be to four, so that an award be made by all, or three, or two, an award by two will be good. Cro. Jac. 278. See Post. No. 4.

4. A submission may also be by rule of court; and was either at common law, made in a cause depending in court (before the stat. 9 and 10 W. III. c. 15. See Kyd. Aw. 21. 1 Wash. 13. 2 Burr. 701. 1Dall. 314) or may be, under the act of Assembly of Virginia, before the suit commenced. (1 Rev. Code 49.) " All merchants and traders, and others desiring to end any controversy, suit or quarrel, for which there is no other remedy but by personal action or suit in equity, may by arbitration agree, that their submission of the suit to the award or umpirage of any person or persons should be made a rule of any court of record which the parties shall choose, and may insert such their agreement in their submission, or the condition of the bond or promise, whereby they oblige themselves respectively to submit to the award or umpirage of any person or persons; which agreement being so made and inserted in their submission or promise, or condition of their respective bonds, shall, or may, upon producing an affidavit thereof, made by the witnesses thereunto, or any one of them, in the court, of which the same is agreed to be made a rule, and reading and filing the affidavit in court, be entered in the proceedings of such court, and a rule shall be made thereupon by the said court, that the parties shall submit to and finally be concluded by the arbitration or umpirage, which shall be made concerning them by the arbitrators or umpire, pursuant to such submission."

"And the award made in pursuance of such submission may be entered up as the judgment or decree of the court, and the same execution or process may issue thereupon, as on other judgments or decrees, and the court shall not invalidate such award, arbitrament, or umpirage, unless it be made appear to such court, that such award, arbitrament, or umpirage, was procured by corruption or other undue means; or, that there was evident partiality or misbehaviour in the arbitrators or umpires, or any of them. And any award, arbitrament, or umpirage, procured by corruption or other undue means, or where there shall have been such evident partiality or misbehaviour as aforesaid, shall be deemed and judged void and of none effect, and accordingly set aside by the court in which the submission shall be made, so as complaint of such corruption, or undue means, or evident partiality, or misbehaviour as aforesaid, be made before the end of the second court of quarter sessions, in the case of a county court, or at the end of the second term of any other court, next after such award, arbitrament, or umpirage, be made and returned to such court "Not to affect the power of courts of equity over awards, &c." This act has been held not to extend to awards, in pursuance order of reference, made during the pendency of a suit; therefore the award need not lie two terms in court, before it be confirmed. 1 Call. 379. 2 Call. 433. 1 Stra. 301. S. P. on stat. 8 and 9 W. III. 2 Burr. 701. 2 Ves. jr. 451.

of an

If there be a reference, by rule of court, in a suit depending, to four arbitrators, or any three, and afterwards two others are added; if two of the first named, and one of the last, make an award, it is sufficient; and a majority of the whole is not required. 2 Call. 106.

And if the rule directs that the money awarded shall be paid to the sheriff, for the benefit of the plaintiff's creditors, the subsequent proceedings must be in that style also.

Ibid.

If the plaintiff be bail for the defendant at the time of reference, in a suit then depending, it will be no objection to the award, that the arbitrators failed to award concerning that undertaking. Ibid.

5. Sometimes the submission is both by bond and rule of court, by adding the parties consent at the bottom of the condition; and then the party may proceed both by action and attachment. (1 Salk. 73.) And the court will not stay proceedings in the action, though the defendant be in custody on the attachment. (Prec. Ch. 223. 2 Vern. 444. Kyd. Aw. 315.) But if the defendant be taken in execution on the judgment, the attachment will be discharged. (Kyd. Aw.315.) And the court will not grant an attachment after action brought, without some very particular reasons (B. R. H. 106); but in a late similar case it was absotutely refused, on the ground of the plaintiff's having made his election. 1 Bos. & Pull. 81.

If it be part of the condition of the bond, that no bill in equity shall be filed against the arbitrators, and a bill be nevertheless filed, the court, on motion, will order their names to be struck out. 2 Atk. 395.

Or, where there is no such restriction, if a bill be filed making the arbitrators parties, and calling on them to disclose the grounds on which they made their award, they may demur. If there be any palpable mistake, a bill may be filed against the party in whose favour the award is made. Kyd. Aw. 332. 1 Wash. 14.

The court will compel a witness to a submission to arbitration, to make affidavit of the execution, in order to make a rule of court. Str. 1. Barnes 58.

A submission may be made a rule of court, on motion of one party, and producing the bond executed by the other. Barnes 55.

It may be made a rule of court, though no part of the condition, only a memorandum signed before execution of the bond. Barnes 55. And if the submission be by rule of court, the court will oblige performance, without making the award also a rule of court. 1 Salk.

