An award CH. 13. $4. What is a certain and final award or not. is good, that one party pay £105 to the other by such a day; and if then not paid, £110 by such a day; for it is but a penalty for the non-payment at the day, all which is in the arbitrator's power. Bac. Arb. 70; 1 Com. D. 585; 1 Rol. Abr. 250; Cro. Jam. 534; 1 Keb. 335; 2 Keb. 670, 838; 2 Mod. 238. Art. 13. Prowd. § 5. So an award is good that one party enjoy the land Cro. Jam. three years, and pay so much rent every 6 months; and on 423, Furser v. failure to pay, the award for enjoying the land to be void. To 2 Atk. 501. pay debts named in moieties is good. Bac. Arb. 84. 6. It is enough the award agree in substance with the submission, but the intentions of the referees must be expressed or implied in their award itself; and if not so, no intent can be averred; but this intent may be expressed in the award it- -Dyer 242. self, or in any paper made a part of it by reference, as in Beal -Plow. 396. v. Beal, Winter v. Garlick, and other cases. 7. A question then often arises, if the award be accord- Dyer 242. ing to the submission in substance. Cases. The submission was of right and interest in land, and the award was of the profits. Adjudged this was not according to the submission. So of "all actions," a cause of action is not. But all actions and quarrels include a cause of action. 8. Submission by the husband of all disputes as to money laid out for his wife, at her request. Award that he pay $340 for all sums laid out for her, (omitting at her request,) is not according to the submission. Co. L. 285. Cro. Jam v. Bridge. 639, Waters 1 Rol. Abr. $9. A parson and his parishoners recited a dispute, if his tithes shall be paid in specie or not, and submit "all matters, as well spiritual as temporal, from the beginning of the world to the present day." The award is good that awarded him 246.— £7 for his tithes, due before the submission, and that they pay Bac. Arb. 86. him £4 a year for the tithes growing due after, for the right to the tithes was in question and submitted. $10. In most cases, things particularly mentioned in the 8 H. C. 18.submission must be particularly determined, and no award Bac. Arb. 87 should be made of things not mentioned in the submission, yet however the award may be of things which depend on the principle, that is, of such things as relate to, or depend on, the things in the submission, though not expressed in it; as where the title and possession of land are submitted, the award may include the evidences concerning it. So as to debts and the evidences of them, as above. $11. The submission was to four referees, "of all actions Cro. Jam. and demands," so as that the award be made by them, or any Berry v. Pen399, 400, three of them. Plea, no award made; the plt. shewed that three ring. of them awarded that all actions cease except a bond, which was Bac. Arb. to stand and be paid. This was held to be a good award, for 107-Yelv. 203. CH. 13. Bac. Arb. 111.-Cro. Jam. 216. Barnes 42, 43.-Bac. Arb. 125. Bac. Arb. 222. three had power, and an authority may be divided, though an interest cannot. And in respect to the bond there was an award made, viz. that it stand in force and be paid. Adjudg ed on error. § 12. If all matters to January 29, be submitted, and the award be of all matters to January 28, the award is good; for no matter shall be intended to have arisen after the 28th, unless it be shewn. 13. And an award is good, though it does not appear when it was executed. 14. Parties are not bound by a submission, when they submit, erroneously thinking they are bound to submit. 4 Cranch 347. 1. The act of limitations does See Limitations. ART. 14. Several rules. not apply to an award under seal. §2. If an award be de et super præmissis, and the words used in it, be more comprehensive than the submission, it shall be intended that there was no more matter between the parties for the arbitrators to consider, than was submitted, if the contrary be not shewn; or if less comprehensive, no more was in 2 Saund. 190. controversy than the award naturally comprehends, if the con-Willes 66, trary be not shewn. Bac. Arb. 41. Storke v. Smith. 3. A submission of all actions does not include causes Bac. Arb. 33. of actions; nor does one "of all actions and quarrels," include -Co. L. 285. lands or tenements; but one of all demands includes "all matters concerning the title of lands." Nothing is intended to be referred but matters then in dispute. -Bac. Arb. 84, 85. Stra. 1144.- 2 Wils. 10. 1 Mod. 9. § 4. All matters in difference between A and B include a demand A has, as executrix, against B. So a demand A's wife has as executrix; for A has a demand, when he has one in his wife's right as executrix, and is liable for debts she so owes. 5. Arbitrators may award any thing depending on the principle submitted. Hence in a submission of all debts, they may award a release of the bonds &c., for they are but a consequence of the debts. 