(2.)

Award pursuant to a Clause of Arbitration contained in Articles for a building Agreement.

the articles

(clause of re

part of the

To all to whom these presents shall come, we, Recital of A. B., of, &c., and C. D., of, &c., send greeting; of agreeWHEREAS, by articles of agreement bearing date, ment, and &c., and made between &c.; (here recite the arti- ference. cles so far as they relate to the matters in arbitration, and particularly the clause of arbitration therein:) AND WHEREAS, the said E. F. hath Building. erected and built the said house, buildings, and premises, in pursuance of the said agreement; but differences and disputes have arisen touching the expenses of such building, and as to the sums laid out and expended by the said E. F., and as to the several sums advanced by the said G. H. to him, and other matters touching the said building and premises. Now KNOW YE, that we, the said A. B. Operative and C. D., having fully viewed and inspected the award. said building, and having heard the allegations and proofs of both the said parties, and their respective witnesses, concerning the several matters referred to us, do hereby find, award, order, declare, and determine, that there is justly due and owing to the said E. F., besides the several sums of money already paid to him by the said G. H., on account of the said building, the full sum of £ ; and we do hereby further award, that the said sum of £ - shall be paid by the said G. H., his executors, administrators, and assigns, to the said E. F., his executors, administrators, or assigns, on the 25th day of March next, at the house of, &c., called or known by the name or sign of, &c., at the hour of ten o'clock in the forenoon of the same day; and we do hereby further award, that the sum of, &c., being the expense and charges incident to the arbitration, shall be paid by the said E. F. and G. H., in equal moieties; (v) AND that, Parties to

(r) Arbitrators cannot award the costs of reference unless such power be given them for that purpose in the submission.-1 Cowp. 127. Whitehead

execute mu upon payment of the said sum of £

tual releases

we do hereby award and direct, that the said parties shall duly execute and deliver to each other mutual releases in writing, of all and every matter heretofore in difference between them, and so referred to us as aforesaid, if and when either party shall require the same; and that the expenses of such release shall be paid by the party requiring the same. In witness, &c.

It

v. Firth, 2 E. 166. If no direction be given respecting the costs, they are to be paid by both parties equally.-Grove v. Cox, 1 Taunt. 165. should be provided in the submission that the costs shall be in the discretion of the arbitrator.--See Tidd's Pract. 825.

OBSERVATIONS AND CASES.

But Award how

AN award may be by parol or by deed.(w) if by the terms of the submission the award must be under the hands and seals of the arbitrators, then sealing only is not sufficient. (a) Upon a bond for the performance of an award with these words, "So as it be made in writing under the hands of the arbitrators," by such a day, the declaration in the action averred that the arbitrators did in due manner, and within the time limited, duly make their award in writing. This declaration was held (in error) insufficient, because it did not allege that it was under their hands. (y) Parties binding themselves jointly and severally to perform an award, each is answerable for the obedience of the others.(z) If the award limits no time for performance, it must be construed as reasonable time. (a) In the absence of the date to an award, its delivery must be adopted in its stead. (b)

made.

sites of an

award.

The requisites of an award are, that it be con- The requi sistent with the terms of the submission, certain, final, and not contrary to law. (c) But a primá facie uncertainty, or want of conclusiveness in an award, does not vitiate if it be capable of being rendered certain or conclusive.(d) The court will favour the construction which renders the award certain and final. (e) An affidavit of one of the arbitrators will not be admitted to explain their intention, where the terms appear clear upon the award.(ƒ) An award that A. or B. shall do a

(w) 1 Salk. 75.

(z) Palm. 109.

(y) Everard v. Paterson, (in error,) 2 Marsh, 304. 6 Taunt. 625.

(z) Mansell v. Burridge, 7 T. R. 352.

(a) Jenk. 136.

(b) Armit v. Breame, Ld. R. 1076.

(c) 5 Co. 77, b. 780. Roll Abr. 263. Bac. Ab. 218.

(d) Aitcheson v. Carger, (in error,) 9 Moore, 381. 2 Bing. 199. M'Clel.

367. 13 Price, 639.

(e) Wood v. Griffiths, 1 Swans. 52. 1 Wils. C. C. 34.

