PART II. CH. V. S. 6. the latter should be bound by the provisions affecting themselves, as they had no reciprocal benefit insured. Thus the Court of Chancery, in an old case, set aside an award, which awarded a sum of money to an infant, and that a bond should be given by the guardian, that the infant should at his full age convey certain lands, on the ground that it was unreasonable and not mutual, since the infant might die, or, if he lived to full age, might refuse to convey (a). The principle has been sanctioned by the Court of Queen's Bench at no very distant period (b). But it may be doubted whether Party knowing the disthis objection will be entertained at the present day, for the ability bound rule now acted upon by the courts of law seems to be, that when a party has voluntarily and knowingly entered into a submission with married women or infants, and an award has been made, the court will refuse to set it aside on the ground that the married women or infants are not bound by it, as the party knew beforehand that they could not be bound, and therefore has all the consideration for his agreeing to the submissson for which he stipulated, and if he did not mean to be satisfied with such effect as the award could have upon them, he ought never to have consented to the reference (c). The objection, however, is really an objection to the submission rather than to the award in most cases, and has been more fully considered in the previous part of this work concerning the parties to a submission, where it treats of the capacity of infants (d) and femes covert (c) to enter into a reference. (a) Cavendish v. 1 Cas. in Chanc. 279. (b) Biddell v. Dowse, 6 B. & C. & W. 199; Jones v. Powell, 6 (d) See P. I. ch. 2, s. 1, d. 4, by award. 255. p. 18. (c) Warner, In re, 2 D. & L. 148; Wrightson v. Bywater, 3 M. p. 16. (e) See P. I. ch. 2, s. 1, d. 2, PART II. CH. V. S. 7. Impossible award bad. Unintelligible award. Contradictory award. Award when held incon sistent. SECTION VII. THE AWARD MUST BE POSSIBLE AND CONSISTENT. An award ought to be possible. If the arbitrator award a thing impossible ex naturâ rei, as to surrender an estate or to pay a sum of money at a day already past, the award will be void. But if he direct a thing to be done, which cannot be done, but which is not in the nature of the act itself contradictory or repugnant, this may be a good award, as an award that one shall pay twenty pounds when he has not twenty pence, for no contradiction appears on the award itself (f). If an act possible at first afterwards becomes impossible by the act of the party or of a stranger, the party is not freed from his obligation to perform the award (g). If the award direct a party to do or cause to be done an act which is presumably not within his power to effect, as to turn the river Thames, the direction will be void (h). 66 An award must be an intelligible and consistent instrument (i). Great strictness was formerly held in construing awards. Thus an award to pay a sum on the said first day of May," when no such day had been previously mentioned, was in an old case held void (). It is said in an old report that if there be any contradiction in the words of an award, so that one part cannot stand with the other, the first part shall stand and the second be rejected; yet if the latter be but an explanation of the former, then both parts shall stand (7). A more liberal interpretation of awards is now adopted than formerly, and the courts will strive, as far as they sensibly can, to put such a construction on them as will sustain them despite of any apparent inconsistency or repugnancy (m). (f) Com. Dig. Arb. E. 12; Rolle, Ab. Arb. E. p. 248; Rolle, Ab. Arb. F.; Bac. Ab. Arb. E. 4; Colwel v. Child, Cas. in Chanc. 86. (g) Com. Dig. Arb. E. 12. 206. h) Bac. Ab. Arb. E. 4; Co. Lit. (i) Storke v. De Smeth, Willes, 66; Sherry v. Richardson, Pop. 15. See Doe d. Oxenden v. Cropper, 10 A. & E. 197. (k) Com. Dig. Arb. E. 11; Markham v. Jennings, Rolle, Ab. Arb. 254, 263. (1) Berry v. Perry, 3 Bulst. 62. (m) Templeman v. Reed, In re, 9 Dowl. 962; Stonehewer v. Farrar, 9 Jur. 203. Thus an award directing proceedings in the actions (several of which were referred) to cease, and also directing judgment to be entered up in one of them (an ejectment), was held not to be an inconsistent award, since, by reading together the two directions, this construction was put on it by the court, that the award meant that the action of ejectment was to cease, unless the defendant failed to give up the premises by a certain day, in which event the lessors of the plaintiff were to enter up judgment and take out their execution (n). PART II. CH. V. 8. 