1849. The QUEEN v. GRANT and others. fact an award was made; and it also appears that the arbitrators, when the case was before them, refused to hear evidence on the part of Jaques, which, by the 26th rule of the society, they ought to have done, in order to render the award binding and conclusive between the parties. The justices, therefore, having jurisdiction to enter upon the inquiry, whether there was any award, were justified in coming to the conclusion that no valid award existed. In 10 Coke, 131 b, it is said, that an award is void, if not made according to the terms of the submission; and in Rex v. Bingham (a), an award was held void, which was not made in conformity with the condition of a recognizance. [Wightman, J., referred to Fisher v. Pimbley (b), which was debt on a bond conditioned to perform an award; plea, no award; under which the defendant was enabled to show the award was bad, not being conformable with the terms of submission.] Hickes v. Cracknell (c) was debt on a bond; plea, no memorial; replication, that the memorial was duly inrolled; rejoinder, that the memorial contained false statements, &c.; and the Court held the rejoinder not to be a departure from the plea. Parke, B., says, "I have not the least doubt the meaning of the plea is, not that there was no memorial at all, but that there was not such a memorial as the act of parliament requires no valid memorial." In Gisborne v. Hart (d), which was an action on an award, and the defendant pleaded no award, it was held that the production of the award and the rule of court was sufficient primâ facie evidence to support the issue on the part of the plaintiff, until the validity of the award was impeached by evidence dehors on the part of the defendant. Lord Abinger says, "we are not to intend facts for the purpose of vitiating an award; if any presumption is to be made about it at all, it ought to be in favour of it, (a) 3 Youn. & Jer. 101. (c) 3 Mees. & Wels. 72. rather than the contrary. The award may, however, be made bad by evidence dehors tendered on the part of those impeaching it, in the same manner as it would be competent for them to do on applying to have it set aside." In Dresser v. Stansfield (a) the plea of no award was held to mean no valid award. On the other objection, there is no ground for saying that the justices for the borough of Leeds have exclusive jurisdiction over this matter, Rex v. Sainsbury (b). The complainant resided at Wakefield, the offence was committed there, and the rules of the society were inrolled at the office of the clerk of the peace at Wakefield, whereas they might have been inrolled at Leeds. The stat. 10 Geo. 4. c. 56, s. 27, provides, that, in cases where justices are called upon to enforce an award of arbitrators, complaint must be made to a justice residing within the county within which such society shall be held; and by sect. 38, the word county is held to include county, riding, division or place. Pashley in support of the rule. The stat. 10 Geo. 4, c. 56, enables members of friendly societies to make rules and regulations for their guidance, and to refer any matter in dispute to arbitration; and an award, when made, if not obeyed, may be enforced by an order of justices. Then the stat. 4 & 5 Will. 4, c. 40, s. 7, reciting the provisions of the former act, gives the justices jurisdiction to decide any matter in dispute in cases where the arbitrators had neglected or refused to make any award. The case of Regina v. Bolton (c), confirming Brittain v. Kinnaird (d) and Welch v. Nash (e), applies only to a statement in an order where the justices had jurisdiction to make it, and not to cases where the (a) 14 Mees. & Wels. 822. (b) 4 T. R. 451. (d) 1 Bro. & Bing. 432. 1849. The QUEEN v. GRANT and others. (c) 1 Q. B. R. 66. 1849. The QUEEN v. GRANT and others. question is whether the justices had any jurisdiction at all. The affidavits, therefore, are admissible, and they show that the matter in dispute was referred to arbitration, and that an award exists good on the face of it, which deprives the justices of all jurisdiction to proceed under the 4 & 5 Will. 4, c. 40. The justices at petty sessions are not constituted a court of error to decide, in a summary proceeding before them, whether under all the circumstances of the case the arbitrators have properly conducted the investigation before them. In a note to Veale v. Warner (a), the cases on this subject are collected, and the rule laid down seems to be, that to an action of debt on bond for not performing an award, or to an action on an award itself, the defendant cannot plead collusion or other misconduct of the arbitrators in avoidance of the award. In Braddick v. Thompson (b) it is said, partiality and improper conduct in an arbitrator, in making his award without hearing