Francis Russell.

A treatise on the power and duty of an arbitrator, and the law of submissions and awards; With an appendix of forms, and of the statutes relating to arbitration / by Francis Russell online

. (page 1 of 105)
Online LibraryFrancis RussellA treatise on the power and duty of an arbitrator, and the law of submissions and awards; With an appendix of forms, and of the statutes relating to arbitration / by Francis Russell → online text (page 1 of 105)
Font size
QR-code for this ebook


A




8
5
7


4
9





UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY



- A TEEATISE

' ON THE

POWER AND DUTY



AEBITEATOE



AND THE LAW OF



SUBMISSIONS AND AWARDS;



APPENDIX OF POMS, AND OF THE STATUTES RELATING
TO ARBITRATION.



FRANCIS RUSSELL, ESQ., M.A.,



BARRISTER-AT-LAW.



THIRD EDITION.



" Esto "bonus miles, tutor bonus, arbiter idem
Integer,"

Juv. 8 Sat. 1. 79.



LONDON":
V. & R. STEVENS, SONS, & HAYNES,

26, BELL YARD, LINCOLN'S INN.

H. SWEET, 3, CHANCERY LANE.

1864.






LONDON :
BKADBURY AUD EVANS, PEINTEKS, WHITETEIAES.






0^



I



PKEFACE TO THE THIRD EDITION.



During the last few years the subject of arbitration has
become of increased importance. The provisions of the
Common Law Procedure Act, 1854, under which whatever
can be ranked as matter of account not convenient to be
tried by a jury, may be decided by arbitration, have been
carried out largely into practical effect. Many questions
which have been raised respecting these and the other
enactments of the same statute relating to arbitration have
recently received judicial decision ; and it is satisfactory to
observe that the tendency of the Courts is to extend the
beneficial operation of the Act, and to apply as far as may
be one uniform rule to all kinds of arbitrations both at law
and in equity. It is believed that all these decisions, as
well as all the new cases bearing on the law of arbitration
generally, will be found noticed in the present edition.

Much care and attention have been employed to render
the work complete in this respect, and it is hoped that no
authority expounding or illustrating any valuable principle
has escaped observation.

In order to allow of insertion of this large mass of new
matter, and at the same time to keep the treatise within
reasonable bulk, it has been found necessary to condense
into a smaller compass a good deal of what was formerly
written.



IV PREFACE TO THE THIRD EDITION.

Some new precedents of awards, prepared by eminent
counsel, have been, by tlieir kind permission, added. They
will aflford useful patterns for the guidance of arbitrators in
framing awards in analogous cases.

In the Appendix of Statutes all the recent legislative
enactments on arbitration down to the present time have
been inserted. Among them are to be noticed the new
Railway Companies Arbitration Act, 1859, which contains a
complete code for the regulation of arbitrations between
railway companies ; and the Local Government Act, 18C3,
under which an arbitrator has not only to settle the amount
of compensation to be paid for the injuries which private
persons may receive from public works designed by local
boards, but also to decide whether the works are to be
carried out at all.

No pains having been spared to render the treatise useful,
the Author humbly hopes that it may receive at the hands of
the Public and the Profession the same kind reception that
has been accorded to the two earlier editions.

F. RUSSELL.

3, Tanfikld Court, Temple,
19 April, 1864.



EXTRACT FEOM THE

PEEFACE TO THE EIEST EDITION.



The present treatise is divided into three parts.

In the second, or principal part, the author has endea-
voured to set forth an exposition of the law of arbitration,
so far as it concerns the arbitrator's powers and duties, and
to arrange it so as to show him, how he may best exercise the
one and perform the other. It treats also of the privileges
and liabilities of an arbitrator.

To these objects the inquiry was originally intended to
have been confined : but as the arbitrator's functions vary
materially with the varying terms of the submission to refer-
ence, it was found incumbent to enter into a more detailed
investigation respecting the submission : and the result of
that research, so far as it primarily affects other parties
than the arbitrator, has been prefixed in the first or pre-
liminary part, in the hope of assisting parties to select
that mode of arbitration best suited to their particular
circumstances.

