CHAP. XII. Moore, 723.) Thus, where three persons, A., B., & C., on one side, and D. on the other, submit all differences and disputes between them to arbitration, an award relating to disputes between A. and B. only of the one part, and D. of the other, is bad for omitting to decide between C. and D. (Harris v. Paynter, Rolle, Ab. "Arb." O. 8; and see Rees v. Waters, 16 M. & W. 263; Turner v. Turner, ante, p. 183.)

When an

SECT. 4.-An Award must be certain.

An award to be binding must be certain, that the parties may be able to gather from it clearly what they have to perform, and that the court may see that the arbitrator has not exceeded his authority. It must be certain both as to the finding itself and as to the things ordered to be done.

The courts will strive to hold an award to be ceraward will be tain, and will not presume it to be uncertain.

held certain.

Manifest implication.

(Wood

v. Griffith, 1 Swanst. 52.) The uncertainty must expressly appear on the face of the award or by averment. It will be sufficient if it is certain to a common intent, that is, if it show such a certainty as was contemplated by the parties in the submission (Hawkins v. Colclough, 1 Burr. 274); and if, on a fair and reasonable interpretation of the terms employed, a man of common understanding can comprehend the meaning and intention of the arbitrator. (Cargey v. Aitcheson, 2 B. & C. 170; 3 D. & R. 433.)

If, by manifest implication, or necessary import, that appear which, if positively expressed, would render the award good, that is sufficient to support it. (Linnem v. Williamson, Rolle, Ab. "Arb." R. 16; Baily v. Curling, 20 L. J., Q. B. 235.) Thus, a direction to a mortgagee to re-assign mortgaged lands will be sufficient, though the period for which the re-assignment is to be, is not

named, the courts presuming that the whole interest CHAP. XII. mortgaged is intended (Rosse v. Hodges, 1 Ld. Raym. 233); and, a direction that a nuisance on the defendant's soil is to be removed, without saying by whom, has been held certain, as the courts will presume that the owner of the soil is the person intended. (Armitt v. Breame, 2 Ld. Raym. 1076.)

An award, on a reference of a cause and all matters in difference, that "nothing is due to the plaintiff," was held sufficiently certain, and equivalent to a finding that the plaintiff had no right to recover in the action (Dickins v. Jarvis, 5 B. & C. 528); so, in a reference of an action in which there were several specific claims, was an award that "the plaintiff has no cause of action." (Hayllar v. Ellis, 6 Bing. 225; 3 M. & P. 553; Jackson v. Yabsley, 5 B. & A. 848.) But, an award that the defendant had overpaid the plaintiff a specified sum, was held sufficiently doubtful to justify the refusal of an attachment. (Thornton v. Hornby, 8 Bing. 13; 1 M. & Sc. 48.)

An award will not be bad for uncertainty upon a Matters not in point about which there is no controversy between the controversy. parties. (Cargey v. Aitcheson, 2 B. & C. 170; Plummer

v. Lee, 2 M. & W. 495.)

submission.

An arbitrator fulfils his task if he decide the very Award in matters submitted and about which the parties differ terms of (Miller v. De Burgh, 19 L. J., Ex. 127); what the parties treat as certain and ascertained, he may assume to be, and deal with as such; and though the award might to a stranger be ambiguous or uncertain, it will be valid if it determine such matters as it could have been fairly intended by the submission that he should decide. Where an arbitrator had power to settle at what price the defendant should purchase the plaintiff's property," and the arbitrator fixed a certain price at which the defendant should purchase the plaintiff's "said property," it was held that this was sufficiently

66

CHAP. XII. certain, as the property was not a matter in difference. (Round v. Hatton, 10 M. & W. 660.)

Direction on immaterial point.

Award sufficient, when it can be ren

dered certain.

An award upon a submission of differences between an administrator and the next of kin of his intestate, directed that the administrator should pay to the next of kin their distributive shares, and it was held sufficient; the degree of relationship, and consequently their aliquot shares of the intestate's estate, not being shown to be in dispute. (Perry v. Mitchell, 12 M. & W. 792.) On the same principle, where an action of debt on a money bond, to which the only plea was payment by a coobligor, was referred, and the arbitrator ordered a verdict to be entered for the plaintiff, without stating what amount was due on the bond, the award was held sufficient. (Cayme v. Watts, 3 D. & R. 224.)

