in bar of the action, the plaintiff may reply, stating the fact, that the matter of the suit was not included in the reference, or submitted to the arbitrators; and they are competent witnesses to prove it. Ibid, and Kyd. Aw. 138. 181.

5. If there be a submission of all controversies, between A and B, of the one part, and C of the other, so that, &c. an award of all between A and C, omitting B, is void. 1 Rol. 261. 1. 15.

But if the submission be general, without a so that, &c. the award

may be of part of the matters in difference. 1 Rol. 256. Cro. Eliz.

838. 8 Co. 98. a.

6. But if a thing awarded to be done be out of the submission, it is immaterial; if the matters for which the award is made are within it. 1 Rol. 245. 1. 30. 1 H. & M. 67. S. P.

7. So, an award of a thing to be done to a stranger is good, where the stranger is only an instrument; as, to pay money to a stranger, for the use or benefit of the parties. 1 Rol. 247. 1 Salk. 74.

So, if a submission be by several, who are severally bound, an award that A and B pay, is good; for upon the whole of the case it appears, that B, though not named in the bond given by A, is not a stranger. Cro. Car. 433.

But an award does not bind a stranger to do any act, as a release, confirmation, &c. Mo. 3.

8. So, if an award exceeds, and goes to matters out of the submission, it is good for so much as is within the submission; as, if an award be, that A and a stranger pay, &c. it is good against A, and he is bound to pay, though it is void as to a stranger. 1 Kol. 244. 1. 25. See ante. No. 6.

Or, that A be bound with sureties, &c. shall be good as to A. 2 Lev. 6. Show. 82. Carth. 159.

9. And there shall not be a strained construction, to make it to be out of the submission: and, therefore, if there be a submission of all actions personal, so that, &c. and the award be, of and concerning the premises, that one shall pay so much at a future day, and then shall make a release of all actions personal; the release shall be only of all actions till the submission. 1 Rol. 256.

So, an award of general releases extends only to matters at the time of the submission. 3 Mod. 264.

10. And if an award does not appear not to be pursuant to the submission, it shall not be intended: and therefore, if an award of the fremises be of all matters till the time of the award, it is good; unless it be averred, that matters arose after the submission, and before the time of the award. 1 Rol. 244. See an excellent case, 2 Caines (N. Y.) Rep. 320.

So, a submission of all matters, so that the award be made of the premises, &c.; an award of the premises, of a single matter is good; for others shall not be intended unless they are shewn. 8 Co. 98. a. Cro. Jac. 285.

11. So, an award ought to be certain: and therefore, if the award be, that one shall make an obligation for the enjoyment of lands, without saying in what sum, it will be void for the uncertainty. 5 Co. 77. Cro, Jac. 314. Mo. 359.

But an award may be rendered certain by averment; as, if it be to pay a debt for which A was bound, without saying in what sum, it may be ascertained, by an averment, that he was bound only in such an obligation. 1 Rol. 263. 1. 17.

So, an award to pay to the executors of J. G. deceased, is sufficiently certain, and it may be averred who they are by name. 1 Dall. 174.

So, an award to make a release, pay money, &c. without saying at what time, is good; for, if a request be necessary, it must be in con venient time after the request; if there needs no request, it must be done in convenient time. 1 Salk. 69.

An award without a date, to do a thing within seven days after the date, is good; for the date shall be computed from the delivery. 1 Salk. 76.

But an award, that the defendant should pay to the plaintiff such a sum of money, unless within 21 days (which in fact was after the time limited for making the award) the defendant shall expnerate himself by affidavit from certain payments and receipts, in which case he was to pay a certain less sum, is uncertain and inconclusive. 7 Term. Rep.

73.

An award, that one shall pay the costs of a suit, generally is good. (2 Vent. 243. Carth, 157. 2 Wils. 268. 1 Call. 575.) And the court inay give costs, though the award does not mention them. 2 Call. 106.

12. An award ought to be possible and lawful. Kyd. Aw. 184, 185. If an award be to do a thing which is not physically and morally in the power of the party to perform, it is viod; as that he shall deliver up a deed which is in the custody of a person over whom he has no controul; that he shall procure a stranger to be bound with him, &c. or, that the defendant shall be bound with sureties, such as the plaintiff shall approve; for it may be impossible to force the approbation of the plaintiff. Kyd. Aw. 185, 186.

It was once held, that an award of damages for an injury, for which no damages are recoverable at law, is void, as for words, not actionable; but this has since been over-ruled. (see 2 Vent. 243. 3 Caines, 166.) But where the plaintiff's demand is founded on a contract against the positive provision of a statute, the court will not enforce an award. See 4 Dall. 298.