7. award set Where, however, the award is manifestly inconsistent and Repugnant repugnant, the court will set it aside. On an action for a fraudulent representation of A.'s circumstances, the arbitrator found in his award, that the defendant, in answer to the plaintiff's inquiries respecting A.'s conduct, had not given a fair representation, but had omitted to state material facts. The arbitrator, however, distinctly acquitted the defendant of all fraud at the time of making the representation, yet thinking himself, as he stated, bound by adjudged cases to decide that knowledge of the falsehood of the statement was fraud and deceit, he concluded by awarding in favour of the plaintiffs. The court held the arbitrator's law to be wrong, and set aside the award, Parke, J., saying, "The conclusion to which the arbitrator has come in this case is quite absurd. He says, 'I think he is innocent,' and then awards against him" (o). inconsistent The necessity of finding on each issue has sometimes Finding on exposed the arbitrator to a charge of making an inconsistent issues. award, but the two following cases will free him from any ungrounded apprehension on that score. In an action on an agreement, the defendant by his first plea denied the agreement, in the second the breach, in the third he admitted the agreement, but alleged it was rescinded before breach, in another plea that it was varied by consent. There were other pleas also. The arbitrator awarded a general verdict to be entered for the defendant. The court, treating this as equivalent to a finding for the defendant on each issue, held that such a finding of inconsistent pleas in favour of the defendant did not render the award inconsistent, as possibly (n) Jones v. Powell, 6 Dowl. 483. (0) Ames v. Milward, 8 Taunt. 637. PART II. CH. V. S. 7. Whether award must be reasonable. if the cause had been tried at Nisi Prius the circumstances of the case might have warranted such a finding (p). In debt the pleas of nunquam indebitatus and payment might consistently both be found for the defendant, for if on a trial the plaintiff had failed in proof of his case, and the defendant proved a payment, the verdict would be entered for the defendant on both issues (q). So where to an action of assumpsit on a retainer to project certain, works, and to examine certain bills with care, the defendant pleaded: 1st, non assumpsit; 2nd, no retainer; 3rd, that the defendant did use care in projecting the works; 4th, that he did use care in examining the bills. The award found for the defendant on the 1st, 2nd, and 4th issues, and for the plaintiff on the 3rd. It was held that the award was good, and not repugnant, for that the finding on the 3rd and 4th issues must be regarded as hypothetical, and only for the purpose of determining the costs of them (). Where the plaintiff declared in case, alleging that he was entitled to the reversion in a close, that a person named Hearn had wrongfully and injuriously erected incumbrances thereon, and that defendant had wrongfully and injuriously kept and continued the incumbrances so wrongfully erected, and the defendant pleaded: 1st, not guilty; 2nd, that Hearn did not erect the incumbrances on the close; an award directing a verdict for the plaintiff on the first plea, and for the defendant on the second, was held not to be inconsistent, since the first plea put in issue only the continuance of the nuisance by the defendant, and not the erection by Hearn (s). It is said that an award ought to be reasonable, and that therefore an award that one party should serve the other for two years is void (t), or that one should release his right to the land in satisfaction of a trespass (u). The courts in general, though probably at the present day they would consider the award, in the first instance at least, to be void, (P) Cooper v. Langdon, 9 M. & (9) Maloney v. Stockley, 4 M. (r) Duke of Beaufort v. Welch, 10 A. & E. 527. (8) Grenfell v. Edgcome, 7 Q. B. 661. (t) Com. Dig. Arb. E. 13; Rolle, Ab. Arb. B. 12, p. 243. (u) Com. Dig. Arb. E. 13; Rolle, Ab. Arb. B. 13, p. 243. as exceeding the authority given, decline examining into the reasonableness of the arbitrator's decision (x); and the courts of equity will enforce a specific performance of an award, notwithstanding it appears to be unreasonable in some respects. Hence, although the question whether the vendor could make a good title to an estate was depending in a suit in the Exchequer, the Court of Chancery compelled one of the vendees, in pursuance of an award, to join the other in the sale of their equitable interest under the contractor, although the court was of opinion that forcing the sale while the title was in dispute was unreasonable, and must depreciate the property (y). PART II. CH. V. S. 7. SECTION VIII. THE AWARD, HOW AFFECTED BY A MISTAKE OF THE PART II. CH. V. S. 8. Effect of mistake, 1. When the award is good on its face.]—It is a point of some importance to ascertain how far, when the arbitrator has done his best to arrive at a right determination, and when there is nothing on the face of the award to show that award good on its face. the decision is wrong, the courts will listen to the suggestion that he has made a mistaken decision on questions of law or fact. On one occasion, when an arbitrator's decision was questioned on the ground of mistake, Lord Ellenborough, C. J., said that he feared it was impossible to lay down any general and certain rule to indicate in what cases the court would refuse to allow an award to be opened (z). For some time the common law courts made a distinction No distinction between lay between a legal and a lay arbitrator, holding that when the and legal merits both of law and fact were referred to a barrister the arbitrator. court would not open the award for any alleged mistake, unless something could be urged that amounted to a perverse Waller v. King, 9 Mod. 63. (z) Chace v. Westmore, 13 East, 356. |