CHAP. XII.

Excess in reserving power to add to the award

latter directions were rejected. (Johnston v. Cheape, 5 Dow., H. L. 247.) So, where an action as to the right to the enjoyment of a watercourse was referred with all matters in difference, and the arbitrator gave some directions respecting the enjoyment of the watercourse beyond the submission, the court held the award to be bad quoad that part only, but good for the rest. (Winter v. Lethbridge, 13 Price, 533.)

If the arbitrator make a complete and final award, but add reasons for his decision which are insufficient, the reasons will be rejected. (Archer v. Owen, 9 Dow. 341; and see Re Wright, 1 Q. B. 98.)

If an award is complete and final, a reservation of a future power to alter the award may be rejected. An arbitrator to whom a cause and all matters in difference were referred, directed a verdict to be entered for the plaintiff and certain works to be done by the defendant: he then added, that as disputes might arise respecting the performance of the award, the plaintiff, if dissatisfied with it, might (on giving notice to the defendant) bring evidence before the arbitrator of the insufficiency of the work, and the defendant might also give evidence on his part in order that a final award might be made concerning the matters in difference; but if no proceedings were taken by the plaintiff within two months after the work was done the award then made should be final, and he enlarged the time for making his final award for six months; it was held that the reservation of future power by the arbitrator was bad, but that the former part of the award was final and binding. (Manser v. Heaver, 3 B. & Ad. 295; and see Goddard v. Mansfield, 19 L. J., Q. B. 305.)

If, however, the award is not in itself a complete decision of the matters in difference, a reservation of a power to complete the award renders the entire award void. (Re Tandy and Tandy, 9 Dow. 1044.)

CHAP. XII.

Unless the

void.

When the arbitrator mixes matters within and matters not within the submission, and awards upon them collectively, so that the court cannot distinguish how much excess is distinguishable of the finding relates to each class respectively, the whole award whole will be bad. A distinction prevails between an award of several things and of one entire act or thing. Where one entire thing is awarded, which is not in its nature divisible, it cannot be apportioned so as to reject a faulty and support a good part thereof, but the whole will be avoided. (Tomlin v. Mayor of Fordwich, 5 A. & E. 147.) Thus, where one entire sum is awarded to be paid, the courts cannot enter into the question what part of the sum is and what is not within the submission; and if the arbitrator has exceeded his authority in awarding any part of an entire sum the award cannot be enforced at all. (Auriol v. Smith, Turn. & R. 121; Watkins v. Phillpotts, M'Cl. & Y. 393.) Where an arbitrator to whom, before issue, a cause was referred, awarded thus, "I award and direct that a verdict in this cause be finally entered for the plaintiffs with 2487. 12s. damages," the court held that he had exceeded his authority in awarding the entry of a verdict, and as the award consisted only of one sentence that direction could not be rejected and the residue considered as an award that so much was due and to be paid, and that, therefore, the award was bad. (Jackson v. Clarke, M'Cl. & Y. 209.) And the same where an arbitrator found an indivisible plea partly for the defendant. (Moore v. Butlin, 2 N. & P. 436.)

Where an arbitrator has exceeded his power by awarding costs to be taxed as between solicitor and client, if that part of the award be separable from the rest it may be rejected and the award stand; but if it be so connected with the rest as not to be separable the whole will be vitiated. (Seckham v. Babb, 8 Dow. 167; 6 M. & W.

A.

Р

CHAP. XII

Where void part is the consideration for the rest.

Inter-dependence of good and bad part.

If by the nullity of an award in any part, one of the parties cannot have the advantage intended to him as a recompense or consideration for the thing awarded against him, the award is entirely void: as where it was awarded that A. should pay to B. 25l., and that B. should pay A. for certain task work and day work, and that the parties should give each other a general release; this award was held to be entirely void for the uncertainty of the sum to be paid for task work, which formed a consideration for the money to be paid on the other side. (Pope v. Brett, 2 Saund. 292.)

If there is any connection or inter-dependence between the good and the bad part they cannot be severed. When there is a good award standing alone, but in a subsequent part there is a reservation or delegation by the arbitrator of his authority, which runs over the whole award, this latter part vitiates the whole award. (Storke v. De Smeth, Willes, 69; Pedley v. Goddard, 7 T. R. 73.) Thus, where an arbitrator awarded that certain suits should cease, and awarded three several sums to be paid by A. to B. on three several days, and if before the last day of payment it should appear to the arbitrator that B. was engaged for A. in a debt not satisfied, then B. should repay to him so much. as the debt not satisfied amounted to, and that the parties should execute mutual releases; the court held that this reservation of power affected the whole award and rendered it wholly void. (Winch v. Saunders, Cro. Jac. 584.)

