In such case he may sue on the covenant of submission in his own name, and it will not be a variance. Ibid.

3. Or, debt lies for a sum awarded. Cro. Jac. 354. 1 Leo. 72. 4. If the submission be by parol, assumpsit lies for non-performance. (1 Rol. 7. 1. 15.); or an attachment.

Barnes 54.

5. If the submission be by rule of court, an attachment lies for nonperformance. (1 Comy. Dig. 521.) And this was the practice at common law, before the statute of 9 and 10 W. III. (See Kyd. Aw, 313. 1 Dall. 365.) But, in Virginia, the usual process is an execution, as authorised by the act.

Though the doctrine is laid down in general terms above, “that on a submission by rule of court an attachment will lie for non-performance," and is, perhaps, warranted by practice; yet in the case of Lucas v. Wilson. (2 Burr. 701.) the court refused an attachment, where the reference was made while the cause was depending, saying, that such references were not within the act, which only applied to submissions where no cause was depending.

With respect to the pleadings in awards the following rules are essentially necessary to be known.

(1) If an action be upon an obligation, &c. for performance of an award; the defendant cannot plead performance generally; but must first take Oyer of the obligation and condition, and then show the award, and how he has performed it. Mo. 3.

And must shew performance of the whole award on his part. (3 Lev. 24.) Or, a tender and refusal, which is tantamount. Ibid.

And it is sufficient, that the defendant alledges, that he performed as much as the words of the award require him to perform: as, if an award be, that a suit do cease, and the plaintiff stand acquitted of it, it is sufficient to say, that he did not prosecute the suit, but the plaintiff was thence discharged of it, without shewing a discharge in fact. Cro. Jac. 340. 1 Rol. 7. 2 Bulst. 93.

(2) So, to debt on an obligation for performance of an award, the defendant, after oyer of the condition, may plead, that the arbitrators made no award. 2 Saund. 184. Lev. Ent. 40.

If he pleads no award, he can say nothing by rejoinder, but what shews the award void. (1 Lev. 245.) He cannot confess, and avoid. 2 Caines 320.

If an award be void, it is safest to plead no such award; for if he sets out the award, and pleads performance, the plaintiff by his replication may say, that the award was also in such a manner (which will make it good) and join issue upon the performance, and the defendant cannot afterwards deny or traverse the award. 1 Rol. 6. 1 Comy. Dig. 541. And if the defendant plead a bad plea, the plaintiff may demur, and shall have judgment, without shewing the award in his replication, or assigning any breach. 3 Lev. 17.

Yet if he plead no award, and the plaintiff shews an award upon a submission so that, &c. (which would be a conditional submission) he cannot say that there were other contests of which there was no award for that will be a departure. 1 Lev. 127. I Wils. 122.

(3) If the defendant pleads, that the arbitrators mude no award, the plaintiff by his replication must shew the award, and assign a breach of it. Lev. Ent. 40. 1 Comy. Dig. 541.

And the plaintiff in debt upon the obligation must shew the whole arbitrament; and therefore, to say, amongst other things it was awarded, is not good. Li. 313. Kyd. Aw. 289.

But in debt upon the award, the plaintiff may declare, that among other things it was awarded. See post (5).

In an action on the bond, the plaintiff need not aver a mutual submission, but it is otherwise in debt on the award. 2 Stra. 923.

If the plaintiff, in debt on the bond, sets forth an award in his replication, and there are material omissions, he cannot recover; otherwise, if the omissions be in a void part of the award. 1 Salk. 72. See Kyd. Aw. 280.

If the arbitrament shewn be void, or not well pleaded, the defendant may demur, and have judgment for him. Comy. Dig. 542.

But if the award shewn be good as to part, and void as to part, though he must set out the whole award, yet he may assign as a breach only non-performance of that which is good, and on demurrer, which confesses the breach assigned, judgment shall be given for the penalty of the bond, which will be a bar to any other action on the same bond. 2 Wils. 268.

If the defendant shew an award imperfectly in his bar, the plaintiff in his replication must shew the whole award, otherwise he might be

tricked.

1 Saund. 326.

(4) So, the plaintiff by his replication must shew that the award was made in all points pursuant to the authority of the arbitrators. 1 Comy. Dig. 542.

And therefore, if an award ought to be made before such a day, the plaintiff shall shew it was made accordingly. Ibid.

If it ought to be ready to be delivered to the parties before such a day, he must shew that it was ready to be delivered accordingly. 416. 1. 5.

