premises of the said lessors, or so much of the said wall or brick-work as now stands four inches and a half, or thereabouts, over and upon the land and premises of the said lessors, and upon a certain wall or fence which divides the property of the said lessors from that of the said defendant: And I do further award, that, should the defendant refuse to pull or take down the said wall or brick-work, the subject of this action and reference, that the said lessors shall, by themselves or servants, have full power to pull or take down the said wall or brick-work in question, or so much thereof as aforesaid, and, if necessary for such purpose, to enter in and upon the premises of the said defendant, and that he shall pay and be answerable for all expense incurred in their so doing." [JERVIS, C. J.-Is it any objection to an award, that a stranger does not understand it?] It is submitted that it is. Here, it was obligatory on the arbitrator to define the premises, and to award distinctly and intelligibly how and in what manner the possession of the land in question was to be given up and, if he were not bound to do so, having taken upon himself to do it, his award is bad, according to the authority of Stonehewer v. Farrar, if he does it imperfectly. It is essential that an award should be decisive and should bar all future litigation between the parties on the *particular matters referred. [CROWDER, J.-In Price v. [*121 Popkin, 10 Ad. & E. 139 (E. C. L. R. vol. 37), 2 P. & D. 304, on a submission of a cause and all matters in difference between lessor and lessee, an award that certain fixtures had been wrongfully removed by the lessor, to the value of 117., and that the lessee should set up others in their place, to be left for the lessor at the end of his term, and that the lessor should pay 117. to the lessee on a specified day,was held uncertain, for not specifying the value, quality, or description of fixtures to be set up by the lessee. That certainly is a very strong case. JERVIS, C. J.-Some of the cases upon the subject of awards run very wild indeed. In the case last referred to, the arbitrator had done what he ought not to have done, and had done that badly.] What does the arbitrator here mean by describing the quantity of brickwork to be pulled down, as "four inches and a half, or thereabouts?" Is there to be litigation hereafter as to the quantity taken down? The award is clearly bad for uncertainty.

The next ground of objection is, that the arbitrator does not state upon which demise he proceeds; nor does he dispose of the land not covered by building. That the award is faulty in both these respects, is shown by the case of Doe d. Madkins v. Horner, 8 Ad. & E. 235 (E. C. L. R. vol. 35), 3 N. & P. 344. There, ejectment being brought on two demises, all matters in difference in the cause were referred by a judge's order, which directed that the costs of the suit and of the reference and award should abide the event of the award, that the party in whose favour the award should be might sign judgment in the same manner as if the cause had been tried at nisi prius, and that, if it was in the plaintiff's

favour, he might issue a writ of possession thereon, and proceed in the usual way for costs on such judgment: the arbitrator awarded that the plaintiff was entitled to the possession of a certain part of the lands sought to be recovered," which he set out by boundaries: the *122] award said nothing about the residue, nor did it say on which demise the plaintiff was entitled; and it gave no damages: and it was held, that the award was bad for not stating on which demise the plaintiff was entitled; and also for not expressly deciding as to the residue; but not for giving no damages. Littledale, J., said: "I think that when in ejectment, all matters in difference in the cause are referred, the arbitrator, after deciding as to one part, and so expressing himself, should do something as to the other. I do not say what he ought to do; whether he should set out the residue by metes and bounds, or may describe one part specifically, and then award as to the remainder in general terms. But I think his omitting of all mention of the remainder is not tantamount to deciding that the plaintiff has no title to it. On this ground, therefore, the rule must be made absolute. I think also that the arbitrator ought to have said on which of the two demises the plaintiff was entitled to recover." [JERVIS, C. J.-These absurd refinements shock one's common sense. WILLIAMS, J.-In that case the award was in favour of John Doe: here it is in favour of the lessors of the plaintiff."] That makes no difference. Patteson, J., in that case, said: "I also think the award bad for not showing on which title the plaintiff has a right to the part named. The costs are to abide the event. But the award does not say on which demise the event is in favour of the plaintiff: it can hardly be so on both. It may be that some of this part is recoverable under one demise, some under the other; but, if so, that should be said: if the plaintiff recovers on one demise only, the defendants are entitled to costs on the other. We must, therefore, set this award aside, or at least do that which is tantamount to setting it aside. I agree that the court ought not to be astute in finding objections to an award." The principle *es*123] tablished in that case was still further carried out in Doe d. Starling v. Hillen, 2 Dowl. N. S. 694. A declaration in ejectment contained three demises; at the trial, a general verdict was taken, subject to a reference of the cause and all matters in difference, the costs of the cause to abide the event: the arbitrator having directed the general verdict to stand,-it was held, that the award was bad, for that the arbitrator was bound to state on which of the demises the plaintiff was entitled to succeed. Doe d. Bowman v. Lewis, 13 M. & W. 241,† shows that the plea of not guilty, in ejectment, is distributable, and that the defendant is entitled to a verdict as to any part of the premises claimed in the action to which the lessor of the plaintiff fails to prove a title and the reasons are given in a very elaborate judgment by Parke, B.