71.

A consent in the submission bond, to make the award a rule of court, will not warrant the court's interposing; the submission must be made a rule of court. Str. 1178.

To bring a submission within the statute, it must be confirmed by rule of court prior to making the award. 3 P. Wms. 361.

If a bond says, and if he consent to have the submission a rule of court, it is sufficient. 1 Sal 72.

In the construction of the stat. 9 and 10 W. III. c. 15, it has been held, that nothing was a ground for setting aside an award, but manifest corruption in the arbitrators. (1 Stra. 301.) But if the award be defective, though the court will not set it aside, they will refuse any process to compel performance. (Andr. 297.) Yet it has been decided, that an award, upon a submission made a rule of court, pursuant to the above statute, may be avoided for other defects, as well as corruption in the arbitrators; as where the award is bad on the face of it. (7 Term. Rep. 73.) The objection on which last ground may be made at any time. (Barnes 56.) And in Pennsylvania, where their law requires

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that the award be approved by the court, the judges confine themselves to two points; 1st, an evident mistake in matter of fact; 2dly, a manifest error in matter of law. 1 Dall. 315.

If a reference be agreed, a stay of proceedings shall be consequent. 1 Mod. 24.

And if there be an action upon a bond for non-performance, it will be a good breach, that the defendant proceeded to execution. 1 Com. Dig. 522.

So, if one serve a subpana upon the other after submission by rule, it will be a breach. 1 Salk. 73.

But non-performance during contest is no contempt. 1 Salk. 73. So, if any part of the award be impossible, for the non-performance of so much, no attachment goes. 1 Salk. 83.

VII. WHEN A SUBMISSION MAY BE REVOKED.

In which way soever the submission is made, the same may nevertheless be revoked, though made irrevocable by the strongest words; for a man cannot, by his own act, make such authority or power not countermandable, which by the law, and its own nature, is countermandable. 8 Co. 82. Kyd. Aw. 29, 30. 7 East. 608.

But if the submission be by bond, if the party revokes, he forfeits his obligation, for that he hath broken the words of the condition, which are, that he shall stand to, and abide the award. 8 Co. 82. b.

And if the submission be made a rule of court, either at common law, or pursuant to the statute, if either of the parties revokes, the court will grant an attachment. Kyd. Aw. 33, 34.

But where parties by bond agreed to submit matters in difference between them to arbitration, and that the submission should be made a rufe court, it is competent to either party, even since the statute, to revoke by deed his submission; and notify the arbitrators thereof, before the authority be executed; and he cannot be attached for a contempt of court in not obeying the award, if made after such revocation and notice; though the submission be afterwards made a rule of court. But it seems that it would be a contempt to revoke the submission after it had been made a rule of court. 7 East. 608. If the submission was by bond, the revocation must be in writing. (8 Co. 80. b.) And so of other deeds. Kyd. Aw. 30. But if a submission be revoked, it is of no avail till notice of the revocation to the arbitrators. 8 Co. 82. a.

If the submission be by word, the party may revoke at pleasure, and he forfeits nothing; but he must likewise give notice of the revocation to the arbitrators, though it need not be in writing (8 Co. 82. a. Kyd. Aw. 30.) But see Kyd. 32, as to the forfeiture, contra.

If there be a submission by a feme sole, who marries before an award made, it will be a revocation, but no forfeiture. 1 Comy. Dig. 525. Kyd. Aw. 30.

So, if the woman and B submit on one part, and the woman marries, it will be a revocation as to B also. 1 Rol. 331. 1. 45.

VIII. OF THE AWARD; WHEN IT SHALL BE GOOD, AND WHEN NOT.

It may be necessary to premise, that, in the construction of awards, the courts both of England and of the United States have long since disregarded many of those nice distinctions to be met with in our old books. Awards are now liberally and favourably construed, so as to effectuate the intention of the arbitrators, appearing from the words of the whole. There are, however, two essentials in awards, that they be certain and finul. See i Burr. 277. 2 Wils. 268. 2 Call. 584. 1 H. & M. 69. 1 Dall. 174. 1 Caines (N. Y.) Term. Rep. 313. 2 Johns. (N. Y.) Rep. 61, 62.

1. An award ought to be pursuant to the submission; and therefore if it be made of a thing merely out of the submission it is void. 1 Rol. 242.1. 35. Kyd. Aw. 140.

As, if it be awarded, that a stranger shall do such an act, it is void for so much; as, that a stranger shall give a bond, &c. 1 Rol. 243. 1. 5. 247. 1. 10. 10 Co. 131. b. Kyd. Aw. 156, 160.