1 Rol.

If the award was to be made in writing, under hand and seal, and the plaintiff replies that it was made in writing, it is not well. Str.

116.

If it was to be under hand and seal, if he does not alledge, that it was sealed, it is bad. Cro. Jac. 278.

Or, if he does not say under his hand, though he produces the award sealed. 2 Mod. 77. Pal. 109, 112, 121. 2 Rol. 243. 1 Buist. 110.

If it ought to be delivered to either of the parties, he ought to ailedge a delivery to both. 2 Rol. 250. Cro. Eliz. 797.

So, a parol award, if it be pleaded that it was ready to be delivered, is good; for when it is pronounced, it is a delivery. 1 Salk. 75. Mod. Ca, 160, 176.

If there be a submission, to be delivered such a day and place; if he alledges a delivery to the parties the day before, it is sufficient. 2 Lev. 68.

If it be, to be delivered to the party who desires it; it is not necessary to alledge that it was delivered; for it shall come from the other side, that it was desired. 3 Mod. 330. Sho. 242.

If an award was by parol, it is sufficient to shew the substance or effect of it; for the words are not necessary. 2 Vent. 242.

If there was an award to do two things, and as to one, it was not within the submission; it is sufficient to say that he performed the other. 1 Comy. Dig. 543.

So, if an award be to pay so much, or to give surety to pay so much; it is sufficient to say, that he did not pay, for the other part of the disjunctive was void. Sav. 120.

If the defendant pleads no such award, it is not sufficient, that the plaintiff shews the award, he must also assign a breach. Yelv. 78. But if the defendant plead a collateral matter, &c. and the plaintiff join issue upon it, he need not assign a breach. Yelv. 79. Lut, 528.

3 Lev. 24.

If the plaintiff shews an award, and assigns a breach, the defendant cannot aftewards alledge payment, or performance of the thing in which the breach was assigned, for that will be a departure. 1 Comy. Dig. 544.

(5) In debt on the award, the plaintiff need not set forth the whole award, only what is necessary to support his claim, and the defendant may impeach the award, if he can. 1 Burr, 278. 2 Johns. 57.

And the declaration must aver a mutual submission, though it is not necessary in an action on the bond. 2 Stra. 923.

If the declaration be, that so much was awarded to the plaintiff, without shewing the award of the other part, it is good; for the defendant shall not plead no such arbitrament, but nil debet; and if no award, or a void award, be given in evidence, the issue shall be for the defendant. 1 Comy. Dig. 540.

On nil debet pleaded, to an action of debt upon an award, the defendant cannot give in evidence partiality in the arbitrators. 2 Wils.

148.

If in debt for a sum awarded, the plaintiff shews a defective award, though more than he need to do, the declaration is bad. 1 Comy. Dig. 540.

(6) If assumpsit be brought for not performing an award, the declaration must shew an award good in all respects. 1 Comy. Dig. 540. And it is said that a parol award is not good for a collateral thing; but only for the payment of money. Ibid.

XII. HOW AN AWARD MAY BE RELIEVED AGAINST.

An award may, in some cases, be relieved against, in a court of common law; but "the court will not enter at all into the merits of the matter referred to arbitration; but only take into consideration such legal objections as appear upon the face of the award, and such objections as go to the misbehaviour of the arbitrators." 2 Burr. 701. See ante. Div. VI. No. 5.

If the award be made under a reference by rule of court, according to the statute, a motion to set it aside for extrinsic matter must be made within the time limited by the act; but objections for illegality, appearing on the face of the award itself, may be made at any time. (7 Term. Rep. 73.) But where the submission is by reference at nisi prius, there is no time limited for objecting to an award for any cause; whether for

corruption, or for objections appearing on the face of the award. Kyd. Aw. 341.

But where the cause was depending when the rule of reference was made, an attachment for non-performance has been refused; the court holding that such references were not within the statute, but stood upon the common law, independent of the statute; which was made to put submissions to arbitration, in cases where no cause was depending, upon the same footing as those where there was a cause depending. (2 Burr. 701.) But, see Kyd on Awards, 313, 340, where it is said, the court in ALL CASES would grant an attachment.

A court of chancery may correct a palpable mistake, or miscalculation, made by arbitrators; or relieve against their partiality or corruption. (3 Atk. 609. [644.] 2 Ves. jr. 15. 2 Johns 63. S. P.) Or, for exceeding their power; and an award contrary to law is of that description. 2 Ves.jr. 15.

And the party injured may bring a bill against the other party, but not against the arbitrators. 3 Atk. 609-10. [644.]

