sachusetts, 463; Johnston v. Brackbill, 1 Penn. St. 364; Jones v. Welwood, 71 New York, 208; Bean v. Bean, 25 West Virginia, 604. But it need not specify each particular. Blackledge v. Simpson, 2 Haywood (No. Carolina), 30; 2 Am. Dec. 615; Bancroft v. Grover, supra, the court observing : "But I think no case will be found where the questions submitted are merely questions of mutual indebtedness which has held that a general award of a certain sum to be paid by the one party to the other, the award professing to be upon the matters submitted, would not be construed as including them all. On the contrary, the cases are numerous which hold that such a general finding, either in a report of a referee or award of arbitrators, is sufficient." Citing Heckers v. Fowler, 2 Wallace (U. S. Sup. Ct.), 123; Harden v. Harden, 11 Gray (Mass.), 435; Bowman v. Downer, 28 Vermont, 532. If the thing awarded necessarily includes the other things mentioned in the submission, it is sufficient. Smith v. Demarest, 8 New Jersey Law, 195; McCullough v. McCullough, 12 Indiana, 487.

Mr. Morse repeatedly cites and approves both the principal cases.

WHERE all matters in difference in an action are referred, and the costs are to abide the event, the award must find on each issue, so as to enable the officer of the Court to tax the costs.

But it is sufficient that the award, without finding specifically upon each issue, shows, by a reasonable intendment, in whose favour each is decided.

Bourke v. Lloyd.

12 L. J. Ex. 4-6 (s. c. 10 M. & W. 550-553).

Debt for money lent, money paid, interest, and on an ac- [4] count stated.

Pleas Nunquam indebitatus and payment.

Before trial, the cause was referred to an arbitrator by a Judge's order, which directed that the costs of the cause should abide the event of the award, and that the costs of the reference should be

No. 10. Bourke v. Lloyd, 12 L. J. Ex. 4, 5.

in the discretion of the arbitrator. The arbitrator awarded, that the plaintiff had good cause of action against the defendant, and that the defendant should pay £20 to the plaintiff, together with the costs of the action, but he did not award specifically upon each issue. A rule having been obtained for setting aside this award, on the ground, amongst others, that the issues in the action were not determined by the award, so as to enable the Master to tax the costs,

Cowling showed cause. No verdict having been given in this case, it was unnecessary for the arbitrator to find specifically on all the issues. But, in fact, his directing the defendant to pay £20 to the plaintiff, and stating that the plaintiff had good cause of action against the defendant, makes the award sufficiently certain, and amounts, in fact, to a finding for the plaintiff upon all the issues. Dicas v. Jay, 5 Bing. 281; 7 L. J. C. P. 80. In Duckworth v. Harrison, 4 M. & W. 432; 8 L. J. Ex. 41, where the general issue and set-off were pleaded, "the costs of the reference and award to abide the event," the arbitrators found that the plaintiff was not entitled to recover in the action, and had not

any cause of action against the defendant, but were silent [5] as to the set-off: it was held, that the award* was final, and that the defendant might maintain an action for the costs of the reference and award, although the arbitrator had not awarded distinctly upon each issue. In the present case, there was no intention that the arbitrator should find specifically upon each issue, and there will be no difficulty in taxing costs.

Ramshay, contra. The arbitrator was bound to find on all the issues, for otherwise there would not be a legal event to enable the plaintiff, under the new rules, to obtain his costs. In Norris v. Daniel, 10 Bing. 507; 3 L. J. C. P. 160, where the arbitrator had not awarded on three counts, the award was set aside, on the ground, that there was no legal event which could authorize the taxation of costs. Gisborne v. Hart, 5 M. & W. 50; 8 L. J. Ex. 197, is to the same effect. Duckworth v. Harrison is distinguishable, because there the costs of the action were not to abide the event of the award. In Doe d. Madkins v. Horner, 8 Ad. & El· 235; 7 L. J. Q. B. 164, where the costs of an action of ejectment were to abide the event of the award, the award was held bad for not stating on which demise the plaintiff was entitled to succeed. In England v. Davison, 9 Dowl. P. C. 1052, the cause, in which

No. 10. Bourke v. Lloyd, 12 L. J. Ex. 5.

there were several issues, was referred to arbitration, the costs of the action, the reference, and the award, to abide the event of the award. The arbitrator, who had not been requested to find each issue specifically, awarded that the plaintiff had no cause of action against the defendant, and directed a verdict to be entered for the defendant: COLERIDGE, J., held, that the award was bad. Hunt v. Hunt, 5 Dowl. P. C. 442, is to the same effect. He also referred to Dibben v. The Marquis of Anglesea, 2 Cr. & M. 722; 4 L. J. Ex. 278; 10 Bing. 568. Cur, adv. vult.

