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Mr. Morse (Arb. and Award, p. 153), while citing, and conceding the doctrine of the principal cases, says, "This is certainly carrying the rule to a point beyond what reason would seem to require. It is probable that so rigid a doctrine would throw out many awards which justice would require should be upheld."

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AN award must decide all the matters submitted, and must be certain and final.

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[80] UPON a rule to show cause why an attachment should not issue against the plaintiff for non-payment of £20 19s. 8d., a sum awarded against him; it appeared that the parties by their several bonds of submission referred to certain arbitrators to determine" all actions and controversies, &c., depending between them; and also of and concerning the value to be put on the hop-poles and potatoes in certain land (described in the award as land first therein after mentioned), and the workmanship done thereto and taxes and rates paid in respect thereof by the defendant; and also concerning the rent to be paid annually by the plaintiff to the defendant for the land (described in the award as secondly after mentioned), together with the costs, &c., so as the said award were made in writing and ready to be delivered to the parties on or before the 12th of May." Then the arbitrators by their award, after reciting the above, and that they had accepted the reference, and that the parties had delivered to them an account in writing respecting the matters referred as aforesaid, and that they had heard the parties and examined such witnesses as they had thought necessary, touching the matters referred as aforesaid, and had duly considered all matters and things referred to them, found

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the value of the *hop-poles and potatoes in the grounds [*81] mentioned to be £154, and the balance due from the plaintiff to the defendant (including that sum in the account) to be £20 19s. 8d., which they therefore awarded to be paid, and the costs, &c. to be equally divided; but they did not notice nor make any award concerning the rent to be paid annually by the plaintiff to the defendant for the land. Wherefore it was objected by

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Comyn, on showing cause against the attachment, that the award was bad upon the face of it, and could not be enforced. For that where several distinct matters are referred to arbitration, if it do not appear that the arbitrator has determined each of them, the award is void for the whole and here the words, "so as the said award be made, &c. on or before the 12th of May," makes the submission conditional, that the award shall include all the matters referred. Though if the reference be of all matters in difference, and the award be de præmissis, generally, it shall be intended that the arbitrator determined all the matters submitted to him, unless the contrary be shown; and he cited 1 Roll. Abr. 256. Arbitrament, L.; Risden v. Inglet, Cro. Jac. 838; Middleton v. Weeks, Cro. Jac. 200; Bradford v. Bryan, Willes, 268, and Baspole's case, 8 Co. Rep. 98.

Espinasse, in support of the rule for the attachment, contended for the sufficiency of the award, so far as the arbitrators had determined the several matters mentioned. He observed that the reference was not merely of such matters only, but of all actions, controversies, &c.; and the arbitrators upon the whole have found a balance of account in favour of the defendant to the amount of £20 19s. 8d. The Court then will presume that the arbitrators did decide on every matter which was brought before them, unless. the contrary were shown by affidavit. And it is even said in Baspole's case, that though there be many matters in controversy, yet if one only be signified to the arbitrator, he may make an award of that: for he is to determine secundum allegata et probata; and it is in every day's practice that an award may be good in part and bad in part.

LORD ELLENBOROUGH, C. J. That is where it does not appear that there is any notice to the arbitrator upon the face of the submission that there is any other matter referred to him than those which are mentioned to him at the time of the referBut here it does expressly appear that there was another

ence.

No. 9. Hewitt v. Hewitt, 1 Q. B. (Ad. & El. N. S.) 110.

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[*82] matter referred,* on which there is no arbitrament. The arbitrators had three things submitted to them; one was to determine all actions, &c. between the parties; another was to settle what was to be paid by the defendant for the hop-poles and potatoes in certain land; the third was to ascertain what rent was to be paid by the plaintiff to the defendant for certain other land. The authority given to the arbitrators was conditional, ita quod, they should arbitrate upon these matters by a certain day. If then they fail as to one of them, the condition has not been performed upon which the award was to have its obligatory effect; and here they have stopped short, and have omitted to settle one of the subjects of difference which was stipulated for. This is not like the case where an award, being good in part and bad in part, the good part shall not be vitiated by the arbitrator having also directed something to be done which is superfluous and bad. But here the very condition on which the parties submitted to the award has failed.

LAWRENCE, J. I did not know whether there might not have been some modern decisions, which had given a more liberal construction in support of awards, where the arbitrators, having distinct matters submitted to them, had made their award upon some of them only, omitting the mention of others; but as none such have been referred to, there seems to be no answer to the cases cited against this award, which show that the arbitrators have not pursued their authority, not having performed the condition on which it was delegated to them.

LE BLANC, J. The contract of the parties is in effect this one says that he will submit to the arbitrators to ascertain what he is to pay for the hop-poles, &c. upon condition that it shall also be referred to them to decide what rent is to be paid for certain land. And he may fairly have said that unless both those matters of difference were referred, he would not refer either of them singly. If then the arbitrators omit to decide one of them, the condition fails on which the reference was agreed to.

