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Final as the case admits.
If the award be as final as the nature of the thing will admit, it is sufficient. (Philips v. Knightley, 2 Stra. 903.) So, if it award the very thing that the parties have agreed shall be done. (Miller v. De Burgh, 19 L. J., Ex. 127; 4 Ex. 809.)
An award must be one entire instrument or direction, for an arbitrator can make but one award, even within the time limited for his award, unless by express or implied authorization in the submission. (Wrightson v. Bywater, 3 M. & W. 206.) Thus, where by an order of reference a cause and all matters in difference between A. and B. were referred, and by a subsequent order, made after the first reference had commenced, it was directed that C. should be made a party thereto as if he had been an original party, and that a cause between A. and C. and all matters in difference between A., B., and C., each and every of them, jointly and severally, should be referred to the same arbitrator; and the arbitrator made two awards, in one of which he awarded that A. was indebted to B. without mentioning C., and in the other that A. was indebted to C. without mentioning B.; it was held that both awards were bad, and that the arbitrator had not properly performed his duty, as there was no one award determining all matters in difference between all the parties. (Winter v. White, 2 Moore, 723.) But where a general verdict was taken for the plaintiff on all the issues in an action, subject to a reference of that and another cross action between the same parties in which issue had not been joined, with power to the arbitrator to make an award or certificate, and the arbitrator delivered two papers containing two certificates, it was held that it might be intended that both were made at the same time, and, if so, they would be one instrument containing the decision of each cause, written on separate papers for the purpose of being applied to the separate causes. (Smith v. Reece, 6 D. & L. 520.)
If empowered by the submission the arbitrator may CHAP. XII. make several awards. (Dowse v. Coxe, 3 Bing. 20; unless emWrightson v. Bywater, 3 M. & W. 199.) Arbitrators in
a reference under the Railway Companies Arbitration sion to make Act, 1859, may make several awards, each on part of several, the matters referred. (22 & 23 Vict. c. 59, s. 21.)
Awarding a voluntary performance is bad.
We have seen (ante, sect. 3) that where several matters are referred, and some only are decided, the award is bad, and it is bad because it is not a final settlement of the matters in difference between the parties. (Samuel v. Cooper, 4 N. & M. 520; Ross v. Boards, 8 A. & E. 290.) Where an arbitrator set out the facts on the face of Conditional finding. his award, and then awarded in favour of the defendant, but concluded that if the court should be of opinion. upon the facts that the plaintiff was entitled to recover, then he awarded in favour of the plaintiff, it was held that the arbitrator had come to a final conclusion, and expressed his own opinion, and that the last clause might be rejected. (Barton v. Ranson, 3 M. & W. 322.) An award leaving the result conditional upon the voluntary performance of an act by the one party is generally bad. (Crofts v. Harris, Carth. 187.) Thus an award that if A. give up his shares B. shall pay him a certain sum is bad; it should be that A. shall give up his shares and that B. shall pay the sum (Baillie v. Edinburgh Gas Co., 3 C. & F. 639); and a direction that the plaintiff should accept a bill of sale was held bad because it did not direct the defendant to give the bill of sale. (Clapcott v. Dary, 1 Ld. Raym. 611.) But an award of a lease of certain premises to the defendant, and providing that if the rent awarded to be paid by him, were not paid, the award should be void, was held good on the ground that the conditional award became absolute if the defendant paid the rent, and if he did not he lost the enjoyment by his own default. (Furser v. Prowd, Cro. Jac. 423.)
An award containing a proviso that upon the happenProviso void- ing of a subsequent event (whether the event is within ing the award the control of the parties or not) the award shall be wholly void is bad, as not being final (Kinge v. Finis, Sid. 59); thus a proviso that if either party were dissatisfied with the award and within a specified time paid a small sum to the other the award should be void and the parties be at liberty to proceed against each other as before the award, was held not final. (Sherry v. Richardson, Pop. 15.)
An award to be altered by subsequent proof.
Where the award is to be altered by the subsequent oath or proof of one of the parties, this vitiates the whole award; thus an award, that if the plaintiff on account prove certain articles against the defendant, then he shall pay so much money as the plaintiff was damnified thereby, is not final. (Selby v. Russell, Comb. 456.) So an award depending on something to be subsequently ascertained is bad: thus an award that a certain sum should be paid in lieu of tithes provided the whole lands were subject to tithes; but if only subject to tithes according to a specified terrier then a different sum, was held void. (Goode v. Waters, 20 L. J., Ch. 72.)
