PART II.

CH. VIII. S. 2.

Awarding undivided shares of tithes.

Awarding casement and repairs.

but that is not the case here. The original agreement was not only that the defendant should pay the annuity, but that he should give security for its payment; the non-payment of the annuity, and the omission to provide such security as was required, are the two breaches alleged in the declaration. That subject, therefore, being brought before the arbitrator as one of the matters in difference, and it being expressly stipulated by the order of reference that the parties shall do whatever the arbitrator directs upon that subject, it appears to me that it is within the power given him to find, as we must suppose he has found, that there was no sufficient security in the possession or power of the defendant, and that he should fix what was the value of the annuity, and that it should be paid as matter of damage to the plaintiff ” (9).

An arbitrator, to whom it was referred to ascertain among other things what lands were severally titheable to the rectors of two neighbouring parishes, and who was authorised "to devise all means to prevent future litigation," and generally to settle all matters of difference, and to order and determine what he should think fit to be done, was held to have acted wisely, and perfectly within his authority, in making an award, which, reciting that it was impossible to ascertain the particular parcels of land to which the several rectors were respectively entitled, awarded that the tithes of the whole lands should be divided between them in certain proportions (').

A submission empowered the arbitrator to decide how, and by whom, and in what manner, a certain pump, yard, hedge, and ditch, respecting which disputes had arisen, should in future be enjoyed and occupied, and who should have the care and management thereof. The arbitrator, after finding that the pump was the exclusive property of one of the parties, subject to an easement in it by the other, was held not to be authorised to dispose of the property in it to the other, so as to make the two disputants tenants in common; but it was ruled, that he had power to direct that the easement in the pump should continue, and under the provision respecting "care and management," it was decided, that he

(2) Taylor v. Shuttleworth, 8 Dowl. 281,

(r) Prosser v. Goringe, 3 Taunt. 425.

might order that the pump should in future be repaired at the joint expense of the parties, and that the clause empowering him to award "how" the property should be occupied, gave him authority to say under what conditions the occupation should be, and to impose on the party, not the owner of the hedge and ditch, the sole obligation of repairing them ($).

PART II.

CH. VIII. S. 2.

to

A tenant of a water mill sued his landlord for breach of a Continuing covenant in the lease by the landlord to repair the mill, weir, completion of damage up and mill bank. The cause being referred to an arbitrator repair. with power to decide all matters and questions, and do justice between the parties, and to order and direct what should be done, either immediately or prospectively, it was held that the arbitrator had power to award damages for the continuing breach of covenant up to the date of the award, and beyond that period; for it seems that the award might lawfully have directed the defendant to pay to the plaintiff so much per week until the completion of the repairs ordered to be done, so long as the plaintiff remained lawfully in possession of the premises under the lease, but that a direction absolutely and without any limitation to pay a weekly sum to the plaintiff until the repairs were done was bad, but did not vitiate the rest of the award (t).

Under a power to the arbitrator to decide the right to a Regulating certain stream of water claimed in the action, and to regulate a stream. the use of it in future, and to order and determine what he should think fit to be done, it was considered that the authority given to the arbitrator to regulate the flow of the stream in dispute incidentally and necessarily empowered him to affect the enjoyment of other rights of the parties, and to make regulations respecting the flowing of the water in the stream in question, notwithstanding they interfered with the former enjoyment of other streams not the subject of dispute (u). But the court seemed inclined to think that Hypothetical the arbitrator had no power to make a prospective regu- future provision for lation respecting the flowing of the water, proceeding on the changes. assumption that the ponds, through which the stream of water was stated in the declaration to have flowed, might possibly be hereafter filled up, and providing for that con

(8) Boodle v. Davies, 3 A. & E. 200.

Ex. 136.

(u) Winter v. Lethbridge, 13 Price, 533.

(t) Lewis v. Rossiter, 44 L. J.

PART II.

CH. VIII. S. 2.

Directing change from wood to iron machinery,

Directing to sue in plain

tiff's name.

Directing specific performance of agreement.

To pull down wall.

Directing running of trains.

tingency; and that he had authority to regulate the stream only whilst it should continue to flow through those ponds. They held, however, that though such hypothetical directing might be void as exceeding the submission, such excess could not vitiate the other directions in the award independent of it (v).

Under a reference to settle the matters in difference, and to award such alterations in the defendant's works as to the arbitrator should seem necessary, regard being had to their state at a particular period, an award directing no other alteration than that certain parts of the machinery, which were of wood, should be made of cast iron, was held a due execution of the authority (x).

We have before seen that an arbitrator, who has to settle at what price and on what terms the defendant shall purchase the plaintiff's estate, may award that the defendant, after the conveyance of the property to him, shall be entitled to use the plaintiff's name in enforcing his rights, and may, if he please, fix the terms on which the defendant shall indemnify the plaintiff against an action (y).

