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an award that one party shall give a horse or release his right to certain land in satisfaction of a trespass, or erect a stile on the land of another, is so unreasonable as not to be binding upon the party. (Ross v. Boards, 3 N. & P. 382.) So an award that one party shall serve the other two years in satisfaction of an action (Rolle, Ab. 'Arb." B. 12), or pay the other 300l. to repair his honour for calling him a bankrupt knave. (3 Rep. in Ch. 76.)
If one part of an award be inconsistent with the Contradicother it will be bad, as where an arbitrator awarded tory. that A. should pay B. 100l., and that both should give general releases, and that at a subsequent time B. should pay A. 201., the award was held bad. (Storke v. De Smeth, Willes, 66.) So, in an action founded on fraud, where the arbitrator expressly acquitted the defendant of all fraud, and then awarded against him. (Ames v. Milward, 8 Taunt. 637.) But an award that the defendant should pay to the plaintiff 50l. towards the costs of the cause and reference, and that the plaintiff should pay his own and the defendant's costs of the same, has been held not to be inconsistent. (Seckham v. Babb, 8 Dow. 167; 6 M. & W. 129.) And where a cause and all matters in difference were referred, costs to abide the event, and the arbitrator found several of the issues inconsistently, the court held the award good, regarding all the findings after the first as hypothetical and only for the purpose of distributing the costs. (Duke of Beaufort v. Welch, 10 A. & E. 527.) In a reference of an action of debt, the pleas of nunquam indebitatus and payment may both be consistently found for the defendant, for if on a trial the plaintiff had failed in proof of his case, and the defendant proved payment, the verdict would be entered for the defendant on both issues. (Malony v. Stockley, 2 Dow., N. S. 122; 4 M. & G. 647; and see Cooper v. Langdon, 9 M. & W. 60; 10 M. & W. 785.)
Mutuality in an award.
In an action of trespass referred by order of nisi prius, to which the defendant pleaded not guilty, and secondly a justification, the arbitrator (who was a layman) awarded "that as the defendant had not proved his plea the verdict ought to stand," and then added a number of reasons which could not be considered satisfactory, the court held the adjudication sufficient, and declined to consider the sufficiency of the reasons assigned by the arbitrator. (Archer v. Owen,
9 Dow. 341.)
If an arbitrator direct an act to be done which is contrary to the law the award is so far bad. (Alder v. Savill, 5 Taunt. 454; Turner v. Swainson, 1 M. & W. 572.) Thus an award directing a party to commit waste or a trespass, or to do an act amounting to a crime, is bad. But it seems that if the doing of an act is against some rule of practice merely it is not bad. (Re Badger, 2 B. & A. 691.) If a sum of money be awarded to be paid on a Sunday the award is not bad. (Hobdell v. Miller, 6 Bing., N. C. 292; 2 Scott, N. R. 163.) If a sum awarded appear on the face of it to have arisen out of some illegal transaction the award will be bad pro tanto. (Aubert v. Maze, 2 B. & P. 371 ; and see Steers v. Lashley, 6 T. R. 61.) Though it has been held that the illegality must be apparent on the face of the award. (Cramp v. Symons, 1 Bing. 104.)
Where an award recited a clause in the submission which provided that documents should be admitted in evidence without a stamp, but it did not appear that the arbitrator had admitted any unstamped documents, the award was held good. (Phillips v. Higgins, 20 L. J., Q. B. 357.)
Formerly great stress was laid upon the necessity of mutuality in an award, but the decisions on this point have long ceased to have any practical value, for it is difficult to conceive any case in which, the submission
itself being binding, an award extending to all matters submitted, and not exceeding the submission, would be set aside on the ground of want of mutuality.
SECT. 7.-Award bad in Part.
An award may be good in part and bad in part when the subject is clearly capable of being separated; and that part which is good may be enforced, provided it be in itself a final determination of all matters submitted, and perfectly distinct from and independent of that part which is bad. (Candler v. Fuller, Willes, 64; Auriol v. Smith, Turn. & Russ. 121; Addison v. Gray, 2 Wils. 293; Lee v. Elkins, 12 Mod. 585; Stone v. Phillipps, 6 Dow. 247; Kendrick v. Davies, 5 Dow. 693); and the faulty direction will be set aside or treated as null.
