawn up in mistake, and he thought it was, he had power to reform it under his equitable authority; but if he had been called upon only to decide upon the construction of the deed, of course he could not have altered it" (7). The arbitrator is not fettered by the mere rules of practice which the courts of law and equity have adopted for general convenience. Thus, he may allow interest in taking an account between the parties, when a known rule of practice would have prevented the courts from allowing it; for the authority to adjust the account between the parties carries with it an implied authority to allow interest, unless expressly excluded by the terms of the submission (m). He may allow a deduction in weight according to the custom of the place (n). It has been said by judges of great celebrity that under a general reference of all matters in difference the arbitrator is not confined within the rules of law and equity, that he has greater latitude than the courts of law in order to do complete justice between the parties, and that he may take all moral questions into consideration in forming his judgment, and decide according to equity and good conscience; for instance, that he may relieve against a right which lies hard upon one party, but which having been acquired legally and without fraud, cannot be resisted in a court of justice (0). In one instance the Court of Queen's Bench is said to have laid down the following rule, "That when arbitrators, knowing what the law is, or laying it entirely out of their consideration, make what they conceive, under all circumstances, (1) Keene and Atkinson, In re, Exch. April 16, 1847. (m) Badger, In re, 2 B. & A. 691. (n) Harris v. Smith, 4 T. L. R. 569. (0) South Sea Co. v. Bumstead, 2 Cas. in Eq. Ab. 80; Knox v. Symonds, 1 Ves. jun. 369; Delver v. Barnes, 1 Taunt. 48; Young v. Walter, 9 Ves. 364; Hanson v. Liversedge, 2 Vent. 242; West. Symb. Part II. title Compromise, s. 21; 2 Story's Equity Jurisprudence, 675-684; 12th ed. 707 et seq. PART II. CH. I. S. 3. law intended. to be an equitable decision, it is no objection to the award that in some particular point it is manifestly against law”(p). But these and similar general observations must, in general, Power beyond at least, it is humbly suggested, be considered and explained by reference to the matters in dispute in the particular case, showing the intention of the parties to give the arbitrator power beyond law. Thus in the case which gave rise to the expression of the above rule (g), the arbitrators to whom the differences respecting a testator's estate had been referred, awarded, that they were of opinion that the intention of the testator was by his will to have disposed of his property in a particular manner which they specified, and with which they directed the parties to be satisfied (r). This distribution was clearly contrary to that which the law and legal construction. of the will would have effected. The court, however, sustained the award, though the arbitrators stated on affidavit, that in disposing of the residue not included in the will they did not conceive that they were making any distribution of it according to any fixed rules of law upon the subject, but that they were dealing out to the several parties interested, what appeared to them to be according to the best of their judgment, under all the circumstances of the case, strict and impartial justice, agreeably to what they believed to have been the intention of the testator. From the terms of the award, the statement of the arbitrators, and the mention made in the report that the arbitrators were gentlemen who were well acquainted with the intentions of the deceased, it may probably be inferred that the question in difference was, not what was the legal effect of the will and the legal rights of the parties to the property, but what was the distribution of his estate which the testator intended by his will to have made. If this view be correct, the arbitrators, by the very nature of the matters in difference, were called upon by the parties to decide irrespectively of their legal rights, and thus in one sense authorized to award against law, or rather beyond law (s). A dictum, however, of Wilde, C.J., in a later case, that the (p) Ainsley v. Goff, B. R. 1799; Kyd on Awards, 351. (1) Ainsley v. Goff, Kyd on Awards, 351. (r) In Kyd on Awards, the form of the submission is given in the PART II. CH. I. S. 3. Aimiables compositeurs, Canada. courts will not set aside an award for a mistake in law of the arbitrator, unless they can on the face of the award distinctly see that the arbitrator, professing and intending to decide in accordance with law, has unintentionally and mistakenly decided contrary to it, may be quoted to assist the argument, that if the arbitrator avowedly threw the law overboard, his decision, notwithstanding, might be supported (t). By the law of Lower Canada, persons may be appointed as arbitrators and "aimiables compositeurs." Though "aimiables compositeurs may be exempt from the strict rules governing arbitrators by that law, the Privy Council, per Lord Selbourne, said that they should hesitate much before they held that arbitrators named as "aimiables compositeurs" could disregard all law and be arbitrary in their dealings with the parties (u). (t) Fuller v. Fenwick, 3 C. B. 705. (u) Rolland v. Cassidy, 13 App. Cas. 770. CHAPTER II. OVER WHAT MATTERS THE SUBMISSION GIVES THE PART II. contents of THIS chapter examines over what particular matters the arbitrator acquires a jurisdiction. The first section discusses the effect of particular words and phrases used in the submission Scope and as enumerating the matters referred. Section two considers the second chapter. how far, when there are more than one person on each side, a matter, to be accounted a matter in difference, must be one in which all are jointly interested. Section three points out the limit as to time, which divides the matter in difference existing previous to it, and on which the arbitrator has to award, from matters in difference arising subsequently, upon which he may not adjudicate. SECTION I. OF THE EFFECT OF PARTICULAR TERMS TO REFER PARTI CULAR MATTERS. The question, over what subject-matters the arbitrator is to exercise his powers, must be answered by a reference to the particular words of the submission enumerating the subjectmatters. The most general and comprehensive form of words is that which refers to the arbitrator's decision "all matters in difference between the parties." The arbitrator, on such a submission, may consider all questions affecting the parties' civil rights (a); he may adjudicate on a demand made by one (a) Baker v. Townsend, 7 Taunt. 422; Co. Litt. 1 Inst. s. 511. PART II. CH. II. 8. 1. All matters in difference. |