M n 
 
 (CnrtipU ICam ^rlyool Slibraty 
 
1 Cornell University Library 
 
 i KF 9085.M88 
 
 The law of arWtration and 
 
 ' . V^ I 
 
 'y.-\ 
 
 i^ \ 1927 J I 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/cletails/cu31924020139121 
 
THE LAW 
 
 OP 
 
 Arbitration and Award. 
 
 BT 
 
 JOHN t/mORSE, Je., 
 
 AUTHOK OF " LAW OF BANKS AHD BAHKING.' 
 
 BOSTON: 
 LITTLE, BROWN, AND COMPANY. 
 
 1872. 
 
f3 /^r^^- 
 
 Entered according to Act of Congress, in the year 1872, by 
 
 JOHN T. MOBSE, JR., 
 
 In the Office of the Librarian of Congress at Washington. 
 
 CAMBRIDGE : 
 PBESS OF JOHN WILSON AND SON. 
 
PREFACE. 
 
 The tendency among business men to avoid the public 
 Jtribunals and to settle their disputes by arbitration before 
 individuals of their own choosing is growing stronger 
 year by year. Not unnaturally they feel that they can 
 obtain a more intelligent and satisfactory, as well as a 
 more prompt, determination from eminent lawyers or 
 merchants whom they select, and in whom they feel 
 confidence, than they can venture to expect from an 
 average jury. This being so, the law concerning arbi- 
 tration and award is necessarily assuming a more impor- 
 tant position than it has ever before held. For, though 
 . a reference by agreement of parties fails of its chief end 
 when it results in a lawsuit, yet it must not unfrequently 
 happen that some real or supposed error or unfairness 
 in the proceedings or the judgment will induce the party 
 feeling himself aggrieved to have recourse to litigation 
 in order to free himself from the consequences of his 
 own undertaking. 
 
 No work on arbitration and award has ever been 
 prepared in the United States, and the decisions of 
 our courts are to be discovered only by the use of the 
 digests and similar sources of knowledge. In England, 
 
IV PREFACE. 
 
 Kyd and Caldwell and others of the older writers who 
 rather made than collated the law, have grown anti- 
 quated. The admirable work of Mr. Russell has 
 superseded these earlier text-books, and is now the 
 acknowledged authority. It is impossible to praise this 
 book beyond its due. It is learned, full, accurate, and 
 reliable. The treatment of the subject is based upon 
 singularly clear and logical divisions. That it has not 
 been so widely known and used in this country as its 
 foreign reputation would have rendered natural is 
 probably due to the fact that about one-half of it' is so 
 closely connected with English statutory law and with 
 the practice in the English courts as to be useless to 
 the American lawyer. 
 
 In writing this book I have made free use of the 
 fruits of Mr. Russell's labors, and I think that I have 
 omitted nothing contained in his pages which could be 
 of use to the professional man in the United States. 
 This alone ought to ensure no inconsiderable value to 
 the work. Concerning my own more original labors in 
 the collection of American adjudications, in extracting 
 from them the principles of the law, and bringing them 
 into their proper connection, I can only say that I have 
 spared no means which were at my disposal for render- 
 ing the research exhaustive. I should be disappointed 
 to find that there were many substantial omissions, 
 though in the thousands of volumes of American re- 
 ports I am aware that some cases must doubtless 
 remain buried where I have not discovered them. The 
 decisions of the courts of Massachusetts on this topic 
 take a very high place. I think that no tribunal in 
 
PREFACE. V 
 
 England or the United States can furnish any thing in 
 this department of the law of greater value. While 
 that eminent jurist, Chief- Justice Shaw, was upon the 
 bench, nearly all the opinions in this class of cases 
 emanated from his pen, and it was a subject in respect 
 of which he evinced a peculiar mastery. His opinions 
 are essays, elaborate, lucid, and convincing. I have 
 made extensive extracts from them, since 1 have found 
 no other authority so thoroughly satisfactory. 
 
 I have added no appendix of forms to aid in drafting 
 submissions, awards, &c., for the reason that this assist- 
 ance seemed to me wholly needless. All these docu- 
 ments, so far as matters of formality go, are such simple 
 instruments that a layman could hardly go wrong in 
 drawing them, and no lawyer could need guidance. In 
 matters of substance, on the other hand, where errors 
 are more naturally made, no general form could be of 
 real use. Mr. Russell's forms are drawn with reference 
 to elaborate English statutes and rules of practice which 
 call for a considerable amount of technical precision. 
 No similar necessity exists among us. 
 
 I ought further to acknowledge my indebtedness to 
 the Hon. J. C. Perkins, of Salem. This gentleman had 
 already begun to labor upon a work on this topic, when 
 the idea of writing this book occurred to me. The mul- 
 tiplicity of the Judge's engagements, however, both in 
 the practice and in the literature of the law, made the 
 progress of his contemplated book rather slow. He 
 therefore very kindly withdrew from the task in my 
 favor ; and not only this, but with great generosity he 
 
VI PEEFACE. 
 
 furnished to me all his notes and the fruits of his la- 
 bors so far as he had been able to prosecute them. For 
 this liberal conduct he justly commands my warm and 
 publicly expressed gratitude. 
 
 JOHN T. MORSE, Jr. 
 
 16, Pbmberton Square, Boston, 
 May 21, 1872. 
 
TABLE OF CONTENTS. 
 
 Page 
 
 Table of Cases xxv-lxxi 
 
 PART I. 
 
 PARTIES — THE SUBMISSION. 
 
 CHAPTER I. 
 
 Parties to the SuBMissioisr 3-34 
 
 Must be competent to contract. 
 
 Must have Power in relation to the Subject-matter. 
 
 Infants. 
 
 Corporations. 
 
 Selectmen. 
 
 Overseers of the poor. 
 
 Partners. 
 
 Agents. 
 
 1. Principals not bound. 
 
 2. Principal bound, originally; 
 
 or by subsequent proceedings. 
 
 3. The Agent personally bound. 
 Incidental powers of Agent authorized to submit. 
 Submissions by Counsel in Uspendens. 
 Executors and Administrators. 
 
 Guardians. 
 
 Husband and "Wife ; Married Women. 
 
 United States District Attorney. 
 
 Assignees in Bankruptcy. 
 
 Bankrupts. 
 
 Persons having a Joint Interest. 
 
 Persons bound in Severalty. 
 
 Parties to a lispende,m. 
 
 Duress. 
 
VUl TABLE OF CONTENTS. 
 
 CHAPTER II. 
 The SrBMissioN ^5~° 
 
 Submission. 
 
 What constitutes a basis for a submission. 
 
 Purely ministerial acts are not sucli basis; v. g. appraisals, valuations, &c. 
 
 Other cognate cases. 
 
 Matters of recollection. 
 
 Contracts to submit, in pais and statutory. 
 
 Submissions intended to be statutory, but defectively or carelessly framed. 
 
 Superfluous formality. 
 
 Upholding submissions according to apparent intent. 
 
 The presumption is always favorable to validity. 
 
 Eefereuce by rule of court and consent of parties. 
 
 Manner of submitting, orally or by writing, &c. 
 
 Formalities and characteristics of the submission. 
 
 What may be the subject-matter of a submission. 
 
 1. Disputes of a civil nature only. 
 
 2. Dower. 
 
 3. Owelty. 
 
 4. Ejectment. 
 
 5. One item in account. 
 
 6. Actions on penal statutes. 
 1. Questions of pure law. 
 
 8. Regulation of future rights. 
 Submissions concerning real estate. 
 
 boundary lines. 
 
 nicely construed. 
 Construction of statutes concerning submissions. 
 Rules for construing submissions. 
 Construction of uncertain or indefinite submission. 
 Written submission is invariable and final. 
 Submission will not be stretched by forced construction. 
 Sundry specific cases of construction. 
 General submission. 
 Conditional submissions. 
 
 When a reference will be construed to have become changed into a submission. 
 Submission of a " cause." 
 
 1. Its extent and operation on the pleadings. 
 
 2. Its operation on previous errors. 
 
 May be made to include other matters. 
 Submission of separate actions. 
 Effect of a submission in a pending cause upon the status of the cause. 
 
 upon the right of action. 
 Making submission a rule of court, and agreeing for entry of judgment on award. 
 References in cross-actions 
 Alteration of the submission. 
 
 Extension of time for award, named in submission, by new agreement. 
 Substitution of new arbitrator or referee. 
 Enlargement of rule of reference. 
 Suit upon an altered agreement to submit. 
 Correction of errors in submission. 
 How long the submission will remain in force. 
 Stipulations in submission to waive appeal from award, 
 "to abide by " an award. 
 
TABLE OF CONTENTS. IX 
 
 CHAPTER III. 
 Agreements to Submit 89-96 
 
 No specific performance granted in equity. 
 
 Liability of party refusing. 
 
 Agreements to refer embodied incidentally in other contracts. 
 
 Agreement to refer, as condition precedent to right of action. 
 
 Pleadings. 
 
 Damages for refusal to refer a,coording to agreement. 
 
 Breach of bond. 
 
 PAET II. 
 
 THE ARBITRATOR. 
 
 CHAPTER IV. 
 The Office of Aebiteatoe •. • • 99-113 
 
 Who may be an arbitrator. 
 Disqualifications. 
 
 1. Interest. 
 
 2. Kelationship. 
 
 3. Preconceived opinion. 
 
 Waiver of objection on any of the aforesaid grounds. 
 
 Time, etc., of availing of objection on the aforesaid grounds. 
 
 A party may he also an arbitrator. 
 
 Judge of court as referee. 
 
 Arbitrators are agents of the parties. 
 
 They must be impartial agents of both parties alike. 
 
 Impartiality is a fundamental requisite. 
 
 Officials as arbitrators. 
 
 Public commissioners are amenable to the court. 
 
 Absence of person named as arbitrator. 
 
 Administration of oath to arbitrator. 
 
 Statutory provisions concerning arbitrator's oath. 
 
 Efiect of neglect to administer oath. 
 
 Form of oath. 
 
 Dispensing with oath. 
 
 Presumption concerning the oath. 
 
 Pleadings concerning the oath. 
 
 Sweating the umpire. 
 
TABLE OP CONTENTS. 
 
 CHAPTER V. 
 
 Proceedings in the Aebiteation 114-175 
 
 The arbitrator controls the mode of conducting the reference. 
 
 The arbitrator must appoint the time and place for hearing. 
 
 Parties entitled to be present. 
 
 Notice of hearing must be given to each party. 
 
 Of what meetings notice need be. 
 
 Notice after choice of third arbitrator. 
 
 No notice to surety. 
 
 Notice to attorney of partj'. 
 
 'Revocation of appointment for hearing. 
 
 Sufficiency of notice. 
 
 Waiver of notice. 
 
 Non-attendance of party after notice. 
 
 Parties must have time to examine written evidence. 
 
 Pleading concerning notice. 
 
 Availing of the objection of want of notice. 
 
 Exceptions to rule requiring notice. 
 
 Hx parte hearings. 
 
 Private statements and examinations. 
 
 Duty of party objecting to private examination. 
 
 Curing objection on ground of improper receipt of evidence. 
 
 Attendance of counsel, advisers, &c. 
 
 Arbitrator's discretion to hear counsel. 
 
 Arbitrator's right to call in counsel. 
 
 Administration of oaths to witnesses. 
 
 Unauthorized administration of oath. 
 
 Parties may dispense with the oath. 
 
 Arbitrator's power to force attendance of witnesses and production of documents. 
 
 Protection of witnesses. 
 
 Rules governing arbitrator respecting admission of evidence. 
 
 His decision is final. 
 
 Rejection of evidence under mistake concerning the scope of the submission. 
 
 Erroneous ruling on evidence by a referee. 
 
 The referee may leave the question of admissibility to the court. 
 
 A referee need not report evidence. 
 
 Parties may be admitted as witnesses. 
 
 Arbitrator's discretion to refuse to hear evidence. 
 
 Number of witnesses. 
 
 Closing case too hastily. 
 
 Opening case for new evidence. 
 
 Admission of evidence de bene esse. 
 
 Adjournments are in arbitrator's discretion. 
 
 Adjournments before referee 'in Us pendens. 
 
 Death of witness during adjournment. 
 
 Record of adjournment. 
 
 Causes for demanding adjournment. 
 
 Erroneous refusal to adjourn. 
 
 Adjournments in case of absence. 
 
 All the arbitrators must act together during the proceedings. 
 
 "Withdrawal or refusal of an arbitrator to act with his fellows. 
 
 The refusal or withdrawal must be distinct and final. 
 
 But it need not be formal. 
 
TABLE OF CONTENTS. XI 
 
 Rule where a third ai-bitrator is called in. 
 Withdrawal or refusal before the proceedings are begun. 
 Refusal or withdrawal after recommitment. 
 Silence of award concerning joint action. 
 The rule that all the arbitrators must unite in the award. 
 Award by majority. 
 The rule concerning referees. 
 Time of expressing dissent. 
 
 Unanimity in each incidental question is unnecessary. 
 Process of coming to agreement. 
 Some judicial discretion must be exercised. 
 
 Delegation of authority by an arbitrator, and agreements to accept the decision of 
 another. 
 
 Delegation of purely ministerial acts or functions. 
 Waiver of right to object for incompetency or irregularity. 
 
 by appearing and proceeding. 
 
 of stipulation as to time. 
 
 is matter of apparent intention. 
 
 of stipulations concerning the form of the award. 
 
 by ratifictition and performance. 
 
 of departure from the scope of the submission. 
 
 CHAPTER VI. 
 The Akbiteatoe's Authoeitt 176-222 
 
 Source of the arbitrator's authority. 
 
 The arbitrator's action in excess of his authority. 
 
 Favorable presumptions. 
 
 General rules concerning an arbitrator's authority. 
 
 The arbitrator cannot go beyond the precise question submitted. 
 
 The arbitrator cannot modify the question submitted. 
 
 The arbitrator cannot do general equity. 
 
 Orders concerning price and payment. 
 
 Orders concerning allowance of interest. 
 
 The arbitrator's power in disputes between partners. 
 
 Power of arbitrator to order execution of a release. ' 
 
 Power to order conveyance of real estate. 
 
 Specifications concerning legal form, &c., of the conveyance. 
 
 When conveyance need not be ordered. 
 
 Power of arbitrator in cases of land-damages. 
 
 Power to go behind a receipt in full. 
 
 Orders concerning incidental matters. 
 
 Power and duty to order what shall be done by a party in the future. 
 
 Validity of orders concerning future conduct of a party. 
 
 Orders concerning future acts will be sustained if possible. 
 
 Limitation of authority as to time past. 
 
 Orders concerning the persons and property of strangers. 
 
 Order that an act be done by a stranger. 
 
 Other non-enforceable orders. 
 
 Effect of performance of such non-enforceable orders. 
 
 Eeference of cross-aetlons. 
 
XU TABLE OF CONTENTS. 
 
 Arbitrators cannot name substitute. 
 The arbitrator's power in a lis pendens. 
 
 The arbitrator's power to allow amendments where the submission is in or of i 
 pendens. 
 
 Limitations upon the power to allow amendments by the plaintiif. 
 
 Limitations upon the power to allow amendments by the defendant. 
 
 Power to consider a claim in offset. 
 
 The allowance of amendments is discretionary. 
 
 Who may object if the arbitrator exceeds his authority. 
 
 How the objection of excess of authority may be availed of ; rules of pleading. 
 
 Evidence as to excess of authority. 
 
 The arbitrator is the final judge of both law and fact. 
 
 Whether or not the arbitrator ought to conform to strictly legal principles. 
 
 Power of arbitrator to save questions of law for the court. 
 
 An arbitrator may consider defences not strictly legal. 
 
 Eules of court practice. 
 
 CHAPTER YII. 
 Duration of the Arbitrator's Authority , . . 223-240 
 
 When the duration of authority is limited by the submission. 
 Construction of specific phrases. 
 When the submission or rule is silent as to time. 
 Exhaustion of authority hy making an award or report. 
 Effect of vacating the award. 
 An arbitrator cannot refuse to deliver his award. 
 Exceptions to the foregoing general rule. 
 Revocation in fact and in law. 
 I. Revocation in fact. 
 
 Time for making revocation by a party. 
 
 Stipulation that the submission shall be irrevocable. 
 
 Revocation by one of several who jointly constitute only one party. 
 
 Revocation by joint consent of both parties. 
 
 The revocation must be notified. 
 
 When the right of revocation does not exist. 
 
 The revocation of reference by rule of court. 
 
 Formality of revocation by a party. 
 II. Revocation in law. 
 
 1. By death of party. 
 
 2. By death of an arbitrator. 
 
 3. By marriage of a/eme sole, a party. 
 
 4. By lunacy of a party. 
 
 5. By arbitrator's refusal to act. 
 
 6. By the institution of a suit. 
 
 7. By neglect to perform a preliminary act. 
 Revocation through the instrumentality of a stranger. 
 Revocation by Congress. 
 
 Revocation by an agent. 
 
 Damages may be claimed for revocation. 
 
 The measure of damages.' 
 
 Pleading revocation. 
 
 Effect of submission ceasing to bind a party. 
 
TABLE OF CONTENTS. Xlil 
 
 CHAPTER VIII. 
 The Umpiee 241-248 
 
 The functions of umpire and of tliird arbitrator distinguished. 
 Appointment — 1. How to be made. 
 
 2. When may be made. 
 Effect of appointment of umpire on power of arbitrators. 
 Whence arbitrators derive power to appoint an umpire. 
 They may malce several nominations. 
 Parol appointments. 
 Evidence of umpire's authority. 
 Umpire's duty as to re-hearing parties. 
 Construction of a submission. 
 
 PAET III. 
 
 THE AWARD. 
 CHAPTER IX. 
 
 The Formalities and Contents of the Awabd . 251-290 
 
 No especial form, if a deoision'.be expressed. 
 The fact of decision need not be declared. 
 Decision by implication. 
 Oral awards. 
 
 Stipulations for a written award. 
 Award concerning real estate. 
 . Award concerning boundary lines. 
 Attesting witness. 
 Seal. 
 
 Instructions of submission must be followed. 
 Stipulations construed as conditions precedent. 
 Award under statute must comply with the statute. 
 But may be upheld if it does not so comply. 
 Strict compliance may be waived. 
 Award may be of a sum in gross. 
 Or may be of each item separately. 
 What the award must contain. 
 Award need not order release nor discontinuance. 
 Award of a nonsuit. 
 
 Some peculiar forms of awards by means of promissory notes. 
 Professional assistance in drawing award. 
 Eecitals of the submission and proceedings in the award. 
 Erroneous recitals. 
 Referee need not report evidence. 
 Stipulations for delivery of 'the award. 
 Delivery must be of the original award. 
 
XIV TABLE OF CONTENTS. 
 
 Delivery in duplicate. 
 
 Waiver of actuul deliver}'. 
 
 To whom delivery is to be made. 
 
 What constitutes delivery. 
 
 Delivery of an oral award. 
 
 Pleading delivery. 
 
 How non-delivery is to be availed of; 
 
 Publication of the award. 
 
 Possession of award. 
 
 Neither party is bound to notify the other of the award. 
 
 CHAPTER X. 
 
 Mistake in the Awaed 291-338 
 
 Inconsistency of judicial decisions. 
 
 Two classes of decisions. 
 
 Conclusiveness of the arbitrator's decision, both in law and fact, asserted by C. J. 
 Shaw. 
 
 This doctrine is generally acknowledged. 
 
 A general submission constitutes arbitrators final judges of law and fact. 
 
 Cases establishing the finality of the arbitrator's finding in matter of law. 
 
 Exception to the broad principle, in matter of law. 
 
 The exception covers two classes of cases. 
 
 Insertion of restriction in the submission. 
 
 The award ma}' give the court the right to interfere for a mistake in law. 
 
 Statement by the arbitrator of an intention to be governed by law. 
 
 The decisions in Vermont. 
 
 Statement of grounds, &c., of decision in the award. 
 
 The rule in this matter in England. 
 
 Suggestion of a distinction. 
 
 Effect of a recital of facts in the award. 
 
 The statement of grounds, &o., must constitute a part of the award. 
 
 The fundamental matter is the arbitrator's intent. 
 
 Error in a fundamental and clear principle of law. 
 
 Awards on questions of pure law. 
 
 Distinctions between professional and non-professional arbitrators. 
 
 Matters of fact are peculiarly within the arbitrator's authority. 
 
 Exception where the judgment has been prevented from being fairly or correctly 
 exercised. 
 
 Mistake of an arbitrator as to contents of award. 
 
 The general doctrine that a mistake is ground for vacating an award. 
 
 The English authorities supporting this doctrine. 
 
 The case of In re Hall & Hinds, and comments upon it. 
 
 Mistakes of the arbitrator on his own principles. 
 
 Objection that the award is against evidence. 
 
 Clerical errors, blunders in calculation, &c., in the award. 
 
 The court cannot alter a report or award. 
 
 Variance in duplicate awards. 
 
 Method of availing of an alleged mistake. 
 
 Eecommitment for correction of acknowledged errors. 
 
TABLE OF CONTENTS. XV 
 
 Eecommitment for re-hearing. 
 Recommitment for errors in form. 
 Eecommitment for costs. 
 
 Power and duty of tlie arbitrator after recommitment. 
 Eecommitment is for the discretion of the court. 
 Eecommitment must be of the whole case. 
 
 Impeaching the award by extrinsic evidence, or by the arbitrator's testimony of a 
 mistalie. 
 
 Effect of setting aside a report. 
 Promise to correct error. 
 
 CHAPTER XI. 
 
 The Awaed must be Co-bxtbnsite with the Sub- 
 
 Missiosr 339-368 
 
 The stipulation called the ita quod clause in the submission. 
 
 The ita quod clause, if used, still retains its own force. 
 
 The modern rule supersedes, in a measure, the ita quod clause. 
 
 The intention of the parties is the test. 
 
 Withdrawal of some matters from the arbitration. 
 
 The nature of the matters submitted may malie the determination of all indispensa- 
 ble. 
 
 Effect of a failure to determine all the matters submitted. 
 
 Exception expressed in the award. • 
 
 The motive of the arbitrators is immaterial. 
 
 An award not co-extensive with the submission is not final. 
 
 Awards that nothing is due at the date of submission. 
 
 Award of a sum of money under a general submission. 
 
 Separate matters need not be specifically mentioned. 
 
 Awarding separately on distinct matters. 
 
 Awards of a gross sum under a submission of several matters. 
 
 Award of a particular thing under a general submission. 
 
 Awarding on dififerent pleas in an action. 
 
 An award may be co-extensive with the submission by implication. 
 
 Awards seeking to do general equity are often not finsil. 
 
 The award must decide respecting all the parties. 
 
 The arbitrator need not award on incidental matters. 
 
 Award of a balance upon money claims. 
 
 The award need determine only such matters as are brought to the arbitrator's 
 notice. 
 
 Notice by the recitals of the submission. 
 
 The recitals of the award may prove notice. 
 
 Silence of the award on an undecided matter. 
 
 A party not injured by the effect cannot avoid the award. 
 
 Method of availing of the objection that the award is not co-extensive with the sub- 
 mission. 
 
 Bales of evidence. 
 
 Presumption that the award disposes of all matters presented. 
 
 This presumption is not conclusive. 
 
 Burden of proof. 
 
XVI TABLE or CONTENTS. 
 
 Adjudications exemplifying the rule of fayorable presumption. 
 
 Favorable presumption in cases of doubt. 
 
 A case where the favorabJe presumption was not admitted. 
 
 Award in fact but not apparently co-extensive with the submission. 
 
 Presumption that the award does not include matters not submitted. 
 
 Presumption based on award of mutual releases. 
 
 Award in the alternative. 
 
 CHAPTER XII. 
 
 The Awaed must be Entiee and Possible . . . 369-376 
 
 Meaning of the phrase " entire." 
 
 There can be but one award. 
 
 Two certificates in cross-actions. 
 
 Separate awards embodied in one instrument. 
 
 The award need not be all contained in a single instrument. 
 
 The award may refer to extrinsic documents. 
 
 An award on which judgment is to be rendered must be complete in itself. 
 
 Marginal notes on an award. 
 
 Special power to malse separate awards. 
 
 An. award must be possible. 
 
 CHAPTER XIII. 
 
 The Awaed must be Mutual 377-383 
 
 Force of the requirement of mutuality. 
 
 Award ordering releases in mutual. 
 
 Award of payment to one only of two joint creditors. 
 
 Force of the word " for" in an award of payment. 
 
 Award under a submission by an agent. 
 
 If a party is not bound by the award, it is not mutual. 
 
 Force of a stipulation concerning releases, contained in the submission. 
 
 An award neglecting to order a conveyance of real estate. 
 
 Awards may be mutual by implication. 
 
 Order that a party pay a debt to a stranger. 
 
 CHAPTER XIV. 
 
 The Awaed must be Final 381 106 
 
 Nature of the requisition of finality. 
 
 Award should put an end to litigation. 
 
 Only litigation between the parties need be prevented. 
 
TABLE OF CONTENTS. XVll 
 
 Award operating for only a limited time. 
 
 Award leaving an act of a judicial nature to be done in the future. 
 
 1. Reservation of further judicial duty or authority to the arbitrator. 
 
 2. Reservation of further judicial duty or authority to a stranger. 
 
 3. Reserving a judicial power to a party. 
 The functions of a valuer are judicial. 
 
 The void order may be eliminated, and the rest of the award stand. 
 
 Award reserving a ministerial duty or authority. 
 
 Directions for deductions and calculations. 
 
 Directions for taxation of costs. 
 
 Directions for the calculation of interest. 
 
 Directions for correction of errors. 
 
 Directions for the execution of deeds, releases, &c. 
 
 The ruling in a peculiar case. 
 
 Award upon condition that an act be done bj* a party. 
 
 Award conditioned to be void upon the happening of an event. 
 
 Entry of judgment on a conditional award. 
 
 Referring questions of law to the court by means of a condition. 
 
 Award conditioned on the arbitrator's authority. 
 
 Award in the alternative. 
 
 Impossibility in one of the alternatives. 
 
 Uncertainty in one of the alternatives. 
 
 Method of availing of want of finality. 
 
 CHAPTER XV. 
 
 The Awaed must be CBETAi]sr 407-435 
 
 Signification of the phrase " certainty." 
 A certain award will be enforceable. 
 A less degree of certainty is sometimes required. 
 Effect of the existence of uncertainty. 
 Cases illustrative of fatal uncertainty. 
 Certainty created by presumption. 
 
 The favorable presumption is strengthened if the award be de et super prc^missis. 
 Evidence concerning the existence of a dispute. 
 Certainty by implication from an award of costs. 
 A case' where implication was not allowed. 
 An order for the payment of costs is certain. 
 The award must order the payment of " costs " in terms, or by a clearly equivalent 
 phrase. 
 
 Failure to name party to whom costs are to be paid. 
 
 Award referring to something extrinsic. 
 
 Certainty in awards ordering payments. 
 
 Awards leaving a calculation to be made. 
 
 Awards ordering a computation of interest. 
 
 Orders for payment at the " market price." 
 
 Certainty in the description of a debt. 
 
 Certainty in a general award. 
 
 Certainty as to the time of performing an act ordered. 
 
 Certainty as to place of payment. 
 
 6 
 
XVm TABLE OF CONTENTS. 
 
 Certainty as to persons. 
 
 Certainty in the description of real estate. 
 
 An award concerning the price of land. 
 
 Certainty in awards concerning boundary lines. 
 
 Certainty in an award in an action of trespass to. real estate. 
 
 Orders concerning mortgages. 
 
 Awards ordering security. 
 
 Award concerning a cause. 
 
 Statute of Limitations. 
 
 Statement of results. 
 
 Duty of party to correct uncertainty. 
 
 Award ordering payments from assets. 
 
 How uncertainty may be availed of. 
 
