« EelmineJätka »
plaintiff," instead of for the plaintiff,-the court held that the arbitrator must be understood to have finally determined the cause in favour of the plaintiff. (Law v. Blackburrow, 23 L. J., C. P. 28; 14 C. B. 77; Mays v. Cannel, 24 L. J., C. P. 41; 15 C. B. 107.)
But there must be a reasonable precision, and an award is void for uncertainty that leaves in doubt what it decides, e.g., an award that orders one party to pay so much money as is due in conscience (Watson v. Watson, Sty. 28), or to pay "certain task and days' work" (Pope v. Brett, 2 Saund. 292), or to pay so much as certain land is worth (Titus v. Perkins, Skin. 247), or to pay the moiety of a certain debt for which A. is bound (Gray v. Gray, Rolle, Ab. "Arb." Q. 2), without in each case stating the amount; or to pay arrears of rent, without stating from when payable. (Massy v. Aubry, Sty. 305.) So also, is an award that the defendant shall deliver up certain goods particularly named, and three boxes, and several books, without naming the books (Cockson v. Ogle, Lut. 550); or, that a "certain writing obligatory" shall be delivered, without describing it (Bedam v. Clerkson, 1 Ld. Raym. 123); or, that one party shall give security for money, without specifying the nature of the security (Duport v. Wildgoose, 2 Bulstr. 260; Thinne v. Rigby, Cro. Jac. 314; Tipping v. Smith, 2 Str. 1024, but see 1 Taunt. 554); or, that A. shall pay whatever sum B. shall be compelled to pay in respect to a certain bill of exchange. (Graham v. D'Arcy, 6 D. & L.
385; 18 L. J., C. P. 61.)
Award bad if
And there must be certainty in regard to all matters Or the included in the reference about which there is any difference, and, in regard to which, no presumption would by necessary intendment otherwise arise to fix them with certainty. Where arbitrators were, in a certain event, to order payment in reduction of a mortgage debt, and they ordered payment of the mortgage
CHAP. XII. debt, but did not find the amount, which was a matter to be decided by them, the award was held bad. (Hewitt v. Hewitt, 1 Q. B. 110.)
Or how it decides.
Or whether it decides at all.
Award in the alternative, or conditional.
If it is doubtful how the award has decided the matter referred, it will be set aside as uncertain. An award that a certain amount is due to the defendant from A., B., and C., some or one of them, and directing the amount to be paid by them, some or one of them is uncertain. (Rainforth v. Hamer, 25 L. T. 247.) Where an action of assumpsit and all matters in difference were referred at nisi prius, with power to the arbitrator to direct a verdict to be entered for either party, and the arbitrator directed a verdict to be entered for the plaintiff, without saying for what amount, the court held the award bad for uncertainty, although it also awarded that the defendant was indebted to the plaintiff in 2601., because that sum might have been due with respect to the matters in difference, and not in the cause. (Mortin v. Burge, 4 A. & E. 973; 6 N. & M. 201.)
A fortiori, an award which leaves it in doubt as to any of the questions whether they were meant to be and have been disposed of, cannot be maintained. (Wakefield v. Llanelly Rail. Co., 13 W. R. 823.) A suit having been commenced to rescind an agreement, it, and all matters in difference between the parties, were referred to arbitration. The award merely directed as to the suit, that each party should pay his own costs, but made no further determination as to the agreement, and it was held to be bad, for although the court considered that it was probably the arbitrator's intention to put an end to the suit, they could not say, in point of law, that he had done so. (Re Tribe and Upperton, 3 A. & E. 295.)
An award that one of two persons shall do an act is void for uncertainty (Lawrence v. Hodgson, 1 Y. & J. 16), but, an award that a person shall do one of two things,
is not uncertain if either thing is capable of being performed. (Lee v. Elkins, 12 Mod. 585; Simmonds v. Swaine, 1 Taunt. 549; Oldfield and Wilmer's Case, 1 Leon. 140; Wharton v. King, 2 B. & Ad. 528.) And an award, conditional upon the performance or nonperformance of a certain act, is not uncertain: thus, an award that one party should pay the other 20s. on condition that each should acquit the other (Linfield v. Ferne, 3 Lev. 18); and that A. should pay 105l. on a certain day, and if he did not, that he should pay 110l. on a certain other day (Rolle, Ab. "Arb." H. 8), have been held good.
must be specific.
