PART II. CH. V. S. 4. ministerial duties. Measurement of land. Whether valuer ministerial officer. though the arbitrator cannot reserve a further judicial act to be done, he may reserve 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 (n). 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 (0). Where the arbitrators to whom it was referred to fix the price of an estate, stated in their award the sum to be paid, and the number of acres in the whole estate, and added, that if there were any error in the admeasurement, an allowance should be made at the rate of a certain amount per acre, either less or more than the admeasurement, if the mistake were in the land on one side of a brook, but an allowance of twice the amount per acre if the mistake were in the land on the other side; the court held that the award was not certain and final, as the arbitrators had not stated how much of the estate they considered lay on each side of the brook respectively, so that there were no means of ascertaining to what extent the double rate per acre, for additions and deductions, or to what extent the single rate only was to be allowed. The court, however, added, that if the addition or deduction upon admeasurement had been to be made at a uniform rate per acre as to all the land, the award, according to the rule, "id certum est quod certum reddi potest," would have been good (p). In an old case, two judges were of opinion that a reservation of a power to value certain goods was a reservation of a judicial power, and therefore void; Powell, J., however, thought it merely ministerial. The award being bad on other grounds, it did not become necessary to determine the point (2). In more recent cases, a valuer's functions have been treated as of a judicial character (»). (n) Winch v. Saunders, 2 Rolle, Rep. 214, S. C. Palm. 145; Cro. Jac. 584; Thorp v. Cole, 2 C. M. & R. 367, S. C. 4 Dowl. 457. (0) Thorp v. Cole, 4 Dowl. 457, S. C. 2 C. M. & R. 367; Winch v. Saunders, 2 Rolle, Rep. 214; Hunter v. Bennison, Hard. 43. (1) Cockson v. Ogle, 1 Lutw. 550. (r) Anderson v. Wallace, 3 C. & F. 26. See ante, p. 209. PART II. CH. V. S. 4. 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, sometimes not, according as in each case it is treated as a settle deeds. reservation of a judicial or ministerial duty. Reserving power to A reservation to the arbitrator is generally construed to be Reservation judicial. Thus it has been held, that if the arbitrators award to arbitrator. 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 (s), or that the defendant shall secure the payment of such a sum to the plaintiff in such a manner as they shall advise, the award is invalid (t). So also a direction to execute such bond by way of security Reservation for the sum awarded, or such releases as a stranger shall to stranger. advise, has been considered equally bad (u), though the distinction in principle between these and the next class of cases does not seem very clear. It may be observed that an award that one shall release another, by the advice of J. S., has been held good (x). If the direction be, that one party shall execute to the Reservation other such a bond, by way of security for the amount, as his to counsel. opponent's counsel shall advise, or if the award direct that the one shall execute to the other a general release, as fully and beneficially as counsel shall advise, the award has been held to be good; for it is said that the delegation to the counsel in either case is not a delegation to him as arbitrator, and that he has no power to perform any judicial act, but acts in a ministerial capacity only, for the arbitrators having directed the extent of the bond and release, the counsel has only to make them as strong in law as he can (y). Where, in order to decide the title to certain land, the arbitrator awarded that an action should be conceived by the advice of certain counsel, this was held to be a reference to their judgment, not on the substance, but only on the form (z). The following case illustrates the rule, that only the formal To settle condrawing up of the instrument may be deputed, and that the veyance. (8) Rolle, Ab. Arb. H. 4, p. 250. (t) 19 E. IV. 1, cited in Hunter v. Bennison, Hard. 43. (u) Rolle, Ab. Arb. H. 6, p. 250; Emery v. Emery, Cro. Eliz. 726. (x) Anon., Jenk. 3d cent. case 61, p. 129. (y) Cater v. Startut, Rolle, Ab. Arb. H. 7, p. 250, S. C. Sty. 217; Jenk. 129. (z) Brooke, Ab. Arb. 37. PART II. CH. V. 8. 4. To court. award must determine its nature and character. 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 did not specify the manner in which the conveyance was to be effected, but reserved to the arbitrator, in case of dispute, a power to appoint a counsel or solicitor hereafter, to decide as to what should be the proper conveyances, releases, or assurances, and as to the clauses, provisions and covenants which they were to contain («). Where the arbitrators, on a reference out of Chancery, awarded mutual releases of all matters in difference, the leaving it to the court, if they thought proper, to give directions to the Master to settle the form, was not held to make the award bad (b). SECTION V. PART II. CH. V. S. 5. Certainty to a common intent. Certainty as to time. THE AWARD MUST BE CERTAIN. 