PART II. CH. V. S. 8. Paper delivered with verdict. before him, saying, that if the arbitrator had made a mistake they could not rectify it (f). So also in the Court of Queen's Bench, where an ejectment award to limit brought to recover two closes was referred with an action of trespass, and the arbitrator ordered a general verdict for the plaintiff in the ejectment, the court held that they could not amend the postea in the ejectment by confining it to one of the two closes, although it appeared by a paper which the arbitrator delivered with his award, stating his reasons, that he considered the plaintiff was entitled to one close only, and though he awarded in defendant's favour on a plea in the action of trespass, justifying by reason of the defendant's title to the other close (g). Letter of umpire. Inquiring grounds of damages. And more recently the Court of Common Pleas refused to notice a letter of an umpire accompanying his award, in which he stated his opinion that the plaintiff ought to have had his costs, but that he had not awarded any costs to the plaintiff, as he, the umpire, had no power to do so, and that he would have awarded them to the plaintiff had he possessed the power (h). III. Inquiry by the court of the arbitrator's grounds of award.]—Under peculiar circumstances, when the parties do not object, the court will inquire of the arbitrator upon what grounds he has made his award. It used to be said that the inquiry would not be made without such consent (i). Where the plaintiff's attorney obtained an order of Nisi Prius referring the cause only, and served it on the arbitrator, and the defendant's attorney also obtained from the associate an order not strictly a duplicate, since it referred the cause and all matters in difference, and the arbitrator, among other things, directed the defendant to pay the plaintiff a specified sum, the court ordered a reference to the associate to ascertain which of the two orders was in accordance with his minutes of the agreement made at the trial, and if the associate reported in favour of the defendant's order, then they (f) Brown v. Nelson, 13 M. & W. 397. (g) Doe d. Oxenden v. Cropper, 10 A. & E. 197. (h) Leggo v. Young, 16 C. B. 626, S. C. 24 L. J. C. P. 200. (i) Brown v. The Croydon Canal Co., 9 A. & E. 522. directed a reference to the arbitrator, requesting him to state upon what ground he gave the damages (). PART II. CH. V. S. 8. matters So in a later case in the Queen's Bench, where the arbi- As to what trator was to award compensation to the prosecutor of an awarded on. indictment for conspiracy, and the arbitrator stated in his award that he had not awarded anything in respect of damages to the prosecutor accruing between the time of filing the indictment and the reference, and it was proved that he had rejected evidence of damages accruing in the interval, the court directed an inquiry to be made of the arbitrator, whether he had rejected evidence of damages arising after the indictment filed from the old conspiracy, or merely evidence of damages from a new conspiracy subsequent to the filing, being of opinion that under the submission. the prosecutor was entitled to compensation beyond the time of filing the indictment, if the injury were the result of the original conspiracy (1). On an application made to enter a suggestion to deprive a Inquiry in plaintiff of his costs under the London Courts of Requests open court. Act, the arbitrator having awarded less than 251., part of the plaintiff's demand being for rent, and actions for rent being excepted from the operation of the statute, the affidavits not showing whether the plaintiff had been allowed anything for rent, it was agreed to apply for information to the arbitrator, who happened to be in court, and the arbitrator stating that he had made an allowance for rent, the court discharged the rule (m). In an old case in Chancery, on an inquiry whether the court ought to decree an award, the Master of the Rolls was on appeal held justified in ordering the arbitrators to certify to the court whether they had considered certain particulars which were in issue in the cause, but which the party objecting to the award asserted had not been considered (n). In another instance in Chancery, where the court, for its own satisfaction, wished to inquire of the arbitrators respecting the course of business between the parties, it declined to make any order of reference to the arbitrators without consent, (k) Alder v. Savill, 5 Taunt. 453. (1) R. v. Brewer, Q. B., June 11, 1845. (m) Holden v. Newman, 13 East, 160. (n) Squib v. Bolton, Cas. in Chanc. 186. PART II. CH. V. S. 8. Award stating grounds of decision, whether court will review them. Court not examine and the plaintiff refusing to consent, no order was made. In consequence, however, of what fell from the court, the arbitrators made a certificate, in which, instead of giving a short answer to the points on which the court wanted information, they went into a long history of their conduct, on which account the court refused to read the certificate (0). But Giffard, V.-C., more recently held that on a motion to set aside an award an arbitrator may be examined as a witness on a question of fraud, or to show that he has made a mistake in point of the subject-matter on which he ought to have awarded, or a mistake in point of legal principle going directly to the basis on which the award is founded (p). IV. When the award sets forth the grounds of decision.]