 Explanation of uncertainty. 
 
 CHAPTER XVI. 
 RtTLBS OF Construction 436-451 
 
 Ancient prejudice against arbitration. 
 
 Modern rule is to construe awards liberally. 
 
 The award is to be construed by the aid of the submission, &c. 
 
 Construing orders in excess of authority as merely cautionary. 
 
 An award may be good by manifest implication. 
 
 An award of costs may be good by implication. 
 
 An award in too general language may be restricted. 
 
 The degree of proof required to prevent such restriction. 
 
 Construction of awards concerning boundary lines. 
 
 Presumption in awards concerning boundary lines. 
 
 Explanation of awards concerning boundary lines. 
 
 Discrepancy between the submission and award concerning a boundary line. 
 
 Requisition that acts be done interchangeably or contemporaneously. 
 
 Every presumption and intendment will be in favor of the validity of the award. 
 
 The presumption is that the arbitrators have followed the submission. 
 
 Limit to the rule of favorable presumption. 
 
 Construction of a reservation of a question for the court. 
 
 Effect of inconsistency in an award. 
 
 Favorable construction of apparently inconsistent findings. 
 
 Explanations by the arbitrator. 
 
 CHAPTER XVn. 
 
 Divisibility of the Award ; Award Good in Part, 
 
 Bad in Part 452-485 
 
 An award good in part and bad in part may often be separated. 
 Whether the good part need decide all the matters submitted. 
 
TABLE OF CONTENTS. XIX 
 
 An award may be separable in respect of matters all ordered to be done by the 
 same party. 
 
 An old English rule. 
 
 Cases illustrative of the old rule. 
 
 The modern rule. 
 
 Cases illustrative of the modern rule. 
 
 Elimination of orders in excess of the arbitrator's authority. 
 
 Separation where the excess constitutes a portion of a consideration or condition 
 precedent. 
 
 Excess in awarding costs is generally separable. 
 
 Excess in an order concerning a specific sum. 
 
 Excess by establishing a condition precedent may be separable. 
 
 Excess in award directing a payment. " 
 
 Excess in orders for the execution of releases. 
 
 Excess in directions for the future conduct of the parties. 
 
 Excess in awards concerning real estate and boundaries. 
 
 Excess by orders made in respect of strangers to the submission. 
 
 Excess by ordering a verdict or a judgment. 
 
 If the court cannot distinguish the excess, the whole award is bad. 
 
 Excess by not following the submission. 
 
 Excess by reserving further powers or duties. 
 
 Separation will not be allowed if the decision of the principal point in dispute is to 
 be rejected. 
 
 Award of a gross amount, covering matters not within the arbitrator's authority. 
 
 Separation of an award finding a gross sum may sometimes be made. 
 
 The presumptions will be favorable to separation. 
 
 The desire of the courts is to make the separation. 
 
 Separation in cases of an uncertainty in part of the award. 
 
 Separation may sometimes be efiected where the party losing thereby will waive his 
 advantage or objection based on the bad part. 
 
 An award in the alternative may be separated. 
 
 Eifect of an ofier to perform an inoperative order. 
 
 Efiect of separation on directions concerning fees. 
 
 The court may hold a separable award under advisement. 
 Suits instituted upon separable awards. 
 
 CHAPTER XYIII. 
 
 Effect akd Opbeation of the Awaed 486-532 
 
 An award is final and conclusive. 
 
 An award in evidence is conclusive. 
 
 Impeaching by evidence an award put in evidence. 
 
 An award is equivalent to a decree in equity. 
 
 An award on illegal matters is void. 
 
 Effect of a colorable award. 
 
 Legal character of an award under seal. 
 
 An award constitutes a merger and bar of the original claim. 
 
 A case where the merger is not effected. 
 
 A void award effects no bar or merger. 
 
 Extent of the operation of the award in respect of the matters submitted. 
 
XX TABLE OF CONTENTS. 
 
 English cases sustaining tlie rule of conclusiveness as to all matters submitted. 
 An award ordering general releases is final as to all matters submitted. 
 The English rule in equity is doubtful. 
 
 The English rule in equity concerning unintentionally omitted matters. 
 The English rule seems intrinsically just. 
 
 The rule of conclusiveness as to matters omitted, in New York. 
 The rule in New York where the scope of the submission is doubtful. 
 The rule in Connecticut. 
 The rule in Vermont. 
 The rule in Maine. 
 The rule in New Hampshire. 
 The rule in Massachusetts. 
 
 Efiect on the rule of a, deliberate refusal to present a claim. 
 An award not deciding the controversy is no bar. 
 Award under a submission of matters " in difference." 
 The award bars only the precise matter submitted. 
 Pleading an award in bar to a matter not disposed of by it. 
 The burden of proof where an award is pleaded in bar. 
 
 Whether a party not having performed his part of an award can plead it in bar. 
 ■ A condition precedent must be performed before an award is a bar. 
 An award is pleadable in bar to a bill in equity. 
 Pleading an award in set-off. 
 
 Operation of an award to vest the title to personalty. 
 An award as to chattels of the wife is a reduction into possession. 
 Operation of an award upon the title to real estate. 
 An .iward of commissioners under a statute may pass title. 
 An award finding title to realty will sustain an action in ejectment. 
 Operation of awards determining boundary lines. 
 
 An award finding title or settling a boundary line is a defence in trespass. 
 An award finding title, not under seal, will operate by way of estoppel. 
 Operation of an oral award concerning a boundary' line. 
 An oral award under an oral submission concerning a boundaiy line is competent 
 
 evidence. 
 Estoppel by an award need not always be pleaded. 
 Operation of an award simply finding title. 
 Operation of an apparently inadequate award. 
 An award is inoperative as to strangers. 
 An award is inadmissible in evidence against a stranger. 
 An award may sometimes be competent evidence for a stranger. 
 A stranger may by Lis own act bring himself within the operation of an award. 
 A stranger cognizant of the submission maj' be within the operation pf the award. 
 Parties are bound though the award concerns the rights of a stranger. 
 Operation as to sureties of an award extending time for a principal debtor. 
 The rights of a party under an award may pass to a stranger by assignment. 
 An award is not evidence in a criminal prosecution. 
 Operation of an award in a lis pendens. 
 
 Operation of an award in a lis pendens, including extrinsic matters. 
 Effect of the bankruptcy of a party on the operation of an award. 
 An award creates a debt provable in bankruptcy. 
 Recitals in an award as evidence. 
 A valid award needs no ratification. 
 
 But voidable awards may be rendered operative by ratification. 
 A void award cannot be ratified. 
 Ratification by an agent. 
 An award repudiated by both parties cannot be revived. 
 
TABLE OF CONTENTS. XXI 
 
 CHAPTER XIX. 
 Misconduct and Feaud 533-544 
 
 Acts of an arbitrator indicative of partiality constitute misconduct. 
 
 Receiving ex parte communications constitutes misconduct. 
 
 Hearing a statement before agreeing to act as arbitrator is proper. 
 
 Relying wholly on statement of a party is misconduct. 
 
 Misconduct in refusing to receive evidence. 
 
 Misconduct in the manner of taking evidence. 
 
 Jlisconduot in refusing to allow time. 
 
 Sundry other acts constituting misconduct. 
 
 Misconduct of one of several joint arbitrators. 
 
 Irregularity in conducting the proceedings may constitute misconduct. 
 
 Awards made on Sunday. 
 
 A mistake may be treated as misconduct. 
 
 Fraud and corruption may be inferred from excess or injustice in the award. 
 
 What constitutes fraud of a party in procuring an award. 
 
 Concealment of a material fact by a party. 
 
 The question of fraud or misconduct is one of fact for the jury. 
 
 Manner of setting up fraud or misconduct. 
 
 Force of tlie phrase " undue means." 
 
 Method of availing of fraud, corruption, or misconduct. 
 
 An award cannot be impeached by evidence of misconduct. 
 
 Answering allegations of fraud or misconduct. 
 
 CHAPTER XX. 
 
 Peefokmance of the Award 545-561 
 
 Time of performance. 
 
 A colorable performance is bad. 
 
 Performance according to the intent of the award is sufficient. 
 
 Performance to a reasonable intent. 
 
 Performance of awards ordering payment. 
 
 Non-performance of awards ordering payment of rent. 
 
 Performance of awards putting an end to suits. 
 
 Performance under an award calling for a deed. 
 
 By which party an instrument of conveyance is to be prepared. 
 
 Whetlier a request for a conveyance ordered is necessary. 
 
 A request for performance must comply with the terms of the award. 
 
 The request may be made by an agent. 
 
 Release may be executed to a stranger. 
 
 A tender creates the obligation of performance. 
 
 Performance to and by representatives of a deceased party. 
 
 Perfoimance where the award is in excess of authority. 
 
 Performance of awards ordering indemnity. 
 
 Performance of awards ordering acquittance or that suits should cease. 
 
 A party may sometimes sue before he has performed his part under the award. 
 
 The plaintiff must perform, if performance be made dependent, concurrent, or a 
 
 condition precedent. 
 Performance of impossible orders. 
 Where the impossibility grows out of a wrongful act of the party. 
 
XXU TABLE OF CONTENTS. 
 
 Performance of an award in the alternative. 
 
 An informal award may be made good by performance. 
 
 The effect of performing an unenforceable order. 
 
 The arbitrators need not perform the award. 
 
 The award itself after performance. 
 
 Security for performance of the award. 
 
 CHAPTER XXI. 
 
 Testimont of the Arbitrator 562-572 
 
 The award cannot be altered or explained by testimony or statenients of the arbi- 
 trator. 
 
 Effect of letters written by the arbitrator. 
 
 Explanatory paper written by agreement of parties. 
 
 The arbitrator's testimony concerning extrinsic facts. 
 
 Testimony of referee as to facts and grounds of decision. 
 
 The arbitrator's testimony as to admissions by a party. 
 
 An arbitrator cannot testify to his non-concurrence in the award. 
 
 The arbitrator cannot be compelled to state the grounds of his decision. 
 
 In England a barrister never gives explanations. 
 
 Testimony of the arbitrator to show a mistake in the award. 
 
 Testimony that the award does not express the arbitrator's intention. 
 
 An arbitrator can and must testify as to the proceedings before him. 
 
 CHAPTER XXII. 
 Pleading and Practice 573-621 
 
 Methods of enforcing an award. 
 
 An award may be enforced in part only. 
 
 Time of instituting suit. 
 
 Actions to recover costs. 
 
 Recovery of costs by assumpsit 
 
 Assumpsit will lie upon an award. 
 
 Assumpsit by assignees of an original party. 
 
 Debt will lie upon an award of money. 
 
 Action of debt on the arbitration bond. 
 
 Action on the bond after an enlargement of time. 
 
 An action of covenant on a submission by deed. 
 
 Action on the case under an award. 
 
 Interest on a sum awarded. 
 
 Averments in pleading an award. 
 
 Settiuf^ forth the award in the plaintiffs declaration. 
 
 Pleading on a parol award. 
 
 "No profert of the award need be made. 
 
 Averment of notice. 
 
 Averment of a demand before suit brought. 
 
 Averment of a request of performance. 
 
 The pleadings in an action of debt on an arbitration bond. 
 
TABLE OF CONTENTS. XXIU 
 
 Availing of an award by way of defence : extinction of the original claim : plea in 
 bar. 
 
 Plea of "no award." 
 
 Pleading that all matters are not decided. 
 
 Pleading misconduct, fraud, or mistake of the arbitrator. 
 
 Pleading illegality in the matter submitted. 
 
 Pleading performance of the award. 
 
 Pleading the Statute of Limitations. 
 
 Pleading revocation of the submission. 
 
 Pleading foreign attachment. 
 
 Pleading an oral waiver. 
 
 Plea that award was not ready in time. 
 
 Plea that the cause of action was not submitted. 
 
 Defence in suit on a promissory note. 
 
 Demurrer in suit on an award. 
 
 Execution of the submission must be proved. 
 
 Proving the existence and contents of a lost submission. 
 
 Part performance of award is evidence of submission. 
 
 Statements of a party as evidence. 
 
 Evidence of fraud. 
 
 Enforcing specific performance of an award by proceedings in equity. 
 
 Acquiescence as a preliminarj' to a decree for specific performance. 
 
 A penalty does not take the place of performance. 
 
 Bight to specific performance as affected by lapse of time. 
 
 No specific performance of illegal matters. 
 
 Enforcement of unreasonable orders. 
 
 Enforcement of specific performance by and against strangers. 
 
 Demurrer to a bill for specific performance. 
 
 Sustaining an award by injunction. 
 
 Pleading an award in bar to a bill in equity. 
 
 Vacating an award by motion. 
 
 Discovery of new matter as a ground of a motion to set aside an award. 
 
 The element of time in connection with new evidence. 
 
 Effect of vacating a report in a Us pendens. 
 
 The English rule as to setting aside an award by proceedings in equity. 
 
 The American rule as to setting aside an award by proceedings in equity. 
 
 Charges in the bill. 
 
 Demurrer to the bill. 
 
 Making an arbitrator a defendant. 
 
 CHAPTER XXIII. 
 
 Costs 622-632 
 
 I. — Ebtglish Cases. 
 
 Different kinds of costs. 
 
 Power of the arbitrator where the submission is silent as to costs. 
 
 Power over costs expressly conferred by the submission. 
 
 Apportionment of costs by the arbitrator. 
 
 The arbitrator's action in respect of his own fees. 
 
 Stipulation that costs shall abide the event. 
 
XXIV TABLE 'OF CONTENTS. 
 
 IL — The American Cases. 
 
 Distinction between different kinds of costs. 
 
 Ttie power of arbitrators over the costs of the arbitration. 
 
 The power of arbitrators over the costs of suit. 
 
 An eccentric decision. 
 
 Omission to find costs in the award. 
 
 Stipulation that costs shall abide the event. 
 
 Form of an award of costs. 
 
 An award merely of costs. 
 
TABLE OF CASES. 
 
 A. 
 
 Abbott V. Dexter, 6 Cush. 108 8, 44, 45 
 
 V. Keith, 11 Vt. 525 235 
 
 Abrahat w. Brandon, 10 Mod. 201 193,465 
 
 Ackerman v. Congdon (unreported) 57 
 
 Ackley B. Finch, 7 Cow. 290 153,161 
 
 Adams v. Adams, 8 K. H. 82 64, 66, 67, 178, 476, 612 
 
 V. Adams, 2 Mod. 169 193, 244, 278 
 
 V. Bankart, 1 Cr. M. & R. 681 19, 572 
 
 V. Stratham, 2 Lev. 235 204 
 
 Adcock V. Wood, 6 Exch. 814 595 
 
 Addison v. Gray, 2 Wils. 293 368, 481, 483 
 
 V. Spittle, 6 Dowl. & Low. 531 278, 481, 483 
 
 Adm'r of Colkins v. Ptnr. of Thaxton, Cam. & M. Congr. R. 93 . . 67 
 
 Agar V. Maeklew, 2 Sim. & Stu. 418 90 
 
 Ainsley v. Goff, B. R. 1799 220 
 
 Aitcheson v. Cargey, 2 Bing. 199 462, 463 
 
 Akely v. Akely, 16 Vt. 450 48, 55, 69, 258, 430 
 
 Aldrich v. Jessiman, 8 N. H. 516 . . . . 226, 227, 428, 431, 435, 562 
 Alexandria Canal Co. v. Swan, 5 How. (U. S.) 83 ... 5, 18, 19, 243 
 
 Alford V. Lea, 2 Leon. 110 553 
 
 AUegre u. Maryland Ins. Co., 6 Har. & J. 408 91 
 
 Allen V. Chase, 3 Wis. 249 48 
 
 17. Francis, 9 Jur. 691 134 
 
 V. Galpin, 9 Barb. 246 237, 259, 275 
 
 V. Harris, 1 Ld. Raym. 122 506, 591 
 
 V. Kingsbury, 16 Pick. 235 444 
 
 V. Lowe, 4 Q. B. 66 215 
 
 «. Miles (Smith's Adm'r), 4 Harringt. 234 141,303 
 
 V. Milner, 2 Cr. & Jer. 47 488 
 
 V. Ranney, 1 Conn. 569 326, 616 
 
 V. Watson, 16 Johns. 205 230, 231 
 
 V. Way, 7 Barb. 585 138, 139, 146 
 
 AUenby v. Proudlock, 4 Dowl. 54 64 
 
XXVI TABLE OF CASES. 
 
 Ailing «. Munson, 2 Conn. 691 19,628 
 
 Alsop V. Senior, 2 Keb. 707 14, 203 
 
 Ames V. Milward, 8 Taunt. 637 310, 460 
 
 Anderson u. Darey, 18 Ves. Jr. 447 136, 323 
 
 V. Farnham, 34 Maine, 161 72 
 
 V. Wallace, 3 CI. & Fin. 26 126, 127, 168, 893 
 
 Andrews v. Foster, 42 N. H. 376 • 628 
 
 *!. Lee, 3Penn. 99 87 
 
 V. Palmer, 4 Barn. & Aid. 260 30, 235, 527, 628 
 
 Angus V. Retford, 11 M. & W. 69, 2 Dowl. N. s. 735 . . 198, 216, 624 
 
 V. Smythies, 2 Fost. & Fin. 381 122 
 
 Anning v. Hartley, 27 L. J. Exch. 145 127, 153 
 
 Antram v. Chace, 15 East, 208 83, 529, 600 
 
 Applegate v. Schureman, 2 Penn. 868 71 
 
 Apsley V. Crosley, Barnes, 54 526 
 
 Archer v. Owen, 9 Dowl. 341 312 
 
 V. Williamson, 2 Har. & Gill. 62 344, 437 
 
 Armitage v. Coates, 4 Exch. 641 594 
 
 V. Walker, 2 Kay & J. 211 184, 186 
 
 Armitt V. Breame, 2 Ld. Kaym. 1076 425, 426 
 
 Armstrong v. Marshall, 4 Dowl. 693 136, 215 
 
 V. Masten, 11 Johns. 189 490, 506 
 
 V. Percy, 5 Wend. 635 68 
 
 Ashton V. Pointer, 3 Dowl. 201 315, 324, 639 
 
 Askew u. Kennedy, 1 Bailey, 46 141, 321 
 
 Aspinwallu. Tousey, 2 Tyler (Vt.), 328 280,239 
 
 Athelstone v. Moon, Comyn, 547 31 
 
 Atkins V. Baldwin, 1 Stark. 209 197 
 
 Atkinsons. Abraham, 1 Bos. & P. 175 126 
 
 Attorney-General v. Clements, 1 Turn. & R. 58 5 
 
 V. Davison, 1 McLel. & Yerg. 160 . . . . 135, 141 
 
 V. Jackson, 5 Hare, 366 619 
 
 Aubert V. Maze, 2 Bos. & P. 376 216, 461 
 
 Auriol V. Smith, 1 Turn. & R. 121 464 605 
 
 Austin V. Snow's Lessee, 2 Dall. 157 64 628 
 
 Ayland v. NichoUs, Freem. 265 378 
 
 B. 
 
 Babb B. Stromberg, 14 Penn. St. 397 17 
 
 Backhouse v. Taylor, 20 L. J. Q. B. 233 .* ." [ \ 15 
 
 Bacon v. Crandon, 15 Pick. 79 234 628 
 
 V. Dubarry, 1 Ld. Raym. 246 . . 14 204 381 
 
 V. Ward, 10 Mass. 141 '. . ' 86 
 
 V. Wilbur, 1 Cow. 117 445^ 455^ 457 
 
 Badger, in re, 2 Barn. & Aid. 691 186 216 222 
 
TABLE OF CASES. XXVll 
 
 Baggalay v. Mackwiok, 30 L. J. C. P. 342 295, 316 
 
 Bailey v. Lechmere, 1 Esp. Ca. 377 256, 487, 488 
 
 Baillie v. Edinburgh Oil Gas Co., 3 CI. & Fin. 639 180, 400 
 
 Baily v. Curling, 20 L. J. Q. B. 235 418, 426 
 
 Baker's Heirs v. Crockett, Hardin (Ky.), 388 234, 294, 540 
 
 Baker v. Hunter, 16 L. J. Exch. 203 276, 277, 278 
 
 V. Lafitte, 4 Rich. Eq. 392 148 
 
 V. Lovett, 6 Mass. 78 4 
 
 Ballard v. Mitchell, 8 Jones' Law, 153 432 
 
 Baltimore and Ohio R.R. Co. v. Polly, 14 Gratt. 447 38 
 
 Banfill V. Leigh, 8 Term, 571 580 
 
 Bank of Monro v. Widner, 11 Paige, 529 230, 232 
 
 Banks v. Adams, 23 Maine, 259 464 
 
 V. Banks, 1 Gale, 46 132, 536 
 
 Banuel v. Pinto, 2 Conn. 431 487 
 
 Baraoliff's Executors v. Griscom's Adm'rs, Coxa (N. J.), 165 ... 21 
 
 Bargrave v. Atkins, 3 Lev. 413 417, 456, 481, 483 
 
 Barker u. Belknap's Est., 39 Vt. 168 66 
 
 V. Lees, 2 Keb. 64 233 
 
 V. Tibson, 2 W. Bl. 953 463 
 
 Barlow v. Todd, 3 Johns. 367 332, 693 
 
 Barnardiston v. Fowler, 10 Mod. 204 549 
 
 Barnard v. Spoflford, 31 Maine, 39 140 
 
 Barnes v. Greenwell, Cro. Eliz. 858 365 
 
 Barnet v. Gilson, 3 Serg. & R. 340 432 
 
 Barnett v. Peck, 6 Vt. 456 44, 45, 47 
 
 Barney v. Fairchild, RoUe's Abr. Arb., E. 10, p. 248 . 204, 454, 467, 467 
 
 Barret v. Fletcher, Yelv. 152 589, 690 
 
 V. Parry, 4 Taunt. 657 626 
 
 Barrett v. Wilson, 1 Cr. Mee. & Ros. 586 312 
 
 Barrows v. Capen, 11 Cush. 37 188, 460 
 
 Barry v. Rush, 1 Term, 691 . . . 20, 21, 192 
 
 Barton v. Ransom, 3 Mee. & W. 322 312, 392, 403 
 
 Baspole's Case, 8 Coke, 193 ' . . . 31 
 
 Baspoole v. Freeman, Cro. Jac. 285 380 
 
 Bassett v. Harkness, 9 N. H. 164 332 
 
 Bassett's Adm'r v. Cunningham's Adm'r, 9 Gratt. 684 .... 241, 243 
 
 Bateman v. Olivia, Countess of Ross, 1 Dow. 235 29 
 
 Bates V. Cook, 7 Barn. & Cr. 407 243 
 
 V. Curtis, 21 Pick. 247 679 
 
 V. Townley, 2 Exch. 152, 1 Exch. 572 ... 488, 577, 579, 585 
 
 V. Visher, 2 Cal. 356 16 
 
 Battey v. Butler, 13 Johns. 187 163, 274 
 
 V. Button, 13 Johns. 167 272 
 
 Baxter v. Thompson, 26 Vt. 605 86 
 
 Bayley v. Adams, 6 Ves. Jr. 589 610 
 
 Bayne v. Morris, 1 Wall. 97 226, 581 
 
XXVUl TABLE OF CASES. 
 
 Beahorn v. Wolfe, 1 Alcook & Nap. 233 186 
 
 Beale v. Beale, Cro. Car. 383 4:17, 420 
 
 Bean v. Farnam, 6 Pick. 269 . 4, 19, 20, 23, 25, 332, 586, 594, 595, 600 
 
 V. Newbury, 1 Lev. 139 32, 340 
 
 V. Wendell, 22 N. H. 582 164, 294, 297 
 
 Beardsley v. Dygert, 3 Denio, 380 68 
 
 Beck u. Jackson, 1 C.B.N, s. 695. _ . .' 152 
 
 Beckett v. Taylor, 1 Mod. 9 204 
 
 Beckingham v. Hunter, Rolle's Abr. Arb., D., 8 197 
 
 Beckwith v. Warley, EoUe's Abr. Arb. H., 9 473 
 
 Bedam v. Clerkson, 1 Ld. Raym. 123 203, 410 
 
 Bedell v. Moore, 10 Rep. 131 456 
 
 Bedington v. Southall, 4 Price, 232 145 
 
 Beebeei;. Trafford, Kirby (Conn.), 215 25 
 
 Bell V. Benson, 2 Cliitty, 157 623 
 
 Belchier v. Reynolds, 2 Ld. Kenyon, Part II. 87 606 
 
 Bell V. Price, 2 Zabr. 578 298, 326, 330, 373 
 
 V. Twentyman, 1 Q. B. 766 546 
 
 Bemus v. Clarke, 29 Penn. St. 251 85, 172 
 
 V. Quiggle, 7 Watts, 363 47, 72, SO 
 
 Benjamin v. Benjamin, 5 Watts & S. 562 48, 80 
 
 Bennett v. Pierce, 28 Conn. 315 24 
 
 Bergh V. Pfeiller, Hill & Den. 110 133 
 
 Berkshire Woolen Co. v. Day, 12 Cusb. 128 . . 61, 72, 201, 212, 561 
 
 Berney «. Read, 7 Q. B. 79 600 
 
 Berry v. Penning, Cro. Jac. 399 347 
 
 0. Perry, 3 Bulst. 62 169 
 
 V. Wade, Cas. Temp. Finch, 180 608 
 
 Beverly v. Stephens, 17 Ala. 701 15 
 
 Bhear v. Harradine, 7 Exch. 269 347, 361 
 
 Bidden v. Dowse, 6 Barn. & Cr. 256 343, 381, 585 
 
 Bigelow V. Goss, 5 Wis. 421 74 
 
 V. Newell, 10 Pick. 348 214, 296, 302 
 
 V. Maynard, 4 Cush. 317 226, 243, 265, 337, 348, 355, 424, 566, 
 
 668 
 
 Biggs V. Hansen, 16 C. B. 662 132, 133 
 
 Bignall V. Gale, 2 Man. & Gr. 830 126, 172 
 
 Billington v. Sprague, 22 Maine, 34 63, 164, 538, 630 
 
 Bingham's Trustees v. Guthrie, 19 Penn. St. 418 . . 16, 16, 19, 72, 87 
 
 Binnse w. Wood, 47 Barb. 624 ... 110,119 
 
 Bird 1). Bird, 1 Salk. 74 203 
 
 V. Cooper, 4 Dowl. 148 343, 487 
 
 V. Penrice, 6 Mee. & W. 754 334, 335 
 
 V. Sands, 1 Johns. Ca. 394 I49 
 
 Birks V. Trippett, 1 Saund. 32 342, 368 
 
 Bishop of Bath & Wells t). Hippcsly, 3 Atk. 607 5,607 
 
 Bishop V. Bishop, 1 Rep. in Chy. 76, 141 605, 607, 608 
 
TABLE OF CASES. XXIX 
 
 Bishop V. Webster, 1 Ca. in Eq. Ab. 51, pi. 9 605 
 
 Bissex V. Bissex, 3 Bui-. 1730 685 
 
 Bixby V. Whitney, 5 Greenl. 192 65, 499, 502 
 
 V. Whitney, 11 Maine (2 Fairf.), 62 148 
 
 Black V. Pearson, 1 MeCord, 137 162 
 
 Blair v. Wallace, 21 Cal. 317 55 
 
 BlaisdelU. Blaisdell, 14 N. H. 78 239 
 
 Blanchard v. Lilly, 9 East, 497 269 
 
 V. Murray, 15 Vt. 548 82, 85, 578, 588 
 
 Blanton v. Gale, 6 B. Monr. 260 128, 178 
 
 Blennerhassett v. Day, 2 Ball & Beatty, 104 216, 586 
 
 Blin V. Trimble, 2 Tyler, 304 153, 161 
 
 Bliss V. Rollins, 6 Vt. 529 214 
 
 Block V. Palgrave, Cro. Eliz. 797 281 
 
 Blood V. Robinson, 1 Gush. 389 333, 335 
 
 Bloomer v. Sherman,' 6 Paige, 575 83, 85, 262, 280 
 
 Bloore «. Potter, 9 Wend. 480 69 
 
 Blossom V. Van Amringe, 63 N. C. 65 266 
 
 Blundell V. Brettargh, 17 Ves. Jr. 232, 240 257, 490, 572 
 
 Blunt V. Whitney, 3 Sandf. 4 68 
 
 Boardman v. England, 6 Mass. 70 159 
 
 Bodington v. Harris, 1 Bing. 187 17 
 
 Bonner v. Liddell, 1 Ball t& B. 80 470, 471 
 
 V. McPhail, 81 Barb. 106 132 
 
 Boodle V. Davis, 3 Ad. & E. 200 54, 199, 211, 463, 612 
 
 Booth V. Garnett, 2 Strange, 1082 < . . 185 
 
 Borrowdale v. Kitchener, 3 Bos. & Pul. 244 215 
 
 Boston V. Brazer, 11 Mass. 447 6, 67 
 
 Boston Water Power Co. v. Gray, 6 Mete. (Mass.) 131, 177, 197, 200, 
 
 212, 214, 217, 220, 293, 302, 305, 315, 816, 317, 320, 886, 568 
 
 Boston & Worcester R.R. Co. u. Western R.R. Co., 14 Gray, 253 110, 
 
 202, 212 
 
 Bouck V. Wilber, 4 Johns. 405 603 
 
 Bouttilier v. Thick, 1 Dowl. & Ry. 366 215, 299, 316 
 
 Bowes V. Fernie, 4 M. & Cr. 150 342, 346, 346, 368, 454 
 
 V. French, 2 Fairf. 382 46 
 
 Bowman v. Downer, 28 Vt. 532 362, 628 
 
 Bowen V. Laning, 1 Penning. 139 Ill, 112 
 
 Bowyer v. Blorksidge, 3 Lev. 17 25 
 
 V. Garland, Cro. Eliz. 600 682 
 
 Boyd's Heirs v. Magruder's Heirs, 2 Robins. 761 31 
 
 Boyes v. Bluck, 13 C. B. 652 192, 193, 446, 625 
 
 Boyer v. Amand, 2 Watts, 74 241 
 
 V. Stewart, 2 Hayw. Ill 83 
 
 Boynton v. Butterfield, 6 Allen, 67 598 
 
 V. Frye, 83 Maine, 216 200, 475 
 
 Bracher v. Cotton, Barnes, 123 623 
 
XXX TABLE OF CASES. 
 
