has been referred any cause or matter or question therein, as well as to referees: Order XXXVI. r. 55 (c). The judgment on a special case stated by an arbitrator in an action is for the purposes of appeal an interlocutory order, if after judgment either way the case must go back to the arbitrator, but a final order, if the judgment one way would be decisive (g). PART II. CH. V. S. 8. Appeal. special case. Judgment on It would seem that where the costs of the award are not Costs. submitted to the arbitrator the judge who hears the case has power to order that the costs of the hearing shall follow the event (h). If a party did not during the reference apply for a case, the courts will not refer back the award for the arbitrator to state a case afterwards, on his setting forth in a letter the wrong principles of law on which he had acted (i). under It was held in the Court of Appeal (k), overruling previous Arbitrators cases (/), that arbitrators under the Lands Clauses Consolida- Lands Clauses tion Act, 1845, might state a special case; for as the appoint- Consolidation ment of an arbitrator is by that statute to be deemed a submission, the reference is a reference by consent. Act. This does not authorise the Local Government Board, when Local Governappointed by statute to decide disputes between local autho- ment Board. rities, to state a case, as that board are made judges not arbi trators by consent (m). Societies Act. The court can compel arbitrators under the Building Building Societies Act, 1874 (n), to state a case, because the provisions of that act are not so inconsistent with the Arbitration Act, 1889, that the Arbitration Act does not apply (see sect. 24). The inconsistency must be such that the old act would not work if the new act were applied (0). (g) Collins v. Paddington Vestry, 5 Q. B. D. 368; Shubrook v. Tufnell, 46 L. T. N. S. 749, C. A. (h) Portishead W. Co. v. Bristol and Portishead Co., W. N. (1887) 75. See now, too, the Supreme Court of Judicature Act, 1890 (52 & 53 Vict. c. 44), s. 5, giving enlarged powers to the court or judge over costs of "all proceedings in the Supreme Court." (i) The London Dock Co. v. St. Paul's, Shadwell, 32 L. J. Q. B. 30. (k) Rhodes v. Airedale Drainage Commissioners, 1 C. P. D. 402; (1) Rhodes v. Airedale Drainage (m) Bexley v. West Kent M. (0) Knight v. Tabernacle Build- PART II. CH. V. S. 8. Appeal from decision on special case. When compulsory to state case. When arbitrator at liberty. Arbitration Power as to And though error would not lie to review the judgment of the court on a special case stated by an arbitrator under the Common Law Procedure Act, 1854 (0), the effect of the subsequent Judicature Acts, it seems, was to give a right of appeal (p). An appeal lies from a decision given by the Queen's Bench Division on a case stated by an umpire under the Lands Clauses Acts (q). VI. Duty of the arbitrator when empowered to raise a point of law.]—If the terms of the submission be compulsory that the arbitrator shall state a case at the request of the parties, it is the duty of the arbitrator to set forth fully in his award all such facts as will raise all the questions of law on which the decision of the courts is desired, and it seems that the award will generally be bad if he fail to do so (r). To prevent any mistake, it is advisable for him to call upon the parties to furnish him with a written statement of the questions of law they require to be raised. But if by the terms of the order of reference the arbitrator "be at liberty to raise any point for the opinion of the court at the request of either of the parties," he is not bound to do so unless he think fit. The clause in the Common Law Procedure Act was also an enabling, not a compulsory one (s). Under the Arbitration Act, 1889, the parties do not seem to have in general the power of compelling the statement of a case. The court or judge, however, may direct it to be done (see sects. 7 and 19) (f). Where the arbitrator has the same power as a judge at evidence and Nisi Prius to decide as to the admissibility of evidence, and points reserved as a to reserve points of law for the decision of the court, he takes a correct view of his duty if he refuse to pledge himself beforehand to raise on the face of his award all the objections a party may bring forward, retaining to himself a judge at Nisi Prius. discretion on the subject ("). However, as the meaning of the above provision in the submission is, that the award is to be made subject to the exception as to evidence and the points reserved, according to the analogy of Nisi Prius those points which the award reserves the court will decide; and if any objections to the evidence be omitted which the party may think ought to have appeared, he will be free to avail himself of the stipulation in the order of reference, and call upon the court, if it sustain the objection, to set aside the verdict in consequence ("). PART II. CH. V. S. 8. should set When the arbitrator is at liberty, if he shall think fit, to Arbitrator report specially to the court, he does not duly exercise his forth facts, power, if he set out in his award a long statement of the not evidence. evidence, leaving the court to draw the inferences of fact. It is his duty to draw the necessary inferences from the facts (r). should find positively. It being a question in a cause whether the defendant, a Arbitrator pawnbroker, had made proper inquiries of a person coming to pledge goods, an arbitrator, to whom the cause was referred to state a case, stated that he was unable to say whether or not the defendant had made the proper inquiries; the court compelled the defendant to agree to another reference to the arbitrator, in order that the latter should find positively in the affirmative or in the negative (y). In one case, where there was a provision "that the arbi- Stating abstract legal trator shall state on his award any point or points