[*124

Byles, Serjt. (with whom was Unthank), contrà.(a)—*The court will not hold this award to be bad, unless they are prepared to say that in no conceivable case could it be a good one. If there be any difficulty in carrying it out, that may be shown by affidavit for cause when the successful party seeks to enforce it by attachment, or by the aid of the statute 1 & 2 Vict. c. 110, s. 18. But that is not so where the proceeding is by action. This award is manifestly good upon the face of it. In the first place, the arbitrator has power to find in favour of the lessors of the plaintiff;" and, in that event, he is to have power to order immediate possession to be given of the land and premises in question in the action to the lessor of the plaintiff Thomas Mays, and also how and in what manner such possession shall be given, and, if not given, how it shall be taken. There is nothing here to oblige the arbitrator to do more than find in favour of the lessors of the plaintiff. The award does so find: and then it goes on to direct the possession of the land and premises in question to be given to Thomas Mays, and that the defendant pull down the wall which he has erected upon the land and premises of the lessors, or so much thereof as stands four inches and a half, or thereabouts, over and upon the land and premises of the lessors. Inasmuch as there may be some difficulty in pulling down four inches and a half of the wall, the arbitrator gives the defendant the alternative, to pull down the whole of it. There can be no difficulty in that. [WILLIAMS, J.-*Is not the whole [*125 wall stated to be erected on the premises of the lessors ?] That is a little ambiguous: it may be satisfied by a wall built partly on their land. It may be that it is a latent ambiguity not yet raised by evidence. "The court ought not," as is said by Coleridge, J., in Doe d. Madkins v. Horner, "to be astute in finding objections to an award.” (a) The points marked for argument on the part of the plaintiff, were,-"That the award is good:

"That the words 'I do award in favour of the lessors of the plaintiff' are in themselves a sufficient award, and the subsequent matter may be rejected as surplusage:

"That, when certain matters are referred, and a power is in addition given to the arbitrator, it is not obligatory on him to exercise the power, nor is the award made bad by reason of an imperfect exercise of the power:

"That the order is to be deemed to be intelligible and possible to be obeyed, when applied to the locus in quo, or when read by one who is acquainted with the locus in quo, as the defendant has not explained by his plea how it is that it is inapplicable or unintelligible or impossible to be obeyed; for, every intendment is to be made to support an award:

"That the ultimate allegation as to the award being uncertain, not final, and void, is not a sufficient explanation, but is a mere inference of law, which ought to be, but is not, supported by previous allegations :

"That, if such ultimate allegation is to be treated as an allegation of fact, then it is traversed at the end of the replication, and the defendant should have tried it by a jury, instead of demurring:

"That the demurrer admits the award to be certain, final, and good, as alleged in the replication:

"That, even if the court cannot imagine a locus in quo and buildings to which the order in the award is pertinent and applicable, they are not therefore to conclude that there can be none: "That the order in the award is not bad for giving an alternative between two ways of giving possession, as the law gives the option to the defendant, who was to do the first act; and therefore the alternative produces no uncertainty."