LORD ABINGER, C. B., now delivered the judgment of the Court. There was a case of Bourke v. Lloyd, in which a motion was made, in Easter Term, to set aside an award. We took time to consider, in consequence of a reference to a recent decision of COLERIDGE, J., which was supposed to militate against the doctrine more than once laid down in this Court, that where an action is referred generally to an arbitrator, and the costs of the cause are distinctly to abide the event of the award, and there are several issues joined, he ought to award upon each issue, in order to determine what are the costs which are so to abide the event. That has been settled by several cases, and discussed, I think, more than once in this court. COLERIDGE, J., was supposed in his judgment in the case of England v. Davison, which was cited on showing cause against the rule, to have said that this Court, in a judgment given by me, had overruled these cases, and had intended to set up a case decided in the time of Lord Lyndhurst, which had a different aspect. Dibben v. the Marquis of Anglesea. Now looking at the judgment in Duckworth v. Harrison, which is the case referred to, it appears to me that it has been misunderstood. That was the case of a construction put by the Court on a rule of reference in which the costs were referred, and the costs of the reference and award were to abide the event of the award, but the costs of the action were not there distinctly made to depend on the award of the arbitrator. In delivering the judgment of the Court, I had stated that which I still adhere to; and although the Court entertained some doubt at first, they finally came to the same conclusion, that to make it incumbent on the arbitrator to find upon each issue, words ought to have been introduced into the rule of reference, to show that he was bound so to find, or that the costs were to abide the event of the cause, whereas in that case there was merely an agreement

that the costs of the reference and award were to abide the event of the award; and as the other stipulation was by implication excluded, it did not follow that the arbitrator was bound to award upon each issue. That was my meaning at the time, and, if rightly understood, that is the meaning of the judgment. We are therefore of opinion, that the cases must be adhered to, and that where an action is referred to an arbitrator, and the costs of the action are to abide the event of the award, each issue [*6] must be found specifically by the arbitrator, otherwise the Master has no rule of proceeding as to the costs. We think, therefore, the rule to set aside the award ought to be made absolute. Rule absolute.

[358]

*

Phillips v. Higgins.

20 L. J. Q. B. 357-359.

This was a rule calling on the defendant to pay two sums of £220 and £51, pursuant to a rule of court, the Master's allocatur thereon, and an award between the parties.

The action was in assumpsit. The declaration contained two counts, one alleging a breach of the defendant's promise to procure sufficient security for money lent by the plaintiff at defendant's request to a third party; the other alleging a breach of the defendant's promise that certain indentures given as a security for such a loan were a sufficient security.

Pleas first, non assumpsit to the whole declaration; second, to the first count, that the defendant did produce sufficient security; third, to the first count, a rescinding of the agreement by consent before breach; fourth, to the first count, that another agreement which it set out was substituted by consent. The fifth and sixth pleas were to the second count, and were traverses of allegations in the second count.

Issues were joined on these pleas before the order of reference was made.

By a Judge's order, made on the 27th of July, 1849, it was by consent ordered that "all matters in difference in this cause" should be referred to arbitration; that "the costs of the cause and of the reference and award shall abide the event of the said award," and "that all letters written to or for or by or on behalf of either party upon the subject-matter of and relating to this action, and all deeds or documents signed by them or either of

No. 11. Phillips v. Higgins, 20 L. J. Q. B. 358, 359.

them, or forming part of the assurance, shall be admitted as evidence without reference to or requiring stamps."

The award, after reciting the submission, and setting out the last-mentioned clause of the submission in full, proceeded thus: - "I, &c., having examined upon oath all such witnesses as were produced before me by the said parties respectively, and having read all the letters and documents produced before me by or on behalf of the said parties, &c., do award, find, and adjudge that the said Walter Phillips had good cause of action against the said William Higgins, as stated in the declaration of the said action so referred to me as aforesaid, and I assess and award the damages to be paid by the said defendant to the said plaintiff on the said action at the sum of £200."

Skinner showed cause. First, the clause in the submission that unstamped documents shall be received in evidence is illegal and void as contrary to public policy. It is recited in the award, and the award, therefore, is void also. It must be presumed that the arbitrator acted upon it. The award recites that he read the letters and documents put in evidence. Secondly, the award does not sufficiently decide all the issues. The award says that the plaintiff had a good cause of action against the defendant. It does not say when. It may be before the time when the substituted agreement as mentioned in the fourth plea was entered into.

[WIGHTMAN, J. Surely the award must be held to mean that the plaintiff had good cause of action at the time of action brought.]

The costs of the action, reference and award are to abide the event. It is necessary, therefore, that each issue be if not specifically at least substantially decided. Here, the award simply is, that the plaintiff has a good cause of action against the defendant. That is in effect an award that on one or other of the counts the plaintiff has a good cause of action, it is uncertain on which. It is, therefore, uncertain how the issues have been decided. The reference of a "cause" and of "all matters in the cause," amounts to the same thing. Hobson v. Stewart, 4 Dowl. & L. P. C. 589; 16 L. J. Q. B. 145. The cases show that the award is insufficient. Bourke v. Lloyd, 10 M. & W. 550; 12 L. J. Ex. 4, p. 429, ante; Pearson v. Archbold, 11 M. & W. 477; 12 L. J. Ex. 308;

* Kilburn v. Kilburn, 13 M. & W. 671; 14 L. J. Ex. [*359] 160; Stonehewer v. Farrer, 6 Q. B. 730; 14 L. J. Q. B.

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