-In other sections of this chapter it is shown that the courts will invariably take notice of errors on the face of the award, if they be imperfections in the mode of deciding (9), or unwarranted assumptions of authority by the arbitrator (»); but when the decision is one that complies with all the rules previously laid down for the framing a valid award, and is confined strictly to matters within the arbitrator's jurisdiction, it is not quite clear how far the courts will annul the decision, when it is manifest from statements on the face of the award that the arbitrator has mistaken the law. In the older cases the courts seem generally to have considered the statements and reasons assigned in the award as the ground of decision, and have set aside the award when the arbitrator has proceeded on principles contrary to law (s). Possibly, however, in many cases where the report does not give the submission, the arbitrator may have been authorised to state a case for the decision of the court. The Court of Queen's Bench, however, more recently rereasons unless fused to consider the validity of the legal principles on which (0) Morgan v. Mather, 2 Ves. Jr. 15. See Dobson v. Groves, 6 Q. B. 637, 643. (p) Rhys v. Dare Valley Rail. (g) Ss. 3, 4, 5, 6, 7. (s) Pratt v. Hillman, 4 B. & C. 269; Sharman v. Bell, 5 M. & S. 504; Williams v. Jones, 5 M. & R. 3; Wood v. Hotham, 5 M. & W. 674; Ames v. Milward, 8 Taunt. 637; Gaby v. Wilts. Canal Co., 3 M. & S. 580; Kent v. Elstob, 3 East, 18. See also Fuller v. Fenwick, 3 C. B. 705; Toby v. Lovibond, 17 L. J. C. P. 201. arbitrators had proceeded, where they were not authorised to submit a point of law for their review (t). PART II. CH. V. S. 8. arbitrator empowered to examine If the arbitrator, not being empowered to state facts for the purpose of raising any point of law for the decision of the raise point. court, set out in his award a statement of facts on which he Court not professed to ground his decision, and those facts apparently sufficiency of did not warrant the conclusion at which he ultimately arrived, facts stated. or the reasons he assigned were unsatisfactory, the court would in general decline to draw any conclusion themselves from them so as to impeach the award, and would support it as valid, provided it contained a positive definite adjudication on the matters in difference (u); and according to one case, provided also there were any evidence which a judge would have been justified in leaving to a jury (x). They would refuse to interfere, even if their opinion were invited (y). statement of If an arbitrator, to settle the accounts pending between Unnecessary C. and L., direct L. to pay C. a certain sum, his stating in the facts. award that he finds that no partnership existed between L. and C. is not an excess of authority. It was simply unnecessary for him to make the statement, though the fact be the basis on which he has taken the account (≈). presume facts In many cases the court will not presume that there were Court not no other facts to warrant the award than those recited in it; stated, only the arbitrator may have a particular reason for stating certain grounds. facts, as, for instance, to clear the character of a party from an imputation (a). without If, without special authority, the arbitrator, before the Stating facts Common Law Procedure Act, 1854, merely found certain positive facts, and, instead of finally adjudicating on the points in finding formerly bad. difference, left the law to be applied by the court, the award would not have been final. For instance, where after stating the facts the award proceeded, "If on these facts the court be of opinion that the plaintiff is entitled, then I award in favour (t) Wright and Cromford Canal Co., In re, 1 Q. B. 98. (u) Archer v. Owen, 9 Dowl. 341. (x) Barrett v. Wilson, 1 C. M. & R. 586, S. C. 3 Dowl. 220; Archer v. Owen, 9 Dowl. 341. (y) Barton v. Ransom, 3 M. & W. 322; Wright v. Cromford Canal Co., 1 Q. B. 98; Bradbee (z) Harrison v. Lay, 13 C. B. (a) Lancaster v. Hemington, 4 A. & E. 345; Teale v. Younge, M'Lel. & Y. 497. PART II. CH. V. S. 8. Arbitration Act, 1889, case. of the plaintiff; but if the court think the defendant entitled, then I award in favour of the defendant;" such an hypothetical finding would have been insufficient (b). v. Stating case under the Arbitration Act, 1889.]—By the stating special Arbitration Act, 1889 (c), s. 19, "Any referee, arbitrator, or umpire may, at any stage of the proceedings under a reference, and shall, if so directed by the court or a judge, state in the form of a special case for the opinion of the court any question of law arising in the course of the reference." And by s. 7 (b), the arbitrators or umpire, on a reference by consent out of court, shall, unless the submission expresses a contrary intention, have power "to state an award as to the whole or part thereof in the form of a special case for the opinion of the court." Referee under Arbitrator. It was not compulsory on the arbitrator on the demand of a party to state a case under the corresponding section (s. 5) of the Common Law Procedure Act, 1854 (d). By Order XXXVI. r. 52 (1883), "The referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit any question arising therein for the decision of the court, or state any facts specially, with power to the court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the court may direct; and the court shall have power to require any explanation or reasons from the referee (e), and to remit the cause or matter, or any part thereof, for re-trial or further consideration to the same or any other referee; or the court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence, as the court may direct." Under this rule a special referee has been appointed to settle a scheme for reducing the contracts of an insurance company (f). The rule 52 now applies to arbitrators to whom (b) Wright and Cromford Canal (c) 52 & 53 Vict. c. 49. 10 C. B. N. S. 61; Holloway v. Francis, 9 C. B. N. S. 559. (e) See Rust v. Victoria Graving Dock Co., 36 Ch. D. 777. (f) Great Britain Mutual Life Assurance Society, In re, 19 Ch. D. 39. |