in what way he will decide the point raised. (Re Spillers and Baker [1897] 1 Q. B. 312.)

by

the

The application for an order to state a case is summons in chambers. There is an appeal from decision of the judge to the Court of Appeal. (See Judicature Act, 1894, s. 1 (4).)

CHAP. XII.

a condition to

an order. Application state case.

for order to

pending application.

If an application for a special case is frivolous and Award made merely made for delay, the court will uphold the arbitrator in refusing to state one. But, if the request for a case is reasonable and bonâ fide, and pending an application to the court to compel the arbitrators to state a case, they proceed and make their award, the court may, on the ground of misconduct, remit the award under section 10 of the Arbitration Act, 1889, to enable the arbitrators to state their award in the form of a special case. (Re Palmer and Hosken [1898] 1 Q. B. 131.)

All that the arbitrator can remit to the court is a Question of question of law, and he must find affirmatively the facts law. upon which the law depends. (North and South Western Junction Rail. Co. v. Brentford Union, 60 L. T. 274; 58 L. J., M. C. 95.) He should state with clearness such facts as will enable the court to decide the question of law. (Sheridan v. Nagle (1871), Ir. R., 6 C. L. 110.)

The jurisdiction of the court under this section is con- No appeal. sultative only. The opinion expressed by the court is not an order, and there is no appeal from it (Re Knight and Tabernacle Permanent Building Society [1892] 2 Q. B. 613), differing in this respect from a special case by way of award. (Ante, p. 170.) As it is not an order it does not appear to be affected by the Judicature Act, 1894, s. 1 (b) (v.).

Unless the order directing a special case to be stated Costs. reserves to the court power over costs, the court cannot deal with the costs of a special case. They are primâ facie in the discretion of the arbitrator. Tabernacle Building Society, supra.)

(Re Knight and

CHAP. XII. Procedure on case.

Certificate, in what cases.

An award in excess of the submission

If the case is stated in an action it should be filed in the Filing Department, Central Office; if in a submission out of court, in the Associates' Department, Central Office. If stated for the opinion of a judge of the Chancery Division it will be assigned to a judge at the time of filing.

Where a verdict is taken at nisi prius, and the arbitrator has merely to certify the amount of damages for which the verdict is to be entered up, the certificate does not require a stamp. If there be nothing in the terms of the reference which obliges him to certify within any limited time, there is no rule of practice which obliges him to certify before the return of the jury process. (Salter v. Yates, 2 M. & W. 67.) The certificate should indicate exactly the manner in which judgment is to be entered, in the same manner as if the action had been tried. If both parties be entitled respectively to verdicts on different issues it should so state, or if an issue is to be taken distributively, and part found for one party, part for another, it should point out the manner in which the verdict is to be entered. No order of nisi prius is necessary where the arbitrator is thus empowered to certify. (Tomes v. Hawkes, 10 A. & E. 32.)

SECT. 2.-An award must not exceed the Submission.

An award must not go beyond the submission in things, in person, or in time, or exceed the power given by the submission in the particular case. (Watson on Awards, 179.) We have seen (ante, p. 139) that the evidence of the arbitrator is admissible to show what claims he has dealt with in his award.

If an award extend to matters not within the scope of the submission it will be void, at least as to so much as bad pro tanto. is in excess of the submission. (Hill v. Thorn, 2 Mod.

awards.

309; as to what matters are embraced in a submission, CHAP. XII. see ante, p. 79.) A misrecital will not vitiate an award not otherwise exceeding the submission (M'Cabe v. Grey, 13 Ir. L. Rep. 343; ante, p. 164), nor will an award be bad which extends to matters contemplated though not expressly named in the submission. (Onyons v. Cheese, 1 Lut. 530.) But where the award is palpably Examples of in excess of the authority, as (in an old case) an award excessive upon a real action in a submission of all personal actions, it is void. (Marks v. Marriott, 1 Ld. Raym. 116.) if a cause only is referred, the arbitrator cannot decide other matters in difference between the parties. (Atkinson v. Jones, 1 D. & L. 225.) If the question in dispute is the right of a buyer to reject goods as inferior in quality, the arbitrator cannot award that the buyer take them with an allowance. (Re Green and Balfour, 63 L. T. 97, 325; Hooper v. Balfour, 62 L. T. 646.) If the submission is as to the boundaries of certain land, and he enter into the question of title and decide it, or the like, the award to that extent will be bad (Doe d. Ld. Carlisle v. Bailiff of Morpeth, 3 Taunt. 378); though he may inquire into matters dehors the matter referred, if it is necessary for adjudicating upon the matters referred. (Eastern Counties Rail. Co. v. Robertson, 6 Scott, N. R. 802.) If he decide upon a right not claimed, or matters abandoned by the parties (Hooper v. Hooper, M'CI. & Y. 509; Crawford v. London Dock Co., 2 Cr. & M. 637; Bird v. Cooper, 4 Dow. 148), or expressly excluded from (Harries v. Thomas, 2 M. & W. 32), or not included in the submission (Poyner v. Hatton, 7 M. & W. 211; Skipper v. Grant, 10 C. B., N. S. 237), or decide as to persons who are not parties to the submission (Fisher v. Pimbley, 11 East, 188), or direct an act to be done by a stranger (Cooke v. Whorwood, 2 Saund. 337; Lee v. Elkins, 12 Mod. 585), or order something to be done which would be a trespass upon the land of a

