PART II. CH. VIII. S. 2. all proper and reasonable precautions and measures for preventing the water of the stream from being rendered unfit for the use of the plaintiff, and that all refuse waters from the defendant's works should, at the defendant's expense, be passed through filters, so as to be thereby effectually purified and cleansed, so far as the same could be purified and cleansed by the ordinary and most approved process of filtering. The court held the award bad, as uncertain, ambiguous, and not final, because it did not prescribe or ascertain in any way how the water was to be prevented from becoming unfit for the purposes of bleaching, or if rendered unfit, how it was to be purified and cleansed by the defendant; that the direction to use all proper and reasonable precautions did not at all. point out to the defendant what he was to do; and that ordering him to purify the water by the use of the ordinary and most approved process of filtering was also insufficient, as it was not certain what the ordinary and most approved process of filtering was; and Lord Denman, C.J., added the following important observation: "It is said that the arbi- Duty of arbitrator would run great risk by setting out in his award what matters of acts were to be done, because he might fail in directing them science. scientifically. But I think he runs a much greater risk of making an imperfect award, if he do not make himself scientifically master of the subject before him, so as to discover how justice may be dealt to the litigating parties. He is bound to understand the matters in dispute so accurately and fully, that the acts being done which he has prescribed, it may be clear that the award has been obeyed. The words in which the arbitrator describes what shall be done should be certain, and accompanied in his own mind with an understanding of what he prescribes" (h). trator as to Vague and imperfect directions in an award often lead to Not specifying capacity renewed litigation. Some commissioners, under an inclosure of drain. act, being empowered to set out public ditches, ordered the owners of lands over which a certain drain set out by them passed to cleanse and keep it "of sufficient width and depth to carry off the water intended to run down the same." Some years afterwards the plaintiff cut a sough or underdrain across his close, opening into the drain in question, (4) Stonehewer v. Farrar, 9 Jur. 203, S. C. 6 Q. B. 730. PART II. CH. VIII. S. 2. Plan annexed to award. Coal Mines which in the part of it immediately below (where it ran across the defendant's lands) was not of sufficient capacity to carry off the additional water brought in by the sough. The plaintiff contended that it was the defendant's duty to make it sufficient for that purpose. The court, however, remarking that the award was lamentably vague in its terms in not explaining what water was intended to run down the drain, ultimately held that this method of draining by a sough or under-drain not being contemplated by the award, the defendant was not required to make and keep the drain of the increased size and depth demanded (¿). It is often very advantageous for the arbitrator to make a plan or map on his award (or annexed to it and referred to by words incorporating it), so as to show precisely what he intends to be done (j). In an arbitration under s. 46 of the Coal Mines Regulation Act, 1872, the duty of the arbitrator is limited to determining whether the matter complained of by the inspector is dangerous and ought to be remedied, and he has no power to determine what is the proper remedy, or to direct that any particular remedy be adopted (). SECTION III. PART II. CH. VIII. S. 3. Inclosure, &c. Allotment for right not extinguished by act. OF DIRECTIONS AS TO ALLOTTING LANDS. 1. Directions under Inclosure Acts.]-As persons appointed under private acts of parliament for inclosing waste lands and commuting tithes have to decide on the various rights of parties interested, and to perform duties in many respects analogous to those of arbitrators, and are even sometimes so styled, some points respecting awards in such cases may here, it is apprehended, be noticed with advantage. Commissioners under an inclosure act have no power to make allotments in respect of other rights than those which (i) Sharpe v. Hancock, 7 M. & G. 354. (j) Johnson v. Latham, 20 L. J. Q. B. 236. (k) Secretary of State and Fletcher, In re, 18 Q. B. D. 339. are to be extinguished under the powers of the act, and for which allotments in compensation are provided to be given. Hence they are not justified in allotting to a lord of a manor a portion of the waste in lieu of his right to warren, such right not being mentioned in the act (7). PART II. CH. VIII. S. 3. Where, besides allotting the common lands, they are em- Specifying exchanged powered to assign lands in exchange for other lands, so that lands. the exchange shall be ascertained by the award, the award will convey no title to a close assigned in exchange, unless it state in respect of what particular land the land assigned is given in exchange; for with a view to the charges affecting the original property, it is of extreme importance that the exchanges should be ascertained (m). If the act require the previous consent, in writing, of the Reciting fact of proper respective proprietors to sanction the exchanges, it would consents. seem advisable at least that the award should recite that such consents had been given (m). When an inclosure act directed that the grass and herbage Awarding to of the parcels set out for getting materials for the repair of in succession. parish officers the highway should remain for ever for the benefit of such