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No. 2496.

Book 4, tit. 2, chap. 2, sec.

2, § 4, art. 1.

No. 2497.

the time of the nomination, arose, or were discovered subsequently, the party aggrieved would probably be relieved.(a)

The award should be made also by a man who is not infamous; an award made by a man convicted of perjury was set aside.(b)

When there are several arbitrators, it is usual to authorize them in the submission, in case of disagreement, to appoint another arbitrator, who is called an umpire. When this power is delegated, it must be properly exercised, and not left to chance; as where the arbitrators, not being able to agree as to the person proper to be appointed, cast lots which of the arbitrators should have the nomination of the umpire; this was considered as an improper mode of nominating the umpire, and the court set aside the award.(c)

§ 4. Of the award. (d)

2496. The judgment of the arbitrators is called an award, and the paper on which the judgment is written bears the same name. To make a good award, it must have the following qualities: 1, it must conform to the submission; 2, it must be certain; 3, it must be mutual; 4, possible to be performed; 5, final; 6, formal; 7, must have some effect.

Art. 1.-The award must conform to the submission.

2497. The arbitrators being judges selected for a particular purpose, and having no other jurisdiction than that given them by the submission, it is manifest that the award must be confined within the powers

(a) Vide Earle v. Stocker, 2 Vern. 251.

(6) Parker v. Burroughs, Colles' P. C. 257.

(c) Harris v. Mitchell, 2 Vern. 485; Wills v. Cooke, 2 B. & A. 218.

(d) Com. Dig. Arbitrament, E; Bac. Dig. Arbitrament, E; Kyd on Aw. h. t.; Caldwell on Arb. h. t. ; 3 Vin. Ab. 52, 372; Wats. on Arb. h. t.; 1 Saund. 326, n. 1, 2 and 3; Dane's Ab. c. 13.

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No. 2498.

Book 4, tit. 2, chap. 2, sec. 2, § 4, art. 2.

No. 2498.

given to the arbitrators, because if their decision extends beyond such authority, this is an assumption of power not delegated, and which cannot, therefore, legally affect the parties. (a) But if the arbitrators transcend their authority, their award is not absolutely void, it is void only pro tanto, and if the void part does not affect the merit of the submission, the residue will be valid.(b)

When a time is prescribed within which the award must be made, it will not be valid if not made within that time.(c)

In those cases, when the submission is by verbal agreement, or by deed, the authority of the arbitrators may be revoked at any time before the making of the award; leaving the party who revokes liable to an action upon his agreement. The arbitrators then have no further authority, and an award made afterward is void, unless it has been provided otherwise in the submission. (d) And the death of either of the parties to a submission, before the award made, will, at common law, amount to a revocation.(e)

When the submission is made a rule of court, it cannot be revoked by the parties,(f) nor is the death of either of them a revocation.(g)

Art. 2.-The award must be certain.

2498. The award ought to be certain, and it must be so expressed that no reasonable doubt can arise on the face of it, as to the arbitrators' meaning, or the

(a) Solomons v. McKinstry, 13 John. 27; Bean v. Farnam, 6 Pick. 269. (b) Taylor v. Nicholson, Í H. & M. 67; S. P. 1 Rand. 449; McBride v. Hogan, 1 Wend. 326; Clement v. Durgin, 1 Greenl. 300; Skellings v. Coolidge, 14 Mass. 43; Peters v. Pierce, 8 Mass. 399; Martin v. Williams, 13 John. 264; Bacon v. Wilber, 1 Cowen, 117.

(c) Smith v. Spencer, 1 McCord, Ch. R. 93; Bac. Ab. Arbitrament, D; Mills v. Conner, 1 Blackf. 7; Hall v. Hall, 3 Conn. 308.

(d) McDougall v. Robertson, 2 Y. & J. 11; S. C. 4 Bing. 435.

(e) Edmunds v. Cox, 3 Dougl. 406; Cooper v. Johnson, 2 B. & Ald. 394. ) 12 Mass. 47.

(g) Bacon v. Crandon, 15 Pick. 79.

No. 2499.

Book 4, tit. 2, chap. 2, sec. 2, § 4, art. 3.

No. 2499.

nature and extent of the duties imposed by it on the parties. (a) An example of such uncertainty may be found in the following cases: an award directing one party to bind himself in an obligation for the quiet enjoyment of lands, without expressing in what sum the obligor should be bound. (b) Again, an award that one should give security to the other for the payment of a sum of money, or the performance of any particular act, when the kind of security is not specified.(c)

But an award is sufficiently certain, if its meaning can be ascertained and reduced to a certainty, as where it directed that one of the parties should pay the costs of a suit, without mentioning the amount, because the amount can be ascertained by taxation. (d)

Art. 3.-The award must be equal and mutual.