So, in general, an award of a thing to be done to a stranger is void. (1 Rol. 243. 1. 10. 10 Co. 131. b. Kyd. Aw. 156): but an award that money be paid to a stranger, where it is for the benefit of the party, is good; as if it be awarded that one of the parties shall pay so much to a creditor of the other party in discharge of a debt (Kyd. Aw. 158, 160); or where the stranger is a mere instrument (see Post. No. 7.) But if it be awarded that one of the parties shall procure a stranger to do an act, which he has no power to compel him to do, either by action at law, or bill in equity, it is void for so much; but if he have such power, it is good. Kyd. Aw. 188.

An award to pay upon the land, or within the house of a stranger, is void; for this obliges him to be a trespasser. 1 Rol. 247.

Otherwise, if it be at the house, for that does not make him a trespasser. 1 Rol. 247. 1 Com. Dig. 526.

2. An award of a thing which goes beyond the time of the submission is void; but an award of a general release of all demands till the time of the award is good; for no new controversy shall be intended to arise between the submission and award; and if it did, the award as to that only is void; for that was not within the submission, but is good for so much as goes to the time of the submission. And therefore it is a good performance to tender a release of all matters in controversy to the time of the submission. Also, if any new controversy has happened, which is not to be intended, he that pretends to excuse the nonperformance ought, by his pleading, to set it forth. See Salk. 74. Bunb, 250.

The power of arbitrators, to award the costs of suit, has been long unquestionable (see Kyd. Aw. 134); but whether they may allow the costs of the arbitration, as happening after the submission, seems not to have been clearly settled. See 1 Rol. 254. 1. 30. Cro. Jac. 578. 2 Term. Rep. 645. Kyd. Aw. (2nd edit.) 152. n. 8. Ibid. Append. p. 394. 3. An award of a thing not submitted is void; as, if the submission be of all matters depending, and the award be of all matters generally. 1 Rol. 243. 1. 25.

If the submission be, of all matters except an obligation, and the award be of all demands. 1 Rol. 261. 1. 2.

But if on a reference of all matters in difference between two part, ners, the award be that the partnership be dissolved; this is within the submission, and therefore good. 1 Blacks. Rep. 475.*

So, if the reference be of all matters in difference, in this cause, and general releases be awarded, it is good as to matters referred, though void as to the residue. 2 Blacks. Řep. 1117. See ante Div. V.

A submission of divers other matters, is equivalent to a general submission of all controversies between the parties; and under it, general releases may be awarded. 2 Caines 320.

4. If the submission be, 80 that the award be made of the premises, the award shall be of all matters in controversy, of which they have knowledge; otherwise it will be void. (1 Rol. 256. 1. 27. 8 Co. 98.) But neither the award nor umpirage need be stated to have been made of the premises; for it shall be so intended. See Kyd. Aw. 263-4. 2 Johns. 61.

The like law, if a submission be of all matters, so that the same award be made such a day, omitting, that it be made of the premises ; for the words, the same award, &c. are tantamount. Cro. Eliz. 858.

Lutw. 533.

If there be a submission to the award of A and B, so that, &c. and if they do not to an umpire, the clause so that extends to the umpirage. 1 Lev. 140.

If there be a submission of such and such things, specially named, so that, &c. an award not made of all is void; for they ought to take notice of them, being specially named in the submission, without other information. 1 Rol. 256. 1. 35.

And, upon a reference of all actions, controversies, &c. and also two distinct matters of difference; if the arbitrators omit to decide one of such distinct matters, that vitiates the whole award; which cannot therefore be enforced by attachment. 7 East, 81.

If the submission be so that, &c. the award is sufficient, if it be of all matters notified to the arbitrators, though there be other matters not notified. Cro. Jac. 200.

If the parties submit all matters in difference, so that the award be made before such a day, and the arbitrators determine all matters, except one, concerning which they give liberty to one of the parties to prosecute further, the award is void for the whole. Willes 268.

An award made upon a reference of all matters in difference between the parties, does not preclude the plaintiff from suing upon a cause of action subsisting against the defendant at the time of the reference, upon proof that the subject matter of such action was not laid before the arbitrators, nor included in the matters referred. 4 Term. Rep. 146.

So, if it appear that the matter of the suit was never laid before the arbitrators. And, in both these cases, if the defendant plead the award

In New-York, it has been held, that a submission may be of matters concerning the realty. Divers other matters, in a submission, extend to real as well as personal concerns; and an award directing the exchange of lands is good. 2 Caines (N. Y.) Term. Rep. 320.