The third part, respecting the effect of awards, and the
modes of enforcing and setting them aside, was added from
a desire to make the work in a measure complete as a



VI EXTRACT FROM THE

treatise on awards, as well as on arbitrators. Unfortunately
this part of the subject has far exceeded the contemplated
limits.

A variety of Precedents and of Forms of Proceedings
relating to Arbitration has been subjoined in the Appendix
of Forms.

In this Appendix, for the sake of convenient perusal and
selection, a large number of clauses capable of being bene-
ficially introduced into submissions is collected together
under Form I. : so with regard to awards, clauses showing
the modes of awarding on a great variety of matters, are all
comprised under Form LXXIV., the first under the head
of awards. There are also contained forms for proceed-
ings as to references respecting the compensation to be
paid to persons whose lands are taken under the authority
of Parliament for the purposes of a Eailway or other Public
Undertaking.

For many forms in the Appendix the Author has to
express himself indebted to the kindness of legal friends,
and to the courtesy of the ofiicers of the courts of law, and
more particularly of Mr. Hill and Mr. Kemp of the Rule
Office of the Court of Queen's Bench ; and he wishes espe-
cially to acknowledge his obligations to Mr. P. W. Eogers,
of the Registrar's Office of the Court of Chancery, for afford-
ing him much valuable information on points of Chancery
practice, for furnishing him with various forms used in
Chancery in proceedings connected with arbitrations,
and for kindly drawing up the tabular statement of the
modes of enforcing awards in Equity, which appears as
Form CXV.

Recent legislation having so widely enlarged the field of



PREFACE TO THE FIRST EDITION". VU

arbitration, especially by means of The Lands Clauses
Consolidation Act, 1845, The Railways Clauses Conso-
lidation Act, 1845, The Companies Clauses Consolida-
tion Act, 1845, and The Public Health Act, 1848, it has
been thought advisable to add, in a further Appendix,
the arbitration clauses of those Acts, and the other
principal Statutes and sections of Statutes relating to
Arbitration.



CONTENTS

OF THE TREATISE.

PAET THE FIRST.



CHAPTER I.

WHAT MATTERS MAY BE REFERRED TO THE DECI-
SION OF AN ARBITRATOR



SECTION I.

MATTERS AFFECTING THE CIVIL INTERESTS OP THE PAKTfES . 3

1. Civil rights of the ]mrties 3

Matters concerning personal chattels or personal

wrongs 3

Matters concerning real property .... 4

Questions of law 4

Actions and suits ....... 4

Not matters illegal 5

Future use of property 5

Future differences 5

2. Matters referred by statute 5

Compensation for lands taken for or injured by

railways, &c. ....... 6

Compulsory reference of actions on matters of

account 7

Expenses of prisoners ...... 7

Differences between Postmaster-General and Rail-
way Company 8



Part I.

CH. I.



CONTENTS OF THE TREATISE.



Part I.

CII. I.



Disputes between Masters and "Workmen .


PAGE
8


Matters concerning Savings' Banks and Benefit


Building Societies


8


Bankrupts' and Insolvents' Estates .


8


Joint Stock Companies


8


Ecclesiastical property . . . • .


9


Small debts .......


9


3. Civil jjroceedings at Quarter Sessions


9


Matters of appeal


9


4. Suits in Divorce Court


10


Terms of separation .....


10


SECTION II.




ERS OF A CKIMINAL NATTTKE


n


Not felonies


11


Misdemeanors


11


Where remedy by- action criminal matters refer-




able


11


Indictments for conspiracy ....


12


assault


13


nuisance ....


13


perjury


13


non-repair of highway


13


Compromise after conviction ....


14


Presentment before Commissioners of Sewers .


14


Indictments before Quarter Sessions .


14


Consent of court to reference of indictment


14



CHAPTER II.

WHO MAT REFER MATTERS TO ARBITRATION



15



SECTION I.

PERSONS INTEEESTED IN THE SUBJECT MATTERS

1 . Parties capable of disposing of their rights

2. Femes covert

3. Husband and Wife



15
15

16
17



CONTENTS OF THE TREATISE.

PAGE Part I

4. Infants 18 en. n.

5. Partners and parties with joint interests . . . . 19

6. Corporations sole and aggregate 21

7. Parties interested added 22

SECTION II.

