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24. An award made upon a reference such revocation and notice the ar

of all matters in difference between bitrators make an award, and the the parties doos not preclude the submission be made a rule of court. plaintiff from suing upon a cause of But it seems that it would be a conaction subsisting against the defend- tempt to revoke the submission afant at the time of the reference, up- ter it had been made a rule of court. on proof that the subject matter of Milne and others, Assignees of Rhodes such action was not laid before the and another, Bankrupts v. Gratrix. arbitrators, nor included in the mat- East, 608. ters referred. Ravee v. Farmer. 29. The submission being of all matters 4 Term Rep. 146.

in difference between the parties, an 23. Where in an arbitration-bond the award of so much to be paid by the

time was limited for the arbitrator defendant to the plaintiffs on their to make his award, and the declar- banking account, is binding between ation stated that such time was af- them; for no other matter in differterwards enlarged by mutual con- ence between them shall be intendsent, it was held that 10 action ed, unless it be shewn; and the acould be maintained on the bond to ward is good for so much, though recover the penalty for not perform- the arbitrators also awarded a sum ing the award made after the time to be paid by the plaintiff's to the first linnited. Brown v. Goodman. defendant, out of a partnership fund 3 Term Rep. 592, n.

in which others than the defendant 26. Two several tenants of a farın were interested, who were no par.

agreed with the succeeding tenant ties to the submission. Ingran v. to refer certain inatters in differ- Melnes. 8 East, 413. ence respecting the farm to ar- 30. Where arbitrators, chosen by the bitration, and joint!y ant severally parties, make a mistake in the calpromised to perform the award; culation of the sum awarded, an the arbitrator awarded each of the action at law will not lie to correct two to pay a certain sum to the the mistake. Newland v. Douglas. . third: held that they were jointly 2 Johns. Rep. 62. responsible for the sum awarded to 31. The evidence of the arbitrators to be paid by each. Minsell v. Bur- prove such a mistake is inadmissi. redge. 7 Term Rep. 332.

ble. Ib. 27. Where the lessor of the plaintiff 32. Where an award on the face of it,

and the defendant in ejectment had is final, nothing, dehors the award, before referred their right to the can be pleaded, or given in eviland to an arbitrator, who had a. dence againt it. Barlow

Todd. warded in favour of the lessor, the 3 Johns. Rep. 357. award concludes the defendant from 33. The submission to arbitration was disputing the lessor's title in an ac- so that the award, &c. should be tion of ejectment. Doe d. Morris delivered to the parties in differv. Prosser. 3 East, 15.

ence, ou or before a certain day," 28. Where parties by bond agreed to &c. In an action on the bond, the

submit matters in difference between defendant pleaded, that no award them to arbitration, and that the was ready to be delivered to the submission should be made a rule parties, &c.; and the plaintiif reof court, it is competent to either, plied that though no award was even since the stat. 9 and 10 W. 3. ready to be delivered to the defendc. 15. to revoke by deed his submis

ant, yet an award was made and sion, and notify the same to the ar- ready to be delivered to the plainbitrators before the authority be ex- tiff, and was delivered to him; on ecuted : and he canuot be attached demurrer, the replication was held for a contempt of court, if after bad. Prait r. Tluckett.

6 Johns. Rep. 14.

34. The authority given by the sub- 5. Award that A. shall execute a

mission to arbitration, must be strict. covenant to indemnify B. is good. ly pursued. Ib.

Philips v. Knightley. 2 Str. 903. 35. Where there was a parol submis- 6. Upon affidavits that arbitrators

sion to five persons, it was held, appointed by submission under a that all must join in the award. rule of court had been guilty of mis

Green v. Miller. 6 Johns. Rep. 39. conduct, and refused to hear the de86. The award of arbitrators appoint- fence after hearing the plaintiff's

ed under a mutual mistake of both case, the court will compel them to parties, in supposing themselves attend and examine their proceedbound by law to submit the matter ings. Morris v. Reynolds. 2 L. to arbitration, is not obligatory. Raym. 857. Salk. 73. Peisch v. Ware. 4 Cranch, 347. If arbitrators join with an umpire

in his deed of umpirage, it is only II. Arbitrator and Umpire ; Power of. surplusage, and the deed is good.

