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CHAP. XII. B. should deliver to A. 118 shares in the said company held by him as collateral security for the said sum; the award was held not to exceed the arbitrator's authority. (Harrison v. Lay, 13 C. B., N. S. 528.)
in lieu of decision.
An arbitrator must decide the actual questions and matters referred to him, and may not in lieu thereof award what he thinks is an equitable arrangement. (Anon., Dyer, 242 a; and see Re Green and Balfour, ante, pp. 81, 175.)
An arbitrator may in his award give any directions power to give (provided they are not illegal, or to be performed by strangers), necessary to decide the points submitted to him (Pascoe v. Pascoe, 3 Bing. N. C. 898); but unless there be some clause empowering him to say what shall be done, or the nature of the reference imply or require it, the arbitrator is rarely justified in giving any particular directions respecting property in dispute. Thus, in a reference touching the sufficiency of a doubtful title, it was held that the arbitrator was not justified in awarding that the purchaser should take it with all its faults (Ross v. Boards, 8 A. & E. 290); and in a dispute concerning the right to fixtures, he was held not to be empowered to order their replacement. (Price v. Popkin 10 A. & E. 139.) So, on a reference as to rent, an arbitrator cannot award a power of distress unless expressly authorized to do so. (Pascoe v. Pascoe, supra.) On a submission of all matters in difference between partners, the arbitrator may, as we have seen, award a dissolution of the partnership (ante, pp. 64, 81; Green v. Waring, 1 W. Bl. 475; Hutchinson v. Whitfield, Hayes (Ir. Ex.), 78), but he is not bound to do so. (Simmonds v. Swaine, 1 Taunt. 549.) An arbitrator who had authority to decide on what terms a partnership agreement should be cancelled, directed, amongst other things, that one of the partners should have all the debts due to the firm, and should, if necessary, sue for them in the name of
What directions may be given on partnership refer
his late partner, was held not to have exceeded his CHAP. XII. authority (Burton v. Wigley, 1 Bing. N. C. 665); and where a submission empowering an arbitrator to settle terms of dissolution, provided that one of the partners should still carry on the business, an award that the other should not carry on the same business within thirteen miles of the particular town was held good. (Morley v. Newman, 5 D. & R. 317.) In Wood v. Wilson (2 C. M. & R. 241), the submission gave power to the arbitrator to direct a division of the partnership effects, and contained an agreement that each of the two partners would execute to the other conveyances according to such division. An award that one partner should purchase the share of the other was upheld.
The arbitrator has no power unless authorized by the submission to appoint a receiver to get in the partnership assets (Lingood v. Eade, 2 Atk. 505), neither can he direct one of the partners to pay a sum of money to himself, to be by him applied in liquidation of the debts of the firm. (Re Mackay, 2 A. & E. 356.)
In a case in which, on a dissolution of partnership between A. and B., A. offered to sell his interest to B. for 20,000l., and B. refused, but offered to buy it for 18,000l., which A. refused, and it was referred to C. to say what price should be paid by B. for A.'s interest; it was held that C. had no authority to name a price outside the limits of those two sums. (Thomson v. Anderson, L. R. 9 Eq. 523; 39 L. J., Ch. 468.) The principle of this case applies to any reference between vendor and purchaser.
to appoint a receiver.
On a general reference of all matters in difference, the Power to arbitrator has authority to order the parties to execute mutual releases if confined to the matters referred (Cable v. Rogers, 3 Bulst. 311; Ingram v. Milnes, 8 East, 445; Goddard v. Mansfield, 19 L. J., Q. B. 305; 1 L. M. & P. 25); but where a cause only is referred he has no such power. (Doe d. Williams v. Richardson, 8 Taunt. 697.)
CHAP. XII. The form of the release need not be indicated by the arbitrator (Toby v. Loribond, 17 L. J., C. P. 201; 5
C. B. 770); nor should he order it to be settled by a third party. (Goddard v. Mansfield, supra.)
Where the arbitrator has to decide upon disputes concerning real property, and he has express or implied power to direct a conveyance (Smalley v. Blackburn Rail. Co., 2 H. & N. 158; 27 L. J., Ex. 65; Johnson v. Wilson, Willes, 248), he should specify the nature of the instrument, and may not reserve the right to name a counsel to settle it (Re Tandy, 9 Dow. 1044; Tipping v. Smith, 2 Stra. 1024), and should direct by whom (that is, which party) and at whose expense it is to be prepared (Standley v. Hemmington, 6 Taunt. 561); but he need not draw it himself. (Tebbutt v. Ambler, 2 Dow., N. S. 677.) As property in land will not pass by an award, the arbitrator must direct a conveyance, when the object of the reference is to make any change in the ownership of land (Johnson v. Wilson, supra), though a direction. for the delivery of possession of land may be enforced by the court.