PEESOIfS NOT INTEEESTED IK THE SUBJECT MATTEES . . 23

1. Authorized agent . 23

2. Attornies and Solicitors 25

3. Counsel '. . 27

4. Executors and Administrators 29

Personal liability 30

Admission of assets by referring .... 30

5. Trustees 32

6. Committee of a Lunatic 32

7. Public officer 32



XI



SECTION III.

PEESONS EMPOWEEED TO EEFEE BY STATUTE . . . .

1. Assignees of Bankrupts and Insolvents ....

Reference, admission of assets ... . .

Reference by bankrupt

Liability of assignees . . . . . .

2. Savingi Banks and Friendly and Benefit Building

Societies .... ....

3. Promoters of Public Undertakings and Railways

4. Ecclesiastical and Collegiate Corporations, concerning



their lands

5. Masters and Workmen, concerning their trade



33

33
33
33
34

35
38

39
40



xu



CONTENTS OF THE TREATISR.



Tart I.

OH. III.



CHAPTER III.

HOW MATTERS MAY BE REFERRED TO ARBITRATION



PACE

41



SECTION I.

OF SUBMISSIONS IN GENEEAL

1. General qualities of a submission . . . .

No particular form requisite

2. What is a reference to a^-hitration

Intention of parties to bind themselves
Who are arbitrators ....

3. Talcing collateral secu7'ity to enforce the award

Warrant of attorney ....
Rule to deliver possession pursuant to awai-d
Conveying lands to arbitrator on trust .

4. Arbitration j)ending cannot be pleaded

5. Staying 'proceedings contrary to reference

Under Common Law Procedure Act, 185 1
In what cases action will be stayed



41

41
42

42
42
43

44
44
45
45

45

46
46
47



SECTION II.

OF SUBMISSIONS BY PAROL, AGREEMENT IN WRITING, OR DEED . 49

1. Parol submission 49

2. Submission by agreement in writing not under seal . 50

3. Submission by bond 51

4. Submission by deed 53

5. Disadvantages of suhnissions which cannot be made

rules of court 53



SECTION III.

OF SUBMISSIONS BY CONSENT WHICH MAT BE MADE RULES OP
COURT BY STATUTE

1. Hfect of the statute 9 c& 10 W. III. c. 15

Construction of the statute ....

2. What references tvithin the statute

Not parol submission .....
Cause and all matters referred ....
Cause referred by agreement
Not indictment ....



54

54
55

57
57
57
57
59



CONTENTS OF THE TKEATISE.

PAGE

3. What a sufficient consent clause under the statute of

William in. 59

4. Effect of the Common Law Procedure Act, 1854 . . 61

Submission may be made rule unless contrary
intention appear 61



Xlll



Part I.

OH. III.



SECTION IV.

OF AGREEMENTS TO EEFER EUTTTEE DISPUTES TO AEBITEATION . 62

1. Effect as a submission of an agreement to refer future

disputes 62

2. Effect in km of an agreement to refer future disputes . 63

No plea to action , 63

3. Effect in equity of an agreement to refer future dis-

putes 65

No specific performance ...... 65

No plea in equity 65

4. Effect of the Common Laio Procedure Act, 1854 . . 66

On failure of parties judge may appoint arbitrator . 66

Party may appoint his arbitrator to act alone . . 67



SECTION V.

OF AN AGREEMENT IN THE SUBMISSION NOT TO PROCEED AT

lAW OK EQUITY 68

1. Effect in laio of an agreement not to sue . . . . 68

Enforced by action, setting aside proceedings, and

attachment ........ 68

No plea on equitable grounds .... 69

Prohibits arrest of judgment . . . . . 70

And motion for judgment non obstante veredicto . 70

2. Effect in equity of an agreement not to sue . . . 70



SECTION VI.

OP SUBMISSIONS MADE IN A CAUSE AT COMMON LAW

1. Forms of submissions made in a cause .

2. Submission by rule of court

3. Sitbmission by judges order .



72

72
73
73



XIV



CONTENTS OF THE TREATISE.



Tart I.

