CH. 13. 3 Wood's 600-Stiles 1 Sid. 160. 3 Wood's 1 Com. D. 524.-Cro. El. 223.- 1 Com. D. Abr. 20, 21. &c.; the old opinion was, that no action lay to compel a performance; but otherwise is the case in 6 Modern; and 1 Salk. 76; 2 Ld. Raym. 1039-is a bar though not performed. 2. The effect, a bond or a bond or an assumpsit. If there be one or the other, an action lies thereon to compel performance, even of a collateral thing awarded, but the action is on the bond or the assumpsit; a collateral thing was deemed any thing but money. And if the award be, that a release be made, or other collateral matter be done, by such a day, and if not then done, he who ought to make it &c., shall pay a sum of money, this is good, even on a parol submission; for though there is no action or remedy on the award for the release or collateral matter, yet there is for the money, or on the bond or assumpsit, for not performing. §3. The award's operation to change the property. The Con. 44, 45.- award alters the property of chattels; as if the award be, that J. S. have a horse, in question between the parties, this gives him the horse, and he may have detinue for him; it operates as a grant, But as to a freehold, an award "neither gives a 524-1 Bac. title nor binds a right," " because it cannot pass a freehold with4 Co. 1, in out deed." And as to a term, or chattel real, the award must Vernon's case. be, "that the party shall have the term.' A freehold estate or interest may pass from one to another by judgment of court 244-2 Cro. and execution, but not by award; and no freehold or interest 447. therein can be submitted, not even by deed; for it can be only to submit, and the award thereon can be no conveyance; and no collateral satisfaction can bar a real action. But if the submission be by bond, and the land awarded, and if the party refuse to convey, he forfeits the bond, and it may be sued. Nor can partition be made by an award. -1 Com. D. 524.-1 Rol. 2 Wils. 148, Wells' case, 4. Where a freehold is awarded, assumpsit lies only in one case, that is, when the submission is by writing signed, for if by deed, an action of a different kind lies on it, and if by parol, the statute of frauds applies. 5. The doctrine of construction, as to awards, has been essentially altered in a century and a half. Formerly the courts of law construed them with great strictness; but for more than a century past with great liberality; thinking that when parties end their controversies by the decisions of judges of their own choosing, these ought to be valid and effectual, if they can be by any fair and liberal construction; and further, that it is unreasonable to tie the common people down in their transactions, to the strict legal notions, critical and nice distinctions, of the bar and bench. 6. It seems to be a rule in the English courts in debt on an award, and nil debet pleaded, not to allow partiality in the arA. D. 1762. bitrators to be given in evidence; for the court said the plea of 99 CH. 13. Art. 4. 3 East 21, nil debet, primâ facie, admitted the award, and then the objec- Morris v. 7. In ejectment for lands it appeared that three years 3 East 15, before, a prior ejectment was brought against the deft. on the Doe, lessee of demise of the same lessor, for a part of the same land, being Prosser, A.D. leasehold, and it was referred by bonds, and the referee" award- 1802. ed the premises to be delivered up to Morris," but the deft. refused to do it, and retained possession. At the trial in 1802 the deft. was not allowed to go into the title. Per Curiam," the award cannot have the operation of conveying the land; but there is no reason, why the deft. may not conclude himself by his own agreement from disputing the title of the lessor in ejectment. The parties consented, that the award of the arbitrator chosen by themselves, should be conclusive, as to the right to the land in controversy between them, and this is sufficient to bind them in the action of ejectment. 8. The common practice in England of issuing attachments against a party for not performing an award, has never been adopted in Massachusetts, as the 9 and 10th of William III, c. 15, has not been adopted in this state. Ravee v. Far Golightly v. 9. In this case all matters in difference were referred, 4 T. R. 146, and an award made. The court held, that the plt. might sue mer.-See for a cause of action existing against the deft. at the time of 147, note, the reference, on proof this cause was not before the referees, nor included in the matter referred; and the plt. was cited 1 Phil. admitted by one of the referees to prove that this matter Evid. 254, had never been laid before them by the parties, and that they N. P. 180, 255.