1. What certainty requisite.]—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. Certainty to a common intent only is sufficient, for the award will be construed by no technical rules, but in a fair and liberal spirit, with a view to support it as far as a sensible and reasonable interpretation will allow (c). If the arbitrator direct one party to pay money, or to execute a release to the other, the award is sufficiently certain, though it mention no time; for if a request to do the act be necessary, it must be done in a convenient time after the request; if there need no request, it must be performed in a (a) Tandy v. Tandy, 9 Dowl. 1044. (b) Lingood v. Eade, 2 Atk. 501. (c) Hawkins v. Colclough, 1 Burr. 275. reasonable time (d). If the award be without a date, and the arbitrator direct a party to do a thing a certain number of days after the date of the award, this will not be so uncertain as to be invalid, for the date will be computed from the delivery of the award (e). PART II. CH. V. S. 5. Award with out date. The arbitrator need not specify any place for the payment As to place. of money awarded (ƒ). If it be doubtful whether the award has decided the ques- When doubttion referred, it will be set aside for the uncertainty. ful whether matter Hence, where a Chancery suit had been brought to rescind decided. an agreement, and the main question in the reference was, whether the agreement should be rescinded, and the suit put an end to, and the arbitrator directed certain things to be done, the performance of which was to be taken in full satisfaction of all the matters in difference, and that each party should bear his own costs of the suit, the award was set aside, inasmuch as the directions of the arbitrator did not clearly determine whether the agreement was to be rescinded and the suit terminated (g). The award will be equally invalid if it be uncertain how it When has decided the matters referred. doubtful how matter When, on the reference of a cause and all matters in differ- decided. ence, a verdict was taken in the cause for a specified amount of damages, subject to the award of an arbitrator, and he was empowered to order a verdict for the plaintiff or the defendant, as he might think proper, and the arbitrator directed a verdict to be entered for the plaintiff (not saying for how much), and that the defendant should pay the plaintiff a certain sum, the court held the award bad, as it was uncertain whether the arbitrator meant the verdict to stand for the sum originally taken, and the amount directed to be paid by the defendant to be in respect of the matters out of the cause, or whether he intended the sum ordered to be paid by the defendant to be substituted for the nominal verdict (h). 69. An award directing an executor to pay the balance due No finding as (d) Freeman v. Bernard, 1 Salk. (e) Armitt v. Breame, 2 Ld. Raym. 1076, S. C. 1 Salk. 76. (f) Anon., 1 Keb. 92, S. C. 2 Brownl. 309. (g) Tribe and Upperton, In re, 3 A. & E. 295. (h) Martin v. Burge, 4 A. & E. 973. to assets. PART II. CH. V. 8. 5. Awarding separately on separate matters. Arbitrator must fix precise amount to be paid. When arbitrator to allow at market price. from his testator out of the assets in his hands, is sufficient, though it does not ascertain whether there are any assets in his hands (i). As the question, whether the arbitrator has with sufficient particularity decided all the matters submitted to him, arises as naturally on the objection that the award is not final, as on the objection that it is not certain, the reader is referred to the previous section for information on the point, how far it is necessary for the arbitrator to decide separately on separate matters (k). 11. Certainty as to the amount awarded.]-When the arbitrator directs anything to be done, he must give his directions with such precision that the parties may know at once what they are to do. If he order a sum of money to be paid, the award must ascertain the amount; therefore, an award is bad that orders one party to pay the others so much money as is due in conscience, without settling what is due (7); or so much as such land is worth, the value of the land being undetermined (m); or the money due for task work, without ascertaining the amount owing in that respect (n); 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 (o); or to pay a moiety of a debt for which A. is bound, without saying in what sum (p); 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 (q). 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, (i) Love v. Honeybourne, 4 D. & R. 814. (k) See P. II. ch. 5, s. 4, dd. 2, 5, 7; see also P. II. ch. 6, as to awarding on a cause; P. II. ch. 7, as to awarding in respect of costs. (1) Watson v. Watson, Sty. 28. (m) Titus v. Perkins, Skin. 247, per Jones, C. J., 248. |