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SECT. 3.-An Award must extend to all Matters referred.

Unless an award extend to all matters submitted to the arbitrator it is entirely void. If several distinct matters are referred, and the arbitrator omit to decide upon any one of such matters, the whole award is vitiated (Randall v. Randall, 7 East, 81; Re Robson and Railston, 1 B. & Ad. 723; Bowes v. Fernie, 4 My. & Cr. 150); thus, for instance, where an action containing two counts, one on a promissory note, the other on an account stated, was referred, an award on the former count, but containing no adjudication on the latter, was held bad (Gisborne v. Hart, 5 M. & W. 50); so where an action of ejectment was referred, and the arbitrator found that the lessor of the plaintiff was entitled to a part of the lands claimed, setting them out by metes and bounds, but said nothing as to the residue, the award was held bad. (Doe v. Horner, 8 A. & E. 235; Wykes v. Shipton, 8 A. & E. 246, n.; Stone v. Phillipps, 6 Dow. 247.) And where it was referred to an arbitrator, 1st, to determine all actions between the parties; 2nd, to settle the sum to be paid for articles on certain land; 3rd, to ascertain what rent was to be paid by the plaintiff to the defendant for other land; and the arbitrator made his award on the two first things referred, but took no notice of the rent, the award was set aside. (Randall v. Randall, supra.) Where an action was referred to determine not only matters in difference between the plaintiffs, on the one hand, and the defendants, on the other, but also to adjust certain claims of the defendants inter se, the award was set aside for not dealing with the claims of the defendants. (Turner v. Turner, 3 Russ. 494.)

CHAP. XII.

Each distinct

matter must

be decided.

a decision

The question sometimes arises, when several distinct When silence matters are included in the submission, whether an award can be supported as an adjudication upon all the matters when it is silent as to some. This depends, in

CHAP. XII. the first place, upon whether the particular matter in respect of which the award is silent is one from its nature requiring an affirmative decision. If it is not, then, secondly, whether there is anything on the face of the award to negative the presumption that the arbitrator intended his award to dispose of everything submitted to him. (Harrison v. Creswick, 21 L. J., C. P. 113; 13 C. B. 399.) The old authorities had clearly established that if an award were made de præmissis, or in modern language "of and concerning the premises” (or matters referred), it would be presumed that the arbitrator intended to award on all the matters in difference. (Ib.; Birks v. Trippet, 1 Saund. 32; Jewell v. Christie, 36 L. J., C. P. 168; L. R., 2 C. P. 296; Perry v. Mitchell, 12 M. & W. 803; Mannion v. Harrison (1876) Ir. R. 11 C. L. 102.) The later authorities have established that the expression de præmissis is quite unnecessary, and that the courts will assume that the award was made on all matters submitted to the arbitrator unless it appear on the face of it that it was not so made. (Re Duke of Beaufort and the Swansea Harbour Trustees, 29 L. J., C. P. 241; 8 C. B., N. S. 146; Reg. v. Metropolitan Rail. Co., 48 L. T. 369, per Huddleston, B., affirmed, 50 L. T. 6.) The following was laid down as the true rule by Parke, B., in Harrison v. Creswick, supra: "Where there is a further claim made by the plaintiff or a cross demand set up by the defendant, and the award, professing to be made of and concerning the matters referred, is silent respecting such further claim or cross demand, the award amounts to an adjudication that the plaintiff has no such further claim, or that the defendant's cross demand is untenable; but where the matter so set up from its nature requires to be specifically adjudicated upon mere silence will not do." And where, in a submission under the L. C. C. Act, 1845, the arbitrator was to determine

what sum should be paid for the purchase of certain land, and what, if any, sum for severance damage; and he, by his award, after reciting the submission, and that he had considered the matters so referred to him, awarded-but not de præmissis-a sum to be paid for the purchase of the land, without saying anything as to the severance damage, the court held the award good; and that the arbitrator, by his silence, had negatived any right to compensation for severance damage. (Re Duke of Beaufort and the Swansea Harbour Trustees, supra.)

CHAP. XII.

Silence, however, is not sufficient where the nature of When silence the claim requires an affirmative decision.

