131.

Unless after due notice any one does not attend, see Templeman v. Reed, 9 D. P. C., 966; Re Young, 13 C. B., 623, 627, otherwise the award will be a nullity.

Any form of words that amounts to a decision of the questions referred will be good as an award. No recitals or technical or formal expressions showing authority and the like are necessary. But since awards often bind valuable rights for all time, it is incumbent on the arbitrator to be very precise and clear in his adjudication. In Whitehead v. Tattersall, 1 A. & E., 491, "I have surveyed and estimated the several works necessary to be done in repairing the dilapidations to a house, and find the same to amount to £55-5s," was held a conclusive award, binding on the parties. So in Matson v. Trower, Ry, & Moo., 17, the words "I am of opinion that A. is entitled to claim of B. £134 for non-performance of his contract," were held to be a sufficient award. But where the arbitrator wrote a letter to A. and B., the parties, in which he said, "To meet the circumstances in a liberal manner, I propose that B. should pay A. £10," this was not considered an award, because it did not express a decision that A. was entitled to the £10, but only recommended that that sum should be given him. Lock v. Vulliamy, 2 N. & M.,

336.

Every award must be one and entire,' not made at different times about various portions of the subject-matter of controversy. It must be 'final,' upon all the matters referred, so that nothing may remain to be decided: though an award in the alternative is good. It must be 'certain,' free from all ambiguity as to the arbitrators meaning. It must be 'mutual,' so that each party may get something, e. g. a discharge. Lastly it must be 'possible, reasonable and consistent.' Russell Arb., P. II, c. 5.

There appears to be no mode of enforcing the submittal of the award when made. In England it has been determined that there is no summary jurisdiction in the courts over an arbitrator. Dosset v. Gingell, 2 M. & G., 870.

The persons who made it.-All of them must sign, each in the presence of the others: and one who does not sign must nevertheless be present when others sign. See the notes above.

517. Upon any reference by an order of Court, the arbitrators or umpire Arbitrators or umpire may, with the consent of the Court, state the award as to the whole or any part thereof in the form of a may state special case. special case for the opinion of the Court; and the Court shall deliver its opinion thereon; and such opinion shall be added to and form part of the award.

mutandis from Sec. 5 of the And on reading that enactment

This section is copied mutatis Common Law Procedure Act, 1854. by the light of Russell Arb., P. II., c. 5, s. 8, it seems to be clear that the only questions proper to submit to the court in a 'special case' of the kind are questions of law, and that the arbitrator should himself decide, and finally, all questions of fact, and at the same time draw therefrom the necessary inferences. See also Jephson v. Hawkins, 2 M. & G., 366. Also it appears to be unobjectionable for the arbitrator to decide all or some of the questions of law subject to the opinion of the court; and to record hypothetical findings dependent on the adoption by the court of one or other of various views suggested by him.

The questions submitted should come last after the facts and inferences and other things have been fully stated, in the following manner: The question (or questions) for the opinion of the Court is (or are):-First. Whether (&c.) Second. Whether (&c.)

Provision is made in the above statute enabling the court to order that judgment be entered according to the opinion of the court : and in like manner Sec. 522 of the Code provides for the court passing judgment" according to its own opinion on the special case." 518. The Court may, by order, modify or correct an award,

Court may, on application, modify or correct award in certain cases.

(a) where it appears that a part of the award is upon a matter not referred to arbitration, provided such part can be separated from the other part and does not affect the decision on the matter referred, or

(b) where the award is imperfect in form, or contains any obvious error which can be amended without affecting such decision.

Provided such part can be separated.-Before the time of King James the First, according to Holt, C. J., an award void in part was considered void altogether: but now it is quite clear that an award bad in part may often be good for the rest. If notwithstanding that some portion of the award is clearly void, the remaining part contain a final and certain determination of every question

submitted, the valid portion may frequently be maintained as the award, though the void part be rejected. The bad portion however must be clearly separable in its nature, in order that the award may be good for the residue. When it is so divisible, the faulty direction will alone be set aside, or treated as null. Russell Arb., P. II, c. 5, s. 9.

For example, where the award orders the defendant to pay one sum to the plaintiff and another to a stranger, or to execute a lease for life of certain lands to the plaintiff, with remainder in fee to a stranger, the defendant has been compelled to give the plaintiff what the award directs, though he is not bound to obey the arbitrator as far as regards the stranger.

