3. The defendant denies that he ever struck or assaulted the plaintiff. 3. Statement of Claim in Action for Assault, and Slander, and False Imprisonment. 1. On the 5th of June, 1882, the defendant assaulted the plaintiff, and, with the assistance of divers others persons, conveyed him by force to the H. Asylum, where for several days he unlawfully imprisoned him. 2. On the said 5th of June the defendant falsely and maliciously spoke and published of and concerning the plaintiff the words following, that is to say, "He (meaning the plaintiff) is a raging maniac. He has already murdered one person, and if we let him go, he will murder somebody else"-meaning thereby that the plaintiff had committed an indictable offence. The plaintiff claims £1000 damages. 4. Statement of Claim in an Action for Assault by Pupil against Schoolmaster. On the 5th of August, 1880, the defendant made a violent assault upon the plaintiff, and severely beat him about the face, head, and back with a thick stick. Particulars of injury :— The plaintiff was for six weeks confined to his bed, and has sustained permanent injuries to his spine. 1. The defendant is the master of the H. Grammar School. On the said 5th of August, 1880, the plaintiff was a pupil under the defendant's charge and control, and while under such charge and control, he was guilty of gross impertinence towards the defendant, and of such insubordination as rendered it necessary for the preservation of the discipline of the school that the plaintiff should be punished. 2. Thereupon, the defendant moderately, and using no more violence than was necessary, chastised the plaintiff with a birch rod, which is the grievance complained of. 5. Statement of Claim in an Action against a Constable and a Surgeon for Indecently Assaulting a Female Prisoner. On the 1st of June, 1881, the defendant A. B., acting by the orders and directions of the defendant C. D., indecently assaulted the plaintiff, and against her will made an examination of her person, with the professed object of ascertaining whether she had been recently delivered of a child. The plaintiff claims £100 damages. Defence of the Defendant A. B. 1. The defendant A. B. did not assault the plaintiff. 2. He did examine her person on the said date at her request. Defence of the Defendant C. D. 1. The defendant C. D. denies that the defendant A. B. ever made any assault upon the plaintiff. 2. He says, further, that if he did, he did not do so by the orders or directions of this defendant. Assignee. See Chose in Action. Attorney. See Solicitor. Award (a). 1. Statement of Claim in an Action on an Award. 1. On the 1st of May, 1880, the plaintiff and defendant, by an agreement in writing of that date, referred all matters in (a) A party who has obtained an award in his favour can enforce his How award rights under it, either by (a.) an action upon the award, or (b.) when the is enforced. submission has been made a rule of Court, summarily by an order obtained in chambers. We are only concerned with the former remedy. In drawing a claim upon an award, it is conceived that the material averments are, first, that certain differences were submitted by the plaintiff and defendant to the arbitration of an arbitrator named: secondly, that the arbitrator accepted the burden of the reference; and thirdly, that he awarded in favour of the plaintiff for whatever sum is sought to be recovered in the action. The terms of the submission ought not to be set out in the claim, nor, as a rule, should the full text of the award be given. There may, no doubt, be cases where the precise words are material. Then they should be given; but generally it will be proper merely to say that the award was for such a sum, or directed that a particular thing should be done. Where an arbitrator has awarded that the plaintiff shall have the cost Costs of of the action, or reference, or award, or any of those costs, it is not, as a award. rule, a condition precedent to an action for their recovery that the exact amount of the costs should be ascertained by the arbitrator, or that the plaintiff should get them taxed. (See Holdsworth v. Wilson, 32 L. J. Q. B. 289; 4 B. & S. 1; Lewis v. Rossiter, 44 L. J. Ex. 136; 33 L. T. 260; 23 W. R. 832.) The plaintiff may bring his action for them, and obtain judgment for such a sum as the taxing officer of the Court may find to be due. But if the arbitrator expressly awards that the plaintiff shall have certain costs "to be taxed," it may be that in such a case the costs should be taxed before action brought. When a cause alone, or a cause and all matters in difference, are referred, and nothing is said in the submission respecting costs, the arbitrator has implied authority to adjudicate respecting the costs of the cause, but not of the reference or award, and each party must bear his own costs of the reference, and is liable to half the costs of the award." (Russell on Arbitrations, 6th ed., p. 382.) But on a reference of a cause and all matters in difference, if there be an express clause giving the arbitrator power over costs, and there appear nothing in the context to limit the generality of the power, the costs of the reference and award, as well as of the cause, seem to be submitted to his award." (Ibid.) Therefore the arbitrator cannot make any award with regard to the costs of the cause, reference, or award, unless in the submission he has received from the parties, expressly or impliedly, a power to deal with the costs to the extent that he has dealt with them. may be by A submission to arbitration need not be in writing, nor is it necessary Submission that any formal words should be used. An award upon a parol submismission is perfectly good, and may be enforced by action; but it cannot parol. be enforced summarily, because a parol submission cannot be made a rule of Court. The award must be made within the time specified by the submission, unless there is power given to the arbitrator to enlarge the time, and, acting under that power, he has enlarged it, or unless it has been enlarged by the express or implied consent of the parties, or unless the Court, under the large statutory power given by the 3 & 4 Will. IV. c. 42, s. 