Whenever the assignee, as is generally the case, has an interest in the award, it does not seem to be questioned that he would be entitled to move to impeach it (i). PART III. CH. IX. S. 4. Assignee. The clause in the submission prohibiting the parties from Clause not to bringing any action or suit respecting the matters referred sue not predoes not apply to prevent a motion to set aside the award (k). clude motion. When an arbitrator, after finding a verdict for the plaintiff, Award raising states facts which show that the plaintiff could not legally point of law. sustain his action, but makes no provision for entering a nonsuit or finding a verdict for the defendant, in case the opinion of the court be against the validity of the plaintiff's claim, the court cannot order a nonsuit to be entered; but the proper application is to set the award aside (1). aside. Generally, the certificate by an arbitrator is looked upon as Motion to set an award for all purposes of setting it aside, but if a verdict certificate be taken subject to a certificate respecting the amount of damages, and the certificate be merely a note to the officer of the court, and be not considered an award, and there be grounds of objecting to it, the application to the court should be, not to set aside the certificate, but the verdict entered according to it (m). term. The motion to set aside an award could not, it was said, be Moving on made on the last day of term (n). On one occasion, however, last day of in the Court of Common Pleas, where, on the last day of In the Comterm, a motion was made by the plaintiff to have his costs mon Pleas. taxed pursuant to an award, the master having refused to tax them until the time for setting aside the award had expired, the court called on the defendant's counsel to move to set the award aside; and the motion was made and the rule refused on that day (o). A cause having been sent down for trial before an official Appeal referee, the referee on certain findings made by him in the sion of official & G. 1009. See S. C. not S. P. 1 C. B. 131; Marsh v. Wood, 9 B. & C. 659; R. v. Bingham, 2 Tyrw. 46; Taylor v. Shuttleworth, 8 Dowl. 281. (i) Hobbs v. Ferrars, 8 Dowl. 779; Tayler v. Marling, 2 M. & G. 55. (k) Mackay, In re, 2 A. & E. 356. (1) Peters v. Anderson, 5 Taunt. (m) Carmichael v. Houchen, 3 N. & M. 203. (n) Nettleton v. Crosby, 1 Tidd's (0) Hobdell v. Miller, 2 Scott, 1849. against deci referee. PART III. CH. IX. S. 4. When party's own affidavit requisite. Affidavit by barrister arbitrator. Lay arbitrator. case had directed judgment for the plaintiff. On a motion for a rule nisi to enter judgment for the defendant, the court refused to hear the counsel until he produced some affidavits or other evidence of what had taken place (p). Where an arbitrator, who by mutual agreement of the parties had closed the case, refused the application of the defendant's attorney for another hearing to receive new evidence in reply to some accounts put in by the plaintiff; a motion to set aside the award made on the affidavit of the defendant's attorney, alleging generally that he was not aware of the nature of the accounts, and that he was in possession of evidence sufficient to outweigh them, was refused (among other grounds) on this, that as he could only know the effect of the evidence from the defendant, the court could not set aside the award without an affidavit from the defendant himself (q). The arbitrator, if a barrister, will not in general, in accordance with a rule laid down by the bar, and sanctioned by the judges, make any affidavit in order to support or defeat an application to set aside the award (r); nor, though he be willing to furnish the court with his notes of the evidence for the purpose of the argument, will the court receive them, or approve of a verified copy of them being used, as either course would be an infringement of the spirit of the above rule (s). There is no objection to affidavits being made by lay arbitrators; they consequently are often the most material witStatements of nesses as to the facts. How far the courts will take into arbitrator not consideration the statement of an arbitrator as to the grounds on oath. of his award not made upon oath, but brought before the court by the affidavit of another, has been previously fully discussed (f). Affidavits after motion. After the court had taken the objection that the application to set aside the award was made too late, the court would not allow affidavits to be then filed to account for the delay (u). (p) Stubbs . Boyle, 46 L. J. N. S. C. L. 136, S. C. 2 Q. B. D. 124. (1) Ringer v. Joyce, 1 Marsh, 404. (r) See P. II. ch. 11, s. 4, d. 3, p. 510. (s) Doe d. Haxby v. Preston, 3 D. & L. 768. See P. II. ch. 11, s. 4, d. 3, p. 511. (t) P. II. ch. 5, s. 8, d. 2, p. 310; P. II. ch. 11, s. 4, d. 2, p. 509. (u) Riccard v. Kingdon, 15 L. J. Q. B. 269. PART III. CH. IX. S. 4.. Whether the rule nisi was refused or granted, the party must have filed the affidavits on which the motion was made; but if he neglected to do so, the court would not grant a rule Filing to compel him, until he had been called upon by his opponent to file them (r). affidavits. motion to set aside award. The courts will very rarely permit a second application to Second set aside an award, when the party has once failed in consequence of a defect in the way in which he has brought his case forward. The courts will assume that the objections taken on the first rule are all that can be taken to the award (y). The only excepted instances are where the defects are in the title or jurat of the affidavit (≈). In one instance, where the rule was discharged on a preliminary technical objection, that a copy of the award had not been annexed to the affidavit verifying it, and that therefore the court had not the contents of the award before it, Patteson, J., expressed his opinion that had the rule been discharged within the term limited for moving to set aside the award, the party might, within the term, as a matter of course, have obtained a fresh rule on correcting his mistake, as the defect was not in the substance of the affidavit, but a mere slip of form; and he allowed a second application to set the award aside, although the term had expired, as the previous rule had been enlarged by consent (a); but on a subsequent occasion the same learned judge, with the concurrence of the full Court of Queen's Bench, intimated that in the above case he thought he had gone too far (b). Since a motion to set aside an award is no longer made by rule nisi, it is not necessary to retain in the text the cases on drawing up the rule nisi, which are, however, referred to in the notes (c). On a motion to set aside an award, as on a rule to set aside Whether a verdict, the Court of Queen's Bench would look at the before the pleadings 21. (x) Pilmore v. Hood, 8 Dowl. (y) Hellyer and Snook, In re, 2 Chitt. 