1838.

DoE dem.
MADKINS
against
HORNER.

tiff, he shall be at liberty to sign judgment in the same manner as if the cause had been tried at Nisi Prius, and to issue a writ of possession thereon. Suppose the lessors of the plaintiff entered up a judgment, simply, that the plaintiff should recover his term; by the order of reference no writ of error could be brought: nor would it be error; for he is not bound to enter up judgment for damages and costs. And, further, the order of reference directs that he shall be at liberty "to proceed in the usual way for costs on such judgment;" that clause gives him power to enter up judgment for nominal damages, assuming that it were necessary. The arbitrator had no express authority, by the order of reference, to direct a verdict to be entered; and there was none on the record. Hutchinson v. Blackwell (a) shews that he could not, under the submission, order a verdict for damages. In Wykes v. Shipton (b), which may be cited, the plaintiff was entitled to damages on the new assignment; and, the arbitrator not having given them, there were no means of supplying the defect: the Court could not do so. But the present case is more like the Anonymous (c) case there cited from Smith's Reports, where the costs of a cause referred were to abide the event of the award, and, the arbitrator having ordered something to be done which shewed the event to be in favour of the plaintiff, the latter was held entitled to costs, though the award did not direct a verdict to be entered.

It will be further objected to the present award, that the arbitrator does not say on which demise the plaintiff is entitled. But he virtually finds for him on both. Intendment will be made in favour of this award, as it

(b) 3 Nev. & M. 240. See the end of this case.

(a) 8 Bing. 331.
(c) 1 Smith's Rep. 426.

was

was of the judgment in ejectment after verdict in Morris v. Barry (a).

Sir W. W. Follett and Ogle, contrà. First, the award does not include all the matters in difference. According to the argument on the other side, an award would be good which decided the title as to a single inch of land only, though the submission was of a dispute as to a thousand acres. [Coleridge J. Suppose no evidence had been offered as to any part, but that respecting which the arbitrator has decided.] The arbitrator should then have awarded that the defendant was entitled to the possession of the remainder. [Coleridge J. The only effect of such an award would be that the plaintiff's right to possess that part would be negatived. Is not that substantially done by this award ?] Suppose the claim referred were partly on account of goods sold and delivered, and partly for some other cause perfectly distinct: would it be sufficient to confine the award to the latter cause, on the ground that the claim on account of goods sold and delivered was impliedly negatived? [Patteson J. If assumpsit were brought in respect of a great many articles, and the arbitrator simply ordered a verdict for 50%., that would be final.] That might perhaps be, where the award did not shew that there was a part as to which no decision was given; for it might be intended that the 50l. applied to the whole. But here it appears, on the face of the award, that it omits to decide at all as to one part of the claim. In the matter of Robson and Railston(b) and Samuel v. Cooper (c)

(a) 1 Wils. 1. 2 Stra. 1180. (b) 1 B. & Ad. 723. (c) 2 A. & E. 752. See In the Matter of Gillon v. The Mersey and Clyde Navigation Company, 3 B. & Ad. 493.

1838.

Doɛ dem.
MADKINS

against HORNER.

1838.

Doɛ dem.
MADKINS
against
HORNER.

shew that this defect is fatal; and that, even if the plain-
tiff had expressly abandoned his claim as to the residue
of the land here, the award ought to contain a decision
upon that part of the claim. As it now stands, it is not
final. The defendants might still be sued in ejectment
for the residue, on the demise of the same lessors. It is
attempted on the other side to put the award, in this
respect, on the footing of a verdict at Nisi Prius: but a
verdict is often good where an award would be bad;
the object of a reference is to place parties in a situation
different from that in which a verdict could place them.
The reference is, not of the cause, but of all matters in
difference in the cause. The award, if properly made,
would be conclusive as to the whole; Doe dem. Morris
v. Rosser (a). Secondly, the award ought to have shewn
on which demise the plaintiff is to recover. Both les-
sors cannot be entitled; but this award is conclusive
against the defendants as to both demises. If one lessor
were to convey his interest to the defendants, would they
have a title or not? Or, if, instead of execution issuing,
two separate actions of ejectment, on the respective
demises, were brought against the defendants, would
this award be conclusive evidence on each? Besides,
the taxation of costs must be guided by the event of the
evidence on each demise; Doe dem. Smith v. Webber (b).
Thirdly, damages ought to have been awarded.
what can the costs be taxed? They were to abide the
event of the award: but what is the event of the award?
Wykes v. Shipton (c) is in point. [Patteson J. referred to
Steeple v. Bonsall (d).] In the matter of Leeming and
Fearnley (e) shews that this award determines nothing

On

(c) Post, p. 246., note (a).. (e) 5 B. & Ad. 403.

as

as to costs. It is contended that there was no power here to award a verdict: but damages might have been awarded: in contemplation of law every ejectment implies damage; every verdict is for damages: and the parties, by the submission, were to be at liberty to sign judgment as upon a verdict at Nisi Prius. These objections are all on the face of the award: the judgment therefore must be set aside. In Wrightson v. Bywater (a), on a motion to set aside a judgment entered upon an award, the Court discussed the validity of the award.

LITTLEDALE J. (b). Although the time for setting aside the award be expired, yet on motion for an attachment cause might have been shewn on the ground that the award was bad on the face of it (c). It is true that the defendants here are not shewing cause against a rule by which it is sought to enforce the award, but endeavouring to get rid of the judgment founded upon it. I think, however, that under such circumstances advantage may be taken of any objection on the face of the award. Then as to the objections. The order of reference does not give any description of the premises: it refers "matters in difference in the cause." But the award shews, with the aid of the map, what was in difference in the cause; and it professes to be "of and concerning the matters referred," that is, the matters in difference in the cause. Now the arbitrator does not profess to make his award of all these matters, but distinctly confines it to a "part of the land sought to be recovered." The counsel for the plaintiff say that this is, in effect, an

(a) 3 M. & W. 199.

(b) Lord Denman C. J. was attending the Privy Council.

(c) See Macarthur v. Campbell, 2 A. & E. 52.

R 4

award

1838.

Doɛ dem.
MADKINS

against

HORNER.

1838.

DoE dem.
MADKINS
against
HORNER.

award of the rest to the defendants; or, at least, an award that the plaintiff has no title to the rest. That may be the arbitrator's meaning: but is such meaning expressed? Suppose assumpsit were brought for 50%., for the price of a horse, and 50%. more for the price of a bale of cloth; and that the award shewed this, and then gave the first 50l. to the plaintiff: it may possibly be said that this would be awarding for the defendant as to the other 50l. But I think that, when, in ejectment, all matters in difference in the cause are referred, the arbitrator, after deciding as to one part, and so expressing himself, should do something as to the other. I do not say what he ought to do: whether he should set out the residue by metes and bounds, or may describe one part specifically, and then award as to the remainder in general terms. But I think his omitting of all mention of the remainder is not tantamount to deciding that the plaintiff has no title to it. On this ground, therefore, the rule must be made absolute. I think also that the arbitrator ought to have said on which of the two demises the plaintiff was entitled to recover. It is indeed possible that part of the land which is awarded to the plaintiff might be recoverable under one demise, and part under the other. Still the arbitrator should state how the right is. I own that it is not usual to take a verdict so: but a verdict may find that as to 100 acres the plaintiff is entitled on the demise of A., and as to another 100 acres on the demise of B. It may make a difference in the taxation of costs. A verdict might be set right in this respect by the Judge's notes: here there is nothing upon which to proceed.

PATTESON