parties; any thing in this Act contained to the contrary notwithstanding. [No. V. ] 6 Anne, c. 31.-An Act for the better preventing mischiefs that may happen by Fire. Eldon said—" If a question of law is referred to an arbitrator, he must decide upon it, and though he decide wrong you cannot help it. In a case before Lord Rosslyn, Mr. Mansfield and I endeavoured to open an award on the ground of mistake of the arbitrator, the question referred being as to the vesting of a legacy; but it was held we could not.' In Kent v. Elstob, 3 East, 18, (arising on a reference at nisi prius) the arbitrator with his award delivered a paper containing reasons for his opinion, which appeared to proceed upon a mistaken view of the law, and the award was set aside, as he meant to determine according to the law, and had mistaken it; and that the reasons assigned should be taken to be the same as if inserted in the award. Ching v. Ching was cited; but Lawrence J. said "The case appeared to be only a short note, and without knowing more of the circumstances of it he could not form any judgment upon the opinion said to have been there delivered, whether they applied or not." In the subsequent case of Young v. Walter, 9 Vesey, 364, a motion being made to prevent the execution of an award on account of a mistake by the arbitrator, Lord Eldon said"The Court of King's Bench have lately quarrelled with a decision of Lord Rosslyn, followed by me upon this point. I confess I think those decisions right. If there is a question of law, and the parties choose to refer that to the decision of an arbitrator instead of the court, why may not he take all moral considerations into his judgment? If they refer to a person to decide all matters in difference according to law, and he means to decide according to law, and mistakes, the court will set that right. But if a distinct question of law and nothing else is referred, as there was in the case before Lord Rossyln, and the parties choose to say they will not take the decision of the court, but will take whatever an arbitrator shall say is the law between them, why may they not so agree?" In Chace v. Westmore, 13 East, 357, upon a reference of causes depending to a gentleman at the bar, who made his award as well upon the law as the fact, it was moved to set aside the award, on the ground of a mistake in point of law; but though the question of law was raised on the pleadings, it did not appear upon the face of the award, but was brought before the court on affidavit. Upon shewing cause, Lord Ellenborough and the rest of the judges intimated great doubt whether they ought to enter into the merits of the decision. His Lordship observed, that there was a great difference in these cases in considering the object of the reference, and the description of the person to whom the decision was confided by the parties. In ordinary cases, where ques No. IV. 9&10W. III. c. 15. 1թ. tions of fact are referred to one who is supposed to be competent to deal with such questions, though not with questions of law, and a question of law happens to arise, in which he disturbs the whole justice of the case, the court would, I think, enter into the inquiry, and correct what was erroneous in the decision. But, when a doubtful question of law arises between parties, it often happens that on that very account they agree to refer the matter to the arbitrament of a gentleman of the profession, meaning to refer the matter of law to him, and to abide by his determination of it. After hearing counsel in support of the rule, his Lordship said, "I fear it is impossible to lay down any general and certain rule upon this subject, in what cases the court will not suffer an award to be opened: it must be subject to some degree of uncertainty, depending upon the circumstances of each case. But it is enough to say, that, in the present case, where the merits in law and in fact were referred to a person competent to decide upon both, we will not open the award, unless it could be shewn to be so notoriously against justice, and his duty as an arbitrator, that we could infer misconduct on his part." The other judges agreed; and Le Blanc J. added, "that where the question of law necessarily arises upon the face of the award, then the court must take notice of it." In the subsequent case of Campbell v. Twemlow, in the Exchequer, 1 Price 81. which arose on a reference at nisi prius to the Editor of the present Work, a motion was made to set aside the award, on account of the rejection of a witness as incompetent. A great part of the discussion at the bar related to the question of law upon the point objected to; but the court held that it was unnecessary for them to give any opinion on that question, which they treated as a doubtful one. Thomson C. B. said, "Every thing both of law and in fact must, in this instance, have been referred to the arbitrator. He has adjudged the case, and has decided on not calling this witness. Certainly, there have been many instances, where the courts have refused to interfere, on the ground of a mistake by an arbitrator in point of law. The case of Ching v. Ching goes precisely to that point. Here, certainly, it was a question of law, whether the witness was admissible or not. There have been other cases where the arbitrator has prayed the aid of a court, and stated the grounds of his doubts on the face of the award; and