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tribunal which the parties have selected, and which in so many instances acts most beneficially for them (b). On one occasion, however, Coleridge, J., observed, "There are many expressions in the cases as to the manner in which the courts ought to construe awards, which appear to me to be often used with too much strength. Awards are to be construed sensibly, as all other instruments" (c).

PART III.

CH. IX. S. 6.

set aside

The courts would not set an award aside on motion, unless Award not it were clearly void on the grounds on which it was impeached, unless clearly because then there was an end of it altogether; whereas if an void. action were brought, the question of its validity might be in general more formally raised, and taken to a court of error (d).

fresh affi

award set

After cause had been shown, the court usually would either Allowing discharge the rule or make it absolute; but on one occasion, davits. after the argument, the Court of Common Pleas enlarged the rule till the following term, to give the parties the opportunity of filing fresh affidavits, in order that the facts might be more fully stated; additional affidavits were accordingly filed, and the case was re-argued in the subsequent term (e). When the arbitrator has exceeded his power in awarding Whether on a matter not submitted to him, or in giving unauthorized aside in part directions, if the portion of the award containing the excess only. can be entirely separated, that alone may be rejected, while the rest of the award will stand good; but though considered a nullity, the court will not usually make absolute the rule to set aside that part, but will discharge the rule wholly (ƒ) ; but if the court cannot see that that part of the award made in the proper exercise of the arbitrator's authority is wholly unaffected by the objectionable provisions, the entire award must fall (g). So though it be not final (as when finding substantially for the plaintiff, it fails to decide all the issues,

(b) Templeman and Read, In re, 9 Dowl. 962.

(c) Stonehewer v. Farrar, 9 Jur. 203.

(d) Cock v. Gent, 13 M. & W. 364; Stalworth v. Inns, 13 M. & W. 466.

(e) Little v. Newton, 2 M. & G. 351, 353.

(f) See cases cited P. II. ch. 5, s. 9, p. 325. Boodle v. Davies, 3

A. & E. 200, contrà, where the
rule was discharged in part only.
In the Caledonian Rail. Co. v.
Lockhart, 3 Macq. 808, the House
of Lords, supporting the award,
declined to point out what parts
of it were bad for excess.

(g) Tandy v. Tandy, 9 Dowl.
1044. See P. II. ch. 5, s. 9, p.
331.

R.

Y Y

PART III. CH. IX. S. 6.

New trial

when award

in a cause set aside.

Discharging

rule with costs.

on the event of which the costs depend), the plaintiff, by allowing the defendant costs on all issues undetermined, may maintain the award as to the good part (h). So, also, if it be defective for want of certainty as to a part which is separable, as, for instance, if it award costs without ascertaining their amount, when the arbitrator ought to have found it, the whole award need not be set aside; but the rest may be supported, if the party alone intended to be benefited by the provisions as to the costs agree to waive all claim to them (i).

Where a cause and all matters in difference were referred, and the arbitrator found for the plaintiff in the cause, and then stated facts pursuant to a power given in the submission; the court, deciding that the action could not be maintained on the case stated in the award, directed a nonsuit to be entered in the action, and that the rest of the award should stand good. The report does not show whether there was a conditional award of a nonsuit in case the court should be of opinion that the plaintiff was not entitled to It is also to be noticed, that the court came to this decision on an application to set the award aside (k).

recover.

When a verdict is taken subject to a reference, if the award be set aside there must be a new trial, as the verdict is subject to the award; if one fall the other must follow (7).

11. Costs of the motion to set aside the award.]—When the motion is dismissed, the court will, as in other cases, exercise a discretion whether it is to be dismissed with costs. If the motion had been made on slight grounds, the rule would generally be discharged with costs (m). Where the objection was that the arbitrator had decided contrary to law, costs were refused, on the ground that the point had been fully submitted to the court when the rule was moved (n). In a later case, where the award was assailed as repugnant for finding inconsistent issues in favour of the same party, costs

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were granted, Lord Denman, C.J., intimating that in such cases the practice was to discharge the rule with costs (0).

