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PART II.

CH. V. S. 9.

Old rule, something

to each.

award is concerned, is the ground on which the arbitrator has proceeded in making some equivalent provision affecting the other party.

In many of the old cases, the courts held that awards well awarded were to be sustained, whatever portions were struck out as improperly awarded, provided in the end there remained something awarded on each side, so as in a technical manner to satisfy the rule respecting mutuality, although the award so modified amounted to a very different measure of reciprocity from that which the arbitrator intended (b).

Bond with sureties.

Modern rule, award bad if reciprocity altered.

Thus where the arbitrator ordered the defendant to execute a bond for the payment of money to the plaintiff, with two sureties, and that thereupon the plaintiff should execute a release, the court held the direction as to the sureties void, but good as to the defendant, and that the plaintiff would be bound to execute a release as soon as the defendant should deliver a bond signed by himself alone (c). The effect of the above decision, it will be seen, was to compel the plaintiff to accept a slighter security than the arbitrator designed, as an equivalent for his executing the release.

A rule, however, more consonant to the principles of justice has long been adopted; for if by the nullity of the award in any part, one of the parties cannot have the benefit intended him as a recompense or consideration for that which he is to do to the other, the award will usually be treated as void in the whole (d).

Thus an award that one should pay the money due for task-work (without saying what sum), and that the other should pay 257., and that both should give general releases, being uncertain and void as to the task-work, is void as to the whole, although mutual releases were awarded; for the payment for the task-work, as well as the general release, was intended as a recompense for the 25. on the other

(b) Joyce v. Haines, Hard. 399 ; Harris v. Knipe, 1 Lev. 58; Bargrave v. Atkins, 3 Lev. 413; Lindsey v. Aston, 2 Bulst. 38; Lee v. Elkins, 12 Mod. 585; Osborn's case, 10 Rep. 129 b; Bedell v. Moor, cited 10 Rep. 131 b.

(c) Thursby v. Helbert, Carth. 159, S. C. 1 Show. 82, 3 Mod. 272.

See Norwich v. Norwich, 3 Leon.
62; Furlong v. Thornigold, 12
Mod. 533; Cooke v. Whorwood, 2
Saund. 337.

(d) Bac. Ab. Arb. E. 3; Rolle Ab. Arb. K. 8, p. 253; Com. Dig. Arb. E. 14; Winch v. Saunders, Cro. Jac. 584. See notes to Pope v. Brett, 2 Saund. 293 b.

PART II.

CH. V. S. 9.

side (e). So also an award that the defendant should have certain trees, and that he should give security to the plaintiff for the payment of a specified sum, is void; the latter direction is bad, for not stating with certainty what security, and, one part being void, the other part must be void too, or else there would be an advantage to one party only (ƒ). So where the payment of a sum of money was directed to be made to A., on A., his wife and son, conveying an estate, as the wife and son were not parties to the submission, the direction as to them was void, and therefore the whole award was void, since the party could not enforce the intended equivalent for which his money was to be paid (g). When Costs affected the costs of the cause were to abide the event, and the by void part. arbitrator without authority directed a verdict for the defendant, the court set the whole award aside; for if the direction as to the verdict were struck out, there would be no determination of the cause for the defendant so as to entitle him to his costs (h).

If the decision of the arbitrator beyond his powers has affected his determination as to the matters within his jurisdiction, the whole award should be set aside (i).

(e) Pope v. Brett, 2 Saund. 293b; Com. Dig. Arb. E. 14.

(f) Bac. Ab. Arb. E. 3; Thinne v. Rigby, Cro. Jac. 314.

(g) Barney v. Fairchild, Rolle

Ab. Arb. N. 9, p. 259.

(h) Hawkyard v. Stocks, 2 D. & L. 936.

(i) Marshall v. Dresser, 3 Q. B. 878.

PART II.

CH. VI.

Object and contents of the sixth

chapter.

CHAPTER VI.

THE DUTY OF THE ARBITRATOR IN AWARDING ON
AN ACTION REFERRED.

A VERY important branch of the arbitrator's duty consists in his determining by his award actions at law and equity. As these are referred at different stages, and subject to varying conditions, what is a sufficient determination under one submission will often be inadequate under another.