13. So, an award ought to be reasonable; and therefore, if the award be, that one shall release his land to the other in satisfaction of a trespass, it is void. 1 Rol. 249. See 1 Com. Dig. 547.

14. So, an award ought to be mutual; and therefore if it be of one part only, and nothing of the other, it shall be void. 1 Rol. 253.

But an award, ordering payment of a sum of money, carries in itself a mutuality, as it must be held in satisfaction of the matter submitted. See Livingston J. 3(N. Y.) Term. Rep. 255. See also, 1 (N.Y.) Term. Rep. 313, &c.

15. An award ought to be final; and therefore an award to stand to the arbitrament of such an one is void. 1 Comy. Dig. "ARBITRAMENT," (E15)

Arbitrators Itave no power to delegate their trust and authority to others; nor to erect a new and arbitrary tribunal, to determine future controversies. 4 Dall. 74, 75. B. R. H. 172, 181. Nott v. Long, S. P.

An award to pay so much, or if it be proved by such a day, &c. that then there shall be a further award, is void. 1 Rol. 251. 1. 5.

Or, to pay so much, and if there be proof within a month of more due, to pay that also. I Rol. 251. 1. 30.

Or, to make submission to B, in such manner and place as B shall say ; for B will determine for himself. 1 Salk, 71.

Or, that one shall give a bond to the other for such a sum, with such sureties as he shall approve, and that they shall make mutual releasesį for, if he will not approve of the securities, nothing is done. 3 Mod.

272.

But an award, to give a bond for payment, is good. 1 Rol. 249. Or, to give such a bond as his counsel shall advise.

1 Rol. 250. 1. 20. So, an award that one party shall pay the other a specific sum of money is sufficient and final, without a release. 2 Jolins. (N. Y.) Rep. 57.

An award, that all suits shall cease, is good (1 Salk. 74.) Or, that a bill in equity be dismissed (Ibid. 75.) Or, to enter a retraxit. Kyd.

Aw. 211.

It has been said that an award, that each shall be non-suited, or discontinue his action against the other, is not good; for they may sue de novo (1 Comy. Dig. "ARBITRAMENT," [E 15.] 2 Stra 1024) As to the award of a non-suit, Mr. Kyd observes, that it has been held not to be final, from the time of the year-books to the present day (Kyd. Aw. 210.); but with respect to the discontinuance, he holds a different opinion (Ibid.) It was, however, settled in the state of New York, in 1803, that an award," that the said suit shall be no further prosecuted," is sufficiently certain and final (see 1 Caines 304.) And in a very late case in England, decided in 1808, it was held that an "award, that certain "actions be discontinued, and each party pay his own costs," is final and good. And the cases relied upon from Comyns's Digest and Strange, above cited, were over-ruled.

If the award be of a thing to be done at a future day, it is final. if it must then be absolutely done; as if it be to pay money at three several dars to come. Palm. 110. Kyd. Aw. 215.

So, to give a note or a bond, for the payment of money at a future day, 2 Stra, 108.

But if it depend on a condition whether it must be executed or not, then it is not final; as if it be, that money shall be refunded, if it appear afterwards that the party was not entitled to retain it. Palm, 110.

But if the award directs, that should any mere clerical mistakes, in the calculations, be discovered, the defendant shall refund; this does not open the merits of the dispute, but the award is final. 2 Johns. 57..

Where the first part of an award is final, and a proviso is afterwards added, giving a power to either party to render it void, by an act to be done within a time limited, after that appointed for the performance of that which makes it final, the proviso is repugnant to the former, and will be rejected. Poph. 15, 16. See 1 H. & M. 67.

But where the proviso is not merely repugnant to the other part of the award, but so connected with it, that, on the construction of the whole, the award is not final, there the whole award is void. Kyd. Aw. 217.

16. An award must be entire; but it may be conditional; in the. alternative; or with a penalty. See Kyd. Aw. 203. 1 Comy. Dig. 535. 17. So, an award ought to give a benefit or satisfaction for the thing submitted. And therefore if an award orders nothing to be paid or done, it shall be void. 1 Rol. 251. 1 Comy. Dig. 536.

As, if an award be that one shall go to Rome; for this is no advantage to the other. 1 Rol. 252.

But an award, that all differences do cease, is good, for this is a mutua! advantage. Mod. Cas. 34, 35.

Mutual releases are advantageous, and therefore an award of them is good; and the condition of a bond to stand to an award will be broken, by not giving them, though there be no other means of compelling performance, than by an action on the bond. Kyd. Aw. 192. 18. If an award be void for all that is to be done on one part, it is void for the whole. 1 Rol. 258,

When a report of referees awards money to be and certain other things to be done on the other, enforce both, they will certainly enforce neither. Aw. 247, 249.

paid on one side, if the court cannot 1 Dall. 364. Kyd.