 Bradbee v. Christ's Hospital, 4 Man. & Gr. 714 ■ 312 
 
 Braddick v. Thompson, 8 East, 344 . ^ 143, 542, 598 
 
 Bradford v. Beavan, Willes, 270 342 
 
 V. Bryan, Willes, 268 342, 345 
 
 Bradsey v. Clyston, Cro. Car. 541 204, 279, 585 
 
 Bradshaw v. East & West India Docks, &c., in re, 12 Q. B. 662 210, 326 
 
 Bradstreet v. Erskine, 50 Maine, 407 110 
 
 Brady u. Mayor of Brooklyn, 1 Barb. 584 4,5,7,52 
 
 Brainard v. Dunning, 30 N. Y. 211 434 
 
 Branuu. Inhab's of Vassalboro', 50Maine, 64 334,616 
 
 Branscome v. Rowcliff, 6 C. B. 623 42 
 
 Braunstein u. Accidental Death Ins. Co., 31 L. J. Q. B. 17 . ... 93 
 
 Bray v. English, 1 Conn. 498 117. 123, 147, 232, 237 
 
 Brazier v. Bryant, 10 Moore, 587, Dowl. 600 542, 643, 626 
 
 V. Jones, 8 Barn. & Cr. 124 600 
 
 Brett u. Beales, 1 Moo. & M. 416 ■ . . 619 
 
 Bretton ». Prat, Cro. Eliz. 758 203, 467 
 
 BrickheadK. Archbishop of York, Hob. 197 590 
 
 Brickhouse v. Hunter, 4 Hen. & Munf. 363 ... . 322, 336, 374, 402 
 
 Bridgeham v. Prince, 33 Maine, 174 25 
 
 Bridges v. Vick, 2 Humph. 516 74 
 
 Briggs V. Bennett, 26 Vt. 146 70 
 
 V. Brewster, 23 Vt. 100 498 
 
 V. Oaks, 28 Vt. 138 70, 207 
 
 Brisbane v. Mitchell, 8 Serg. & R. 423 69 
 
 Britton V. Williams, 6 Munf. 453 4 
 
 Broadbent c. Imperial Gas Co., 7 De Gex, M. & G. 436 609 
 
 Broadhurst v. Darlington, 2 Dowl. 38 305, 314 
 
 Brooke v. Bannon, 3 Watts & S. 382 172 
 
 V. Mitchell, 6 Mee. & W. 473 226, 288, 688 
 
 Brookins v. Shumway, 18 Wis. 98 84, 85 
 
 Brooks V. Christopher, 5 Duer, 216 146, 147 
 
 Brophy v. Holmes, 2 Moll. 1 188, 143, 346, 4J4, 569, 614 
 
 Brower v. Kingsley, 1 Johns. Ca. 334 153, 161, 224, 226 
 
 Browes v. Bruce, Watson on Aw. 4, n. 3 53 
 
 Browning v. M'Manus, 1 Whart. 177 84, 85, 172 
 
 M. Wheeler, 24 Wend. 268 106,111,112,113 
 
 Brown v. Bellows, 4 Pick. 179 Igg^ Igg 175 
 
 V. Brown, 1 Vern. 157 qiq 
 
 V. Clay, 31 Maine, 518 214, 294, 300, 313 
 
 ». Copp, 5 N. H. 223 83,261 
 
 V. Croyden Canal Co., in re, 9 Ad. & E. 622 315 349 
 
 V. Dalton, Kolle's Abr. Arb. H. 10, p. 250 ' 473 
 
 V. Goodman, 3 Term, 692 gg3 
 
 V. Green, 7 Conn. 536 32g 
 
 ». Hankerson, 3 Cow. 70 328 428 431 
 
 V. Hellerby, 1 Hurl. & Nor. 729 '. . ' 617 
 
TABLE OF CASES. XXXI 
 
 Brown v. Hellerby, 26 L. J. n. s. Exch. 217 327, 617 
 
 V. Kincaid, Wright, 37 43 
 
 V. Leavitt, 26 Maine, 261 66, 101, 105, 118, 123, 147, 171, 172, 
 
 280, 231, 233, 237, 238, 239 
 
 V. Mathes, 5 N. H. 229 628, 630 
 
 ». Meverell, Dyer, 216, 6 204, 346 
 
 V. Schaefifer, 6 Binn. 177 77 
 
 V. Scott, 1 Dall. 145 73 
 
 V. Tanner, 1 Carr. & Pay. 651 .... , 683 
 
 V. Vawser, 4 East, 684 279, 490 
 
 V. Watson, 6 Bing. N. C. 118 185 
 
 V. Welcher, 1 Coldw. 197 79 
 
 V. Wheeler, 17 Conn. 345 36 
 
 Browne v. Marsden, 1 H. Bl. 223 625 
 
 Buchanan M.' Curry, 19 Johns. 137 . • 7,8,9,12,381 
 
 Buchoz V. Grandjean, 1 Mich. 367 8 
 
 Buck V. Buck, 2 Vt. 417 498 
 
 V. Wadsworth, 1 Hill, 321 262, 280, 281, 282 
 
 Buckland, Inhab. of ». Inhab. of Conway, 16 Mass. 396 . 10, 11, 13, 15, 
 
 254, 255, 352, 414, 441 
 
 Buckle V. Roach, 1 Chit. 193 17 
 
 Buckman v. Davis, 28 Penn. St. 211 44 
 
 Buel V. Dewey, 22 How. Pr. 842 74, 76, 80 
 
 BuUard v. Coolidge, 3 Mass. 324 46 
 
 Bullitt V. Musgrove, 3 Gill. 31 16, 118, 124, 632 
 
 Bullock V. Hoon, 4 Wend. 531 83 
 
 Bulsom ». Lampman, 1 Kansas, 324 46,50 
 
 Bulson V. Lohnes, 29 N. Y. 291 44, 166 
 
 Bumpass v. Webb, 4 Porter, 66 294, 321, 640 
 
 Bunnell v. Pinto, 4 Conn. 431 497 
 
 BurcheU v. Marsh, 17 How. 344 294, 296 
 
 Burdett ». Harris, 3 Keb. 387 . .• 244 
 
 Burghardt v. Turner, 12 Pick. 534 601 
 
 Burnell v. Minot, 4 Moore, 340 8 
 
 Burnside v. Whitney, 21 N. Y. 148 43, 44, 576 
 
 V. Whitney, 26 Barb. 632 575 
 
 V. Whitney, 24 Barb. 682 575 
 
 Burroughs v. Thome, 2 South, 777 148 
 
 Burton v. Ellington, 3 Bro. C. C. 196 611 
 
 «. Knight, 2 "Vernon, 616 108 
 
 V. Wigley, 1 Bing. N. C. 665 187 
 
 Bury V. Dunn, 1 Dowl. & Low, 141 216 
 
 Busfield u. Busfield, Cro. Jac. 677 203, 866, 685 
 
 Bushey v. Culler, 26 Md. 634 118 
 
 Butcher v. Cole, 1 Anst. 99 610 
 
 Butler V. Bogles, 10 Humph. 165 226 
 
 V. Mayor, &c., of New York, 1 Hill, 489 241, 243 
 
XXXU TABLE OF CASES. 
 
 Butler V. Mayor, &o., of New York, 7 Hill, 329 . 178, 181, 214, 874, 408, 
 
 418, 420, 437, 480, 612 
 
 V. Mace, 47 Maine, 423 58 
 
 V. Masters, 13 Q. B. 341 643 
 
 Byam v. Bobbins, 6 Allen, 63 51, 518 
 
 Byers v. Van Deusen, 5 Wend. 268 66, 66, 367, 431 
 
 Byrd v. Odem, 9 Ala. 755 43, 50, 56 
 
 c. 
 
 Cable c. Rogers, 3 Bulst. 311 192,256 
 
 Cahill V. Benn, 6 Binney, 99 15 
 
 Cailer v. Elgood, 2 Dowl. & Ry. 193 215 
 
 Cain V. PuUam, 1 Hay, 173 233 
 
 Caledonian R.B. Co. v. Lockhart, 3 Macq. 808 . . 144, 167, 168, 233 
 
 Calcraft v. Roebuck, 1 Ves. Jr. 227 106 
 
 Caldwell v. Dickinson, 13 Gray, 365 . 196, 252, 261, 277, 287, 432, 463, 
 
 562, 603, 604, 606 
 
 Calboun's Lessee v. Dunning, 4 Dall. 120 511 
 
 Calvert v. Carter, 18 Md. 73 66, 228 
 
 Camp V. Bank of Owego, 10 Watts, 130 78 
 
 V. Root, 18 Johns. 22 74 
 
 Campbell v. Twemlow, 1 Price, 81 136 
 
 V. Western, 3 Paige, 124 135, 164, 166, 294, 316, 338, 635, 568 
 
 Canal Trustees v. Lynch, 5 Gilm. 527 38 
 
 Candler v. Fuller, Willes, 62 454, 463, 648, 660, 623 
 
 Carr v. Smith, 6 Q. B. 128 37 
 
 Carey v. Wilcox, 6 N. H. 177 55, 332 
 
 Cargey v. Aitcheson, 2 B. & C. 170 . 349, 389, 411, 416, 418, 699^ 625 
 Carnochan v. Christie, 1 Wheat, 446 . 266, 340, 346, 354, 400, 425, 546 
 
 Carpenter v. Edwards, 10 Mete. (Mass.) 200 527 
 
 V. Wood, 1 Mete. (Mass.) 409 153, 166, 166, 168 
 
 Carroll v. Blencow, 4 Esp. 27 28 
 
 Carson v. Carson, 1" Mete. (Ky.) 434 gQ 
 
 V. Early wine, 14 Ind. 256 43 50 66 
 
 Carter v. Carter, 1 Vern. 259 ; 1 Eq. Ca. Abr. 49 ; 2 Rep. 289 . . .31 
 
 V. Calvert, 4 Md. Chy. 199 ..." 66 
 
 V. Sams, 4 Dev. & Bat. 182 533 
 
 Case V. Barber, T. Rayra. 450 kqq 
 
 V. Ferris, 2 Hill, 75 . . 411, 446 
 
 Cassell, in re, 9 Barn. & Cr. 624 24S 
 
 Cater v. Startut, RoUe's Abr. Arb. H. 7 39/7 
 
 Caton u. McTavish, 10 Gill & J. 192 : 72 362 367 453 
 
 Cator V. Croydon Canal Co., 4 Younge & Coll. 405 ' 512 
 
 Cavanagh v. Dooley, 6 Allen, 66 n. 
 
 Cavendish v. Wood, Eq. Ca. Abr. 49 > 
 
 V. Wood, 1 Ca. in Chy. 279 S S' 381 
 
TABLE OF CASES. XXXUl 
 
 Cayhill v. Fitzgerald, 1 Wils. 28, 58 15, 204, 881, 388 
 
 Chace V. Westmore, 13 East, 356 292, 316, 333 
 
 Chadbdurn v. Chadbourn, 9 Allen, 173 19, 23 
 
 Champion v. Wenham, Arab. 246 618 
 
 Chapin V. Boody, 26 N. H. 286 447, 628, 630 
 
 Chaplin v. Kirw'an, 1 Dall. 187 117, 127, 169 
 
 Chapman u. Dalton, 1 Plowd. 289 31 
 
 V. Seccomb, 36 Maine, 102 76, 80, 236 
 
 Charnley v. Winstanley, 6 East, 266 236, 583, 698 
 
 Chase v. Strain, 16 N. H. 535 . . . 463, 454, 459, 464, t74, 627, 629 
 
 Cheshire Bank v. Robinson, 2 N. H. 126 63, 213 
 
 Chesley v. Chesley, 10 N. H. 827 138, 139 
 
 Chichester u. Mclntire, 1 Dowl. N. s. 460 536 
 
 Chicot V. Lequesne, 2 Ves. Sr. 315 642, 620 
 
 Child V. Horden, 2 Bulst. 143 546, 688 
 
 Ching ». Ching, 6 Ves. Jr. 281 54, 316 
 
 Christman v. Moran, 9 Barr, 487 174 
 
 Chuck V. Cramer, 2 Phill. 477 619 
 
 Chiircher v. Stringer, 2 Barn. & Ad. 777 584 
 
 Church V. Roper, 1 Rep. in Chy. 76, 141 606 
 
 Clapcott V. Davy, 1 Ld. Raym, 611 383 
 
 Clark V. Burt, 4 Cush. 396 65, 444, 445, 663 
 
 Clarke v. Owen, 2 Hurl. & Nor. 324 626 
 
 Cleary v. Coor, 1 Hayw. 225 314 
 
 Cleaveland v. Dixon, 4 J. J. Marsh. 226 226, 322 
 
 p. Hunter, 1 Wend. 104 145 
 
 Cleesly v. Peese, 8 Moore, 524 672 
 
 Clegg V. Dearden, 12 Q. B. 676 492 
 
 Cleland v. Hedly, 6 R. I. 163 636, 609 
 
 Clement v. Comstock, 2 Mich. 359 48 
 
 u.JDurgin, 1 Greenl. 300 453,454,470 
 
 V. Hadlock, 13 N. H. 185 231 
 
 V. Rohraback, 15 Penn. St. 116 226, 227 
 
 Cleworth v. Pickford, 7 Mee. & W. 314 91 
 
 Clifford V. Richardson, 18 Vt. 620 207 
 
 Cloud V. Sledge, 1 Bailey, 105 245 
 
 Clussraan v. Merkel, 3 Bosw. 402 146 
 
 Cock V. Gent, 13 Mee. & W. 810 614 
 
 Cockburn v. Newton, 2 Man. & Gr. 899, 9 Dowl. 676 . . 348, 463, 626 
 
 Cockson V. Ogle, 1 Lutw. 550 340, 393, 410 
 
 Cocks V. Macclesfield, Dyer, 218 257 
 
 Codwise v. Hacker, 2 Caines, 261 81 
 
 Coffin V. Cottle, 4 Pick. 454 19, 70, 207 
 
 Cohen v. Hobenicht, 14 Richardson, Eq. 31 822, 463 
 
 Colcord V. Fletcher, 50 Maine, 398 60, 386, 389, 419 
 
 Coleman v. Grubb, 23 Penn. St. 393 15, 18 
 
XXXIV TABLE OF CASES. 
 
 Coleman jj.Wade, 2 Seld. (N. Y) 44 487, 496, 523 
 
 Colkins, Adm'r of v. Partner of Thackston, Cam. & N. Conf. Rep. 
 
 (N. C.) 93 67 
 
 Collet V. Podvvell, 2 Keb. 670 404 
 
 Collins V. Collins, 28 L. J. Chy. 184 ? 40 
 
 V. Collins, 26 Beav. 306 S 
 
 V. Powell, 2 Term, 756 492 
 
 Collier V. Hicks, 2 Barn. & Ad. 663 180 
 
 Colwell V. Child, Ca. in Chy. 86, 1 Chy. R. 104 17 
 
 V. Cllild, Ca. in Chy. 86 376 
 
 Corneforth D. Geer, 2 Vern. 705 314 
 
 Combs V. Little, 3 Green, Ch. 310 Ill 
 
 V. Wyckoff, 1 Caines, 147 104, 105, 149 
 
 Commonwealth v. Norfolk, 5 Mass. 435 196 
 
 V. Pejepscut Prop's, 7 Mass. 399 . 61, 330, 398, 399, 402, 
 
 454, 507 
 V. City of Roxbnry, 9 Gray, 451 ... . 300, 303, 330 
 
 Condon u. SouthsideR.R. Co., 14 Gratt. 302 38 
 
 Conger v. Dean, 3 Clarke (Iowa), 463 43 
 
 Conrad v. Johnson, 25 Ind. 487 283 
 
 !). Massasoit Ins. Co., 4 Allen, 20 .... 101,118,121,535 
 
 Cook u. Carpenter, 34 Vt. 121 178,181,208,212 
 
 V. Jaques, 15 Gray, 59 213, 214, 599 
 
 1). Whorwood, 2 Saund. 337 185,203,456,579 
 
 Cooley V. Dill, 1 Swan. 213 83 
 
 Coombs, ire re, 4 Exch. 839 626 
 
 Cooper D. Hirst, 1 Lutw. 539 378 
 
 V. Langdon, 9 Mee. & W. 60, 1 Dowl. N. s. 392 450 
 
 V. Stinson, 5 Minn. 201 145 
 
 Cope V. Gilbert, 4 Denio, 347 162 
 
 Copeland v. Hall, 29 Maiiie, 98 •# • • ^^ 
 
 Coppell V. Smith, 4 Term, 312 598 
 
 Coppin !). Huruard, 2 Saund. 133 244 
 
 Coryell v. Coryell, Coxe, 385 149, 151 
 
 Countess of Portland v. Prodgers, 2 Vern. 104 28 
 
 Cowell V. Waller, 2 Barnard. 154 244 
 
 Cox V. Jagger, 2 Cow. 638 . 64, 164, 267, 379, 449, 463, 468, 511, 513, 
 
 519, 627 
 
 Crabtree v. Green, 8 Geo. 8 242 
 
 Craftsbury v. Hill, 28 Vt. 763 239 
 
 Craig V. Craig. 4 Halst. 198 73 
 
 Crammer v. Mathis, 2 Penning. 550 Ill, 112 
 
 Cramp v. Symons, 7 J. B. Moore, 434 214, 315 
 
 Cranston t). Kenny's Ex'rs, 9 Johns. 212 68,294,315,333 
 
 Craven v. Craven, 7 Taunt. 642 216, 364, 686 
 
 Crawford v. Gable, 2 Barr, 444 77 
 
TABLE OF CASES. XXXV 
 
 Crawshay v. Collins, 3 Swanst. 90 162, 235, 236 
 
 Creswick v. Harrison, 10 C. B. 441 363 
 
 Crofoot u. Allen, 2 Wend. 495 156, 168 
 
 Crofts V. Harris, Carth. 187 398, 591 
 
 Cromer v. Churt, 15 Mee. & W. 310 614 
 
 Cromwell v. Owings, 6 Har. & J. 10 453 
 
 Crooper v. Buck, 41 Maine, 355 75 
 
 Crump V. Adney, 1 Cr. & Mee. 355 199 
 
 Culver V, Ashley, 17 Pick. 98 183, 212 
 
 V. Ashley, 19 Pick. 300 531 
 
 Cumberland v. North Yarmouth, 4 Greenl. 459 154, 159, 160, 224, 232, 
 
 333, 336 
 
 Cunole V. Dripps, 3 Penn. 291 87 
 
 Cunningham v. Howell, 1 Iredell, 9 81 
 
 Curley v. Dean, 4 Conn. 269 487, 490, 507 
 
 Curry v. Lackey, 35 Mo. 889 39 
 
 Curtis V. Potts, 3 Maule & S. 145 226, 599 
 
 Cushing V. Babeock, 38 Maine, 462 69, 70, 81 
 
 Cushman v. Wooster, 46 N. H. 410 217, 297, 306, 807, 313 
 
 Cutter V. Carter, 29 Vt. 72 588, 540 
 
 V. Whittemore, 10 Mass. 442 31, 32, 172, 173 
 
 Cutting V. Stone, 23 Vt. 571 309 
 
 D. 
 
 Daggy V. Cronnelly, 20 Ind. 474 110 
 
 Dale V. Mottram, 2 Barn. 291 203 
 
 Dalling v. Matchett, Willes, 216 166 
 
 Dalrymple v. Whittingham, 26 Vt. 346 196, 477, 478, 484 
 
 Dana v. Prescott, 1 Mass. 200 59 
 
 Dane v. Viscountess Kirkwall, 8 C. & P. 679 26 
 
 Daniel v. Daniel's Adm'r, 6 Dana, 98 245 
 
 V. Daniel, 6 Dana, 93 245, 247 
 
 Daniels v. Willis, 7 Minn. 374 87 
 
 Darbey v. Whitaker, 4 Drew. 134 90 
 
 Darge v. Horicon Mining Co., 22 Wis. 691 350, 431 
 
 Darling v. Darling, 16 Wis. 644 264 
 
 Dater v. Wellington, 1 Hill, 319 • 9, 537 
 
 Daubuz V. Kickman, 4 Dowl. 129 626 
 
 Davis V. Campbell, 23 Vt. 236 70, 207 
 
 V. Forshee, 84 Ala. 107 105 
 
 V. Rea, Cas. temp. Finch, 441 619 
 
 Davies v. Pratt, 17 C. B. 183 277, 327, 333, 644 
 
 V. Pratt, 26 L. J. C. P. 71 277 
 
 V. Price, 10 W. R. 866 173 
 
XXXVl TABLE OF CASES. 
 
 Davy's Ex'ors v. Faw, 7 Cranch, 171 56, 360 
 
 Dawney u. Vesey, 2 Vent. 249 . .- , 427,554 
 
 Day V. Bonnin, 3 Bing. N. C. 219 364, 487 
 
 V. Essex County Bank, 13 Vt. 97 96 
 
 V. Hooper, 51 Maine, 178 431, 463, 627 
 
 V. Laflin, 6 Meto. (Mass.) 280 273, 375, 402 
 
 V. Smith, 1 Dowl. 460 580 
 
 Deerfield v. Arms, 20 Pick. 480 480 
 
 De Groot v. United States, 5 Wall. 419 228, 288, 474, 475 
 
 Delafield v. De Grauw, 9 Bosw. 1 145 
 
 De la Riva v. Berreyesa, 2 Cal. 195 137, 207 
 
 Delesline v. Greenland, 1 Day, 458 43 
 
 De Lisle v. Priestman, 1 Brown, 116 77 
 
 Delong V. Stanton, 9 Johns. 38 ... . 63, 66, 66, 294, 316, 332, 542 
 
 Delver v. Barnes, 1 Taunt. 48 216, 218, 219, 323 
 
 Dennis v. Barber, 4 Binney, 484 484 
 
 Deputy V. Betts, 4 Harrington, 352 Ill, 150 
 
 Detroit V. Jackson, 1 Dougl. 106 13 
 
 Dexter v. Young, 40 N. H. 130 232, 233, 238 
 
 Dibblee v. Best, 11 Johns. 103 277 
 
 Dicas V. Jay, 6 Bing. 519 492 
 
 Dick V. MiUigan, 2 Ves. 23 215, 316 
 
 Dickerson v. Lynn, 4 Blackf. 253 575 
 
 Dickey v. Sleeper, 13 Mass. 244 23, 32 
 
 Diedrichu. Richley, 2Hill, 271 13,43,44,68 
 
 Dimsdale v. Robertson, 2 Jones & La. 58 91 
 
 Dinsmore v. Smith, 17 Wis. 20 105 
 
 Dix !). Town ofDummerston, 19 Vt. 262 6 
 
 Dobson V. Groves, 6 Q. B. 637 126, 170, 172, 569, 570 
 
 Dodge u. Waterbury, 8 Cow. 136 68 
 
 Dod V. Herbert, Sty. 459;| 490, 588 
 
 V. Herring, 3 Sim. 143 } 
 
 . > . . . . 30 
 
 V. Herring, appealed, 1 Russ. & M. 135 S 
 
 Doddington v. Bailwai-d, 7 Dowl. 640 . 559 
 
 V. Hudson, 1 Bing. 384, 410 122, 145, 659 
 
 Doe d. Body v. Cox, 4 Dowl. & Low. 75 4g9 
 
 Doe d. Duke of Beaufort u. Weld, 3 Man. & Gr. 271 612 
 
 Doe d. Chawner v. Boulter, 6 Ad. & El. 675 620 
 
 Doe d. Clarke v. Stilwell, 8 Ad. & El. 645 195, 550 
 
 Doe d. Harris v. Saunder, 5 Ad. & El. 664 512 
 
 Doe d. Haxby v. Preston, 3 Dowl. & Low. 768 570 
 
 Doe d. Lloyd v. Evans, 3 C. & P. 219 " " 557 
 
 Doe d. Madkins v. Horner, 8 Ad. & El. 235 362, 488 
 
 Doe d. Moody v. Squire, 2 Dowl. (n. s.) 327 684. 
 
 Doe d. Morris v. Rosser, 3 East, 15 55, 488 511 613 
 
 Doe d. Smith !). Webber, 1 Ad. & El. 119 ' . '. .'519 
 
TABLE OF CASES. XXXVU 
 
 Doe d. TurnbuU v. Brown, 5 Barn. & Cr. 384 613 
 
 Doe d. Williams v. Richardson, 8 Taunt. 677 192, 465 
 
 Doke V. James, 4 Comst. 667 226, 463 
 
 Dolbier v. Wing, 3 Greenl. 421 349, 362 
 
 Dole V. Dawson, 2 Keb. 878 278 
 
 Dormano. The Turnpike Co., 3 Watts, 126 172 
 
 Douglas V. Kenton, 1 Miles, 21 77 
 
 Downer v. Downer, 11 Vt. 371 214, 217 
 
 Downs V. Cooper, 2 Q. B. 266 66, 620 
 
 Dowse V. Coxe, 3 Bing. 20 17, 340, 343, 375, 579 
 
 Doyle V. Reilly, 18 Iowa, 108 433 
 
 Doyley v. Benton, 1 Ld. Raym. 533 192, 548, 585, 586 
 
 Dresser v. Stansfield, 14 Mee. & W. 822 585, 594 
 
 Drew V. Drew, House of Lords, March 8, 1855, cited in Russell on 
 
 Arb. 3d ed. p. 106 101, 104, 126, 129 
 
 v. Leburn, 2 Macq. 1 171 
 
 u. Mullikin, 6 N. H. 153 105 
 
 Dudgeon v. Martin, 1 McQueen, House of Lords, 714 487 
 
 Dudley V. Mallery, 3 Leon. 62 203, 204 
 
 V. Nettlefold, 2 Stra. 737 625 
 
 Duke of Beaufort v. Swansea Harbor Trustees, 29 L. J. C. P. 241 . 363 
 
 V. Welch, 10 Ad. & El. 627 461 
 
 Duke of Northumberland w. Errington, 5 Term, 522 579 
 
 Dundon v. Starin, 19 Wise. 261 627 
 
 Dunn V. Murray, 9 Barn. & Cr. 780 492 
 
 Duport V. Wild'goose, 2 Bulstr. 260 432 
 
 Duquid v. Ogilvie, 3 E. D. Smith, 527 145 
 
 Duren v. Getchell, 65 Maine, 241 .. . 28, 490, 507, 541, 642, 596, 600 
 Dyer v. Dawson, 1 Coop. C. C. 420, notes 602 
 
 E. 
 