[WILLIAMS, J.-In some of the cases, it is said that judges ought to be astute in finding answers to objections.] It is said that the award is defective because it does not define the land. The arbitrator was not bound to define the land: he was only to decide how and in what manner possession was to be given or taken. He neither had power, nor was any obligation imposed on him, to define the land. In Stonehewer v. Farrar, 6 Q. B. 730 (E. C. L. R. vol. 51), the reference was of all matters in difference: this is a reference of the action only. In Doe d. Madkins v. Horner, 8 Ad. & E. 235 (E. C. L. R. vol. 35), 3 N. & P. 344, Coleridge, J., did not concur in the second ground of the decision; and the first point was decided upon the ground that the award did not say which party was to recover the land,-a defect from which this award at all events is free. Neither is there any such uncertainty in this award as there was in that in the case of Doe d. Starling v. Hillen, 2 Dowl. N. S. 694. As to the objection that the arbitrator has not decided upon which of the two demises the verdict is to be entered, that is answered by the recent case of Law v. Blackburrow, 14 C. B. 77. There, an action of ejectment, upon two several demises, was, after issue joined, referred by a judge's order, to the award of an unprofessional arbitrator,-the costs of the cause and of the reference and award to abide the event of the award. The arbitrator, professing to make his award "of and concerning the matter to him referred,” ordered that the verdict in the said cause should be entered for the les*126] sors *of the plaintiff :" and the award was held sufficient. And Maule, J., said,—"As to there being two sets of lessors of the plaintiff, I am of opinion that the award sufficiently shows the intention of the arbitrator to be, to decide that the lessors of the plaintiff are entitled to succeed throughout the whole,-that the matters put in issue by the pleadings were all to be determined in favour of the lessors of the plaintiff." [WILLIAMS, J.-The arbitrator there had no power to order a verdict to be entered.] In Wilcox v. Wilcox, 4 Exch. 500,† in an action of trover, to which the defendant pleaded, except as to a certain sum, not guilty, and not possessed, and as to that sum payment into court, a verdict was taken for the plaintiff for the amount of damages claimed, subject to an arbitration, and the arbitrator found generally that the verdict for the plaintiff was to stand, and that the damages were to be reduced to a certain sum: and it was held that the arbitrator had sufficiently disposed of all the issues. Kilburn v. Kilburn, 13 M. & W. 671,† being there cited, Alderson, B., said: "That case, when properly considered, governs the present. It was there said by this court, in a well-considered judgment, that the award must either dispose specifically of each issue raised on the record, or it must clearly be inferred from it in which way each of these issues has been found, so as to enable the officer to tax the costs for the party in whose favour each issue has been found.' Here the arbitrator, although he has not dis

posed of each issue in so many words, has in reality done so; and that is sufficient." And Parke, B., said: "The case of Hobson v. Stewart, 1 B. C. Rep. 288, is to the same effect, where my Brother Erle held that it was not necessary that the arbitrator should find upon each issue specifically, if he sufficiently disposes of them." The award in question, it is submitted, is perfectly free from objection.

*Lush, in reply.-The objection here relied on was not pro[*127 minently brought to the attention of the court in Law v. Blackburrow; neither were the cases of Doe d. Madkins v. Horner, and Doe d. Sparling v. Hillen, referred to: the whole of the argument was addressed to the power of the arbitrator to enter a verdict. [CROWDer, J.-Speaking of Doe d. Madkins v. Horner, in a case of Harrison v. Creswick, 13 C. B. 399, 417, Parke, B., says,-"The court held the award bad, for not deciding upon which demise the plaintiff was to recover, and also for not awarding as to the residue of the lands. It may, perhaps, be doubted whether an award in ejectment, which finds that the plaintiff is entitled to recover a portion only of the lands sought to be recovered, is not final: but clearly that case was correctly decided upon the other point."] In Stonehewer v. Farrar, the court say that the very discussion of it showed the award to be bad. [JERVIS, C. J.I think we should always look favourably at awards, rather than be astute in criticising them. Is it not enough if the award is so framed that the parties cannot be misled by it?] The award should be so framed as to enable the parties at once to see what their relative rights and duties under it are. [WILLIAMS, J., referred to Cargey v. Aitcheson, 2 B. & C. 170 (E. C. L. R. vol. 9), 3 D. & R. 433 (E. C. L. R. vol. 16).(a)] This award is clearly bad: it professes to determine how much of the wall is on the land of the lessors of the plaintiff: the arbitrator therefore was bound to define it, and so settle the rights of the litigant parties. Cur. adv. vult.

JERVIS, C. J., now delivered the judgment of the court.-This is an action of ejectment, with two demises. The cause is referred, the submission providing that the costs of the action, and also of the [*128 reference and award, shall abide the event of the award; and the first objection is, that the arbitrator has decided in favour of the lessors of the plaintiff, without saying upon which demise, and so he has not fully disposed of the costs. In support of this objection, two cases, of Doe d. Madkins v. Horner, 8 Ad. & E. 235 (E. C. L. R. vol. 35), 3 N. & P. 344, and Doe d. Starling v. Hillen, 2 Dowl. N. S. 694, were relied on by Mr. Lush, where the Court of Queen's Bench, professing an anxiety not to be astute in discovering objections to the award, yet upheld an objection of the very strictest and most technical description. It is possible, however, that those decisions may have been per

(a) Affirmed in error, Aitcheson v. Cargey, 13 Price, 639, 9 J. B. Moore, 381 (E. C. L. R. vol. 17), 2 Bingh. 199 (E. C. L. R. vol. 9), M'Clel. 367.†

VOL. XV.-14