CHAP. VII.

Consent

orders of reference altered,

but only by consent.

May be

amended to further the

agreement of the parties

the submission; and where a submission contained no limit as to the time within which the award was to be made it was held that the arbitrators had no power to attach such a limit, so as to render an award made afterwards invalid. (Re Morphett, 14 L. J., Q. B. 259.)

An order of reference by consent may be varied by the parties. Any agreed alteration should be by amendment of the order, drawn up according to the new agreement.

An order of reference "by consent" is evidence of a previous express agreement between the parties to the terms of the order (Lievesley v. Gilmore, L. R., 1 C. P. 570; 35 L. J., C. P. 351; Conolan v. Leyland, 27 Ch. D. 632; 54 L. J., Ch. 123; ante, p. 70), which the court has no power to add to or subtract from. (Thompsett v. Bowyer, 30 L. J., C. P. 1.)

It is, however, competent for the courts to amend orders of reference to effectuate the real intention of the parties where the orders have been erroneously or insufficiently drawn up. (Vanderbyl v. M'Kenna, L. R., 3 C. P. 252.) They cannot add anything which requires the further consent of the parties; but they can correct a clerical error, as, where the christian and surname of the defendant were transposed in the order (Price v. by inserting James, 2 Dow. 435); or insert such omitted matters as

omitted

terms.

are incident to the substance of the agreement between the parties, as, in an order at nisi prius, that defendant should sell certain lands at a valuation, the words "that the defendant should make a good title and execute a conveyance of the premises" were added, such terms being implied in the original order (Evans v. Senor, 5 Taunt. 662); so, where a cause was referred on the "usual terms," the court inserted a power to amend, which had been omitted in drawing up the original order (Thompsett v. Bowyer, 9 C. B., N. S. 284; 30 L. J., C. P. 1); and would insert a power to deal with the costs of the reference. (Morel v. Byrne, 21 W. R. 673.)

On a reference of a cause two orders of nisi prius were drawn up for the respective solicitors of plaintiff and defendants, which were not duplicates, but varied in their terms, and the defendants, after making their part of the order a rule of court, moved to set aside the award (the arbitrator having acted on the plaintiff's part of the order only), and the plaintiff made a counter motion to set aside the rule of court confirming the defendants' order as incorrect; the court directed a reference to the associate to ascertain which of the two orders was drawn up in accordance with his minutes of the agreement made at the trial, and on receiving his report set aside. the rule of court confirming the defendants' order. (Alder v. Sarill, 5 Taunt. 454.)

CHAP. VII.

to introduce new matter.

But the courts have no power to amend so as to intro- But not so as duce a new cause of action, or to make the parties refer what they never consented to refer (Smurthwaite v. Richardson, 15 C. B., N. S. 463), and therefore can only make an alteration in an order of reference when it is manifest, that, there has been some omission on the part of the officer, or that, through some accident or mistake, the order is not in accordance with the intention of the parties, and does not in fact embody their agreement. (Vanderbyl v. M'Kenna, L. R., 3 C. P. 252; Houghton v. Bankart, 3 De G., F. & J. 16; 30 L. J., Ch. 182.)

An order of reference will not be varied upon a suggestion by one party of subsequently discovered matter. (Drake v. Brown, 2 C. M. & R. 270.)

Striking out

terms inadvertently

The court will often amend an order by striking out terms which have been inadvertently inserted; thus, where a cause was referred upon the usual terms con- inserted. tained in a printed form of, amongst others, “filing no bill in equity," and it being found essential to the justice. of the case that a bill should be filed, the condition was erased (Grimstone v. Bell, 4 Taunt. 254); and where the words "and all matters in difference" were

CHAP. VII. improvidently inserted in a compulsory order of reference, the court struck them out. (Kendil v. Merrett, 25 L. J., C. P. 251; but see Rawtree v. King, 5 Moore, 167.)

Material alterations only by consent.