Soulsby and Hodgson. 1 Black. 463. 1. When a cause is referred to three 8. If two partners refer all matters

persons with power to them, or any in difference between them, the artwo of them, to make an award, an bitrator may dissolve the partneraward made by two of them is good ship. Green and Waring. i Blackif the third had notice of the meet- stone, 475. ings, &c. Dalling y. Matchett. 5. The court of K. B. said, that an Willes, 215.

arbitrator may

award costs without But if the third had no such notice, any express authority for that purthen such an award is bad. Ibid.

pose. Roed. Wood v. Doe. 2 Term 2. An award that one party should Rep. 644.

pay another a sum of money, and 10. But the court of C. P. held that, that he should deliver up a bond the general term costs in a rule of (which gave rise to the dispute) to reference did not include the costs be cancelled, and that each party in that reference. Bradley v. Tunshould give the other a mutual re- stow. 1. Bos. & Pull. 34. lease to the day of the date of the (And see Willes Rep. 64.) said bond, is good. Bell v. Gipps. 11. The court of C. P. held that an 2 L. Raym. 1141.

award of costs sustained in the aca 3. The election of an umpire (unless tion, did not include the costs of the

conditional) determines the author- reference. Browne v. Marsden. 1 ity of the arbitrators, though he re

H, Black. 223. fuses the umpirage.

12. Arbitrators having power to choose Election of an umpire before the time an umpire may elect one immedi

for making the award expired, void. ately previous to entering upon the Reynolds v. Gray. 1 L. Raym. 222. examination of the matter referred 1 Salk. 70. See also, Mitchell v. to them. 2 Term Rep. 644. Harris. 1 L. Raym. 671. 1 Salk. 13. Assignees of a bankrupt, having 71.

received 1500l. from a debtor to the 4. Arbitrators cannot award the costs bankrupt as a debt due to his esa of reference, unless power is express

tate, and having commenced an ly given to them for that purpose.

action against him for a further deCandler v. Fuller. Willes, 64. mand on the same à ecount, to which But they may award the costs of the he had only pleaded the general iscause without such special power.

sue, agreed with him to refer all Ibid. n. a.

matters in difference between the parAnd if they award “ the costs sustain- ties in the cause ; the arbitrator las

ed in the action,” it will not include power to award that the assignees the costs of the reference. Ibid. shall repay a part of the sum al

ready received, if it appear to have transaction, due from one of two been paid by mistake. 2 Term Rep. partners to the other, be referred, 613.

together with other causes of dis14. The court of K. B. will not set a- pute, to an arbitrator, who awards

side the award of an umpire, be- a sum due from one partner to the cause he received the evidence from other, expressly on account of such the arbitrators without examining debt, the court will set aside that the witnesses, unless he were re- part of the award. Aubert v. Maze. quested to re-examine them before 2 Bos. & Pull. 371. the making of his award. Hall v. 20. If an arbitrator profess to decide Lawrence. 4 Term Rep. 589.

upon the law, and he mistake it, the 15. So the court of C. P. refused to court will set aside the award, al

set aside an award on the ground of though the arbitrator's reasons do the witnesses not having been ex- not appear upon the face of the aamined on oath, no objection being

ward, but only upon another paper made at the time of their examina- delivered therewith. So it seems tion. Kidoat v. Pye. 1 Bos.

it would be if such reasons appearPull. 91.

ed in any other authentic manner 16. It is no ground for setting aside

to the court. Kent v. Elstob. 3 an award,

that one of the defend- East, 18. ant's witnesses was examined by 21. An enclosure act having directed the arbitrator after the evidence was that the allotments made by the closed on both sides, and the plain- commissioners should forever retiff's attorney gone; though by a main for the benefit of the appointdifferent testimony from what he ees : held that an award and asgave at first the arbitrator's opinion signment of the herbage of a certain was influenced ; unless such re-ex- close to the surveyors of the highamination was brought about by the ways and their successors for the management of the defendant's at- benefit of the parish of B. though torney. Atkinson v. Abraham. 1 bad as a common law conveyance Bos. f. Pull. 175.

the appointees not being a corpora17. If A. and B., in consideration of a tion, was yet good as a parliament

sum of money paid by one to the ary declaration of the persons entiother, enter into partnership, and tled to take; the same as if the terms covenant in case of the dissolution of the award had been specifically of the partnership, to submit all enacted.