CII. III.



4. Submission by order of Nisi Prius

Taking verdict subject to reference .
Damages in action limited by verdict
Withdrawing juror or discharging jury-
Referring other matters with the action .
Reference on the " usual terms "

5. Setting aside a submission made in a cause .

For fraud, mistake, or bad faith

6. Amending a submission made in a cause

7. Altering terms of reference without altering submission

Enlarging particulars of demand

Allowing plea to further maintenance of action

8. Submission in a cause a stay of i^roceedings

9. Submission in a cause a discharge of bail

Sureties in replevin ......

10. Enforcing submissions made in a cause .

By attachment .......

The award how enforced ....

11. Compulsory reference of action for matters of account

Under the Common Law Procedure Act, 1854
After writ .......

On trial by judge

Clause as to costs ......



SECTION VII.

OF JUDICIAL AND STATUTABLE SUBMISSIONS NOT MADE IN A
CAUSE AX COMMON LAW

1. Submission by order of Equity

Stay of proceedings in equity

2. Submission in Bankruptcy

3. Submission by record . ....

By recognizance ......

4. Submission by order of a County Court

5. Submission by order of Quarter Sessio7is .

6. Submissions under the Lands and Railways Consoli-

dation Clauses Acts

Compulsory on demand of party
Submission should be limited to compensation .
Appointment of arbitrator the submission
Appointing one arbitrator to act for botli .
Costs of reference ......



CONTENTS OF THE TREATISE.



XV



7. Some other siibmmions hy statute .

Under the Companies Clauses Act
Concerning prison expenses .
Between Masters and Workmen
By private Act of Parliament



PAGE

98


Part I.
CH. iir.


98"




98




99




99





SECTION VIII.

OF PROCEEDINGS OTS THE STJBMISSIOlf WHEN ONE PAETY HAS

PEETENTED AN AWAED BEING MADE . . . .100



1. Remedy hy action and attachment ....

Preventing award being made breach of submission
Revocation a breach of submission

2. Motion for costs under the submission .

Clause to give costs when award wilfully prevented

Court no power without the clause

No power where award made ....



100
100
100

101
101
102
102



PAET THE SECOND.



pakt II. CHAPTER I.



Ch. I.



PAGE

THE OFFICE OF ARBITRATOR 105



SECTION I.

OF WHO MAT BE AN AEBITRATOE 105

"When interest disqualifies 106

Arbitrators by statute . . , . . . 107



SECTION II.

OF THE MORAL QITAIITIES REQUISITE m AK ARBITEATOa . .108

Integrity and impartiality requisite . . . . 108



SECTION III.

OF THE FRINCIPLES BY "WHICH THE AKBITRATOR. SHOTTtB BE
GTJIDEB



■Whether bound to decide according to law
Legal and equitable authority
Taking moral questions into consideration
When power beyond law



110

111
112
113
113



CONTENTS OF THE TREATISE.



xvu



CHAPTER II.

OVER WHAT MATTERS THE SUBMISSION GIVES THE
ARBITRATOR JURISDICTION



Part II.
PAOE Ch. ir.



115



SECTION I.

OF THE EFFECT OF PA.ETICULA.K TEEMS TO EEFEK PAETICTJLAR

MATTEES 115

All matters in difference 115

All matters in the cause . . . . . , ,117



SECTION II.

OF THE STJBJECT ITATTEES, WHETHEE JOINT OE SEVEEAL .

All matters between the parties, or any of them



121
121



SECTION III.

TIP TO WHAT DATE MATTEES IN DIFFEEENCE MAT AEISE

Cause referred, up to date of writ
Further claims by special provisions
General reference, up to date of submission
Future, contingent, and periodical claims



122
122
123
123
124



CHAPTER III.

THE DURATION OF THE ARBITRATOR'S AUTHORITY



126



SECTION I.

OP THE DTJEATION OF THE AEBITEATOE'S AtTTHOElTT WHEN NOT

ENLAEGED OE EETOKED 126

1. WJien the submission prescribes no time within which

the award is to be made 126

Within three months by Common Law Procedure

Act, 1854 127

2. WJien the submission prescribes a limited time for

making the award 129

Award must be made within the time . . .129
Limit under the Lands Clauses Consolidation Act . 130

6



Xviii CONTENTS OF THE TREATISE.



Part II.

CH. III.