(f) Gordon v. Mitchell, 3 Moore, 241.

certain act, is bad for uncertainty.(g) If the submission be of two distinct matters in difference, the arbitrator, by omitting to decide one of them, vitiates the whole award. (h) An award that plaintiff had been overpaid a certain sum, could not be enforced by attachment. (i) On an award finding a debt, but containing no order to pay, an attachment was refused.(j) An award may be for money to be paid to a stranger for the use of one of the parties to the submission.(k) In a submission of all matters in difference, although the defendant make claims which might be subject of cross actions, and the award finds that plaintiff had no cause of action against the defendant, it was held good, as all matters between the parties were referred.(1) An award that the sum of £230 is due from defendants to plaintiffs, and that out of that sum defendants should pay to the arbitrators £93, being the expenses for preparing the agreement of reference, and their award, and for their charge, trouble, and attendance, on the reference and arbitration, and certain costs which they awarded to be paid to the solicitor of the plaintiffs, in respect of certain actions mentioned in the agreement of reference, leaving the sum of £136, which they award to be paid to plaintiffs;-this award was held void for uncertainty, in directing a sum in gross to be paid to the arbitrators for the objects above mentioned, without specifying the particular sum to be appropriated to each object.(m) Unless an award state that the decision was founded upon certain facts set out in the award, the court will not infer that the decision of the arbitrator proceeded solely upon those facts. (n) If by the submission, "all the costs are to abide the event of the award,"

(9) Lawrence v. Hodgson, 1 Y. & I. 16.

(h) Randall v. Randall, 7 East, 81. 3 Smith, 90.

(i) Thorton v. Hornby, 8 Bing. 13. 1 M. & Scott, 48.1 Dowl. P. C.

237.

(3) Edgell v. Dallimore, 3 Bing. 634. 11 Moore, 541.

(k) Snook v. Hellyer, 2 Chitt. 43.

(0) Hallar e. Ellis, 3 M. & P. 553. 6 Bing. 225.

(m) Robinson v. Henderson, 6 M. & S. 276.

() Lancaster . Hemmington, 5 Nev. & M. 538.

the arbitrator has no power over the costs. (o) An award is bad which orders money to be paid to the arbitrator, to be applied for certain specified demands, (part of the matters submitted,) although it may appear to be for the benefit of the parties submitting.(p) If, from reading an award, it clearly appear that the arbitrator intended to leave a particular question of law open, the court will consider it, although in terms the arbitrator may, in one part of his award, have determined it.(g) When mutual and general releases are awarded, the Mutual rearbitrator is deemed to have adjudged and finally decided upon all matters, and the general release would be an answer to any action or claim founded upon them.(r)

leases.

The award should be engrossed on a thirty-five Execution shillings stamp paper, and signed by the arbitrator, of the award in the presence of a witness. (8) It is advisable to give the original award to the party in whose favour it is made, and merely copies to the others, unless they should require stamped originals. (t) When the award is made, the arbitrator should Notice. give notice to the attorneys of the parties that it is ready, and that each of them may have his part on the day therein specified, on payment of the expenses. (u) After the award is delivered, or after Delivery. notice given by the arbitrator of it being ready for delivery, no mistake in a material part of it, as in the calculation of figures, or in the sum awarded, &c., can be corrected, unless with the consent of both the parties; but it seems a mistake in an immaterial part may.()

(0) Boodle v. Davis, 4 Nev. & M. 788. 3 Adol. & Ellis, 200. 1 Har. & Woll. 420.

(P) In re Mackay, 2 Adol. & Ellis, 356.

(q) Sherry v. Oke, 3 Doul. P. C. 349. 1 Har. & Woll. 119.

(r) Wharton v. King, 2 B. & Adol. 528.

(s) If the award contain more than thirty folios, (of seventy-two words each,) it will require for every fifteen folios more a further stamp of £1 58.-See 55 G. IV., c. 184; and see Godson v. Forbes, 6 Taunt. 171.

(t) Godson v. Forbes, 6 Taunt. 171.

(u) This notice is deemed the publication of the award, and it is so though the arbitrator demand unreasonable charges.

(v) See Frew v. Burton, 1 C. & M. 533.

T