Though an award deciding every issue was strictly sufficient, yet as a single count in assumpsit or debt under the old forms often contained a number of independent claims, it was advisable for the arbitrator, if he found for the plaintiff on one or two only of these demands, to specify which they were, and to find against him as to the rest; for if he did not thus limit the finding the master would be obliged to allow the plaintiff his costs, applicable to every one of the separate claims included in the count, however unfounded the majority of them might be (p). The award cannot be set aside for a general finding for the plaintiff (q), but may sometimes be referred back to him to give him liberty to find separately on the separate claims (p). double plea. So with reference to the distribution of costs on a state- On one defence in a ment of defence containing many defences, the arbitrator may often with propriety find one defence proved and the others not proved (»). trator need Sometimes, by agreement of parties, the arbitrator is re- When arbilieved from the necessity of finding on each issue, although not find on the costs are to abide the event. Thus, where the arbitrator the issues. was to settle the cause and all matters in difference, and the submission contained a stipulation, that if the arbitrator should find the plaintiff not entitled to recover any debt or damages, then a verdict was to be entered for the defendant, and the arbitrator awarded that the plaintiff was not entitled to recover in the action, the court put the construction that the arbitrator was not called upon by the submission to find on each issue, but that on such a finding the parties had agreed that a verdict was to be entered for the defendant on all the issues (s). Instances were so frequently occurring of awards being held bad for the neglect of the arbitrator to decide on each issue, that it was suggested by the Court of Exchequer as advisable to introduce into the order of reference a condition that it should be sufficient for the arbitrator to award in favour of the plaintiff or defendant generally, unless either party should request him to find on some particular issue or issues (t). (p) Gore v. Baker, 4 E. & B. 470. (9) Crawshawv. York and North Midland Rail. Co., 21 L. J. Q. B. 274. (r) Reynolds v. Harris, 28 L. J. C. P. 26. (8) Waddle v. Downman, 1 D. & L. 560. 92. (t) Morgan v. Thomas, 9 Jur. Clause in relieving him. submission PART II. Pursuant to this recommendation, a clause to the above effect CH. VI. 6. 2. is very generally inserted in orders of reference. No finding on issues necessary when arbitrator to tax costs. Duty of arbitrator cause do not abide event. On a reference of a cause and all matters in difference, all costs to abide the event and to be taxed by the arbitrator, he need not decide the issues separately, or the cause separately, from the other matters in difference, or state the amount of the costs separately, but directing one party to pay the other a specified sum is a sufficient decision of all matters (x). Where on the reference of a cause the costs of the cause when costs of do not abide the event of the award, but only the costs of the reference and award abide that event, it is not necessary for the arbitrator to find on each specific issue, unless specially called upon to do so by the order of reference, for the costs of the reference and award are determined by the general event of the action. Thus where to an action of debt referred, subject to the above-mentioned provision as to costs, the general issue and a set-off were pleaded, and the arbitrator found that the plaintiff was not entitled to recover in the action, the award was held final, though he determined nothing respecting the set-off (y). Reference limited to specific matters. Where a verdict is taken subject to a reference to an arbitrator who is to award on some specified matters only, he need not find on the issues, or do more than decide on the particular questions (≈). SECTION III. PART II. CH. VI. S. 3. No implied power to direct a OF AWARDING AN ENTRY OF A VERDICT. 1. When arbitrator empowered to award a verdict.]— When a cause is referred before trial, the arbitrator has no power to direct a verdict to be entered, unless it be conferred on him by the submission in express terms (a). A submisverdict to be sion of a cause, the subject-matter thereof, the issue therein, and the costs, does not enable the arbitrator to order such entered. (x) Bradley v. Phelps, 1 Ex. 897. (y) Duckworth v. Harrison, 4 M. & W. 432; Bourke v. Lloyd, 2 Dowl. N. S. 452. (z) Sowdon v. Mills, 30 L. J. Q. B. 175. (a) Angus v. Redford, 11 M. & W. 69, S. C. 2 Dowl. N. S. 735. an entry (6). A reference of an action and all matters in difference, is equally insufficient (c). PART II. CH. VI. B. 3. the trial, but Where the reference takes place at Nisi Prius, if no Reference on verdict be taken subject to the award, the arbitrator has no no verdict power to order a verdict to be entered up, unless the sub- taken. mission give it him, not even where it directs that final judgment shall be entered for the plaintiff or defendant according to the award (d). Even a clause enabling the arbitrator to amend the record, and to direct what he shall think fit to be done by and between the parties, will not, it seems, give him the power in question (e). On a reference at Nisi Prius, however, it frequently happens Usual clause that a verdict is taken for the plaintiff at a specified amount giving power. of damages, subject to the award, and that the arbitrator is expressly empowered to direct that a verdict shall be entered for the plaintiff or the defendant, as he shall think proper. Though no verdict be taken, but the cause be referred before trial, the judge's order or the agreement referring it often contains a similar provision, and confers equal authority on the arbitrator (f). If a verdict be taken on