2499. An award must be mutual, that is, it must affect both parties; when it gives satisfaction to one, it must discharge the other, for otherwise it would be unjust. If, for example, the arbitrator should award to one of the parties fifty dollars, to be paid to him by the other, where a case of trespass had been submitted, without saying for what this money is to be paid, the award would be void, because, if the defendant paid it, he would still be liable for the trespass; but if, from the words of the award, it appeared that the trespass was discharged, it would be good. (e) Another example

(a) Grier v. Grier, 1 Dall. 173; Purdy v. Delavan, 1 Caines, 304; King r. Cook, Charlt. 288; Gonsales v. Deavens, 2 Yeates, 539; Hazeltine v. Smith, 3 Verm. 535; Barnet v. Gilson, 3 S. & R. 340; Jackson v. De Long, 9 John. 43.

(b) Roll. Ab. Arbitr. Q 4.

(c) Bac. Ab. Arbitr. E. See Thomas v. Molier, 3 Ohio, 267; Lawrence t. Hodgson, 1 Yo. & Jer. 16; Thornton v. Carson, 7 Cranch, 596.

(d) Macon v. Crump, 1 Call. 575; Cargey v. Aitcheson, 2 B. & Cr. 170; 2 Bing. 199.

(e) Bac. Ab. Arbitr. E 3: must be mutual, is not so McAlexander, 3 Rand. 94. Tucker, 6 Greenl. 247; Kunckle, 1 Dall. 364.

Roll. Ab. 253; but the rule that the award
strictly applied now as formerly.
See Weed v. Ellis, 3 Caines, 254;
Gaylord v. Gaylord, 4 Day, 422;

Harrell v. Gordon v. Kunckle v.

No. 2500.

Book 4, tit. 2, chap. 2, sec.

. 2, § 4, art. 4.

No 2500.

will fully explain this matter. Suppose that Peter and Paul submit all actions brought by Peter against Paul, and all actions by Paul against Peter, and the arbitrators find that Peter shall be discharged of all actions brought by Paul, without disposing of the other matters submitted to them, the award is void. (a)

Art. 4.-The award must be of a thing lawful and possible.

2500. The award must be of a thing possible, lawful and reasonable.

1. An award that could not by any possibility be performed, as if it directed that the party should deliver a deed which it was proved had been burned and totally destroyed, or to pay money at a day past, it would be clearly void; but if it directed a man to pay a certain sum of money, which the defendant was not then able to pay, it would be good, because the defendant might become able to do so, either by making the money, or it might be given to him. Again, an award that a stranger, over whom the defendant has no power or control, shall do an act, is void, because the defendant cannot compel him.

2. The thing ordered to be done must be lawful, for the law will not compel any one to perform an act which it forbids to be done; an award that a man shall commit a felony or a trespass, is, therefore, void; and it would be equally void, if it directed something contrary to the policy of law, as that Paul should marry Mary, because it is against public policy that marriages should be constrained. (b)

3. The award must also be reasonable, for if it be of things nugatory in themselves, and offering no advantage to either of the parties, it cannot be enforced. (c)

(a) Roll. Ab. 253, pl. 2; Schuyler v. Vandeveer, 2 Caines, 235. (b) Roll. Ab. 252; 1 Swanst. 55.

(c) Kirby, 253.

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No. 2501.

Book 4, tit. 2, chap. 2, sec. 2, § 4, art. 5, 6, 7.

No. 2503.

Art. 5.-The award must be final.

2501. The award must be final, that is, it must conclusively adjudicate of the matters submitted, or, at least, of so much as is decided upon; for as an award may be good for part only, it must be final as to that part. (a) Thus, when the arbitrators award a thing not submitted, with a reservation to themselves of a future power of judging of the matter, and they award a thing within the submission; this is good as to the matter within the submission, for as to that it is final, and void as to the residue. (b)

Art. 6.-Form of the award.

2502. As to the form, the award may be by parol, that is, in writing, not by deed; and it may be by deed. But it ought to conform as to this to the requisitions of the submission; or, if it be under the provisions of a statute, it must be made according to its direction.

Art. 7.-Of the effect of the award.

1. Of the remedy on the award.

2503. When the submission was by parol, with mutual promises to perform the award, the remedy upon the award is by an action of assumpsit; and in such action the award is conclusive.(c)

When the submission was by deed, accompanied by an arbitration bond, which is a common bond, with a

(a) Bac. Ab. Arbitr. E 5; Young v. Shook, 4 Rawl. 304; Grier v. Grier, 1 Dall. 173; Sutton v. Horne, 7 S. & R. 228; Carnochan v. Christie, 11 Wheat. 446. See Com. Dig. Arbitr. E 15; King v. Cook, Charlt. 289; Archer v. Williamson, 2 Harr. & Gill. 67.

(6) Palm. 146; Cro. Jac. 315, 584; Cromwell v. Owings, 6 Har. & John. 10.

(c) See Tallis v. Sewell, 3 Ham. R. 513; Swicard v. Wilson, 2 Rep. Cons. Ct. 218.

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