-4 Esp. had not taken it into consideration." And so according to 66 CH. 13. nett.- Golightly v. Jellicoe, even after general releases awarded and executed. 10. When a sum of money is well awarded, all the books 2 Stra. 1082, agree, that an action of assumpsit, or debt, as the case is, lies Booth v. Gar- to recover this sum; that to give a note to pay at a future day is the same as money; and that an award not good in law is no award; and to support this action of assumpsit, the award must be good in all its parts; but the plt's. declaration need only state so much due to him on it, inter alia, but a plea must shew the whole award; in debt on it, a mutual submission must be shewn in the declaration. Con. 3, 4, 5. -Bac. Arb. 1 Bac. Abr. Salk. 76, case 6 Mod. § 11. But when a collateral thing, as a horse, a release, a feoffment, &c. is awarded, the case is not so clear. The anBaily--Same cient opinion was, that no action lay to compel a performance. 221, by the But in Salkeld, Holt C. J. held otherwise, against the opinion name of Bois- of Powell. This case was trespass, and in it is stated, that the loe v. Bailey, cited as law, opinion had been, that an award of a collateral thing in satisBac. Arb. 90, faction was no good plea, unless the deft. shewed a perform 91. 3 Wood's Con. 4. Kyd on Awards 8, 189, 190, Philips v. Knightly.6 Co. 78. Cro. El. 432. 1 Com. D. 537, 540. ance; for they likened this to accord and satisfaction, which is no plea unless executed. Yet it was held, that when the award was of a sum of money, it was good, and that the reason of the difference which they went upon was, that there was a remedy on the award for the money, but not for the collateral thing. But Holt C. J. held, the law is now otherwise (3d of Ann) and that an award is a good plea whether it be of money or a collateral thing, as a hat or a horse, "because the submission is a mutual promise upon which an action lies." And performance need not be averred in either case, for the remedy is alike. This opinion of Holt against that of Powell does not appear sufficient in itself to change the law in this respect, but it is stated in this case of Parsloe v. Baily, that the law in the third year of Queen Ann had been altered; and it is now very clear that Holt's opinion in this respect is law. Award A shall execute a covenant to indemnify B is good. 2 Strange 903. And it is now settled, "that the assent of a party to submit a matter to arbitration is a sufficient consideration, even though he has no cause of action." 2 Ch. on. Pl. 80. According to the case of Samon and other cases, it seems by the old law, if the deft. in consideration of 6d. paid him, promised to perform the award, he was held, though a collateral thing was awarded, for he then expressly promised on a sufficient consideration, and assumpsit lay, and the question must have arisen when he only barely submitted, the idea must have been that he merely submitted, and did not assume to perform, but the award to be as a judgment of court, if good, and gave a new action, it was well; if no new action, the old one remained. 12. Comyns states, that a parol award gives no remedy for a collateral thing, as a release &c., and then states, that "if the submission be by parol, assumpsit lies for non-performBut "otherwise, if a collateral thing is awarded and not money." Cн. 13 Art. 4. 13. These cases only shew, that if the submission, or award be by parol, no action lies on it for a collateral thing awarded. This may be true in a case where, by the statute of frauds and perjuries, the party is not bound but by writing signed, yet not to establish any general principle. On general principles the action on the award, for a collateral thing awarded, is clearly supported; for whenever one submits his disputes and matters to the judgment of others chosen by him, he is, on moral principles and in reason, bound to perform what he is awarded to do. It is trifling and making the submission and award a nullity, if he do not, and if there be no action. For money in many cases cannot be awarded; when he submits in such cases the law will not imply he means the whole a nullity; but will imply he 3 Bl. Com. assumes to perform; and for as strong reasons as it implies, which is the case, a party to a judgment assumes to pay it; and if he ought to perform, the law on well settled principles will presume his assumpsit to perform. And if later cases do not wholly confirm, they tend very strongly to confirm this doctrine. 