An award will be void if the decision of matters beyond his authority has affected the arbitrator's decision as to matters within his authority. (Re Marshall and Dresser, 3 Q. B. 878; 12 L. J., Q. B. 104.) So, it is presumed if the attendant circumstances make it obvious that the arbitrator would have altered his finding in the good part had he known that the remainder would be inoperative.

CHAPTER XIII.

AWARDING ON AN ACTION.

CHAP. XIII. Powers of

arbitrator on reference of

order of court.

In all cases of reference to an arbitrator under an order of the court or a judge in any cause or matter the arbitrator shall be deemed to be an officer of the court, and shall conduct the reference in such manner as may action by be prescribed by rules of court and subject thereto as the court or a judge may direct (ante, pp. 71, 148), and the award of the arbitrator shall, unless set aside by the court or a judge, be equivalent to the verdict of a jury. (Arbitration Act, 1889, s. 15.)

It must be borne in mind that the rules and observa- Action includes tions hereinafter contained as to awarding on an action, counterclaim. apply equally to awarding on a counterclaim, which is in the nature of a cross action. And a reference of "all matters in difference in the action," includes a counterclaim. (Weall v. James, 68 L. T. 54.)

When an action is referred the pleadings need not be set out in the award. (Johnson v. Latham, 20 L. J., Q. B. 236.) Apart from those cases in which the costs of the action abide the event it is not necessary that the arbitrator should find for the plaintiff or defendant in the words of the issue; it is sufficient if he decide substantially the question in dispute. (Wykes v. Shipton, 3 N. & M. 240.) On the other hand it was formerly held sufficient to find in the words of the issue without the necessity to find in express terms for the plaintiff or defendant. (Allen v. Lowe, 4 Q. B. 66; 12 L. J., Q. B. 115; Stonehewer v. Farrer, 6 Q. B. 730; 14 L. J., Q. B. 122.) But now the arbitrator must direct how judgment shall be entered (post, p. 221).

Award should

show how and

what it

decides.

CHAP. XIII.

Costs of issues.

When costs abide the event arbitrator must find on each issue.

Unless the terms of the submission empower him to do so, an arbitrator may not dispose of an action without showing in whose favour it is decided. As a general rule, where an action in which there are several issues is referred at nisi prius, the arbitrator should, if requested, direct how each issue is to be determined. (Woolfe v. Hooper, 6 Scott, 281; 4 Bing. N. C. 449; Williams v. Moulsdale, 7 M. & W. 134.) But an award on a suit in equity, that the suit should be dismissed, was held sufficient. (Knight v. Burton, 1 Salk. 75; Pearse v. Pearse, 9 B. & C. 484.)

When issues in fact and law are raised upon a claim or counterclaim, the costs of the several issues respectively both in law and fact shall, unless otherwise ordered, follow the event. (R.S.C. Order LXV., r. 2.)

When an action and counterclaim, with or without other matters in difference, are referred (Ellis v. De Silva, 50 L. J., Q. B. 328; 6 Q. B. D. 521; Lund v. Campbell, 14 Q. B. D. 821; 54 L. J., Q. B. 281; Ahrbecker v. Frost, 17 Q. B. D. 606; 55 L. J., Q. B. 477), or an action without counterclaim, but in which there are several issues, or an action and other matters in difference (Hawke v. Brear, 14 Q. B. D. 841; 54 L. J., Q. B. 315), and the costs of the action are to abide the event, the arbitrator must find upon each issue, so as to enable the officer of the court to tax the costs for the party in whose favour each issue has been found. (Goutard v. Carr, 53 L. J., Q. B. 55 ; 13 Q. B. D. 598, n. ; Kilburn v. Kilburn, 13 M. & W. 671; 2 D. & L. 33; Brooks v. Parsons, 13 L. J., Q. B. 50; 1 D. & L. 691; Bourke v. Lloyd, 10 M. & W. 550; Doe d. Starling v. Hillen, 2 Dow., N. S. 694; Pearson v. Archbold, 11 M. & W. 477; Lewis v. Curlewis, 1 B. C. Rep. 161; and see Chap. XIV.) And he should so find, though not expressly requested to do so by the parties (England v. Darison, 9 Dow. 1052), and, whether he has an award or