 Eads V. Williams, 24 L. J. Chy. 631 .. . 144, 163, 165, 169, 606, 667 
 
 Eardley v. Otley, 2 Chitt. 42 615 
 
 V. Steer, 4 Dowl. 423 164, 252 
 
 Earl of Mexborough v. Bower, 7 Beav. 127 90 
 
 Earle v. Stooker, 2 Vern. 251 100, 108, 145, 543, 613 
 
 Eastern Counties' Railway Co. v. Robertson, 6 Man. & Gr. 38 . . 136, 
 
 138 
 Eastern Union Railway Co. v. Eastern Counties Railway Co., 2 El. & 
 
 Bl. 630 ., 199 
 
 Eastham v. Tyler, 2 Bail Court Rep. 136 120 
 
 Eastman v. Burleigh, 2 N. H. 484 7, 8, 31, 164 
 
 Eaton V. Arnold, 9 Mass. 619 73, 576 
 
 V. Cole, 1 Fairf. 137 19 
 
XXXVm TABLE OF CASES. 
 
 Eaton V. Hall, 5 Mete. 287 601 
 
 V. Rice, 8 N. H. 878 51, 516 
 
 Eddy V. Sprague, 10 Vt. 216 70, 207, 208 
 
 Edmunds v. Cox, 2 Chitt. 432 5*34 
 
 Edmundson w. Hartley, 1 Anst. 97 610 
 
 Edwards v. Stevens, 1 Allen, 816 841, 345, 602 
 
 Efner v. Shaw, 2 Wend. 667 42, 63, 338, 579 
 
 Elborough v. Gates, 2 Lev. 68 586 
 
 Elkins «. Page, 45 N". H. 310 332,612 
 
 Ellis V. Arnison, 5 Barn. & Aid. 47 512 
 
 u. Hopper, 28 L. J. Exch. 1 105 
 
 V. Saltau, 4 C. & P. 827 669 
 
 Elliot V. Cheval, 1 Lutw. 541 244, 380 
 
 V. Davis, 2 Bos. & P. 338 32 
 
 Elliott V. Heath, 14 N. H. 181 625 
 
 V. Quimby, 18 N. H. 181 75, 76, 80 
 
 Elmendorfw. Harris, 23 Wend. 628 118,120,125,246 
 
 Elsom V. Rolfe, 2 Smith, 459 356, 594 
 
 Elvin V. Drummond, 1 M. & P. 88 ) ^2 
 
 V. Drummond, 4 Bing. 415 ^ 
 
 Emerson v. Udall, 8 Vt. 367 120, 284 
 
 V. Udall, 18 Vt. 477 540, 644 
 
 Emery v. Emery, Cro. Eliz. 726 397 
 
 V. Fowler, 38 Maine, 99 14, 619 
 
 V. Hitchcock, 12 Wend. 166 354, 422, 428, 542 
 
 V. Wase, 6 Ves. Jr. 846 28, 167, 464, 608 
 
 V. Wase, 8 Ves. Jr. 504 185 
 
 Emmet v. Hoyt, 17 Wend. 410 537 
 
 England v. Davison, 9 Dowl. N. s. 1052 481, 483 
 
 Erie «. Tracy, 2 Grant's Ca. 20 230 
 
 Estanson v. Dupuy, 2 Browne, 100 59 
 
 Estep V. Larsh, 16 Ind. 82 • 46, 59 
 
 Estes V. Mansfield, 6 Allen, 69 803 
 
 European & American Steam Shipping Co. v. Croskey, 8 C. B. N. s. 
 
 397 243 
 
 Evans v. Cogan, 2 P. Wms. 460 607, 608 
 
 V. Harris, 2 Ves. & B. 361, 364 610 
 
 V. M'Kinsey, Litt. Sel. Ca. 262 43, 51, 62 
 
 V. Pratt, 3 Man. & Gr. 759 295 
 
 V. Rees, 10 Ad. & El. 151 519 
 
 Eveleth v. Chase, 17 Mass. 458 82, 664 
 
 Everard v. Paterson, 6 Taunt. 625 260, 586 
 
 Ewes ». Blackwall, Cas. temp. Finch, 22 606 
 
 Ewing V. Beauchamp, 3 Bibb, 41 294 
 
 Ewing's Administrators v. Beauchamp, 2 Bibb, 456 .... 294, 586 
 Executors of Baracliff w. Adm'rs of Grisoom, Coxe (N. J.) 165 . . 21 
 
TABLE OP CASES. XXXIX 
 
 Eyre's Ex'or v. Fennimore, 2 Penning. 932 135, 141 
 
 Executors of Finney u. Miller, 1 Bailey, 81 242 
 
 Eyre v. Good, 2 Rep. in Chy. 18, 34 605 
 
 F. 
 
 Fairchild v. Adams, 11 Cush. 547 ... . 300, 308, 309, 315, 316, 566 
 
 Falconer v. Montgomery, 4 Dall. 232 247 
 
 Farmer u. Frey, 4 McCord, 160 234 
 
 u. Stewart, 2 N. H. 97 119 
 
 Farrer v. Billing, 2 fiarn. & Aid. 171 512 
 
 Farringdon v. Chute, 1 Vern. 72 507, 609 
 
 Farrington v. Hamblin, 12 Wend. 212 81 
 
 Faunce v. Burke, 16 Penn. St. 480 92 
 
 Faviell v. Eastern Counties Railway Co., 2 Exch. 344 ... 17, 19, 299 
 
 Fay V. Bond, 1 Allen, 211 375 
 
 Fennimore v. Childs, 1 Halst. 386 135, 141 
 
 Fenton u. Dimes, 7 Mee. & W. 134 351 
 
 Fernley v. Branson, 20 L. J. Q. B. 178 626 
 
 Ferrer v. Oven, 7 Barn. & Cress. 427 ; • ■ ^74, 582, 600 
 
 Ferris v. Muiin, 2 N. J. 161 '. 232 
 
 Person v. Drew, 19 Wis. 225 . . . -. 332, 620 
 
 Fetherstone v. Cooper, 9 Ves. Jr. 67 . . . 107, 116, 117, 127, 170, 275 
 
 Fidler v. Cooper, 19 Wend. 285 31, 487, 495, 505 
 
 Fielding v. Westermeier, 20 La. An. 51 73 
 
 Filmer v. Delber, 3 Taunt. 486 18 
 
 Findley v. Ray, 5 Jones, Law, 125 36 
 
 Fink V. Fink, 8 Clarke, 313 43, 46, 48 
 
 Finley v. Finley, 11 Mis. 624 542, 588 
 
 Finney's Ex'ors v. Miller, 1 Bailey, 81 242 
 
 Firth V. Robinson, 1 Barn. & Cr. 277 463, 623 
 
 Fisher v. Pimbley, 11 East, 188 590, 593, 599 
 
 Fiske V. South Wilbraham Manuf. Co., 7 Allen, 476 ... . 446, 447 
 
 Fitzgerald v. Fitzgerald, Hardin, 227 72, 226, 626 
 
 Fletcher v. Hubbard, 43 N. H. 58 332, 542, 543, 595, 612 
 
 V. Webster, (cited in chap. " Award must be certain," 390) . 422 
 
 Forbes v. Frary, 2 Johns. Ca. 224 161 
 
 Ford V. Ford, 53 Barb. 525 209, 210 
 
 V. Jones, 3 B. & Ad. 248 243 
 
 V. Keen, 13 Penn. St. 179 50, 80 
 
 V. Potts, 1 Halst. 393 Ill, 112 
 
 Foreland v. Marygold, 1 Salk. 72 587 
 
 Forseth v. Shaw, 10 Mass. 253 71 
 
 Forsley v. Galveston, Houston & Henderson R.R. Co., 16 Tex. 516 . 46 
 
 Forrest v. Forrest, 3 Bosw. 650 14:8 
 
 V. Kissam, 7 Hill, 463 , 150 
 
xl TABLE OF CASES. 
 
 Fort V. Battle, 13 Sm. & M. 133 26, 27 
 
 Forster v. Durant, 2 Cusli. 644 263 
 
 Fowler v. Bigelow, 8 Mass. 1 58 
 
 V. Thayer, 4 Gush. Ill 142 
 
 Fox V. Bales, 2 Miles, 169 49 
 
 V. Hazelton, 10 Pick. 275 101, 102, 103, 104, 108, 172 
 
 V. Smith, 2 Wils. 267 417 
 
 Francisco v. Fitch, 25 Barb. 130 69 
 
 Frazer v. Phelps, 3 Sandf. 741 132 
 
 Freeborn v. Denman, 3 Halst. 116 234 
 
 Freeman v. Adams, 9 Johns. 115 86 
 
 V. Barnard, 1 Ld. Raym. 247 427 
 
 V. Bernard, 1 Salk. 69 . . 184, 279, 424, 438, 546, 682, 591 
 
 V. Drew, Cro. Eliz. 181 563 
 
 V. Sheen, Cro. Jac. 339 654, 665 
 
 French v. Moseley, 1 Litt. 248 112, 226 
 
 V. New, 20 Barb. 481 48, 51, 62, 83, 174, 233 
 
 V. Richardson, 6 Cush. 450 28, 56, 57, 334 
 
 Frets V. Frets, 1 Cow. 335 232, 233, 238, 239 
 
 Frissell v. Fiokes, 27 Mis. 5.57 113 
 
 Fryeburg Canal, Prop's of t). Frye, 5 Greenl. 38 56 
 
 Fryer v. Shaw, 27 L. J. Exch. 320 145 
 
 Fuller V. Fenwick, 3 C. B. 705 220, 295, 298, 310, 315, 823 
 
 V. Wheelock, 10 Pick. 135 •. . . . 135, 139, 140, 141, 142, 402 
 
 Fulton V. Wiley, 32 Vt. 762 207, 209 
 
 Furber v. Chamberlain, 29 N. H. 405 13, 61, 65, 516 
 
 Furbish w. Hall, 8 Maine (Greenl.), 316 7,380,381 
 
 Furlong u. Thornigold, 12 Mod. 633 463,456,587 
 
 Furnival v. Bogle, 4 Russ. 142 17, 18 
 
 Furser v. Prowd, Cro. Jac. 423 399, 54a 
 
 G. 
 
 Gable v. Moss, 1 Bulst. 44 546, 588 
 
 Gaby v. Wilts Canal Co., 3 Maule & S. 680 ' 310 
 
 GafFney v. Killen, 12 Ir. C. L; Rep. App. XXV .527 
 
 Galloway's Heirs v. Webb, Hardin, 318 105 
 
 Galvin V. Thompson, 13 Maine, 367 210 697 
 
 Gan V. Gomez, 9 Wend. 649 40 
 
 Garcie v. Sheldon, 3 Barb. 232 7]^ 
 
 Garr v. Gomez, 9 Wend. 649 5gg 
 
 Garred v. Macey, 10 Mo. 161 39 
 
 Garret v. Weeden, 1 Lev. 133 279 
 
 Gartside v. Gartside, 3 Anst. 735 54O 610 613 614 
 
 Gascoyne v. Edwards, 1 Ypunge & Jer. 19 59I 
 
TABLE or CASES. xli, 
 
 Gatliffe v. Dunn, Barnes, 55 263 
 
 Genne v. Tinker, 3 Lev. 21 579, 590, 597 
 
 Gensham u. Germain, 11 Moore, 1 295, 298 
 
 George v. Farr, 46 N. H. 171 83, 85 
 
 J). Johnson, 45 N. H. 456 521,522 
 
 V. Lonsley, 8 East, 12 276, 278, 626 
 
 Gerrish v. Ayres, 3 Scam. 245 59 
 
 Gervais v. Edwards, 2 Dru. & War. 80 603 
 
 Giddings v. Hadaway, 28 Vt. 342 ... . 364, 431, 455, 458, 467, 483 
 
 Gill V. Russell, Free™. 62 25 
 
 Gillon V. Mersey Nav. Co., in re, 3 Barn. & Ad. 493 180 
 
 Gilmore v. Hubbard, 12 Cush. 220 182, 458 
 
 Girdler v. Carter, 47 N. H. 305 .... 487, 490, 507, 510, 511, 556 
 
 Gisborne v. Hart, 5 Mee. & W. 50 699, 601 
 
 Gladwin v. Chilcote, 9 Dowl. 650 122, 145 
 
 Glover V. Barrie, 1 Salk. 71 180, 393 
 
 Goddard v. Mansfield, 19 L. J. Q. B. 305 392 
 
 Godfrey v. Wade, 6 Moore, 488 4 
 
 Goff I). Musser, 2 Serg. & R. 262 ■ 73 
 
 Goldsmith's Administrator v. Tilly, 1 Harris & J. 361 316, 322, 336, 613 
 
 Goldstone v. Osborn, 2 Car. & P. 550 93 
 
 Golemanu. Turner, 14 Sm. &M. 118 26 
 
 Golightly V. Jellicoe, 4 Term, 146, u 493, 505, 572 
 
 Gonsales v. Deavens, 2 Yeates, 539 437, 446, 447 
 
 Goodall V. Cooley, 9 Foster, 48 119 
 
 Goodman u. Sayers, 2 J. & W. 242 166,170,511,619 
 
 Goodridge v. Dustin, 6 Mete. (Mass.) 363 511, 614 
 
 Goodson V. Brooke, 4 Camp. 163 11, 12 
 
 Goodyear v. Simpson, 16 Mee. & W. 16 37 
 
 Gordon v. Mitchell, 3 Moore, 241 562 
 
 V. Tucker, 6 Maine, 247 466, 463, 475, 627 
 
 Gourlay v. Duke of Somerset, 19 Ves. Jr. 431 90 
 
 Gould V. Staffordshire Potteries Water-works Co., 5 Exch. 214 . . 369 
 
 V. Ward, 4 Pick. 104 448 
 
 Gove B. Richardson, 4 Greenl. 327 51,617 
 
 Govett V. Richmond, 7 Sim. 1 608 
 
 Graham v. Graham, 9 Penn. St. 254 . . 69, 64, 83, 121, 242, 243, 247 
 
 I). Hamilton, 1 Binn. 461 112 
 
 V. Morton, 6 Wend. 552 149 
 
 Gray v. Berry, 9 N. H. 473 51, 616 
 
 V. Gray, Roll's Abr. Arb. E. 6, p. 247 . . . .' . . . 203, 410 
 
 V. Gray, Cro. Jac. 525 269, 549 
 
 V. Gwennap, 1 Barn. & Aid. 106 349, 364, 423 
 
 V. Wilson, 4 Watts, 39 91 
 
 Grazebrook v. Davis, 6 Barn. & Cress. 534 642 
 
 Greason v. Keteltas, 17 N. Y. 491 89 
 
xlii TABLE OF CASES. 
 
 Greathead v. Moreley, 3 Man. & Gr. 139 512 
 
 Green v. Creighton, 7 Sm. & M. 197 1^1 
 
 V. Ford, 17 Ark. 586 52, 54, 602 
 
 V. Lundy, Coxa, 435 227, 330 
 
 «. Miller, 6 Johns. 39 156, 158, 162 
 
 V. Patcher, 13 Wend. 293 68, 74 
 
 V. Pole, 6 Bing. 443 229, 230 
 
 V. Waring, 1 Wm. Bl. 474 186 
 
 Greenough v. Rolfe, 4 N. H. 357 . . . . 217, 294, 297, 302, 307, 315 
 
 Greenwood v. Titterington, in re, 9 Ad. & El. 699 243 
 
 Gregory u. Howard, 3 Esp. 113 567 
 
 Greig t>. Talbot, 2 Barn. & Cress. 179 582 
 
 Grenfell v. Edgcome, 7 Q. B. 661 199, 451, 624 
 
 Grier V. Grier, 1 Ball. 173 426 
 
 Griffin V. Hadley, 8 Jones, Law. 82 458 
 
 Griggs V. Seeley, 8 Ind. 264 29 
 
 Grindley v. Bai-ker, 1 Bos. & Pul. 229 162 
 
 Griswold V. North Stonington, 5 Conn. 367 6 
 
 Grove V. Cox, 1 Taunt. 105. 623 
 
 Grubb V. Grubb's Ex'ors, 2 Dall. 191 77 
 
 V. M'Cullough, 1 Yeates, 193 77 
 
 Gunter v. Sanchez, 1 Cal. 45 49, 73 
 
 Gunton V. Nurse, 5 Moore, 259 520 
 
 Gyde v. Boucher, 5 Dowl. 127 363 
 
 H. 
 
 Habershon t). Troby, 3 Esp. 38 216,568 
 
 Haddan v. Roupell, 9 C. B. n. s. 683 93 
 
 Haffu. Blossom, 5 Bosw. 559 167 
 
 Haggart v. Morgan, 5 N. Y. 422 91, 491 
 
 Hagger v. Baker, 14 Mee. & W. 9 135, 136, 295, 325, 326 
 
 Hagh V. Chadwick, 2 Keb. 667 597 
 
 Hagner v. Musgrove, 1 Dall. 83 117 
 
 Haigh V. Haigh, 31 L. J. Cby. 420 . 115, 116, 128, 129, 131, 145, 173 
 
 Hale V. Handy, 26 N. H. 206 37 
 
 V. Huse, 10 Gray, 99 214, 566, 571 
 
 Halfhide v. Fenning, 2 Bro. C. C. 336 131 
 
 Hall ». Anderton, in re, 8 Dowl. 326 122, 146 
 
 V. Decker, 51 Maine, 31 214 
 
 V. Hall, 3 Conn. 308 224 
 
 V. Hardy, 3 P. Wins. 187 . 603, 605, 606 
 
 Hall & Hinds, in re, 2 Man. & Gr. 847 . 229, 324, 825, 326, 327, 337, 539 
 
 Hallaek v. March, 26 111. 48 8 
 
 Halloran v. Bray, 29 Geo. 422 44 
 
TABLE OF CASES. xliii 
 
 Hamilton v. Hamilton, 27 111. 168 46 
 
 V. Rankin, 3 De Gex & S. 782 15, 1^8 
 
 Hampton v. Boyer, Cro. Eliz. 557 682 
 
 Hannum's Heirs v. Wallace, 9 Humph. 129 . 26 
 
 Hanson v. Boothman, 13 East, 21 548 
 
 u. Liversedge, 2 Vent. 242 219, 256, 389, 416, 688 
 
 V. Webber, 40 Maine, 194 . 255, 383, 404, 414, 463, 560, 627 
 
 Harcourt v. Ramsbottom, 1 Jac. & Walk. 612 128 
 
 Harden v. Harden, 11 Gray, 435 363, 627, 629 
 
 Harding, ex parte, 5 De Gex, M. & G. 367 629 
 
 V. Forshaw, 1 Mee. & W. 415 348 
 
 V. Holmes, 1 Wils. 123 592 
 
 V. Wallace, 8 B. Monr. 586 121, 226 
 
 V. Watts, 15 East, 656 243, 244 
 
 Hardy v. Ringrose, 1 H. & W. 185 323 
 
 V. Innes, 6 Moore, 576 814 
 
 Hare, in re, 6 Bing. N. C. 158 170, 637, 672 
 
 V. Fleay, 11 C. B. 472 203, 428 
 
 Harker v. Hough, 2 Halst. 428 340, 346, 363 
 
 Harmon v. Jennings, 22 Maine, 240 45, 59, 72 
 
 Harris v. Bradshaw, 18 Johns. 26 68 
 
 V. Hayes, 6 Binn. 422 47 
 
 V. Knipe, 1 Lev. 68 380, 456 
 
 V. Norton, 7 Wend. 584 161, 163, 154 
 
 V. Paynter, Rolle's Abr. Arb., O. 8, p. 261 353 
 
 V. Wilson, 1 Wend. 511 496 
 
 Harries v. Thomas, 2 Mee. & W. 32 476 
 
 Harrison v. Lay, 13 C. B. N. s. 628 197, 312, 364, 459 
 
 0. Creswick, 13 C. B. 399 349, 694 
 
 V. Wortham, 8 Leigh, 296 72, 210 
 
 Harrington v. Brown, 9 Allen, 679 63, 627 
 
 V. Higham, 18 Barb. 660 8, 9 
 
 V. Rich, 6 Vt. 666 161, 225 
 
 Hart u. Lauman, 29 Barb. 410 491 
 
 V. Trotter, 4 Wend. 198 81 
 
 Hartnell v. Hill, Forrest, 73 264. 623 
 
 Hartshorne u. Cuttrell, 1 Green's Chy. 297 . 321, 322, 336, 337, 536, 686 
 
 Harvey v. Ashley, 3 Atk. 607 4, 607 
 
 V. Shelton, 7 Beav. 456 1-23, 127, 128, 170 
 
 V. Snow, 1 Yeates, 156 630 
 
 Haskell u. Whitney, 12 Mass. 47 73,232 
 
 Haswell v. Thorogood, 7 Barn. & Or. 705 528 
 
 Hatton V. Royle, 3 Hurl. & N. 500 10 
 
 Haven v. Winnisimmet Co., 11 Allen, 377 341, 242 
 
 Hawkins v. Benton, 2 Dowl. & Low. 465 ; 8 Q. B. 479 . . . . 33, 427 
 V. Colclough, 1 Burr. 275 362, 380, 408 
 
Xliv TABLE or CASES. 
 
 Hawks V. Crofton, 2 Burr. 698 264 
 
 Hawksworth v. Brammall, 5 M. & Cr. 281 356, 361, 605 
 
 Hawkyard v. Stocks, 2 Dowl. & Low. 936 454, 457, 469 
 
 Hawley v. Ho.lge, 7 Vt. 237 233, 239, 628 
 
 Hay V. Brown, 12 Wend. 691 558 
 
 Hayes v. Bennett, 2 N. H. 422 -17 
 
 V. Blanchard, 4 Vt. 210 78 
 
 V. Forskoll, 31 Maine, 112 ... . 179, 181, 191, 350, 362, 446 
 
 u. Hayes, Cro, Car. 433 . .- 32 
 
 Hayllar v. Ellis, 3 X. & P. 663 364 
 
 Hayinan v. Jerrard, 1 Saund. 102 589 
 
 Hayues v. Wright, 4 Hayw. 64 16 
 
 Hays V. Hays, 23 Wend. 363 63, 106 
 
 Hayward v. Phillips, 6 Ad. & El. 119 199 
 
 Hazeltine v. Smith, 3 Vt. 535 214, 217, 229, 307 
 
 Hazen v. Adm'rs of Addis, 2 Green, 333 71, 77, 80 
 
 Heard v. Baskerville, Hob. 232 590 
 
 Hedrick v. Judy, 23 Ind. 548 259 
 
 Hemans v. Picciolto, 1 C. B. N. s. 646 93 
 
 Heming v. Swinnerton, 1 Coop. C. C. 420 602, 615 
 
 Hemsworth v. Brian, 1 C. B. 131 180, 527, 528, 626 
 
 Henderson v. Walker, 2 Grant (Penn.), 36 72 
 
 V. Williamson, 1 Strange, 116 261, 685 
 
 Henfree v. Bromley, 6 East, 309 226, 288 
 
 Henley v. Soper, '8 Barn. & C. 16 ? 11 1«? 
 
 V. Soper, 2 M. & R. 156 i 
 
 Henueigh v. Kramer, 50 Penn. St. 630 85, 175 
 
 Henrickson v. Reinback, 33 111. 299 374, 412, 418, 446 
 
 Henry v. Kirwan, 9 Ir. C. L. 469 511, 606 
 
 Herrick u. Blair, 1 Johns. 101 117, 126 
 
 Heslep V. San Francisco, 4 Cal. 1 76 
 
 Hetley u. Hetley, Kyd on Awards, p. 100 122 
 
 Hewitt V. Furman, 16 Serg. & R. 136 . 366, 358, 362, 363, 434, 436, 631 
 
 V. Plewitt, 1 Q. B. 110 421, 432 
 
 V. Poi-tsmouth Waterworks Co., 10 W. R. 780 122 
 
 Hewlett V. Laycock, 2 Car. & Payne, 574 .. . 116, 121, 128, 129, 172 
 
 Hickes v. Cracknell, 3 Mee. & W. 72 593 
 
 Plicks V. Cottrell, 26 Vt. 80 208 
 
 V. Gleason, 20 Vt. 139 352, 414 
 
 V. Richardson, 1 Bos. &'P. 93 282 
 
 Hide V. Cooth, 2 Vern. 109 34O 
 
 V. Pettit, 1 Ca. in Ch. 185 230, 342 
 
 Higgins V. Kinneady, 20 Iowa, 474 262 264 328 
 
 .;. Willes, 3 M. & R. 382 ' 420', 422 
 
 Higham «. Jessop, in re, 9 Dowl. 203 225 
 
 Hill V. Ball, 1 Dow, n. s. 164 ! ! 316 
 
TABLE OF CASES. xlv 
 
 Hill u. Hill, 11 Sm. & Mar. 616 118,121 
 
 V. Page, 1 N. H. 190 47 
 
 V. Taylor, 15 Wis. 190 47, 83, 85 
 
 V. Thorne, 2 Mod. 309 193, 465 
 
 Hinton v. Cray, 3 Keb. 612 263, 585, 594 
 
 Hix V. Sumner, 50 Maine, 290 71 
 
 Hobbs V. Ferrars, 8 Dowl. 779 613 
 
 Hobdell V. Miller, 6 Bing. N. C. 292 538 
 
 Hobler, in re, 8 Beav. 101 17 
 
 Hobson V. Stewart, 4 Dowl. & Low. 589 378 
 
 Hodge V. Burgess, 3 Hurl. & Nor. 293 295, 325 
 
 Hodges V. Hodges, 9 Mass. 320 356, 362, 364, 503 
 
 a. Raymond, 9 Mass. 316 254 
 
 V. Saunders, 17 Pick. 470 524, 603 
 
 Hodgkinson v. Fernie, 27 L. J. C. P. 66 295, 323 
 
 Hodsden v. Harridge, 2 Saund. 62 . 290, 490, 674, 678, 580, 584, 588, 598 
 
 Hodson V. Drewry, 7 Dowl. 569 243 
 
 Hoflf V. Taylor, 2 Southard, 829 153 
 
 Hoffmann v. Locke, 7 Harris, 57 58, 78 
 
 Holdsworth w. Borsham, 31 L. J. Q. B. 145 389,416,577 
 
 V. Wilson, 32 L. J. Q. B 389, 416, 577 
 
 Holgate V. Killick, 7 Hurl. & Nor. 418 564 
 
 Holker v. Parker, 7 Cranch, 452 15 
 
 HoUingsworth v. Leiper, 1 Dall. 161 117, 141, 217 
 
 V. Pickering, 24 Ind. 435 418 
 
 Holmes u. Higgins, 1 Barn. & Cr. 74 313 
 
 Holt V. Ward, Fitzgibbon, 175, 276 4 
 
 Hood u. Hartshorn, 100 Mass. 117 94 
 
 Hoogs V. Morse, 31 Cal. 128 175 
 
 Hooper v. Hooper, McLel. & Y. 609 199 
 
 V. Pierce, 12 Mod. 116 193, 465 
 
 V. Taylor, 39 Maine, 224 136, 138, 140 
 
 Hoporaft V. Hickman, 2 Sim. & St. 130 ... . 168, 395, 420, 422, 608 
 
 Hopper V. Hackett, 1 Lev. 132 380 
 
 Hopson V. Doolittle, 13 Conn. 236 59, 64 
 
 Horn V. Roberts, 1 Ashm. 45 77, 78 
 
 Horton v. Benson, Freem. 204 378 
 
 V. Wilde, 8 Gray, 426 8 
 
 Houghton V. Burroughs, 18 N. H. 499 . . 276, 279, 280, 282, 283, 290 
 
 629, 688 
 
 V. Houghton, 37 Maine, 72 47, 52 
 
 House V. Launder, 1 Lev. 85 592 
 
 Houston V. Pollard, 9 Mete. 164 265, 358, 360, 367, 424 
 
 Howard v. Conro, 2 Vt. 492 153, 154 
 
 V. Cooper, 1 Hill, 44 233 
 
 V. Edgell, 17 Vt. 9 178 
 
xlvi TABLE OF CASES. 
 