14. But this reasoning does not hold, when the award itself cannot extinguish the old cause of action, as when this rests on a superior title; as where I have a freehold estate, a debt due to me on a specialty, or a judgment, and submit it, as the award itself cannot extinguish my right to either, but my action thereon will remain till I give a deed or a release, the law will not imply I assume to perform, unless it be to make a deed or a release, or do some other act awarded, which, when done, extinguishes the right. If this be done, the award ascertains what I am to do, that is, to convey my freehold or extinguish such my old right by my deed; this being done, the award answers a legal purpose, and as I ought by my own submission to do so, why may not the law presume I promise to do so? But if the award, when performed, leaves the old right existing, there is no ground for such a presumption. So many cases may be reconciled. 158, 159. case. 15. When the award itself extinguishes not a specialty, Bac. Arb. 22. debt, &c. "It appears by all the books, that neither award -6 Co. 43, nor accord and satisfaction is a good plea in bar when the ac- 44, Blake's tion is grounded on a deed," and a certain duty arises from it, as a sum of money &c.; but otherwise, when it arises not from the deed only, but on a subsequent default also, as on a covenant to repair and default in not repairing, here an award is a good bar. Сн. 13. Bac. Arb. 11. 5 Co. 78, Sampon's case.-Bac. Arb. 123. § 16. A good award only bars the old assumpsit, or gives a new one. The many and various defects that make an award bad cannot here have place in detail. Whenever an award is made, it is ready to be delivered; and this delivery need not be averred, Salk. 69; and if refused on request, this must be pleaded. An award must be pleaded according to its legal effect, and Bac. Arb. 99, a void part need not be pleaded, for the void part is not part 100, 194, 197. of the award, and may be treated in pleading generally, as though it never existed. Stra. 116, ART. 5. General principles necessary in every award. First, the award must be "made in respect to persons and Williamson. things according to the submission," as well in form as sub -2 Stra. 1024, Ormett v. Breame. 1 Ld. Raym. 611, Clap stance. Second, it must "be beneficial and appoint something advantageous to each party." Award good without date, 2 Ld. Raym. 1076. 3. Third, it must "be possible and lawful." Fourth, it must "be certain and final." Award one party accept a thing cott v. Davy does not oblige the other to deliver it. Where an award cannot be corrected after delivered, 8 East 54, Irvine v. Elnon. 2 T. R. 644, Roe v. Doe. 2 Barnes' 4. Umpire when appointed. He has power to award costs as a necessary consequence to his authority, though not expressed; and he may be appointed by the arbitrators before they enter upon an examination of the matters referred to them; but Salk. 70, Holt C. J. held, the appointment before the time expired for making an award by the arbitrators, void. 5. Where three arbitrators, or the major part of them may Notes 53, 57. award, all ought to be together; for though two only may sign the award, yet the reasons of the third in the meeting and hearing may alter the opinion af the other two, therefore he is not to be excluded by fraud, but if he have due notice of the meeting, and will not attend, the meeting of the two is regular, and their authority sufficient, otherwise if he had no notice to attend. 1 Johns. Ca. 334. -Bac. Arb. 277, Sallows v. Gerting. Bac. Arb. 12, 97, 98, 101 to 105, 13.-Rol. Abr. 244, 247, 248.Dyer 242. 6. An award that directs any thing to be done to a stranger, is good only when there is a remedy in law or equity to 135-10 Co. compel performance of it, or only when the stranger is made a mere instrument, as a trustee to a party, or when he is connected as the servant, or a near relation of the party &c. ; in either of which cases the thing to be done is in substance to the party. So it is good when any thing is awarded to be done Bird v Bird. by a stranger, only when there is a remedy to compel a per433.-Cro. formance of the thing awarded to be done. But an award El. 66, 758.-- that one party make an estate for life to the other, remainder Bac. Abr. 99, in fee to a stranger, is void as to the stranger, but good as 1 Salk. 74, -Cro. Car. 105, 135, Gray v. Wicker. to the particular estate or party. 1 Wils. 28, 58. |