served with a notice of an award made between two parties who had claimed rights (paramount to that of his lease) to enter and possess the lands to recover rent charge in arrear, attorned and paid rent to the one to whose claim the award gave priority, it was held, on proof of these facts, that he became tenant to the latter from year to year (n).

On an issue respecting the title to some growing crops seized by a creditor of the tenant of the land, an award between the landlord and tenant directing the tenancy to cease, and the tenant to deliver up possession, was held admissible in evidence, though of itself it could not transfer the property in the crops to the landlord (o).

PART III.

CH. III. S. 5.

The right to a farm being in dispute, the parties agreed to Award acted be bound by the decision of an arbitrator, and he awarded on, an estoppel. against the one who had previously received rent as landlord from the tenant. Notice of the award was given to the tenant, and with the sanction of the losing claimant the tenant was directed in future to pay his rent to the successful party as his landlord. Afterwards, the former landlord, being dissatisfied with the award, distrained on the tenant for rent. It was held in an action of replevin, that though the tenant was estopped from saying that his landlord had no title, the tenant here was at liberty to prove these circumstances in evidence, to show that his landlord's title had determined, and that the loser was estopped from setting up his title of landlord, having himself induced the tenant to pay rent to another person (p).

award.

IV. Impeaching by evidence award put in evidence.]--When Evidence an award is tendered in evidence the opposite party may offer impeaching evidence in reply to impeach its validity, and so, doing away with its binding effect, allow proof to be given of the matters professed to be determined by it (q). Thus, an award on a Proving reference of all matters in difference being offered in evi- matter not dence by the defendant, the plaintiff is at liberty to prove that on some of the matters referred the arbitrator has not awarded ().

awarded on.

PART III.

CH. III. S. 5.

Issues undecided.

Showing matter not

within refer

ence.

Evidence to contradict award.

Evidence of misconduct or mistake of arbitrator.

To illustrate this principle further, it may be observed, that though a submission by rule of court referring an action, and an award determining the action generally, is primâ facie evidence of a good award, yet evidence may be offered by a defendant, under a plea of "no award," to show that there are several issues in the action referred which the award has not determined, consequently that it is not final, and therefore of no effect (s).

The court will grant a new trial, if the judge at Nisi Prius reject evidence offered to show that the subject-matter of the action to which the award is offered as an answer was not included in the reference or determined by the award (†). In an old case, however, where the defendant in mitigation of damages put in evidence a release by the plaintiff made in pursuance of an award on a submission between the plaintiff and another, the court would not allow the plaintiff to give evidence to contradict the general terms of the award and release, which included the ground of action, and to show that the arbitrators had on certain grounds refused to take into consideration the claim in the action (u).

The same principle which prohibited the pleading the mistake or misconduct of the arbitrator precluded the defendant from giving evidence on those grounds (x); but as all equitable defences may now be relied on in an action, such evidence might probably often be considered admissible at the present day (y).

The question whether, in an action for 2467., the defendant was entitled to a set-off for the like sum of 2467. in respect of some silk, having been submitted to the arbitrator, and decided in the negative by the award, the defendant in an action on the award, to which he had pleaded a set-off, proposed to give evidence of a claim for the silk less than 2467., and to show that the arbitrator had decided against his claim, simply because he had held himself bound by the words of the submission to decide against the defendant,

Dresser v. Stansfield, 14 M.

& W. 882.

(t) Ravee v. Farmer, 4 T. R. 146; Rhodes v. Airdale Drainage Commissioners, 1 C. P. D. 380, S. C. 45 L. J. C. P. 337.

(u) Shelling v. Farmer, 1 Stra.

646.

(x) Wills v. Maccarmick, 2 Wils. 148; Dyer v. Dawson, cited in Heming v. Swinnerton, 1 Coop. C. C. 420, notes; Swinford v. Burn, Gow. N. P. 5.

(y) See ante, p. 555.

unless a set-off was proved of the exact value of 2467.; the court, however, rejected the evidence, holding that in an action on the award the decision of the arbitrator could not be impeached for a mistake (~).

In one instance at Nisi Prius, in an action of assumpsit on the award, the defence relied on was, that the irregular conduct of the umpire in examining one of the parties in the absence of the other vitiated the award. No objection, however, seems to have been made on the part of the plaintiff to the reception of the evidence or to the nature of the defence (a).

PART III.

CH. III. S. 5.

It was said, in a case decided before the modern rules of Evidence, pleading, that if the submission were obtained by fraud, and submission an action were brought on the award, the defendant might fraud of plead no submission, and prove the fraud in evidence, which party. would authorise him to treat it as no submission; or that he might plead no award, and show that the submission was obtained by fraud (b). But he could not, it seems, under any plea, be permitted to give evidence that the award was made as it was in consequence of fraudulent conduct of the parties interested (c).