PART III.

CH. IX. 8. 6.

Costs of

motion when

Where a rule for setting aside an award on a cause was discharged and nothing said about the costs of the motion, costs in the they would be costs in the cause (p). Where the arbitrator cause. had directed a verdict for the plaintiff, and stated special facts in his award, on which the defendant moved to set it aside, but the court directed the verdict to stand for the plaintiff, but at an amount of damages less than the arbitrator had given; the plaintiff was held to be entitled to the costs of showing cause against the rule, although the defendant had succeeded in part: for the practice had always been to consider these costs as costs in the cause, since there was, in fact, no verdict until the discussion of the award was over, and therefore all proceedings till then were steps in the cause (q). Where the defendant put a construction upon the award which induced the plaintiff to move to set it aside, and the court, considering the defendant's construction untenable, discharged the plaintiff's rule, it was held that the plaintiff was not entitled to the costs of the motion; and Tindal, C.J., said, that as the award was not set aside, the motion must take the ordinary course, and the costs of it be costs in the cause (»).

An award in the plaintiff's favour being referred back, on a motion by the defendant to set it aside, and sustained as valid on the arbitrator's explanation, the plaintiff was allowed the costs of the motion (s).

By the Arbitration Act, 1889, s. 20, the court retains full Arbitration Act, 1889. authority over the costs of any order made under the act. Further, full power over costs of all proceedings in the Supreme Court is given to the court or judge by Finlay's Act (53 & 54 Vict. c. 44), s. 5.

III. Appeal.]-In the Chancery Division where the judge has refused to set aside an award, the appeal against the

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Appeal

against re

fusal to set aside.

PART III.

CH. IX. S. 6.

Interlocutory. None against decision of

Q. B. D. on compulsory reference.

refusal should be set down on the interlocutory list, and not in the final list (t).

When there has been a compulsory reference to arbitration in the Queen's Bench Division, the decision by the Divisional Court on an appeal under Order LIX. r. 3, against the award is made final unless leave to appeal further is given («).

The power of appealing from the Divisional Court in other cases depends on the general law. At common law there was no appeal.

As to appeals against the report of a referee, see Part II. Ch. VI. s. 7 (v).

(t) Delagoa Bay Rail. Co. v. Tancred, 61 L. T. 343.

(u) 47 & 48 Vict. c. 61 (Judicature Act, 1884), s. 8. See p. 809. () Page 367.

CHAPTER X.

SETTING ASIDE THE JUDGMENT ENTERED UP PURSUANT
TO AN AWARD.

PART III.

CH. X.

Contents of

UNDER what circumstances the judgment entered up in the
cause referred pursuant to the award might be set aside as
void or irregular under the old law, is shortly stated in this
chapter. The cases may throw light upon the modern chapter.
practice.

the tenth

trator no

If the plaintiff, pursuant to the award, entered up a verdict Setting aside and signed judgment in the cause referred, the defendant judgment. might, within the time limited for setting aside awards, move to set aside both judgment and award, if the latter were defective. Thus the court would set aside a judgment signed When arbipursuant to an award, if the arbitrator had no power to order judgment to be signed; but though the motion were to set award judgaside both the judgment and award, the court would not set aside the award, if it were doubtful, whether there was not a sufficient award, assuming the unauthorized direction as to the judgment rejected as surplusage («).

power to

ment.

entered on

As the sheriff, on a trial by jury under a writ of trial, had Judgment no power to permit a verdict to be taken subject to a refer- reference by ence, the verdict and judgment entered pursuant to an award sheriff. on a submission under such circumstances would be set aside, but not necessarily the award itself, for that might be perfectly valid (b).

Although the time for setting aside the award might have Setting aside long elapsed, the party was at liberty, as soon as the judg- after time for judgment

(a) Doe d. Body v. Cox, 15 L. J. Q. B. 317.

(b) Wilson v. Thorpe, 6 M. & W. 721; Harrison v. Greenwood, 15 L. J. Q. B. 92.

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