But though the court may not be able to do this by execution, yet, if they can do it by attachment, the remedies are mutual, though not by the same kind of process. Ibid.

19. But an award may be void for part, and good for the residue. 2 Wils. 268, 293. Willes 62, 66. Kyd. Aw. 243.

And therefore, if an award be of matters out of the submission, it is void only for those. Kyd. Aw. 245. 1 H. & M. 67.

So, an award unreasonable, or impossible in part, shall be good for the residue. 1 Rol. 259. Kyd. Aw. 254.

Yet if, by the nullity of the award in any part, the one shall not have all the advantage intended him as a recompence for that which he does to the other, it shall be void for the whole, though it would be mutual, notwithstanding the null part were rejected. 2 Saund. 295. b, Wms. note.

As, an award that A pay ten pounds, and B, his wife and son, convey land to him, is void for the whole; for, though by the conveyance of B the award would be mutual, yet he has not all the benefit intended" for him, for perhaps the estate was in his wife and son. 1 Rol. 259.

20. A parol award shall be void, which awards money to be paid by one, and a release by the other; for there is no remedy for the release, where the award was by parol. 1 Sid. 160, for a parol award gives no remedy for a collateral thing. 1 Lev. 113.

But an award by parol may be good, where the submission does not. expressly require it to be in writing. Kyd. Aw. 116, 260, 261.

Though not the express words, but the effect and substance of them, only are mentioned. Carth. 157.

Though the submission says, so that it be made and ready to be delivered, &c. for when it is made, it is ready to be delivered. 1 Sal. 75.

Construction of awards.

It is now determined, that in the construction of awards, greater latitude, and less strictness, should be observed than heretofore; as,

in the following case, which was an award made by a cobler, on a submission of all disputes. "Whereas there has been a suit at law between the parties, that has run to a great expence on both sides; and it being left to me to make an end of it: I determine that they shall each of them pay their own charges at law; and that the defendant pay the plaintiff five shillings, for his making the first breach in the law." And the award was held to be sufficiently certain and final. 1 Burr. 274. Hawkins v. Colclough. See ante. No. VIII. and Kyd,

Aw. 228, et seq.

T

IX. OF THE UMPIRE.

If there be a submission to arbitrament, it may be, that if the arbi trators do not agree, the parties shall stand to the umpirage of such an xone. 1 Comy. Dig. "ARBITRAMENT," (E 20.)

Or, if they do not agree for all the matters, they shall stand to an umfirage for the residue. 1 Rol. 262. 1. 50.

And the words shall be construed liberally; and therefore, a submission to the award of A and B and D, being an umpire, is tantamount, as that D shall be an umpire. 1 Rol. 262. 1. 5.

And if the umpire elected refuse, they may choose another. 3 Lev. 263. 2 Vent. 114, 115. Cont. per Holt. unless the election of him who refuses be conditional, if he does accept it. 1 Salk. 70. But see a different opinion to that of Holl, 3 Lev, 236. 2 Vent. 113, and 1 Salk. 70, Evans's note:

If the submission be, so that there be an award before the first of M. and if they do not agree to stand to an umpire; they may elect after the first of M. (2 Mod. 169.) provided it be within the time allowed the umpire: See 1 Salk. 70, Evans's note.

But now it is decided that arbitrators, having power to elect an umpire, may elect one before they enter into an examination of the matters referred to them at all. 2 Term. Rep. 644. 2 Johns. 57.

X. WHAT SHALL BE A BREACH OF THE AWARD.

If a man does not do all that the award requires of him, it will be a breach as, if an award be, that A enjoy an house, paying rent to B, if he does not pay the rent, it will be a breach. Cro. Eliz. 211.

But failure in a matter collateral to the award is not a breach: as, if an award be, that A make a lease to B, rendering rent; if B do not pay the rent, it is no breach, for A has a remedy for it by distress. Mo. 3. See 1 Comy. Dig. 538-9.

XI. OF THE REMEDY FOR NON-PERFORMANCE.

1. If the submission be by bond, and the award be not performed, an action of debt on the penalty lies. 1 Comy. Dig. 539.

2. If by articles of agreement, indenture, &c. under hand and seal, an action of covenant may be brought. 2 Mod. 73.

If one of two executors refer, by deed, a matter in his own right, and one in right of his testator, and the referees thereon award a sum of money to himself, and another to him and his co-executor, the award is good. 1 Call, 57 5.