of law propositions. raised by either party," the arbitrator in his award set forth in terms certain abstract legal propositions contended for by the defendant as defeating the plaintiff's right to recover, and certified that he had overruled them, as upon consideration of the evidence it appeared to him none of the objections ought to prevail. The court refused to refer the award back to the arbitrator to set forth the facts on which the questions of law arose, or to set the award aside, the arbitrator having decided rightly the broad propositions of law set out in his award (2). If it clearly appear from reading an award that an arbi- Point (u) Scott v. Van Sandau, 1 Q. B. 102. (x) Jephson v. Howkins, 2 M. & G. 366. R. (y) Ferguson v. Norman, 4 Bing. N. C. 52. (z) Jay v. Byles, 3 M. & Sc. 86. intended to PART II. CH. V. S. 8. trator who was empowered to raise points intended to leave a particular question of law open, the court will consider it, be left open although in terms the arbitrator may in one part of his award have determined it (a). for the court. Providing for the events of the court's decision. Raising point as to validity, of custom and obstante veredicto. It does not seem necessary for an arbitrator, when empowered to raise questions for the court, to make an adjudication himself on the points which he submits for the opinion of the court; and it is apprehended, that on a reference at Nisi Prius it is sufficient for him, after stating the facts of the case in his award, and either leaving it generally for the court to decide on them whether the action or defence can be maintained, or setting forth special questions only for their determination, to conclude by awarding that if the court shall be of opinion, on the facts stated or the questions raised, as the case may be, that the plaintiff is entitled to recover, then that the verdict which has been taken for the plaintiff do stand, with such damages as the arbitrator may think proper; but if the court shall be of opinion that the action is not maintainable, or that such and such questions raised ought to be decided in the defendant's favour, then that the verdict already entered for the plaintiff be set aside, and instead thereof a verdict be entered for the defendant (b). This form of awarding respecting the action is merely given to illustrate the principle involved, and cannot in itself be applicable to the infinite variety of cases that may occur; for of course the arbitrator ought to provide for the effect of every possible decision of the court on the points submitted, so far as they may affect the various issues in the cause, the amount of damages recoverable, or other rights and liabilities of the parties regulated by the provisions of the award. In one instance, where an arbitrator was empowered to direct that a nonsuit or a verdict should be entered for the judgment non plaintiff or the defendant, as he should think proper, and was, at the request of either party, to state any point of law upon the face of his award for the opinion of the court, it was held not incumbent on the arbitrator to decide finally as to the amount of damages to be recovered, and to direct how the judgment should be entered up, but that having by his award disposed of all the issues joined on the record, and (a) Sherry v. Oke, 3 Dowl. 349. W. 244; The Grocers' Co. v. assessed damages separately in respect of each grievance in the declaration, and having referred to the court, at the request of the defendant, by a sufficient statement of facts, the question as to the right of the plaintiff to recover damages in respect of some of the grievances stated in the declaration, and, at the request of the plaintiff, the question as to the validity of a custom set out in a plea, and the allegations contained in it, and as to the plaintiff's right to judgment non obstante veredicto on the same plea, should the issue thereon be found for the defendant, he had properly discharged his duty, and was not bound to have definitely determined as to the validity of the custom (c). PART II. CH. V. S. 8. Sometimes the arbitrator first finds the various issues in Deciding case the cause referred himself, subject to the opinion of the court, raising point first, then and then, after setting forth the whole facts, states particular for the court. questions on which he requires the decision of the court, and concludes with awarding that if the court shall decide a particular question one way, then he awards in one way; if in another, then he awards in another (d). should pro It is advisable for the arbitrator, though he determine the Arbitrator matter himself, to make a provision for the event of the court vide for the differing from him in opinion, for if the arbitrator find for event of court differing from the plaintiff in the action referred, and then state facts for him. the opinion of the court which show that the plaintiff ought to have been nonsuited, the court cannot direct a nonsuit to be entered, but can only set the award aside (e), and thus all the litigation becomes fruitless; whereas, if he direct that in case the court differs from him the verdict shall be entered for the defendant, the decision of the court in favour of the latter will, according to many cases, entitle him to have the verdict entered for him (f). Doubts, however, as to the validity and utility of an hypo- Awarding hypothetithetical finding were in one case thrown out. The arbitrator cally. had found positively for the complainant, and then stating facts, awarded that if the court should be of such an opinion, (c) Bradbee v. Christ's Hospital, 4 M. & G. 714. (d) Waller v. Lacy, 1 M. & G. 54; Arnold v. The Mayor of Poole, 4 M. & G. 860. (e) Peters v. Anderson, 1 Marsh. 238. (f) France v. White, 8 Dowl. 53; Waller v. Lacy, 1 M. & G. 54; Arnold v. Mayor of Poole, 4 M. & G. 860; Webb, In re, 8 Taunt. 443; Bradbee v. Christ's Hospital, 4 M. & G. 714. |