Where one alternative is uncertain or impossible.

If an award directs one of two things to be done, and one of them is uncertain or impossible, the award is nevertheless sufficiently certain and final if the second alternative is certain and possible; and it will be incumbent on the party to perform the second alternative (Simmons v. Swaine (1809), 1 Taunt. 549).

Illustrations.

1. Where an award directed that defendant should cause satisfaction to be entered on the judgment-roll in a certain action, or pay a sum of money, and there was no such action in fact, the award was held good to compel the defendant to pay the money (Wharton v. King (1832), 2 B. & Ad. 528; 9 L. J. (O. S.) K. B. 271).

2. An award to deliver a deed which is not in the power or possession of the party, or to pay a sum of money, is good, and the party must perform the alternative of paying the money (Lee v. Elkins (1702), 12 Mod. 585).

3. In an old case an award that the defendant should pay the plaintiff £100 by such a day, or should find two sureties to be bound with him to the plaintiff to pay the £100 by £20 a year until the whole was paid, was held a good award as to the former part, but void as to the latter, and not even to give the defendant the liberty of electing whether he would pay the £100 at once, or find the sureties to secure the yearly instalments (Oldfield v. Wilmer (1577), 1 Leon. 140, 304).

Award reserving judicial authority.

An arbitrator cannot in his award reserve either to himself, or delegate to another, the power of performing in future any act of a judicial nature respecting the matters submitted (Winch v. Sanders (1621), 2 Rolle, Rep. 214; Cro. Jac. 584; Palmer, 145; Com. Dig. Arb. E 16; Selby v. Russell (1698), 12 Mod. 139; Nott v. Long (1736), cited in Cayhill v. Fitzgerald (1743), 1 Wils. 28). His duty is to make a final and complete determination respecting them by his award, and it is a breach of that duty to leave anything to be determined hereafter.

Illustrations.

1. An award directing the defendant to leave on certain land so many trees to the plaintiff for house-bote and hedge-bote as the arbitrators, upon advice with counsel at the next assizes, should appoint, was held void as imperfect, and as reserving a future authority to themselves (Thinne v. Rigby (1612), Cro. Jac. 314).

2. An award which directed A. to pay B. certain sums by instalments, and to give B. a bond, and execute a warrant of attorney to enter judgment thereon to secure the payment, the warrant to be lodged with the arbitrators, and judgment not to be entered thereon.

without their consent, was held bad (Lindsay v. Lindsay (1860), 11 Ir. C. L. Rep. 311).

Reservation as to matters not submitted.

Where, however, the award contains a final decision on the matters referred, with a reservation as to matters not submitted, the award will be good, although the reservation of authority be void (Manser v. Heaver (1832), 3 B. & Ad. 295; Goddard v. Mansfield (1850), 19 L. J. Q. B. 305).

Award delegating judicial authority.

An award is bad if the arbitrators, instead of deciding the matter submitted, award that the parties shall abide by the award of a third person whom they name (Lower v. Lower (1595), Rolle, Ab. Arb. B 20; Rolle, Ab. Arb. H 11); or that the defendant shall account before such auditors as the plaintiff shall assign, and if he be found in arrears, shall pay the amount (Rolle, Ab. Arb. I 9). A partial delegation of authority equally vitiates the award if the defective part cannot be separated from the rest (Johnson v. Latham (1850), 19 L. J. Q. B. 329; Tomlin v. Mayor of Fordwich (1836), 5 A. & E. 147; 5 L. J. (N. S.) K. B. 209).

Illustrations.

1. An award that the defendant should pay to the plaintiff a certain sum, unless within a definite time the defendant should exonerate himself by affidavit from certain payments and receipts, in which case he was to pay a less sum, was held bad by Lord Kenyon, on the ground that the arbitrators, instead of determining all the points in dispute had left one sum in dispute to be decided by the person who, of all others, was least qualified to decide it, namely, the defendant himself (Pedley v. Goddard (1796), 7 T. R. 73).

