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PART III.

CH. IX. S. 4.

Whether

general statement helped by specific affidavit.

Particular words limiting general statement.

Sometimes, however, the generality of the statement of objection in the rule has been held to be cured by the particularity of the affidavit in pointing out the particular defect. Thus, where the rule stated, as the ground of moving, that the arbitrator had not decided all matters in difference, and the affidavit on which it was obtained specified certain matters alleged to have been in difference, and which were not mentioned in the award, the court held that the rule, coupled with the affidavit, sufficiently explained the nature of the objection, so as to satisfy the general regulation (»).

This lax construction of the regulation of the court, that the rule nisi might be helped out by the affidavits, was disapproved of in a following case, where the degree of particularity above stated to be requisite was held to be what was intended (o); and in a later instance, Coleridge, J., stated that Rawsthorn v. Arnold (p) was not an authority on which he was disposed to act (9).

But in a more modern case in the Exchequer, where the rule nisi was obtained, among others, on a ground "that the arbitrator had not awarded on a matter in difference submitted to him," and the objection was taken that it was too general, and the two last-mentioned cases were cited, the court held it sufficient; as the object of the rule was that parties should not wander about in search of the defect relied on by their opponents, and in the case before them the affidavits directed their attention to that matter in difference which it was alleged by the rule had not been awarded on (r). And later, Wightman, J., refusing to allow a party to rely on a statement in the rule nisi, "that the arbitrator had exceeded his authority," stated, that had the affidavits specifically pointed out any objection of the nature of excess, he should have considered himself bound by the authorities to hold it sufficient, until there had been a declaration of the court to the contrary (s).

If the rule nisi stated an objection in general words, which were followed by particular words of complaint, even sup

(n) Rawsthorn v. Arnold, 6 B. & C. 629.

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

(p) 6 B. & C. 629.

(1) Gray v. Leaf, 8 Dowl. 654. (r) Dunn v. Warlters, 9 M. & W. 293, S. C. 1 Dowl. N. S. 626. (8) Staples v. Hay, 13 L. J. Q. B. 60, S. C. 1 D. & L. 711.

posing under the general statement, if it stood alone, a particular defect might have been brought before the court, still by the latter clause the inquiry would be narrowed to the grievance specified therein (t).

PART III.

CH. IX. S. 4.

Division

A notice of motion in the Chancery Division to set aside Chancery an award on a reference of an action in that division should notice of have specified the grounds of objection with the same par- motion specifying ticularity as a rule nisi to set aside an award in the Queen's grounds. Bench Division (u).

The effect of a ground of objection being too general, is Statement too merely to prevent the party taking advantage of it; it does general void. not hinder him relying on other grounds of objection, which are sufficiently specifically stated in the rule (»).

SECTION V.

OPPOSING THE MOTION TO SET ASIDE THE AWARD.

PART III.

CH. IX. S. 5.

cause on last

1. Practice on opposing the motion.]-According to an old rule of the Court of Queen's Bench (y), and the practice of the Common Pleas (), cause could not be shown against the Showing rule for setting aside an award on the last day of term, but day of term. the rule would be enlarged and made peremptory for the next term. In the Exchequer, however, the practice did not seem so strict, for instances are not wanting when the argument against an award was heard on the last day of the term (a).

motion into

special case.

Sometimes, when cause is about to be shown, if the facts be Turning complicated, the court will direct that the matter be turned into a special case, and the validity of the award will be considered when the case comes on for argument (b).

(t) Boodle v. Davies, 3 A. & E. 200; Brown v. Probert, 1 Dowl. 659.

(u) Mercier v. Pepperell, 19

Ch. D. 58.

(x) Boodle v. Davies, 3 A. & E. 200; Gray v. Leaf, 8 Dowl. 654. (y) M. T. 36 G. III. K. B.

(2) Bignall v. Gale, 2 M. & G. 364. The court acted on this rule, In re Burdon, May 8, 1858.

(a) Phillips v. Evans, 12 M. & W. 309.

(b) Staniforth v. Lyall, 4 M. & P. 829; Hocken v. Grenfell, 4 Bing. N. C. 103.

PART III.

CH. IX. S. 5.

Inspecting original agreement of

reference.

Showing

cause.

Motion too late.

Affidavits defective.

Grounds

false in fact.

Point of law doubtful.

Error in favour of

The original agreement of reference might be looked at on a motion to set aside an award, though the rule nisi was not drawn up on reading it, for the rule nisi was drawn up on reading the rule making the agreement of reference a rule of court, and the agreement of reference was in law part of the rule embodying it (e). A submission now has the same effect as if it had been made an order of court (ƒ).

11. What may be shown for cause against the motion.]-The party supporting the award may show for cause why the motion should be refused, the preliminary objections, that the application to set the award aside has been made too late (g); or that the affidavits on which the motion has been made are defective (h); or further that the rule nisi had been improperly drawn up (i). So, with regard to the merits, he may bring forward affidavits to deny or explain away the matters of fact alleged as the grounds of motion; or if the imputation be of a defect in law, he may support the sufficiency of the award by argument, so as at least to render it doubtful whether the award be bad, and if he succeed so far, the court will not set it aside ().

It may be shown as good cause, that the error for which party moving. the party is seeking to impeach the award is one in his own favour, and by which he cannot possibly be injured (1).

Irregularity waived.

Not when

public justice interested.

