CHAP. XVII. of the defendant; and as they had no power to amend Stating grounds of application. they gave the plaintiff the option either of having the award set aside or letting it stand if he were willing to pay the defendant's costs on the issue erroneously found in his favour, the merits not being affected and the order of nisi prius precluding a writ of error. (Moore v. Butlin, 2 N. & P. 436; Ward v. Dean, 3 B. & Ad. 234.) In certain cases acquiescence in the award, as taking a benefit under it, has been held to debar a party from moving to set it aside. Thus, where a party had received the costs of the reference, and of the award, which by the terms of the rule of reference were to be paid to him, the court held that he was precluded from applying to set aside the award. (Kennard v. Harris, 2 B. & C. 801.) But requesting time for a week to pay the money awarded, and attending the taxation of costs, is not such an acquiescence as to prevent the party from afterwards moving to set the award aside. (Hayward v. Phillips, 6 A. & E. 119.) A clause in the submission prohibiting the parties from bringing any action or suit respecting the matters referred does not preclude a motion to set aside the award. (Re Mackay, 2 A. & E. 356.) The rule (Order LII., r. 4), only requires that the notice of motion shall state" in general terms" the grounds of the application. It is submitted that usually the notice. should state the grounds with the same particularity as was formerly required at common law in the case of a rule nisi for setting aside an award. (Mercier v. Pepperell, 51 L. J., Ch. 63; L. R. 19 Ch. D. 58.) Therefore, by analogy, it would seem not to be sufficiently specific to state as a ground for the motion "that the arbitrator has exceeded his authority" without specifying how (Staples v. Hay, 13 L. J., Q. B. 60); or that the award is uncertain, or not final (Boodle v. Davies, 3 A. & E. 200); or "that the arbitrator has not by his said award raised the points of law which on the part of the plaintiff he CHAP. XVII. was requested to raise" (Bradbee v. Christ's Hospital, 4 M. & G. 714); or that the arbitrator has made his award "under a misapprehension of the terms of the reference" (Allenby v. Proudlock, 4 Dow. 54), or the like. But formerly the generality of the statement in the rule nisi was allowed to be aided by the specific instances pointed out in the affidavits, so that where the rule expressed as the ground of moving that the arbitrator had not decided all matters in difference, and the affidavit whereon the rule was granted specified the particular matters in difference not decided by the arbitrator, it was held that, coupling the affidavit and the rule together, the objections were sufficiently stated. (Rawsthorn v. Arnold, 6 B. & C. 629.) So a statement "that the arbitrator had not awarded on a matter in difference submitted to him," as a ground of objection, coupled with an affidavit indicating the matter in difference, was held sufficiently specific. (Dunn v. Warlters, 9 M. & W. 293.) The effect of a ground of objection being too general was merely to prevent the party taking advantage of it; it did not hinder him. from relying on other grounds of objection which were sufficiently stated. (Boodle v. Davies, 3 A. & E. 200; Gray v. Leaf, 8 Dow. 654.) Formerly, in moving to set aside a judgment, entered up in pursuance of an award, for defects apparent on the face of the award, the objections need not have been stated in the rule to show cause. (Manser v. Hearer. 3 B. & Ad. 295.) The evidence in support of the application consists of the submission, the affidavits on which the motion is founded, and also a copy of the award (Sherry v. Oke 3 Dow. 349; Barton v. Ransom, 5 Dow. 597), unless the award is void for matters extrinsic. Where the motion was on the ground that two arbitrators had made the A. U Evidence in support of application. CHAP. XVII. award without the knowledge of the third the court held that the party was not bound to take up a useless award, which he was seeking to set aside. (Hinton v. Meade, 24 L. J., Ex. 140.) The affidavits. Courts favour validity. If the objections appear on the face of the award, no other affidavit than that of the due execution of the award will be required. It is not necessary that there should be an affidavit by one of the attesting witnesses to the award, of its execution. (England v. Davison, 9 Dow. 1052.) An affidavit verifying a copy of the award to be a true copy, need not state that the copy has been compared with the original award. (Hawkyard v. Stocks, 2 D. & L. 936.) And, an affidavit has been held sufficient which stated, that the paper writing produced was delivered personally into the hands of the deponent as a copy of the award. (Lund v. Hudson, 1 D. & L. 236.) And the same was held where the affidavit stated that the paper writing annexed was, or contained, as deponent believed, a true copy of the award, deponent having been served with the same by the attorney for the other side. (Hayward v. Phillips, 6 A. & E. 119.) If the award omit matters, the affidavit should set forth such matters, and allege that they were discussed before the arbitrator. (Hancock v. Reed, 15 Jur. 1036.) And so, in every other case where the motion is made upon an objection not disclosed by the award, the facts necessary to impeach the award must be fully set forth in the affidavits. As to the right of the opposite party to inspect documents referred to in an affidavit sworn, but not filed, in an application to set aside an award, see Re Fenner and Lord [1897] 1 Q. B. 667; 45 W. R. 486. The courts always construe awards, and hear motions. respecting them, with a desire to sustain the judgment of the tribunal the parties themselves have selected (Re Templeman and Reed, 9 Dow. 966), at the same time construing the awards according to the rules CHAP. XVII. of common sense and the fair import of the language. (Stonehewer v. Farrer, 14 L. J., Q. B. 127, per Coleridge, J.) motion. In opposition to the motion the other party may Evidence in produce affidavits to deny or explain away the matters opposition to of fact alleged as the grounds of motion; or if the imputation be of a defect in law, he may support the sufficiency of the award by argument, so as at least to render it doubtful whether the award be bad, and if he succeed so far the court will not set it aside. (Cock v. Gent, 13 M. & W. 364.) Formerly, on showing cause, the arbitrator's notes were not allowed to be referred to (Doe v. Preston, 3 D. & L. 768); but the original agreement of reference was. (Oswald v. Grey; 24 L. J., Q. B. 69.) motion. The Court has power over the costs of any order Costs of the (Arbitration Act, 1889, s. 20), and, in general, when the courts dismiss a motion for setting aside an award they will do so with costs (Snook v. Hellyer, 2 Chitt. 43); but sometimes they will do so without costs. (Ware v. Regent's Canal Co., 23 L. J., Ex. 145.) Where the defendant put a wrong construction on an award, which induced the plaintiff to move the court to set it aside, the court held that the defendant's construction was untenable, and therefore discharged the plaintiff's rule, and would not give him the costs of the motion. (Hocken v. Grenfell, 6 Dow. 250.) When a motion for setting aside an award on a cause is dismissed, and nothing is said about the costs of the motion, they will be costs in the cause. (Clarke v. Owen, 2 H. & W. 324.) refusal to set a side. A motion to set aside is analogous to an application Appeal from for a new trial, and ought to be in the interlocutory, not the final, list of appeals. (Re Delagoa Bay Co. and Tancred, 37 W. R. 578; 61 L. T. 343.) |