PART I. CH. III. S. 6. No limit to damages out of the action. Verdict security for damages in the cause only. Juror with damages to cover all the plaintiff's claims in the action, because the arbitrator cannot in respect of those claims award a sum exceeding the amount of the damages taken. If he do, it is said his award will not entitle the plaintiff even to that amount, but will be bad altogether (k). Where, however, other matters besides the cause are referred, the arbitrator is not limited by the amount of the verdict in respect of the additional matters; and the successful party, though he cannot recover on the verdict, may yet have a remedy on the award (1). But although the amount of damages taken be large enough, the verdict does not stand as a security for the whole sum awarded due, but only for such sum as the arbitrator may find to be the damages recoverable in the action; and if the arbitrator award a gross sum in respect of the cause and of the other matters in difference as well, the verdict will not stand as a security for any part of the sum awarded (m). Sometimes, instead of taking a verdict, a juror is withdrawn or jury drawn on a reference being agreed to. This course does not discharged. necessarily put an end to the cause. It depends on the agreement of the parties whether the reference be in the cause, or whether the cause be terminated and the submission be of the claims between the parties but not of the cause itself (). If the cause be terminated each party pays his own costs (6). Real actions, such as a quare impedit, might have been referred by order of Nisi Prius (p). Two actions, such as cross actions between the same parties, may be referred by one order (q); so also a cause and all matters in difference between the parties, including suits in equity (though it is not clear whether such a reference was by common law only as to the matters out of the cause, or whether it was under the stat. PART I. CH. III. S. 6. 9 & 10 W. III. c. 15 (r). A cause and an indictment against one of the parties to the cause might be referred by one order (s). Even several causes between several parties, and an indict- Indictment. ment against one of them, have been submitted by a single order of Nisi Prius, verdicts having been taken by consent in the causes and indictments, subject to the reference (t). But an indictment cannot be referred by order of Nisi Prius when a verdict of not guilty has been taken subject to the reference, and no power is specifically given to the arbitrator to alter the verdict. A verdict of guilty should be taken subject to the award. When a verdict of not guilty was taken on an indictment for perjury, tried at Nisi Prius, and the indictment and all matters in difference were referred by order of Nisi Prius, the reference was not wholly illegal, as the attempt to refer the indictment for perjury was a nullity, but it was doubtful whether the Nisi Prius order was valid, as the verdict of not guilty put an end to any proceedings in court (u). The court has no power under the Arbitration Act, 1889, to refer a criminal proceeding by the Crown; nor to compel a reference of cause and all matters in difference (see p. 88). When a cause and all matters in difference have been referred by an order of Nisi Prius, it is improper to draw up a second order referring another cause between the same plaintiff and one of the same defendants (x). A judge sitting at Nisi Prius had, in old time, no authority Not issue out of Chancery. to refer an issue directed out of Chancery (y). Nor on a Not cause trial by jury before the sheriff under the Writ of Trial tried before Clause (z) had that officer any authority to permit a verdict to sheriff. be taken by consent, subject to a reference of the cause. He was not in this respect like a judge at Nisi Prius, and could not give an arbitrator power to alter the verdict of the jury (a). (r) Allenby v. Proudlock, 4 Dowl. 54; Lucas v. Wilson, Burr. 701; Wrightson v. Bywater, 3 M. & W. 199, S. C. 6 Dowl. 359; Harrison v. Smith, 1 D. & L. 876; Com. Dig. Arb. D. 1; Hayward v. Phillips, 6 A. & E. 119; R. v. Hardey, 14 Q. B. 529. (s) Blanchard v. Lilly, 9 East, 497; R. v. Bardell, 5 A. & E. 619, S. C. sub nom. R. v. Shillibeer, 5 Dowl. 238. (t) Aldridge v. Harper, 10 Bing. 118. (u) R. v. Hardey, 14 Q. B. 529. 263. (y) Woodley v. Johnson, 1 Mol- (z) 3 & 4 W. IV. c. 42, s. 18. PART I. CH. III. S. 6. Reference on the "usual terms." Judgment. Costs. Death of party. Preventing award. The reference is often agreed to be made on "the usual terms," or on the usual terms with some additional provisions applicable to the particular case. It is important that the parties should know to what they consent, when they agree to refer on "the usual terms "(). The form of a reference at Nisi Prius very recently in general use, and which probably will be deemed to contain "the usual terms," varies in some measure from the older precedent (c). In such an order it is always specially arranged whether its terms are to apply to matters in the cause only, or are to extend further. Very frequently all other matters in difference between the parties are referred with the cause. Assuming the newer form to contain "the usual terms," the parties by agreeing so to refer when a verdict has been taken at Nisi Prius, subject to the reference, consent that the arbitrator shall direct whether judgment is to be for the plaintiff or for the defendant, and for what amount of damages, not exceeding, however, the amount claimed in the action. The older form gave the arbitrator no power over the judgment. The parties consent, also, that the costs of the cause shall abide the event of the arbitrator's