It is not necessary to the validity of an award that it CHAP. XII. should be in any precise form of words or make use of Form of the any technical expressions (Eardley v. Steer, 4 Dow. award. 423); it is enough if it clearly show that the arbitrator has finally decided on the matters submitted to him. (Lock v. Vulliamy, 5 B. & Ad. 600, per Parke, J.; Archer v. Owen, 9 Dow. 341; Bradbee v. Christ's Hospital, 2 Dow., N. S. 164; Law v. Blackburrow, 23 L. J., C. P. 28; Whitehead v. Tattersall, 1 A. & E. 491.) Even an award in the form of an opinion has been held sufficient (Matson v. Trower, R. & M. 17); so has an award of a sum in favour of one party and a request to the other party to pay. (Smith v. Hartley, 10 C. B. 800.) But a letter from the arbitrator to the parties, in which he said, "To meet the circumstances of the case in a liberal manner I propose that Mr. V. shall pay Mr. L. 10l.," was held not to be an award, but a mere recommendation. (Lock v. Vulliamy, 5 B. & Ad. 600; and see Fergusson v. Norman, 4 Bing. N. C. 52.) An arbitrator ill fulfils his task who makes his award in

a loose and ambiguous manner.

Recitals, though usual, are not necessary in an award. Recitals. Thus, the omission to recite an enlargement of time (George v. Lousley, 8 East, 13), or a view of the premises required by the submission (Spence v. Eastern Counties Rail. Co., 7 Dow. 697), or the performance of any other condition precedent (Davies v. Pratt, 17 C. B. 183; 25 L. J., C. P. 71), is no objection to an award.

When made, the recitals should show (1) the authority of the arbitrator, (2) the subject-matter with which he has to deal, (3) the powers that have been exercised, (4) the powers to be exercised by the award, and (5) the performance of conditions prescribed by the submission -in fact, the draftsman, in his recitals, will be governed by the particular circumstances of the case and those

CHAP. XII. Considerations which are entertained by a conveyancer in drawing an ordinary instrument made in pursuance of a power.

Effect of recitals.

Plans and writings incorporated by reference.

Formalities requisite.

Recitals are not without importance, for they will often explain what would otherwise be an ambiguous or doubtful award. (Elliott v. Chevall, 1 Lutw. 541; Watmough v. Holgate, 2 Vent. 221.) But an untrue recital, as, that the award is made by three arbitrators when in fact two only execute it (White v. Sharp, 12 M. & W. 712), or, contrary to the fact, that the time has been enlarged after instead of before the last day for enlargement (Re Lloyd and Spittle, 18 L. J., Q. B. 151; 6 D. & L. 531), or, that the umpire was chosen by the parties, when he was in fact appointed by the arbitrators (Adams v. Adams, 2 Mod. 169), or that an action is referred, without mentioning other matters in difference (Paull v. Paull, 2 Dow. 340), or the like (Watkins v. Phillpotts, M'Cl. & Y. 397; Thames Iron Works Co. v. The Queen, 10 B. & S. 33; Trew v. Burton, 1 C. & M. 533; Harlow v. Read, 1 C. B. 733; 3 D. & L. 203), will not vitiate an award; nor, on the other hand, will a bad award be helped by a misrecital. (Price v. Popkin, 10 A. & E. 139.)

A plan may be annexed to an award and incorporated with it, and the words of explanation on the map may be taken as part of the award. (Johnson v. Latham, 20 L. J., Q. B. 236.) So an indenture or other writing may be incorporated by reference without setting it out. (Anon., 1 Vent. 87.)

The award must be made and executed with all the material formalities (Gatliffe v. Dunn, Barnes, 55), required by the submission, and if it is provided that the award shall be "under hand and seal" it is no award unless so made (Everard v. Paterson, 6 Taunt. 625; Henderson v. Williamson, 1 Stra. 116); if, however, nothing is said in the submission as to the form of

CHAP. XII.

in writing.

the award, the arbitrator may adopt such formalities as he chooses, or may make a verbal award. (Hanson v. Liversedge, 2 Vent. 242; Rawling v. Wood, Barnes, 54; Oates v. Bromell, 6 Mod. 160, 176; 1 Salk. 75; Roberts v. Watkins, 32 L. J., C. P. 291.) This now, however, When applies only to awards in pursuance of submissions which required to be are not contained in some document subject to the Arbitration Act, 1889. For schedule 1 to that Act, cl. (c), provides that "the arbitrators shall make their award in writing." We have indicated (ante, pp. 8, 93) that this applies to a single arbitrator. Clause (e) in the same schedule says "the umpire shall make his award," but does not say that it shall necessarily be in writing.

