PART II.

CH. VIII. 8. 1.

Settling terms of dissolution

of partnership.

Awarding right to sue in partner's

name.

Awarding restraint of trade.

When arbitrator may direct an indemnity.

of the assets is such as to render any provision for the case of a deficiency unnecessary (r).

A wide discretion is given to the arbitrator when he is to settle the terms on which a partnership is to be dissolved.

An arbitrator who was to decide the terms upon which an agreement of partnership between two attorneys should be cancelled, and also which of the parties had a right to receive certain bills of costs, after deciding that one of them was entitled to receive the bills of costs and collect and keep the amount for his own use, was held authorized to award further that that one should be at liberty to use the name of the other, either alone, or jointly with his own, in suing for the same; Tindal, C.J., being of opinion that imposing on the arbitrator the duty of deciding which of the parties had a right to receive the bills of costs, gave him impliedly the authority to order suits for the purpose of recovering those costs; and also that the power to settle the terms on which the agreement of partnership was to be cancelled, included the power of directing actions to be brought; and that although the partner whose name was to be used might possibly be made liable for the costs of such actions, it was not incumbent on the arbitrator to award him any indemnity (y).

A restraint of trade may sometimes lawfully be imposed by an award. Where the arbitrator was to settle the terms and conditions on which the co-partnership between two persons carrying on business as surgeons and apothecaries in a certain town should be dissolved, and it was part of the terms of the submission that one of them should still carry on the business for his sole benefit, the arbitrator was held justified in awarding that it should not be lawful for the other to carry on the practice or profession of a surgeon and apothecary in the particular town, or within thirteen miles of it (≈).

v. Directions as to giving an indemnity.]—Under what circumstances an arbitrator, without special authority, has power to order one party to the reference to indemnify the

(x) Wilkinson v. Page, 1 Hare, 276; Routh v. Peach, 3 Anst. 637. (y) Burton v. Wigley, 1 Bing.

N. C. 665.

(z) Morley v. Newman, 5 D. & R. 317.

PART II.

CH. VIII. S. 1.

other against particular contingencies, is not quite clear. It would seem to be the opinion of Lord Denman, C.J., if we may consider his language in one instance as applicable generally, and not merely to the particular case before him, that an arbitrator, on a reference of all matters in difference, has no general power to direct an indemnity (a). There must, it seems, be a certain degree of necessity from Only when a the nature of the case to warrant such a step.

An award, ordering the defendant to execute a covenant to indemnify the plaintiff against all costs, damages, and expenses, which would happen by means of any further proceedings in a qui tam action against the plaintiff, begun at the instance of the defendant, was held good, on the ground. that as the action could not be released, the poor being interested in it, the direction to indemnify was valid from the necessity of the case; and that it was no objection that the amount to be indemnified against was uncertain, as the defendant, by causing the action to be proceeded with, might ascertain it; but, it was added, the awarding the indemnity would have been an excess of authority, had there been any means of releasing or discharging the action (b).

In one case the court refused to set aside an award on the objection that the arbitrator had ordered the defendant to give a bond to indemnify the plaintiff against a bill of exchange, which the plaintiff had given to ransom his ship in a case of extreme necessity (c).

From another case, it may be gathered that if a submission between the plaintiff and defendant alone comprise matters in difference between the defendant and the plaintiff together with others, and the arbitrator find that the defendant has taken some goods, in which the plaintiff and others are jointly interested, he may award to the plaintiff a compensation for the whole value of the property, and direct the latter to give to the defendant an indemnity against the claims of the other interested parties (d).

On a general reference, the principal question in which

necessary provision.

PART II.

CH. VIII. S. 1.

Principle.

When settling

terms of dis

solution of

being up to what date the joint liability of the plaintiff and defendant for debts due in respect of a vessel, in which the plaintiff had recently purchased out the defendant's interest, should continue, and from what date the plaintiff should be chargeable alone, the arbitrator awarded, that after a specified day the defendant should not bear any debts in respect of the vessel, and ordered the plaintiff to deliver to the defendant a bond conditioned for the payment by the plaintiff of all debts incurred in respect of the vessel after that date. The majority of the court held that the arbitrators had authority to direct the bond to be given, as the creditors were not bound by the award, and might sue the defendant, and so the giving it was only a necessary step to secure the defendant from a liability which the arbitrator had decided ought not to attach upon him; Maule, J., however, expressed a doubt whether it was necessarily within the arbitrator's authority to direct an indemnity bond to be given (e).

The principle seems to be that wherever an arbitrator has authority to settle the liability of the respective parties to the reference with regard to debts due to third persons, he may order one party to pay them and to indemnify the other against them (f).

When the arbitrator has to settle the terms on which a partnership is to be dissolved, and he empowers one partner, partnership. to whom he awards the debts due to the firm, to use the other's name in bringing actions, for the sole benefit of the former, it has been assumed that the arbitrator has power to order him to indemnify the other against any liability to costs for the use of his name in the actions, and it was even urged that he was bound to do so, but to this latter proposition the court did not assent (g).

When settling terms of purchase.

