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PART II.

CH. IV. S. 4.

Umpire under

the Lands Clauses

Act.

afterwards come to the court to impeach the award on this ground (o).

On a reference under the Lands Clauses Consolidation Act, a meeting was held on the 4th of November before the two Consolidation arbitrators and the umpire (the latter sitting with them to hear the evidence, by agreement). Another meeting was appointed and held before the claimant's arbitrator and the umpire, and a witness was then examined, notwithstanding the absence of the other arbitrator and the protest of the company's solicitor. The arbitrators let their time expire and made no award. Without any further meeting, or any notice to the company, the umpire afterwards made an award. A motion on the part of the company was made in the following term to set aside the award, on the ground of the irregularity of the proceedings. The company's solicitor swore that he had had evidence to produce on the part of the company. V.-Ch. Knight-Bruce set the award aside, holding that the umpire had acted improperly in deciding the case without either hearing the case de novo, or at least taking it up from the meeting of the 4th of November, and giving the company an opportunity of producing their evidence (p). On appeal to the Lord Chancellor, this decision was confirmed.

Umpire

must award

In general, unless the submission contains words intimating on all matters, a contrary intention, though the arbitrators agree on some matters, and the case is referred to the umpire because they disagree on others, the umpire must not confine his award to the latter, but must award equally on all as if the arbitrators had disagreed on all. His judgment is in no way fettered by theirs (g).

Joint award by arbitrators and umpire.

An award in which the umpire and arbitrators join, and in which the arbitrators decide some points, but reciting that they cannot agree on another point, refer that to the umpire who decides it, is bad (r). But if, after their authority has expired, the arbitrators join with the umpire in making the umpirage, the decision will be held valid as that of the

(0) Tunno v. Bird, In re, 5 B. & Ad. 488; Hall v. Lawrence, 4 T. R. 589.

(p) Hawley v. North Staffordshire Rail. Co., 12 Jur. 389, S. C. 2 De Gex. & S. 33.

(9) Roll. Ab. Arb. p. 7; Wicks v. Cox, 11 Jur. 542. See d. 1 of this section.

(r) Tollitt v. Saunders, 9 Price,

612.

umpire alone; for it is no more than if mere strangers join in the umpirage, and that cannot vitiate it (s).

PART II.

CH. IV. S. 4.

The umpire should charge as costs of his umpirage the fees Fees of and charges due to the two arbitrators, for they may be called arbitrators costs of the umpirage (†).

(s) Beck v. Sargent, 4 Taunt. 232; Soulsby v. Hodgson, 3 Burr. 1474; Anon., 1 Bulst. 184.

(t) Ellison v. Ackroyd, 20 L. J.

Q. B. 193.

costs of umpirage.

CHAPTER V.

PART II.
CH. V.

Scope and
contents of
the fifth
chapter.

THE DUTY OF THE ARBITRATOR IN FORMING HIS

AWARD.

Ir having been attempted in the preceding chapters of this Part to set forth at large the qualification of the arbitrator, the various powers with which he is invested to facilitate his investigation into the matters before him, and the course which he ought to take in conducting the inquiry from its commencement to its close, the natural division of the subject brings us now to a consideration of that which is the ultimate object of every reference, the award or instrument embodying the decision of the arbitrator on the matters submitted.

This chapter, therefore, treats generally of the award, and of those broad principles of decision, in accordance with which the arbitrator should both frame his judgment in his own mind, and express it in language to the parties.

The first section is confined to the formal requisites of the award, showing the mode in which it is to be made, published, and delivered; and the second contains general observations about the form of the award, and how it should be drawn up.

But the five next sections each announce a principle, disobedience to which will either wholly or partially invalidate the award.

The first of these, section three, announces that the award must be one entire instrument.

Section four proclaims the leading principle of all, into which, indeed, many of the others may be resolved, that the award must be final, that is, a complete adjudication on every matter intended by the parties to be determined; its various divisions illustrate the effect of leaving a matter

undecided, and of the presumption of the courts in favour of the validity of the award, and disclose the consequences of an imperfect decision, or of a reservation of a point for future judgment.

Section five declares the next most comprehensive principle, namely, that the award must be certain.

Section six shows that the award must be mutual; and section seven, that it must direct only what is possible, and that its provisions must be consistent with each other.

The eighth section examines into the effect of a mistake on the part of the arbitrator on the validity of the award, whether that mistake proceed from an erroneous judgment on a point of fact, or arise merely from accident, and whether it be apparent on the face of the award or not. It investigates, also, how far the extrinsic statements of the arbitrator respecting the grounds of his award will be received to impeach it when apparently valid, and points out the course to be pursued by him when he is empowered to raise a point of law on the face of his award for the opinion of the court.

The ninth or concluding section makes manifest that, notwithstanding there may have been some violation of the principles above enumerated, some adjudication on matters not before the arbitrator, or some directions which it exceeded the arbitrator's power to impose, the whole award will not be rendered null, if that portion which is open to objection can properly be separated from the rest.

PART II.

CH. V.

SECTION I.

OF THE FORMAL REQUISITES OF THE AWARD.

PART II.

CH. V. S. 1.

must follow

1. Making the award.]-In making his award, the arbitrator must follow the directions of the submission in point of form, for whenever a special authority is created, those The award who give it have a right to annex to it their own terms, with the submiswhich he on whom it is conferred must comply; therefore, when the submission provides that the award be in writing under the hand of the arbitrator, the award to be valid must

sion.

PART II.

CH. V. S. 1.

Arbitration
Act, 1889.
Award to be
in writing.

Parol award

objectionable.

Signing award.

be under the arbitrator's hand as well as in writing (a). By the Arbitration Act, 1889 (b), it is generally prescribed that on a reference by consent out of court the arbitrators shall make their award in writing. It is not expressly stated that this applies to a single arbitrator (c). References by order of the court or a judge usually contain the same requirements. Where an award is to be in writing, under the hand and seal of the arbitrator, one in writing only is insufficient (d). An award in writing, and under seal, was in one case held invalid, when the submission required that it should be indented, as well as in writing and sealed (e); but the objection that the award was not indented has on a later occasion been scouted by the court (ƒ).

If the submission be silent as to form, the arbitrator is at liberty to make his award with such formalities as he pleases.

Unless prescribed by the submission, the award need not necessarily be in writing, and a verbal award is valid (g). Even where the submission required the award to be made and ready to be delivered by a certain day, a parol award was held good, for a parol award was held capable of oral delivery (). But a mere mental determination was never sufficient to make a good parol award. The arbitrator must have shown, by some external act, that he had made up his final mind (i).

A parol award is open to serious objections. It is doubtful whether it could be enforced by attachment, and might often be ineffectual as to interests in land.

In general, but subject of course to the particular provisions of the submission, the arbitrator makes his award in

(a) Everard v. Paterson, 6 Taunt.

625.

(b) 52 & 53 Vict. c. 49, s. 2, and Sched. I. (c).

(c) See however, 52 & 53 Vict. c. 63, The Interpretation Act, 1889, which provides that in Acts passed since 1850, "unless the contrary intention appears . . . words in the singular shall include the plural, and words in the plural shall include the singular."

(d) Henderson v. Williamson, 1 Strange, 116; Thaire v. Thaire,

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