If the award be impeached on the ground of an irregularity in the proceedings before the arbitrator, it may be shown in answer to the motion, that the irregularity was waived by the subsequent conduct of the party intending to rely on it; as, for instance, by his lying by with knowledge of the objection and taking the chance of an award in his favour (m). But when an award is impeached on the ground of one party in the absence of the other holding private meetings with the

(e) Oswald v. Ld. Grey, 24 L. J. Q. B. 69.

(ƒ) Arbitration Act, 52 & 53 Vict. c. 49, s. 1.

(g) See s. 2 of this chapter, p. 654.

(h) See s. 4 of this chapter, d. 1, p. 677.

(i) See note at p. 481 for the old cases.

(k) Cock v. Gent, 13 M. & W.

364; Bowen v. Williams, 3 Ex. 93.

(1) Taylor v. Shuttleworth, 6 Bing. N. C. 277; Moore . Butlin, 7 A. & E. 595; Bradshaw's Arbitration, 12 Q. B. 562.

(m) Bignall v. Gale, 2 M. & G. 830; Wyld, Ex parte, 30 L. J. Bank. 10, S. C. 2 De G. F. & J. 642. See P. II. ch. 4, s. 1, d. 9, p. 197. See P. II. ch. 4, s. 4, dd. 3, 5, pp. 232, 243.

CH. IX. S. 5.

arbitrator, similar misconduct on the part of the other party PART III. cannot be relied on to prevent the court setting aside an award, for the matter concerns not the individual only, but the due administration of justice (n).

If the ground of motion be, that the award was made after Time enlarged by the limited time, and that the enlargement was by two arbi- consent. trators without the knowledge of the third, or that the award was made by two without consulting the third, it may be shown for cause that by his conduct the party objecting had impliedly or expressly consented to the course adopted (0).

omitted never

decided.

When the ground charged is, that the award is not final Matter for leaving a particular question undecided, it may be brought foranswered by proving that the question was never brought ward to be before the arbitrator at all (p); or only for a collateral purpose, and not as a matter of difference for his decision (1), or that the parties had practically agreed that he need not determine it (r).

If the award be assailed for uncertainty in not specifying No dispute the amount of a sum of money, or in any other particular, about matter

it

may be argued that the court will presume there was no cided.

dispute about the question, or it may be shown that in fact

there was none (s).

bad on face.

In one case, an award being objected to, on the ground Affidavits to that a direction in it was uncertain, it was admitted that the support award direction was uncertain and void; but it was contended that it was mere surplusage, and would therefore not affect the rest of the award, as it was said that the arbitrator had no power to make the direction at all; it being, as was alleged, respecting a matter not in difference. On affidavits being referred to to prove that such was the fact, Lord Denman, C.J., expressed a doubt whether the court would look upon affidavits to support an award bad on its face (f).

Accepting the money awarded (sometimes even under Party moving

(n) Harvey v. Shelton, 4 Beav.

455.

(0) Hallett v. Hallett, 7 Dowl. 389; Peterson v. Ayre, 23 L. J. C. P. 129. See P. II. ch. 3, s. 2, d. 2, p. 148.

(p) Middleton v. Weeks, Cro. Jac. 200.

(9) Rees v. Waters, 16 M. & W. 263. See P. II. ch. 5, s. 4, d. 1,

p. 263.

(r) Rees v. Waters, 16 M. & W. 263; Cooper v. Langdon, 9 M. & W. 60.

(8) Cargey v. Aitcheson, 2 B. & C. 170. See P. II. ch. 5, s. 5, d. 4, p. 292.

(t) Marshall and Dresser, In re, 3 Q. B. 878.

PART III.

CH. IX. S. 5.

having accepted money under

the award.

Having paid

money awarded.

Allowing opponent to act on award.

protest), or costs of the award, is such an admission of the validity of the award, that it may be shown as a conclusive answer to the plaintiff's attempt to set the award aside (u).

If an arbitrator, who is to settle the price of land taken by a railway company, and to direct what conveyance is to be executed, merely award the price, saying nothing about a conveyance, the court, to support the award, will, it seems, sometimes, under peculiar circumstances, presume that the company obtained title to the land between the order of reference and award, so that a conveyance became unnecessary (r).

It was decided in Chancery that a voluntary payment of the amount awarded, with full knowledge of all the facts on which the party relied to avoid the award, would prevent him from sustaining proceedings to set it aside (). But in a more modern instance at common law, Patteson, J., on an ex parte application, said, that it did not appear to him that the fact of having paid the money made any difference, or prevented the party from moving to set the award aside; and he granted a rule nisi for that purpose (~).

It could not be shown for cause, on a motion by a tenant, that by allowing his landlord, without objection, to do repairs to the demised premises, pursuant to the directions of the award, he had waived his right to impeach it (a).

PART III. CH. IX. S. 6.

SECTION VI.

DECISION ON MOTION TO SET ASIDE AN AWARD.

1. Result of the motion to set aside the award.]—The courts of law will always construe awards, and hear motions respectCourts favour ing them, with a desire to sustain the judgment of the validity of awards.

(u) Kennard v. Harris, 2 B. & C. 801. See per Channell, B., in Smalley v. Blackburn Rail. Co., 27 L. J. Ex. 65; Parrott v. Shellard, 16 W. R. 928.

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

Ex. 65.

(y) Goodman v. Sayers, 2 J. & W. 249.

(z) Bartle v. Musgrave, 1 Dowl. N. S. 325.

(a) Hayward v. Phillips, 6 A. &

E. 119.

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