THE

LAW OF AWARDS.

CHAPTER I.

Subject of Reference.

CONSIDERABLE doubt seems formerly to have been entertained, whether a dispute concerning land, could be referred to arbitration; and how far, upon an actual reference of such a matter, the parties were bound by the award.

Thus it was said, that arbitrators(a) “could not ❝ make an award of freehold, and, therefore, could "not award the freehold of one to the other;" that an award(b) could not be made of a lease for years, adjudging the land of one to another, by which the interest and estate of the former, should be transferred to the latter, since it was a chattel real. And still later, (c) one of the judges(d) observed that it was a question, whether the title to land were submissible, since it was in the realty;

(a) 14 H. 4. 19 Br. 44. b.

(c) Marks v. Marriott, Ld. Raymond, 115.

(6) Rol. Arbit. A. 4.

(d) Powell.

whilst the chief justice said, that things in the realty might be submitted, as well as things in personalty, but that they could not be recovered upon the award.

The true meaning of these, and similar passages in the books, seems to be, that land cannot pass by the mere operation of an award,(e) so as absolutely to vest the property in him to whom it is awarded; for, even at that time, it was not disputed but that, upon a submission of differences concerning the title to land, the arbitrators might direct one party (g) to infeoff the other in such land; to release(h) to him his right in it, &c.; and that, if the submission were by bond, this would be forfeited by disobedience to such an award.

Again, in respect of an award directing the partition of land, it was said that partition could not be made by award ;(i) since a freehold could not pass without livery. Yet in a subsequent case,(k) where the parties to the submission, being tenants in common, and in another case(/) being joint-tenants of certain land, were ordered to make partition by mutual conveyances, no objection was taken that the arbitrator had, in making such order, exceeded his authority. Indeed, at the present day, it is quite clear that any disputes respecting land

(e) See Doe ex dem. Morris v. Rosser, 3 E. R. 11.; but as to personalty, see Hunter v. Rice, 15 E. R. 100.

(g) 18 E. 4. 21 Rot. Arbit. F. 2. (2.)

(4) 9 E. 4. 44 Rol. Arbit. B. 14. K. 15,

(4) Rol. Arbit. A. 3.

(k) Johnson v. Wilson, Willes, 248.

(Knight v. Burton, 6 Mod. 231.

may be referred to arbitration, and that one party may be directed to execute all the necessary conveyances to the other, and to perform all such acts as may be requisite to confer the right and the possession.

Any controversies respecting personal property, may form the subject of a reference.(m)

And in all cases of injury, either to the person or property, where damages would be recoverable by action, the arrangement of the matter may be left to arbitration.

Disputes respecting rent, (n) or tithes ;(0) charges of slander ;(p) breaches of contract ;(q) trespass to the person or property ;(r) the adjustment of the terms of a marriage separation, &c. may be submitted to arbitration.(s)

It has been said, that debts upon bond, conditioned for the payment of a sum certain ;(t)debt for arrears of rent ascertained by lease; covenant to pay a certain sum of money, and the like, cannot be referred; since the extent of the demand, which one party has upon the other, being already defined by the terms of the instrument, nothing remains in uncertainty but we may remark that, in all such ca

(m) Com. Dig. Arbit. D. 3. 9. Co. 78.

(n) 4 H. 6. 17. b. Roi. Arbit. V. 8. Randall v. Randall, 7 E. R. 80.

(0) Prosser v. Goringe, 3 Taunt. 426.

(p) Linch v. Dacy, 1 Keb. 848. Cooper v. Butcher of Croydon, 3 Rep. in Ch. 42.

(9) 45 Ed. 3. 16. Bacon Arbit. A. in notis cites 16 E. 4.

(r) 13 R. 2., 7 H. 4. 31. b. Swinglehurst v. Altham, 3 T. R. 158.

(8) Soilheux v. Herbst, 3 B. & P. 444, Sce Bateman v. Countess of Ross, 1 Dow's Rep. 235.

(1) Rol. Arb. T. passim.

ses, questions may arise, affording ample ground for the exercise, of an arbitrator's discretion. Thus, the bond may be be illegal; may have been improperly obtained; part of the money may have been already paid; the opposite party may have broken some precedent covenant, which, by the same instrument, he had bound himself to perform; and under such circumstances, an arbitrator might, undoubtedly remit the payment of the whole, or part of the money, which either of the parties, upon the face of the instrument, would appear entitled to receive.

It has been also held, that an award cannot be made of debt on the arrears of an account taken before auditors, (u) nor of damages recovered by a judgment, (v) because these are matters of record. Yet there can be little doubt, but that, upon a general reference, for the purpose of arranging all matters in dispute between parties, any claim, so orig. inating, may be taken by the arbitrator into his consideration; and if the real justice of the case require it, the party may be discharged.

In no criminal case, (w) where it would be a public offence to compound an injury, can the matter be referred to arbitration; indeed, it seems that parties would be punishable who should enter into bonds with this view.

With respect to cases of minor grievance,(x)

(u) Rol. Arbit. R. 1. 6. 1 Lev. 292.

(v) Gouldsb. 91.

(w) 2 Vent. 109. Bacon Arbit. A.

(r) Blanchard v. Lilly--The King v. Lilly, 9 F. R. 497. A case occurred