matters in difference (t). The arbitrator, therefore, should assess the damages in the cause separately from those out of it, and take care not to exceed the assigned limit in respect of the former (u). PART II. CH. VI. 8. 4. It seems, also, that the amount of damages the arbitrator Limiting might award was still further limited by the sum claimed in damages by plaintiff's the plaintiff's particulars of demand, if the defendant brought particulars. the particulars before the arbitrator's notice (x). Where it was agreed by the order of reference, that in case the arbitrator should give damages to the plaintiff, the party against whom the action was really brought, though he was not the defendant on the record, should be allowed to retain a certain sum, and the plaintiff should be paid only the balance; and the award directed that the verdict should be altered to a sum exceeding the amount of the damages taken by consent, but less than that amount when a deduction for the sum to be retained was made; the court gave their opinion that the judgment which had been entered for the sum awarded, pursuant to the verdict, should be reduced to the sum originally taken by consent, and that the plaintiff should be entitled to sue out execution for the real balance. awarded due to him (y). In the above case, as the sub- Motion to mission empowered the arbitrator to settle all matters in damages. difference between the parties, and to determine what he should think fit to be done by either of them respecting the matters in dispute, Mansfield C.J., threw out a suggestion that the arbitrator might have directed that an application should be made to the court to enlarge the verdict to a greater amount of damages, and that the defendant should consent to the enlargement (z). increase Where an action for damages generally was brought on an Stipulated agreement, which provided that in case of breach the sum of debt as damages. 1007. shall be recovered as a stipulated debt binding on each party as to the amount, and not as a penalty or in the nature of a penalty, and the arbitrator awarded a less amount to the plaintiff, it was held that the award should not be set aside, (t) Pearse v. Cameron, 1 M. & S. 675. (u) Taylor v. Shuttleworth, 6 Bing. N. C. 277; Tayler v. Marling, 2 M. & G. 55. (x) Kendrick v. Phillips, 7 M. & W. 415. (y) Prentice v. Reed, 1 Taunt. 151. (z) Prentice v. Reed, 1 Taunt. PART II. CH. VI. S. 4. Amount not specified in at least unless the clause was pointed out to the arbitrator's attention, and he was required to act upon it (a). In an action of debt on a money bond, to which the debt on bond. defendant pleaded payment by a co-obligor, the arbitrator directed a verdict to be entered for the plaintiff generally, not mentioning any amount. It was objected to the award that the arbitrator ought to have directed for what sum the verdict should have been entered and execution taken out, but the court held the award sufficient, as it did not appear that there was any question how much was due on the bond, and drew a distinction between actions of assumpsit and actions of debt on bonds (). The principle of this decision seems capable of a very general application. Fixing day of payment. Awarding and party added. It seems very questionable whether the arbitrator may appoint any particular day or place for the payment of the damages for which the verdict is to be entered, though when the submission clothed him with the powers of a judge of Nisi Prius, he might award speedy execution; but merely fixing a day for the payment earlier than that on which the plaintiff would have been enabled to recover the same in due course of law, does not amount to an award of speedy execution (c). Where a cause was referred by a judge's order with consent joint damages of the parties and of one Cole, and the arbitrator was emto plaintiff powered to direct for whom and for what sum the verdict should be finally entered, and to settle all matters in difference between the parties to the action and between the defendants and Cole, and to determine what he should think fit to be done by either party, and the arbitrator awarded that all further proceedings in the action should cease, that the plaintiff had good cause of action against the defendants in the cause, and was entitled to a verdict therein; and then awarded certain damages "to be paid by the defendants to the plaintiff and Cole, who consented to become a party in the cause;" on an objection being made that under this submission the arbitrator was not entitled to treat Cole as a plaintiff and award damages to him and the original plaintiff jointly, the court refused to grant a rule to order the amount (a) Pinkerton v. Caslon, 2 B. & A. 704. (b) Cayme v. Watts, 3 D. & R. 224. (c) Rees v. Waters, 16 M. & W. 263, S. C. 4 D. & L. 567. to be paid, considering the sufficiency of the award doubtful (d); but an action of debt being afterwards brought on the award by Cole and the plaintiff jointly, the court on demurrer sustained the award as valid, Patteson, J., saying, "It cannot be said the arbitrator has not determined the action, as he gives a verdict for the plaintiff with 40s. damages. He might afterwards say that Cole should have a joint interest in those damages" (e). PART II. CH. VI. S. 4. damages in ejectment. Where all matters in difference in an action of ejectment Special were, after issue joined, referred by a judge's order, which provided "that the costs of the suit, the reference, and award, were to abide the event of the award; that if the award should be in favour of the plaintiff he should be at liberty to sign judgment against the defendants in the same manner as if the cause had been tried at Nisi Prius, and to issue a writ or writs of possession thereon, and also to proceed in the usual way for costs on such judgment; and that if the award should be in