And the law of the manor matters relating thereto to arbitra- in whom the fee of the soil remaintors, to be chosen by the partners, ed, is a trustee for the surveyors of one by each ; this does not authorise the highways for the time being. the administratrix of one of the part

Johnson v. Hodgson. 8 East, 38. ners to name an arbitrator ; nor 22. After the delivery of the award, would it authorise the arbitrators the arbitrators cannot, though withto determine whether any part of in the time limited by the submisthat sum should be refunded. Tat- sion, correct a mistake in the caltersall v.. Groote. 2 Bos. & Pull. culation of figures, by making an131.

other award corresponding to the 18. Semble no action can be maintain- admitted proportions of the part

ed for refusing to nominate an arbi- nership fund. Irvine v. Elnon. 8 trator, in pursuance of a covenant East, 54. to refer matters to arbitration. 2 23. An award that certain actions be Bos. &' Pull. 131. (And see Thomp- discontinued, and each party pay his son v. Charnock. 8 Term Rep. 139. own costs, is final and good ; being PLEADING VII.)

in effect an award of a stet processus. 19, If a debt, arising out of an illegal Blanchard v. Lilly. 9 East, 497.

21. Where by the rule of reference the same time. Anonymous. 1 Salk,

costs were to abide the event of an 74. award ; that includes the costs of 2. Indorsement on an award, unstampthe reference as well as of the cause. ed, is a sufficient authority for

a Wood v. O'Kelly. 9 East, 436. third person to demand the money 23. Where there is an agreement by awarded. Longman v. Holmes. 2

parol to submit a dispute to the ar- Blackstone, 990. bitrament of three, who all hear the 3. An award of a collateral thing in parties, and two of them only make satisfaction is a good plea, without an ward, the third dissenting from shewing a performance. Parsloe v. them, the award is not valid. Towne Bailey. 1 Salk. 76. 2 L. Raym. V. Jacquith. 6 Mass. 46.

1039. 26. Where a submission is to be left to 4. Parol award may be pleaded ready the arbitration of two, and if they to be delivered, &c. Oates v. Brocannot make their award within a mil. 1 Salk. 75. limited time, that then they may 5. If an award is to be made in wriappoint an umpire; the two arbi

ting, and ready to be delivered by trators may appoint an umpire, be. a particular day, it is sufficient to fore they proceed to act on the mat- shew that it was made in writing by ters submitted, and within the lim- the day, without adding that it was ited, time. M.Kinstry v. Solomons. ready to be delivered. 2 Johns. Rep. 57.

But, at all events, if it was not to be 27. An award of the payment of a delivered but upon request, the ob

specific sum by one party to the jection cannot be taken until a reother, is final and sufficient, without quest is shewn. Marks y. Marriott. a release. Ibid.

1 L. Raym. 115. 28. If the umpire direct, that should 6. Where an award may have been any errors be found on the calcula

right, the court will not intend it tion of the sum awarded, on proof otherwise. Lofft, 34. thereof, the defendant should refund y. It cannot be affected after the time the amount, this does not open the limited by the statute. Anonymous. merits of the dispute, but the award Lofft, 437. is final and valid. Ibid.

8. In order to set it aside the mistake 29. Where the umpire was appointed ought to be plain and gross. Anon.

of and concerning the premises, and Lofft, 554. it was stated in the award, that he 9. The court held that, on 9 and 10 took upon himself the burden of Will. 3. c. 15. they could not receive the umpirage, it is to be intended, any complaint to set aside an award that he awarded concerning the till the submission was made a rule subject matters submitted. M'Kin- of court; and that a consent in the

stry v. Solonnons. 2 Johns. Rep. 57. subinission bond to make the award 30. In action of debt, on an award, a role of court, instead of the sub

the plaintiff need not set forth more mission, would not warrant their inthan what is in his favour, and suf- terposing. Harrison v. Grundy. ficient to support his demand; he 2 Str. 1178. 1 Str. 301. Anderson need show what is awarded on both v. Coxeter. sides. Ibid.

