PART II. CH, VI. S. 3. Specifying lands by metes and bounds. Awarding verdict subject to opinion of the court. Unauthorised award of a verdict bad. Not equivalent to a direction to pay. opinion that the lessor of the plaintiff had no title to close B. (q). If the arbitrator decided that the lessor of the plaintiff was entitled to part of the lands, which he set out by metes and bounds, it was better that he should have awarded the residue to the defendant, or at least to have awarded that the plaintiff had no title to it, for fear of the award not being considered final. Omitting all mention of the remainder has been held not tantamount to finding that the plaintiff had no title to it, and it was said that it was advisable, though perhaps not absolutely necessary, to set out the defendant's residue by metes or bounds, or other particular description (†). But great doubt was thrown on the above case in the Exchequer Chamber; and probably an award in ejectment that found that the plaintiff was entitled to recover a specified portion only of the lands, would have been deemed final (s). To what extent an arbitrator is bound to award on points raised in the cause, and how far in general a hypothetical or alternative finding of a verdict subject to the opinion of the court is good, when he is empowered to raise points of law for their consideration, has been treated of in a previous portion of this work (†). III. Effect of an unauthorised award of a verdict.]—Though it was in one case laid down that an unauthorised direction that a verdict should be entered for the plaintiff at a specified sum amounted to a direction that the defendant should pay that sum to the plaintiff, and as such might be enforced by attachment (u), yet on a subsequent occasion it was held not to be equivalent to an order to pay, and an attachment was refused, and the preceding case was expressly overruled, with the concurrence of the judge who decided it. (x). In an old case, referred before issue joined, it was held that no action would lie on an award containing only such an unauthorised direction to enter a verdict for a certain sum (y). (9) Doe d. Oxenden v. Cropper, 10 A. & E. 197. (r) Doe d. Madkins v. Horner, 8 A. & E. 235. (s) Harrison v. Creswick, 13 C. B. 399. (t) See P. II. ch. 5, s. 4, d. 1, p. 261, and s. 4, d. 9, p. 280. (x) Donlan v. Brett, 2 A. & E. 344. (y) Jackson v. Clarke, M'Lel. & R. 200, S. C. 13 Price, 208. The Court of Exchequer, in a later instance, refused to enforce by attachment or to set aside a similar award, inclining, however, to think an action might be supported, saying that at any rate it was not quite a clear point that the award was void (); but the Court of Queen's Bench considered the question settled by the decision in Donlan v. Brett (a), and set the award aside in more instances than one (b). The like distinction was taken more recently by the Court of Exchequer. For where on a reference, after issue joined, by judge's order, the arbitrator said, "I award that there should be a verdict for the plaintiff," that court held that an action would lie on the award, as the language was not a precise direction to enter a verdict, but was merely an expression of the arbitrator's opinion in favour of the plaintiff (c), and Martin, B., then said that Jackson v. Clarke (d) was substantially overruled in Law v. Blackburow (e). PART II. CH. VI. S. 3. In that case the Court of Common Pleas showed them- Direction to selves anxious to evade those harsh decisions which overturn for lessor of enter verdict an award upon a merely formal objection, though the inten- plaintiff. tion of the arbitrator is clear: for where an arbitrator to whom an action of ejectment was referred, without power to direct the entry of a verdict, awarded "that the verdict in the said cause shall be entered for the lessors of the plaintiff," the court supported the award, holding, with the exception of Williams, J., that they were not concluded by the former authorities, as the arbitrator's words were not a precise and formal direction to enter a verdict, as a verdict could not be entered in any case for the lessors of the plaintiff, and that therefore they were at liberty to look upon them as an intimation of his decision in favour of the lessors of the said plaintiff (ƒ). If the award contain a sufficient determination of the matters submitted, without looking to the clause directing the entry of a verdict, and that clause can be rejected without altering the sense of the remaining parts of the award, the (z) Cock v. Gent, 13 M. & W. 364; 3 D. & L. 271. (a) 2 A. & E. 344. (b) Hayward v. Phillips, 6 A. & E. 119; Hawkyard v. Stocks, 2 D. & L. 936. Ex. 350; S. C. 7 H. & N. 698. (d) M'Lel. & Y. 200. (e) 14 C. B. 77, S. C. 23 L. J. C. P. 28. (ƒ) Law v. Blackburow, 14 C. B. 77; Mays v. Cannell, 24 L. J. C. P. 41. (c) Everest v. Ritchie, 31 L. J. When direction rejected as surplusage. PART II. CH. VI. S. 3. excess of authority will not vitiate the award, but the faulty direction will be rejected as surplusage. Hence, if the award as to the cause be, that the defendant is not guilty of the grievances laid to his charge, and that a verdict be entered for the defendant, the first part is a sufficient determination of the issue, and the unauthorised direction as to the verdict is simply useless (g). SECTION IV. PART II. CH. VI. S. 4. Arbitrator finding for plaintiff should award damages. When plea immaterial. OF THE DUTY OF THE ARBITRATOR IN AWARDING DAMAGES. If the arbitrator find for the plaintiff on any portion of the statement of claim not covered by any defence, on which the issue is found for the defendant, the arbitrator must in general proceed to assess damages for the plaintiff, or the award will not be final. But if the statements of defence found for the defendant completely