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PART II.

CH. II. S. 1.

Demand in auter droit.

Demand

admitted.

Within former submission.

Claim abandoned.

All suits,

controversies,

of them in auter droit as executor or administrator (b); or on differences relating to things which a party has in right of his wife (c). Though a claim made by one side before the arbitrator is admitted by the other to be correct, it is still a matter in difference within the meaning of such a submission, and ought to be considered in the award (d); but a claim within scope of a former reference in which the arbitrator has directed mutual releases to be executed, is not a matter in difference on a subsequent reference, although it was not in fact considered or awarded on by the former arbitrator (e). A claim made and abandoned before the arbitrator, or withdrawn, is not a matter in difference (f).

A reference of "all suits, controversies, and demands," has and demands. been held to extend to a liability for a debt due from the wife of one of the parties as executrix (g). On a submission "to end all controversies," it was held that an indictment for a battery was not a controversy between the parties within the meaning of the submission, since it was a proceeding at the suit of the King (1).

All debts, trespasses, and injuries.

All demands

due and owing.

All actions.

A submission of "all debts, trespasses, and injuries," includes all demands, all manner of wrongs, all matters of equity and of law (i); of "all debts," comprises specialities and judgments (); and of "all demands due and owing," embraces everything one party has a right to exact of the other at the time of the submission, and is not limited by the words "due and owing" to a debt or other special demand which is more strictly speaking a duty, but may extend to a right of entry into land, or a suit for partition (1). By a submission "of all actions," causes of action are not referred (m), but by a submission "of all actions and com

(b) Elletson v. Cummins, 2 Stra.
1144, S. C. Com. Dig. Arb. D. 4.
(c) Bac. Ab. Arb. E. 1; Berry
v. Perry, 3 Bulst. 65.

(d) Robson and Railston, In re,
1 B. & Ad. 723; Hutchinson v.
Shepperton, 13 Q. B. 955. See
P. II. Ch. 5, s. 4, d. 2, as to award-
ing on all matters in difference.

(e) Trimingham v. Trimingham,
4 N. & M. 786.

(f) Bird v. Cooper, 4 Dowl. 148;
Lawrence v. Bristol and North
Somerset Rail. Co., 16 L. T. N. S.
Ex. 326. See P. II. ch. 5, s. 4,

d. 2.

(g) Lumley v. Hutton, Cro. Jac. 447; 1 Rolle, Rep. 268. See Co. Litt. 1 Inst. ss. 508, 509.

(h) Horton v. Benson, Freem.

204.

(i) Cable v. Rogers, 3 Bulst.

311.

(1) Roberts v. Marriett, 2 Saund. 190; Com. Dig. Arb. D. 4.

(7) Knight v. Burton, 6 Mod. 231; Com. Dig. Arb. D. 4.

(m) Com. Dig. Arb. D. 4; Rolle, Ab. Arb. c. 1, p. 245; 1 Co. Litt. s. 492.

PART II.

CH. II. S. 1.

plaints" they are (n). Actions real were included in a reference "of actions personal ac sectis et querelis" (o), but not if the word ac was omitted, for then the word personal would All actions limit the whole (p).

and com

plaints.

difference between par

cause.

A slight variation in the collocation of the words of a submission will sometimes make a most important difference in the powers of the arbitrator. Thus, if besides an action pending there are cross-demands and other differences of various kinds, and it is intended to empower the arbitrator to settle them all, the submission is often expressed to be "of all Matters in matters in difference between the parties in the cause;" but if it is proposed to authorize him to dispose of nothing but ties in the the questions in the action, the submission very frequently purports to be "of all matters in difference in the cause Matters in between the parties" (7). As the distinction between the tween the two phrases is rather too refined for the ordinary apprehen- parties in the sion of unprofessional arbitrators, it has been suggested that to prevent error, when a general reference is intended the words should be "of all matters in difference between the parties;" but when the reference is to be limited to the action, "of all matters in difference in the cause” (”).

difference be

cause.

in Scotland.

In the Scotch courts it is curious to observe that by a "Cause and technical construction put upon the words a judicial refer- all questions" ence" of a cause and all questions," is a reference only of all matters in dispute in the cause (8).

"all matters in the cause."

A reference" of a cause," and " of all matters in difference "Cause" or in a cause," means exactly the same thing, and only gives the arbitrator power to decide on the questions raised by the pleadings which are necessary for the determination of the cause (t).

By the reference of a cause at Nisi Prius the cause, as it stands, is referred, and the arbitrator is entitled to decide on the same claims and defences alone, which the jury would have done, had it been decided by them at the time of

(n) Com. Dig. Arb. D. 4; Rolle, Ab. Arb. c. 2, p. 245.

(0) Com. Dig. Arb. D. 4; Rolle, Ab. Arb. D. 7, p. 246.

(p) Com. Dig. Arb. D. 4; Rolle, Ab. Arb. D. 6, p. 246.

(7) Malcolm v. Fullarton, 2 T. R. 645.

(r) Smith v. Muller, 3 T. R. 624. Baillie v. Edinburgh Oil Gas Co., 3 C. & F. 639.

(t) Wild v. Holt, 9 M. & W. 161; Angus v. Redford, 11 M. & W. 69; Dresser v. Stansfield, 14 M. & W. 822; Hobson v. Stewart, 4 D. & L. 589.

PART II.

CH. II. S. 1.

Whether issues of law referred.

Demurrer.

Judgment non obstante veredicto.

trial (u). He has no power to settle any other matters in difference between the parties than those in respect of which the plaintiff can recover in the cause (x).

It does not seem clear when a cause only was referred at Nisi Prius, under the common law powers of the court, whether the arbitrator ought to decide the issues of law as well as of fact, as, for instance, a demurrer in the cause pending before the court, or whether his functions should be confined to those of a jury in determining the questions of fact.