39, and the Common Law Procedure Act, 1854, s. 153, extends the time. How far of arbitrator a defence. dispute between them in reference to the building of a mansion house for the defendant by the plaintiff to the award of A. B., Where the submission has been made a rule of Court, the Court has power Arbitrators are generally, though not necessarily, paid. In practice an arbitrator exercises a lien upon the award, which he does not publish until one or other of the parties pays his charge. He is entitled, however, to sue for his fees, and the party who invited him to act is primarily liable to him. Prior to the Judicature Acts, the misconduct, or corruption, or partiality, misconduct or mistake of an arbitrator was no defence whatever to an action upon the award. The party aggrieved might, by moving the Court within the proper time, get the award set aside on these grounds; but if he let that opportunity go by, he could not set up the misconduct as an answer to an action. (Grazebrook v. Davis, 5 B. & C. 534; Whitmore v. Smith, 7 H. & N. 509; Thornburn v. Barnes, L. R. 2 C. P. 384.) But as under the old system, a bill might be filed in equity for relief against an award where the arbitrator had misconducted himself, and as by section 24 of the Judicature Act, 1873, all equitable defences may now be relied upon, it has been suggested that a defence of the misconduct of an arbitrator would be good. (See Russell on Arbitrations, 6th ed., p. 550.) The effect of award not being final. Revocation of submission. But it is a defence to an action on an award that the award is bad because it is not final, and still leaves some one or other of the matters referred to the arbitrator undecided. When several matters are referred, unless the submission provides that the arbitrator shall find specifically as to each, he may award a lump sum generally. (Whitworth v. Halse, L. R. 1 Ex. 251; 35 L. J. Ex. 149.) Although an award be apparently good upon its face, if in fact matters which were referred to the arbitrator have not been decided by him, and this is clearly established by plea or affidavit, the award is bad. (Sallows v. Girling, Cro. Jac. 277; Russell on Arbitrations, 6th ed., p. 273.) An action may be brought in the Chancery Division to obtain specific performance of an award, as when the award is that the defendant give the plaintiff a lease of certain premises. (Per Lord Cranworth in Blackett v. Bates, 1 Ch. App. 125; 34 L. J. Ch. 515.) At common law, as a rule, a submission to arbitration could be revoked at any time before the award was made. This power was limited by the 3 & 4 Will. IV. c. 42, s. 39, which provided that if an agreement to refer contained a clause that the submission might be made a rule of Court, neither party should revoke the submission without the leave of the Court. If, however, a party, in cases where he may still do so, does revoke the submission, or refuses to appoint an arbitrator, or to go on with the reference, he is liable to an action (Scott v. Avery, 8 Ex. 487; 5 H. L. C. 811; Goldstone v. Osborn, 2 C. & P. 551); or the other party may apply under sec. 11 of the Common Law Procedure Act, 1854, for an order staying the action until an arbitration has been held. (Dawson v. Fitzgerald, 1 Ex. Div. 257 (C. A.).) But the High Court has no jurisdiction to issue an injunction to restrain a party from proceeding with an arbitration upon a matter not within the agreement to refer, although such arbitration proceeding may be futile and vexatious. (The North London Railway Co. v. The Great Northern Railway Co., 11 Q. B. D. 30 (C. A.).) Unless the plaintiff sues upon the award within six years from the day of its publication, his remedy is barred by the Statute of Limitations, 3 & 4 Will. IV. c. 42, s. 3. But if the submission was by deed, he will have twenty years in which to sue. of C., and it was further agreed that the costs of the said reference and award should be in the discretion of the said A. B. 2. The said A. B. duly heard the parties and published his award; by which he awarded that the defendant should pay to the plaintiff the sum of £510, and the plaintiff's taxed costs of the reference. 3. The said costs have been taxed at £75. The plaintiff claims the said sums of £510 and £75. Defence alleging that the Award is not Final. 1. The defendant says that the said award is not final, and that the said A. B. has not determined all the matters referred to him. 2. The defendant had at the time of the submission to arbitration, and still has, a large claim against the plaintiff for penalties for not duly proceeding with the work under his contract. The defendant's said claim was referred to the said A. B., but he has wholly omitted to consider or make any award with reference to it. 2. Action for Specific Performance of an Award. 1. By an agreement in writing between the plaintiff and the defendant, made on the 1st of July, 1879, it was agreed that all questions and matters in difference between them with respect to the plaintiff's alleged right to a lease from the defendant, for a term of twenty-one years, of the mansion known as 20, Grosvenor Square, should be referred to the award of John Smith, of 13, Brook Street, to whom full power over the costs of the reference and award was given. Under the Judicature Acts, officers attached to the High Court have been appointed, called official referees, and by the rules, the Court or a judge may refer certain classes of cases to them. Under Order 36 of the Rules of the Supreme Court, 1883, the Court or a judge may direct the trial by a judge without a jury of any matter or issue requiring a prolonged examination of documents or accounts, or any scientific or local investigation; but by rule 10 of the Order it is provided: "Nothing in this Order shall affect any Judicature proceeding under any of the provisions of the Common Law Procedure Acts do not Acts relating to arbitrations." And it was pointed out in Cruickshank v. Floating Swimming Bath Co. (1 C. P. D. 260; 45 L. J. C. P. 684; 34 old law L. T. 733; 24 W. R. 644) that the old law and practice with regard to references to arbitration were in no way affected by the Judicature Acts affect as to arbitra tions. |