CHAP. XII. stranger (Turner v. Swainson, 1 M. & W. 572; Lewis v. Rossiter, 44 L. J., Ex. 136), or direct any acts to be done affecting the property of a stranger, unless they are conditional upon the stranger's consent (Taverner v. Shingley, Roll. Ab. "Arb." E. 3; Nicholls v. Jones, 6 Ex. 373; 20 L. J., Ex. 275), the award, as to the excess of jurisdiction, will be bad. An arbitrator may, however, make the performance of some act by a stranger a condition precedent to some other act to be done by one of the parties. (Kirk v. Unwin, 6 Ex. 908; 20 L. J., Ex. 345.)

Evidence taken on matters not referred and award of lump sum.

Conditions to give jurisdiction not having arisen.

Common mistake as to

matters referred.

Where an arbitrator awards a lump sum and he has taken evidence of matters not referred but claimed by one of the parties, the award will not be bad on the face of it by reason of not stating that the arbitrator has rejected from his consideration matters not referred. (Falkingham v. Victorian Railway Commissioners [1900] A. C. 452.) Nor can it be impeached except by showing in fact that in arriving at the sum matters were taken into account not within the jurisdiction of the arbitrators. (Ib.)

When the jurisdiction of the arbitrator is to attach upon the happening of certain conditions, it is essential to his power to make an award that those conditions should happen. Thus, in the case of a referee of a boat race, it was necessary to enable him to award the stakes that there should be a race or a start, and, as under the circumstances the court thought that a "start" in the proper sense of the term was impossible, the condition which constituted the foundation of the referee's jurisdiction never existed, and his decision was void. (Sadler v. Smith, 39 L. J., Q. B. 17; L. R., 5 Q. B. 40.)

Where an arbitrator has by agreement of the parties jurisdiction to determine disputes which may arise as to certain matters specified in the agreement, and the parties submit to him, for his adjudication, matters not within his jurisdiction, both the arbitrator and the parties being under the misapprehension that the matters.

so submitted are within his jurisdiction, the award is good. (Thames Ironworks, &c. Co. v. The Queen, 10 B. & S. 33; 20 L. T., N. S. 318.) It would, in fact, be treated as a parol submission of the matters not within the agreement. (Ib.)

CHAP. XII.

favour of a

stranger.

An award made in favour of a person who is a Award in stranger to the submission is bad unless it be beneficial to the party entitled to receive satisfaction, and the advantage to the party should appear on the face of the award. (Bird v. Bird, 1 Salk. 74; Laing v. Todd, 13 C. B. 276.) But an award has been held good that one party should pay a specified sum to the servant of the other party (Dudley v. Mallery, 3 Leon. 62), or to a stranger to discharge a debt owing by the other party (Bedam v. Clerkson, 1 Ld. Raym. 123), or to a stranger who is the agent of the other party. (Dale v. Mottram, 2 Barnard. 291; Norwich's Case, 3 Leon. 62; Snook v. Hellyer, 2 Chitt. 43.) So, has an award to pay to "the plaintiff or to A. his attorney" (Hare v. Fleay, 11 C. B. 472; 20 L. J., C. P. 249), as also, a direction to pay to one of the arbitrators, to be by him immediately paid over to one of the parties. (Wood v. Adcock, 6 Ex. 814; 7 Ex. 468; 21 L. J., Ex. 204.)

arising

An arbitrator may not award the payment of a debt Matters which has accrued after the parties entered into the after the submission (Banfil v. Leigh, 8 T. R. 571), or the pay- submission. ment of rent not due at the date of the award. (Barnardiston v. Fowler, 10 Mod. 204; Lewis v. Rossiter, 44 L. J., Ex. 136; 23 W. R. 832.)

It was referred to an arbitrator to determine of and concerning all matters of account then depending between A. and B., and the arbitrator awarded that no partnership existed between A. and B. in respect of the W. C. farm; and that A. should pay to B. the sum of 1,3717. 178. due from him to B. in respect of shares in the C. Company; and that on payment of such sum

A.

N