PART II. CH. X. S. 1. with arbitrator's discretion. Otherwise where arbi trator admits the mistake. Defective certificate for costs. Correcting mistake in award under Arbitration To enable arbitrator to fird on separate items of one general count. of amendment, as a judge at Nisi Prius, and the award was good on its face, the court would not interfere with the exercise of his discretion, so as to send the case back to him. to reconsider an amendment which he had made in the record (i), or his refusal to certify that the cause was brought to try a right (k). But where the arbitrator states that the award as framed, though unimpeachable in law, does not carry out his intentions, the courts will sometimes remit it for amendment (7). Thus, where the award, as drawn in the plaintiff's favour, contained a certificate which entitled the plaintiff to costs only on the lower scale, and the arbitrator, being applied to, stated that he had intended to give the plaintiff his full costs, the court remitted the award to the arbitrator, but at the plaintiff's expense, saying that the defendant ought not to be put to expense for an error, to which he had not contributed (m). So, where words giving the plaintiff the costs of the reference, inserted in the arbitrator's rough draft of his award, were, as he stated, omitted by mistake from the fair copy which he signed as his award, the court sent it back to have it corrected (n). Now on a reference out of court he may amend " any clerical mistake or error arising from any accidental slip or omission" (o). Even where there had been no failure of intention on the part of the arbitrator, the court, thinking it a proper case for costs, referred an award back for him to certify for costs if he should think fit, under the 30 & 31 Vict. c. 142, s. 5 (p). So, where the declaration contained a single count for work and labour, goods sold and delivered, money paid and lent, use of rooms, for necessaries provided, and an account stated, and the arbitrator found for the plaintiff on the issue joined (i) Nalder v. Batts, 1 D. & L. 700. (k) Bury v. Dunn, 1 D. & L. 141. (1) Shaw v. Pitt, W. R. 616, June 14, 1856; Mills v. The Bowyer's Soc., 3 K. & J. 66; Walton v. The Swanage Pier Co., 10 W. R. 629; Lockwood v. Smith, 10 W. R. 628; Warner v. Powell, L. R. 3 Eq. 261. (m) Caswell v. Grocutt, 31 L. J. Ex. 361; Cross v. Cross, 13 C. B. N. S. 253. (n) Mordue v. Palmer, L. R. 6 Chanc. 22. (0) 52 & 53 Vict. c. 49, s. 7(c). (p) Harland v. Mayor of Newcastle, 39 L. J. Q. B. 69, S. C. L. R. 5 Q. B. 47. on the plea of never indebted, but for the defendant on the plea of set-off, and afterwards by letter informed the defendant's attorney that the plaintiff had made out no claim, except as to one of the many separate claims included in the indebitatus count, the court referred the award back, that the arbitrator might, if he thought fit, find separately as to the items in the declaration; for as the costs were to abide the event, it was not just that the defendant should have to pay the plaintiff costs in respect of the items on which he had failed to establish a claim (q). Where an order of Nisi Prius, referring a cause and all Limit of time for applicamatters of difference, contained a provision that in the event tion. of any application being made to the court on the subject of the award, the court should have the power to refer the matter back, it was held that the usual limitation of time must be considered to be understood in the submission, and that the application for a reference back must be made within the same time as a motion to set aside the award (r). This case does not decide that, if a valid objection be taken to an award by a party against whom it is sought to be enforced, the courts would feel themselves bound to yield to the objection, and so in effect annul the award, instead of referring it back, merely because the time for moving to set it aside had expired (s). And the Queen's Bench Division has now expressly decided that the time for moving to refer back an award is not limited to the period for setting it aside, but that the court has a discretion to allow such motions to be made at any time, though it will require them to be made within a reasonable period, or the delay must be satisfactorily explained (†). The Common Law Procedure Act, 1854 (u), it should be observed, gave power to the court "at any time, and from time to time," to refer back. The words in the Arbitration Arbitration Act, 1889 (a), are "the court or a judge may from time to Act, 1889. time remit." (1) Gore v. Baker, 4 Q. B. 470, S. C. 24 L. J. Q. B. 94. (r) Doe d. Banks v. Holmes, 12 Q. B. 951; Doe d. Mays v. Cannell, 22 L. J. Q. B. 321. (8) Brooks v. Parsons, 1 D. & L. 691, S. C. 13 L. J. Q. B. 50. (u) 17 & 18 Vict. c. 125, s. 8. see ante, p. 480, PART II. CH. X. S. 1. Award sent back on compulsory reference, though time for setting aside expired. Rule absolute in first instance conditionally. Motion. In a case where an award on a compulsory reference under the Common Law Procedure Act, 1854, made in favour of the plaintiff was so framed, that the master felt himself bound to tax the costs on the lower scale, the plaintiff on this applied to the arbitrator, who stated that his intention was, that the plaintiff should have his full costs; the court, on the application of the plaintiff, sent the award back to the arbitrator to amend the certificate as to costs; although the seven days allowed by the Common Law Procedure Act, 1854, s. 9, for applying to set aside such an award had elapsed, and the objection was pressed that