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PART II.

CH. V. S. 5.

To apportion trust estate.

Arbitrator awarding

specify its nature.

and concerning the matters in difference, found that the defendant had moneys, farm stock, and cattle (not mentioning effects), to a certain amount, and, after other directions, directed the defendant to pay to the several parties their respective distributive shares of the residue of M.'s estate. The court held the award final and certain, though it did not ascertain the amount of the debts, or of the distributive shares, since, as the award was made of and concerning the premises, the court would presume there was no dispute respecting them; they held, also, on the same principle, that although the arbitrator found nothing in respect of "other effects," but ascertained the moneys, farm stock, and cattle, they would not presume that there were any other effects than those enumerated (r).

An arbitrator who had to award and to apportion a trust estate among the persons entitled, after finding a certain sum due from a party, directed him to pay or account for it to the trust estate; the award was held bad and uncertain, on the ground that it ought to have specified to whom and in what. proportions the money ought to be paid (x).

v. Certainty as to general directions.]-The arbitrator must security must be equally precise in his directions to the parties to do any act as in those with respect to payment of money. Hence, if an arbitrator direct a party to give security for payment of a specified sum, without naming the kind of security, this is void for the uncertainty (y). So if he direct the defendant to enter into a bond to the plaintiff conditioned that the plaintiff and his wife should enjoy certain lands, the award will be void for uncertainty if he do not specify the amount of the bond (~). In one case, however, where a sum was directed by the award to be paid, or to be secured to be paid, within a week from the date of the award, the court held that the party must within the time either pay the sum or give such security as was satisfactory to the party entitled to receive Must specify the money (a). If the arbitrator order a party to give up a

(v) Perry v. Mitchell, 2 D. & L.

452.

(x) Tidswell, In re, 3 N. R. 281. (y) Tipping v. Smith, 2 Stra. 1024; Thinne v. Rigby, Cro. Jac.

314. See Duport v. Wildgoose, 2 Bulst. 260.

(z) Samon's case, 5 Rep. 77 b. Simmons v. Swaine, 1 Taunt.

548.

PART II.

CH. V. S. 5.

document described merely as a "certain obligation" (b), or to deliver up "three boxes and several books," without specifying the number or otherwise identifying the books, the property direction is void (c).

We shall subsequently have occasion to notice the degree of specification and certainty requisite in the directions respecting alterations in the property of the parties or regulating their mode of carrying on their business, when the arbitrator is empowered to say what shall be done by the parties respecting the matters in difference (d).

awarded.

A reasonable degree of precision is all that is required of Reasonable precision the arbitrator. Hence a direction to a mortgagee to reassign sufficient. the mortgaged lands is sufficient, although it do not state for what period the reassignment is to be; for the court will intend that it is to be extended to the whole interest mortgaged (e). A direction that a nuisance erected on the defen- To pull down dant's land should be pulled down, without saying by whom, has been held certain enough, on the ground that it will be intended that the defendant, who is the owner of the soil, is the party meant to pull it down (ƒ).

nuisance.

executors to

release.

An award that the defendant or his executors or adminis- Defendant or trators shall execute a release to the plaintiff, was held not to be void for uncertainty, and that it might be read as if it were he and his executors and administrators were to do the act, and that the introduction of the personal representatives into the award was but cautionary, and would not vitiate it, since executors and administrators are by law bound by the submission of the testator, and the award creates a duty (g). The arbitrator must specify the particular party who is to perform what the award directs. Therefore, where by the submission the arbitrator was to direct at what price A. or B. should purchase a certain piece of land, and the arbitrator, following the submission, directed that A. or B. should purchase it at a certain price, the court set aside the award for uncertainty, as the arbitrator, as well as ascertaining the

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Not saying

which of two

to do act.

PART II.

CH. V. S. 5.

To pay plaintiff or his solicitor.

To pay upon

proof of

price, ought to have decided which of the two was to pur-
chase it (h).

But awarding payment to be made to the plaintiff, or to A.,
his solicitor in the cause, is sufficient (i).

Directing the defendant to pay the plaintiff a sum of certain things money upon proof that the plaintiff has discharged certain claims, is uncertain, for not saying to whom the proof is to be made (k).

done.

Defendant to pay costs, not saying to whom.

On the reference of an action, directing the defendant to pay the costs of the reference and award is sufficient without saying to whom they are to be paid, for the plaintiff will be intended to be the party to receive them (7).

PART II.

CH. V. S. 6.

Something must be

awarded for

SECTION VI.

THE AWARD MUST BE MUTUAL.

In the old cases great stress is laid on the necessity of the award being mutual. It is said that awards must not be on one side only; that they are void, unless something be arbitrated for the defendant's benefit, as well as for the plaintiff's; both parties. that all controversies being between two parties, that which is awarded to be done by one must be an advantage to both, so as to end the controversy and discharge one as well as give satisfaction to the other; for, if it do not, it is manifestly unjust, and therefore whenever it appears to the court that notwithstanding the award the thing remains a duty as before, and is not discharged, that apparently is an award on one side, and consequently void (m).

of claim.