answer the plaintiff's claim, it is more proper not to assess any damages on the issues found for the plaintiff (); and if there be an assessment of damages in such a case, the assessment is merely surplusage, and will not affect the right to costs (i). Where a verdict for 1,000l. was taken subject to a reference, and the arbitrator directed that the verdict should be entered for the plaintiff, but assessed no damages, and the plaintiff entered up judgment for the 1,0007., the court reduced the damages to one shilling (). But where the plea, though pleaded to the whole declaration, raised an immaterial defence, so that the plaintiff would be entitled to judgment non obstante veredicto, it was the duty of the arbitrator, according to the Court of Queen's Bench, to assess damages notwithstanding the plea, and they (g) Howett v. Clements, 1 C. B. 128; Hawkyard v. Stocks, 2 D. & L. 936. (h) Warwick v. Cox, 1 D. & L. 986; Wood v. Duncan, 7 Dowl. 91. (i) Ross r. Cliffton, 2 Dowl. N. S. 983; Benett v. Coster, 1 B. & (k) Brown v. Somerset and Dorset Rail. Co., 34 L. J. Ex. 152. held that the award would be bad if he failed to do so (7). The Court of Common Pleas, however, having come to a decision that when a cause in which issues of fact only were joined was referred at Nisi Prius on the usual terms, neither the court nor the arbitrator could direct judgment to be entered non obstante veredicto, practically held that such an assessment of damages was unnecessary, and could not benefit the plaintiff (m). PART II. CH. VI. S. 4. When an action of trespass was taken down to the assizes Damages on new assignfor the trial of the issues, and also for the assessment of ment. damages on a new assignment, on which the plaintiff had signed judgment for want of a plea, the arbitrator was bound to be careful to assess damages for the plaintiff on the new assignment, however he might determine the issues. If he omitted to do so the error would have been incurable, and the award might have been set aside (n). damages on So where there were several pleas, on some of which the Contingent plaintiff had taken issue, but demurred to others, and the demurrer. cause, so far as related to the issues in fact, was referred at the trial, the arbitrator, if he found for the plaintiff, ought to have assessed contingent damages on the demurrer, though such course did not seem absolutely necessary, when he determined in the defendant's favour the issue on a plea going to the whole cause of action. In one instance, where neither party requested him to assess contingent damages, but acted as if the matter had not been submitted, the court construed the conduct of the parties to amount to a new parol submission that the arbitrator need not determine the question of contingent damages (o). all issues. It was considered a little inaccurate to assess general General damages on all the issues for the plaintiff, where one of the damages on issues found for him was an issue on a plea of set-off, but it is perfectly intelligible and valid, for an award of damages on all the issues means on all on which damages can be assessed (p). (7) Grenfell v. Edgcome, 7 Q. B. 661. (m) Toby v. Lovibond, 5 C. B. 770, S. C. 17 L. J. C. P. 201. See s. 5 of this chapter as to directing an entry of judgment non obstante veredicto. (n) Wykes v. Shipton, 8 A. & E. 246. (0) Cooper v. Langdon, 9 M. & W. 60. (p) Hobdell v. Miller, 6 Bing. N. C. 292. PART II. CH. VI. S. 4. One breach, damages on several issues. Damages not to exceed amount taken on the verdict. No limit of damages as to matters out of cause. In an action of covenant, where there was only one breach, directing a verdict to be entered for the plaintiff on each of the two issues raised by the pleas, with separate damages on each, was considered sufficiently certain as to the damages, as the verdict might be entered for the sum of the two separate amounts, but that finding an entire amount of damages on the single breach was the more correct method (2). The arbitrator cannot direct a verdict to be entered for a sum exceeding the damages taken subject to the reference. His discretion is limited by the amount of damages nominally found by the jury, as the verdict of a jury was limited by those laid in the declaration. And if he direct the entry of a verdict for a larger sum, the award seems to be bad in toto; and the courts, in one instance, decided that they would not permit a verdict to be entered for an amount reduced to the amount of the specified damages, on the ground that they had nothing to guide their discretion in cutting down the sum awarded (r). Where the cause and all matters in difference were referred, and the Nisi Prius order directed that the verdict should be entered for such sum only (if any) as the arbitrator should find to be due (not saying in the cause) from the defendant to the plaintiff, the court held that the arbitrator could not award that there was due from the defendant to the plaintiff a larger sum than the amount of the damages taken on the verdict (s). From the terms of the above submission it would seem probable that the verdict was intended to stand as a security for the amount found to be due, whether in respect of matters in the cause or out of it. Generally, however, when a cause and all matters in difference are referred at Nisi Prius, the verdict stands as a security only for the damages found due in the cause, and the damages taken on the reference only limit the amount the arbitrator can give in the cause; but there is no limit to the amount the arbitrator may award in respect of the other (9) Smith v. Festiniog Rail. Co., 4 Bing. N. C. 23. (r) Bonner v. Charlton, 5 East, 139; Prentice v. Reed, 1 Taunt. 151; Taylor v. Shuttleworth, 6 Bing. N. C. 277; Annan v. Job, 10 (8) Bonner v. Charlton, 5 East, 139. |