the defendant and his witnesses, cannot be pleaded in bar to an action on a bond conditioned for the performance of the award, but is only matter for application to the equitable jurisdiction of the Court to set aside the award. The cases of Grazebrook v. Davis (c), and Johnson v. Durant (d), are to the same effect. In cases where a Court of Quarter Sessions has decided upon matters within their jurisdiction, this Court has declined to review such decision, Rex v. The Justices of Carnarvon (e), Rex v. The Justices of Monmouthshire (f), Rex v. The Justices of Monmouthshire (g), Regina v. The Justices of Kesteven (h). If the arbitrators had refused to do that which the act of parliament prescribes they should do, then this Court will compel them by mandamus, Regina v. The Mildenhall Savings Bank (i). (a) 1 Saund. 327 a. (c) 5 B. & C. 534. (d) 2 B. & Ad. 925. (e) 4 B. & Ald. 86. (f) 4 B. & C. 844. (g) 8 B. & C. 137. (h) 1 New Sess. Cas. 151; 3 Q. B. R. 810. (i) 6 A. & E. 952. But supposing it was competent for the justices to inquire whether any valid award had been made, still it sufficiently appears on the affidavits that the arbitrators knew the nature of the evidence that was to be produced, and that such evidence would not alter their decision. As to the other point, the justices for the riding had no jurisdiction. The stat. 10 Geo. 4, c. 56, s. 27, says the justices who may act are to be justices for the county in which such society may be formed; and the subsequent words, any two justices of the peace, must refer to the justices for the county or place where the society was formed, In re Peerless (a). As to the rules being deposited with the clerk of the peace for the county, that is directed to be done by the fourth section of the act. If the justices for Leeds and the justices for the riding are to have a concurrent jurisdiction, it will give rise to much practical inconvenience. Cur. adv. vult. LORD DENMAN, C. J., now delivered the judgment of the Court. On a motion to quash an order of justices brought up by certiorari, it appeared by the affidavits that the complainant had applied to arbitrators duly appointed according to the statute, that they had, in fact, made an award between the complainant and the friendly society; that the complainant, treating the award as void and null, had then applied to justices, who made the order in question, and therein declare that the arbitrators had neglected and omitted to make any award,-this being the condition on which their jurisdiction to take cognizance of the dispute depends. Upon these facts the question has been whether the statement in the order, that the arbitrators had neglected and omitted to make an award, was conclusive. It is clear that the decision of a tribunal, lawfully constituted, (a) 1 Q. B. R. 143. 1849. The QUEEN υ. GRANT and others. 1849. The QUEEN บ. GRANT and others. upon a question properly brought before it respecting a matter within its jurisdiction, is not open to review on certiorari (a); but the decision of persons assuming to be a tribunal, that they are lawfully constituted, is open to review. Thus a decision, either by a justice that he was in the commission, or by any arbitrator under a statute that he was duly appointed, or by a sheriff that a valid writ of trial had issued to him, might be shown by affidavit to be untrue. In the present case the justices are in the nature of two arbitrators, the reference being conditional, upon the first arbitrators neglecting or omitting to award; and their decision, that this condition existed, is a decision upon one of the preliminaries necessary for constituting them a lawful tribunal for this matter. It is, therefore, not conclusive within the principle laid down in Regina v. Bolton (a), but falls within the latter of the two limitations of it there mentioned, The first limitation is, where, on the proceeding leading to the adjudication, a want of the jurisdiction appears, a decision asserting jurisdiction is of no avail. Of this Welsh v. Nash (b) is an example; in which case the jurisdiction to order the stopping up of an old highway, after being diverted and turned, depended upon the setting out of a new in lieu of the old one; and it appeared that no new way had been set out, but an old way had been widened in different parts. This fact was apparent from the proceedings themselves, as maps were annexed to each order, and the oral evidence for the defendant could do no more than explain and apply the maps. The judgment was, that the magistrates could not make the widening of an old way in parts a setting out of a new way, by stating it to be so in their adjudication and order. The second limitation is, where the charge is really insufficient, but is misstated in drawing up the pro(a) 1 Q. B. R. 66. (b) 8 East, 394. |