Where possible, Court will remedy uncertainty.

Where money

is awarded

be stated.

from them, and he should not leave any fact to be implied by the Court (Watson on Awards, 209).

The award will be made certain where such certainty can be effected without unduly interfering with its provisions, all cases of uncertainty being governed by the legal maxim, "Id certum est quod certum reddi potest." An award to pay money or execute a release is sufficiently certain although no time is mentioned for the performance of either of those actions, it being understood that such performance must take place within a reasonable time. But when an act is ordered by the award to be done, the direction should be given in unmistakeable language, and such as to leave no possible doubt on the minds of the parties who have to perform it (Price v. Popkin, 10 A. & E. 139).

Where an award directs the payment of a sum of amount should money by one party to the other, the terms should not be ambiguous, but the precise sum should be mentioned. An award that orders one party to pay the other so much money as is due in conscience, without fixing the amount is void for uncertainty (Watson v. Watson, Sty. 28). Such also would be the case where the award ordered one party to pay the other so much as the land was worth, without determining the value of such land (Titus v. Perkins, Skin. 247). Also where the award directed that one awarded must party should give security for money, without stating the nature or amount of such security, the award was held to be bad (Thinne v. Rigby, Cro. Jac. 314). "The award is bad that directs one party to pay so much for every quarter of malt as malt may be sold

Nature of security

be stated.

for at the time of the award without stating in what place the sale shall take place" (Comyn's Digest, Arb. E. 11). The price of malt being fluctuating, and selling for more in one place than another, the place of sale should in that case have been specified, in order to make the award certain. An award was also held bad that directed one of the parties to deliver up certain specified goods, three boxes and several books, without naming the books or stating their number (Cockson v. Ogle, Lut. 550). Where a cause is referred, it is not necessary for the arbitrator by his award to fix the actual amount of costs to be paid by either party. It will be sufficient if he states who is to pay such costs when ascertained. Although this appears to be somewhat contrary to the principle of certainty shown to be necessary in an award, it is accounted for by the fact of such costs being taxed by the proper officer appointed for that purpose, whose duty it is to fix the amount to be paid and thereby make the award certain. This element of certainty in an award is necessary to its validity, and if that is wanting the award will be set aside. In order, therefore, to avoid this form of procedure and the delay attendant thereon, it should be the aim of every arbitrator to make his award as clear as possible, and as certain, so that if an application is made to set it aside, it will be for some other reason than a want of certainty in its provisions.

Property

awarded must

be specified.

Arbitrator

must state the

party to pay

costs.

Certainty in award is necessary to its validity.

XLEY.

Award must be possible.

Difference between an impossible and a difficult award.

Where one of two acts awarded is impossible.

Where the act awarded is made impossible by conduct of party.

Award must be reasonable.

CHAPTER XIX.

AWARD MUST BE POSSIBLE, REASONABLE, CONSISTENT,
AND LEGAL.

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UNLESS an award is possible of performance, there might just as well be no award. If an arbitrator award an act to be done which is impossible of performance ex naturâ rei, it is void, as if he award a sum of money to be paid on a day past, or that one party shall deliver up a deed not in his custody." But there is a difference between awarding an act which it is impossible to perform, and one that is difficult to carry out; in the latter case, if it is not in itself contradictory or repugnant, it is valid, e.g., an award directing one party to pay 20l. when he is not in possession, either present or prospective, of that amount; for there is nothing contradictory in the award itself (Bacon's Abr. Arb. E. 4). If an award direct two things to be done, one of which is impossible, it is not void on that account if the other act awarded is capable of performance; and the party will be bound to do the act which is the possible alternative (Wharton v. King, 2 B. & Ad. 528). If an act awarded is possible at the time the award is made, but becomes impossible afterwards by the conduct of the party himself, or of a stranger to the submission, the party who is to perform the act is bound by the award (Comyn's Digest, Arb. E. 12). An award ought also to be reasonable, therefore an

Award must be consistent,

award that one shall serve the other for two years is void; so is an award that one party shall release his land in satisfaction of a trespass (Comyn's Digest, Arb. E. 13). In both these cases the cause of the award being void is on account of its not being reasonable. An award must also be consistent, so that one part does not contradict another. Where an arbitrator awarded that A. should pay B. 100%., and that both should give general releases, and subsequently that B. should pay A. 201., the award was held bad (Ames v. Milward, 8 Taunt. 367). The inconsistency of this award is clearly apparent, for after mutual releases by the parties of their claims against each other had been executed, it is difficult for an ordinary observer to see why B. should then pay 201. to A. An award would also be void if an arbitrator acquitted one of the parties of all blame in the matter referred, and then gave his award against him, there again being an inconsistency which appears unaccountable (Ames v. Milward, supra). An award must be legal, as, notwithstand- and legal. ing the fact that an arbitrator has great power given to him by his position, he is not, like the king,

66

above all law," but is bound to make his award in accordance with it; therefore, if an award direct any act to be done that is illegal and contrary to the law, the award is bad, so far as that act is concerned, as where a sum of money due to one of the parties, and stated on the face of the award to have arisen out of some illegal transaction between the parties, the award directing such sum to be paid was held bad, as regards that amount only. Although Sunday is not

Award should be mutual.

considered a lawful day for the transaction of business, an award directing money to be paid on that day would not be bad (Hobdell v. Miller, 6 Bing. N. C. 292).

In the previous edition of this work we endeavoured to show that an award should be mutual, in other words, "Awards must not be on one side only, for as all disputes referred to arbitration are those between two parties, that which is awarded to be done to one must be an advantage to both, so as to end the controversy and discharge one from his obligation and give satisfaction to the other; for if it do not, it is manifestly unjust, and, therefore, whenever it appears to the Court that notwithstanding the award the thing remains a duty as before and is not discharged, that apparently is an award on one side, and consequently void" (Bacon's Abr. Arb. F. 3). This idea of mutuality, which seems to have pervaded the minds of the old law-writers, is not now insisted upon so strongly as formerly, partly from the fact that greater latitude is, in these latter times, given to the interpretation of legal decisions, and partly from the fact that arbitrators take a wider view of matters brought before them, and act not so much up to the letter as in the spirit of the law. We may, therefore, dismiss mutuality from our consideration, as the awards of the present day are, as a rule, founded upon a broader basis, and endeavour by the justice of their decisions to supply the place held by the mutuality of old.