In this chapter, therefore, it is attempted to collect, how the arbitrator may best award on an action according to the particular case referred. The first section points out shortly the modes of disposing of an action without deciding it, when the submission (which is rarely the case) permits such a course. The second section shows the duty of deciding the action in favour of the party entitled to succeed, and of awarding on every issue joined in the cause, when the costs of the cause abide the event of the award. In the third section an investigation is made of the power of the arbitrator to direct a verdict to be entered in the action, of the manner in which, when empowered, he should perform his duty in this respect, and of the consequences of directing such an entry without authority. The duty of the arbitrator in awarding damages is laid down in section four; while section five examines, under what circumstances the arbitrator may direct judgment to be entered or arrested, or decide on the plaintiff's right to judgment non obstante veredicto. The sixth section treats of the determination of an action in the Chancery Division. The duty of an official or special referee with regard to an action is discussed in the seventh section.

SECTION I.

OF DISPOSING OF THE CAUSE WITHOUT DECIDING IT.

PART II. CH. VI. 8. 1.

When the terms of the submission are such, that the award will be final and certain, without showing in whose favour the cause referred is decided (though that is rarely the case, and never when costs abide the event of the cause, and are to be taxed by the officer of the court), it is sufficient. sufficient, if the arbitrator somehow dispose of the cause

absolutely.

When disposing of cause without deciding it

It has been decided by the courts of common law, that an Awarding award that all suits now pending between the parties shall suits to cease. cease, is a final determination of the suits, for the meaning of such an award is, not that the party shall be non-suited or give over and begin again, but that the suit should cease absolutely for ever, so that the right itself is gone because the remedy is quite taken away, for if the suit fail the party has no remedy to come at his right (a). In one instance, however, in an old case, a direction that all manner of proceedings, if any, depending at law should be no further prosecuted, was held not to be final, or to prevent the plaintiff from bringing a suit, if he had not brought one, or if he had, from discontinuing that which he had brought, and bringing a new one (b).

An award of a non-suit used not to be a good determina- Awarding tion of the cause, for it was not final (c).

nonsuit.

An award that each party should pay his costs of certain Directing a actions, and that the actions be discontinued, has been stet processus. held final and good, and in effect an award of a stet

processus (d).

action.

After an arbitrator appointed to state a special case has Discontinuing found nearly all the facts in favour of the defendant, the plaintiff will not be allowed to discontinue the action (e).

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SECTION II.

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OF AWARDING ON THE CAUSE WHEN COSTS ABIDE THE

EVENT.

1. The arbitrator must decide the cause when costs abide the event.]-The common provision that the costs of the cause are to abide the event, imposes on the arbitrator the necessity of peculiar strictness in properly deciding the cause in his award.

If by the submission the costs of the cause are to abide the event as to the cause, the arbitrator must determine the cause in favour of one party or the other, and not merely dispose of it so that he will not be justified in awarding a stet processus, because by so doing he would be exercising a discretion as to the costs, over which he has no control: for the awarding a stet processus prevents either party having the costs, as they are to abide the legal event, and there is no legal event of the cause on which they can be taxed when there is no decision in favour of either party (f).

If, however, the arbitrator decide all the issues, and then direct that no further proceedings shall be taken in the action, though this award of a stet processus be void as an excess of authority, yet it will not vitiate the award, as, there being a decision on the issues, there is a legal event on which the officer of the court can tax the costs (g). So on the reference of an action of trover to which the defendant had pleaded not guilty and not possessed, where the costs were to abide the event, and the arbitrator awarded that the cause should cease and be no further prosecuted, and that the defendant should pay a certain sum to the plaintiff, Erle, J., held that the event was sufficiently determined (h).

Merely directing the action to cease, either wholly or partially, is insufficient. Thus, where the arbitrator found

(f) Hunt v. Hunt, 5 Dowl. 442; Norris v. Daniel, 10 Bing. 507; Leeming & Fearnley, In re, 5 B. & Ad. 403.

(g) Ward v. Hall, 9 Dowl. 610. (h) Hobson v. Stewart, 16 L. J. Q. B. 145, S. C., 4 D. & L. 589.

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