 Howard v. Pollock, 1 Yeates, 509 162 
 
 V. Sexton, 1 Denio, 440 HI 
 
 V. Sexton, 4 Comst. 157 43, 47 
 
 I-Iowett V. Clements, 1 C. B. 128 333, 335, 468, 536 
 
 Hoyt V. Hoyt, 8 Bosw. 511 209 
 
 Hubbell V. Bissell, 13 Gray, 298 68, 463, 663, 676 
 
 Huber v. Zimmerman, 21 Ala. 488 H 
 
 Hughes's Adm'r v. Peaslee, 60 Penn. St. 257 106 
 
 Humphreys v. Gardner, 11 Johns. 61 622 
 
 Humphrey v. Strong, 14 Mass. 262 45 
 
 Hunt V. Wilson, 6 N. PI. 36 287 
 
 Hungate v. Mease, Cro. Eliz. 885 289 
 
 Hunter v. Bennison, Hardw. 43 105, 170, 392, 396 
 
 •«. Rice, 15 East, 100 55,510,611 
 
 Huntig V. Railing, 8 Dowl. 879 99, 100, 316 
 
 Huntley, in re, 1 El. & Bl. 787 834, 335 
 
 Hurst V. Bambridge, Rolle's Abr. Arb., Q. 7, p. 263 410 
 
 Hurst V. Litchfield, 39 N. Y. 377 89, 91, 93 
 
 Huston V. Mitchell, U Serg. & R. 307 16, 17 
 
 Hutchins !J. Johnson, 12 Conn. 376 9,24,26 
 
 Hutchinson v. Shepperton, 13 Q. B. 955 323, 325 
 
 Imlayu. Wickoff, ISouth (N. J.), 132 132 
 
 Indiana Central R.R. Co. v. Bradley, 7 Ind. 49 ... 65, 214, 226, 294 
 
 Ingram v. Bernard, 1 Ld. Raym. 636 598 
 
 V. Milnes, 8 East, 4+4 351, 467, 489 
 
 V. Webb, 1 Rolle's Rep. 362 278, 442 
 
 Inhabitants of Plymouth v. The Russell Mills, 7 Allen, 438 .... 617 
 Inhabitants of N. Yarmouth «. Inhab. of Cumberland, 6 Greenl. 21 499, 696 
 
 Inman v. Wheeler, 1 Pick. 504 45 
 
 Innes v. Miller, 1 Dall. 1S8 126, 127 
 
 Inslee v. Flagg, 2 Dutcher, 368 Ill 
 
 Irvine v. Elnon, 8 East, 54 229 
 
 V. Marshall, 7 Minn. 286 65 
 
 Isaacs V. Beth Haraedash Society, 1 Hilt. 4'69 14 
 
 Ives V. Metcalfe, 1 Atk. 63 296 
 
 J. 
 
 Jackson ea; (^em. Nellis u. Dysling, 2 Carnes, 198 ...;... 517 
 V. Ambler, 14 Johns, 96 294, 316, 367, 408, 429, 431, 487, 446, 
 
 469, 466 
 V. De Long, 9 Johns. 43 432 513 
 
TABLE OF CASES. xlvii 
 
 Jackson u. Clarke, McLel. &'Y. 200 469 
 
 V. Gager, 5 Cow. 383 56, 164, .511, 615, 517 
 
 V. Ives, 22 Wend. 637 149, 151 
 
 James v. Thurston, 1 Cliif. C. C. 867 341, 437, 617 
 
 Jebb V. M'Kiernan, Moody & M. 340 42 
 
 Jeffrey v. Guy, Yelv. 78 590 
 
 Jenkins, in re, 1 Dowl. N. s. 276 171, 247 
 
 V. Betham, 24 L. J. C. P. 94 40 
 
 V. Gillespie, 10 Sm. & M. 31 15 
 
 Jenkinson v. AUisson, 1 Freem. 415 685 
 
 Jennings v. Vandeputt, Cro. Car. 263 244 
 
 Jesse V. Cater, 28 Ala. 475 60 
 
 Jewell V. Blankenship, 10 Yerg. 439 74 
 
 Johns 0. Stevens, 3,Vt. 308 306. 307, 613 
 
 Johnson v. Durant, 2 Barn. & Ad. 925 314, 489, 569, 584 
 
 V. Hodgson, 8 East, 38 512 
 
 V. Latham, 19 L. J. Q. B. 329 199 
 
 V, Latham, 20 L. J. Q. B. 236 336, 394 
 
 V. Mcintosh, 31 Barb. 267 209 
 
 V. Noble, 13 N. H. 286 . 214, 217, 294, 296, 297, 300, 305, 307 
 
 V. Parmely, 17 Johns. 129 68 
 
 V. Wilson, Willes, 248 56, 193, 386, 611, 579 
 
 Johnston v. Cheape, 5 Dow Pari. 247 . . . 104, 142, 143, 144, 172, 466 
 
 Jones V. Bailey, 6 Cal. 345 8. 9 
 
 V. Bennett, 1 Bro. P. C. 528 494, 620 
 
 ■0. Boston Mill Corporation, 4 Pick. 507, 6 Pick. 148, 55, 195, 292, 
 
 294, 295, 373, 382, 603, 604, 606 
 
 V. Carter, 8 Allen, 431 627, 629 
 
 B. Dewey, 17 N. H. 696 256, 257, 268, 286, 516 
 
 V. Beyer, 16 Ala. 21 19 
 
 V. Hacker, 6 Mass. 264 47 
 
 V. Phoenix Bank, 4 Seld. 228 631 
 
 V. Powell, 6 Dowl. 483 381, 449 
 
 Jordan B. Hyatt, 3 Barb. 275 74,118 
 
 Joseph V. Webster, in re, 1 Russ. & M. 496 21 
 
 Joy V. Simpson, 2 N. H. 179 441, 447, 461, 627, 628 
 
 Joyce V. Haines, Hard, 399 31, 279, 456 
 
 Jupp V. Grayson, 8 Dowl. 199 . . 315 
 
 Juxon ... Thornhill, Cro. Car. 132 588 
 
 K. 
 
 Karapshire v. Young, 2 Atk. 164 611 
 
 Kanouse v. Kanouse, 36 III. 439 438 
 
 Karthaus v. Ferrer, 1 Pet. 222 .. . 8, 9, 351, 356, 867, 362, 379, 423 
 
xlviii TABLE OF CASES. 
 
 Keans v. Rankin, 2 Bibb, 88 248 
 
 Keeler v. Harding, 23 Ark. 697 491, 591 
 
 Keen v. Batshore, 1 Esp. 194 106, 488, 579 
 
 Keene v. Atkinson, in re, Exch. Ap. 16, 1847 222, 354, 569 
 
 Keitli V. Gore, 1 J. J. Marsh, 18 32 
 
 Kelly V. Crawford, 5 Wall. (U. S.) 785 37 
 
 Kemp V. Rose, 1 Giflf. 258 101 
 
 Kemshead, Ex parte, 1 Rose, 149 30 
 
 Kendall v. Bates, 35 Maine, 3.57 19, 45 
 
 Kendrick v. Davies, 5 Dowl. 693 462, 625, 626 
 
 !'. Tarbell, 26 Vt. 416 266,371,390,420,446 
 
 Kent V. Elstob, 3 East, 18 305, 310, 313, 325 
 
 Kenyon «. Grayson, 2 Smith, 61 553 
 
 Kerr v. Jeston, 1 Dowl. N. s. 538 225 
 
 Kesler v. Kerns, 5 Jones, Law, 191 86 
 
 Keson v. Barclay, 2 Penn. 531 36 
 
 Kill V. HoUister, 1 Wils. 129 89 
 
 Kimmel v. Shank, 1 Serg. & R. 24 47 
 
 Kind V. Carter, 1 Sid. 290 590 
 
 King V. Bowen, 8 Mee. & W. 625 694 
 
 V. Cook, Charlt. 286 241 
 
 V. Jemison, 33 Ala. 499 47, 61 
 
 V. Savory, 8 Gush. 312 602, 504, 605 
 
 Kinge v. Fines, Sid. 59 Vin. Abr. Arb. H. 18 401 
 
 Kingsley v. Bill, 9 Mass. 197 576 
 
 V. Young, 17 Ves. Jr. 468 612 
 
 Kingston v. Kincaid, 1 Peake, N. P. 299 488, 600 
 
 V. Phelps, 1 Wash. C. C. 448 1,54, 158, 409, 420, 435, 562, 569 
 
 Kingwell v. Elliott, 7 Dowl. 423 121, 129, 172, 572 
 
 Kirk V. Unwin, 6 Exeh. 908 204 
 
 Kleine v. Catara, 2 Gall. 61 214, 217, 218, 294, 300, 307, 315, 317, 329, , 
 
 333, 336, 350 
 
 Knight V. Burton, 6 Mod. 231 55, 268, 269 
 
 V. Stone, W. Jones, 164 26 
 
 Knott u. Long, 2 Strange, 1025 389 
 
 Knowlton V. Homer, 30 Maine, 552 162, 246, 247, 286 
 
 u. Mickles, 29 Barb. 466 116,119,125 
 
 Knox V. Simmonds, 1 Ves. Jr. 369 216, 218, 219, 226, 323 
 
 Kookill V. Witherell, 2 Keb. 838 186, 404 
 
 Kunckle v. Kunckle, 1 Dall. 364 I54 153 
 
 Kyle, in re, 2 Jur. 760 j23 
 
 V. Kavanagh, 103 Mass. 356 195 
 
 Kynaston v. Jones, Styles, 97 278 
 
TABLE OF CASES. xlix 
 
 Ladd V. Lord, 86 Vt. 194 613 
 
 Lady Wenmaii v. Mackenzie, 5 El. & Bl. 447 619 
 
 Laing v. Todd, 13 C. B. 276 203 
 
 Lamar v. Nicholson, 7 Porter, 158 "... 43 
 
 Lambard v. Kingsford, Lutw. 558 ; 589 
 
 Lamphire v. Cowan, 39 Vt. 420 . 179, 189, 191, 254, 265, 266, 267, 352 
 362, 383, 387, 414, 420, 433, 446. 485, 558, 576, 577 
 
 Lancaster v. Hemington, 4 Ad. & El. 345 312, 316 
 
 Langlej- v. Hickman, 1 Sandf. 681 148 
 
 Lanman v. Young, 31 Penn. St. 306 42 
 
 Lansdale v. Kendall, 4 Dana, 613 226, 289 
 
 Large v. Passmore, 6 Serg. & R. 51 47, 80, 87, 131," 133 
 
 Larkin v. Robbins, 2 Wend. 505 73, 75 
 
 Lathrop V. Hitchcock, 38 Vt. 496 238 
 
 Latimer v. Ridge, 1 Binn. 458 135, 151 
 
 Lattier v. Rachal, 12 La. An. 695 20, 172 
 
 Lattimore v. Martin, Addis. 11 84 
 
 Latuche v. Pasherante, 1 Salk. 86 17 
 
 Laurence v. Hodgson, 1 Younge & Jer. 16 427 
 
 Lazell 0. Houghton, 32 Vt. 579 84, 85 
 
 Leake v. Butler, Litt. 312 687 
 
 Lean v. Schutz, Wm. Bl. 1197 28 
 
 Learned v. Bellows, 8 Vt. 79 139, 307 
 
 Leavitt «. Comer, 5 Cush. 129 358, 363, 365, 568, 570 
 
 Lee V. Elkins, 12 Mod. 585 . 193, 204, 206, 399, 405, 456, 465, 483, 560, 
 
 689 
 
 ». Hemmingway, 3 Nev. & M. 860 ) .^ 
 
 V. Hemmingway, 3 L. J. K. B. 124 I 
 
 V. Lingard, 1 East, 400 216, 684 
 
 V. Tillotson, 24 Wend. 337 71 
 
 Leeds v. Burrows, 12 East, In 40, 42 
 
 Leggo ». Young, 16 Q. B. 626 563 
 
 Leominster v. Worcester R.R. Co., 7 Allen, 38 . . 100, 276, 463, 482 
 
 Leonard v. House, 15 Geo. 473 40, 73, 230 
 
 Libtral v. Field, 1 Keb. 885 31 
 
 Ligon». Ford, 5'Munf.'lO 71,143, 
 
 Lile V. Barnett, 2 Bibb, 167 112 
 
 Linch V. Clemence, Lutw. 671 204 
 
 Lincoln v. Whittendon Mills, 12 Mete. 31 388, 398 
 
 Lindsay v. Lindsay, 11 Irish C. L. Rep. 311 388 
 
 Lindsey v. Aston, 2 Bulst. 38 456 
 
 Linfield v. Feme, 3 Lev. 18 417 
 
 Lingood v. Croucher, 2 Atk. 396 544 
 
 V. Eade, 2 Atk. 601 166, 189, 190, 191, 192, 389, 397, 576, 618 
 d 
 
1 TABLE OF CASES. 
 
 Lingood, ex parte, 1 Atk. 240 529 
 
 Linnen v. Williamson, Rolle's Abr. Arb. K. 16 553 
 
 Linsey v. Ashton, Godbold, 255 594 
 
 Little V. Newton, 9 Dowl. 437 152, 163, 167, 167 
 
 V. Silverthorne, 2 Penning. 680 Ill, 112 
 
 Livermore ». Jamaica, 23 Vt. 363 196 
 
 Livingston v. Ralli, 24 L. J. Q. B. 269 1 gj 
 
 V. Kalli, 5 E. & B. 132 S 
 
 Lock ». Vulliamy, 2 N. & M. 336 252 
 
 Lockhart v. Kidd, 2 Rep. Const. Ct. 217 164 
 
 Lookwood V. Smith, 10 W. R. 628 570 
 
 Logsdon V. Roberts' Ex'ors, 3 Monr. 255 19, 43, 61, 62 
 
 Londonderry & Enniskillen Railway Co. v. Leishman, 12 Beav. 423 . 620 
 
 Lord V. Hawkins, 2 Hurl. & Nor. 55 268 
 
 V. Lord, 5 El. & Bl. 404 152 
 
 Lord Lonsdale v. Littledale, 2 Ves. Jr. 451 620 
 
 Lord Montgomery v. Buckley, Joddrell's MSS., 1 Coop. C. C. 418 . 615 
 
 Loring v. Alden, 3 Mete. (Mass.) 676 63, 82 
 
 V. Whittemore, 13 Gray, 228 194, 518, 565, 691, 601 
 
 Love V. Honeybourne, 4 Dowl. & Ry. 814 21, 434 
 
 Lowenstein v. Mcintosh, 87 Barb. 261 11, 13 
 
 Lower V. Lower, Rolle's Abr. Arb. E. 20, & H. 11 393 
 
 Lowes V. Kermode, 8 Taunt. 146 592 
 
 Lumley u. Hutton, Cro. Jac. 447 663 
 
 Lupart V. Welson, 11 Mod. 171 578, 686 
 
 Lutz V. Linthicum, 8 Peters, 178 118, 119, 126 
 
 Lyle u. Clason, 1 Caines, 323 322 
 
 V. Rodgers, 6 Wheat. 394 358, 427, 430, 458, 467 
 
 Lyman v. Arms, 5 Pick. 213 210, 211, 213 
 
 Lyon V. Blossom, 4 Duer, 318 241 
 
 M. 
 
 MacArthur v. Campbell, 6 B. & Ad. 618 288, 289 
 
 V. Campbell, 2 Ad. & El. 62 643 
 
 Mackay, ira re, 2 Ad. & El. 356 191,211 
 
 V. Bloodgood, 9 Johns. 285 8 
 
 Mackey v. Neill, 8 Jones, Law, 214 162 
 
 Mackintosh v. BIyth, 1 Bing. 269 624 
 
 Macquen v. Nottingham Caledonian Society, 9 C. B. N. s. 793 . . 136 
 
 Madison Ins. Co. v. Griffin, 3 Ind. 277 6, 161 172 288 
 
 Maloney v. Stockley, 2 Dowl. n. s. 122 351 
 
 V. Stockley, 4 Man. & Gr. 647 206, 460 
 
 Manley v. Bray, 11 Jur. 521 543 
 
 Manlove v. Thrift, 5 Munf. 492 . . . 84 
 
TABLE OF CASES. H 
 
 Mansell v. Burredge, 7 Term, 352 • . 679, 584 
 
 Manser v. Heaver, 2 Barn. & Ad. 295 389, 392, 473 
 
 Maples V. Avery, 6 Conn. 20 587 
 
 March v. Eastern Railroad, 40 N. H. 548 89, 91 
 
 Marco V. Liverpool & London F. & L. Ins. Co., 35 N. Y. 664 . . 617 
 
 Marder v. Cox, Cowp. 127 463 
 
 Markham v. Jennings, RoUe's Abr. Arb. 254, 263 425 
 
 Marks V. Marriot, 1 Ld. Raym. 114 192, 279, 611, 664, 586 
 
 Marks v. Marryott, 1 Lutw. 524 284 
 
 Marsack v. Webber, 6 Hurl. & Nor. 498 577 
 
 Marseilles v. Kenton's Ex'ors, 17 Penn. St. 238 .... 230, 233, 235 
 
 Marsh, in re, 16 L. J. Q. B. 330 135, 296 
 
 V. Bulteel, 5 Barn. & Aid. 607 230, 683, 598 
 
 V. Hutchinson, 2 Bos. & P. 226 28 
 
 ». Packer, 20 Vt. 198 266 
 
 V. Wood, 9 Barn. & Cr. 659 30, 527 
 
 Marshall v. Dresser, in re, 3 Q. B. 878 414, 421, 469, 612 
 
 V. Piles, 3 Bush (Ky.), 249 632 
 
 V. Powell, 9 Q. B. 779 224, 225 
 
 Martin v. Burge, 4 Ad. & El. 973 612 
 
 V. Chapman, 1 Ala. 278 61 
 
 V. Thornton, 4 Esp. 180 572 
 
 V. Thrasher, 40 Vt. 460 8 
 
 V. Williams, 13 Johns. 264 204, 459 
 
 Massey v. Thomas, 6 Binn. 333 47, 66, 432 
 
 Massy v. Aubrey, Sty. 365 410 
 
 Mason v. Bridge, 14 Maine, 468 39 
 
 0. The Stokes Bay Railway Co., 32 L. J. Chy. 110 .... 606 
 
 Masters v. Gardener, 5 Jones, Law, 298 60 
 
 Matson v. Trower, 1 Ryl. & M. 17 128, 252 
 
 Matthews v. Matthews, 2 Curtis C. C. 106 557 
 
 Matthew v. Davis, 1 Dowl. n. s. 679 54 
 
 V. OUerton, 4 Mod. 226 ; Comb. 218 106 
 
 Maule V. Maule, 4 Dow, 363 490 
 
 Maxfield v. Scott, 17 Vt. 634 70, 71, 77, 207 
 
 May V. Haven, 9 Mass. 325 160, 335 
 
 Maynard u. Frederick, 7 Cush. 247, . . . 131,133,136,141,153, 
 
 164, 155, 161, 162, 163, 172, 197, 463, 627 
 
 Mayo V. Gardner, 4 Jones, Law, 359. 36 
 
 Mayor of Ludlow «. Charlton, Ex. E. T. 1845 ; Russell on Arb. 3d ed. 
 
 21, 26 19 
 
 Mayor, &c. , of New York u. Butler, 1 Barb. 325 . . 124, 126, 464, 478, 491 
 
 Mays V. Cannell, 24 L. J. C. P. 41 199, 202 
 
 McAdam's Ex'ors v. Stillwell, 1 Harris, 90 44, 47, 50, 80 
 
 M'AHister u. M'Allister, 1 Wash. 193 141 
 
 McAvoy V. Long, 13 111. 147 38 
 
Hi TABLE OF CASES, 
 
 McBride v. Hagan, 1 Wend. 326 8, 9, 54, 459, 471 
 
 McCahan v. Reamey, 33 Penn. St. 535 87 
 
 McCall V. Crouslllat, 6 Serg. & R. 167 77 
 
 M'Can V. OTerrall, 8 CI. & Fin. 30 235 
 
 McCIendonu. Kemp, 18La. An. 162 46,50 
 
 McClure v. Guliek, 2 Harrison, 340 80 
 
 McComb V. Turner, 14 Sm. & M. 119 25, 29 
 
 MeCracken v. Clarke, 31 Penn. St. 498 54, 87 
 
 McCrary v. Harrison, 36 Ala. 579 159 
 
 McGheehen v. Duffield, 5 Penn. St. 497 232, 835 
 
 Mclnroy u. Benedict, llJohns. 402 153,154 
 
 McKeen v. Oliphant, 3 Harrison, 442 21 
 
 McKinney v. Page, 32 Maine, 518 39, 118, 125 
 
 McKinstry v. Solomons, 2 Johns. 57 243, 362, 394, 395, 398 
 
 McKnight v. Dunlop, 1 Seld. 637 146 
 
 V. McCullough, 21 Iowa, 111 81 
 
 M'Manus v. MoCulloch, 6 Watts, 357 52, 256, 579 
 
 MoMuUen v. Mayo, 8 Sm. & Mar. 298 50, 55 
 
 McNear v. Bailey, 18 Maine, 251 . 55, 63, 344, 845, 361, 362, 455, 603 
 McNeil V. Magee, 5 Mason, 244 . . . 193, 196, 445, 603, 604, 605, 607 
 
 McRae v. McLean, 2 El. & Bl. 946 333, 334, 335, 336 
 
 V. Robeson, 2 Murph. 127 141 
 
 McShane v. Gray, 13 Iowa, 504 176 
 
 Mechanics' Bank v. Fisher, 1 Rawle, 341 78 
 
 Meloy V. Dougherty, 16 Wise. 269 620 
 
 Merchants' Bank v. Rawls, 21 Ga. 334 19 
 
 Meredith u. AUeyn, 1 Salk. 138 589 
 
 Merrill v. Gold, 1 Cush. 457 70, 207, 212 
 
 Merritt v. Merritt, 11 111. 665 65 
 
 !). Thompson, 27 N.Y. 225 67 
 
 Metcalfe v. Ives, 1 Atk. 63 .... 640, 613 
 
 Michie, ex parte, 1 Mont. D. & De Gex, 181 ; 9 L. J. Bank. 28 . . 30 
 
 Mickles v. Thayer, 14 Allen, 114 301, 595, 620 
 
 Middleton v. Weeks, Cro. Jao. 200 356 
 
 Millar v. Criswell, 3 Barr, 449 16, 17, 18 
 
 Miller v. De Burgh, 4 Exch. 809 . 199, 401 
 
 V. Goodwin, 29 Ind. 46 •. . . 43 
 
 V. Moore, 7 Serg. & R. 164 ' 27 382 
 
 J). Pres't of Junction Canal Co., 58 Barb. 590 91 
 
 V. Robe, 3 Taunt. 461 g9g 
 
 V. Van Anken, 1 Wend. 516 75 
 
 V. Vaughan, 1 Johns. 315 gg 
 
 Mills V. Bowyer's Society, 3 Kay & J. 66 323 333 570 
 
 Milne V. Gratrix, 7 East, 607 '_ _ ' 230 
 
 Milnes v. Robertson, 24 L. J. C. P. 29 30 
 
 Mitchell V. Bush, 7 Cow. 185 56^ 221, 294 298 
 
TABLE OF CASES. liii 
 
 Mitchell w. Harris, 4 Bro. Ch. 311 89,90 
 
 V. Harris, 2 Ves. Jr. 129 640, 613 
 
 V. Staveley, 16 East, 58 845, 361, 363, 593 
 
 V. Wilhelm, 6 Watts, 259 172 
 
 Mole ». Smith, 1 Jac. & W. 673 17, 18 
 
 Monongahela Navigation Co. v. Fenlon, 4 Watts & S. 205 ... 92 
 
 Monosiet v. Post, 4 Mass. 532 44, 46 
 
 Montague v. Smith, 13 Mass. 396 173, 260 
 
 Moore v. Barnett, 17 Ind. 349 69, 170 
 
 V. Bedell, Rolle's Abr. Arb. B. 6, p. 247 204 
 
 V. Booth, 3 Ves. Jr. 350 134 
 
 V. Cockcroft, 4 Duer, 133 356, 661 
 
 V. Darley, 1 C. B. 445 288, 626 
 
 V. Ewing, Coxe (N. J.), 144 153, 170 
 
 Mooers v. Allen, 35 Maine, 276 73 
 
 Morewood v. Jewett, 2 Robertson, 496 118, 120 
 
 Morgan v. Birnie, 9 Bing. 672 104, 172 
 
 V. Bolt, 1 N. R. 271 152, 243 
 
 V. Man, 1 Lev. 127 592 
 
 V. Mather, 2 Ves. Jr. 15 186, 211, 215, 216, 316, 328, 536, 643, 
 
 613 
 
 V. Morgan, 1 Dowl. 611 101 
 
 V. Pindar, 3 Rep. in Ohy. 76 . 619 
 
 V. Smith, 1 Dowl. N. s. 617 198, 481, 483, 624, 626 
 
 Morley v. Newman, 5 Dowl. & Ryl. 317 188 
 
 Morphett, in re, 2 D. & L. 967 83, 119, 156, 184, 186, 211 
 
 Morris v. Morris, in re, 6 El. & Bl. 383 336 
 
 V. Ross, 2 Hen. & Munf. 408 314, 321 
 
 Morrison v. Buchanan, 32 Vt. 288 628, 631 
 
 Mortin v. Burge, 4 Ad. & El. 973 410 
 
 Morton v. Cameron, 3 Robertson, 189 491 
 
 Moulson V. Rees, 6 Binn. 32 328 
 
 Muckey u. Pierce, 3 Wis. 307 74 
 
 Mudy V. Osam Litt. 30 32, 203 
 
 Mulder u. Cravat, 2 Bay (S. C), 370 136 
 
 Muldrow j>. Norris, 2 Cal. 74 87 
 
 Mullins V. Arnold, 4 Sneed, 262 233, 241, 242 
 
 Mundy v. Black, 9 C. B. N. s. 557 144 
 
 Munro v. Alaire, 2 Caines, 320 . . . 65, 59, 60, 65, 283, 284, 379, 465 
 
 Munson v. Munson, 3 Day, 260 532 
 
 Murray v. Bruner, 6 Serg. & R. 276 428, 431 
 
 V. Gregory, 6 Exch. 486 602 
 
 Musselbrook v. Dunkin, 9 Bing. 605 136, 289 
 
 Mussina v. Hertzog, 5 Binn. 387 87 
 
 Myers v. Dixon, 2 Hall (Sup. Ct. N. Y.), 456 85 
 
 V. York and Cumberland R.R. Co., 2 Curtis C. C. 28 179, 208, 
 
 210, 214, 294 
 
liv TABLE or CASES. 
 
