The place of making an award is substance to be averred. All the arbitrators must sign if not otherwise provided for. 6 Johns. R. 39. Сн. 13. Art. 6. -1 Com. D. 7. A submission is made by A, as attorney to B, as to ac- Salk 70, counts between B and C; this binds A the attorney, and not Bacon v. Duberry.B his principal, for he is a stranger to the award and submis- 12 Mod. 129, sion; and if the award be that A the attorney, pay C £400, 130-Bac. and C and the attorney make mutual releases, it is bad and Arb. 95, 97. not mutual, for the attorney refers the business of another, and 526.-ILd. a release to him is no release to his principal B, and so no bar Raym. 246. to any demands C may have against B. So if B is to pay the £400, he is to have nothing for it; otherwise had the release been awarded to the attorney to the use of B his principal. But A may submit for B. § 8. An award pleaded to be de et super præmissis is not enough, it must appear to be so in itself. 2P. W. 449.-3 Wils. 28,58, Cay -Comb. 129. hill v. Fitzgerald. 9. So money paid on a void award, and accepted, may be 8 T. R. 371, good, and pleaded as accord and satisfaction. And if an award Bansel v. be to A, as attorney to B, A may sue in his own right, for this Leigh. makes A trustee to B, and entitles him to recover to his use. Knight v. Simon v. Final. An award that all suits shall cease, means forever, 74. and is final. So that if a suit in chancery be dismissed, so Gadd, Bac. that the plt. retract his suit, for then he cannot sue again for the Arb. 142.-same thing; but not that he be nonsuit or discontinue, for then 1 Com. D. he may commence another action for the same thing. 635. mil, 10. A parol award may be pleaded ready to be deliver- Salk. 75, ed, and there may be an oral as well as a manual tradition. Oates v. BroBut the judges will now "rarely enforce the performance of 6 Mod. 176. an award, when either the submission or the award is by pa--Bac. Arb. rol, because it lays so great a foundation for perjury." All 20, 88. doubts are those of the parties, not any the referees may have. 11. In this case it was decided, that where A brought two 4 Mass. R. actions against B, which they referred, the referees could not 448, Worthen report any thing to B, except costs in those actions; no demand v. Stevens. being brought into view on his side, but for costs in these actions. Salk. 75, Win ART. 6. An award, when certain or not. $1. An award that one party pay the other £10, and the costs of a suit now ter v. Garlick. depending in an inferior court, and then to give mutual releases, is uncertain and bad; but to pay such costs as the master shall tax, is good, for that is certain which can be reduced to certainty. In the first case there is no rule of calculation, in the second there is. 2 Ld. Raym. 1141, Bill v. Gipps. §2. But an award to pay as much as such lands are worth, Cro. Car. is uncertain and bad; there is no way to ascertain this. 383.-Stra. 1055.-Skin. 3. So an award to pay as much as is due in con- 248. science, is uncertain and void, as it does not even appoint a CH. 13. Style 28.- Abr. 142, & Winter v. above.-See 146, 147. Bac. Arb. 147. way to find what is due. The award must be certain and decisive. But when the words of the award have relation to things certain out of it, these things may be averred; for this is the express mind of the arbitrators, which they have expressly referred to. And thus by referring to a thing dehors in making the award, the thing is made a part of it, and that being certain, the whole is thereby made certain; and there is certainty in awards, as in other cases, whenever the case comes within the rule of certum est quod certum reddi potest. Barry v. Rush, 1 D. & E. 691.-Ross v. Hodges, 1 Ld. Raym. 234. ART. 7. Mutual or not. 1. "An award must be mutual, and appoint something advantageous to each party," or it is bad. As where it awards that one party go to Rome, when this can be of no advantage to the other, it is void. But a penny or a release may be awarded. $2. So an award is void, and on one 'side only, when it is awarded that A, one party, pay B, the other, £10, and that B pay for making the writings of the award; for B is to do nothing but make the writings. This is an old case. 3. So one takes my cattle by trespass; an award that I have them again is no satisfaction for the trespass, as nothing Cro. El. 904, is allowed for the injury done. Cotston r. 1 Com. D. 540.