there, certainly, the courts have interfered, and given an opinion. In Ives v. Medcalfe, 1 Atk. 63. a material document was shewn to one arbitrator only, and the other swore, that if he had seen it he believed he should not have made such an award. There, Lord Hardwicke held that the No. V. 6 Anne, c. 31. VI. AND be it further enacted by the authority afatida hated, action, suit, or process whatsoever, shall be had, maintained, or prosecuted against any person in whose house or chamber any fire shall, from and after the said first day of May, accidentally begin, or No action to be prosecuted against any person in whose house, &c. any fire accidentally begins, &c. award was unfairly obtained, and on that ground decreed that it should be set aside; but he agreed to the general rule, that the arbitrators are judges of the parties' own choosing; and that, therefore, they cannot object to the award as an unreasonable judgment, or as a judgment against law."-The other judges concurred in the opinion that the award was conclusive. In cases of partnership, and other relations of a permanent nature, it is usual to insert a clause, that any matters of difference which may arise should be determined by arbitration: and in one case, Lord Kenyon, as Master of the Rolls, decided, that such an agreement might be pleaded in bar to a suit in equity; Halfhide v. Fenning, 2 Brown C. C. 336; but this is contradicted by the general current of authorities both previous and subsequent. See Mitchell r. Harris, 2 Vesey jun. 129: 4 Bro. Ch. 311; Kill v. Hollister, 1 Wils. 129; Street v. Rigby, 6 Vesey 815. And in Tattersall v. Groote, 2 B. and P. 131, the Court of Common Pleas expressed a strong opinion that no action could be maintained for breach of a contract to submit to arbitration, on the ground of its being nugatory; and that it would be difficult to direct a jury upon what rule to proceed in assessing damages. The case was decided on other grounds, but the opinion in question seems to be very open to further examination; for, in general, if one person covenants absolutely with another for the performance of a given act, an action may be maintained for the non-performance of such act, without shewing any interest in its being performed. The damages would in most cases be merely nominal; but it is easy to imagine a case in which, upon the subject in question, large damages might be made out to the satisfaction of a jury; for instance, if the plaintiff should have obtained the decision of a court in his favour, and should have been put to considerable extra costs. But the difficulty or uncertainty of ascertaining the amount of damages can very seldom be admitted as a bar to the right of action. But in Waters v. Taylor, 15 Vesey 10, (being the well-known case of dispute between the proprietors of the Opera House) upon a motion for a receiver, the Lord Chancellor suggested the absolute necessity that the parties should go to arbitration, and also took the objection that the court does not interfere for the management of a joint concern, except as incidental to the object of the suit, to wind up the concern and divide the profit. In the course of his judgment he made the following observations:-"This is compared to the familiar case of a partnership. There is no instance of an application for the pur pose of putting a manager or receiver upon partnership property, where the court did not pause, from regard to the interest of the parties; putting it to them to consider whether they would, by a proper attention to their own interests, remove the necessity of doing that which, though it must be done when necessary, is at best a ruinous proceeding.”—“ If that is the usual practice upon partnerships in London, when the parties have not provided that no such measure shall be adopted, without entering into the consideration how far those parties have conclusively provided another remedy, such an intimation from the court is peculiarly wholesome if the parties have, upon the face of the instrument, demonstrated their conviction that a court of justice should not be hastily resorted to: especially if the nature of the subject is such that a judge, feeling himself bound to determine, must acknowledge that he cannot understand it; and the instru ments which must decide upon the rights of the parties betray their consciousness that no judge could understand it."-"The argument with reference to those provisions (the provisions of the particular deed) is, that the court can no more renounce the jurisdiction on account of the ridiculous or frivolous nature of the dispute, than upon the most important point: but my argument is, that the forum they have provided for themselves, and tha guard introduced by them against the forum of the country, (whether effectually I do not say) shew their intention against the interference of any other jurisdiction, until they have tried the effect of the special means, provided by themselves; and that course which is familiar in the common case of partnership is more especially to be adopted where the parties have themselves expressed that intention." -"As a general proposition, it is true that an agreement to refer disputes to arbitration will not bind the parties even to submit to arbitration before they come into court. I would not, therefore, say, that the consequence of this provision in the instrument is, that a suit cannot be instituted without adding this qualification; that the court, if bound to administer relief, is fully justified in pausing before it takes, upon an interlocutory motion, a step that is in truth the greatest part of the relief."