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Where reference out of


In the case of a reference by consent out of court, a CHAP. XVI. valid award is final and binding on the parties and privies (Arbitration Act, 1889, s. 2, sched. 1, cl. (h)), and is conclusive as to the matters submitted, debarring the parties both from appeal (Goodman v. Sayers, 2 J. & W. 259; Re Durham County, &c. Building Society, 41 L. J., Ch. 164; L. R., 7 Ch. 45; Re Keighley, Maxsted and Bryan [1893] 1 Q. B. 405, 409, per Lord Esher, M.R.; Caledonian Rail. Co. v. Turcan [1898] A. C. 256), and from again litigating the same subject-matter. (Dudgeon v. Thomson, 1 Macq. 714; Williams v. Moulsdale, 7 M. & W. 134; Price v. Price, 9 Dow. 334.)


Where the parties to a contract have referred the Arbitrator's question of its construction to an arbitrator his award of contract, is conclusive as to its construction in a subsequent action for other breaches of the same contract. (Gueret v. Audouy, 62 L. J., Q. B. 633.)

effect on

future rights.

Where referwith other

ence of action

An order of reference by consent, of an action and other matters in difference, stands upon the same footing as a reference by consent out of court. It is final, and matters. can only be reviewed upon the same grounds as the latter. (Darlington Wagon Co. v. Harding [1891] 1 Q. B. 245; 60 L. J., Q. B. 110.)


Where an action alone is, by an order of court, referred Where action to an arbitrator the award shall, unless set aside by the referred. court or a judge, be equivalent to the verdict of a jury.

(Arbitration Act, 1889, s. 15 (2).)

We have seen (ante, p. 221) that the arbitrator has power to direct judgment to be entered. When he has

CHAP. XVI. done so either party may move to set aside the

Reference to official or

special referee.

Res judicata.

Excessive award sustained if

faith to treat it as void.


The effect, and mode of dealing with the report or award of an official or special referee, will be considered more fully in Chapter XIX.

If the award is good on the face of it, and neither party has taken steps to impeach it, each party is prohibited from objecting to it, and as to all matters which it professes to decide, it as much precludes the parties from alleging anything contrary to the award as a judgment would, on the ground that it is res judicata. (Cummings v. Heard, 39 L. J., Q. B. 9; L. R., 4 Q. B. 669; Parkes v. Smith, 19 L. J., Q. B. 405; 15 Q. B. 297; Martin v. Boulanger, 49 L. T. 62.) But where a plaintiff had filed a bill in chancery against a defendant for infringing his patent, and for an injunction, and the matter was referred to an arbitrator, who decided by inference, but by inference only, that the plaintiff was the true and first inventor, and therefore that the letters patent were not void-this might be collected from the award, but was not so stated directly or positively-it was held in an action afterwards, by the same plaintiff against the same defendant, that the defendant was not estopped by that award from denying that the plaintiff was the true and first inventor, and therefore that the patent was void, an award in that form being no estoppel. (Newall v. Elliot, 1 H. & C. 797; 32 L J., Ex. 120.)

Though a submission may be in excess of the powers of one of the parties, or the award in excess of the against good arbitrator's authority, yet if one party have given up any right, or placed himself in a worse position, upon the faith of the excessive instrument being binding, the court will hold it binding, since it would be against good faith to allow it to be treated otherwise. (London and North-Western Rail. Co. v. Bedford, 17 Q. B. 978;

Leicester Waterworks Co. v. Cropstone Overseers, 44 L. J., CHAP. XVI. M. C. 92; 32 L. T. 567.)

An arbitrator's decision upon a question of fact is conclusive; and where the claims of the plaintiff in an action were referred it was held that the arbitrator's decision that a certain claim made by the defendant was within the submission was conclusive. (Fariell v. Eastern Counties Rail. Co., 2 Ex. 344; 17 L. J., Ex. 297.) But an arbitrator's decision as to the extent or limit of his authority is not in all cases conclusive. (Ib.; Toby v. Lovibond, 5 C. B. 770; 17 L. J., C. P. 201; Hutcheson v. Eaton, 13 Q. B. D. 861; 51 L. T. 846.)