So where the arbitrator had to settle the price and the terms on which the defendant should purchase an estate of the plaintiff, and he awarded that the defendant should be at liberty to use the plaintiff's name in enforcing his rights, Lord Abinger, C. B., expressed his opinion that the arbitrator, if he had pleased, might have fixed the terms on which

(e) Brown v. Watson, 6 Bing. N. C. 118.

(ƒ) Goddard v. Mansfield, 19 L. J. Q. B. 305. See Aitken's

Arbitration, 3 Jur. N. S. 1296.

(g) Burton v. Wigley, 1 Bing. N. C. 665. See ante, p. 424.

the defendant should have indemnified the plaintiff against an action (h).

PART II.

CH. VIII. S. 1.

has power to

VI. Directions as to executing releases.]-On a general refer- Arbitrator ence of all matters in difference, the arbitrator has authority act to order the parties to execute mutual releases respecting releases. them (i), and where "all debts, sums of money, and demands " are submitted, he may direct a release of the bonds, specialties, judgments, executions, and verdicts, by virtue of which the debts, sums of money, and demands are due (k). Where a cause only is referred, he has no authority to direct the parties to execute mutual releases of all demands (1).

releases.

The generality of the words in the clause of the award Construction directing releases will, if possible, be construed to be limited of award of to releases respecting all matters comprehended within the submission (m); and although the release ordered would in terms release the arbitration bond itself, that shall be intended to be excepted (n), for the arbitrator has no power to direct that to be surrendered (o).

But if the words in the award be too clear to admit of the limited construction, as if the submission be of all differences arising before the 10th of May, and the award direct releases respecting all differences up to the 20th of May, the award will still be perfectly good, unless some new difference arose between the 10th and 20th of May, and that be shown to the court (for the court will not intend it without it be shown), and even if a new difference be shown, the award will in general be void only as to the time beyond the submission, and that portion may be treated as surplusage (p).

An award to pay two sums at different times, and that the Awarding re

(h) Round v. Hatton, 10 M. & W. 660.

(i) Cable v. Rogers, 3 Bulst. 311.

() Roberts v. Marriett, 2 Saund. 190.

(1) Doe d. Williams v. Richardson, 8 Taunt. 697.

(m) Doe d. Williams v. Richardson, 8 Taunt. 697; Barry v. Rush, 1 T. R. 691; Boyes v. Bluck, 13 C. B. 652.

(n) Marks v. Marriot, 1 Ld. Raym. 114.

(0) Doyley v. Burton, 1 Ld. Raym. 533.

(p) Bac. Ab. Arb. E. 1; Hill v. Thorn, 2 Mod. 309; Squire v. Grevett, 2 Ld. Raym. 961; Lee v. Elkins, 12 Mod. 515; Anon., 12 Mod. 8; Hooper v. Pierce, 12 Mod. 116; Abrahat v. Brandon, 10 Mod. 201; Pickering v. Watson, 2 W. Bl. 1118; Stevens v. Matthews, Ld. Raym. 116.

PART II.

CH. VIII. S. 1.

leases before

payment bad.

To execute releases forthwith.

Form of

party to receive them should give one release immediately, has been held to be bad, on the ground that by the release under the provision, the arbitration bond, and the right to the second sum awarded to be paid subsequently, would be discharged (9).

But where an award directed that A. and B. should forthwith execute certain conveyances to C., and that C. should forthwith execute indemnities and releases to A. and B., the awarded was supported, and it was held that "forthwith" in the latter clause meant as soon as A. and B. had by their execution of the reconveyances put themselves in a position to call for the execution of the indemnities (»).

It is not necessary for the award to point out the form of award of mu- the releases, or to show when they are to be executed (s).

tual releases.

Awarding VII. Directions as to executing conveyances.]—When the conveyances. question in dispute relates to real property, it often happens, from the nature of the differences, that the arbitrator has to order one party to execute a conveyance to the other; for as the title to land will not pass by the award, when he intends that one party shall have the land, he should also in many cases award a release or conveyance, in order that the award may be final (t).

Specifying nature of the

conveyances.

In directing a conveyance or other deed, the arbitrator should take care to specify the nature and character of the instrument (u), but he need not prepare it himself (x).

If an order of reference to an arbitrator, who has settled the price to be paid to the plaintiff for his land, contains a clause, "the plaintiff agreeing to execute or procure the execution of such a conveyance as the arbitrator may direct," it is the duty of the arbitrator to give sufficient directions respecting the conveyance (y).

(2) Adams v. Adams, 2 Mod.

169.

(r) Boyes v. Bluck, 13 C. B.

652.

(s) Toby v. Lovibond, 17 L. J. C. P. 201, S. C. 12 Jur. 436; 5 C. B. 770. See the Appendix of Forms for the form of an award to execute mutual releases.

(t) Johnson v. Wilson, Willes, 248.

(u) Tandy v. Tandy, 9 Dowl. 1044; Tipping v. Smith, 2 Stra. 1024; Thinne v. Rigby, Cro. Jac. 314.

(x) Tebbutt v. Ambler, 2 Dowl. N. S. 677. See Tomlin v. Mayor of Fordwich, 5 A. & F. 147; Toby v. Lovibond, 17 L. J. C. P. 201, S. C. 12 Jur. 436; 5 C. B. 770.

(y) Smalley v. Blackburn Rail. Co., 2 H. & N. 158, S. C. 27 L. J. Ex. 65.