3. Authority of the a7-hitrator determined hy making the

aivard 131

Arbitrator cannot alter award when made . . . 131
Cannot make new award except under statute, when
first award bad 132



SECTION II.

ENLAEGING THE TIME FOE MAKING THE AWARD

1. Enlargement of the time hy the a7-hitrator

No implied power to enlarge ....
Enlargement must be made within original period
How enlargement should be made .
Enlargement by umpire not enlarge arbitrator's time
Enlarging time under the Lands Clauses Act .

2. Enlargement of time hy consent of the parties .

Enlargement by consent a new submission . .
Enlargement under the Common Law Procedure
Act, 1854

3. Enlargement of time hy the courts of law

Statutory power of the Court ....

4. Enlargement hy the court under the Common Law

Procedure Act, 1854

5. Enlargement of time hy a court of equity .



133

133
133
133
135
137
137

137
137

138

139
140

142
143



SECTION III.

OF EEYOKING THE AEBITEATOe's ATJTHOEITY , . . .143

1. Revocation hy covimon laiv at the will of a party . . 143

Submission at common law revocable until award

made 145

Revocation breach of submission . . . . 146

Justification for revoking ..... 146

2. Revocation hy leave of the court 147

Revocation prohibited without leave of court by

statute ......... 147

To what cases the statute applies .... 147

Effect of the Common Law Procedure Act, 1854 . 148

When leave will be granted ..... 149

County Court submission . . . ... 151

Submission under the Lands, Railways, and Com-
panies Clauses Acts . . , , . . 152



CONTENTS OF THE TREATISE.



XIX



3. Revocation in eqvitij at the tvill of a fariy .

4. Revocation hy hanhruptcy

Bankruptcy no revocation ....

5. Revocation hy insolvency

6. Revocation by marriage of a female 2}arty

7. Revocation hy the refusal to act or death of the arhi

trator

Eevocation by disagreement of two arbitrators
Appointing new arbitrators by statute, on death
refusal, or incapacity . . . . .

8. Revocation hy the death of a party

Death of a single party a revocation . . .
Of one of several parties ....

Clause for preventing death from revoking sub-
mission ........



PAGE Part II.
152 cu. IV.



153
153

155

155



156
156

157

158

158
159

161



CHAPTER IV.

THE POWER AND DUTY OF THE ARBITRATOR BEFORE
MAKING THE AWARD



163



SECTION I.



OF TEOCEEDINGS IK THE KEFEKENCE .



163



1. Serving the submission on the arbitrator . . . . 163

Procuring and serving the order of reference . . 163

2. Power of the arbitrator to regulate the proceedings in

the reference . . . 164

To determine how reference to be conducted . . 164

To fix time and place of meeting . . . . 164
The exercise of his discretion when reviewed by the

court 165

Ordinary course of a reference . .... 166

Performing condition precedent to hearing the case 168

Under the Lands and Railways Clauses Acts . . 168

3. Enforcing the attendance of witnesses . . . . 169

Statutory provision for compulsory attendance . 169

Practice obtaining order for witness to attend . 170

Statute not extend to equity 171

2



XX



CONTENTS OF THE TREATISE.



Tart II.

OH. IV.



4. Effect of the Common Law Procedure Act, 1854

Whether s. 7 be of general application .

5. Parties attending the arbitrator 2^ruileged from arrest

How far privileged during adjournments

6. Examination of the witnesses on oath

Statutory provision empowering the arbitrator to

swear them ....•••
AVhen evidence by affidavits admissible .

7. Duty of tlie arbitrator to hear the evidence

Awarding without hearing evidence, bad
Hearing one side only ....
When arbitrator may refuse to hear evidence .
Discretionary to view premises .
Closing case too hastily ....

8. Power of the arbitrator to call for documents .

9. Duty of the arbitrator to receive no evidence unless

both 2)arties are present

Arbitrator should not receive private commuuications
Eeferring back award for irregular examination

Waiving objection to irregular conduct of the arbitrator
Parties may waive objection by their conduct .
Arbitrator's course to cure an irregularity .

When arbitrator empoiuered to proceed ex ixirte
Implied power ......

Party wilfully neglecting to attund .

Party attempting to revoke ....

