— Part
I.
him
479
References by Consent out of Court.
if by his award he purports to decide matters (q) in fact inchided in the submission (?•) ; if the award is inconsistent (s), or is uncertain or ambiguous (i), or is on its face erroneous in matter of law (u) or even if there is some mistake of but in such case the mistake must be either admitted or at least fact
referred to
which were not
—
if there has been clear beyond any reasonable doubt (x) larity in the proceedings, as, for example, where the arbitrator failed to give notice to the parties of the time and place of meeting (y), or
irreo;u-
where the submission required the evidence to be taken viva voce, and the arbitrator received affidavits (z), or where the arbitrator refased to hear the evidence of a material witness (<2), or w^here, the reference being to tw^o or more arbitrators, they did not act together (h)
Bowes v. Fernie (1838), 4 My. & Cr. (q) Samuel v. Cooper (1835), 2 A. & E. 752 Wilh'nso?}. v. Fage (1842), 1 Hare, 276 Boss v. Boards (1838), 8 A. & E. 150 290 (where a question of title was referred, and the arbitrator awarded that the property should be taken with all its faults). See Turner v. Turner (1827), 3 Euss, 494. The award will not be set aside for excluding one of the matters referred to if such matter was not in dispute between the parties at the date of the submission {Cochhurn v. Newton (1841), 2 Man. & Gr. 899), nor if the matter excluded was not specifically brought before the arbitrator (i^ees v. Waters (1847), and see Hawksiuorth v. Brammall (1840), 5 My. & Cr. 281). 16 M. & W. 268 Unless required by the submission, the award will not be set aside because the arbitrator has not found separately on each matter referred {Be Whitiuorth and HuJse (1866), L. E. 1 Exch. 251). (r) As where the award contains unauthorised directions to the parties (Frice Be Green & Co. and Balfour, miliamson & Co. V. Pop/v/n (1839), 10 A. & E. 139 and see Faviell v. Eastern Counties (1890), 63 L. T. 97, and on appeal, 325 Rail. Co. (1848), 2 Exch. 344, 349, and Boiues v. Fernie (1838), 4 My. & Cr. 150), or where the arbitrator has the power to direct what shall be done but his directions affect the interests of third persons (IWwer v. Sioainson Excess of jurisdiction over costs alone is not sufficient to 1 M. & W. 572). invalidate the award, see Cochhurn v. Newton (1841), 2 Man. & Gr. 899. (s) Ames v. Milward (1818), 8 Taunt. 637. (f) An award is uncertain if it is difficult to say whether the matter in dispute is determined or not (Be Tribe and Upperton (1835), 3 A. & E. 295 Martin v. Burge (1836), 4 A. & E. 973). The award will be set aside for uncertainty if it does not show to whom and in what proportions the amount found due should be paid (Be Tidsiuell (1863), 33 Beav. 213), or if it does not show who is liable to pay {Lawrence v. Hodgson (1826), 1 Y. & J. 16). Uncertainty as to the manner of payment is not a sufficient objection {Love v. Honeyhourne (1824), 4 D. & E. The arbitrator need not ascertain the exact amount to be paid if he gives 814). the rule by which the amount is to be ascertained {Higgins v. Willes (1828), 3 Man. & E. 382; and see Wohlenherg v. Lageman (1815), 6 Taunt. 251). The award will be set aside if it is uncertain as to costs {Be Smith and Wilson (1848),
2 Exch. 327). (w)
Hoggey. Burgess (1858), 3H. &N. 293, 298; Hodgkinsony. Fernie (1857), 3 Kent v. Elstob (1802), 3 East, 18 Landauer v. Asser, [1905] 2
C. B. (n. s.) 189; B. 184.
K
{x) Be Hall and Hinds (1841), 2 Man. & G-. 847 Hutchinson v. Shepperton (1849), 13 Q. B. 955. But the admission must be proved by the affidavit of the arbitrator himself. See Phillips v. Fvans (1843), 12 M. & W. 309. See also Hoigate v. KilUck (1861), 7 H. & N. 418 Lancaster v. Hemington (1835), 4 A. & E. 345 Fuller V. FenwicJc (1846), 3 C. B. 705. {y) Osivald v. Orey (1855), 24 L. J. (q. b.) 69. The award will not be set aside on this ground if nothing is done at the meeting (i?e Morphett {184:5), 2 Dow. & L. 967). (z) Banks v. Banks (1835), 1 Gale, 46. (a) Fhipps V. Ingram (1835), 3 Dowl. 669. In such a case the affidavit in support should state the arbitrator's reasons for refusal {Bradlei/ v. Ibhctson and see Be Maunder (1883), 49 L. T. 535). (1851), 2 Lo. M. & P. 583 See Stalworth v. Inns (1844), 13 (6) Wade v. Doiuling (1854), 4 E. & B. 44.
Sect. 14.
Remission or setting aside of
Award.