the trial for a specified amount Verdict taken, with power to of damages, subject to a reference, and the arbitrator has settle the power to settle the cause, but no express authority be given cause. him to alter the verdict, he is nevertheless at liberty to direct the verdict to be entered for the plaintiff at any amount of damages not exceeding the specified amount (g). the issues. So it was decided that an arbitrator empowered by order of Power over Nisi Prius to certify for whom and for what amount, if any, a verdict should be entered in the cause referred, had the same authority as a jury of directing a verdict to be entered on the several issues, and ought to do so, and was not bound to order a general verdict (h). Though no order of Nisi Prius be drawn up, or rule of court obtained on the verdict taken subject to the reference, the parol consent of the parties is a (b) Hutchinson v. Blackwell, 8 Bing. 331. (c) Eardley v. Steer, 4 Dowl. 423. (d) Harding v. Forshaw, 1 M. & W. 415. (e) Hayward v. Phillips, 6 A. & E. 119. (f) Hawkins v. Benton, 2 D. & L. 465, S. C. 8 Q. B. 479; Angus v. Redford, 11 M. & W. 69, S. C. 2 Dowl. N. S. 735. (g) Taylor v. Shuttleworth, 6 Bing. N. C. 277. (h) Woof v. Hooper, 4 Bing. N. C. 449; Williams v. Mousdale, 7 M. & W. 134. PART II. CH. VI. S. 3. Verdict taken on one issue only. Power in one cause gives no in another. sufficient authority for the arbitrator to certify that a verdict should be entered, and a verdict entered pursuant to his certificate is good (¿). If there be a verdict taken on one issue, with specified damages, subject to the reference, and the cause and all matters in difference be referred, it is an excess of authority for the arbitrator to direct a verdict to be entered for the plaintiff for a sum composed of the amount of the specified damages, and the damages which he assesses to be due to the plaintiff on the other issues in the cause. Nor can such a direction be construed as an order to pay the money, but the award is bad in toto (k). Where at Nisi Prius a verdict was taken subject to a referimplied power ence, and the arbitrator was empowered to direct a verdict to be entered for the plaintiff or the defendant, as he might think proper, and the cause, and also another cause between the same parties, and all matters of difference, were referred, the arbitrator was not held authorized to direct the entry of a verdict in the second cause (7). Substantial decision sufficient direction. II. Duty of the arbitrator in awarding a verdict.]—A strictly formal exercise of the power to direct the entry of a verdict will not be necessary to authorize the entry; though of course the clearer the language used the better. A substantial decision in favour of either party will be sufficient. For instance, if the arbitrator by his certificate direct that a verdict be entered for the plaintiff on the first issue, and on the other, which goes to the whole cause of action, for the defendant, it is not necessary that the arbitrator should expressly direct that the verdict for the agreed amount of damages should be vacated, as the direction to enter a verdict for the defendant on the second issue is inconsistent with, and consequently supersedes, the verdict taken at the trial (m). Where in an action of assumpsit, to which the defendant pleaded non assumpsit and set-off, and the arbitrator awarded that the plaintiff was entitled to 90%. (i) Tomes v. Hawkes, 10 A. & E. 32. (k) Hayward v. Phillips, 6 A. & E. 119. (1) Howett v. Clements, 1 C. B. 128. (m) Nalder v. Batts, 1 D. & L. 700. in respect of the causes of action in the declaration, and that the defendant was entitled to a set-off of 357., this was held sufficient to justify the plaintiff entering a verdict for the 55., the balance, although the arbitrator had not in terms vacated the verdict or reduced the damages, or ascertained any balance as being due from the defendant to the plaintiff (n). So also the certificate of a referee respecting an action for work done, "I hereby certify that 747. 78. is a fair and proper sum to be paid by the defendant to the plaintiff" (the defendant having pleaded payment before action of 307., and payment into court of the further sum of 457., and the plaintiff having replied damages ultra), was held by the court to amount to a verdict for the defendant; as they construed the certificate to mean that the 747. 78. comprehended all that was due from the defendant to the plaintiff (0). PART II. CH. VI. 8. 3. costs. A verdict is often taken for the damages named in the Awarding as declaration, costs 40s., subject to the award. If the arbitrator to the 40s. think the plaintiff entitled to only nominal damages, it is advisable for him to get rid of the 40s. costs to avoid questions. Directing "the amount found by the jury" to be reduced to one farthing, is better perhaps than directing the damages" only to be reduced (p). 66 verdict in ejectment. On the reference of an action of ejectment, if the arbi- Awarding trator were of opinion that the lessor of the plaintiff was entitled to recover only a portion of the land which he claimed, he should have taken care to confine his award in the plaintiff's favour to that portion, for if under a power to direct a verdict to be entered in an ejectment brought to recover closes A. and B., he awarded generally that a verdict be entered for the plaintiff, the postea could not be amended by the court SO as to confine the verdict to close A.; although it appeared on the face of the award that the arbitrator had decided in the defendant's favour a plea setting up the defendant's title to close B., in an action of trespass brought for that close between the same parties, and referred with the action of ejectment, and that the arbitrator, in a written paper delivered with the award, had stated his (n) Platt v. Hall, 2 M. & W. 391. (0) Salter v. Yeates, 2 M. & W. R. 67, S. C. 5 Dowl. 291. P. 167. A A |