persons as the commissioners should appoint, it was held that they were authorised to award the herbage to the surveyors of the highways of a certain parish, "and their successors for the time being;" for although the award was bad as a common law conveyance, the surveyors not being a corporation, it was good as a parliamentary declaration of the persons entitled to take the herbage, and had the same effect as if the direction had been inserted in the act (n). A purchaser of a close which has a right of way attached Right of way. to it over a waste about to be enclosed under the General Inclosure Act (8 & 9 Vict. c. 118), should take care to bring his claim to the way before the valuer. In one case where he did not, and the way was not set out in the award, it was held to be gone for ever; though the site of the old way was allotted to the vendor, who had sold the close with all rights of way, but had reserved his right to all allotments (o). The (1) Casamajor v. Strode, 2 M. & K. 706. (m) Cox v. King, 3 Bing. N. C. 795. 38. (n) Johnson v. Hodgson, 8 East, (0) Turner v. Crush, L. R. 4 App. Cas. 221. PART II. CH. VIII. S. 3. Specifying lands liable to tithe rentcharge. What a neglecting to make an award. ap owner of a private way set out by inclosure commissioners is not restricted in its use (p). If by a private act of parliament the estate of one proprietor in a parish be alone to be charged with the rent-charge in lieu of tithes, an arbitrator who has to ascertain the amount of the rent-charge, and to whom it is lawful to divide and apportion it into so many parts as he shall think fit, and to charge each such part on a distinct part of the estate, need not, unless he think fit to make an apportionment, specify what lands the proprietor has in the parish, but it is sufficient if his award charge the rent-charge in one entire sum "on all and every the lands and grounds" of the proprietor within the parish (g). Under a private act of parliament, a commissioner was to allot waste land, and a specified arbitrator was empowered to declare by an award, within six months after the passing of the act, the amount of rent-charge to be paid in lieu of tithes, and the statute further provided, that in case he should neglect or refuse to act, another arbitrator should be nominated with like powers by a certain party; although the arbitrator assumed that he could not make an award before the inclosure commissioner had made his, and the latter had not awarded before the six months had expired, consequently the arbitrator did not make an award within the six months, though he did after they had expired, it was held that he had "neglected" to award within the meaning of the act, and an award made by an arbitrator afterwards appointed to supply his place was held valid (). Equity can- An award under an inclosure act appointed certain lands not rectify mistaken and rent-charges between the inhabitants of two parishes. It portionment. was held that Chancery had no jurisdiction to rectify the mistake if the apportionment were ultra vires (s). Power of commissioners II. Directions in making partitions of lands.]-Commisof partition. sioners of partition appointed by the Court of Chancery being judges of the parties' own choosing, are looked upon by the (p) Finch v. Great Western Rail. Co., 5 Ex. D. 254. (2) Willoughby v. Willoughby, 4 Q. B. 687. (r) Willoughby v. Willoughby, 9 Q. B. 923, S. C. 16 L. J. Q. B. 251. See also R. v. Grant, 14 Q. B. 43. (8) Bateman v. Boynton, L. R. 1 Chanc. 359. Court of Chancery in a light very similar to arbitrators; their proceedings are clothed with somewhat of the character of a reference; and the same principles which guide the courts in respect of arbitrators are, in a great measure, applicable to the consideration of the award of the commissioners (†). As arbitrators are sometimes called upon to make partition of lands, it may not be inexpedient to consider the powers which the commissioners have for that purpose. PART II. CH. VIII. S. 3. It seems the latter are justified in awarding a right of way Awarding for one party to his own portion of the lands over the portions right of way. of the lands allotted to another party; or that one may enter the lands of the other for the purpose of repairing and cleansing watercourses: they may direct such new fences to be made as Erection of are reasonably necessary for dividing off the lands which are the subject of partition; and they may allot to one party as Separated lots his lot the mansion-house and grounds, and also other lands to one party. at a distance from the house and grounds, and separated from it by lands allotted to another (u). fences. making parti When an arbitrator is appointed to make partition of lands Arbitrator among tenants in common, he must not only set out the tion must separate portions for the respective parties, but must direct award condeeds of conveyance to vest the allotments in the several owners, or the award will not be final, and his duty will have been incompletely performed (). veyances. SECTION IV. OF DIRECTIONS AFFECTING STRANGERS TO THE SUBMISSION. PART II. CH. VIII. s. 4. Direction to 1. Directing a payment to be made to a stranger.]—If an arbitrator direct a party to do a thing to a mere stranger to the submission, as to pay a stranger a sum of money, the direction is void; and the award will often be void also, as stranger void. not being mutual, if the payment or thing to be done be in (t) Jones v. Totty, 1 Sim. 136; Manners v. Charlesworth, 1 M. & K. 330; Story v. Johnson, 1 Y. & C. 538. (u) Lister v. Lister, 3 Y. & C. 540. (v) Johnson v. Wilson, Willes, 248; Knight v. Burton, 6 Mod. 231. See ante, s. 1, d. 7, p. 428. pay money to |