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2. Recitals -of sale by auction.
3.-of particulars and conditions.
AGREEMENT for a REFERENCE to ARBITRATION of disputes concerning a CONTRACT for SALE of LAND.
AN AGREEMENT, made, &c., between A. B., of, &c., and C. D., of, &c. [vendors], of the one part, and E. F., of, &c., and G. H., of, &c. [purchasers], of the other part: WHEREAS on the day of divers woollen mills, messuages, lands, and hereditaments, at and near in the county of, were by order of the said A. B. and C. D. put up for sale by auction in twenty lots according to particulars and subject to conditions of sale, lot 15 being in the said particulars described as [set out the description]: AND WHEREAS it was by the said conditions of sale stipulated among other things that [set out the conditions for payment of deposit-completion of purchase-payment of interest on balance-compensation 4. Contract for for errors of description]: AND WHEREAS the said E. F. and G. H. being the highest bidders for, were declared the purchasers of the said lot 15 at the price of £—, subject to the said conditions, and they thereupon signed a written agreement for the purchase thereof accordingly, and paid a deposit of £ of their said purchase money and ultimately accepted the title, but they refused to pay the sum of £- the balance of their said purchase money, or any interest thereon, and they justify their refusal by insisting that under certain circumstances they are entitled to compensation from their vendors. and are not bound to pay interest (a): NOW THESE
disputes as to compensation.
(a) If the parties can agree upon a statement, it is best to state the facts in the submission, and only to leave to the arbitrator's decision the law applicable to the circumstances; but where, as in the case from which the Precedent is taken, the parties cannot agree as to the facts, the statement of the nature of the dispute should be made in general terms, and the arbitrator must ascertain the facts as well as apply the law.
PRESENTS WITNESS, that in order to put an end to, determine and settle all disputes and differences between the parties hereto in respect of the premises, it is hereby agreed.
Reference to a questions in
1. That it shall be referred to W. H., Esq., barristerat-law, one of the conveyancing counsel of the High Court of Chancery, or in case of his death or incapacity dispute. or unwillingness to act, then to J. H. D., Esq., barristerat-law, another of the conveyancing counsel of the said court, to decide and award whether the said contract for sale ought or ought not to be specifically performed, and whether the said purchasers are or are not entitled to any and what compensation in respect of the matters aforesaid, or any of them, and whether they are or are not bound to pay interest at any and what rate and from any and what time on any and what amount of purchase money, and whether either of the parties hereto ought to pay to the other of them any and what costs, damages, or expenses [other than the costs hereinafter provided for] in respect of the premises (b).
(b) An arbitrator is generally the final judge of law and fact; and although he is, like every other judge, bound by the rules of law and it is beyond his power to award anything contrary to law-yet mistake in law is rarely fatal to the award: Russell on Arb. 112 et seq.; and it has been said, that the Courts will not set aside an award for a mistake in law of the arbitrator, unless they can on the face of the award distinctly see that the arbitrator professing and intending to decide in accordance with law has unintentionally and mistakenly decided contrary to it: Fuller v. Fenwick, 3 C. B. 705. See further on this subject, Russell on Arb. part 2, ch. 5, s. 8; Saunders v. Damer, 16 L. J., Exch., 153; Hodgkinson v. Fernie, 3 C. B. 189. The arbitrator is the sole judge of the admissibility of evidence Campbell v. Twemlow, 1 Price, 81; Wohlenberg v. Lageman, 3 Taunt. 254; Armstrong v. Marshall, 4 Dowl. P. C. 593; Perryman v. Steggal, 9 Bing. 679, 5 Bing. N. C. 187; and there is no distinction now between the cases in which the arbitrator is a lawyer and those in which he is not: Young v. Walters, 9 Ves. 364; Jupp v. Gray, 3 Dowl. P. C. 879; Huntig v. Ralling, 8 Dowl. P. C. 879.
Conclusiveness of arbitrator's
decision on law
and admissibility of evi
A Court of equity will not entertain a bill for the specific per- Specific performance of an agreement to refer, nor substitute its own officer for formance of
6. Powers of arbitrator over parties,
agreement to refer.
Arbitrations under C. L. P. Act.
2. That the said arbitrator acting in the matters hereby referred shall have all the powers given by statute or otherwise to a sole arbitrator, and that all the provisions in the Common Law Procedure Act, 1854 (c),
the arbitrators when they are not appointed by the agreement and the parties refuse to name them: Agar v. Macklew, 2 S. & S. 418; Earl of Mexborough v. Bower, 7 Beav. 127; Tattersall v. Groote, 2 B. & P. 131; and see Nickels v. Hancock, 7 D. G. M. & G. 300; but the agreement once entered into is irrevocable, without the consent of the Court or a Judge; and when an award has been made, a Court of equity will enforce specific performance of it: Wood v. Griffith, 1 Swanst. 52; Milnes v. Gery, 14 Ves. 400, reserving however the exercise of its discretion, whether the agreement is or is not reasonable: 1 Swanst. 54; and it may be enforced at law by action: Russell, 498–505; or by attachment Id. 572—605. The parties may, if they please, bind themselves to pay a stipulated sum as liquidated damages for the nonperformance of the agreement; and the payment of the penalty will release them from the necessity of performing the award: the insertion, however, of a penalty to be paid on the nonperformance of an agreement to refer does not release the parties from the obligation to perform, unless in the construction of the whole contract it appears that the stipulated sum was designed not as a penalty but as liquidated damages: 1 Swanst. 318, n. (a), and see supra, p. 28, n. (d).
