Setting aside the award. thority or discretion in the matter, it will be bad for want of finality. And if the award be that any stranger to the reference should do an act, or that money should be paid to, or any other act done in favor of, a stranger, such award will be void (t). An award, however, may be partly good and partly bad, provided the bad part is independent of and can be separated from that which is good (u). But if, by reason of the invalidity of part of the award, one of the parties cannot have the advantage intended for him as a recompense for that which he is to do, according to that part of the award which would otherwise be valid, the whole will be void (x). If it should appear on the face of the award that the arbitrators, intending to decide a point of law, have fallen into an obvious mistake of the law, the award will be invalid (y). But where subjects involving questions both of law and fact are referred to arbitration, the arbitrators may make an award according to what they believe to be the justice of the case, irrespective of the law on any particular point (z). When the submission to arbitration is not made the rule of any other court (a), the Court of Chancery, according to the ordinary principles of equity, has power to set aside the award for corruption or other misconduct on the part of the arbitrators, or if they should be mistaken in a plain point of law (b). If the submission be made a rule of court under the above-mentioned statute of Will. III. (c), the court of which it is made a (t) Cooke v. Whorwood, 2 Saun. 337; Adam v. Statham, 2 Lev. 235; Fisher v. Pimbley, 11 East, 188. (u) Fox v. Smith, 2 Wils. 267; Aitcheson v. Cargey, 2 Bing. 199. (x) 2 Wms. Saund. 293 b, n. (1). (y) Ridout v. Pain, 3 Atk. 494; Richardson v. Nourse, 3 Barn. & (*) Re Badger, 2 Barn. & Ald. 691; Young v. Walker, 9 Ves. 364. (a) Nichols v. Roe, 3 Myl. & Keen, 431. (b) Ridout v. Pain, 3 Atk. 494. (c) Stat. 9 & 10 Will. III. c. 15. rule has power to set aside the award, not only on the grounds of corruption or undue practice mentioned in the act, but also for mistakes in point of law (d); and no other court has a right to entertain any application for this purpose (e). The application to set aside the award must, however, be made within the time limited by the act (f). But although the time limited by that statute may have expired, yet, if there be any defect apparent on the face of the award, the court will not assist in carrying it into effect by granting an attachment for its nonperformance (g). If the submission to arbitration be made by rule or order of the court in any cause independently of the statute, the court still retains its ancient jurisdiction of setting aside the award on account either of the misconduct of the arbitrators, or of their mistake in point of law (h). In analogy, however, to the practice under the statute of Will. III., the court in ordinary cases requires application for setting aside the award to be made within the time limited. by that statute (i); but upon sufficient grounds it will grant such an application, though made after the expiration of that time (k). If an umpire be appointed, his authority to make an Umpire. award commences from the time of the disagreement of the arbitrators (7), unless some other period be expressly (d) Zachary v. Shepherd, 2 T. Rep. 781; Lowndes v. Lowndes, 1 East, 276, overruling Anderson v. Coxeter, 1 Str. 301; see 1 Wms. Saund. 327 d, n. (s). (e) Stat. 9 & 10 Will. III. c. 15, 8. 2; Nichols v. Roe, 3 Myl. & Keen, 431. (f) Lowndes v. Lowndes, 1 East, 276. (g) Pedley v. Goddard, 7 T. Rep. 73. (h) Lucas v. Wilson, 2 Burr. 701. (i) Macarthur v. Campbell, 5 Barn. & Adol. 518. (k) Rawsthorn v. Arnold, 6 Barn. & Cress. 629; S. C. 9 Dow. & Ry. 556. (1) Smailes v. Wright, 3 Mau. & Sel, 559; Sprigens v. Nash, 5 Mau. & Sel. 193. L Award for payment of money creates a debt. fixed; and if, after the disagreement of the arbitrators, he make an award before the expiration of the time given to the arbitrators to make their award, such award will nevertheless be valid (m). The umpire must be chosen by the arbitrators in the exercise of their judgment, and must not be determined by lot (n), unless all the parties to the reference consent to his appointment by such means (o). In order to enable him to form a proper decision, he ought to hear the whole evidence over again (p), unless the parties should be satisfied with his deciding on the statement of the arbitrators (q). And the whole matter in difference must be submitted to his decision, and not some particular points only on which the arbitrators may disagree (r). An award for the payment of money creates a debt from one party to the other, for which an action may be brought in any court of law (s), and which will be sufficient to support a fiat in bankruptcy (t). But when the award is made a rule of court, its performance may, as we have seen (u), be enforced by attachment. And where the reference is made a rule of the Court of Chancery (x), or where the award requires any act to be done which cannot be enforced by an action at law (y), equity will decree a specific performance. seal not a deed. The award of arbitrators or of an umpire, though in- Award under dented and under hand and seal, is not a deed unless delivered as such (z). It is however now subject to the Stamp. same stamp duty as an ordinary deed (a). (z) Brown v. Vawser, 4 East, (a) Stat. 55 Geo. III. c. 184, 584. schedule, part 1, tit. Award. PART III. OF INCORPOREAL PERSONAL PROPERTY, Personal an nuity, CHAPTER I. OF PERSONAL ANNUITIES, STOCKS AND SHARES. In addition to goods and chattels in possession, which have always been personal property, and to debts which have long since been considered so, there exist in modern times several species of incorporeal personal property, to which we now propose to direct our attention. These species of property are certainly not choses in possession, neither yet are they like debts strictly choses in action, though often classed as such. In analogy, therefore, to the well-known division of real estate into corporeal and incorporeal, we have ventured to place these kinds of property together into a class to be denominated incorporeal personal property. A debt no doubt is also incorporeal, but it is still well characterized by its ancient name of a chose in action. The first kind of incorporeal personal property which we shall mention is a personal annuity. This kind of property is not indeed of so modern an origin as some of those which we shall hereafter mention. It consists of an annual payment, not charged on real estate; but may nevertheless be limited to the heirs, or the heirs of the body of the grantee. In former times it was doubted whether an annuity was not a mere chose in action, and therefore incapable of assignment (a); but this objection has long been overruled. When limited to it (a) Co. Litt. 144 b, n. (1). |