 N. 
 
 Nagle V. Ingersoll, 7 Penn. St. 185 16 
 
 Neale v. Ledger, 16 East, 51 ,.243 
 
 Nelson v. Andrews, 2 Mass. 164 628 
 
 Nettleton B. Gridley, 21 Conn. 631 73,162 
 
 Newburyport Marine Ins. Co. v. Oliver, 8 Mass. 402 541 
 
 Newell V. Doty, 33 N. Y. 83 587 
 
 Newgate v. Degelder, 2 Keb. 10, 20, 24 230 
 
 Newland J). Douglass, 2 Johns. 62 332,642 
 
 Newsome v. Bowyer, 3 P. Wms. 37 28 
 
 Newton u. West, 3 Mete. (Ky.), 241 70 
 
 Nichols V. Grunnion, Hob. 49 378 
 
 V. Rensselaer County M. Ins. Co., 22 Wend. 129 205, 463, 454, 
 465, 475, 479, 483, 558, 683, 589, 627 
 
 Nickalls V. Warren, 6 Q. B. 615 142, 536 
 
 Nickels V. Hancock, 7 De Gex, Macn. & Gor. 300 403, 454, 606, 606, 607 
 
 Nicholls V. Jones, 6 Exch. 373 198, 199 
 
 Noble V. Peebles, 13 Serg. & E,. 319 53, 54, 59 
 
 North Yarmouth «. Cumberland, 6 Greenl. 21 578, 612 
 
 V. Savage, 10 Maine, 455 172, 174, 206 
 
 Norton v. Mascall, 2 Rep. in Chy. 304 606 
 
 Norwich V. Norwich, 3 Leon. 62 203, 204, 456 
 
 Nott V. Long, 9 Geo. H., B. R. cited in 1 Wils. 28 388 
 
 0. 
 
 Oakes V. Moore, 24 Maine, 214 42 
 
 Gates V. Bromil, 1 Salk. 75 257 
 
 V. Bromil, 6 Mod. 176 257, 283, 284, 585 
 
 Offut V. Proctor, 4 Bibb, 252 537 
 
 Oglander v. Baston, 1 Vern. 396 511 
 
 Okison V. Flickinger, 1 Watts & S. 257 47 
 
 Olcotti). Wood, 14N. Y. (4Kern.) 32 55 
 
 Oldfield V. Wilmer, 1 Leon. 140, 304 405, 483, 660 
 
 Onion V. Robinson, 15 Vt. 610 379 
 
 Orcutt V. Butler, 42 Maine, 83 59, 66, 453, 460, 481, 484 
 
 O'Reilly v. Kerns, 52 Penn. St. 214 92 
 
 Ormelade v. Coke, Cro. Jac. 354 340, 378, 589 
 
 Orr V. Hadley, 36 N. H. 576 61, 516 
 
 Ott V. Schroeppel, 6 N. Y. 482 252, 262, 340. 341, 345, 849, 350, 351, 
 
 356, 361, 362, 365, 372, 495 
 Overly's Ex'ors v. Overly's Devisees, 1 Mete. (Ky.) 117 ... 19, 48 
 Overton v. Alpha, 13 La. An. 558 Ill 
 
TABLE OP CASES. Iv 
 
 Owdy V. Gibbons, Comb. 100 104, 172 
 
 Owen V. Boerum, 23 Barb. 187 60, 259, 279, 391 
 
 V. Hurd, 2 Term, 643 33 
 
 Oxenham v. Lemon, 2 Dowl. & Ry. 461 506 
 
 P. 
 
 Packer v. French, Hill & Den. 103 150 
 
 Page V. Foster, 7 N. H. 392 55, 511, 603 
 
 V. Monks, 6 Gray, 492 70, 205, 207 
 
 V. Pendergast, 2 N. H. 233 271, 272, 599 
 
 Paine v. Ball, 3 Mass. 235 29 
 
 V. Paine, 15 Gray, 299 . 187, 386 
 
 Palmer v. Davis, 28 N. Y. 242 27, 28, 29, 56, 381 
 
 ». Green, 6 Conn. 14 63 
 
 Pancoast v. Curtis, 1 Halst. 416 287 
 
 Parker v. Burroughs, CoUe's Pari. Ca. 257 100, 108 
 
 V. Crammer, 1 Penning. 271 Ill, 112 
 
 V. Parker, Cro. Eliz. 448 281 
 
 Parkes v. Smith, 15 Q. B. 297 93 
 
 Parkinson v. Smith, 30 L. J. Q. B. 178 626 
 
 Parmelee v. Allen, 32 Conn. 116 453, 454, 480 
 
 Parnellu. King, Rice (S. C), 376 73 
 
 Parr». Wintringham, 28 L. J. Q. B. 123 105 
 
 ■ Parsons v. Aldrich, 6 N. H. 264 .... 285, 362, 442, 446, 447, 589 
 
 V. Parsons, Cro. Eliz. 211 548 
 
 Patten v. Hunnewell, 8 Greenl. 19 147 
 
 Patterson ». Baird, 7 Ired. Eq. 255 662 
 
 V. Leavitt, 4 Conn. 50 162 
 
 Patton V. Baird, 7 Ired. Eq. 255 228, 266, 448 
 
 Pascoe V. Pascoe, 3 Bing. N. C. 898 197, 585 
 
 Passmore v. Pettit, 4 Dall. 271 123, 151, 247 
 
 Paull !). Paull, 2 Or. & M 235, 2 Dowl. 346 278, 543 
 
 Payne v. Bailey, 7 Moore, 147 323 
 
 V. Cook, cited in 1 Taunt. 548 340 
 
 V. Massey, 9 J. B. Moore, 666 214 
 
 Pearson v. Fiske, 2 Hilton, 146 145 
 
 V. Henry, 5 Term, 6 21, 488 
 
 V. Morrison, 2 Serg. & R. 20 16 
 
 Peck V. Wakeley, 2 McCord, 279 243 
 
 V. York, 47 Barb. 131 146, 147 
 
 Pedley v. Goddard, 7 Term, 73 389, 394, 416, 626 
 
 Pennell v. Walker, 26 L. J. C. P. 9 205 
 
 Penniman v. Rodman, 13 Mete. 382 .. . 65, 193, 194, 195, 603, 604 
 People u. McGinnis, 1 Parker Cr. Ca. 387 55, 67, 112 
 
Ivi TABLE OF CASES. 
 
 People V. Onondaga Common Pleas, 1 Wend. 314 74 
 
 V. Townsend, 5 How. Pr. 315 131 
 
 Pepper v. Gorham, 4 Moore, 148 145, 636 
 
 Percival v. Herbemont, 1 M'MuUan, 59 91 
 
 Pering v. Keymer, in re, 3 Ad. & El. 245 ■ 157 
 
 Perkins v. Giles, 53 Barb. 342 434, 541 
 
 V. Wing, 10 Johns. 143 264, 282, 284, 287 
 
 Perriman v. Steggall, 9 Bing. 679 136, 215, 315 
 
 Perry v. Berry, 3 Bulstr. 62 449 
 
 V. Mitchell, 2 Dowl. & Low. 452 413, 420 
 
 V. Moore, 2 E. D. Smith, 32 104, 105, 172 
 
 V. Nicholson, 1 Burr. 278 490, 587, 588 
 
 Peters' Adm'r v. Craig, 6 Dana, 307 230, 236 
 
 Peters v. Johnson, 3 Har. & J. 291 84 
 
 V. Newkirk, 6 Cow. 103 118, 125 
 
 V. Pierce, 8 Mass. 398 627 
 
 Peterson «. Ayre, 23 L. J. C. P. 129 . 145 
 
 V. Loring, 1 Greenl. 64 160 
 
 Petit V. Wingate, 25 Penn. St. 74 58 
 
 Phelps V. Goodman, 14 Mass. 252 330 
 
 Philbrick V. Preble, 18 Maine, 255 50, 256, 257, 458, 517 
 
 Phillips V. Evans, 12 Mee. &. W. 309 825, 568 
 
 V. Knightly, Fitzg. 272 204, 554, 589 
 
 Phippen v. Stickney, 3 Meto. 384 156, 163 
 
 Phipps V. Ingram, 3 Dowl. 669 534, 536 
 
 Pickering v. Pickering, 19 N. H. 389 555, 587. 
 
 V. Watson, 2 W. Bl. 1118 193, 465 
 
 Pierce v. Pierce, 30 Maine, 113 45 
 
 Pike V. Gage, 9 Foster, 461 135 
 
 Pilmore v. Hood, 8 Dowl. 21 617 
 
 Pinhorn v. Tuckington, 3 Camp. 468 584 
 
 Pinkny B. Bullock, 3 Lev. 413 417,481,483 
 
 Pitcher v. Eigby, 9 Price, 79 215, 489, 620 
 
 Pits V. Wardal, Godb. 164 204, 590 
 
 Piatt V. Smith, 14 Johns. 368 331, 375 
 
 Pleasants v. Ross, 1 Wash. 156 69, 322, 336 
 
 Plews V. Middleton, 6 Q. B. 845 126, 152 
 
 Plummer v. Lee, 2 Mee. & W. 495 413 
 
 V. Morrill, 48 Maine, 184 285, 589 
 
 Pollock V. Hall, 4 Dall. 222 77 
 
 Pomroy v. Gold, 2 Mete. 500 562, 567 
 
 Poole V. Pipe, 3 Rep. in Chy. 11, 20 606 
 
 Pope V. Bish, 1 Anst. 69 610 
 
 V. Brett, 2 Saund. 292 203, 410, 454, 456, 457, 481 
 
 Porters. Buckfield Branch R.R., 32 Maine, 539 221,627 
 
 V. Dickerman, 11 Grayi 482 71 
 
TABLE OF CASES. Ivii 
 
 Portland, Inhab's of «. Brown, 43 Maine, 223 193,446 
 
 Potter V. Day, Pract. Reg. C. B. 47 525 
 
 V. Newman, 4 Dowl. 604 323 
 
 V. Sterrett, 24 Penn. St. 411 206, 235 
 
 Power B. Power, 7 Watts, 205 230, 238, 234, 240 
 
 Pratt V. Hackett, 6 Johns. 14 259, 262, 280, 282, 283 
 
 V. Hillman, 4 Barn. & Cr. 269 310, 813 
 
 V. Salt, Ca. temp. Hardw. 161 625 
 
 Prentice sj. Reed, 1 Taunt. 161 199 
 
 President, &c. v. Van Reenan, 1 Knapp, Pr. C. Rep. 83 .... 283 
 
 Preston ». Whitcomb, 11 Vt. 47 195, 547, 549, 556 
 
 Price V. Hollis, 1 M. & S. 105 64, 262, 315 
 
 V. Kirby, 1 Ala. 184 46 ' 
 
 V. Popkin, 10 Ad. & El. 139 184, 199, 211, 277, 612 
 
 V. White, 27 Mis. (6 Jones) 276 61 
 
 V. Williams, 1 Ves. Jr. 365 571 
 
 Primer v. Kuhn, 1 Dall. 452 57 
 
 Proctor V. Williamson, 29 L. J. C. P. l.W, and 8 C. B. n. s. 386 131, 166 
 
 Proprietors Fryeburg Canal v. Frye, 6 Greenl; 38 6, 13 
 
 Prosser v. Goringe, 3 Taunt. 425 199 
 
 Proudfoot V. Poile, 3 Dowl. & Low. 524 204 
 
 Pulliam ». Pensoneau, 33 111. 375 822, 570 
 
 Purdy V. Delavan, 1 Gaines, 320 .... 267, 879, 408, 415, 483, 437 
 
 Purslow V. Bailey, 2 Ld. Raym. 1039 180, 678, 680, 691 
 
 Pusey V. Desbouvrie, 8 P. Wms. 815 507, 609 
 
 Q. 
 
 Quimby u. Melvin, 28 N. H. 260 96,162 
 
 V. Melvin, 35 id. 198 96 
 
 R. 
 
 Raguet t>. Carmouche, 6 La. An. 133 46, 50 
 
 Rainforth v. Hamer, 25 L. T. 247 427 
 
 Rand u. Reddington, 13 N. H. 72 . .* 639 
 
 Randal v. Gurney, 8 Barn. & Ad. 252 134 
 
 Randall v. Randall, 7 East, 81 840, 350, 360, 863 
 
 Randel v. Chesapeake & Delaware Canal Co., 1 Harringt. 233 ... 91 
 
 Ranney v. Edwards, 17 Conn. 309 246, 247 
 
 Rauck V. Becker, 12 Serg. & R. 412 87 
 
 Ravee v. Farmer, 4 Tenn. 146 498, 606, 672, 599 
 
 Rawling v. Wood, Barnes, 64 266 
 
Iviii TABLE or CASES. 
 
 Reed V. Stookwell, 34 Vt. 206 71 
 
 Rees V. Waters, 16 Mee. & W. 263 185, 358, 356, 463, 612 
 
 Reeves «. GofF, 1 Penning. 143 111,112,162 
 
 Regent's Canal Co. u. Ware, 26 L. J. Chy. 666 605 
 
 Relyea J). Ramsay, 2 Wend. 602 211,233,236 
 
 Remington v. Morris, 2 Grant, 467 72 
 
 Renouil v. Harris, 2 Sandf. 641 70 
 
 Rex V. Bingham, 2 Tyrw. 46 528 
 
 17. Cotton, 3 Camp. 444 519 
 
 V. Davis, 9 East, 317 528 
 
 V. Fontainemoreau, 11 Q. B. 1028 625 
 
 V. Hallett, 20 L. J. M. C. 197 133 
 
 V. Hanks, 3 Car. & Payne, 419 132 
 
 V. Hill, 7 Price, 636 19 
 
 V. JSTewman, 1 Wils. 7 132 
 
 V. Whitaker, 9 Barn. & C. 648 162 
 
 Reynolds v. Askew, 5 Dowl. 682 615 
 
 V. Caldwell, 51 Penn. St. 298 92 
 
 V. Roebuck, 37 Ala. 408 175 
 
 Rhodes v. Baird, 16 Ohio St. 573 162 
 
 Rice V. Benedict, 18 Mich. 75 388 
 
 V. Clarke, 8 Vt. 104 85 
 
 Richards v. Brockenbrough's Adm'r, 1 Rand. 449 244 
 
 V. Drinker, 1 Halst. 307 340, 346, 353 
 
 Richardson v. Huggins, 23,1?. H. 106 . 178, 179, 180, 189, 212, 443, 480 
 
 V. Nourse, 2 Barn. & Aid. 287 314 
 
 ». Worsley, 6 Exch. 613 624 
 
 Richter v. Chamberlin, 6 Binney, 34 466 
 
 Bickard v. Patterson, 5 Harrington, 235 160 
 
 Ricketts v. Gurney, 7 Price, 699 134 
 
 Riddell v. Sutton, 5 Bing. 200 21, 643, 682 
 
 Rider v. Fisher, 5 Scott, 86 424 
 
 V. Fisher, in re, 3 Bing. N. C. 874 360, 367 
 
 Ridgen v. Martin, 6 Har. & J. 403 118, 126, 241, 243 
 
 Ridout V. Pain, 3 Atk. 486 314 
 
 V. Pye, 1 Bos. & P. 91 132, 133 
 
 Rigdcn V. Martin, 6 Har. & J. 403 118, 124, 125 
 
 Ringer v. Joyce, 1 Marsh. 404 146, 160 
 
 Risden v. Inglet, Cro. Eliz. 838 340 
 
 Risori V. Berry, 4 Rand. 275 241, 246 
 
 Rivers v. Walker, 1 Dall. 81 ' 119 
 
 Kixford V. Nye, 20 Vt. 132 .. . 61, 254, 267, 276, 286, 352, 414, 437, 
 
 440, 446, 463, 680 
 
 Robbins t). Stand;ird, Sid. 327 598 
 
 Roberts v. Eberhardt, 27 L. J. C. P. 70 592, 694 
 
 V. Marriett, 2 Saund. 190 192 
 
TABLE OP CASES. lix 
 
 Roberts ». Marriot, 2 Saund. 183 592 
 
 V. Newbold, Comb. 318 25 
 
 Robertson v. McNiel, 12 Wend. 578 .. . 231, 444, 445, 446, 514, 565 
 
 Robison v. Calwood, 6 Mod. 82 279, 585 
 
 Robson & Railston, in re, 1 Barn. & Ad. 723 344, 498 
 
 Robinson v. Hawkins, 38 Vt. 693 79 
 
 V. Henderson, 6 M. & S. 276 626 
 
 V. Moore, 17 N. H. 479 181, 194 
 
 V. Morse, 26 Vt. 392 494, 497, 506 
 
 V. Morse, 29 Vt. 404 66 
 
 Robson V. , 2 Rose, 50 20, 30 
 
 Rochester v. Whitehouse, 15 N. H. 486 42 
 
 Rock V. Slade, 7 Dowl. 22 26 
 
 Rodham v. Stroher, 3 Keb. 830 589 
 
 Roe d. Wood v. Doe, 2 Term, 644 244, 623 
 
 Rogers v. Dallimore, 6 Taunt. Ill 823 
 
 V. Kenwrick, Quinoy, 63, 64 515 
 
 V. Playford, 12 Penn. St. 181 87 
 
 V. Tatum, 1 Dutcher, 281 225 
 
 Rogers' Heirs v. Hall, 6 Humph. 29 74 
 
 Roloson V. Carson, 8 Md. 208 118 
 
 Roosevelt v. Thurman, 1 Johns. Chy. 220, 226 297 
 
 Ropert). Levi, 21 L. J. Exch. 28 585,595 
 
 Rose V. Redfern, 10 W. R. 91 626 
 
 Ross V. Boards, 8 Ad. & El. 290 184, 211, 352 
 
 V. Clifton, 9 Dowl. 356 54, 199 
 
 V. Watt, 16 111. 99 59 
 
 Rosse V. Hodges, 1 Ld. Raym. 288 432, 552 
 
 Round t). Hatton, 10 Mee. & W. 660 - . . 196 
 
 Rous V. Lun, 1 Keb. 569 203, 394 
 
 Routh V. Peach, 3 Anst. 637 191, 620 
 
 Routledge v. Carruthers, 4 Dow, 892 490 
 
 Rowe V. Sawyer, 7 Dowl. 691 544 
 
 V. Williams, 97 Mass. 163 91, 93 
 
 V. Wood, 1 Jac. & Walk. 815 508 
 
 V. Young, 2 Ball & Beatty, 165, per Bailey, J., 233 ... . 589 
 
 Rowley v. Young, 3 Day, 118 239 
 
 Kowsby V. Manning, 3 Mod. 331 284, 585 
 
 Royston v. Rydall, RoUe's Abr. Arb. H. 8, p. 250 .... 185, 404 
 
 Rudder v. Price, 1 H. Bl. 547 579 
 
 Rudston V. Yeates. March. Ill, 141 4 
 
 V. Yeates, 1 RoUe's Abr. Arb. A. 268 4 
 
 Rule V. Bryde, 1 Exch. 151 849 
 
 Rurasev v. Leek, 5 Wend. 20 27, 29 
 
 Rundeil v. La Fleur, 6 Allen, 480 . . 214, 279, 287, 294, 296, 299, 696 
 Russell, ex parte, 1 Rose, 278 134 
 
Ix TABLE OF CASES. 
 
 Rnssell v. Gray, 6 Serg. & R. 145 84, 172, 206 
 
 V. Headington, 1 Stark. 13 ^^^ 
 
 V. Lane, 1 Barb. 519 P 
 
 V. Pelegrini, 6 E. & B. 1020 93 
 
 Ruston V. Dunwoody, 1 Binn. 42 234 
 
 Rutter, ea; parte, 3 Hill, 464 147,148 
 
 Ryan v. Dougherty, 30 Cal. 218 
 
 Rybott V. Barren, 2 Eden C. C. 131 544, 621 
 
 149 
 74 
 
 S. 
 
 Saccum v. Norton, 2 Keb. 865 235 
 
 Sackett v. Owen, 2 Chitty's Rep. 39 602 
 
 Saffle V. Cox, 9 Humpli. 142 74 
 
 Salkeld «. Slater, 12 Ad. & E. 767 171,247 
 
 Sallowes v. Girling, Cro. Jac. 278 ... 261 
 
 V. Girling, I'elv. 203 159, 347 
 
 Salmon v. Watson, 4 Moore, 73 488 
 
 Saraon's Case, 5 Rep. 77 6 433 
 
 Samon v. Pit, Rolle's Abr. Arb. B. 7, p. 243 203 
 
 Samuels. Cooper, 2 Ad. & El. 752 138,143,346,612 
 
 Santee v. Kleister, 6 Binn. 36 374 
 
 Sargeant v. Butts, 21 Vt. 99 538 
 
 Savage v. Gulliver, 4 Mass. 171 213 
 
 Sawyer v. Fellows, 6 N. H. 107 51, 258, 516 
 
 V. Freeman, 35 Maine, 542 182, 459, 475, 477 
 
 Scales V. East London Water Works, 1 Hodges, 91 615 
 
 Scale V. Fothergill, 8 Beav. 361 489 
 
 Scarborough v. Reynolds, 12 Ala. 252 11, 15 
 
 Schenck v. Voorhees, 2 Halst. 383 228 
 
 Schoff V. Bloomfield, 8 Vt. 472 12, 86, 556 
 
 SchoolDistrictw. Aldrich, 13N. H. 140 628 
 
 Schultz V. Halsey, 3 Sandf. 405 154, 161 
 
 Schuyler «. Van der Veer, 2 Caines, 235 . . . 205,408,409,428,431, 
 
 437, 481, 482, 485, 577 
 
 Schuylkill Bank v. Macalester, 6 Watts & S. 147 78 
 
 Scott V. Avery, 5 H. of L. Ca. 811 93, 94 
 
 V. Avery, 8 Exch. 487 93 
 
 V. Barnes, 7 Barr, 134 69, 64 
 
 V. Liverpool Corporation, 28 L. J. Chy. 230 40, 620 
 
 V. Van Sandau, 6 Q. B. 237; 1 Q. B. 102 . 122, 123, 141, 312, 
 
 402 
 
 V. Wray, 1 Rep. in Chy. 45 606 
 
 Scudder v. Johnson, 5 Mis. 551 242 
 
 Seal V. Crowe, 3 Lev. 164 690 
 
TABLE OF CASES. Ixi 
 
 Seamans v. Pharo, 1 South, 123 160 
 
 Searle v. Abbe, 13 Gray, 409 515 
 
 Sears v. Vincent, 8 Allen, 607 441, 522, 526, 680, 632 
 
 Seecombe v. Babb, 6 Mee. & W. 129 625 
 
 Secor V. Law, 9 Bosw. 168 209 
 
 Seckham v. Babb, 8 Dowl. 167 211, 461, 464 
 
 Selby V. Gibson, 1 Har. & J. 862 119 
 
 V. Russell, 12 Mod. 139 888, 389 
 
 Sellick V. Addams, 15 Johns. 197 . 56, 65, 174, 264, 280, 281, 510, 618, 
 
 516 
 
 Shaifer v. Baker, 88 Ga. 135 185 
 
 Sharman v. Bell, 5 Maule & Selw. 604 296, 313, 815 
 
 Sharpe v. Hancock, 7 Man. & Gr. 864 199, 547, 584 
 
 Sharp u. Lipsey, 2 Bailey, 113 245,247 
 
 V. Woodbury, 18 Iowa, 196 695 
 
 Shaw V. Hatch, 6 N. H. 162 88 
 
 V. Pearce, 4 Binn. 485 224 
 
 V. Pitt, W. R. 616, cited in Russell, 3d ed. p. 448 570 
 
 Shearer v. Handy, 22 Pick. 417 184, 212, 463, 657 
 
 V. Mooers, 19 Pick. 808 80, 526, 576 
 
 Shelf V. Bailey, Com. R. 188 14, 204 
 
 Shelley v. Wright, Wills. 9 689 
 
 Shelling v. Farmer, 1 Strange, 646 620, 666 
 
 Shelton v. Alcox, 11 Conn. 240 611, 516, 518, 524, 582 
 
 Shephard v. Watrous, 3 Caines, 166 84, 270 
 
 Shepherd v. Brand, Cases temp. Hardwicke, 53 636, 625 
 
 V. Ryers, 15 Johns. 497 511 
 
 Shermer v. Beale, 1 Wash. 11 88, 84 
 
 Sherron v. Wood, 5 Halst. 7 642, 643, 596 
 
 Sherry v. Oke, 8 Dowl. 349 186 
 
 V. Richardson, Pop. 15 401, 449 
 
 Shields V. Renno, 1 Overt. 313 241 
 
 Shippen's Lessee v. Bush, 1 Dall. 251 84 
 
 Shirley v. Shattuck, 4 Cush. 470 265, 348, 422, 463, 627 
 
 Shockey's Adm'rs v. Glasford, 6 Dana, 9 51, 59, 83, 86, 121 
 
 Short V. Pratt, 6 Mass, 496 153, 155, 161, 162 
 
 Shryock v. Morton, 2 Marsh. 563 112 
 
 Silmser v. Reddeld, 19 Wend. 21 68 
 
 Simmonds v. Swaine, 1 Taunt. 648, .... 186, 340, 342, 393, 405, 
 
 406, 425, 483, 483, 560 
 
 Simon v. Gavil, 1 Salk. 74 268, 553 
 
 Simpson v. McBee, 3 Dev. 631 80 
 
 Sinclair v. Tallraadge, 36 Barb. 602 89 
 
 Sisk V. Garey, 27 Md. 401 332, 535, 542, 543, 595, 609 
 
 Sizer v. Burt, 4 Denio, 426 145 
 
 Skeels v. Ohickering, 7 Mete. 316 895 
 
Ixii TABLE OF CASES. 
 