The chief statutory enactments for arbitration provide for the awards being made in writing. An award under the L. C. C. Act, 1845, or the Railways Clauses Act, 1845, must not only be in writing, but must have the declaration made and subscribed by the arbitrator before entering on the reference annexed to it when made (8 & 9 Vict. c. 18, s. 33; 8 & 9 Vict. c. 20, s. 134); and under the former Act must be delivered to the promoters of the undertaking (s. 35).

The award is usually signed in the presence of an Attesting attesting witness.

witness.

tors must execute

Where there are two or more arbitrators, all (or the Joint arbitramajority required by the submission) must execute the award (United Kingdom, &c. Assurance Association v. together. Houston [1896] 1 Q. B. 567), at the same time and place, and in the presence of each other (Wade v. Dowling, 23 L. J., Q. B. 302; 4 E. & B. 44; Eads v. Williams, 24 L. J., Ch. 531; 4 De G. M. & G. 674; ante, p. 119); though omission to do so would not be fatal, as the court, on application, would send it back to the arbitrators to be re-executed. (Anning v. Hartley, 27 L. J., Ex. 145.) Where an award purported on the face of it to be the award of three arbitrators, but it was signed

CHAP. XII. by two only, yet, as by the submission it was to be by the three or any two of them, it was held a good award of the two. (White v Sharp, 12 M. & W. 712.)

Publishing"

ing" the award.

If the submission be to perform the award of the arbitrators and their umpire, it would seem that an award by the arbitrators alone is bad (Hetherington v. Robinson, 4 M. & W. 608; 7 Dow. 192); and where the reference was to the award of two persons named, and of such person as they should nominate before they proceeded to act, or of a majority of them in case they could not unanimously agree, it was held that no award of the two could be good until the third had had a full opportunity of joining in it, and had declared his dissent from it, or withdrawn from the reference. (Re Templeman and Reed, 9 Dow. 962.)

When the submission provides that the award "shall and "deliver be made and published ready for delivery to the parties" on a day named, it is considered to be published for the purpose of making it valid when executed, though no notice has been given to the parties (Henfree v. Bromley, 6 East, 309; Brooke v. Mitchell, 6 M. & W. 473); and 'ready for delivery" means delivery on request, for it is "ready" as soon as it is made. (Robison v. Calwood, 6 Mod. 82; Freeman v. Bernard, 1 Ld. Raym. 247; Veale v. Warner, 1 Saund. 327 b; Wilson v. Wilson, ib. 327 c.) But for the purpose of setting aside the award it is only considered to be published when notice that it is made is given to the parties, and time only begins to run from then. (Brooke v. Mitchell, supra.) If the submission is that the arbitrator shall deliver his award to the parties it is not complete until actual delivery, and where it is to be delivered to either of the parties it must be delivered to each or it is not binding. (Hungate's Case, 5 Rep. 103; Block v. Palgrave, Cro. Eliz. 797.) A parol award is capable of "delivery," viz., a declaration of it to the parties, or either of them,

if they desire it. In cases where a parol award is sufficient, so soon as the arbitrators have agreed upon their award, it is, according to an old case, ready to be delivered. (Oates v. Bromell, 6 Mod. 160, 176.)

Until the arbitrator has finally made up his mind, his determination upon a matter is not an award. Signing minutes of an award as instructions would not be considered an award. (Blundell v. Brettargh, 17 Ves. 232.) In a case in which a verbal award would have been sufficient, it was held that an intimation by the arbitrator to one of the parties, in the absence of the other, of what he intended to award, was not intended as a declaration of his final mind. (Thompson v. Miller, 15 W. R. 353.)

CHAP. XII.

Award

delivered to

party taking

The usual practice after the award is made is to give notice to both parties that it is ready for delivery, together with a note of the arbitrator's fees, leaving it it up. open to either party to take up the award. The stamped award is handed to the party who first applies for it and pays the fees. An unstamped copy is generally given to the other party.

In the case of a reference under the L. C. C. Act, 1845, the award is, under section 35, delivered to the promoters of the undertaking. If the landowner takes up the award, and pays the umpire's fees, he cannot recover them from the company. (Earl of Shrewsbury v. Wirral Railways Committee [1895] 2 Ch. 812.) It is the duty of the promoters to take up the award, and if they refuse or neglect to do so a mandamus will issue to compel them to do so and to furnish a copy to the claimant. (London and North-Western Rail. Co. v. Walker [1900] A. C. 109; Reg. v. South Devon Rail. Co., 20 L. J., Q. B. 145.)

cannot be altered.

Formerly, when an arbitrator had executed a paper as An award and for his award, and it purported on the face of it to be his award, then he was functus officio, and could not