favour of the defendants they should be at liberty to sign judgment as if the cause had been tried at Nisi Prius;" Coleridge, J., intimated a doubt whether the arbitrator could expressly award damages, though he thought that the plaintiff, in signing judgment, might enter it for a shilling damages (ƒ). nominal A verdict was taken subject to a reference to a valuer to Entering say whether the plaintiff had suffered damage by reason of damages. certain matters. The valuer found that the plaintiff had suffered no damage beyond a sum paid into court. The valuer had no power to direct a verdict for the defendant. It was held that on this finding the verdict might be entered for the plaintiff for nominal damages (g). All matters in difference in a cause and nothing beyond being referred, the arbitrator, before the Judicature Acts, had no authority to order the plaintiff to pay the defendant any sum of money (h); though when the submission was of the cause and all matters in difference, the arbitrator ought even (d) Hawkins v. Benton, 2 D. & L. 465. (e) Hawkins v. Benton, 15 L. J. Q. B. 139, S. C. 8 Q. B. 479. (f) Doe d. Madkins v. Horner, 8 A. & E. 235. (g) Sowdon v. Mills, 30 L. J. Q. B. 175. (h) Poyner v. Hatton, 7 M. & W. 211. Cause only award of referred, no money to defendant. PART II. CH. VI. 8. 4. then to have ascertained the amount of the defendant's claim, and if it exceeded the plaintiff's demand, to have directed the plaintiff to pay the balance (i). PART II. CH. VI. S. 5. No implied power to direct entry of judgment under old law, Unauthorised award of judgment surplusage. Award of judgment on a demurrer. SECTION V. OF AWARDING JUDGMENT. 1. Power to direct entry or arrest of judgment.]—On a reference of a cause, in which there were only issues of fact to be determined, the arbitrator under the old law had no implied power to direct judgment to be entered up for either party, even though the submission empowered him to direct the entry of a verdict, and to determine what he should think fit to be done by either of the parties (). In an action of ejectment the arbitrator awarded as follows:-"I award, order, and determine, that judgment for the plaintiff be entered in the said action with one shilling damages, and that the plaintiff do recover under the said judgment a plot or parcel of land,"-describing it. The court, entertaining no doubt that in directing judgment to be signed the arbitrator had exceeded his authority, set aside that portion of the award, but refused to set it aside wholly, being of opinion that if all mention of the judgment were struck out, there was a sufficient finding of the cause in the plaintiff's favour ( 7). But when the determination of the cause required that the arbitrator should find upon issues of law as well as of fact, it would seem he might order judgment to be entered on the issues in law (m). Thus where, pending a demurrer to one of the pleas, the cause and all matters in difference were referred, and the arbitrator decided the demurrer by directing judgment to be entered thereon for the defendant; on a (i) Maloney v. Stockley, 2 Dowl. N. S. 122; S. C. 4 M. & G. 647; Williams v. Moulsdale, 7 M. & W. 134. See Macarthur v. Campbell, 2 A. & E. 52. (k) Angus v. Redford, 11 M. & W. 69, S. C. 2 Dowl. N. S. 735 ; Allen v. Lowe, 4 Q. B. 66; Toby v. Lovibond, 5 C. B. 770, S. C. 17 L. J. C. P. 201. (7) Doe d. Body v. Cox, 4 D. & L. 75. (m) Angus v. Redford, 11 M. & W. 69, per Ld. Abinger, p. 74. motion to set aside the award on account of this direction, the court refused the rule, and seemed to think that the parties had, by referring the question of law, authorised him to decide as he had done (n). PART II. CH. VI. S. 5. ment. Where the submission respecting several actions authorised Clause the arbitrators "to discontinue or order the determination of arbitrator to empowering the actions, or to make or give any orders, or regulations, or award judgdirections, which they shall think proper as to the time and terms of such discontinuance, or any other matter or thing in anywise relating to the said several actions," Coleridge, J., seemed to be of opinion that these powers were large enough to justify the arbitrators in ordering judgment to be entered (o). A judge's order empowered the arbitrator "to order that Award not final judgment, or judgment as in case of a nonsuit, be signed kind of specifying in this action by the plaintiff or defendants, as the case may judgment. be, or in such manner, or upon such terms as may be decided," by his certificate: he by that document directed that final judgment should be signed for the defendants. This was held sufficient, though it did not specify the kind of judgment (p ). arbitrator can obstante Previous to a decision in the Common Pleas, an arbitrator, Whether acting under an old order of Nisi Prius on the usual terms award judgreferring a cause and all matters in difference, might have ment non felt himself warranted in supposing that after deciding in veredicto. favour of the defendant the issue raised on a plea, he was at liberty to entertain a question as to the sufficiency of such a plea as a defence to the action. obstante For though there is no actual decision in the Queen's Awarding Bench on the point, the opinion of that court, as gathered damages non from the cases, seems to be,that the arbitrator had autho- veredicto. rity to decide in effect whether the plaintiff were entitled to judgment non obstante veredicto, and if the question were raised by the pleadings, and brought before the arbitrator by the parties, that the latter ought to decide it in his award, and to assess damages to the plaintiff in case he determined the plea to be insufficient in law to bar the action (q). (n) Mathew v. Davis, 1 Dowl. N. S. 679. (0) Jones v. Powell, 6 Dowl. (p) Smith v. Reece, 6 D. & L. 520. (9) Allen v. Lowe, 4 Q. B. 66. |