Award conthe facts

clusive as to


Ordinarily the rights of a stranger will not be affected Effect of by an award. (Thompson v. Noel, 1 Atk. 60.)

award on

rights of

An award against a principal debtor is not binding strangers, upon a surety, or evidence against him in an action by the creditor, unless the surety shall have agreed in the plainest terms to be bound by such award. (Ex parte Young, Re Kitchin, 50 L. J., Ch. 824; 17 Ch. D. 668.) But a stranger may be bound by acquiescence, and where A., having a claim on property which he knew was the subject of a reference between C. and D., suffered the award to be made without bringing forward his claim, Shadwell, V.-C., held that he was bound by the award. (Govett v. Richmond, 7 Sim. 1.) So, if the on trustee in trustees of a bankrupt attend meetings under a reference bankruptcy, to which the bankrupt was a party, and make no objections to the proceedings, they will be considered as adopting them, and be bound by the decision. (Dod v. Herring, 1 Russ. & M. 153.) And in an old case, where an award was made in an adverse suit between A. and B., and confirmed by the court, A. being then a bankrupt, but not being known to be so, a commission was afterwards taken out, and the award was held to bind the assigns under the commission. (Whitacre v. Paulin, 2 Vern. 229.)


on adverse claimants.

Effect of award on

The award is binding upon every one claiming through or under the parties to the reference, though claiming adversely to them. (Martin v. Boulanger, 52 L. J., P. C. 31; 8 App. Cas. 296.)

An award is conclusive as to all such matters in difference between the parties, as are within the scope difference not of the reference, notwithstanding they were not brought

matters in


before arbi


before the attention of the arbitrator; for if one of the parties has neglected to bring before the arbitrator any matter when he might have done so, he cannot afterwards maintain an action on such matter, or take advantage of it in answer to a motion to enforce the award. Thus, where the reference was of "all actions and causes of action between the parties," and after the award made, the party thereby ordered to pay a sum of money, wished to deduct from it a sum due to him from the opposite party, and which had not been under the consideration of the arbitrators, the court held that he could not do so, for the order of reference was large enough to include that transaction, and it should have been discussed before the arbitrators. (Smith v. Johnson, 15 East, 213.) And where an action by a person for his salary, and also for damages for dismissal from service, was referred, and the plaintiff gave evidence of dismissal, but claimed no damages for it before the arbitrator, who only awarded the amount of the salary, it was held that the award was nevertheless a bar to a second action for damages for the dismissal. (Dunn v. Murray, 9 B. & C. 780.) So, where an arbitrator to whom an action of ejectment and all matters in difference were referred, with a provision that the arbitrator should decide what compensation should be paid to the plaintiffs for lands which the defendants, a railway company, had taken for the purpose of their railway, the terms of the reference being wide enough to embrace a claim for mesne profits, it was held to be concluded by

the award, though it had not been specifically set up before the arbitrator. (Smalley v. Blackburn Rail. Co., 27 L. J., Ex. 65; 2 H. & N. 158.)

But a reference of "all matters in difference" does not preclude one of the parties from afterwards suing for a cause of action subsisting at the time of reference, but not then a matter in difference. (Ravee v. Farmer, 4 T. R. 146; Thorpe v. Cooper, 5 Bing. 129.)

An award is only conclusive as to the questions actually referred (Oxenham v. Lemon, 2 D. & R. 461), and a reference of the quantum of a demand, does not waive an objection to the legality of it. (Steers v. Lashley, 1 Esp. 166.)

A reference under the L. C. C. Act, 1845, is only to assess compensation, and the award determines nothing. as to the title of the claimant to receive the compensation, which, if disputed, must be established by an action (ante, p. 28), and so, in the case of a reference under the Public Health Act, 1875. (Ante, p. 31.)

Where all matters in difference are referred to an arbitrator, an award, directing the execution of mutual general releases, closes all accounts between the parties up to the time of the submission. (Trimingham v. Trimingham, 4 N. & M. 786.) But where the generality of the words of a release, executed according to the directions of an award, might extend to a matter the parties did not intend the arbitrators to adjudicate upon, and upon which they did not adjudicate, the generality of the words will be restrained by the intention of the parties. (Upton v. Upton, 1 Dow. 400.)

Except the reference be under a statute giving an award the effect of a conveyance, an award that one person shall convey land, or any interest in land, will not itself operate as a conveyance (Rolle, Ab. "Arb." A. 3; Marks v. Marriot, 1 Ld. Raym. 114; Henry v. Kirwan, 9 Ir. C. L. Rep., N. S. 459), or as a partition of lands between

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