-" I am so strongly pressed by the consideration that, whatever view the parties themselves may take of the subject, they are calling down upon them an interposition, perhaps not the most ruinous, but that cannot take place without infinite mischief to all who may have any interest in the subject, that I shall give them an opportunity to pause, and consider whether they will press for my determination, or have their disputes determined by that more wholesome mode which they have themselves pro T any recompence be made by such person for any damage suffered or occasioned thereby; any law usage or custom to the contrary notwithstanding: And if any action shall be brought for any thing done in pursuance of this Act, the defendant may plead the general issue, and give vided; and I recollect very few instances where this sort of recommendation has been given in vain."-" Whatever may be the law of this court as to the capacity of parties, by stipulation, to deprive themselves of the right to resort to a court of justice in the first instance, and taking the law to be, that a man cannot bind himself to forbear to come here, until an arbitration has been had; in almost every line of this deed, upon which the suit is instituted, the parties have expressed the Freatest anxiety to keep out of court, if they Bould in any manner arrange their disputes by rbitration. Accordingly I thought it within he scope of my discretion to give the recomnendation that has been given in almost every ase where it was proposed to make this court he manager of joint concerns, giving the parles an opportunity of preserving themselves rom the ruin that must be the necessary conequence of an active interference of the ourt.”—“ In the instance of a partnership, if e parties cannot agree, each excluding the ther, that state of circumstances, operating s a dissolution, puts an end to the partneraip; and this court then interposes in this ay, that it will wind up the concern, and ith that view, will appoint a person to colct and manage until an end can actually be at to the concern. So a manager of a West adia estate is appointed, not for the purpose carrying it on, but to enable the court to ve relief when the cause shall be heard.”— The parties have still the Locus Penitentiæ, ad if they will not settle their own interests, is immaterial whether the consequences all be produced by their own act or by ine." In Carlen v. Drury, 1 V. & B. 154., being application for the appointment of a reiver, in a suit respecting a subscription ewery, Lord Eldon said :-" This court is t to be required on every occasion to take e management of every playhouse and brew. suse in the kingdom: but if the case justifies e interference of the court, it may appoint manager in the interim for the purpose of nding up the concern." And in Forman v. Homfray, 2 V. & B. 329, a bill by one partner against another, for account, Lord Eldon said, he did not collect an instance of a bill filed by one Fartuer against the other praying an account erely and not a dissolution, proceeding on e foundation that the partnership was to tntinue. Sir Samuel Romilly admitted that would be extremely difficult to produce any thority, but said he had a strong impression at he had drawn such bills, observing that continuance of the partnership is the und of the jurisdiction in equity, as if the rtnership was determined, either party ght proceed at law to have the account .OL. III. No. V. 6 Anne, c. 31. taken before auditors. The Lord Chancellor observed the inconvenience, that if a partner can come in equity for an account merely, pending the partnership, there seemed to be nothing to prevent his coming annually. And the marginal abstract of the case is, "No relief upon a bill by one partner against another not praying a dissolution." I have thought it eligible to bring together the preceding citations, as indicating a state of the law with reference to a very important subject, which seems to stand very much in need of legislative interference. A general agreement to submit to arbitration the disputes which may arise between parties forming a permanent connection, is held to be destitute of legal obligation. The resort to a court of justice to settle differences which can only be adequately adjusted by reference or accommodation, is contemplated as necessarily fraught with ruin. A salutary caution is indeed held out to parties acting with fairness and integrity; but a most powerful engine of oppression is placed in the hauds of those who are actuated by improper motives; and the law, which in general derives its efficacy and advantage from the power to compel, is reduced to assume the language of recommendation-a language which has its due effect upon provisional advisers, but which a frau dulent party is authorized to contemn. A connection is entered into upon mutual engagements for its continuance and upon the duration of which, according to the fair spirit and intention of its original formation, the prosperity and ruin of a party may depend; but that party is disabled from asserting his legal rights with reference to such continuance, and can only have the aid of the law