-Bac. Arb. 11, 14, 112, 141, 146, 148, 152. Hob. 49, 50, Nichols v. $4. Assumpsit. The declaration recited, that whereas certain disputes existed between the plt. and deft., as to tithes, and they referred the matter to J. S., to award concerning the premises, and in consideration of 6d. given by one party to the other, the one assumed to the other, to stand to the award of J. S., or to pay 10s. ; and alleged that J. S. awarded that the deft. should pay the plt. 40s. for the tithes at such a day, and that he had not paid it, per quod actio accrevit. Non assumpsit was pleaded, and a verdict found for the plt. On motion the court held the award was void, because it was awarded the plt. should pay 40s., and nothing was awarded for him to have, or to be free from suits. So he has no advantage by the award, by way of payment to him, or by way of discharge, or in any other manner, or no consideration for what he is awarded to perform. § 5. What is awarded to one must be a benefit to both, "so as to end the controversy, and discharge one, as well as give satisfaction to the other." Something may be due to one party only; but then this is a duty from the other, and if it remains as before, notwithstanding the award, it is evidently on one side; but this discharge may by the award be expressed or implied, and either way it may be a benefit to the party discharged. 6. Debt on a bond conditioned to perform an award to be Grunnion, & Bospoole's case, 8 Co. 193, 194, 199.-Cro. Jam. 200, 278, 355-8 East 13, 445-7 East 81.-Willes 270.-Cro. El. 838.-Lutch 545. made in writing; plea no award; plt. shewed one upon, and concerning the premises in writing, that the deft. depart from the house where she lived &c., and pay the plt. £3 10s., which was not paid. The deft. rejoined, no such award. Issue and verdict for the plt., but the court held that this award was not mutual, but on one side only, and so void; for it must end all disputes appearing to the court, or it is not according to the submission; and as the dispute is between two parties at least, it cannot be ended, except in respect to both, expressly or impliedly. An award that an obligor pay a single bond, is bad, except it also be provided he be discharged; for payment is no discharge of a single bond. But an award that he pay £10 for a trespass is good, for here is a satisfaction expressed, and that implies a discharge. In this case it is not said for what the £3 10s. is paid, and nothing is awarded for the deft. CH. 13. Art. 9. 7. If A of one part, and B and C of the other, submit Comyns' all matters between them; this is all between A and them Rep. 547.jointly, and between A and each of them, and the award must Bac. Abr. 93. be delivered to all three of them. -5 Co. 103. 95, 96.-Rol. 8. A for himself and B his partner, submitted, and an 2 Mod. 227, award was made that they pay monies &c.; though B is not 228.bound, yet A must perform the award, for Á has undertaken Bac. Abr for B, and bound himself as far as he did not bind B. Awards Abr. 244, construed joint or several, two one side, one the other. ART. 8. An award when certain by relation to something 7D.& E.352. dehors. See the case above of Winter v. Garlick. Bullock v. Beal.-Bac: 1. So a submission of all disputes as to a voyage. The 1 Rol. Abr. award was, "that one should pay his part of the charges of 251, Beal v. the voyage, and should allow his proportionable part of the Abr. 133. loss that shall come to the ship by the voyage, on account." This award is good, though of itself uncertain; for it may be reduced to a certainty by reference to a thing certain, as the party's part of a certain voyage; but then what is his part must not be in dispute. Hence the thing dehors, referred to in the award, must be certain and settled; because in this the minds of the referees are known and expressed only by this thing's being certain, or by a mere ministerial act in reducing this thing, as the costs of a suit, the charges of a voyage, to a certainty; hence the thing referred to, as these costs or charges, become a part of the award, and may be averred as though contained directly in it. So to pay one's part on an account, if there be no dispute as to it. 1 Com. D. 535. 2 Mass. R, 164, Nelson v. Andrews. § 2. In an action referred, the referees have power over the costs, as incident to the damages or debt referred to them. ART. 9. Referee Act of Massachusetts of July 7, 1786, and cases decided on it. § 1. The fifth section of this act provides, 7, 1786.— that referees appointed under this act, "shall be vested with Laws of Mass. Act Ju Maine, Ch.78 pp. 291, 292. CH. 13. Fowler v. Bigelow & ux., 8 Mass. R. 1. 1 Bos. & 175.-1 Com. 1 Mass. R. all the authority and power that referees have been, or may hereafter be vested with, who have been or shall be appointed by rule of court." And by the third section, the court shall have cognisance thereof," in the same way and manner, and the same doings shall be had thereon, as though the same had been made by referees appointed by a rule of the same court." This act extends to "a dispute of what nature soever," between the parties. But the fourth section seems to extend to, or contemplate money only. This act does not extend to title to freehold estate. By this act the rule is entered into before a justice of the peace. 2. In this, as in other cases of award, it is no objection the witnesses are not sworn before the referees, if the party do not require it at the time; nor that they alone examine any of them, if not by the influence of the party. 