But there is no remedy in the above cases, at law, where the award is made under a submission not within the statute. 2 Wils. 148. 2 Ves. 315. 2 Johns. 63.

An action at law will not lie to recover a sum of money, being the amount of a mistake made by arbitrators, in their calculation. (2 Johns. 63.) Objections to an award being such as might equally have been the subject of jurisdiction in a court of law, where the reference was made a rule of court, chancery will not interpose. 9 Ves. jr. 67.

A bill lies to set aside, for fraud, an award made a rule of a court of law, under the statute. 2 Ves. jr. 451.

If an arbitrator be charged with combination, he may be made a defendant; and on proof of the fact, he shall pay costs. 2 Ves. jr.

453.

If a bill be brought to set aside the award, and the defendant pleads the award, but by his answer submits to amend errors, the court will order the plea to stand for an answer, though the proper proceeding should have been in the court of law, by shewing cause against the attachment. 2 Atk. 155.

A court of equity will take cognizance of an award after the time elapsed, by the statute. Bunb. 265.

So, chancery will enforce an award, made on submission of the parties, without an order of the court. 1 Ch. R. 85, 142. 2 Comy. Dig. $73. 2 P. Wms. 450.

So, a court of chancery will decree the specific performance of an award to convey an estate, where the party submitting has received the money, the consideration for doing it. 3 P. Wms. 187.

So, if an award made by the order court be unreasonable, chancery will avoid it; as, if it be awarded that a guardian shall give bond that the infant at full age shall convey. Ca. Ch. 280.

Or, if the award in any case bind an infant. Ibid.

So, if it appear that the arbitrators mistook the fact or the law. (2 Vern, 705.) So also will a court of law correct an error in law. See 1 Bl. Rep. 364.

But an award cannot be impeached for an erroneous judgment, in regard to facts; it may allow compound interest due by contract,

either express or implied, from the nature of the transaction; and, whether it be due or not, is a conclusion of fact, on which the judgment of the arbitrators is final. 2 Ves. jr. 24.

An award ought not to be set aside, either in a court of law or equity, on the ground of a mistake in the judgment of the arbitrators, unless that mistake be very palpable; a mere difference of opinion between the court and arbitrators, in a doubtful case, not being sufficient to authorise such interference. 2 H. & M. 408.

Reasons for setting aside awards are, either for some illegality, or injustice apparent on the face of them, or for misbehaviour in the arbitrators. 1 Wash. 14.

To set aside an award for mistake in the arbitrators, either as to law or fact, the mistake must appear upon the face of it. Or, if the arbitrators will certify the principles upon which they proceeded, the court will set aside the award, if improperly made. Affidavits may be intro duced, but they must go to prove misbehaviour, but not mistakes in law or fact. Wash. 158.

But no calculations, or grounds for an award, which are not incorporated in it, or annexed to it at the time of delivery, are to be regarded, or received as reasons or grounds to avoid it. 1 H. & M. 67.

In Pennsylvania, where there is no court of equity, and the law of that state, in relation to references, makes it necessary that the report of the referees should be approved by the court, it has been considered the duty of the court to enquire into the allegations which have been made against such reports; in doing which, they have always confined themselves to two points: 1st, Whether there is an evident mistake in matter of fact; or 2dly, whether the referees have clearly erred in matter of law. 1 Dall. 315.

Money voluntarily paid in compliance with an award cannot be recovered back, in an action of indebitatus assumpsit. 1 Day's Ca. Err. 130.

An award performed will be a sufficient bar to an action, for the matters submitted, and awarded upon, until regularly set aside; nor can the plaintiff in such an action attack its validity, by alledging fraud in the party, in obtaining it. Ibid.

Where an award on the face of it is final, nothing dehors the award can be pleaded, or given in evidence against it. 3 Johns. 367.

But it is improper to come into a court of chancery to set aside an award, merely for an objection in point of form. 2 Atk. 501.

If part of the evidence is not shewn to one of the arbitrators, and he swears if he had seen it, that he would not have made the award, it shall be set aside. 1 Atk. 63.

So, chancery will admit exceptions, though the reference is by order of court, with a clause that the award shall be confirmed by the court, without exception or appeal. 2 Vern. 109.

If one of the parties, hearing that the arbitrator intends to make his award, desires him to defer it till he can talk with him to support. stated accounts, notwithstanding which he makes his award, the time expiring in two or three days, the court will set aside the award. S P. Wms. 261.

A court of chancery will set aside an award, if it be made only for part of the matters referred. 1 Ca. Ch. 87, 186.