10. Award supplied hy rule as to tar

ing the costs. Dudley v. Nettle fold. III. Performance ; of enforcing or re- 2 Str. 737. liering against.

11. Award held ill for uncertainty,

and not being final or mutual. Tip1. Upon award made a rule of ping v. Smith. 2 Str. 1024.

court the party may proceed both 12. Award to pay costs to be taxed by by action and attachment at the one not an officer for that purpose,

is ill.

Knott v. Long 2 Str. certain writing obligatory, and that 1025.

then they should execute mutual 43. Award to pay the costs of such a general releases—the word then re

suit is uncertain. Winter v. Gar- fers to the day. Bedam v. Clerkson. lick. í Salk. 75.

1 L. Raymond, 123. 14. Enforcing an award by process of 22. Where an award is made by rule

contempt is discretiouary, and the of court, it shall not be set aside, court will not do it where there are unless there was a practice with the contradictory affidavits as to the arbitrators, or some irregularity, performance. Sir Thomas Hales v. as want of notice of the meeting: Taylor. 2 Str. 695.

Also you shall not take exceptions 15. Awarding the giving a note is the the formality of it, but shali per

same as awarding payment at a fu- form it. Anonymous. 1 Salk. 71. ture day.

Booth vi Garnett. 2 23. The court refused to grant an atStr. 1082.

tachment for non-payment of a sum 16. In debt on an award a mutual of money awarded, and which was

submission must be shown. Dilley demanded, when a rule for setting v. Polhill. 2 Str. 923.

aside the award was pending. Dal17. In debt upon an arbitration bond ling v. Matchett.' Willes, 215.

plea, no award. Replication shews 24. Several tenants in coinmon, wishan award to pay 16l. 10s, and costs, ing to make partition of their land, &e. Breach assigned for the 161. covenanted by deed to pay their re10s. held good. Fox v. Smith. 2 spective shares of the survey and Wils. 267.

allotments, and to abide by the a18. In debt upon an arbitration bond, ward of certain arbitrators as to the

an award held good in part and allotments; the arbitrators allotted bad in part. Addison y. Grey. ? the whole in severalty, but did not Wils. 293.

direct any deeds of conveyance to 19. Motion to set aside an award must be executed to vest the allotments

be made before the last day of the in the respective owners; and for pext term after such award is pub- this defect it was ruled that the alished ; otherwise it is too late, ward was bad, and that no aetion and an attachment for the non-per- could be maintained on the covenant formance of it may issue. Freame for not performing the award,

et ux. v. Pinneger. Couper, 23. though the covenantors were respec20. Seizing a house in the East Indies tively liable on the covenant for

is not triable here and East India non-payment of the expence of surcompany, not obliged to produce vey, &c. Johnson v. Wilson. Wilbook of letters, &c. Where an a- les, 248. ward has general words sufficient When an award is void, a covenant to to take in all matters, plaintiff shall perform the award is also void. not be admitted to shew any thing

Ibid. 252. was not taken into consideration. 25. Under a submission to arbitration

Shelling v. Farmer. 1 Str. 646. of all matters in difference between 21. An award to pay money to a

the parties, an award deciding all stranger, unless it is shewn to be matters in difference except one, and for the benefit of one of the parties, giving liberty to one of the parties. is bad.

sue on that one, is void in toto. An award to deliver up a certain wri- Bradford v. Bryan Willes, 268.

ting obligatory, without specifying 26. But an award (nade under suck the date or penalty, is void for un- a reference) not in terms excepting certainty.

any matter in difference, does not In an award that the one party should, conclude


of the parties upon a on a particular day, pay the other cause of action subsisting at the 4 sun of money, and deliver up a

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