An arbitrator, empowered to investigate legal and equitable claims and to give directions, awarded that the plaintiffs would be entitled to have the benefit of an agreement by which they were to be paid by the defendant a sum of money so soon as the plaintiffs had discharged the claims of certain other persons; and he directed that, on production by the plaintiffs to the defendant of proper receipts from such persons, the defendant should pay the plaintiffs the amount stated. This was held good (≈).

Under a power to order possession of lands to be given, and how and in what manner it shall be given, an arbitrator has power to order the party whom he directs to give up possession to pull down a wall he has erected on the premises (a).

By an act to facilitate intercourse between the U. Railway and the C. Railway, it was enacted, that if at any time or

(v) Winter v. Lethbridge, 13 Price, 533.

70.

(x) Walker v. Frobisher, 6 Ves.

(y) Round v. Hatton, 10 M. & W. 660. See the previous section,

d. 5, p. 424.

(z) Miller v. De Burgh, 4 Ex. 809.

(a) Mays v. Cannell, 24 L. J. C. P. 41.

times after the passing of the act, either party should require it, "it should be referred to arbitration to determine what arrangements should be made by the U. and the C. Railways, or either of them, for affording proper facilities and convenience for the conveyance and all other accommodation of passengers, animals, and goods to be conveyed from the U. Railway, or any part thereof, upon and along the C. Railway between L. and C., or any part thereof, and from the C. Railway between L. and C., or any part thereof, and upon and along the U. Railway, or any part thereof," &c. Held, first, that the arbitrators had power to order that the C. Railway should run an express train from C. to L. every day, except Sunday, at 10 A.M., arriving at 11 A.M., stopping at three intermediate stations; that the times of departure and arrival were properly made part of the terms of arrangement, and that the court could not intend that the speed ordered was improper, though, if it were, the award would be bad, and the company would not be justified in obeying it. Secondly, that they had also power to order the C. Company to run a train daily from L. to C. at specified hours of departure and arrival, and to convey the U. carriages, with passengers, through to L. They held, also, that it was no objection that the award did not say how long the arrangement was to continue, as new regulations might be made from time to time, under the arbitration clause (b).

PART II.

CH. VIII. S. 2.

directions.

111. Directions as to what shall be done held void.]-A Invalid consideration of the following instances will, it is hoped, assist the arbitrator in guarding against making a faulty direction.

verdict.

The power to order and direct what he shall think fit to Awarding be done by and between the parties respecting the matters in dispute, does not authorise the arbitrator to direct a verdict to be entered in the cause referred (c). A suggestion, how- Directing ever, was in one case thrown out by the bench, that when increase of damages. the verdict was taken on the reference for too small a sum, the arbitrator, under this clause, might possibly have authority to direct an application to be made to the court to enlarge

(b) Eastern Union Rail. Co. v. Eastern Counties Rail. Co., 2 E. & B. 530.

(c) Hayward v. Phillips, 6 A. & E. 119.

PART II.

CH. VIII. S. 2.

Awarding a carriage way.

Depth of

weir, water marks.

Uncertain directions invalid.

Not specify ing fixtures.

Not specifying precautions or process of filtering.

the amount of damages, and that the defendant should consent to the enlargement (d).

An action, in which the plaintiff claimed a right of way (not a carriage way), was referred to an arbitrator, who was to settle all matters in difference between the parties, and to direct in what manner the road in question (if he should find for the plaintiff) should be enjoyed. The arbitrator awarded a verdict for the plaintiff, and that the plaintiff was entitled to a right of way, including a carriage way. Though there were contradictory affidavits as to whether the plaintiff's claim to a carriage way was a matter in dispute before the arbitrator, the court held that the arbitrator, in awarding a carriage way, had clearly exceeded his authority, and set aside that part of the award (e).

Disputes having arisen between the owners of two mills on a river, an arbitrator, appointed to define the water rights and depths of weir, and authorised to order any erections to be put up about the defendant's weir, awarded that the defendant was entitled to maintain his weir at the depth of fourteen inches and no more, and for the purpose of marking the depth ordered such durable marks and erections to be placed about the weir as B. might direct. The court held the direction as to the depth of weir sufficient, but that the award was avoided by delegating to B. to fix the marks (f).

A landlord having removed some gates, locks, bolts, and fastenings, from the demised premises, a direction by the arbitrator ordering the tenant to put up other gates, locks, bolts, and fastenings, in the place and stead of such as had been removed, was held bad for uncertainty, the award not showing what fixtures had been removed, or specifying the nature, quality, or price of those which were to be substituted (g).

The plaintiff, a bleacher, complained of the defendant's polluting a stream of water by his works; and the arbitrator, who was empowered to regulate the mode in which the water should be enjoyed, awarded, that the defendant should take

(d) Prentice v. Reed, 1 Taunt.

151.

(e) Hooper v. Hooper, M'Lel. & Y. 509.

(f) Johnson v. Latham, 19 L.J. Q. B. 329.

(9) Price v. Popkin, 10 A. & E.

139.