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Rule for the attachment discharged.

Hewitt v. Hewitt.

1 Q. B. (Ad. & El. N. s.) 110-116.

COVENANT on a deed of submission to arbitration as to all matters in difference between plaintiff and defendant.

No. 9. Hewitt v. Hewitt, 1 Q. B. (Ad. & El. N. S.) 110-112.

Breach, non-payment of sums awarded to be paid by defendant to plaintiff on certain days unless previously paid by defendant to Sir William Bryan Cooke and Co. The plea, after oyer of the indenture, set out the award, alleging that the arbitrators made no other, and (in substance) that there were matters in difference which ought to have been, but were not, decided by the award, and that the award was bad. Verification. Replication, that no such matters, except those mentioned in the award, were before the arbitrators. * Verification. Special demurrer, [* 111] on grounds which it is not necessary to state, as the decision of the case turned wholly on the validity of the award. Joinder. The demurrer was argued in last Michaelmas term before Lord DENMAN, C. J., LITTLEDALE, WILLIAMS, and COLERIDGE, JJ., by Crompton for the defendant and R. V. Richards for the plaintiff. The point decided, and the facts bearing upon it, are so fully stated and discussed in the judgment of the Court, that a report of the argument is unnecessary.

Cur, adv. vult.

Lord DENMAN, C. J., now delivered judgment as follows:This was an action of covenant for non-performance of an award, the pleadings in which raised substantially the question of the validity of the award; and it will be necessary, therefore, that the purpose of the reference and the nature of the award should be explained.

It appears, then, by the deed of submission of 28th December, 1837, and the award of the 14th February, 1839, that previously thereto, the defendant was the taker of lands, &c., in the county of Cornwall, productive of a mineral useful for certain purposes of manufacture, and that, about the year 1834 or 1835, the defendant admitted the plaintiff into partnership therein for £2000, and further, that by agreement of 25th January, 1836, the defendant, having obtained letters patent for the manufacture of a certain. substance therein mentioned, had taken the plaintiff into partnership as therein specified, and that they did accordingly become partners, though no articles of partnership had been executed; and also that, before the said agreement of the [112] 25th January, 1836, the parties had dealings together; and that, shortly after the said agreement, the defendant had deposited with Cooke and Co., bankers, certain securities for such

VOL. III.-27

No. 9. Hewitt v. Hewitt, 1 Q. B. (Ad. & El. N. S.) 112, 113.

sums as they had or might advance to defendant as surety for plaintiff; and that, plaintiff being indebted to them in about £4000, the defendant executed an assignment of certain securities for a sum not exceeding £3000;1 and further, that the said parties dissolved partnership on the 15th January, 1837, without any settlement of accounts between them then or before, by reason whereof they had agreed to refer all matters in difference to the three arbitrators therein named, with the powers and in the manner therein specified. Then comes a provision which it will be necessary to state with more particularity. It is as follows:[*113] And it is in the said deed of submission provided * that

if the said arbitrators should award any money to be paid to the plaintiff by the defendant at any day therein named, the said arbitrators should in their said award (if the said mortgage to the said bankers should be still outstanding) authorize the payment thereof to the said bankers in reduction of the said mortgage debts, and should further award and direct that the said plaintiff should, at a time to be then named by them, pay in to the said bankers' such a sum of money as would be sufficient to entitle the said defendant to have the estate comprised in the said mortgage released, and his title deeds and guarantees, given to the said bankers by way of deposit, restored to him.

The award then proceeded to state the amount of debt, on the partnership and private accounts, from the defendant to the plaintiff, to be £3121, and directed the payment to be made upon certain days and times to the plaintiff, with liberty to the defend

1 The recitals in the deed of submission here referred to were in the following words:

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And whereas, previously to the date of the said recited agreement and pending the said partnership, the said John Hewitt and Robert Lightfoot Hewitt have also had various dealings and money transactions together, unconnected with the said partnership: And whereas, soon after the date thereof, namely, on the 2d day of February, 1835, the said John Hewitt deposited his title deeds to a certain leasehold estate in London, and to certain policies of assurance and other effects, with Sir William Bryan Cooke, Baronet, and Company, bankers, Retford, as a security for such sum or sums of money as the said Sir William Bryan

Cooke and Company had then advanced or might thereafter advance to the said John Hewitt as surety for the said Robert Lightfoot Hewitt; and the said John Hewitt further agreed to execute an assignment to them of the said premises whenever requested. And whereas, the said Robert Lightfoot Hewitt being indebted to the said firm on his banking account in about £4000, the said Sir William Bryan Cooke and Company applied to the said John Hewitt, on such his undertaking, to give further security for a sum not exceeding £3000, part thereof, by an assignment to them of the aforesaid leasehold and other premises, which the said John Hewitt, by indenture bearing even date herewith, has accordingly done."

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