.

the liabilities upon a certain bill of exchange, and likewise in a certain action, and upon a certain unsatisfied judgment, had not been awarded upon were held bad, because the arbitrator by having ordered mutual and general releases must be deemed to have adjudged and finally decided the matter of those pleas. Wharton v. King (K. B. 1831), 2 B. & Ad. 528. Compare Goddard v. Mansfield (1850), 19 L. J. Q. B. 305 (stated under No. 13, p. 449, post), where, all the matters having been specifically awarded upon, the clause as to mutual releases was held superfluous and separable.

Another point decided in Wharton v. King (supra) is that, if an award directs one of two things to be done, one of which it is impossible for the person to perform, he is obliged to perform the other, and the award is good. On this see further Lee v. Elkins (1701), 12 Mod. 585 (No. 13, post, p. 441).

An award in a partnership dispute which directed one of the parties to pay a sum of money to one of the arbitrators to be applied in the payment of certain specified debts due by the firm has been held bad, because there would have been no means of enforcing the proper application of the fund. Re Mackay (1834), 2 Ad. & El. 356. But in the case of Wood v. Adcock in the Exchequer Chamber (1852), 7 Ex. 468, 21 L. J. Ex. 204, where on a submission between A. and B. the award directed B. to pay S., one of the arbitrators, a sum of and money, ordered that immediately on the receipt thereof the sum should be paid over by S. to A., it was held in an action on the award that the award was good.

Under a reference of all matters in a cause, the arbitrator by his award stated that the plaintiffs had claimed certain sums before him as matters in difference, but that he (the arbitrator) by his award declared and determined them not to be so; and he then awarded in favour of the plaintiff as to other matters. The Court set aside the award for want of finality, although the plaintiff by affidavit stated that the demand as to the matters not awarded upon had been admitted by him before the arbitrator not to be in difference in the present cause, and had been abandoned by him as a demand in the cause. Samuel v. Cooper (1835), 2 Ad. & El. 752.

In Stone v. Phillips (C. P. 1837), 4 Bing. N. C. 37, where four actions and all matters in difference were referred, and the arbitrator awarded on the four actions, but did not award upon a fifth action which was one of the matters in difference, the award was held bad in toto.

In Bowes v. Fernie (1838), 4 My. & Cr. 150, an award was set aside by the Court of Chancery on the grounds, 1st, that the arbitrators had awarded on a matter not referred to them (and as to which

the matter could not be separated from the other parts of the award); and 2ndly, that they had declined to arbitrate upon matters included in the reference.

In a dispute between landlord and tenant as to repairs and fixtures, the arbitrator (inter alia) ordered the plaintiff "to fix and set up other grates, locks, bolts, and fastenings in the place and stead of such as were removed as aforesaid." This, besides that it was an excess of the authority in the submission, was held bad for uncertainty, and the whole award was vitiated. Price v. Popkin (Q. B. 1839), 10 Ad. & El. 139.

In a partnership suit between W. & P. all matters in difference were referred to arbitration. One of the questions in difference was whether W. or P. ought to be ultimately liable upon a promissory note made by P. and indorsed by W. The arbitrator by his award, amongst other things, declared that the liabilities of P. on the note, as between P. and W., should remain unaffected by the award. Held, that the award was not final, and was therefore bad. Wilkinson v. Page (1842), 1 Hare, 276.

In the arbitration in the matter of Marshall and Dresser (Q. B. 1842), 3 Q. B. 878; 12 L. J. Q. B. 104, the award set out the reference, showing that there were disputes relating to accounts, &c., including a transaction about yarn for which five bills of exchange for £1000 each were given, and then awarded as to the property in the bills, but not as to the accounts or damages in respect of the transaction as to the yarn. The Court made absolute a rule to set aside the award.

If the arbitrators do not agree on all points, then, by intendment of law, the umpire must adjudicate upon the whole question. Wicks v. Cox (1847), 11 Jur. 542.

On a reference as to the amount of composition of tithe, the arbitrators awarded that a certain sum should be paid provided the whole lands were subject to tithe, but if they were only subject to tithes according to a certain specified terrier, then a different sum should be paid. This was held bad for uncertainty. Goode v. Waters (Ch. 1849), 20 L. J. Ch. 72.