In an action against an executor, where the arbitrator found a certain sum due to the plaintiff on the balance of accounts, and awarded that the defendant should pay it, out of assets, on a given day, it was held to be sufficiently certain without stating expressly that defendant had assets to that amount. (Love v. Honeybourne,

4 D. & R. 814.)

If an award completely decide a matter, the addition of an imperfect direction which may be rejected as surplusage will not invalidate the award. (Miller v. De Burgh, 19 L. J., Ex. 127; 4 Ex. 809; Barton v. Ranson, 3 M. & W. 322.) But, it will be otherwise, if the matter which is left in uncertainty, is so connected with the rest of the award as to be a material part of the whole thing awarded, although, if it had been originally omitted, the award would have been sufficient. (Re Marshall and Dresser, 12 L. J., Q. B. 104; 3 Q. B. 878.)

A prima facie uncertainty or want of conclusiveness in an award does not vitiate it, if it be capable of being rendered certain or conclusive,-the maxim id certum est quod certum reddi potest applying in such cases,

and the award may be bad or good according to the event. (Cargey v. Aitcheson, 2 B. & C. 170.) Thus, where a specified sum of money was ordered to be paid within a certain time from the date of the award, and the award bore no date, it was held sufficiently certain, as the time would be computed from the delivery of the award. (Armitt v. Breame, 2 Ld. Raym. 1076.) So, where a bond was ordered to be delivered up to be cancelled within a certain time from the date of it, without stating the date, it was considered sufficient. (Bell v. Gipps, 2 Ld. Raym. 1141.) In Re Boyes and Bluck (13 C. B. 652; 22 L. J., C. P. 173) an award that A. should "forthwith " execute conveyances to C., and that C. should" forthwith " execute releases to A., was upheld, as the latter forthwith was to be construed to mean as soon as the former direction had been obeyed. And, a direction to pay money or execute a release, is sufficiently certain though it mention no time, for it must be performed within a reasonable time. (Freeman v. Bernard, 1 Salk. 69.) An award that one party to a reference relating to a voyage should pay his share of the expenses of the voyage, and allow on account his proportion of the loss which should happen to the ship during the voyage, was held good, as both expenses and loss might be reduced to a certainty. (Beale v. Beale, Rolle, Ab. “ Arb.” H. 14.) So, an award that two persons should pay a debt in proportion to the shares which they held in a ship (Wohlenberg v. Lageman, 6 Taunt. 254), and, a direction for payment of "interest since the last settlement of accounts" (Plummer v. Lee, 2 M. & W. 495; 5 Dow. 755), are sufficiently certain. And, an award was held certain, that directed one party to pay to the other all such moneys as he had expended about the prosecution of a suit, for that might be ascertained by showing, in fact, what had been laid out. (Hanson v. Liversedge, 2 Vent. 242; Fox v. Smith, 2 Wils. 267.) But a direction

CHAP. XII.

CHAP. XII.

Award upon a contingency not clearly defined.

Award giving the rule for ascertaining the amount to be paid, good.

Intention of

to pay all reasonable expenses which the plaintiff has sustained about a suit (Bargrave v. Atkins, 3 Lev. 413), or to pay the charges spent in making an award (Pinkny v. Bullock, cited 3 Lev. 413), is void for uncertainty.

It being referred to two surveyors to fix the price of land, and they stated the amount in their valuation, but directed that if there should prove to be a mistake in the admeasurement an addition or deduction should be made at the rate of 841. or 421., according as the land lay on one side or the other of a certain line, which they did not accurately define, the valuation was held void for uncertainty. (Hopcraft v. Hickman, 2 S. & S. 130.)

If, in awarding a payment of money, the arbitrator, instead of naming the amount, indicate the manner in which it is to be estimated, it will be good; but the manner must be precisely pointed out, for an award between A. and B., concerning certain quarters of malt delivered by A. to B., that B. should pay to A. so much for each quarter of malt as a quarter of malt was then sold for, was held bad, because no mention was made of any market or place where the price was to be estimated. (Hurst v. Bainbridge, Rolle, Ab. “Arb.” Q. 7.) This decision is not affected by Waddle v. Downman (12 M. & W. 562), for there the arbitrator had only to decide whether or not the plaintiff was to be allowed the value of certain articles at the market price of pig iron, as distinguished from machinery, and, as he decided affirmatively, that was such a certainty as the parties may fairly be considered to have contemplated, without his naming the market.

The court will look to the evident or necessary intenthe arbitrator tion of the arbitrator, in deciding upon the certainty of to be regarded. an award thus, where an action of ejectment was referred, and the arbitrator, after reciting the submission, awarded thus, "I award and determine that the verdict in the said cause be entered for the lessors of the