PART III. CH. XI. S. 2. Grounds of motion. Entitling affidavits. Cross motion. No appeal against the decision. Appeal from refusal to set aside award. No order nisi to set aside. Old practice filing excep tions to award. It was not necessary, nor was it usual, in old times, that the notice of motion should state the grounds on which it was sought to impeach the award; but the more modern practice was to state them with the same particularity as in a rule nisi to set aside an award at common law (h). It is to be observed that where the award was under a submission other than by order of court made in a suit, that the affidavits to be used on the motion should have been entitled, "In the matter of the arbitration between [the parties], and the matter of the [the act giving the court jurisdiction over the award]” (i). This notice of motion might have been given, and come on to be heard as a cross motion with the motion to make the award an order of court (). It may be here mentioned that on a motion to set aside an award, before the Judicature Act, when the submission had been made an order of the Court of Chancery under the statute, the order of that court confirming the award was held to be final, and not subject-matter of appeal to the House of Lords (1). Where a judge in the Chancery Division has refused to set aside an award, the appeal against the refusal should now be set down on the interlocutory, and not on the final, list (m). It was not the usual practice in Chancery to move for a rule nisi to set aside an award, but it was done in one case under peculiar circumstances (n). Now Order LII. r. 2 (1883), prohibits rules nisi for this purpose. 111. Filing exceptions to an award in a suit.]—When matters in a suit were referred to an arbitrator by an order of Chancery made by consent in the cause, according to the ancient practice, the arbitrator was looked upon in much the same light as a master; his award was considered as little conclusive as a master's report, and orders to confirm awards (h) Mercier v. Pepperell, 19 Ch. (i) Re Law, 4 Beav. 509. 276. (7) O'Sullivan v. Hutchins, cited in Bignold v. Springfield, 7 C. & F. 85; 2 Daniell's Chanc. Pract. by Headlam, 1356, 1357. (m) Delagoa Bay Rail. Co. v. Tancred, 61 L. T. 343. (n) Elliott v. South Devon Rail. Co., 2 De Gex & S. 17. PART III. CH. XI. S. 2. were as necessary as orders to confirm reports (p). It was, moreover, prescribed, that the award ought to be filed and confirmed before the party could ground any order on it, and that after it was filed, and an order to confirm it nisi obtained, the other side was at liberty to file exceptions to it, which were to be decided on argument (g). Now, however, since Present practhe decision of the arbitrator is looked upon as that of the court, and held to be final, the practice is changed; and exceptions can no longer be taken to an award, except, probably, in the rare cases where the arbitrator is expressly substituted for the master to take the accounts in the cause like that officer (). (p) Crawshay v. Collins, cited in Heming v. Swinnerton, 1 Coop. C. C. 419, notes, S. C. 3 Swanst. 90; 1 Wils. C. C. 31; 1 Swanst. 40. (2) Vernon v. Wells, 2 Dick. 452; Crofton v. Connor, 1 Bro. P. C. 530; Cresly v. Carrington, 1 Vern. 469; Hide v. Cooth, 2 Vern. 109. (r) Crawshay v. Collins, 3 Swanst. 90, S. C. 1 Wils. C. C. 31; 1 Swanst. 40; 1 Coop. C. C. 419, notes; Woodbridge v. Hilton, 2 Dick. 640, S. C. 1 Bro. C. C. 398; Price v. Williams, 3 Bro. C. C. 163; Knox v. Symmonds, 1 Ves. Jr. 369; Dick v. Milligan, 2 Ves. Jr. 23, S. C. 4 Bro. C. C. 117, 536; Ford v. Gartside, 2 Cox, 368. tice no exceparbitrator put tions but when for master. 706 PART III. CH. XII. Scope and contents of the twelfth chapter. CHAPTER XII. EFFECT OF THE FAILURE OF THE REFERENCE. As it is evident, from what has been already said respecting the results of a reference which has become ineffectual from no award having been made, or if made, from its having been condemned as invalid, that the matters submitted to the arbitrator are in general left in the same position as if no reference had ever taken place; it is sufficient in this concluding chapter, respecting the consequences of an abortive arbitration, to narrow our observations to the one or two points which yet require an explanation: namely, respecting the effect of the failure of the reference on the action referred, which is noticed in the first section; and the question treated of in the second section,-whether the courts will decree specific performance of a contract, whose terms were to have been settled by an arbitration, which has become fruitless. PART III. CH. XII. S. 1. Reference failing, action proceeds. SECTION I. THE REFERENCE FAILING, PROCEEDING IN THE CAUSE REFERRED. When an action at law is referred, and the reference proves abortive, either from no award having been made, or if made, from its having been afterwards set aside, the parties may go on with the proceedings in court, unless it were stipulated in the agreement of reference, or agreed to at the time of the submission, that the cause should be terminated (8). (8) Lowes v. Kermode, 8 Taunt. 