A reference of all matters in difference, including the liability to an indictment touching the public intereste. g. for non-repair of a public highway for which the delinquent is liable ratione tenuræ illegal. Reg. v. Blackemore (1850), 14 Q. B. 544.

is

In Bhear v. Harradine (1852), 7 Ex. 269; 21 L. J. Ex. 127, there had been a reference under a Judge's order of all matters in difference. One matter in difference was whether a partnership existed between the parties during a certain period, and another was whether, if such partnership ever did exist, it had been put an end to. The award found

that if any co-partnership ever existed between them, the same was dissolved and put an end to, by their mutual consent and agreement, on the 30th of August last past." The Court held that the award was bad, because it did not decide whether there ever was a partnership or not; that being one of the matters expressly referred by the parties to the arbitrator.

By a reference, after reciting in general terms that differences had arisen relating to a former partnership, it was agreed amongst other things that the claims and demands of H. against W. in respect of the differences and matters aforesaid and all matters in dispute between them, and the amount to be paid for the shares, should be referred. The arbitrator awarded the payment of a lump sum in satisfaction of all claims including the amount to be paid for the shares. The Court refused to set aside the award. The question was, did the submission contain anything clearly requiring the arbitrator to decide separately the matters referred to him. Whitworth v. Hulse (1866), L. R., 1 Ex. 251, 35 L. J. Ex. 149.

The following statement of the law by BLACKBURN, J., in The Duke of Buccleuch v. Metropolitan Board of Works (1870), L. R., 5 Ex. 221, 229, may (although the decision itself was overruled by the House of Lords, see No. 15, p. 455, post) be regarded as sound and authoritative: "An award is the decision of one having a limited authority to determine those matters submitted to him by the parties (or by a statute), and no other. And from this it follows that if that limited authority has not been pursued and the arbitrator has awarded something beyond the authority, the award is pro tanto void, and if the void part is so mixed up with the rest that it cannot be rejected, the award is void altogether; otherwise those against whom the award is made would be compelled to fulfil the void part."

It is clear that an arbitrator cannot delegate his authority. If the award contains any clause in which the authority is left to another, that is clearly bad; and if the clause is not separable (see No. 12, infra), the whole award is void for uncertainty. Tomlin v. Fordwick (Mayor, &c.) (K. B. 1836), 5 Ad. & El. 147, cited at length at p. 439, infra; Johnson v. Latham (1850), 19 L. J. Q. B. 329, cited at length p. 440, infra.

The arbitrators however may call in and act upon the advice of an expert. Anderson v. Wallace (1835), 3 Cl. & Fin. 26; Gray v. Wilson (1865), L. R., 1 C. P. 50, 35 L. J. C. P. 123; Caledonian Railway Co. v. Lockhart (1860), 3 Macq. 808; but so that he does not leave to the judgment of another the matters on which it is intended he should exercise his own judgment. Eastern Counties Railway Co. v. Eastern Union Railway Co. (1863), 3 De G. J. & S. 610.

Nos. 8, 9. Randall v. Randall, &c. — Notes.

It is not a ground for avoiding an award that the arbitrators have taken advice on a point of law in presence of one of the parties who did not interfere, and where the only result was that correct information was obtained upon the law. Rolland v. Cassidy (1888), 13 App. Cas. 770, 57 L. J. P. C. 99.

It was observed by Lord ABINGER in Gisbourne v. Hart (1839), 5 M. & W. 50, 58, 8 L. J. Ex. 198, that it used to be the practice under the old form of pleading, when an award good on the face of it was pleaded, to reply specially matter dehors the award which went to nullify it, or if the award was bad on the face of it to demur. This remark is borne out by the old cases. Morgan v. Man (1644), 1 Sid. 180; Harding v. Holmes (1745), 1 Wils. 122; and Fisher v. Pimbley (1809), 11 East, 188. But in Dresser v. Stansfield (1845), 14 M. & W. 822, 15 L. J. Ex. 274, it was laid down that the plea of "no award" meant "no valid award," and that a plea setting forth in detail that the arbitrator had not awarded on all the issues in the cause referred to him was bad, as an argumentative denial that there was a valid award. This decision was followed in Armitage v. Coates (1849), 4 Ex. 641, 19 L. J. Ex. 95. And in Williams v. Wilson (1853), 9 Ex. 90, 23 L. J. Ex. 17, it was held that a plea setting out the award verbatim and then averring simply that it was not a final award, was a correct form of raising the question.

