SUPREME COURT, WESTLAND DISTRICT.

West Coast Times, Issue 630, 1 October 1867, Page 6

SUPREME COURT, WESTLAND DISTRICT.

IN BANCO. I Mosdat, September 30, 1867. i (Before Mr Justice Richmond.) ! His Honor took his seat on the Bench at eleven o'clock a.m. IX RE THE ARBITRATION OF SIACFARLANE AND GIRDWOOD. In. this case a rule nisi had been obtained, calling upon Girdwood to show cause why the sum of L 309 17s Id should not be paid in according to the award of the arbitrators. Mr Button now moved to make the ride absolut?. No cause was shown. The Court made the rule absolute accordingly. IN RE THE ARBITRATION OF JOHN THOMPSON AND THE GREYSrOUTH AND SALTWATER CREEK TRAMWAY COMPANY (limited). This was a motion (by consent) to set aside an award by the arbitrators on the following grounds : — 1. That the arbitrators based their decision upon the consideration of matters not submitted to them, being the loss sustained by the said John Thompson through breach of an alleged agreement made between the said company and the said John Thompson to make his house the house of call, and through losses sustained by the said John Thompson through the company aforesaid building a hotel of their own adjacent to tile house of the said John Thompson. 2. That the award is had for uncertainty, inasmuch as a certain sum, namely, one hundred and three pounds four shillings and two pence is awarded by the said award as costs for divers matters and causes, and ifc is not specified what sum is to be appropriated to each object, and that the costs awarded are nob such as are contemplated in the submis- 1 sion. 3. That two of the said arbitrators made said award •without submitting the same to the third arbitrator, and without giving to him any opportunity of joining in it or dissenting from it. •1. That private communications took place between the two arbitrators who signed the said award, and the said John Thompson bej&ro the award waa made. tfr^^ ''"" J Jsy._Thali the said arbitrators who signed the said award^were guilty of gross misconduct and parfcia%y. f - 6. That tjjie course pursued blithe said arbitrators wh'o\signed the said,avyard upon the reference and ■"hearing oC evidence was contrary to the dictates of* natural justice, and inconsistent with law or equity, and that in the meantime proceedings be stayed. Mr Rees, for the company, appeared to support the motion. Mr Harvey, with him Mr Button, to show cause. Mr Harvey said that he would at once take an objection, viz., that this application came too late, as the act most distinctly stated that an application to set aside an award must be made on or before the last day of the term next ensuing the date of the publication of the award to tho parties. JSTow, the award was published on the 23rd of May, and there had been several sittings in Banco here in June, and also at Nelson since the date of the publication of the award. Mr liees contended that the lapse of time only referred to the courts in England, where there were regular terms. Here there were no terms. In fact, the only analogy which could be drawn was that the whole of the sittings of the court here could only be regarded as one term ; and, if that were the case, the application was in time. His Honor decided to reserve the point. Mr Bees said that with reference to tin* first ground of objection, he would cit>; from the affidavits of Messrs Tyler and Harris. Mv Button objected to the affidavits being received, as they were not in auoordance with the rules of the Court, being in the third person instead of in the first. J-3is Honor — It is a formal objection, but still it is one that I am hound to allow. V Mr Rees — Perhaps your Honor will allow other affidavits to be filed. His Honor— How would you do then about time ? I do not like these objections, but I am bound to uphold the rules of the Court. The affidavits are not such as one that runs might read ; on the contrary, they are obscure. Mr Eees would apply to have the case adjourned, in order that fresh affidavits might be filed. His Honor said that he was disposed to adjourn the -case if he could, but still he did not think that the party in whose favor the award was made should if it was right bo debarred from receiving the benefit thereof until January next. Mr Harvey said that ho would consent to waive the objection. Mv I?ces resumed his argument on the first ground, and contended that the affidavits of Mr Tyler showed that maifcurs had been taken into consideration by the arbitrators, otrer lhan those mentioned in the submission. The notes of the evidence also showed — Mr Harvey objected to tho notes of the evidence being roceived.as they were not verified. Mr Hces — They are verified in the affidavits of Mr Harris. His Honor said that Mr Harris' affidavils only went to verify that the document now in Court was a correct copy of the evidence said -to bo taken. Ho must allow tho objection. Mr llees would argue that the arbitrators could only inquire into matters

referred to them by the submission. Then as to the second ground, he would contend that the award was had from uncertainty, inasmuch as it did not state specifically for what the sum set down for costs was awarded (Robinson v. Henderson, 6 ; Maude and Selwyn, 276); and, moreover, the affidavit of Mr Tyler distinctly set forth that the arbitrators had in the same award included the sum of £10 for themselves. As to the third ground, he would submit that the affidavits of. Messrs Harris and Tyler distinctly pointed out that the award had not been submitted to Mr Hams, one of the arbitrators, before it was made, and that the question of costs did not come on for discussion in his presence. His Honor— The question is whether Mr Harris received due notice of the meeting. He might have received such notice, and have not attended. Are you prepared to show that no notice was ; given ? ' Mr Rees— No, your Honor. The \ learned counsel then proceeded to argue in favor of the fourth, fifth, and sixth grounds of the objection, when His Honor intimated that he did not think they could be maintained. Mr Harvey showed cause, and contended that as the award was admitted to j be good on the face of it, it was to be' presumed that the arbitrators had awarded in a proper manner on the cvi- ! dence submitted to them, and not ! travelled outside the submission. As to the second ground, that the award was had from uncertainty he would submit, that although the arbitrators awarded a lump sum, still Mr Tyler's affidavits showed that they had considered the charges for costs specifically, and moreover the Court would not disturb the amount, unless the same should be excessive, and should the award not be sufficiently definite he apprehended that the award would not be set aside, but be referred back to the third ground ; he would submit that there was nothing to show that all the arbitrators had not due notice of all the meetings, and if that was done, it was not required that the award should be submitted to the third arbitraI tor before it was published. ■ Mr Rees having briefly replied. ; The Court took time to consider. i SWEENY V. WAITE. i Mr Button for the plaintiff moved for a rule calling on defendant to show cause why the amount awarded in this case (L 144 7s 9d) with costs should not be paid into Court, andras defendant was, there was reason to believe, shifting from place to place to avoid service, that the rule be served on Mr Rees, his solicitor, ! The rule nisi granted, to be served on Mr Rees, and returnable at the I first sitting in Banco, in Nelson, after I service. j HE GEORGE DONNE, I An articled clerk. I Mr Harvey moved to file articles nunc pro tune. ' , _ \ The Court ordered that the articles be ; filed now,' and to date from 12th December last. O'CONNELL V. o'DONNELL. On the motion of Mr Harvey, a Judge's order in Chambers in this case was made rulg of Court. " ;t/r Thc Court adjourned sine die. I , j