The bad part must be wholly severable from the rest of the award. If the bad part is so mixed up with the rest that it cannot be rejected, the award is void altogether. (Duke of Buccleuch v. Metropolitan Board of Works, 39 L. J., Ex. 137; L. R., 5 Ex. 229, per Blackburn, J.; Re Tandy and Tandy, 9 Dow. 1044.)
"I always find a difficulty," said Lord Denman, C.J., "in separating the good part of an award from the bad. The arbitrator probably frames one part with a view to the other; and each may be varied by the view which he takes of the whole." (Tomlin v. Mayor of Fordwich, 5 A. & E. 152.) This observation will indicate the difficulty of laying down any general rules as to the divisibility of awards.
Award bad in part may be good for residue if all matters well decided.
The good and be distinct.
the bad must
The most numerous class of cases in which the doctrine Severability of divisibility has been allowed to operate, is where the arbitrator has exceeded his authority by awarding on matters, some within, and some beyond, the submission.
If the award is for one of the parties to do several
to be per
formed by one of the parties.
CHAP. XII. things, some of which are beyond the submission, the award as to the latter is mere surplusage. Thus an award directing the defendant to remove certain hatches, part of which belonged to him absolutely, but in other parts of which he had only a share; at the same time providing that the award should affect the latter only so far as his interest extended, was held good as to all but that part in which the defendant might show his inability to proceed. (Re Doddington and Bailward, 8 L. J., C. P. 331; 7 Dow. 640.)
Where mutual performances
awarded, but are not interdependent.
If the award is to be performed partly by the one and partly by the other party, but the thing awarded beyond the submission forms no part of the consideration for or element in the performance of that part which is within the submission, the excess may be rejected and the rest of the award sustained. Thus, an award that the defendant should pay a certain sum due on the banking account of the defendant with the plaintiffs, and that the plaintiffs should pay certain sums to the defendant in respect of certain other disputed accounts between the plaintiffs and the defendant and strangers, which accounts were not included in the submission, the matter not within the submission was rejected and the rest of the award held good. (Ingram v. Milnes, 8 East, 445.) Where the If the excess is part of the consideration for the excess constimatters which are well awarded, but the consideration tutes part of the considera- can be apportioned to the matters within the submission, the excess will be rejected. Thus an award of a release up to the time of the award is void only as to the time between the submission and the award. (Cooper v. Pierce, 1 Ld. Raym. 116; Pickering v. Watson, 2 W. Bl. 1117.) If the arbitrator award mutual releases on payment of a sum over which he has jurisdiction, and also of a sum over which he has none, the award is good as to the former. (Kendrick v. Davies, 5 Dow. 693.) And if an award be bad as to the direction of mutual releases
tion for the award.
where they are awarded, that will not vitiate the whole. CHAP. XII. (Doe d. Williams v. Richardson, 8 Taunt. 697.) These cases would be equally referable to the rule that the direction as to releases might be rejected and leave the award a complete adjudication. (See Goddard v. Mansfield, 19 L. J., Q. B. 305.)
If an arbitrator have no power over costs, and he Excess as to assume in his award to give directions as to costs, such costs, directions do not vitiate the award, but will be rejected and the other portions enforced. (Aitcheson v. Cargey, 13 Price, 639; 2 Bing. 199; Kendrick v. Davies, 5 Dow. 693; Wilson v. Doolan, 5 Ir. Jur. 136.) Where an arbitrator having power, but not being or on matter bound by the terms of the submission to give directions as to a particular matter, gives a direction which is invalid, the whole award is not thereby vitiated, but the invalid direction may be treated as surplusage. (Nicholls v. Jones, 20 L. J., Ex. 275; 6 Ex. 373; Lewis v. Rossiter, 23 W. R. 832.)
Where an arbitrator, having decided the actual Complete matters in controversy in terms which, if they stood decision followed by alone, would amount to an unimpeachable award, unwarranted proceeds to give a direction which he has no power to give, the excessive direction may be disregarded. Thus, where an arbitrator without authority ordered a verdict to be entered, but the award disposed of all matters referred independently of the verdict, that part of the award was rejected and the rest held good. (Price v. Popkin, 2 P. & D. 304; Doe d. Body v. Cox, 15 L. J., Q. B. 317.) In like manner when the arbitrator, having found on all the issues, awarded a stet processus, having no authority to do so, this part of the award was held separable from the rest. (Ward v. Hall, 9 Dow. 610.)
Where an arbitrator, after directing the execution of certain works, and making a complete decision, proceeded to give directions as to their future repair, the