If the arbitrator is to direct how the costs are to be paid the award will be bad if he omit to direct as to them. (Richardson v. Worsley, 5 Ex. 613; 19 L. J., Ex. 317.) If the matter about which the award is silent were the subject of an action which it was necessary to dispose of in order to distinguish what costs were to be paid silence would not do. (Jewell v. Christie, 36 L. J., C. P. 168, per Willes, J.) So, if the arbitrator is to find on any fact, and omit to do so; thus, it being disputed whether A. had been in partnership with B., and if so, whether and when it had been put an end to, an award that if a partnership ever existed it was terminated by consent, was held to be bad as not deciding the question of the existence of the partnership. (Bhear v. Harradine, 7 Ex. 269; 21 L. J., Ex. 127.) Where a submission authorized the arbitrator to set aside certain deeds, and gave him power to direct what should be done, and he awarded that certain specified deeds should be set aside, "if and so far as the same are in force, and if and so far as I have jurisdiction to set the same aside, and if I have no jurisdiction to set them or any of them aside, I declare that the rest of my award is yet to stand," was held an inconclusive award. (Nickels v. Hancock, 7 De G. M. & G. 300.)

not a decision.

CHAP. XII.

Award sufficient if comprising all differences of

which arbitrator had notice.

Under a submission of a dispute on a building contract, where the arbitrators were to award on alleged defects in the building, on claims for extra work, and for omissions, and to ascertain what balance, if any, might be due to the builder, an award ordering a gross sum to be paid to the builder, without any decision on the defects, was held bad. (Re Rider, 3 Bing. N. C. 874.)

Where the submission is of all matters in difference, without specifying them, the arbitrator need only make his award concerning such matters as he had notice of, for though there be other things in controversy not included in the award, yet, if the arbitrator had no notice of them, his award is good. (Risden v. Inglet, Cro. Eliz. 838; Rees v. Waters, 16 M. & W. 263; Smith v. Johnson, 15 East, 213; Day v. Bonnin, 3 Bing. N. C. 219; Duke of Beaufort v. Welch, 10 A. & E. 527.) If, however, he do not make his award of all things within the submission of which he had notice the award will be void (Mitchell v. Staveley, 16 East, 58; Stone v. Phillipps, 6 Dow. 247); and on its being clearly shown that these things were brought before him as matters in dispute (Martin v. Thornton, 4 Esp. 180; Erskine v. Wallace, 12 W. R. 134; Pinkerton v. Caslon, 2 B. & A. 704; Hancock v. Reid, 21 L. J., Q. B. 78), and that he did not award upon them, the court will set aside the award. (Samuel v. Cooper, 2 A. & E. 752.) But it must appear clearly upon the award (Aitcheson v. Cargey, 2 Bing. 199), that the arbitrator did not take such matters into his consideration and include them in his award. (Dunn v. Warlters, 9 M. & W. 293; Re Gillon and The Mersey Navigation Co., 3 B. & Ad. 493; Re Marsh, 16 L. J., Q. B. 330.) Whether the award specifically notice every matter in difference or not is immaterial, provided the arbitrator has in fact decided upon. all matters in difference submitted to him. (Gray v.

Gwennap, 1 B. & A. 106; Hayllar v. Ellis, 6 Bing. 225; ante, p. 183.)

If several distinct matters and cross claims are referred, and the arbitrator simply award payment of one sum, it will be understood to mean in respect of all the matters referred to him. (Re Gillon and The Mersey Navigation Co., supra.) So, where a cause and all

matters in difference were referred, and the arbitrator
awarded that, on a settlement of all the matters in dif-
erence, there was due a specified sum from the defen-
dant to the plaintiff, it was held sufficient.
Phelps, 21 L. J., Ex. 310.)

(Bradley v.

CHAP. XII.

is given.

If a power only is given to an arbitrator to award When a power upon any matter, he is not bound to make any award only to decide as to that (Angus v. Redford, 11 M. & W. 69; Wrightson v. Bywater, 3 M. & W. 207); and if he award defectively upon it, the award will not thereby be rendered bad, but the defective part will be rejected. (Nicholls v. Jones, 6 Ex. 373; 20 L. J., Ex. 275.) It has been held that an agreement that an arbitrator "shall and may" award upon certain matters is imperative upon him, and that he must. (Crump v. Adney, 1 C. & M. 355.)

sion of arbi

trator

It will not save an award, void through omitting to Misapprehendecide some of the matters submitted, that the arbitrator supposed the omitted matters were not in difference, or not within the scope of the submission. (Samuel v. Cooper, 2 A. & E. 752.) Thus, where all matters in difference were referred, and the arbitrators declined to award concerning a certain claim to an annuity, as they thought they were precluded from so doing by reason of a suit pending in chancery concerning it, the award was declared void. (Bowes v. Fernie, 4 My. & Cr. 150.)

The award will be bad if it omit to adjudicate between all the parties to the reference. (Winter v. White, 2

Deciding

between all the parties.

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