Any delegation or reservation of their authority by reservation of arbitrators will vitiate their award, for an award would authority. not be final that left anything to the future judgment or power of the arbitrators or of any other person; thus a direction to leave so many trees on land, for house-bote, and hedge-bote, as the arbitrator upon advice with counsel shall appoint (Thinne v. Rigby, Cro. Jac. 314); or a proviso that the doing of a certain act awarded shall depend upon the after-given consent of the arbitrator (Lindsay v. Lindsay (1860) 11 Ir. C. L. Rep. 311), is bad. So an award that as to the whole or part of the matters submitted the parties shall abide by the decision of a third person (Lower v. Lower, Rolle, Ab. "Arb." H. 11; Johnson v. Latham, 19 L. J., Q. B. 329); as,
for example, an award that defendant should within a time named put certain premises in repair to the satisfaction of M. (Tomlin v. Mayor of Fordwich, 5 A. & E. 147.) An award that the defendant should pay to the plaintiff a certain sum unless he should within twentyone days exonerate himself by affidavit from certain payments and receipts, and in that case he was to pay a less sum, was held to be bad, as it left the sum to be decided by the defendant himself. (Pedley v. Goddard, 7 T. R. 73.) So an award that A. should pay B. 50l., and beg his pardon at such time and place as B. should appoint, was void for delegating the appointment of time and place to B. (Glover v. Barrie, 1 Salk. 71.)
An arbitrator, when he awards a conveyance to be executed, need not draw it himself, but he should indicate the form of it, and not leave that in the discretion of the draftsmen employed; thus an award ordering certain parties to execute such conveyances, releases, and assurances as should be necessary to pass their interest, and not stating the form of conveyance, but providing that if any dispute should arise as to the form it should be decided by such counsel or attorney as the arbitrator should appoint, was void. (Re Tandy, 9 Dow. 1044; Goddard v. Mansfield, 19 L. J., Q. B. 305.)
Any proviso in an award by which an arbitrator professes to reserve to himself power over future differences is void. (Manser v. Heaver, 3 B. & Ad. 295.)
Where part of the matter in dispute is reserved for Reserving or future litigation the award is not final. (Turner v. excepting Turner, 3 Russ. 494.) And where, on a reference arising out of a dissolution of partnership, the arbitrator directed that a matter referred as to liability on a promissory note should not be affected by the award, the award was held bad. (Wilkinson v. Page, 1 Hare, 276.) But where a cause and all matters in difference were referred, and the arbitrator awarded as to all except a
CHAP. XII. certain claim by the plaintiff for a loss on hats, and as to that he found that no sufficient evidence was laid before him to show that any loss had been sustained at the date of the reference, this was held sufficiently final. (Cockburn v. Newton, 2 M. & G. 899; 9 Dow. 676.) In a similar case the award, after deciding that the plaintiff had no cause of action, stated that it was not intended to exclude him from the receipt of a certain commission to which he would subsequently become entitled under an agreement; the court held it sufficient, as it in fact determined that there was nothing due on the agreement at present, and the arbitrator was only empowered to decide on matters up to the date of the submission. (Harding v. Forshaw, 1 M. & W. 415.)
An award bad
SECT. 6.-An Award must not be impossible, unreasonable, inconsistent, or illegal.
An award that one of the parties shall do an act out as impossible. of his power is bad; as that one party shall deliver up a deed which is in the custody of another (Lee v. Elkins, 12 Mod. 585); or that he shall procure a stranger to be bound with him as a surety. (Thirsby v. Helbot, 3 Mod. 272.) But it is no objection to the award that it is difficult for the party to perform it from the accidental narrowness of his circumstances, as if he be to pay 201. when he has no property. And an award of an impossible act with a possible alternative is good. (Wharton v. King, 2 B. & Ad. 528.) If an act awarded is possible at the time of the award, the party is bound by the award though the act afterwards becomes impossible by the conduct of himself or a stranger. (Com. Dig. "Arb." E. 12.)
An award must be reasonable. Instances of unreasonable awards are furnished in the old cases. Thus