Where an arbitrator in settling a deed had done so in a manner exceeding his authority, Kay, J., held that the court had jurisdiction to settle the deed, instead of referring it back to the arbitrator. (Evershed v. Evershed, 30 W. R. 732; 46 L. T. 690.)
Besides the implied power of an arbitrator to give power to give directions as to matters in dispute, an express power is often inserted in submissions. Where the arbitrator "is to determine," or "shall have power to determine," what he shall think fit to be done, he is not bound to direct affirmatively that something shall be done unless he shall so think fit (Angus v. Redford, 11 M. & W. 69; Nicholls v. Jones, 20 L. J., Ex. 275; 6 Ex. 373); though it may frequently happen that such a power must be construed as compulsory, or the award would be bad, as
not being final. (Ross v. Clifton, 9 Dow. 356; but see Grenfield v. Edgecombe, 7 Q. B. 661; 14 L. J., Q. B. 322.)
When authorized to give directions the arbitrator Directions must take care that they are not in excess of his exceeding the authority; thus, where an action in which the plaintiff claimed a right of way (not a carriage way) was referred to an arbitrator to direct in what manner the road in question should (if at all) be enjoyed by the plaintiff, and the arbitrator awarded that the plaintiff was entitled to a right of way, including a carriage way, it was held bad as exceeding his authority. (Hooper v. Hooper, M'CI. & Y. 509.) In Bonner v. Liddell (1 B. & B. 80), there was an agreement for a lease of a coal mine for sixty-three years from the 1st May, 1801, the lessee to be allowed three years for winning the colliery without payment of rent; and an arbitrator, being authorized to give such directions for a lease according to the terms of the agreement as he should think fit, directed a lease of sixty-three years from 1804; it was held that he had exceeded his authority, and consequently that the award was bad. Where a submission empowered the arbitrator to decide how, and by whom, and in what manner, a certain pump, yard, hedge, and ditch, respecting which disputes had arisen, should in future be enjoyed and occupied, and who should have the care and management thereof; and the arbitrator, after finding that the pump was the exclusive property of one of the parties, subject to an easement in it by the other, was held not to be authorized to partly dispose of the property in it to the other, so as to make the two disputants tenants in common. (Bootle v. Davies, 3 A. & E. 200.) But under a power to the arbitrator to decide the right to a certain stream of water claimed in the action, and to regulate the use of it in future, and to order and determine what he should think fit to be done, it was considered that the
CHAP. XII. authority to regulate the flow of the stream in dispute
Should direct payment of sum found
order payment by instalments, promissory notes, &c.
May award aggregate sum for distinct claims.
incidentally and necessarily empowered the arbitrator to affect the enjoyment of other rights of the parties, and to make regulations respecting the flowing of the water in the stream in question, notwithstanding they interfered with the former enjoyment of other streams not the subject of dispute. (Winter v. Lethbridge, 13 Price, 533.)
When an arbitrator finds a sum to be due from the one party to the other he should give an express direction for its payment, otherwise the party liable cannot be compelled by attachment to pay (Edgell v. Dallimore, 11 Moore, 541; 3 Bing. 634; Hopkins v. Davies, 1 C. M. & R. 846; Scott v. Williams, 3 Dow. 508), though he may by an order in the nature of a judgment.
The arbitrator may (but need not of necessity) appoint the time and place of payment of the amount awarded to be paid by one party to the other; and may award payment by instalments. (Kockill v. Witherell, 2 Keb. 838.) If he order payment at a future day, he may direct the party liable to pay, to give a promissory note (Booth v. Garnett, 2 Stra. 1082), or a bond in a penalty, but not with a surety. (Cooke v. Whorwood, 2 Saund. 337.)
When an arbitrator directs payment by one party of charges for which the other is liable, he may require a bond of indemnity to be given by the former to the latter. (Brown v. Watson, 6 Bing. N. C. 118; Goddard v. Mansfield, 19 L. J., Q. B. 305.)
An arbitrator may award one sum generally in respect of all money claims submitted to him, unless the submission provide, or there is some legal necessity, for his awarding separately-as, for instance, to determine the right to costs. (Re Whitworth and Hulse, L. R., 1 Ex. 251; 35 L. J., Ex. 149; and see Rule v. Bryde, 1 Ex. 151; 16 L. J., Ex. 256.)