265; R. v. Great Western Rail. Co., 1 D. & L. 874. (2) R. v. Great Western Rail. Co., 1 D. & L. 874. (a) Sherry v. Oke, 3 Dowl. 349. (b) R. v. Great Western Rail. Co., 1 D. & L. 874. (c) Christie v. Hamlet, 2 M. & P. 316, S. C. 5 Bing. 195; Crosbie v. Holmes, 3 D. & L. 566, 568, note. See Browne v. Collyer, 20 L. J. Q. B. 426; Barton v. Ransom, 5 Dowl. 597; Lund v. Hudson, 1 D. & L. 236; Platt v. Hall, 2 M. & W. 391; Holloway v. Monk, 8 Dowl. 138. court. PART III. CH. IX. S. 4. Grounds of motion must be stated. Rule applies to certificate record in the cause if necessary, although the rule were not drawn up on reading it; but as in the Common Pleas a rule for setting aside a verdict was drawn up on reading the record, it is presumed that in the case of setting aside an award in that court the rule nisi should have been drawn up on reading the record whenever it was requisite to bring the record to their notice (d). Where, from the nature of the objections, it became necessary for the court to look at the pleadings in a second action referred, together with the one in which the order of reference was made and the verdict taken by consent, the pleadings in that second action had to be brought before the court by the affidavits in support of the motion, and the rule was defective if they were not stated in them; yet, if the affidavits in answer set them forth, the court would look at the whole pleadings, and decide on the objections raised (e). If a cause were referred before plea by a judge's order, and an objection to the award were founded on the contents of the declaration, it was proper to draw up the rule nisi on reading the declaration (f). II. Stating the grounds of motion.]-We have previously mentioned that by Order LII. r. 4, the notice of motion must state in general terms the grounds of the application. The old rule of H. T., 1853, r. 169, was to the effect that the several objections intended to be insisted upon should be stated in the rule nisi. Both these rules being much the same as the still older rules of the several courts, the cases previously decided on the ancient practice are still to some extent applicable. The rule requiring the grounds of objection to an award of arbitrator. to be stated applies equally to a certificate, whether the arbitrator is to certify generally for whom the verdict is to be entered, or only to certify to the associate the amount of damages for which the verdict for the plaintiff is to be entered (g). In one instance, where the grounds were omitted, Bayley, B., held that the rule might be amended on that point (h). (d) Sherry v. Oke, 3 Dowl. 349. (g) Carmichael v. Houchen, 3 N. & M. 203. () Whatley v. Morland, 2 C. & M. 347. PART III. CH. IX. S. 4. Party con fined to stated in the In general, however, the party cannot avail himself of any ground which he does not specify. Thus, where an award was considered bad for not giving damages on an issue found for the plaintiff, the court said that, as the objection was not grounds hit by the rule nisi, they could not set aside the award (i). rule. It was not sufficient to state in the rule the head of objec- Stating tion on which the party meant to rely, as that the award was objections specifically. uncertain, not final, that the arbitrator had exceeded his authority, or that he had not awarded on all the matters referred to him; but the rule should have stated each objection specifically, and shown in what respect the award was uncertain, or not final, in what respect he had exceeded his authority, and in what respect he had failed to decide all the matters submitted; for the purposes of the regulation would have been defeated if parties might state a general objection, and then go into any number of particular objections which might range themselves under it; and as different objections might, on reading an award, occur to different minds, it might happen that a party supporting an award against a rule stating the objections in a general form, might raise some objection which had not been thought of by the opposite side (). It is not clear how far these observations hold good now, when the application may state in general terms the grounds of the application. The following objections: "that the facts stated by the arbitrator on the face of his award are not sufficient to enable the court to decide the points of law thereby intended to be raised, or the several points of law which he was requested by the defendant to raise; "that the arbitrator has not by his said award raised the points which on the part of the plaintiff he was requested to raise; ""that the award is not final, certain, and mutually binding, because it raises points for the opinion of the court which the arbitrator was not requested by either party to raise or state on the face of his award" (); "that the arbitrator has made his award under a misapprehension of the terms of the reference" (m); were in old times all considered to be too general. (i) Grenfell v. Edgcome, 7 Q. B. 661. (k) Boodle v. Davies, 3 A. & E. 200; Jones v. Powell, 6 Dowl. (1) Bradbee v. Christ's Hospital, 4 M. & G. 714. (m) Allenby v. Proudlock, 4 Dowl. 54. Forms of objection too general. |