It may be observed however, with regard to many cases, that although the courts have refused to allow the party who is ordered to do certain acts to object that the award is wholly void because the arbitrator has awarded something within, and also something beyond his power, yet it by no means follows that in many of them the award would not have been set aside in toto, had the complaint come from the other party that he could not, by reason of the badness of the award in one particular, receive all the benefit the arbitrator contemplated to give him. Taylor v. Shuttleworth, 8 Dowl. 281.

In the case of an alternative award, if the award be bad as to one alternative, as if it be impossible or uncertain, the award is good and absolute as to the other. Simmons v. Swaine, 1 Taunt, 548.

Imperfect in form.-In making his award the arbitrator must follow the directions (if any) of the submission in form: for wherever a special authority is created, those who give it have a right to annex to it their own terms, with which he on whom it is conferred must comply. Therefore when the submission provides that the award be in writing under the hand of the arbitrator, the award to be valid must be under the arbitrators hand as well as in writing; when it is to be in writing under the hand and seal of the arbitrator, an award in writing only is insufficient. If the submission be silent as to form, the arbitrator is at liberty to make his award with

such formalities as he pleases. And, unless prescribed by the submission, the award need not necessarily be in writing, for a verbal award is perfectly valid. Russell Arb., P. II, c. 5, s. 1.

Obvious error.-In England the court has no power to alter or amend the award: nor has the arbitrator himself. The error here contemplated would appear to be such an error as writing a wrong name, wrongly adding up items, putting a wrong date, and the like.

519. The Court may also make such order as it Order as to costs of thinks fit respecting the costs of the arbitration, if arbitration. any question arise respecting such costs and the award contain no sufficient provision concerning them.

Costs of the arbitration-That is, I apprehend, the necessary costs of the proceedings upon the reference. See under Chapter XVIII.

Where the submission contains no direction as to the costs the arbitrator may award the costs of the action, Firth v. Robinson, 1 B. & C., 277, as they are a matter in difference, but not the costs of the reference, Candler v. Fuller, Willes, 62. In such case each party bears his own costs of the reference, and his share of the costs of the award. Lush, p. 1057.

With regard to the remuneration of the arbitrator, it is said to be like that of a physician or barrister, and to be at the discretion of his employers. And he cannot sue for it, unless there has been an express promise to pay, for which of course the taking on him the burden of the reference is a good consideration. What remedy he has for his fees, appears to be doubtful in England, and nothing is said about the matter in this chapter. Probably therefore it will be well in every case for the arbitrator to come to a distinct agreement with the parties with regard to his remuneration and fees before entering on the reference. If he omits to do this, his only remedy apparently will be his lien on his award when ready for delivery. No person can compel him to give in his award, and nothing could be less objectionable than for an arbitrator to decline to give in his reward until he should have received a proper remuneration for his work.

Where the costs are "to abide the event" this means the costs of the reference as well as of the action, Wood v. O'Kelly, 9 East,

436; and the arbitrator has no power over them even to fix the amount. Kendrick v. Davies, 5 D. P. C. 693.

When award or matter referred to arbitration may be remitted.

520. The Court may remit the award or any matter referred to arbitration to the reconsideration of the same arbitrators or umpire, upon such terms as it thinks fit,

(a) where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration;

(b) where the award is so indefinite as to be incapable of execution;

(c) where an objection to the legality of the award is apparent upon the face of it.

See the notes to Sec. 516.

Or any matter referred.-By Sec. 8 of the Common Law Procedure Act, 1854, the judge is enabled in any case where reference shall be made to arbitration, "at any time, and from time to time, to remit the matters referred, or any or either of them, to the reconsideration and re-determination of the arbitrator, upon such terms as to costs and otherwise as may seem proper." Previously, difficulty constantly had been felt as to referring back a part only of the matters referred,' and it was held that the court could not direct the reconsideration of one point only, and that on reference back the parties were entitled to go into fresh evidence respecting every matter in dispute.

In England an award is generally remitted, if the ends of justice require it, where the award is bad on its face, not being sufficiently final or certain, or where, though good on its face, it is invalid, as for instance for not having been executed by all the arbitrators together. This section limits the number of cases for a remitter to three.

Upon such terms as it thinks fit. The remit of the matters referred is to be on such terms, as to costs and otherwise, as may seem proper. Where an award is referred back to the arbitrator for amendment, and the costs of the reference are in his discretion, the two awards constitute one award, and the arbitrator has the same power as to the costs of the amended award, as he had in the disposal of the costs generally. Macrae v. Maclean, 2 E. & B., 946.