 Skeete, in re, 7 Dovvl. 618 203 
 
 SkiUings V. Coolidge, U Mass. 43 46, 402, 437, 439 
 
 Skinner v. Andrews, 1 Saund. 169 585, 592 
 
 Skipper V. Grant, 10 C. B. 237 184 
 
 Skipworth V. Skipworth, 9 Beav. 135 476, 477, 483 
 
 Slack V. Buchanan, 1 Peake, N. P. C. 7 567 
 
 Sloan V. Smith, 1 Denio, 440 HI. 112 
 
 Slowman v. Wiggins, 6 C. B. 276 136 
 
 Small V. Thurlow, 37 Maine, 79 225, 504 
 
 Smalley v. Blackburn Railway Co., 2 Hurl. & Nor. 158 . 194, 493, 
 
 511 
 
 Smith V. Barse, 2 Hill, 387 . ' v • ^3, 74 
 
 u. Bossard, 2McCord's Chy. 406; 15 
 
 V. Boston, Concord & Montreal E.E. Co., 36 N. H. 458 40, 93, 95, 
 
 96 
 V. Boston, Concord & Montreal K.R. Co., 36 N. H. 487 . 89, 91 
 V. Boston & Maine Railroad Co., 16 Gray, 521 296, 308, 309, 310, 
 
 811, 313 
 
 V. Briggs, 3 Denio, 73 94 
 
 V. Bullock, 16 Vt. 592 268 
 
 V. Cutler, 10 Wend. 689 330, 613 
 
 V. Demarests, 3 Halst. 195 382 
 
 V. Douglas, 16 III. 34 51 
 
 V. Hartley, 10 C. B. 800 262 
 
 V. Holcomb, 99 Mass. 552 504 
 
 u. Johnson, 15 East, 213 492 
 
 V. Jones, 1 Dowl. sr. s. 526 524 
 
 u. Kimball, 1 N. H. 72 46 
 
 V. Kincaid, 7 Humph. 28 72, 178 
 
 V. Kirfoot, 1 Leon. 72 587 
 
 V. Pollock, 2 Cal. 92 46, 50 
 
 V. Reece, 6 Dowl. & Low. 620 370, 371 
 
 V. Sainsbury, 9 Bing. 31 615 
 
 V. Smith, 4 Rand. 95 31, 315, 437, 438, 603 
 
 V. Smith, 28 111. 56 152, 226, 338 
 
 V. Sparrow, 16 L. J. Q. B. 139 134 
 
 V. Sweeny, 36 N. Y. 291 14, 206, 459, 468 
 
 V. Thorndike, 8 Greenl 119 214, 306 
 
 V. Troup, 7 C. B. 757 18 
 
 V. Trowsdale, 3 El. & Bl. 83 699 
 
 V. Van Nostrand, 5 Hill, 419 14, 15 
 
 V. Virgil), 33 Maine, 148 33, 207 
 
 Snodgrass v. Gavit, 28 Penn. St. 221 92 
 
 V. Smith, 13 Ind. 393 66 
 
 Snook V. Hellyer, 2 Chitty, 43 30, 203, 528 
 
 Soilleux V. Herbst, 2 Bos. & P. 444 29 
 
TABLE OF CASES. Ixiii 
 
 Solomon V. Maguire, 29 Cal. 227 64 
 
 V. Solomon, 28 L. J. Exch. 129 150, 615 
 
 Somers v. Balabrega, 1 Ball. 164 15 
 
 Soulsby V. Hodgson, 3 Burrows, 1474 167 
 
 Southard v. Steele, 3 Monr. 435 8 
 
 South Carolina R.R. Co. v. Moore, 28 Geo. 398 47 
 
 South Sea Company v. Bumstead, 2 Eq. Ca. Abr. 80 218, 219, 540, 610, 
 
 613 
 
 Spaulding v. Irish, 4 Serg. & R. 322 422 
 
 V. Warren, 25 Vt. 316 71, 208 
 
 Sparrow v. Carruthers, 2 Bos. & P. 226 28 
 
 Spear v. Hooper, 22 Pick. 144 437, 441 
 
 V. Myers, 6 Barb. 445 139, 145, 147 
 
 V. Stacy, 26 Vt. 61 298 
 
 Spence v. Eastern Counties Railway Co., 7 Dowl. 697 277 
 
 V. Stuart, 3 East, 89 134 
 
 Spencer v. Newton, 6 Ad. & El. 623 134 
 
 V. Spencer, 2 Younge & Jer. 249 494 
 
 Sperry v. Ricker, 4 Allen, 17 362, 363, 367 
 
 Spettigue !). Carpenter, 3 P. Wms. 361 145, 542 
 
 Spigurnell v. Jene, 1 Sid. 12 180 
 
 Spofford V. SpofFord, 10 N. H. 254 265, 267, 331, 379, 627 
 
 Spooner v. Payne, 16 L. J. C. P. 225 593, 600 
 
 Spruck V. Crook, 19 111. 415 214, 571 
 
 Squire v. Grevell, 6 Mod. 34 578 
 
 V. Grevett, 2 Ld. Raym. 961 193, 465, 553 
 
 Stafford v. Heskett, 1 Ward. 71 226 
 
 Stains V. Wild, Cro. Jac. 352 378' 
 
 Stalworth v. Inns, 2 Dowl. & Low. 428 152, 153, 157, 572 
 
 V. Inns, 13 Mee. & W. 466 614 
 
 Standley v. Hemmington, 6 Taunt. 561 195, 550 
 
 Stanton v. Henry, 11 Johns. 133 261 
 
 State V. Jones, 2 Gill, 49 185, 198 
 
 V. Pitticrew's Ex'r, 19 Mis. 373 278 
 
 Stead V. Salt, 3 Bingh. 101 8 
 
 Steers v. Lashley, 6 Term, 61 489, 505 
 
 Steff V. Andrews, 2 Mod. 6 64, 295, 315 
 
 Steiglitz V. Egginton, Holt, 141 / „ 
 
 V. Egginton, 8 Serg. & Lowb. 54 ) 
 
 Stephenson v. Browning, Barnes, 56 625 
 
 Stephens u. Matthews, 1 Ld. Raym. 116 193,554 
 
 Stevenson v. Beeker, 1 Johns. 492 68 
 
 Steward v. East India Co., 2 Vern. 380 620 
 
 Stewart v. Cass, 16 Vt. 663 51, 52, 266, 514 
 
 V. Waldron, 41 Maine, 486 109 
 
 Stickles V. Arnold, 1 Gray, 418 254, 352, 414, 441 
 
Ixiv TABLE OF CASES. 
 
 Stiles V. Triste, 1 Sid. 54 383 
 
 Still V. Halford, 4 Camp. 17 529, 600 
 
 St. Martin v. Mestay^, 18 La. An. 320 79 
 
 Stokeley v. Robinson, 34 Penn. St. 315 15, 16, 18 
 
 Stokes V. Lewis, 2 Smith, 12 625 
 
 Stone V. Dennis, 3 Porter, 231 91 
 
 V. Knight, Latch. 207, Noy, 93 26 
 
 V. Phillips, 4 Bing. N. C. 87 345, 453, 454 
 
 Stonehewer v. Farrar, 6 Q. B. 730 199, 362, 438, 449, 487 
 
 Storey v. Blo.xham, 2 Esp. 503 592 
 
 Stork V. De Smith, Willes, 66 454 
 
 Strang ». Ferguson, 14 Johns. 161 628 
 
 Strangford v. Green, 2 Mod. 228 8, 9, 380 
 
 V. Palmer, 12 Mod. 234 380 
 
 Stratton v. Green, 8 Bing. 437 623 
 
 V. Mason, 15 Pick. 508 201 
 
 Strawbridge v. Funstone, 1 Watts & S. 517 54 
 
 Street v. Rigby, 6 Ves. Jr. 815 89, 91, 96, 131 
 
 Strike v. Benstey, 1 Lutw. 525 590 
 
 Strodes v. Patton, 1 Bro<;k. 228 19, 20, 23 
 
 Strong V. Beroujon, 18 Ala. 168 25 
 
 V. Elliot, 8 Cow. 27 538 . 
 
 V. Strong, 9 Cushing, 560 . 102, 108, 172, 265, 332, 347, 348, 350, 
 355, 362, 391, 409, 423, 424, 446, 448, 534 
 
 Strutt V. Rogers, 7 Taunt. 212 463, 623, 624 
 
 Stuart V. Nicholson, 3 Bing. N. C. 113 602 
 
 Sudam v. Swart, 20 Johns. 476 149, 150 
 
 Summerville v. Painter, 44 Penn. St. 110 33 
 
 Sumner r. Brown, 34 Vt. 194 207, 208 
 
 Sumpter v. Murrell, 2 Bay, 450 321 
 
 SutclifFe V. Brooke, 15 L.J. Exch. 118 586 
 
 Sutherland v. Rose, 47 Barb. 144 435 
 
 Sutton V. Dickenson, 9 Leigh, 142 206 
 
 V. Tyrrell, 10 Vt. 91 229, 233, 235, 236 
 
 Swayze v. Kerkendall, 2 Penning. 660 112 
 
 Sweet V. Hole, Cas. temp. Finch, 384 606 
 
 Sweetser v. Kenny, 32 Maine, 464 214, 217, 218, 294 
 
 Swicard v. Wilson, 2 Rep. Con. Ct. 218 19 
 
 Swift V. Harriman, 30 Vt. 607 71 
 
 Swinford, in re, 6 Maule & Sel. 226 225 
 
 V. Burn, Gow N. P. 5 489 
 
 Sybray v. White, 1 Mee. & W. 435 487, 488 
 
 Symes v. Goodfellow, 2 Bing. N. C. 532 137 
 
 Symonds v. Mayo, 10 Cush. 39 63 
 
 V. Mills, 8 Taunt. 526 561 
 
TABLE OF CASES. IxV 
 
 Talbot V. MoGee, 4 T. B. Monroe, 377 15 
 
 Tallman v. Tallman, 5 Cush. 325 22, 24, 850, 362, 446, 631 
 
 Tandy v. Tandy, 9 Dowl. 1044 194, 211, 397, 454, 472, 612 
 
 Tattersall v. Groote, 2 Bos. & Pul. 131 90, 91 
 
 Taylor v. Coryell, 12 Serg. & R. 243 8 
 
 V. Lady Gordon, 9 Bing. 570 623 
 
 V. Marling, 2 Man. & Gr. 55 527, 628 
 
 V. Parry, 1 Man. & Gr. 604 55 
 
 V. Sayre, 4 Zab;-. 647 71 
 
 V. Shuttleworth, 8 Dowl. 281 199, 482, 628 
 
 Teale ». Younge, McLel. & Y. 497 312 
 
 Tebbutt V. Ambler, 2 Dowl. N. s. 677 195 
 
 Temple, ex paHe, 2 Ves. & B. 395 134 
 
 Templeman and Reed, in re, 9 Dowl. 962 159, 449 
 
 Tetter v. Rapesnyder, 1 Dall. 293 164 
 
 Thaire v. Thaire, Palm. 109 261 
 
 Thayer v. Bacon, 3 Allen, 163 38 
 
 Thinne v. Rigby, Cro. Jac. 314 ... 194, 388, 406, 432, 454, 457, 481 
 
 Thomas v. Harrop, 1 Sim. & St. 624 . . 159, 278 
 
 V. Hewes, 2 C. & M. 519 17 
 
 ». Leach, 2 Mass. 152 29 
 
 V. Reab, 6 Wend. 503 68 
 
 Thomlinson 1). Arriskin, Com. Rep. 328 378,688 
 
 Thompson v. Charnock, 8 Term, 139 89 
 
 V. Mitchell, 36 MWue, 281 . 153, 154, 228, 260, 287, 290, 589 
 
 V. Noel, 1 Atk. 60 619, 606, 608 
 
 V. White, 4 Serg. & R. 135 79 
 
 Thomson v. Austin, 2 Dowl. & Ry. 358 668 
 
 Thoreau v. Pallies, 5 Allen, 354 446, 631 
 
 Thorp V. Cole, 2 Cr. Mee. & Ros. 367 . 169, 170, 388, 391, 412, 417, 419 
 
 V. Cole, 4 Dowl. 467 474, 489, 626 
 
 Thorpe v. Eyre, 1 Ad. & El. 926 512, 513, 521 
 
 Thrasher v. Haynes, 2 N. H. 429 66, 474, 476, 477 
 
 Threlfall v. Eanshawe, 19 L. J. Q. B. 334 577, 626 
 
 Thursby v. Helbert, Carth. 159 204, 466, 462 
 
 Tilford V. French, 1 Sid. 160 678, 587 
 
 Tillam V. Copp, 5 C. B. 211 115, 127, 130 
 
 Tinney v. Ashley, 15 Pick. 546 549, 551, 556 
 
 Tipping V. Smith, 2 Strange, 1024 269, 432 
 
 Tittenson v. Peat, 3 Atk. 529 543, 609, 613, 620 
 
 Titus V. Perkins, Skin. 247 409 
 
 V. Scantling, 4 Blackf. 89 43, 50 
 
 Tobey v. County of Bristol, 3 Story, 800 ... . 80, 89, 131, 134, 280 
 
Ixvi TABLE OF CASES. 
 
 Toby V. Lovibond, 17 L. J. C. P. 201 193, 310 
 
 Todd V. Barlow, 2 Johns. Chy. 5.51 642, 616 
 
 Tollit V. Saunders, 9 Price, 612 242 
 
 Tolman v. Sparhawk, 5 Mete. (Mass.) 476 51 
 
 Tomlin v. Mayor of Fordwicli, 6 Nor. & M. 594 53, 892, 394, 474, 481, 
 
 574, 583, 587 
 
 Tomlinson i>. Hammond, 8 Clarke, 40 67 
 
 Tompkins v. Corwin, 9 Cow. 255 583 
 
 Towne v. Jaquith, 6 Mass. 46 162, 272 
 
 Towns V. Wilcox, 12 Wend. 603 73 
 
 Townsend v. Masterson Stone Dressing Co., 15 N. Y. 687 ; . . . 87 
 
 Tracy v. Herrick, 25 N. H. 381 172, 174, 459, 460, 539, 540 
 
 Traversw. Lord Stafford, 2 Ves. Sen. 19 489 
 
 Tredwen v. Holman, 31 L. J. Exch. 398 93 
 
 Trew V. Burton, 1 Cr. & Mee. 633 226, 278, 329, 833 
 
 Tribe v. Upperton, in re, 3 Ad. & El. 295 416, 612 
 
 Trimingham v. Trimingham, 4 Nev. & Man. 786 498, 672 
 
 Trout V. Emmons, 29 111. 433 11 
 
 Trusloe v. Yewre, Cro. Eliz. 223 612 
 
 Tryer v. Shaw, 27 L. J. Exeh. 820 122 
 
 Tudor V. Peck, 4 Mass. 242 84 
 
 V. Scovell, 20 N. H. 174 174, 260, 264 
 
 Tunno v. Bird, 5 B. & Ad. 488 247 
 
 Turner v. Rose, 1 Ld. Kenyon, 893 625 
 
 V. Swainson, 1 Mee. & W. 672 181, 211, 898 
 
 V. Turner, 8 Russell, 494 345, 353 
 
 Tuscaloosa Bridge Co. v. Jemison, 33 Ala. 47§ 47 
 
 Tyler v. Dyer, 13 Maine, 41 48, 214, 217, 294, 463 
 
 V. Jones, 3 Barn. & Cr. 144 233 
 
 Tyson v. Robinson, 3 Ired. 333 226, 230, 232, 233 
 
 u. 
 
 Underbill v. Van Cortlandt, 2 Johns. Chy. 339 41 
 
 V. Van Cortlandt, 17 Johns. 405. See Van Cortlandt v. 
 
 Underbill 4j 
 
 Underwood v. Bedford & Cambridge Railway Co., in re, 11 C. B. 
 
 N- s. 442 275 
 
 Union Bank v. Mott, 18 How. Pr. 506 209 
 
 United States v. Ames, 1 Wood. & Min. 78, 76 30 314 
 
 u. Robeson, 9 Pet. 327 '93 
 
 Unsted v. Kidd, 1 Chitty R. 526 ! 626 
 
 Upton V. Upton, 1 Dowl. 400 jQg 
 
TABLE OF CASES. Ixvii 
 
 V. 
 
 Valentine v. Valentine, 2 Barb. Chy. 430 60, 52, 2.56, 579 
 
 Valle V. North Missouri R.R. Co., 37 Mis. 446 172, 269, 571 
 
 Van Alstyne v. Wimple, 4 Cow. 547 77 
 
 Van Antwerp v. Stewart, 8 Johns. 125 233 
 
 Van Buskirk v. Stow, 42 Barb. 9 209 
 
 Van Cortlandti). TJnderhill, 17 Johns. 405 .... 143,243,636,539 
 
 Vandenhoofu. Dean, 1 Mann. (Mich.) 463 71,73 
 
 Vanlore v. Tribb, Rolle's Abr. Arb. N. 1, p. 258 465 
 
 Van Slyke v. Lettice, 6 Hill, 610 76 
 
 Varney v. Brewster, 14 N. H. 49 231, 342, 343, 345, 487, 490, 607, 509, 
 
 577 
 
 Vasques, ex parte, 6 Cow. 29 80 
 
 Vaughn u. Graham, 11 Miss. 575 112 
 
 Veale v. Warner, 1 Saund. 327 ... 279, 378, 542, 643, 590, 597, 612 
 
 Vosburgh V. Bame, 14 Johns. 302 268 
 
 Vose V. How, 13 Meto. 243 627, 628 
 
 w. 
 
 Waddle v. Dowiiman, 12 Mee. & W. 562 410, 423 
 
 Wade V. Dowling, 4 El. & Bl. 44 163, 594 
 
 V. Powell, 31 Geo. 1 15, 280 
 
 Waite V. Barry, 12 Wend. 377 386, 390, 420, 422, 597 
 
 Wakeman v. Dalley, 44 BarB. 498 600 
 
 Walker v. Frobisher, 6 Ves. Jr. 70 126, 199 
 
 V. Melcher, 14 Mass. 148 153, 155 
 
 V. Merrill, 13 Maine, 173 437, 463, 627 
 
 V. Sanborn, 8 Greenl. 288 214, 294, 300, 335 
 
 V. Walker, 1 Wins. (N. C.) No. 1269 214, 571 
 
 Waller v. King, 9 Mod. 63 122 
 
 Wallis V. Carpenter, 13 Allen, 19 101, 233 
 
 Walsh V. Gilmor, 3 Har. & J. 383 178 
 
 Walters v. Morgan, 2 Cox Chy. 369 50, 61, 603, 606, 607 
 
 Walton V. Swannage Pier Co., 10 W. R. 629 570 
 
 Waltonshaw v. Marshall, 1 H. & W. 209 247 
 
 Walworth County Bank v. Farmers' Loan & Trust Co., 22 Wis. 231 
 
 106 
 
 Warburton v. Storr, 4 Barn. & Cr. 103 230, 239 
 
 Ward V. American Bank, 7 Mete. 486 .. . 306, 813, 315, 838, 373, 566 
 
 V. Dean, 3 B. & Ad. 234 229, 323 
 
 V. Gould, 6 Pick. 291 226, 486, 562 
 
 V. HaU, 9 Dowl. 610 441, 469 
 
Ixviii TABLE OF CASES. 
 
 Ward V. Perram, 2 Ves. Sen. 315 620 
 
 V. Uncorn, Cro. Car. 216 36.5 
 
 Warfield v. Holbrook, 20 Pick. 531 356, 360, 361, 504, 612 
 
 Warley v. Beckwith, Hob. 218 473 
 
 Warner, in re, 2 Dowl. & L. 148 28, 381 
 
 Warren v. Green, Ca. temp. Finch, 141 211 
 
 Waterman v. Connecticut & Passumpsic Riv. K.R. Co., 30 Vt. 610 . 70, 
 
 207 
 
 Waters v. Bridge, Cro. Jae. 639 589 
 
 Watkins v. Philpotts, McLel. & Y. 393 277, 454, 470, 475 
 
 Watson V. Trower, Ryl. & M. 17 247 
 
 V. Watson, Sty. 28 ■109 
 
 Waugh V. Mitchell, 1 Dev. & Bat. Eq. 510 402 
 
 Wear v. Ragan, 30 Miss. 83 74 
 
 Webb V. Ingram, Cro. Jac. 663 442, 461 
 
 V. Taylor, 1 Dowl. & Low. 676 134 
 
 Webber v. Ives, 1 Tyler, 441 118, 124 
 
 Webster v. Lee, 5 Mass. 334 501, 502, 505, 506 
 
 Weed V. Ellis, 3 Caines, 253 26 
 
 Wellington v. Mackintosh, 2 Atk. 569 89, 131 
 
 WeUs V. Lain, 15 Wend. 99 43, 44, 46, 50, 73, 74 
 
 Wells, Matter of, 1 N. Y. Legal Obs. 189 131, 133 
 
 Wesson v. Newton, 10 Cush, 114 8 
 
 West V. Stanley, 1 Hill, 69 73 
 
 Westlake v. Collard, Bull. N. P. 7th ed. 236 &. . * 567 
 
 Weston V. Stuart, 2 Fairf. 326 19, 25, 26, 28, 67, 316 
 
 Westwood V. Secretary for India, 1 N. R. 262 93 
 
 Wharton v. King, 2 Barn. & Ad. 528 368, 405, 483, 560 
 
 Whatley v. Morland, 2 Dowl. 249 130, 150, 151, 536 
 
 Wheatley v. Martin's Adm'r, 6 Leigh, 62 . . . ' . . . 19, 20, 23, 234 
 
 Wheeler u. Van Houten, 12 Johns. 311 487, 495, 497, 506 
 
 White V. Fox, 29 Conn. 670 10, 47, 175 
 
 V. Gifford, Rolle's Abr. Auth. E. 4, p. 333 235 
 
 V. Kemble, 2 Penn. 349 224 
 
 V. Puryear, 10 Yerger, 441 224, 226, 226 
 
 V. Sharp, 12 Mee. & W. 712 169, 278 
 
 V. Story, 43 Barb. 124 57 
 
 White Mountains Railroad v. Beane, 39 N. H. 107 214, 294, 296, 297, 
 
 300 
 
 Whiteacre v. Pawlin, 2 Vern. 229 30 
 
 Whitehead B. Firth, 12 East, 166 . . . . 463 
 
 V. TattersaU, 1 Ad. & El. 491 252, 487, 488 
 
 Whitmore v. Le Ballistier, 35 Me. 488 214, 294 
 
 V. Smith, 31 L. J. Exch. 107 327, 542, 596 
 
 V. Smith, 6 Hurl. & Nor. 824 167 
 
 Whitney v. Cook, 6 Mass. 139 24, 631 
 
TABLE OF CASES. Ixix 
 
 Whitney v. Holmes, 15 Mass. 152 51, 511 
 
 Whittemore v. Whittemore, 2 N. H. 26 499, 602 
 
 Wightman v. Pettis, 29 Penn. St. 283 87 
 
 Wilcox V. Singletary, Wright, 420 8 
 
 Wild V. Holt, 9 Mee. & W. 161 269 
 
 Wilde V. Vinor, 1 Brownl. 62 231 
 
 Wiles V. Peck, 26 N. Y. 42 65, 532 
 
 Wilkinson v. Godefroy, 9 Ad. & El. 636 646 
 
 V. Page, 1 Hare, 276 54, 191, 346, 347, 368 
 
 Wilks V. Back, 2 East, 142 10, 12 
 
 Williams, in j-e, 4 Denio, 194 332,386,671,612 
 
 V. Craig, 1 Dall. 313 322 
 
 V. Hayes, 20 N. Y. 58 145 
 
 u. Jones, 6Man. &Ry. 3 310,313,315 
 
 V. Lewis, 3 Jur. n. s. 1324 ; 7 El. & Bl. 929 33 
 
 V. Moulsdale, 7 Mee. & W. 134 205, 361 
 
 B. Pasohall, 4 Dall. 285 321 
 
 V. Paschall's Heirs, 3 Yeates, 564 686 
 
 V. Walton, 19 Cal. 142 48 
 
 V. Warren, 21 111. 541 193 
 
 V. Williams, 11 Sm. & M. 393 602 
 
 V. Wood, 1 Dev. 82 43 
 
 Willingham v. Harrell, 36 Ala. 683 44 
 
 Wills V. Maccormick, 2 Wils. 148 542, 644 
 
 Wilson V. Constable, 1 Lutw. 636 585 
 
 V. Getty, 57 Penn. St. 266 62 
 
 V. King, 2 Cr. & Mee. 689 186 
 
 V. Wilson, 1 Saund. 327 280, 283 
 
 K. Young, 9 Barr, 101 16,18,19 
 
 Winch ». Saunders, 2 Rolle's Rep. 214, Cro. Jac. 684 388, 389, 391, 454, 
 
 456 
 
 Winn V. Nicholson, 7 C. B. 819 618 
 
 Winne v. Elderkin, 1 Chandl. 219 43, 60 
 
 Winship V. Jewett, 1 Barb. Ch. 173 Ill 
 
 Wiusor ». Griggs, 5 Cush. 210 _ 14, 124 
 
 Winter v. Garlick, 6 Mod. 195 ' 626 
 
 V. Lethbridge, 13 Price, 533 199, 202, 316, 466 
 
 V. Munton, 2 Moore, 723 370, 612 
 
 V. White, 3 Moore, 674 674, 681 
 
 Winteringham v. Robertson, 27 L. J. Exch. 301 244 
 
 Withers v. Haines, 2 Barr, 435 46, 77 
 
 Withington v. Warren, 10 Meto. 431 320, 338, 568 
 
 Woglam V. Burnes, 1 Binney, 109 463 
 
 Wohlenberg v. Lageman, 6 Taunt. 250 63, 221, 412 
 
 Wood V. Adcoek, 7 Exch. 468 353 
 
 V. Auburn & Rochester R.R. Co., 4 Seld. 160 6, 10 
 
Ixx TABLE OF CASES. 
 
 Wood «. Griffith, 1 Swanst. 56 181,362,603,605,608 
 
 V. Holden, 45 Maine, 374 45 
 
 V. Hotham, 5 Mee. & W. 674 221 
 
 V. Leake, 12 Ves. Jr. 412 • .... 122 
 
 V. North Staffordshire Railway Co., 13 Jur. 466 609 
 
 V. O'Kelly, 9 East, 436 624, 626 
 
 V. Page, 37 Vt. 252 66, 72, 82 
 
 V. Shepherd, 2 P. & H. (Va.) 442 8, 9 
 
 V. Thompson, RoUe's Abr. Arb. F. 11, p. 249 203 
 
 • V. Wilson, 23 C. M. & R. 241 189, 190 , 211, .587 
 
 Woodbury v. Northy, 3 Greenl. 85 . 211, 214, 226, 229, 290, 571, 578, 
 
 580, 588 
 
 V. Proctor, 9 Gray, 18 84 
 
 Woodcroft !). Jones, 9 Dowl. 538 93 
 
 Woodrow V. O'Conner, 28 Vt. 776 Ill 
 
 Woodruff V. Hurson, 32 Barb. 557 209, 210 
 
 Woodward v. Atwater, 3 Clarke, 61 53, 62 
 
 Woodworth v. Van Buskerk, 1 Johns. Ch. 432 150 
 
 Woolson V. Boston & Worcester Railroad Corporation, 103 Mass. 580 
 
 630 
 
 Worrall v. Deane, 2 Dowl. 263 613 
 
 Worrel v. Atworth, Sid. 858 389 
 
 Worthen v. Stevens, 4 Mass. 448 182, 212 
 
 Worthington v. Barlow, 7 Term, 453 21, 488 
 
 Wright & Cromford Canal Co., in re, 1 Q. B. 98 310 
 
 Wright, ex parte, 6 Cowen, 399 74 
 
 V. Graham, 3 Exch. 131 153 
 
 V. Raddin, 100 Mass. 319 49 
 
 V. Smith, 19 Vt. 110 290, 578, 580, 588 
 
 V. Wright, 5 Cow. 197 340, 345, 359, 362 
 
 Wrightson V. Bywater, 3 Mee. & W. 199 340, 341, 342, 343, 349, 350, 
 
 875, 381 
 
 Wyatt V. Benson, 23 Barb. 327 4 
 
 0. Curnell, 1 Dowl. sr. s. 327 350 
 
 Wyman v. Hammond, 55 Maine, 534 182 
 
 Wynn v. Bellas, 34 Penn. St. 160 46 
 
 Wynne v. Edwards, 12 Mee. & W. 708 364 
 
 V. Wynn6, 4 Man. & Gr. 253 647 
 
 Y. 
 
 Yarborough v. Leggett, 14 Tex. 677 19 
 
 Yates V. Russell, 17 Johns. 461 75, 81, 161 
 
 Yeamans v. Yeamans, 99 Mass. 586 86 
 
TABLE OF CASES. Ixxi 
 
 York & Cumberland, R.R. Co. v. Myers, 18 How. (U. S.) 246 208, 294, 
 
 671 
 
 Young V. Bulinan, 13 C. B. 623 156, 625 
 
 V. Gye, 10 Moore, 198 624 
 
 V. Reynolds, 4 Md. 375 , . 125 
 
 V. Walter, 9 Ves. Jr. 364 .. . 54, 216, 219, 295, 296, 305, 315 
 
PAET I. 
 
 PAETIBS — THE SUBMISSION. 
 
AUBITEATION AND AWARD. 
 
 CHAPTER I. 
 