3. On the above act there have been several decisions In this case it was decided, that the justice of the peace, who takes the acknowledgment of the parties to the rule, cannot be one of the referees. How a partnership demand must be signed &c. § 4. The report of the referees on this act, must be made 411, Durill v. to the court of Common Pleas, holden next after the award Merrill, in ermade; and if the court had commenced its session previous ror; and to the making the award, the report of the referees cannot be returned and accepted at that term. And if it be so, it is error; for by the words of the act, the report is to be made to the court holden next after the report is made, and if not so made, the submission is void. See 14 Mass. R. 148, 149, Walker v. Melchor-all must hear. 6 Mass R. 3 Mass. R. 324, Bullard v. Coolidge & al. 3 Mass. R. 242, Tudor v. ror. § 5. In this action it was adjudged, that there must be a demand annexed to this rule, entered into before a justice of the and if there be not, it is error. peace, This demand annexed is required by the words of the act. Where no review on such a report, 14 Mass R. 360. 6. In a writ of error brought in this case, it was held to be error, if the demand annexed to the original submission be not subscribed by the person making it. This being a special jurisdiction in derogation of the common law, must be strictly pursued, in which case nothing is to be understood, but what is apparent. 7. In this case, on a writ of error, the court held, that the report of the referees on this act must be confined to the matters contained in the agreement of submission acknowledged before the justice, and if there be several rules between even the same parties, there must be several reports; nor can the parties, by their after agreement, extend the rule properly acknowledged, to matters not contained in it; and any agreement to this purpose is void, not acknowledged. CH. 13. Art. 9. 8. Cook in this case had demands against Daniel and Amos Whitney, partners in trade. Daniel and then Amos died, and the plt. in error administered on the estates of Amos and Daniel. The parties submitted all demands Cook had against 5 Mass. R. the said deceased partners, or either of them, and all de- 139, Whitmands they, or either of them had against Cook. The court re-committed the report of the referees; and they in the same term reported there was due from said Amos' estate, surviving partner, in his administrator's hands, $1002, with costs of court; and said Whitney to pay costs of reference. 9. The court observed, that two objections were made. First, that the report was not made to the next court &c. This objection was overruled; for after the recommitment, the parties had day in court, and the amended report might be made at a succeeding term, during which the referees shall have agreed upon it. Second objection, that it was not competent for the parties to submit these several demands by one rule before a justice, that is, of Cook against two estates, of Daniel and Amos Whitney, on which the plt. in error, had taken separate administrations. But this objection also was overruled. In this case the court said, this was a kind of action, but not pending in court; all the report was made to the court; and that it had power to recommit; and that all the demands submitted were demands between the same parties, and that a rule of this kind is provided for by the statute; that Cook's demands were against the partnership, and these "he could substantiate against the administrator of the surviving partner ;" and the costs to be paid by the administrator must follow the damages, which are reported to be a charge on the partnership fund. Judgment affirmed with costs for the deft. in error, in this the referees settled the costs of reference; and so is the practice in Massachusetts generally. ney, adm. in error v. Cook. In this case the court held, that the plt's. demand annexed 5 Mass. R. to the rule must shew on what account, and for what cause the 264, Jones, plt. in error, demand was made. And if the court reject the report of the v. Hacker. referees, for want of power in them, the court cannot award costs; for when it rejected the report for want of authority in the referees, its power over the cause ended. Mass. R. 496, Short, 10. On such a justice rule, all the referees must hear the 6 parties, though a major part only may report; and a writ of plt. in error, error lies on the judgment of court on such a report; and if v. Pratt. two only sign the report, it must appear by the record that all the referees heard the parties. 11. This was a report on the referee act; held, the court 6 Mass. R. may recommit it in the same manner as one made on a rule of court. If the referees on this act report a certain sum due 35 VOL. I. 70, Boardman in error, v. England. |