If the award direct any acts to be done the directions Directions must be clear and specific, that they may be strictly obeyed; therefore an award that a party shall put up certain fixtures, without defining their value or description, is bad. (Price v. Popkin, 10 A. & E. 139.) And, where on a reference of an action for polluting a watercourse the arbitrator was to direct how the water should be enjoyed in future, and he awarded that the defendant should take all reasonable precautions to prevent the water from being rendered less fit for use by his business of a dyer, and that all refuse water from the defendant's works should, at the defendant's expense, be passed through filters, so as to be thereby effectually cleansed, so far as the same could be cleansed by the ordinary and most approved process of filtering, this was held to be uncertain, for not specifying what particular precautions should be employed. (Stonehewer v. Farrer, 14 L. J., Q. B. 122; 6 Q. B. 730; but see per Erle, J., Johnson v. Latham, 20 L. J., Q. B. 238; and see Sharpe v. Hancock, 7 M. & G. 354.) An arbitrator, who had to direct the apportionment of a trust estate amongst the persons entitled, after finding a certain sum due from a party, directed him to pay or account for it to the trust estate; his award was held uncertain, in not specifying
CHAP. XII. to whom and in what proportions the money ought to be paid. (Re Tidswell, 33 Beav. 213; 3 N. R. 281.) And an award which, in directing the enjoyment of land in the future, directed that the parties should enjoy it as heretofore, was held to be uncertain. (Ross v. Clifton, 9 Dow. 356.) But an award which recited that the parties were joint tenants of certain lands, and ordered that they should make partition by mutual conveyance, was held good, though it did not specify what moiety or part the one should have and what the other. (Knight v. Burton, 6 Mod. 231.)
Awarding costs without ascertaining them, when certain.
to raise a question of law.
In a reference of an action, either alone or with other matters, an award of costs or any specified proportion thereof, though the amount is not ascertained, is sufficiently certain, and in such a case the master or other officer of the court shall tax them. (Cargey v. Aitcheson, 2 B. & C. 170; Fox v. Smith, 2 Wils. 267; Holdsworth v. Barsham, 31 L. J., Q. B. 145; in error, 32 L. J., Q. B. 289; Holdsworth v. Wilson, 4 B. & S. 1; Sharpe v. Metropolitan District Rail. Co., 48 L. J., Q. B. 325; 50 L. J., Q. B. 14; 4 Q. B. D. 645; 5 App. Cas. 425; Lewis v. Rossiter, 44 L. J., Ex. 136.)
If the arbitrator, without specifying definitely the amount of costs, give the rule for computing them, the award is sufficiently certain. (Higgins v. Willes, 3 M. & Ry. 382.)
Where an arbitrator finds facts to raise a question of law he should find them with such certainty that the court may draw their conclusion of law, and he should not leave any fact to be intended by the court. (Watson on Awards, 209.)
SECT. 5.-An award must be final.
An award must finally determine all matters contained in the submission, requiring decision, and if it leave the
final decision of some of the matters to be ascertained in the future, it will not be binding on the parties. But where differences having arisen between two railway companies, proprietors of joining lines, as to the interchange and transmission of traffic, it was, under the provisions of a special Act, referred to arbitrators to determine what arrangements should be made by the two companies or either of them for affording proper facilities for such interchange and transmission, and the arbitrators made their award giving specific directions as to future traffic arrangements, but no directions as to the length of time for which such arrangements were to last, it was held not to be thereby defective, as the directions would continue until new arrangements were made under the arbitration clause in the said Act. (Eastern Union Rail. Co. v. Eastern Counties Rail. Co., 22 L. J., Q. B. 371; 2 E. & B. 530.) And an arbitrator, having to decide upon the depth at which the defendant was entitled to keep a weir, awarded that the defendant was entitled to maintain his weir to the depth of fourteen inches and no more, and added that he had caused marks to be placed, which marks pointed out the depth the defendant was to keep his weir; it was held that the award sufficiently pointed out the depth of the weir, and was sufficiently precise, although it made no provision for the case of floods, or for regulating the depth of the paddle in the defendant's weir by which the water could be let off. (Johnson v. Latham, 20 L. J., Q. B. 236; 2 L. M. & P. 205.) Where two parties agreed to be bound by the opinion of a professional man upon the construction of an Act of Parliament, and he gave his opinion in favour of one, such opinion was considered final and conclusive, though it recommended the printed statute to be compared with the Parliament roll before the matter was settled, under a doubt whether the statute was not misprinted.
(Price v. Hollis, 1 M. & S. 105.)