6. If a father and minor son submit, on one part, and A Bac. Arb. 59, on the other, the father is bound, and an award may be made between him and A, and is good and valid. 60, 94. Kyd on -Bac. Arb. 62, 63. Kyd 248. 7. If three men commit à trespass upon A, and A and one of them submit, and an award is made, the other two trespassers may take advantage of it, though not parties, in extinguishment of the trespass or wrong, as the satisfaction of one is of all. 8. So if A keep my cattle, and they trespass on B, and Bac. Arb. 63. A and B settle this matter by award, I may plead it, for the trespass is satisfied by A: and then any one originally liable for it, may plead this. 146.-Bac. 9. If the arbitrators reserve to themselves a power within CH. 13. their limit, and over a matter submitted, the award is not final, Art. 14. and so void; for a part of their power is not executed. But if this power go to a matter not within the submission, the Palm. 110, power reserved is void, and the award good; for here all the Arb. 102, 103, power delegated is executed, and the power reserved, or to 144, 145. be executed, is dehors the submission, and so a nullity. the arbitrator may reserve to himself the power to do a ministerial act, after the day allowed him to award, but not a judi- Morris' case. cial act. If arbitrators misconduct, how proved, Salk. 73. But 10. Some books state, that arbitrators cannot proceed af- Bac. Arb. ter they have named an umpire, for then their authority ceas- 103.— Doyley v. es. But their authority may, or may not, cease by the appoint- Pstoement of an umpire. It may be so delegated to them as that this 2 T. R. 644, act shall put an end to it. On the other hand, "the appoint- Roe v. Doe. ment of an umpire, before their own time for making an award is expired, may be good," as in the case of Doyley v. Pistoe. This depends on a fair construction of the power given to the arbitrators, in which construction courts in modern times have not been very nice. As was stated in a former case, the arbitrators may elect the umpire even before they proceed to business, in which case the appointment is, in fact, conditional, that is, if they do not agree, then the umpire is to decide the case; if they agree and award, he never is called upon to act. § 11. Arbitrators may award a stranger to do a ministerial Bac. Arb. 71; act, as counsel to advise the form of a security, a surveyor to 101-Cro. So an award may survey lands &c., but not a judicial act. be of such costs as a clerk of a court shall tax, for this is ministerial; but it is a judicial act to appraise a horse, or to advise how all actions be released. Palm. 147; Cro. Jam. 315; 1 Ld. Raym. 123, Bedam v. Clarkson. El. 726, Emery v. Emery. 12. The words, "if the arbitrators cannot agree," mean, if 1 Mod. 181. they do not agree. -Bac. Arb. 75. 13. The better opinion is, that if the umpire be named in Bac. Arb. 77, the submission, he cannot make an award till the time allowed 78.-Bac. Arb. the arbitrators to make one, be expired. It may be otherwise 214.-Salk. if the arbitrators name him. An award is void, if it direct an 5 Wheaton administrator &c. to pay money as such, and in his own right, 394,-1 Com. and do state how much in each. 14. Though an award cannot pass land or discharge a speciality, yet if one submit these matters by bond, and do not convey the land or discharge the specialty, as awarded to do, he forfeits this bond. Ch. 141, award considered as involved in the action of debt. 71,72 D. 524. 525.-1 Rol 15. It is a general rule, that any party, or any one of a 1 Com. D. party, may revoke his submission before the award made, giv- 331-Jon. ing notice thereof to the arbitrators; but then he forfeits his 388-8 Co VOL. I. 36 82. CH. 13. Green v. R. 475. obligation he has given to abide by their award. The marriage of a feme sole submitting to arbitration, is of itself a revotion and notice. § 16. If in a dispute between two parties, all matters in difWaring, 1 Bl. ference be referred, the referees may award the partnership between them to be dissolved. So if between a master and Partnership apprentice, the referees may award the indentures to be delivered up; and 8 East 445. Watson on 283. 6 Mass. R. 43, Town v. Jaquitb. 9 Mass. R. 320. Hodges in er ex'r. American cases. If A and B, by parol, refer a matter in dispute between them, to the award of three arbitrators, and they all hear the parties, and only two of them make the award, and the third dissent, the award is not good, there being no power given to a majority to decide. $17. The plt. brought an action on a promissory note against the deft's. testator for £270. They referred the action and ror v. Hodges all demands to three referees, or any two of them. The deft. filed his account. Referees reported the plt. had not supported his demands, and that the deft. recover costs of reference. Judgment was correctly entered on this report, and held the deft. had a right to his account filed, on which the arbitrators did not report. 