The court will not amend an order of reference, drawn up by one of the parties thereto, upon affidavits by such party that an error was made by him in copying a document attached by consent to the order of reference. (Wynn v. Nicholson, 18 L. J., C. P., 231; 7 C. B. 819.) And when a cause had been referred on terms signed by counsel on both sides, but the order drawn up varied from those terms, the parties appearing from their subsequent acts to have been in favour of the terms of the order, the court refused to amend it in accordance with the original terms. (Pearman v. Carter, 2 Chitt. 29.) Where the arbitrator awarded a larger sum than that mentioned in the order of reference, and there appeared to be a mistake in the order as to the sum, semble that the court would amend the order. (Hannen v. Jube, 10 Jur. 926.)

If a proposed alteration is a material one, or will introduce new matter, there must be a consent of the parties. (Cross v. Metcalfe, 5 A. & E. 800.) When a cause was referred at nisi prius without any notice of set-off it was held that a second order could not be made. to enable the defendant to give a particular of set-off. (Ashworth v. Heathcote, 6 Bing. 596.) In Morgan v. Tarte (11 Ex. 82), where a cause was referred to arbitration without power of amendment, it was held that a judge has no power, except by consent of the parties, to order the particulars of demand, specially endorsed on the writ, to be altered by increasing the amount of one of the items; though in an earlier case in the Common Pleas (Blunt v. Cooke, 4 M. & G. 458), after several meetings had taken place, the court allowed the plaintiff to amend his particulars by the insertion of other items

in respect of services during the period covered by the former particulars.

CHAP. VII.

of orders for

reference.

The court has more extensive powers of amendment Amendment over orders for compulsory reference. In such a case, compulsory the court may amend the particulars of claim at any time before the award, even though objected to. (Gibbs v. Knightley, 2 H. & N. 34; 26 L. J., Ex. 294.) And where a rule for compulsory reference was silent as to costs, and it appeared that the understanding of the officer of the court and of the parties on the drawing up of the rule was that costs would abide the event, and the arbitrator awarded in favour of the plaintiff, the court amended the rule nunc pro tune so as to give effect to the intention of the court when the rule was drawn up. (Bell v. Postlethwaite, 5 E. & B. 695; 25 L. J., Q. B. 63.)

when set

aside.

If an order of reference has been improperly drawn up Submission, (Rawtree v. King, 5 Moore, 167), or obtained by fraud (Sackett v. Owen, 2 Chitt. 39), application should be made to set it aside, and not to set aside the award. Where a stranger, who had agreed to join in a submission of a cause, refused to proceed with the reference, the submission was set aside on the application of one of the parties to the cause. (Bacon v. Cresswell, 1 Hodges, 189.) And where the plaintiffs had acted with bad faith towards the defendants, and had endeavoured at every step to defeat the object of the reference, a submission was set aside. (Morgan v. Miller, 6 Bing. N. C. 168.)

CHAPTER VIII.

DURATION OF THE ARBITRATOR'S AUTHORITY UNDER

THE SUBMISSION.

Duration of arbitrator's authority

is fixed for the award.

SECT. 1.-Enlargement of Time by the Arbitrator or

the Parties.

CHAP. VIII. THERE should, in every submission, be a certain day named on, or before, which the arbitrator is to make his award, for if there is no limitation of time for when no time making the award there is, in the absence of any statutory provision affecting the submission, no implication that he shall make it within a reasonable time. But if, after the parties request the arbitrator to do so, he neglects to award within a reasonable time, it would be ground for revocation of the submission. (Curtis v. Potts, 3 M. & S. 145; Salter v. Yeates, 5 Dow. 291.)

Three months under Arbitration Act, 1889.

It was found convenient to provide a limit of time by statute. Section 15 of the C. L. P. Act, 1854, fixed this at three months, where the document of reference contained no different limit. This section, though repealed, is replaced by clause (c) in the first schedule to the Arbitration Act, 1889. So that, in any reference by consent out of court, where no different limit is fixed in the submission," The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from any party to the submission; or on or before any later day to which the arbitrators, by any writing signed by them, may from time to time enlarge the time for making the award."