(c) The Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), provides, s. 11, that whenever the parties to any deed or instrument, in writing made or executed after the 12th August, 1854, shall agree that any then existing or future differences between them, or any of them, shall be referred to arbitration, and any one or more of the parties so agreeing, or any person or persons claiming through or under him or them, shall nevertheless commence any action at law or suit in equity against the other party or parties, or any of them, or against any person or persons claiming through or under him or them, in respect of the matters so agreed to be referred, or any of them, it shall be lawful for the Court in which the action or suit is brought, or a Judge thereof, on application by the defendant or defendants, or any of them, after appearance and before plea or answer, upon being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitration according to such agreement, and that the defendant was at the time of the bringing of such action or suit, and still is ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings
contained respecting references to a sole arbitrator shall apply to the present reference and bind the parties hereto and their respective representatives.
3. That the arbitrator shall have power to examine 7. -and over the parties, and to hear, receive, and examine other evidence and evidence (d), and either to fix, settle, and determine the costs.
in such action or suit on such terms as to costs, and otherwise as to such Court or Judge shall seem fit. It seems that assignees in bankruptcy are not persons claiming through or under the bankrupt within this clause: Pennell v. Walker, 18 C. B. 651. By s. 12, if in any case of arbitration the parties fail or refuse to appoint an arbitrator or umpire, or if any arbitrator or umpire refuse or become incapable to act, or die, a Judge of any of the superior courts may appoint an arbitrator or umpire. By s. 13, where the reference is to two arbitrators, one named by each party, each party may substitute a new arbitrator for one who refuses, dies, or becomes incapable to act, and if the one party will not appoint an arbitrator, or the arbitrator will not act, the arbitrator of the other party may proceed alone: and by s. 14, two arbitrators may appoint an umpire. S. 15 provides that the award shall be made within three calendar months, unless the parties or Court enlarge the time, and s. 17, that every agreement or submission to arbitration by consent, whether by deed or instrument in writing, not under seal, may be made a rule of any of the superior courts of law or equity, on the application of any party thereto, unless it contains words showing an intention to the contrary, and that if it be provided that it shall be made a rule of one particular Court it shall be made a rule of that Court only, and no other Court shall have jurisdiction to entertain any motion respecting the arbitration or award.
This Act, however, has not taken away the jurisdiction of Courts Notwithstandof equity to restrain actions involving complicated questions of account ing C. L. P. where the accounts can be more conveniently taken in equity; and Act, Court of Chancery has where a plaintiff at law gives notice of his intention to move for a jurisdiction in reference under the Act, this alone is a sufficient ground for a Court complicated of equity to assume jurisdiction over the matter and restrain an action; a reference at common law being necessarily a more imperfect method of taking accounts than that furnished by the practice in equity: Croskey v. European, &c., Company, Johns. & H. 108. See further as to the effect of an agreement to refer questions to arbitration upon the rights of the parties to take proceedings at law or in equity, infra, Precedent XXX. p. 158, n. (a).
(d) The parties and witnesses may be examined upon oath, the Act to amend the law of evidence, 14 & 15 Vict. c. 99, s. 16, having em
Arbitrator may examine upon oath.
Arbitrator's power over costs.
amount of the costs, damages, and expenses (if any) awarded by him, or to direct such costs to be taxed as between solicitor and client or otherwise, and to direct such costs and expenses to be ascertained and settled by any other person or persons, and to direct and award when, and by, and to whom such costs, damages, and expenses respectively shall be paid (e).
powered every arbitrator or other person having by law or by consent of parties authority to hear, receive, and examine evidence to administer an oath to all such witnesses as are legally called before them respectively. This statute seems to have been unaccountably overlooked by the Court of Common Bench in Simmonds v. Moss, 5 W. R. 559.
(e) The agreement to refer should always give the arbitrator power over the costs of the reference, for his power over the costs depends entirely upon the terms of the submission. Where the costs are to abide the event, or where there is no cause in Court and nothing is said about costs in the submission, the arbitrator has no power over them: Firth v. Robinson, 1 B. & C. 277; Mackintosh v. Blyth, 1 Bing. 269; 8 Moore, 211; Bell v. Postlethwaite, 5 E. & B. 695; and the costs are not distributable; but if the award be partly in favour of one party and partly, though to however small an extent, in favour of the other, each party must pay his own costs: Gribble v. Buchanan, 18 C. B. 691; Re Marsack, 29 L. J., Q. B. 109. The arbitrator, unless specially authorised, cannot award other than common costs as between party and party: Pratt v. Salt, Cas. temp. Hardw. 161; Broadhurst v. Darlington, 2 Dowl. 38; Bartle v. Musgrave, 1 Dowl. N. S. 325.
The arbitrator should not in general award to himself any definite sum by way of fee or compensation for his trouble, the better course is for him simply to direct which party is to pay the costs of the award without naming any sum in his award, and the officer of the Court, who taxes the costs, will, if directed by the Court, examine into the arbitrator's claim, or what the party has had to pay on taking up the award, and determine as between the parties the proper amount to be allowed for the arbitrator's fees and charges: Russell, 374; Brayier v. Bryant, 2 Dowl. 600; Moore v. Darley, 1 C. B. 445; Barnes v. Hayward, 1 H. & N. 742. The Master usually passes the arbitrator's charges without a question, especially if he be a barrister, and even in the case of a lay arbitrator the practice in the Queen's Bench is not to review the charges without a Judge's order, giving the Master liberty to do so: Russell, 367; but where a lay arbitrator awards himself an excessive amount of remuneration,