2. An arbitrator directed that A. should pay B. £50, and that A. should beg B.'s pardon in such manner and in such place as B. should appoint, and the award was held void as to the latter direction, because it gave B. the power to determine the time and place, which the arbitrator ought to have determined (Glover v. Barrie (1699), 1 Salk. 71).

3. An award, directing the costs to be taxed by one who was not an officer of the Court, was held bad, as a delegation of authority, though it provided that the costs should be such as a Master in Chancery would allow (Knott v. Long (1736), 2 Str. 1025).

Reservation or delegation as regards ministerial acts.

Though the arbitrator cannot make a valid reservation in respect of a further judicial act to be done, he may in respect of a further ministerial act to be done either by himself or a stranger at any time, even after the time limited for making the award has expired (Thorp v. Cole (1835), 2 C. M. & R. 367).

Illustrations.

1. An award which directs the payment of such costs as shall be taxed by the officer of the Court which has cognizance of the submission is good, for such an officer, in taxing costs, is considered as acting in a ministerial capacity (Selby v. Russell (1698), 12 Mod. 139; Thorp v. Cole (1835), 2 C. M. & R. 367; Cargey v. Aitcheson (1823), 2 B. & C. 170; 1 L. J. (O. S.) K. B. 252; Holdsworth v. Wilson (1863), 4 B. & S. 1; 32 L. J. Q. B. 289).

2. Whether the matters are referred to be finally decided by the arbitrator, or whether he is simply to make a valuation of certain landed property, after ascertaining in his award the rate to be charged per acre, he may direct the number of acres to be ascertained by measurement, for measuring is a merely ministerial act (Thorp v. Cole (1835), supra).

Reservation, whether construed as judicial or ministerial.

Arbitrators often direct the parties to execute bonds, releases, or other documents, to be settled by themselves or others. Such a direction will sometimes avoid the award, and sometimes not, according to whether it is to be treated in the particular case as a reservation of a judicial or ministerial authority.

Illustrations.

1. It has been held that, if the arbitrators award that the defendant shall pay the plaintiff a sum certain, and in security for the payment shall execute such a bond as they shall advise, the award is invalid (Rolle, Ab. Arb. H 4).

2. A direction to execute such bond by way of security for the sum awarded, or such releases, as a stranger shall advise, has been held bad (Rolle, Ab. Arb. H 6; Emery v. Emery (1699), Cro. Eliz. 726).

3. A direction that one party shall execute to the other such a bond, by way of security for the amount, as his opponent's counsel shall advise, or a direction that one shall execute to the other a general release, as fully and beneficially as counsel shall advise, may be good; for the delegation to counsel is not a delegation to him as arbitrator, and he acts in a ministerial capacity only and not judicially (Cater v. Startut (1650), Rolle, Ab. Arb. H 7; Sty. 217).

4. In order to decide the title to certain land the arbitrator awarded that an action should be conceived by the advice of certain counsel, and this was held to be a reference to their judgment, not on the substance, but only as to the form (Brooke, Ab. Arb. 37).

5. On a reference respecting the right to a certain house and premises the award, which directed certain parties to execute to another party all such conveyances, releases, and assurances as might be necessary to pass their respective interests to him, was held void in toto, because it reserved to the arbitrator a power to appoint a

counsel or solicitor to settle the proper deeds (Tandy v. Tandy (1841), 9 Dowl. 1044).

6. Where the arbitrators, on a reference out of Chancery, awarded mutual releases of all matters in difference, it being left to the Court, if it thought proper, to give directions to the Master to settle the form of the releases, it was held that the award was good (Lingood v. Eade (1742), 2 Atk. 501).

Award uncertain.

An award ought to be certain, so that no reasonable doubt can arise upon the face of it as to the arbitrator's meaning, or as to the nature and extent of the duties imposed by it on the parties. If the arbitrator directs one party to pay money, or to execute a release to the other, the award is sufficiently certain, though it mentions no time; for if a request to do the act is necessary, it must be done in a convenient time after the request; if no request is necessary, it must be performed in a reasonable time (Freeman v. Bernard (1698), 1 Salk. 69. See Armitt v. Breame (1705), 2 Ld. Raym. 1076).