In one instance, where some of the pleas had been demurred to, and the cause was referred on the trial of the issues in fact, a verdict being taken subject to the reference, and the arbitrator awarded a verdict for the defendant, an objection was made to the award that the arbitrator had not assessed contingent damages on the demurrer, but it never was suggested that it fell within his duty to dispose of the demurrer itself, and the demurrer was subsequently argued before the court (y).

In another case, however, of a reference of a cause only at Nisi Prius, where the arbitrator found in the defendant's favour a plea going to the whole cause of action, and therefore awarded no damages to the plaintiff, the plea being immaterial, the court said the arbitrator ought to have given damages to the plaintiff notwithstanding the plea, and thus held it to be his duty to have decided practically the issue in law whether the plaintiff was entitled to judgment non obstante veredicto ().

But the Courts of Common Pleas and Exchequer more recently held that the question of the plaintiff's right to judgment non obstante veredicto is not a matter in difference in the cause at the time of the reference at Nisi Prius, and therefore not determinable by the arbitrator (a).

Now by R. S. C., 1883, without regard to the stage of the

(u) Ashworth v. Heathcote, 6 Bing. 596.

(x) Atkinson v. Jones, 1 D. & L. 225.

(y) Cooper v. Langdon, 9 M. & W. 60.

(z) Grenfell v. Edgcome, 7 Q. B. 661. See Steeple v. Bonsall, 4 A. & E. 950; Britt v. Pashley, 16

L. J. Ex. 233, S. C. 1 Ex. R. 64. See P. II. ch. 6, s. 5, d. 1, as to the arbitrator's duty to decide on the plaintiff's right to judgment non obstante veredicto.

(a) Toby v. Lovibond, 5 C. B. 770; Linegar v. Pearce, 9 Ex. 417.

PART II.

CH. II. S. 1.

and all matters

action at which the reference takes place, the arbitrator has power to direct judgment to be entered for either party (b). When matters beyond the cause are referred with the cause When cause even at Nisi Prius, it would seem an arbitrator should decide a demurrer, for the submission manifestly contemplates his referred. possessing more extended powers than the jury (c). At any rate, when the cause and all matters in difference are referred not on the trial, but at some other stage, as, for instance, by a judge's order before trial, the power and duty of the arbitrator to determine a demurrer is quite settled (d).

As further illustrating the effect of a general reference of all matters in difference, see the chapters which consider the effect when a matter apparently within scope of the submistion is not treated as a matter in difference by the parties, or brought before the consideration of the arbitrator (e).

A power to award as to the costs of the reference was held Costs of to give power over the costs of the award (ƒ).

reference.

wooling, &c.

process of

Under a submission to arbitration, which referred the Wool in amount of compensation for a loss by fire in respect of "wool in the process of wooling, carding, scribbling, and spinning," but which in other parts spoke of "raw" wool, the arbitrator was held to have acted rightly in refusing to take into his consideration as a subject for which compensation could be given, a quantity of wool on the premises, which had undergone a part of the process of manufacture, but was not at the time of the fire in any of the engines (g).

as inferior in

Where on disputes as to the quality of goods delivered-in Right to one case the question only of the buyer's right to reject the reject goods contract in consequence of alleged inferiority, and in another quality. case the question only whether the goods were deficient in quality, was referred; it was held that the arbitrator was not entitled to make his award that the purchaser should take them at a reduced price ().

(b) Order XXXVI. rr. 50, 55c. (c) Allen v. Lowe, 4 Q. B. 66; Wynne v. Wynne, 4 M. & G. 253. (d) Mathew v. Davis, 1 Dowl. N. S. 679; Doe d. Simpson v. Emmerson, 9 Law Times, 199.

(e) See P. II. ch. 5, s. 4, d. 1; P. III. ch. 1, d. 3.

(f) Walker v. Brown, 51 L. J. Q. B. D. 424.

(g) Hurst, In re, 1 H. & W. 275.

(h) Sinidino v. Kitchen, 1 C. & E. 217; Green & Co. v. Balfour & Co., 63 L. T. 97; 6 Times L. R. 395 and 445.

PART II.

CH. II. S. 1.

Money laid

out on request.

All disputes.

Brokers.

Dispute

arising out of contract.

Disputes between partners.

Bill of lading and charter party.

Mining lease.

On a submission respecting moneys laid out by the plaintiff for a woman at her request before her marriage, an award directing the defendant, her husband, to pay a certain sum for moneys laid out by the plaintiff for his wife before her marriage, was held bad as not being limited to what was laid out at her request (i).

Where on an agreement for sale of locomotives the purchasers were to pay on the certificate of their own engineer that the engines were in working order, and by another clause "all disputes" were to be settled by arbitration, and the engineer refused to certify and a reference took place, an award directing the payment of the contract price was enforced ().

In a contract by brokers it was agreed that if the bulk was inferior to sample the amount of allowance, and any dispute that might arise under the contract, should be referred to arbitration, it was held by a majority of the Court of Appeal that the arbitrator exceeded his jurisdiction by awarding that there was a custom by which the brokers were relieved from liability on disclosing their principals (1).

On the reference of every dispute "arising out of the contract," the arbitrator may decide a dispute as to the construction of the contract (m).

A clause, "that any differences or disputes that may arise between the partners shall be settled by an arbitrator," does not include a dispute whether the partnership has been terminated, or whether certain shares have been bought on account of the partnership or of the defendant alone (n).

A clause in a charter party for the reference of disputes arising under it does not authorize the reference of disputes arising under the bill of lading, though the words "all other terms and conditions as per charter party" are stamped on and form part of the bill of lading (0).

On a reference of every question touching a mining "lease

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