PART III. deciding against him is evidence that the withholding the chattel is no unlawful conversion (c).

CH. III. S. 5.

Award acted on evidence affecting strangers.

Award respecting right to tolls.

in award.

An award acted on may sometimes be admissible as evidence between strangers.

In a case at Nisi Prius before Lord Tenterden, C. J., an award of the time of Henry VIII. between the Corporation and University of Cambridge, regulating the amount of toll payable to the Corporation, was held inadmissible as evidence of reputation respecting the right to tolls in an action between the lessee of the Corporation and a third party, there being no proof that it had been acted on; yet a deed respecting the same question and founded on the award was admitted. In the same case, another award of the same reign, by which certain parties were discharged of toll to the Corporation of Cambridge in consideration of a specified annual payment was admitted in evidence, the plaintiff undertaking to prove payment of the composition, but on his failing to do so the evidence of the latter award also was struck out (d).

Stranger Where a tenant under a sixty years' lease, having been acquiescing served with a notice of an award made between two parties who had claimed rights (paramount to that of his lease) to enter and possess the lands to recover rent charges in arrear, attorned and paid rent to the one to whose claim the award gave priority; it was held on proof of these facts that he became tenant to the latter from year to year (e).

Award

acted on an estoppel.

On an issue respecting the title to some growing crops seized by a creditor of the tenant of the land, an award between the landlord and tenant directing the tenancy to cease, and the tenant to deliver up possession, was held admissible in evidence, though of itself it could not transfer the property in the crops to the landlord (ƒ).

The right to a farm being in dispute, the parties agreed to be bound by the decision of an arbitrator, and he awarded

(c) Gunton v. Nurse, 5 Moore,

259.

(d) Brett v. Beales, 1 Moo. & M. 416.

(e) Doe d. Chawner v. Boulter, 6 A. & E. 675.

(f) Thorpe v. Eyre, 1 A. & E, 926.

CH. III. S. 5.

against the one who had previously received rent as landlord PART III. from the tenant. Notice of the award was given to the tenant, and with the sanction of the losing claimant the tenant was directed in future to pay his rent to the successful party as his landlord. Afterwards, the former landlord being dissatisfied with the award, distrained on the tenant for rent. It was held, in an action of replevin, that though the tenant is estopped from saying that his landlord had no title, the tenant here was at liberty to prove these circumstances in evidence, to show that his landlord's title had determined, and that the loser was estopped from setting up his title of landlord, having himself induced the tenant to pay rent to another person (g).

IV. Impeaching by evidence award put in evidence.]— Evidence When an award is tendered in evidence the opposite party award. impeaching may offer evidence in reply to impeach its validity, and so doing away with its binding effect, allow proof to be given of the matters professed to be determined by it (h). Thus, Proving an award on a reference of all matters in difference being awarded on. offered in evidence by the defendant, the plaintiff is at liberty to prove, that on some of the matters referred the arbitrator has not awarded (¿).

matter not

decided.

To illustrate this principle further, it may be observed, Issues unthat though a submission by rule of court referring an action and an award determining the action generally is primâ facie evidence of a good award, yet evidence may be offered by a defendant under a plea of "no award," to show that there are several issues in the action referred, which the award has not determined, consequently that it is not final, and therefore of no effect (k).

The court will grant a new trial if the judge at Nisi Prius Showing reject evidence offered to show that the subject matter of the

matter not within reference.

CH. III. S. 5.

contradict

award.

PART III. action to which the award is offered as an answer was not included in the reference or determined by the award (7). Evidence to In an old case, however, where the defendant in mitigation of damages put in evidence a release by the plaintiff, made in pursuance of an award on a submission between the plaintiff and another, the court would not allow the plaintiff to give evidence to contradict the general terms of the award and release, which included the ground of action, and to show that the arbitrators had on certain grounds refused to take into consideration the claim in the action (m). The same principle which prohibits the pleading the misor mistake take or misconduct of the arbitrator precludes the defendant of arbitrator from giving evidence on those grounds (n), and in an action on an award from going into evidence to unravel the accounts exhibited to the arbitrator, and so dispute the correctness of his decision (o).

Evidence of misconduct

inadmissi

ble.

The question whether in an action for £246 the defendant was entitled to a set-off for the like sum of £246 in respect of some silk, having been submitted to the arbitrator, and decided in the negative by the award, the defendant in an action on the award to which he had pleaded a set-off, proposed to give evidence of a claim for the silk less than £246, and to show that the arbitrator had decided against his claim, simply because he had held himself bound by the words of the submission to decide against the defendant, unless a set-off was proved of the exact value of £246: the court, however, rejected the evidence, holding that in an action on the award the decision of the arbitrator could not be impeached for a mistake (p).

In one instance at Nisi Prius in an action of assumpsit on the award, the defence relied on was, that the irregular conduct of the umpire in examining one of the parties in the absence of the other vitiated the award. No objection, however,

(1) Ravee v. Farmer, 4 T. R. 146. (m) Shelling v. Farmer, 1 Stra. 646.

(n) Wills v. Maccarmick, 2 Wils. 148; Dyer v. Dawson, cited in Heming v. Swinnerton, 1 Coop.

C. C. 420, notes.

(0) Swinford v. Burn, Gow, N. P. 5.

(p) Johnson v. Durant, 2 B. & Ad. 925.

CH. III. 8. 5.

submission

party.

seems to have been made on the part of the plaintiff to the PART III. reception of the evidence or to the nature of the defence (q). It was said, in a case decided previous to the new rules of Evidence pleading, that, if the submission were obtained by fraud, and obtained by an action were brought on the award, the defendant might fraud of plead no submission, and prove the fraud in evidence, which would authorize him to treat it as no submission; or that he might plead no award, and show that the submission was obtained by fraud (r). But he could not, it seems, under any plea, be permitted to give evidence that the award was made as it was, in consequence of fraudulent conduct of the parties interested (s).

A submission provided that if the arbitrator should award Proving no liability that the defendants, who were executors, should purchase under the plaintiff an annuity, he should and might award it with award. a proviso, that in case of a deficiency of assets the sum should abate. The arbitrator awarded the annuity without any proviso. On the general issue in assumpsit on the award, before the new rules, the court allowed the defendants to prove a deficiency of assets, holding that the arbitrator ought to have inserted the proviso, and that the defendants ought not to be the worse off for his neglect (t).

524

CHAPTER IV.

THE AWARD AS A GROUND OF PROCEEDINGS OR
DEFENCE IN EQUITY.

PART III.

IN what cases and in what manner an award can be ren

CH. IV. S. 1. dered available in equity the present chapter endeavours to Contents of point out.

the fourth

chapter.

In the first section the inquiry is made, when a bill will lie to have specific performance of an award decreed.

The second section sets forth the effect of an award as a plea in bar of a bill in equity respecting the matters referred, or of a bill to set the award aside.

The third section discusses the more summary modes in which the assistance of equity to enforce an award may be obtained.

Whatever

the submission a bill may lie.

SECTION I

ENFORCING AN AWARD BY BILL IN EQUITY.

1. When a bill in equity will lie.]-Whatever be the nature of the submission the jurisdiction of equity over the award seems to attach.