If it is doubtful whether the award has decided the question referred it will be set aside for the uncertainty. Thus, where the main question in the reference was whether a certain agreement should be rescinded, the award was set aside because it did not clearly determine whether or not the agreement was to be rescinded (Tribe and Upperton, In re (1835), 3 A. & E. 295).

The award will be equally invalid if it is uncertain how it has decided the matters referred (Mortin v. Burge (1836), 4 A. & E. 973).

An award directing an executor to pay the balance due from his testator out of the assets in his hands is sufficiently certain, though it does not ascertain whether there are any assets in his hands (Love v. Honeybourne (1824), 4 D. & R. 814).

As to amount awarded.

If the arbitrator orders a sum of money to be paid, the award must ascertain the amount; therefore an award is bad if it orders one party to pay the others so much money as is due in conscience, without settling what is due (Watson v. Watson (1671), Sty. 28); or so much as certain land is worth, the value of the land being undetermined (Titus v. Perkins (1686), Skin. 247, per Jones, C.J., 248); or the money due for task work, without ascertaining the amount owing in that respect (Pope v. Brett (1670), 2 Saund. 292); or to pay the arrears of rent accruing due after the purchase by a stranger of certain lands, without showing what the arrears are, or from what period they are to be calculated (Massy v. Aubry (1652), Sty. 365); or to pay a moiety of a debt for which A. is bound, without saying in what sum (Gray v. Gray (1619), Rolle, Ab. Arb. Q 2, p. 263; Com. Dig. Arb. E 11); or to pay so much for every

quarter of malt as malt may then be sold for, without saying in what place, for the price of malt may vary in different markets (Hurst v. Bambridge (1635), Ab. Arb. Q 7; Com. Dig. Arb. E 11).

When arbitrator to allow at market price.

But where the parties had agreed that in case the arbitrator should think the plaintiff not entitled to recover in respect of some articles of iron machinery supplied to the defendant, the arbitrator was to allow the plaintiff the value of them at the market price of pig-iron, as the defendant still kept them, an award directing the defendant to pay for them according to the present market price of pig-iron was held good, and to have sufficiently ascertained the price, because, according to the agreement of the parties, the arbitrator was merely to determine whether the defendant was to pay for them as machinery or as pig-iron (Waddle v. Downman (1844), 12 M. & W. 562; 13 L. J. Ex. 115.)

Awarding sufficient to realise securities.

When the submission, among other things, provided that the arbitrator should direct the plaintiff to pay into a bank such a sum of money as would be sufficient to entitle the defendant to have restored to him some documents deposited by him with the bank as a security for advances, and the arbitrator, following the submission, awarded that the plaintiff should pay to the bankers such a sum of money as would be sufficient to entitle the defendant to have his securities restored to him, the Court held the award bad, because it did not ascertain the amount which was due to the bankers and necessary to be paid in order to release the securities (Hewitt v. Hewitt (1841), 1 Q. B. 110).

Award to pay over money received, if any.

Where on a reference between assignees of a bankrupt and a banking company respecting some bills of exchange the arbitrator awarded that the bills and money secured thereby were the property of the assignees, that the bills, and moneys, and proceeds should be delivered and paid to the assignees, and that in case the bank should have received the whole or any part of the money secured by the bills they should pay it to the assignees, the award was held bad on its face, because it did not ascertain the amount, if any, received by the bank in respect of the bills (Marshall and Dresser, In re (1842), 3 Q. B. 878; 12 L. J. Q. B. 104).

Money due from A., B., and C., some or one of them.

An award that so many pounds are due to the defendant from A., B., and C., "some or one of them," and directing the amount to be paid by them, "some or one of them," is uncertain (Rainforth v. Hamer (1855), 25 L. T. (O. S.) 247).