decision in the action, but that the costs of the reference and award shall be in his discretion. Practically, they give the arbitrator an unlimited time for making his award. The death of either party is not to abate his authority. They agree that he shall have all the powers of certifying and amending pleadings and proceedings (d) as a judge of the High Court of Justice. The order used to direct that the parties and witnesses should be examined on oath ; but the latest form in use omits that stipulation. The parties agree also to produce all documents relating to the matters referred. They agree further to obey his award, and to bring no action respecting the matters referred, against the arbitrator or each other. They consent, too, that if either of them wilfully prevent the arbitrator making an award, he will pay such costs to the other as the court shall think fit, and that if either party dispute the validity of the award, the court may refer the matters, or any of them, back to the arbitrator to (b) Grimstone v. Bell, 4 Taunt. 253. (c) See Appendix of Forms, Submissions, Form XVIII. (d) Thompsett v. Bowyer, 30 L. J. C. P. 1, S. C. 9 C. B. N. S. 284. PART I. CH. III. S. 6. reconsider; and also (in the newer form) that if the arbitrator settle amount On a reference after verdict for the plaintiff to an arbitrator Reference to to settle the amount of the damages, the expression "usual of damages. terms as to costs," means, that the costs of the reference and award are in the discretion of the arbitrator (ƒ). what to be done. In many of the forms of orders of reference in use by the Power to say officers of the courts, a power was given to the arbitrator to direct what he should think fit to be done by the parties respecting the matters referred. This, though a power most usefully inserted in many cases, does not fall under the category of being one of the usual terms (g). Whether the reference take place at Nisi Prius, or at any previous time by judge's order, a reference on the usual terms means the same (h), except, it is submitted, that on a reference on the usual terms before trial the arbitrator would have no power given him to direct the entry of a verdict. A clause for making an order of Nisi Prius a rule of court, Rule of court. though of old usually contained in such an order, was not necessary, at least when only the cause was referred; for the court has an inherent authority, independent of any consent of parties, to make an order of a judge or of the Court of Nisi Prius an order of court (i). It seems still less necessary since the Arbitration Act, 1889. IV. Setting aside a submission made in a cause.]-When a Jurisdiction cause was referred by rule of court, judge's order, or order of of the courts Nisi Prius, although the submission removed it to a different submission. 627. Morgan v. Thomas, 9 Jur. 92. f) Morel v. Byrne, 28 L. T. N. S. (g) Per Wightman, J., at Chambers, 1862. (h) Thompsett v. Bowyer, 30 L. J. C. P. 1, S. C. 9 C. B. N. S. 284. (i) Millington v. Claridge, 3 C. B. 609; Halden v. Glasscock, 5 B. & C. 390; Hart v. Draper, 2 Marsh. 358. See Little v. Newton, 1 M. & G. 977, n. (a); Haggett v. Welsh, 1 Sim. 134; Allenby v. Proudlock, 4 Dowl. 54; Hayward. Phillips, 6 A. & E. 119. over the PART I. CH. III. S. 6. Setting it aside for fraud or mistake. Setting it aside in equity. For bad faith. Compulsory reference. forum, namely, that of the arbitrator, the court by common law still retained a certain jurisdiction over the submission, the proceedings in the reference, and the award. This was not analogous to its power over an ordinary judge's order drawn up by consent for payment of debt and costs. For this the court may set aside at any stage of the proceedings, whereas it will interfere with an order of reference only in a certain way and according to certain rules and regulations (4). If a submission has been obtained by fraud or drawn up by mistake, the court on motion will set it aside. But it will not set aside an award on the ground of fraud or mistake in the submission (7). Where a third party who had agreed to join in a submission of a cause refused to proceed in the reference, the submission was set aside on the application of one of the parties on the record (m). Equity would not set aside an agreement of reference as obtained by undue pressure, where the party objecting had attended the reference and taken the chance of an award in his favour (n). So where by order of Nisi Prius a verdict was taken for the plaintiffs by consent for the penalty of a bond, the amount to be reduced according to the award of a master in Chancery, to whom it was agreed that a suit in Chancery relating to the bond should be referred by a decree of the Court of Chancery to be drawn up by consent, but owing to the plaintiffs' bad faith the decree could not be obtained; as the reference thus failed, the Court of Common Pleas set aside the order of Nisi Prius at the plaintiffs' instance, notwithstanding their bad faith, as they were mere trustees for a widow and infants; but they were compelled to pay the costs of the former trial, and of the several actions in court (o). A compulsory reference was set aside, when it appeared that there was no dispute as to the amount, but only as to liability (p). (k) Wade v. Simeon, 13 M. & W. 647. (1) Doe d. Ld. Carlisle v. Bailiff, &c. Morpeth, 3 Taunt. 378; Sackett v. Owen, 2 Chitt. 39; Prosser v. Goringe, 3 Taunt. 425. (m) Bacon v.Cresswell, 1 Hodges, 189. (n) Ormes v. Beadel, 30 L. J. Ch. 1, S. C. 2 Giff. 166; In re Wyld, 30 L. J. Bank. 10, S. C. De G. F. & J. 642. (0) Morgan v. Miller, 6 Bing. N. C. 168. (p) Brown v. Girard, 19 L. J. N. S. Ex. 324. |