the application was too late (?). In this case, the court, thinking it unreasonable that the party who had been in no default should be put to costs by reason of the omission of the arbitrator, made the rule absolute, on the terms that the applicant should be at the whole expense of taking the case a second time before the arbitrator. Where the application was made on behalf of the plaintiff to refer back the award, to allow the arbitrator, who was willing to do so, to amend his certificate as to costs, the court, instead of granting a rule nisi, granted a rule to be absolute in the first instance, unless within four days after service the defendant should give notice that he would come in and show cause against him (z). This rule was granted on the authority of Caswell v. Grocutt (a), just above cited, and on the same terms as to costs. On a motion, made eighteen months after the award, for an order to pay money awarded on a reference in a cause in equity, the court referred the award back to correct a mistake admitted by the arbitrator (b). A rule to refer back an award may be enlarged by consent (c). By Order LII. r. 2, 1883, an application to remit an award must be made by motion, not by rule nisi. And by Order LII. r. 4, 1883, the notice of motion must state in general terms the ground of the application. And where (y) Caswell v. Grocutt, 31 L. J. Ex. 361. (z) Cross v. Cross, 13 C. B. N. S. 253. (a) 31 L. J. Ex. 361. (b) Mordue v. Palmer, L. R. 6 Chan. 22. (c) Stafford v. Stafford, 25 L. T. any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion. The motion in the case of a report on a reference under section 13 of the Arbitration Act, 1889 (d), to inquire and report is a four days notice of motion in a cause or matter, the further consideration of which has been adjourned (e), and an eight days notice when it has not (ƒ). PART II. CH. X. S. 1. refer back more than After the arbitrator has amended his award, a fresh appli- Court can cation may be made to set it aside, and if it be defective a second time, it will be again avoided (g). It was considered once. doubtful whether the clause, as usually drawn in agreements of reference, gave the court the power to refer it back to the arbitrator more than once (). But as the Arbitration Act, 1889 (d), s. 10, now empowers the courts to refer back "from time to time," that question has become unimportant. refer back to Sometimes the clause is drawn up in agreements of refer- Clause to ences, empowering the court to refer the case back to the same arbitrator, "or to such other person as the court should think fit." This seems an improvement on the clause as originally given above. For there may be many cases most fit to be determined by arbitration, in which there may be serious objections to having recourse again to the same arbitrator who has once miscarried; and in which, if the court had authority to send the parties summarily before a different arbitrator, the ends of justice would be best attained, and with the least expense and delay (i). A submission to several arbitrators contained a power to remit the award, followed by a clause that in the event of the death of one of the arbitrators before the award, the parties, or in case of the parties not agreeing, the court, should have power to appoint a new arbitrator: after an award made, one arbitrator died. The court remitted the matters back to the survivors and to the new arbitrator to be appointed pursuant to the reference (). (d) 52 & 53 Vict. c. 49. (e) Order XXXVI. r. 54. (ƒ) Order XXXVI. r. 55. (g) Nickalls v. Warren, 6 Q. B. 615; Howett v. Clements, 1 C. B. 128. (h) Nickalls v. Warren, 6 Q. B. 615. (i) Webber v. Lee, 1 D. & L. 584; Porch v. Hopkins, 1 D. & L. 881. (k) Lord v. Hawkins, 2 H. & same or different arbitrator. PART II. The fact that a court of common law had a power of remitting the award for reconsideration, had weight with the clause to refer Court of Chancery when called upon to interfere with an CH. X. S. 1. Effect of back in Chancery. Divisional Court remitting award on appeal. award (). Where an award was held uncertain, because the arbitrator had irregularly received a claim made by one party in the absence of the other, Romilly, M. R., refused to refer the matters back to him, on the ground that the arbitrator, though perfectly honest, could hardly help being tempted to act so as to show that the objection was useless (m). Under R. S. C. Ord. LIX. r. 3, on an appeal against an award on a compulsory reference to arbitration, the Divisional Court "may remit all or any part of the matter in dispute to the arbitrator or referee, or make any order with respect to the award or certificate on all or any matters in dispute that may be just.” SECTION II. PART II. CH. X. S. 2. Arbitrator's powers revived by reference back. Arbitrator has same power over costs of DUTY OF ARBITRATOR WHEN AWARD REFERRED BACK. When the matters submitted, or any of them, are referred back by the court to the arbitrator, all his original powers, so far as they are not affected by the order referring the award back, seem to be revived (n). If by the original submission the costs of the reference and award be in his discretion, and nothing be said about costs in the order referring back the award, the arbitrator has power over the costs of the second reference and award, second refer and will, it is conceived, be bound to exercise it just as much as on the original reference (o). refer back may be left by the decide (p). ence as over first. (1) The Londonderry, &c. Rail. The costs of the motion to court for the arbitrator to |