Where the arbitrator desires the aid of the Court in determining a point of law, there are two courses open. He may either obtain a consultative opinion of the Court under the 19th section of the Arbitration Act 1889; or he may make his award in such a manner as to leave the final determination to the Court.

By the 19th section of the Arbitration Act 1889, "Any referee, arbitrator or umpire may, at any stage of the proceedings under a reference, and shall, if so directed by the Court or a judge, state in the form of a special case for the opinion of the Court any questions of law arising in the course of the reference." It has been held by the House of Lords that the power of the Court to direct the arbitrator to state a special case for the opinion of the Court is not inconsistent with the clause (s. 36) of the Building Societies Act 1874, which says that a determination by arbitrators under that Act shall be final, provided that the arbitrator may at the request of either party state a case for the opinion of the Supreme Court; and that the Court has therefore power under the Act of 1889 to direct an arbitrator under the Building Societies Act to state a special case. Tabernacle Permanent Building Society v. Knight (Knight v. Tabernacle Permanent Building Society), (1892), 1892, A. C. 298, 62 L. J. Q. B. 50. And it was decided by the Court of Appeal in the matter of the same

Nos. 8, 9. - Randall v. Randall, &c.— Notes.

arbitration (Knight v. Tabernacle Permanent Building Society), (1892), 1892, Q. B. 613, 62 L. J. Q. B. 33, that no appeal lies from the decision of the High Court upon a special case stated with regard to a question arising in the course of the reference under this section (19) of the Arbitration Act 1889. For the opinion of the Court so obtained is of a consultative character, and not in the nature of a judgment or order subject to appeal under the 19th section of the Judicature Act 1873. The Court of Appeal here followed the judg ment in Ex parte County Council of Kent (29 April, 1891), 1891, 1 Q. B. 725, 60 L. J. Q. B. 435, where the language of the Act giving the power to state a special case was to state the case for the "decision" (a stronger expression) of the Court.

But it is also competent for the arbitrator, under the practice which grew up under the C. L. P. Act 1854, s. 5, to state his award in the form of a special case, and in such a manner that the determination one way or other is to depend upon the opinion of the Court on the case stated by him; and, where that is done, the opinion of the Court is an effective determination of the rights of parties, and is subject to appeal like any other judgment. Re Kirkleatham Local Board and Stockton, &c. Local Board (C. A. 9 Dec. 1892) 1893, 1 Q. B. 375, 62 L. J. Q. B. 180. The judgment in this case was appealed to the House of Lords and there affirmed (31 July, 1893), 1893, A. C. 445; but the decision of the Court of Appeal upon the point here referred to was not called in question.

AMERICAN NOTES.

The award must be final, certain, and conclusive. Coghill v. Hord, 1 Dana (Kentucky), 350; Walsh v. Gilmor, 3 Harris & Johnson (Maryland), 383; 6 Am. Dec. 502; Remelee v. Hall, 31 Vermont, 582; 76 Am. Dec. 140. An award that a party may maintain flash-boards on a dam except in times of "freshet" is void for uncertainty. Harris v. Social Manuf. Co., 9 Rhode Island, 99; 11 Am. Rep. 224. See Whitcher v. Whitcher, 49 New Hampshire, 176; 6 Am. Rep. 486; Colcord v. Fletcher, 50 Maine, 398.

It must be final. Cox v. Jagger, 2 Cowen (New York), 638; 14 Am. Dec. 522; Smith v. Potter, 27 Vermont, 304; 65 Am. Dec. 198. But it may refer to and adopt a judicial report previously made. Brickhouse v. Hunter, 4 Henning & Munford (Virginia), 363; 4 Am. Dec. 528; Walsh v. Gilmor, supra. But such instruments must accompany or be fully described in the award. Hollingsworth v. Pickering, 24 Indiana, 435.

It must embrace all matters submitted. Bancroft v. Grover, 23 Wisconsin, 453; 99 Am. Dec. 195, citing the first principal case; Smith v. Potter, supra ; Byars v. Thompson, 12 Leigh (Virginia), 550; 37 Am. Dec. 680; Carnochan v. Christie, 11 Wheaton (U. S. Sup. Ct.), 446; Tudor v. Scovell, 20 New Hampshire, 171; Harker v. Hough, 7 New Jersey Law, 428; Walker v. Shannon, 44 Connecticut, 480; Boston, &c. R. Co. v. Nashua, &c. R. Co., 139 Mas