as connected with the object of its dissolution. The inconvenient extent to which the adoption of an opposite course would engross the time and attention of those entrusted with the administration of justice, is manifest and apparent; therefore, the rights and obligations, which in almost every other system of jurisprudence are a most peculiar object of attention, must be left to the mere support of personal confidence and integrity. The existence and magnitude of the evil thus stated are manifest and indisputable. I am not prepared to suggest any particular remedy, by the institution and establishment of any summary mode of jurisdiction; although I have often contemplated the general principle of such an establishment as being calculated, with proper modifications, to produce a beneficial effect: and I apprehend that there would be considerable advantage, without any material difficulty, in giving effect to those positive stipulations, which are familiar in their occurrence, and almost essentially necessary in their application. 2 B No. VI. 4 Geo. IV. c. 73. this Act in evidence; and in case the plaintiff become nonsuit or discon- [Another section of this in Vol. VIII.] 29 G. 2. (1.) [No. VI.] 4 George IV. c. 73.-An Act to facilitate the Recovery of Damages for Malicious Injuries to Property in Ireland. [11th July 1823.] any WHEREAS by an Act made in the Parliament of Ireland in the twenty-ninth year of the reign of King George the Second, intituled An Act to prevent unlawful Combinations of Tenants, Colliers, Miners, and others, and the sending of Threatening Letters without Names, or with fictitious Names subscribed thereto, and the malicious Destruction of Carriages; and for the more effectual Punishment of wicked Persons who shall maliciously set fire to Houses or Outhouses, or to Stacks of Hay, Corn, Straw, or Turf, or to Ships or Boats; it is amongst other things provided, that when any felony shall be committed against the said Act, and any one of the offenders shall be apprehended and lawfully convicted of such felony at the next assizes to be held for the county where such felony was committed, no barony nor inhabitant thereof, shall in any case be subject or liable to make any satisfaction to the party injured for the damages he shall have thereby sustained: And whereas by an Act made in the fifty-sixth year of the reign of 56 G. 3. c. 55. his late Majesty King George the Third, intituled An Act to amend an Act of the Parliament of Ireland in the Fortieth Year of His present Majesty's Reign, for granting the Sum of Five hundred thousand Pounds for promoting Inland Navigation, and for other Purposes therein mentioned, and to enlarge the Powers vested in the Directors of all Works relating to Inland Naviga tion in Ireland; it is among other things provided, that in case the person or persons or any of them, who shall have committed any such injury or damage as in the said Act is mentioned, shall be convicted of such offence, then and in such case no sum of money shall be raised or levied in pursuance of any presentment of any grand jury under the said recited Act: And whereas the said recited provisoes may operate to prevent the conviction of such offenders: Be it therefore enacted, by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That the said several provisoes in the said several recited Acts shall be and the same are hereby repealed; and that from and after the passing of this Act, any barony and any inhabitant thereof shall be subject and liable to make satisfaction under the said first recited Act (to the amount in the said Act mentioned), to any party faction for Da- injured, for any damages sustained by any felony committed contrary to the said first recited Act; and that any sum or sums of money which shall have been or shall be presented by any grand jury under the sa last recited Act, for the repairing or making good any loss injury or dan shall be raised and levied in pursuance of such presentment, although in any case under either of the said recited Acts respectively, the person Recited Provisoes as to Convictions repealed, and Baronies liable to make Satis mages sustained, and Presentments of Grand Juries shall be levied. age The most important object of regulation would be, to supply by public authority the refusal to nominate an arbitrator, and to obviate those contrivances which might render an apparent and colourable nomination nugatory, with respect to the producing a due decision of the controversies intended to be submitted to enquiry. I shall not extend this digression by pursuing the subject into its detial: I am, from personal observation and experience, well aware of the difficulties that have resulted from the interference of the le gislature in establishing a compulsory system of arbitration between masters and servants, in certain branches of manufacture; but I am far from thinking that the difficulties attached to the nature of the subject are so insuperabit, as necessarily to render the suggestion of the principle a matter of fruitless and visionary speculation. rersa t or persons who shall have committed any such felony or injury or damage or any of such person or persons shall have been or shall be convicted of such offence; any thing in the said recited Acts or either of them contained to the contrary in anywise notwithstanding. No. VI. 4 Geo. IV. c. 73. END OF VOL. III. |