146; Harries v. Thomas, 2 M. & W.32. PART III. CH. XII. S. 1. withdrawn. failure. Withdrawing a juror on a submission at Nisi Prius does not of necessity put an end to the cause. If the reference fail, the plaintiff is not concluded in the action, unless the When juror cause were abandoned by consent. The parties may, however, consent not only to give up the cause, but to preclude themselves from bringing a fresh action for the same matter (t). When a verdict has been taken on a submission at Nisi When verdict taken, new Prius, and the reference has failed, either from the arbitrator's trial on refusal to accept it or his omission to enlarge the time (u), or his death (x), or from the order of reference being annulled (y), or from the award being set aside, or from other causes (z), and the parties do not agree to a second reference, the ordinary course, as the case has never been decided, is to send it down again for a new trial. Where an action by an infant plaintiff Infant plain(suing by his next friend) was referred before trial by verbal tiff avoiding agreement, and the record was withdrawn, and the arbitrator awarded in favour of the defendant, and directed the plaintiff to pay all costs, the court directed that on the plaintiff's refusal to abide by the award and to comply with its terms, the defendant should be at liberty to proceed to trial in the action by proviso (a). award. aside, verdict When the award is set aside, the first verdict taken subject Award set to the reference is impliedly set aside as well, although the falls. rule to set aside the award is silent respecting the verdict. trial first But when the reference fails before an award is made, and Before new the plaintiff wishes to proceed in the cause, before a new verdict must trial is had, the verdict taken by consent subject to the be set aside. reference, and already entered on the Nisi Prius record, or standing in the associate's book, must be set aside; for a second verdict will be considered irregular while the first remains, unless, indeed, the irregularity have been waived by both parties (b). If the verdict be taken subject to the reference, on the trial Verdict on of a cause on a writ of trial, the plaintiff must get rid of the writ of trial (t) Harries v. Thomas, 2 M. & W. 32; Moscati v. Lawson, 1 H. & W. 572. (u) Hall v. Phillips, 9 Bing. 89. (x) Harper v. Abrahams, 4 Moore, 3. (y) Morgan v. Miller, 6 Bing. N. C. 168. (z) Bacon v. Cresswell, 1 Hodges, 189; Thompson v. Jennings, 10 Moore, 110. (a) Godfrey v. Wade, 6 Moore, 488. (b) Hall v. Rouse, 6 Dowl. 656; Evans v. Davies, 3 Dowl. 786. subject to reference. PART III. CH. XII. S. 1. Award set aside, costs of first trial. Compelling defendant to refer again. When only amount of damages referred. When cause referred generally. verdict before he takes the cause down to trial again; for the verdict is not a nullity, though the under-sheriff has of himself no authority to refer the cause (c). When an award was set aside, the case was analogous to that of a venire de novo, and it was settled law before the Judicature Acts that if the rule were silent as to costs, the party for whom the verdict was entered subject to the reference would not be entitled to the costs of the first trial, though he succeeded on the second (d). Sometimes, instead of the cause being sent down to a new trial, the jurisdiction which the court retained over the verdict would, at the instance of the plaintiff, be exercised to compel the defendant to submit the case again to the same or a fresh arbitrator. When the plaintiff was entitled to some damages, and the only question was respecting the amount, the court will allow the plaintiff to enter judgment, and sue out execution for the amount of damages taken on the verdict by consent (though some indulgence would sometimes be given to the defendant's bail), if, on the first reference failing, the defendant refused to consent to a new arbitration; for the legal liability had been already decided in favour of the plaintiff, and so the failure of the reference did not entirely reopen the cause (e). Such seems now to be the settled rule, though the first time such an application was made, the court seemed startled by the novelty, and refused it, notwithstanding the defendant had acted contrary to good faith; the court, however, delivered the postea to the plaintiff, with liberty to enter a verdict reducing the amount of damages to a shilling (ƒ). The cases as reported do not seem quite consistent as to the extent of power which the courts retain over the verdict. Even when the submission included the general merits of the case, and not merely the amount of damages, the Court of (c) Harrison v. Greenwood, 15 L. J. Q. B. 92, S. C. 3 D. & L. 353. (d) Wood v. Duncan, 5 M. & W. 87; Reg. Gen. H. T. 2 W. IV. r. 64, rep. 8; Bing. 297; 3 B. & Ad. 383; 1 M. & Scott, 424; 2 C. & J. 85; 2 Tyrw. 346; Payne v. Bailey, 7 Moore, 147, S. C. 3 B. & B. 304; Poole v. Selwood, 1 Price, 310; Summers v. Formby, 1 B. & C. 100; Burchall v. Ballamy, 5 Burr. 2698. (e) Evans v. Davies, 3 Dowl. 786; Woolley v. Kelly, 1 B. & C. 68; Taylor v. Gregory, 2 B. & Ad. 774. (f) Harper v. Abrahams, 4 Moore, 3. |