Arbitrator must give notice that he means to pro
ceed ex parte ......

12. Duty of the arbitrator in deciding points of evidence

Arbitrator is bound by the rules of evidence .
His decision on points of evidence not open to review
Refusing evidence as to a particular claim not a
mere mistake of evidence . . . . .
Party retaining right of objecting to evidence .

13. Duty of the arbitrator when empowered to amend

Amending the record on terms ....

14. Power of the arbitrator to make or decline to make an

award

Court no power over ai-bitrator ...

15. Closing the case

Arbitrator may re-open case when closed
Requiring matters in difference to be stated in
writinir



10.



11.



P;\ OE

172
173

175
175

175

177
178

178
178
179
180
181
181

183

184
184
186

188
188
190

190
191
191
191

191

193
193
193

193
195

195
195

196
196

197
197

197



CONTENTS OF THE TREATISE. XXI

PAGE Part II,

16. When arbitrator abozU to aivard tvrongly . . . 198 og^ iv_

Set right iu law by the court on rule to revoke . 198

17. Stating a case, or trying an mue pending the reference 198

Case or issue under the Common Law Procedure Act 198



SECTIOX II.

OF THE ARBITEATOr's DELEGATING HIS AXTXHOfilTY . . . 198

1. Power of the arbitrator to adopt the opinion of another 198

Arbitrator may not delegate his power of judging . 198
Arbitrator may adopt an opinion . . . .199

Power to call in a valuer . . . ... 200

2. Duty of the arbitrator in taking an opinion as to a

matter of fact 201

Arbitrator should examine scientific adviser as a

witness ........ 202

3. Duty of the arbitrator in talcing an opinion on a point

of law 202

Arbitrator may consult counsel as to framing his

award ......... 203

May take counsel's opinion on a case . . . 203

4. Power of the arbitrator to delegate a ministerial act . 204



SECTION III.

OF THE DUTT OF JOINT ARBITRATORS 204

1. Power of two arbitrators to appoint umpire . . . 204

2. Disadvantages of reference to several arbitrators . . 205

Arbitrators should not act as agents of parties

appointing ........ 205

Two arbitrators appointing a third . . . 205

Judge appointing a third . . . . . . 205

3. Duty of all the arbitrators to act 206

They may not delegate the decision to one of them-
selves 207

All the arbitrators must act together. . . . 208

All shoiild execute award together .... 209
Appointment of umpire, when a condition precedent

to acting ........ 209

4. Duty of the arbitrators when award by less than all

valid 209

AU the arbitrators must have opportunity of j udging 2 1



xxu



CONTENTS OF THE TREATISE.



Pakt II.

OB. IV.



Two may act if third refuse to concur

Under the Lands, Railways, and Companies Clauses

Acts

Death, refusal, or incapacity, of one of the two
What a refusal to act .....



P'.OE

210



211
211
212



SECTION IV.



OF THE TJMPIKE



1. By whom an umpire is to be appointed

Power of arbitrators to appoint

Appointment under the Lands, Railways, and Com

panics Clauses Acts

Appointment by judge under Common Law Pro

cedure Act, 1854. . . . , .

2. When the arbitrators should ap2yoint the umpire

When under the Common Law Procedure Act, 1854
When under the Lands Clauses Consolidation Act

3. How the arbitrators are to choose an umpire

By choice not chance ... . .

Unless parties consent .....
Appointing second umpire if first refuse
Appointment must be as directed in the submissiua
Appointment by Railway Commissioners . . .

4. Commencement and duration of the umjnre's authority

Commencement from the disagreement of the arbi-
trators

Commencement from the expiration of the arbi-
trator's period

Commencing subject to defeazance before time out

What a disagreement of the arbitrators

Umpire's power to enlarge before disagreement

Umpire no authority when arbitrators award on
part ....,..,

Duration of umpire's authority ....

Enlargement by the court ....

Duration of umpire's authority under the Lands
Clauses Act ,

From what date the umpire's three months com-
mence .......



Online LibraryFrancis RussellA treatise on the power and duty of an arbitrator, and the law of submissions and awards; With an appendix of forms, and of the statutes relating to arbitration / by Francis Russell → online text (page 1 of 105)