A submission provided that if the arbitrator should award Proving no that the defendants, who were executors, should purchase the award. liability under plaintiff an annuity, he should and might award it with a proviso, that in case of a deficiency of assets the sum should abate. The arbitrator awarded the annuity without any proviso. On the general issue in assumpsit on the award, before the Judicature Acts, the court allowed the defendants to prove a deficiency of assets, holding that the arbitrator ought to have inserted the proviso, and that the defendants ought not to be the worse off for his neglect (d).

(z) Johnson v. Durant, 2 B. & Ad. 925.

(a) Matson v. Trower, Ry. & M. 17.

(b) Sackett v. Owen, 2 Chitt. 39.

(c) Dyer v. Dawson, cited in Heming v. Swinnerton, 1 Coop. C. C. 420, notes.

(d) Crump v. Adney, 1 C. & M.

355.

562

CHAPTER IV.

PART III.

CH. IV.

Contents of the fourth chapter.

THE AWARD AS A GROUND IN OLD TIMES OF PROCEEDINGS
OR DEFENCE IN EQUITY.

THE present chapter endeavours to point out in what cases and in what manner an award could be rendered available in equity in old times. It remains of interest, as common law courts may now adopt a similar procedure in most cases.

In the first section the inquiry is made when a suit would have lain to have specific performance of an award decreed.

The second section sets forth the effect of an award as a defence to procedure in equity respecting the matters referred, or to set the award aside.

The third section discusses the more summary modes, in which the assistance of equity to enforce an award might have been obtained.

PART III.

CH. IV. S. 1.

SECTION I.

ENFORCING AN AWARD BY ACTION IN EQUITY.

1. When specific performance decreed.]-This chapter was written when specific performance could be decreed only by Whatever the Chancery. It has been thought advisable to leave it as it is, submission. as a chapter on specific performance, for the assistance now of

practitioners in the Queen's Bench Division as well as in the Chancery Division. Whatever was the nature of the submission, the jurisdiction of equity over the award seems to have attached.

Unless an award had been made, the court of equity could

not decree specific performance of an agreement, one part of which had been left to be determined by arbitration (a).

Though the submission were by order of Nisi Prius, which was afterwards made a rule of a court of common law, and so performance was capable of being enforced by attachment. from that court, Chancery might still entertain an action for specific execution of the award (b). Even where the submission was by agreement containing a clause for making it a rule of a court of law under the statute, so that the Court of Chancery had no jurisdiction to set the award aside, yet it was held that a bill for specific performance might be filed, when the award was such as equity would execute (c).

PART III.

- CH. IV. 8. 1.

of award

An action in equity would lie to enforce specific perform- Performance ance of an award, when the thing ordered by the award to enforced as of be done was such as a court of equity would specifically a contract. enforce if it had been agreed on by the parties themselves. For as by the submission the parties had contracted to do what the arbitrator should direct, when the latter had made his decision, the award was considered in equity as amounting to an agreement by the parties on the terms pointed out by him, and would be enforced against a party as the party's own agreement (d).

money.

As equity would not interfere in the case of a breach of Not award for contract when a court of common law could give a complete payment of remedy by damages, so it would not execute an award which directed nothing but the payment of money, any more than it would decree specific performance of a contract for such a purpose (e).

But when the arbitrator directed a party to perform any- Award to do thing in specie, as to make a lease or to convey an estate, or specific acts.

(a) Darbey v. Whitaker, 4 Drew. 134; Tillett v. The Charing Cross Bridge Co., 26 Beav. 419; Baker v. The Metropolitan Rail. Co., 11 Nov. 1862, 1 N. R. 8.

(b) Nickels v. Hancock, 7 De G. M. & G. 300; Wood v. Griffith, 1 Wils. C. C. 34, S. C. 1 Swanst. 43.

(c) Walters v. Morgan, 2 Cox, 369; Auriol v. Smith, 1 Turn. & R. 121; Hawksworth v. Brammall,

5 M. & C. 281.

(d) Walters v. Morgan, 2 Cox, 369; Wood v. Griffith, 1 Wils. C. C. 34, S. C. 1 Swanst. 53; Gervais v. Edwards, 2 Dru. & War. 80; Nickels v. Hancock, May 2, 1855; Lords Justices, 3 C. L. & E. Rep. Ch. 689.

(e) Walters v. Morgan, 2 Cox, 369; Hall v. Hardy, 3 P. W. 187.