Compensation Nothing more, however, is requisite to be done to form the
awarded must
be a discharge mutuality of an award, than that the thing awarded to be
done should be a final discharge of all future claim by the
party in whose favour the award is made against the other
for the cause submitted; and if one party alone be ordered to

(h) Lawrence v. Hodgson, 1 Y.
& J. 16.

(i) Hare v. Fleay, 11 C. B. 472.
(k) Miller v. De Burgh, 4 Ex.

(1) Bailey v. Curling, 20 L. J. Q. B. 235.

(m) Bac. Ab. Arb. E. 3; Stains v. Wild, Cro. Jac. 352,

A

do something, and nothing else appear to the court, it shall be presumed that he alone is the wrong-doer, and the award is good, if it have the effect of releasing him from all future liability in respect of the wrong (n).

PART II.

CH. V. S. 6.

construction.

Where, in the case of a trespass submitted, the arbitrator Old rule of awarded that one party should pay the other a certain sum, this formerly was held to be a void award, as being only on one side; on the ground that the award did not say for what the money was to be paid, that the trespass was not discharged, and that the party ordered to pay received no advantage by the award; but it was said, if it had been awarded de et super præmissis, it would have been well enough likewise if the award had been that he should pay the money for the trespass, it had been good, for though only one party was to do the act, yet that the trespass by that award would have been discharged, and so both parties would have received an advantage (o). In another old case, where Award de there were disputes between A. and B., and C. as attorney for præmissis. B. submitted to an award respecting the differences between A. and B., and the arbitrator awarded that C. should pay A. a certain sum, that A. and C. should execute mutual releases, viz., that A. should sign a release to C. to the use of C., and that C. should sign a release to A. to the use of A., the award was held bad as not being mutual, on the ground that nothing was awarded to B. or to B.'s benefit; but that it would have been good, if the release to be made by A. to C. had been awarded to B. for B.'s benefit, or if it had been to C. generally, for then it might have been intended to be for B.'s use, since the submission was on B.'s behalf, but that as it was to C. for the use of C. such intendment could not be made (p).

rent.

An award that one shall pay so much for arrears of rent Arrears of is mutual, since the word "for" implies that it is to be in satisfaction of the arrears, and so both parties are benefited (g). So an award to pay 5s. for having made the first breach in

(n) Bac. Ab. Arb. E. 3.

(o) Nichols v. Grunnion, Hob. 49; Horton v. Benson, Freem. 204; Bac. Ab. Arb. E. 3; Roll. Ab. Arb. K. p. 253; Ayland v. Nicholls, Freem. 265; Örmelade v. Coke, Cro. Jac. 254; Veale v.

Warner, 1 Saund. 327, n. (2).

(p) Bacon v. Dubarry, 1 Ld. Raym. 246; Cayhill v. Fitzgerald, 1 Wils. 28, 58.

(q) Hopper v. Hackett, 1 Lev.

132.

PART II.

CH. V. S. 6.

Sum awarded presumed in satisfaction.

Award manifestly unequal.

When infants and married

women

parties.

the law is plainly in satisfaction and discharge of the breach (). So, also, an award for a debtor to pay a debt is mutual, as the payment is manifestly intended as a discharge of the debt (s). An award that all suits shall cease is mutual, since it has the effect of a release (t).

Awards contrary to justice are equally objectionable now as ever, but less strictness and critical nicety is now used in construing these instruments than formerly. It is not now necessary, whatever it may have been, that an award should express that a sum awarded to be paid, or an act to be done in favour of one of the parties, shall be in satisfaction, or that it should contain any equivalent terms; a discharge to the other must necessarily be presumed from the payment of the sum or the performance of the act (u). If the arbitrator direct the defendant to pay the plaintiff a sum without saying in respect of what it is to be paid, and the reference be of a cause only, the court will presume the payment is to be in respect of the plaintiff's claim in the cause (x).

If trespass be for taking and detaining the plaintiff's beasts, and the arbitrator award merely that the owner shall have his beasts again, this is said in the old books to be void, on the ground that it is against natural justice to give him his own again, without satisfaction for the unjust taking and detention (). So if an award be that the owner shall have parcel of his own goods. But if the arbitrator award, whereas the parties are indebted to each other in the like sum, or have done each other a trespass, that they should release each other, this is mutual and good (≈).

An objection was often made to awards affecting infants and married women on the ground of want of mutuality, for it was said that as these could not be forced to comply with the directions of the award imposing burdens on them for the benefit of the other parties, it was not reasonable that

(r) Hawkins v. Colclough, 1 Burr. 275.

(8) Basspoole v. Freeman, Cro.
Jac. 285, S. C. 8 Rep. 97 b; Elliott
v. Chevall, 1 Lutw. 541.

(t) Strangford v. Green, 2 Mod.
228; Harris v. Knipe, 1 Lev. 58;
v. Palmer, 12 Mod. 234.
(u) Thomlinson v. Arriskin, Com.

Rep. 328; Cooper v. Hirst, 1 Lutw. 539; Veale v. Warner, 1 Saund. 327, n. (2).

(x) Hobson v. Stewart, 4 D. & L. 589.

(y) Bac. Ab. Arb. E. 3; Rolle, Ab. Arb. I. 3, p. 251.

(z) Bac. Ab. Arb. E. 3; Rolle, Ab. Arb. I. 6, 7, p. 252.

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