9 Mass. R. § 18. In this case the court decided, that if a report of re325.-May & ferees be recommitted to the same referees, they are not obligal., plts. in error, v, Ha- ed to alter it, but may return the same report, without hearing the parties, if fully satisfied their report is correct. On the recommitment, one of the referees, though notified, declined attending; these facts the others reported, and further reported additional costs of the referees. Recommitting a report ven. 9 Mass. R. Arnold. does not make it void. § 19. Pending the action, the parties agreed, out of court, 510, Eaton v. to refer all demands to certain referees, who reported in favor of the plt. Held, this did not authorize a judgment in the action on the report, but that in the trial of the action the report may be used to ascertain the plt's. damages. vis. 7 Mass.R.359, 26. This was assumpsit for money had and received. It Boyd v. Da- had been referred by rule of court, and in the rule the plt. agreed he had no other demand against the deft.; the referees reported the deft. still held sundry notes, the proceeds of which would belong to the plt. when collected, and made a list of them. Held, this agreement was no bar to a future action, for these proceeds, when collected; for the referees expressly negatived the plt's. concession in the submission. 9 Mass. R. 199, Kingsley v. Bell & al. in error. 21. This was a writ of error. And held, 1st. A declaring on an award, alleging no promise of the parties to perform it, was good after verdict. 2d. But a declaration not alleging the award was published or made known to the deft., but by bringing the action, is clearly bad. 3d. A justice of the peace has no power to give judgment on an award. The action was assumpsit. 22. An award set aside. The only competent evidence, that an award made pending the suit was afterwards set aside, is a transcript of the record, duly proved. 4 Manford 241. CH. 13. Art. 15. ART. 15. 1. Held, if arbitrators chosen by the parties 2 Johns. R. make a mistake in the calculation of the sum awarded, no ac- 62, Newland v. Douglas. tion at law lies to correct the mistake, nor can they be ad mitted to prove it. § 2. When an award is final on the face of it, nothing dehors 3 Johns. R. the award can be pleaded, or given in evidence against it; nor 367, Barlow can it be impeached "but for the misbehaviour or corrupt" conduct of the arbitrators. " v. Todd. In an 6 Johns. R. Hackett. -2 Caines § 3. This submission was, so that the award &c. be ready to 1 Wils. 122.-be delivered to the parties, on or before such a day. action on the bond, the deft. pleaded no award was ready to be delivered to the parties; the plt. replied, that though no award was ready to be delivered to the deft., yet one was made and ready to be delivered to the plt., and was delivered 3 H. 166.to him. On demurrer, the replication was adjudged bad. Al- 9 so held, the authority given by the submission to arbitrators, must be strictly pursued. Cro. El. 797, 885; 1 Ld. Raym. 115, cited Cro. Car. 541. Johns. R. 212.-11 do. 96. Thompson v. 214, Forbes 4. The parties supposed themselves bound by law to re- 4 Cranch, fer, and under this mistake submitted their matters to arbitra- 347.-8 D. & E. 139, tion. Held, the award made by the arbitrators in such case is not obligatory. See 2 Bos. & P. 131, Tattenall v. Groote ; Charnock. covenant to refer is no ground of action if not performed. § 5. Held, if referees in a cause unreasonably refuse an 2 Johns. Cas. adjournment, when requested, and urged by a party, in order . Frary. that he may be enabled to produce his witnesses before the referees, their report will be set aside; but the court will not do this, where referees are chosen by consent of parties, and without a rule of court, 1 Johns. R. 315, Miller's case, not even on affidavit of merits, 1 Johns. R. 492, Stevenson v. Beecker. But if they order parties to withdraw, and in their absence examine witnesses, the court will set their report aside. 1 Dallas 83. So the court set a report aside, because the referees declin- 1 Dallas 486. ed to consider the most material ground of the controversy, on a mistaken principle, leading to real injustice to one of the parties. So the court rejected a report, because the action was 4 Dallas 298. founded on an unlawful contract: so for uncertainty, because it was that £75 was due the 3d of March last &c. 1 Dallas 119; but not for admitting an interested witness, 1 Dallas 161. But the court refused to set a report aside, because the 1 Dallas 188 referees sent for the plt. alone, and asked him whether he |