 PARTIES TO THE SUBMISSION. 
 
 Must be competent to contract. 
 
 Must have Power in relation to Sul^'ect-matter. 
 
 Infants. 
 
 Corporations. 
 
 Selectmen. 
 
 Overseers of the poor. 
 
 Partners. 
 
 Agents. 
 
 1. Principals not bound. 
 
 2. Principal bound, originally ; 
 
 or by subsec[uent proceedings. 
 
 3. The Agent personally bound. 
 Incidental powers of Agent authorized to submit. 
 Submissions by Counsel in lis pendens. 
 Executors and Administrators. 
 
 Guardians. 
 
 Husband and Wife ; Married Women. 
 
 United States District Attorney. 
 
 Assignees in Bankruptcy. 
 
 Bankrupts. 
 
 Persons having a Joint Interest. 
 
 Persons bound in Severalty. 
 
 Parties to a lis pendens. 
 
 Duress. 
 
 Must be Competent to Contract. — A submission is a contract ; 
 consequently the parties must have a general legal capacity to 
 contract. They must be of sound mind ; they must be of full 
 age ; they must act freely and not under threats or duress. 
 
 Must have Poiwer in relation to Subject-matter. — For the 
 purposes of this especial contract, they must have such power 
 
4 PARTIES TO THE SUBMISSION. 
 
 in relation to the subject-matter of the submission as will 
 enable them to carry into effect any orders which could be 
 legally and properly laid upon them by the award.^ 
 
 If parties enter into a submission concerning a subject- 
 matter over which one of them has no authority, an award 
 ordering such party to do that which he cannot lawfully do, 
 will be of no effect whatsoever. It is a simple nullity. Thus, 
 where a rehgious corporation, having no power to sell its real 
 estate except with consent of the Supreme Court, submitted 
 to arbitration the question of sale, and the arbitrators ordered 
 the sale to be made, it was held that their award had no force 
 or effect whatsoever.^ 
 
 Infants. — The agreement of an infant to submit to arbitra- 
 tion is like any other contract into which he might enter. 
 There is an old English case in which his undertaking is 
 declared absolutely void.^ But the later and conclusive au- 
 thorities hold it to be only voidable.'^ The presumed incom- 
 petency of the infant to have a proper care for his own 
 interests will be kept by the courts within reasonable bounds. 
 Thus, where an infant's claim for damage for an assault and 
 battery had been submitted and the amount awarded had been 
 paid him, in a subsequent suit brought by him for the same 
 cause of action it was held that the jury should take into 
 consideration the sum paid ; if they thought it sufficient com- 
 pensation they should give only nominal damages ; if they 
 thought it insufficient, they should make up the deficiency.^ 
 
 Whether or not equity will decree an award to be binding 
 upon an infant seems a matter of doubt, depending much upon 
 the merits of the case.® There are instances in which it has 
 
 1 Bean v. rarnam, 6 Pick. 269; Brady v. Mayor of Brooklyn, 1 Barb. 584 ; 
 Wyatt V. Benson, 23 id. 327. 
 
 2 Wyatt V. Benson, 23 Barb. 327. 
 
 3 Eudston V. Yates, March, 111, 141 ; 1 Eolle Ab. Arb. A. 268. 
 
 ' Baker v. Lovett, 6 Mass. 78 ; Godfrey v. Wade, 6 Moore, 488 ; Harvey v. 
 Ashley, 3 Atk. 607 ; Holt v. "Ward, Eitzgibbon, 175, 275; EusseU on Arb. 3d ed. 
 18; Britton v. "Williams, 6 Munf. 453. 
 
 6 Baker v. Lovett, 6 Mass. 78. 6 Russell on Arb. 19. 
 
PARTIES TO THE SUBMISSION. 
 
 done so,^ and instances in which it has refused to do so.^ The 
 objection to awards under submissions to whicla infants are 
 parties is usually based upon the want of mutuality. 
 
 Corporations. — A corporation may be a party to a submis- 
 sion."' The custom is universal, and has been seldom ques- 
 tioned. Such objections as have been made have usually been 
 aimed at the manner in which the corporation has assumed to 
 become hound. In England it is said that the reference must 
 be an act of the corporate body ; and it has even been questioned 
 whether an attorney would not require a special authority 
 under the corporate seal to enable him to refer a cause.* In 
 the United States formalities are less insisted upon. A power 
 to " agree with the proprietor " of land " for the purchase," 
 &c., was held to authorize an agreement to pay such sum as 
 arbitrators should award ; and it was declared to be needless 
 to inquire whether the power to direct the proceedings in the 
 suit and to agree to a reference lay with the president and 
 directors or with the stockholders ; for the corporation, being 
 a party defendant in court, was represented by its counsel, and 
 his agreement to refer would be presumed to be duly author- 
 ized ; and the court refused, accordingly, to go behind it.^ 
 
 Another case goes further in the same direction. A rail- 
 road company, having power to buy lands at prices to be fixed 
 by arbitrators, made H. their general agent, and he, with knowl- 
 edge of the officers, created T. his aub-agent. H. and T. bought 
 lands for the company and submitted the price to arbitration, 
 and the financial officers were ordered to pay and did pay the 
 sums awarded. By frequent repetition this became the estab- 
 lished course of business. Held, that H. and T. could bind the 
 
 ' Bishop of Bath & Wells v. Hippesley, cited in Harvey v. Ashley, 3 Atk. 607. 
 
 2 Cavendish v. , Eq. Ca. Ab. 49; s. c. IsCa. in Chanc. 279; Evans v. 
 
 Cogan, 2 P. Wms. 450. 
 
 3 Brady v. Mayor of Brooklyn, 1 Barb. 584; Alexandria Canal Co. v. Swan, 
 
 5 How. (U. S.) 83; Russell on Arb. 21 ; Attorney-General v. Clements, 1 Turn. 
 
 6 R. 58. 
 
 * Russell on Arb. 21, 
 
 5 Alexandria Canal Co. v. Swan, 5 How. (U. S.) 83. 
 
b PARTIES TO THE SUBMISSION. 
 
 company by an agreement to submit, not alone because the 
 company would be estopped to deny their authority, but be- 
 cause the past conduct of the company had " actually con- 
 ferred" the authority.! So again: Directors of an insurance 
 company entered on their books a proposal to arbitrate a dis- 
 puted claim and a request to the claimant to join with the 
 secretary in selecting the arbitrators. Held, that the secre- 
 tary's execution of a submission for the company under the 
 corporate seal, was binding on the company.^ 
 
 Where a committee assumes to submit on behalf of a cor- 
 poration, and recites that it is " duly and legally" authorized 
 to do so, the presumption is in favor of the existence of the 
 authority. The fact that a vote empowering them to submit 
 one matter is silent as to another matter which also they have 
 submitted, will not by itself overcome this presumption ; for 
 non constat that the authority was not conferred by some other 
 vote or proceeding.^ 
 
 Selectmen. — The powers of selectmen to submit to arbitra- 
 tion on behalf of the town are not distinctly defined. Gener- 
 ally their submissions have been upheld, as will be seen by the 
 cited cases. Though in Connecticut it was said that under 
 the general phrase " to superintend the general affairs of the 
 town," it would be " difficult to find authority for submitting 
 claims against it.* But selectmen having power " to audit and 
 allow " claims, may submit such claims to reference.^ And 
 selectmen, having statutory power to widen streets and to 
 agree with the parties damaged, may enter into a submission 
 with the abutters to determine the sums to be paid to or by 
 them severally ; and such an agreement, signed by a committee 
 of the selectmen, binds the town.^ So the common council, 
 
 1 Wood V. Auburn & Rochester K.R. Co., 4 Seld. (8 N. Y.) 160. 
 
 2 Madison Ins. Co. ij. GriflSn, 3 Ind. 277. 
 
 ' Proprietors of Pryeburg Canal v. Prye, 5 Greenl. 38. 
 * Griswold v. North Stonington, 5 Conn. 367. 
 5 Dix V. Town of Dummerston, 19 Vt. 262. 
 ^ Inhabitants of Boston v. Brazer, 11 Mass. 447. 
 
PARTIES TO THE SUBMISSION. 1 
 
 » 
 
 authorized to grade streets, to assess damages, and to collect 
 the money, may bind the city by a submission to arbitration of 
 questions arising out of the business. ^ 
 
 Overseers of the Poor have no authority, virtute officii, to 
 submit to arbitration the claim of a pauper.^ 
 
 Partners. — The weight of authority" is clearly in favor of the 
 rule that one partner cannot bind his copartners by a sub- 
 mission to arbitration. A distinction has sometimes been 
 drawn between submissions by parol and submissions under 
 seal, as if the former might be valid, though the latter could 
 not be so by reason of the doctrine that a partner cannot bind 
 the firm by a deed or by any instrument under seal, save only 
 a release of indebtedness. Where the submission has been 
 by a sealed instrument, the courts have often avoided the 
 difficulties of the general question, and sheltered themselves 
 behind this principle. In many cases, however, even parol sub- 
 missions have been held void ; and the text books usually pre- 
 fer this view. The ground taken is, that a partner has implied 
 authority to bind his copartners only in matters relating to 
 the regular course of the partnership business, and that a 
 reference to arbitration cannot be considered to be among 
 such matters. Also that the copartners cannot be presumed 
 to be willing to abandon their rights to seek justice through 
 ordinary channels of the law, or to have authorized another to 
 make such abandonment for them, unless some proof of the 
 fact in the shape of a special authorization exists. Some few 
 other authorities, all arising in the courts of the United 
 States, take a contrary position, and give this power to a single 
 partner. The cases are collected and as nearly as possible are 
 classified in the foot-note.^ 
 
 1 Brady v. Mayor of Brooklyn, 1 Barb. 584, 
 
 2 Furbish v. Hall, 8 Me. (Greenl.) 315. 
 
 8 Parsons on Contracts, Vol. I. 191 ; Story on Partnership, §§ 114-116 ; Rus- 
 sell on Arb. 20 ; CoUyer on Partnership, 238, 260 ; all deny generally the right of 
 one partner to bind the firm. The following oases deny the right of one partner 
 to bind by sealed instrument : Eastman v. Burleigh, 2 N. H. 484 ; Buchanan 
 
8 PARTIES TO THE SUBMISSION. 
 
 f 
 
 But any manner of actual authority given to one partner by 
 his copartners will suffice to empower that partner to bind the 
 firm. Such authorization need not be in any formal shape ; 
 so long as it is a distinct expression of the intent of the 
 copartners to allow one to act for them in making such an agree- 
 ment, it will be sufficient.^ Presence of the authorizing part- 
 ners at the time of signature is not necessary ; but it seems 
 that if they are not present at the time, the authority must 
 have been previously given. And at any rate it will be too late 
 for the non-signing partner to come forward and ratify after an 
 award in his favor has been rendered, and thereby entitle him- 
 self to obtain the benefits of the award when he has taken no 
 part in the previous proceedings whereby he could have been 
 held bound by it had it been against him.^ But even the actual 
 presence of the non-signing partner at the time of the signa- 
 ture by his copartner, is only evidence of his assent, and is not 
 conclusive of the fact. Thus, where he .was a foreigner and it 
 was proved that he understood English imperfectly and did not 
 comprehend what was passing or what his partner was under- 
 taking, he was held not bound by the submission.^ 
 
 If only one partner submits, and does not profess to be act- 
 ing on behalf of his copartner, the copartner will not be bound, 
 
 V. Curry, 19 Johns. 137; Steiglitz v. Egginton, Holt, 141 ; 8 Serg. & Lowb. 54 ; 
 McBride v. Hagan, 1 Wend. 326. In the following cases the negation of the 
 power appears to be in general terms : Karthaus v. Fen-er, 1 Pet. 222 (the 
 instrument in this case was a bond) ; Martin v. Thrasher, 40 Vt. 460 ; Wood v. 
 Shepherd, 2 P. & H. ( Va.) 442; Buchoz v. Grandpau, 1 Mich. 367 ; Harrington 
 V. Higham, 13 Barb. 660 ; Jones o. Bailey, 5 Cal. 345 ; Strangford v. Green, 2 
 
 Mod. 228 ; Stead o. Salt, 3 Bingh. 101 ; Burnell v. Minot, 4 Moore, 340. 
 
 Some Massachusetts cases are also sometimes cited though they are hardly in 
 point ; Abbott v. Dexter, 6 Gush. 108 ; Wesson v. Newton, 10 id. 114 ; Horton v. 
 Wilde, 8 Gray, 425. The cases which give the power to one partner to bind the 
 others, generally expressly limit that power to submissions not under seal ; they 
 are as follows : Taylor v. Coryell, 12 Serg. & R. 243 ; Hallack v. March, 25 111. 
 48; Southard v. Steele, 3 Monroe, (Ky.) 435 ; and obiter in Buchanan v. Curry, 
 19 Johns. 137; Wilcox v. Singletary, Wright, (Ohio) 420. i 
 
 1 Mackay v. Bloodgood, 9 Johns. 285 ; Russell on Arb. 20 ; and by implication, 
 McBride v. Hagan, 1 Wend. 326. 
 
 2 Eastman v. Burleigh, 2 N. H. 484 ; Mackay v. Bloodgood, 9 Johns. 285. 
 
 3 Martin v. Thrasher, 40 Vt. 460. 
 
PAKTIES TO THE SUBMISSION. 9 
 
 though the subject-matter of the submission was business of 
 the firni.i 
 
 But there is a state of affairs in which a partner who is 
 neither a party to the submission nor bound by either the sub- 
 mission or the award, may yet become concluded by the fulfil- 
 ment of the award. Thus where the award was of a sum due 
 to the partnership, and the party who was ordered to pay did 
 pay to the signing partner, who thereupon indorsed a receipt 
 and acknowledgment of satisfaction on the back of the award ; 
 it was held that the non-signing partner was bound, not indeed, 
 by either the submission or the award, but by the " compro- 
 mise or liquidation of the claim, which the one partner might 
 make for the firm, and which was not invalidated by the fact 
 that it had been brought about through the intervention of 
 arbitrators. The receipt operated as a release or as an accord 
 and satisfaction." ^ 
 
 If one partner submits for himself and his copartner, he him- 
 self will be personally bound by the award, equally whether 
 his copartner be bound or not.^ In such case if the copartner 
 refuses to comply with the requirements of the award, his 
 refusal or omission is a breach for which the submitting part- 
 ner will be liable.* 
 
 Where two partners are the party of the one part, to a sub- 
 mission, an award against only one of them is justifiable.^ 
 
 It has been held in England that if, on dissolution of the 
 partnership, one partner authorizes the other to collect the 
 assets and to sue in their joint names, yet this would not em- 
 power the acting partner to refer to. arbitration a suit brought 
 by him under this authority ; for though a court of equity 
 would oblige the retiring partner to allow his name to be used 
 
 1 Hutchins v. Johnson, 12 Conn. 376. 
 
 2 Buchanan v. Curry, 19 Johns. 137. 
 
 3 Strangford v. Green, 2 Mod. 228; Harrington v. Higham, 13 Barb. 660; 
 Karthaus v. Ferrer, 1 Pet. 222; McBride v. Hagan, 1 Wend. 326; Kussell on 
 Arb. 20; Wood v. Shepherd, 2 P. & H. (Va.) 442; Jones v. BaUey, 6 Cal. 345. 
 
 4 RusseU on Arb. 20. 
 
 5 Dater «.■ WeUington, 1 Hill, (N. T.) 319. 
 
10 PAETIES TO THE SUBMISSION. 
 
 in suing, yet he could not be forced to submit to arbitration.^ 
 But in the United States it must be regarded as doubtful 
 whether this ruling would be sustained ; for it has been held in 
 our courts that power to conduct a suit includes power to agree 
 to refer it by rule of court, such being one of the familiar and 
 established processes of litigation.^ 
 
 Agents. — If a submission is to be entered into through the 
 intervention of an agent, it is only a reasonable precaution to 
 confer upon the agent his authority to submit, by a written 
 instrument. By this means alone can the danger that his 
 action will be questioned by his real or supposed principal be 
 avoided. The instrument, like any other power of attorney, 
 must be of at least as high a dignity as the submission which 
 he is -empowered to execute ; e. g. if the submission is to be by 
 specialty the power should be under seal. But if the submis- 
 sion be needlessly executed under seal and would have been 
 equally valid without the seal it will be binding although the 
 authority was conferred by an unsealed instrument.' 
 
 When one person is acting as agent for another in a general 
 way, but in regard only to certain matters, it is often a difiScult 
 and delicate question in the absence of a written and duly 
 executed authority, to determine whether or not it is within 
 the scope of his agency to refer to arbitration points in doubt, 
 controversy or litigation arising out of these matters. There 
 seem to be no threads of general principle upon which the 
 various cases can be separated. The only satisfactory process 
 for exhausting the adjudicated law upon the subject would 
 appear to be by a classified abstract of the decisions, which 
 fortunately are not so numerous but that this plan may be con- 
 sidered feasible. The topic can be conveniently divided into 
 three parts : 1. Instances in which the principals have been 
 
 ' Hatton V. Eoyle, 3 Hurlst. & N. 500; Russell on Arb. 20. 
 
 '^ See post, in this chapter, the division on "Agents." Inhabitants of Buck- 
 land V. Inhabitants of Conway, 16 Mass. 396. See Wilks v. Back, 2 East, 142. 
 
 ' Wood v. Auburn & Eochester E.E. Co., 4 Seld. (8 N. Y.) 160; White v. 
 Fox, 29 Conn. 670. 
 
PARTIES TO THE SUBMISSION. 11 
 
 declared not bound. 2. Instances in ■which they have been 
 declared bound either originally or by virtue of circumstances 
 occurring subsequently to the submission. 3. Instances in 
 which the agents have been held to have bound themselves 
 personally. 
 
 1. Principals not bound. — Authority to exercise a reasonable 
 discretion, or to submit to a reasonable sacrifice ; or authority 
 expressed in these words : " If you can honorably and fairly 
 settle witli R. for me, out of court, do so ; if not, let the 
 court and jury settle," does not empower the agent to submit 
 to arbitration.^ 
 
 Authority to a son, despatched to a distant place, " to settle " 
 matters of account, does not authorize him to submit to arbi- 
 tration.^ But an autliority to underwrite and to settle losses 
 on a policy of insurance has been held to include a power to 
 refer.8 
 
 A mere general agent with no specified functions has no 
 authority to submit for his principal.* 
 
 A general authority to collect or receive payment does not 
 include or carry with it power to submit debts or claims to 
 arbitration.^ Unless, indeed, such power arises or is to be 
 inferred from general usage, or is given by rule of court.^ It 
 is not conferred by the words " to sue, ask for, and demand 
 all sums or moneys due me." ^ Mr. Parsons, loco citato, says 
 that power to compromise claims does not give power to sub- 
 mit them to arbitration. But the autliority whicli he cites, — 
 Alexandria Canal Co. v. Swan, 5 How. (U. S.) 83, — fails to 
 bear out his assertion. Very probably his theory may be 
 
 1 Scarborough v. Reynolds, 12 Ala. 252. 
 
 •' Huber v. Zimmerman, 21 Ala. 488. 
 
 ' Goodson V. Brooke, 4 Campb. 163 ; Russell on Arb. 24. 
 
 * Trout V. Emmons, 29 HI. 433; Lowensteinw. Mcintosh, 37 Barb. 251. 
 
 * Story on Agency, § 99 ; 2 Parsons on Contracts, pp. 688, 689 ; Caldwell 
 on Arb. 14, 15, 152, 153; Goodson v. Brooke, 4 Campb. 163. 
 
 6 2 Parsons on Contracts, pp. 688, 689, citing Buckland v, Conway, 16 
 Mass. 396 ; Henley v. Soper, 8 Barn. & C. 16. 
 ' Scarborough v. Reynolds, 12 Ala. 252. 
 
12 PARTIES TO THE STJBMISSION. 
 
 sound law ; yet it is not improbable that an award of money 
 due to the principal and a receipt for that sum in full satis- 
 faction executed by the agent might be held to conclude the 
 parties upon the same principle as that laid down in Buchanan 
 V. Curry. 1 There is certainly one case which appears to be 
 in direct contravention of the learned author's position. In 
 Schoff V. Bloomfield,^ it was held that an agent appointed at 
 a town meeting " to compromise " a claim for damages against 
 the town, growing out of the opening of a road across land of 
 A., had power to bind the town by a submission to arbitration 
 on its behalf. 
 
 An English case may be well noted in this connection. One 
 of two copartners, retiring from business, gave to the other a 
 power of attorney " to ask, demand, sue for, compound, and 
 receive " debts owing to the partnership, and " to sign, seal, 
 and deliver any deed," &c., whatsoever, necessary to these 
 ends. This was held to authorize the acting partner to agree 
 to a submission on behalf of both ; but whether or not it was 
 so held solely by virtue of the word " compound " is left to 
 conjecture, for the existence of the power seems to have been 
 assumed by both counsel and judges, and the argument and 
 decision turned chiefly on the form of the signature by the 
 attorney.^ 
 
 2. Principal bound, originally or by subsequent proceedings. — 
 Power to underwrite for another and to settle losses under the 
 policy carries with it power to submit claims for losses to 
 arbitration.* 
 
 An agent, appointed by a town " to compromise " a claim 
 against the town for damages, may submit on behalf of the 
 town.^ 
 
 An agent, appointed generally to prosecute or defend a suit, 
 
 1 19 Johns. 137; abstract of case given ante in division on "Partners." 
 
 2 8 Vt. 472. 
 
 3 "Wilks V. Back, 2 East, 142. 
 
 < Russell on Arb. 24; Goodson v. Brooke, 4 Campb. 163. 
 5 Schoff V. Bloomfleld, 8 Vt. 472. 
 
PARTIES TO THE SUBMISSION. 13 
 
 has been declared to have power, apparently on the same 
 ground on which like power is extended to counsel, to agree 
 to a reference by rule of court, since that is a legal mode of 
 prosecuting or defending.^ 
 
 A member of a partnership gave to his son a power of attor- 
 ney to act for him in dissolving the partnership, with power 
 of substitution. It was held that the son could submit to 
 arbitration on behalf of his father.^ 
 
 If submission be made by an agent not thereto duly author- 
 ized, and the principal afterward is notified by the arbitrators 
 of the hearing, appears before them without objection and 
 participates in the proceedings, he will be bound by the award.^ 
 So also where the principal is a corporation,* and has, in 
 addition to the above-recited acts, even allowed judgment to 
 be entered on the award.^ 
 
 Where, after submission by an agent not duly authorized 
 thereto, and award made, the principal took an assignment of 
 the award to himself and then assigned it over to a stranger, 
 the court declared his conduct to be a very strong adoption 
 and ratification of the agent's submission.^ 
 
 An agent of a widow entered into a submission on her 
 behalf to determine what annual payment should be made to 
 her for the use of her dower in certain premises, instead of 
 having it set off to her. She afterward received several suc- 
 cessive annual payments of the sum awarded. Held, that she 
 was bound by the award so long as there was no default in the 
 annual payments.^ 
 
 An agent entered into a submission concerning land on the 
 part of his principal, a married man, whom he supposed to be 
 
 • 1 Inhabitants of Buckland v. Inhabitants of Conway, 16 Mass. 396. 
 
 2 Henley v. Soper, 8 Barn. & C. 16 ; 2 M. & K. 155 ; Russell on Arb. 24. 
 
 3 Diedrich v. Richley, 2 Hill, 271. 
 
 * Proprietors of Pryeburg Canal v. Frye, 5 Greenl. 38. 
 
 5 Detroit v. Jackson, 1 Dougl. 106. 
 
 « Lowenstein v. Mcintosh, 37 Barb. 251. 
 
 ' Purber v. Chamberlain, 9 Poster, (29 N. H.) 405. 
 
14 PARTIES TO THE SUBMISSION. 
 
 the owner. He afterward learned that it belonged to the wife 
 of his supposed principal, and thereupon notified the other 
 party, and proposed to change the submission accordingly. 
 The other party, however, said it was not worth while to 
 change the agreement which was good enougli,as it was. The 
 wife allowed the proceedings to continue, with full knowledge 
 of them. Held, that the submission was binding upon her 
 and upon the other party to it.^ 
 
 To the like effect is the case of Isaacs v. Beth Hamedash 
 Society.^ A part only of the trustees of the society signed 
 the submission, but the proceedings prior to the award were 
 sanctioned by the presence and participation of all. Held, 
 that the award bound all. 
 
 A submission concerning the boundary line of real estate, 
 entered into by the owner, does not bind his subsequent ven- 
 dee, purchasing without notice.^ 
 
 3. The Agent personally bound. — It is obvious that a duly 
 authorized agent entering into a submission on behalf of his 
 principal, will bind only his principal if the agreement be 
 properly drawn.* But it may be so drawn that he will bind 
 himself personally ; and some cases of this nature have arisen. 
 Thus, if he enters into the submission in his own name, or if 
 he merely describes himself and signs the submission as " A., 
 agent," he will be personally bound to perform the award.^ 
 
 In England the doctrine of holding the agent personally 
 liable has been carried very far. Russell says : " In general a 
 man is bound by an award which he enters into for another." ^ 
 Certainly under the decisions great precision would be neces- 
 sary, and a very distinct recital of the fact that the principal 
 
 1 Smith V. Sweeny, 35 N. T. 291. t, 
 
 2 1 Hilt. 469. 
 
 3 Emery v. Fowler, 38 Me. 99. 
 
 * Russell on Arb. 23. Beside the authorities cited here, the cases concerning 
 " Executors and Administrators," post, in this chapter, sliould be good precedents. 
 
 5 Winsor v. Griggs, 5 Gush. (Mass.) 210; Smith v. Van Nostrand, 5 Hill, 419. 
 
 6 Russell, p. 21 ; Bacon v. Dubarry, 1 Ld. Raym. 246 ; Alsop v. Senior, 2 Keb. 
 707; Shelf I'. Bailey, Gom. R. 183. 
 
PAETIBS TO THE SUBMISSION. 15 
 
 is to be bound alone and exclusively, or the agent would prob- 
 ably be held. In Bacon v. Dubarry, the agreement was between 
 A., of the one part, and B., as attorney for 0., of the other part, 
 but it was declared that B. had bound himself, that he had 
 undertaken for C, and must make good, or cause to be made 
 good, his undertaking. 
 
 Of course if the agent enters into the submission by a bond 
 conditioned that C, the agent, " for and on behalf of said B.," 
 the principal, shall perform the award, it is obvious that the 
 agent has bound himself and cannot escape.^ 
 
 If he undertakes to submit jointly, for himself and on be- 
 half of others, for whom he has no power to submit, and 
 stipulates generally for performance of the award, he will be 
 individually bound by this stipulation, and liable for a breach 
 of it, though by the act of one of the others.^ 
 
 Incidental Powers of Agent authorized to submit. — An agent 
 appointed to submit a claim to arbitration is not thereby 
 authorized to ratify and confirm the award.^ An agent 
 authorized to conduct a reference may consent that the oppos- 
 ing party may produce his books before the arbitrator, alone 
 and on a subsequent day.* He may also waive an objection to 
 the appointment of an umpire improperly made by lot.^ 
 
 Submissions by Counsel in a lis pendens. — Counsel employed 
 to bring or to defend a cause have power to submit it to arbi- 
 tration.^ There is only one case in which this power is denied, 
 
 1 Cayhill v. Fitzgerald, 1 Wils. 58. 
 
 2 Smith V. Van Nostrand, 5 HiU, 419 ; Russell on Arb. 20. 
 
 3 Bullitt V. Musgrave, 3 GiU, 31. 
 
 * Hamilton v. Eankin, 3 De Gex & S. 782; Russell on Arb. 24. 
 
 5 Backhouse v. Taylor, 20 L. J. Q. B. 233. 
 
 6 2 Parsons on Contracts, pp. 688, 689 ; Bates v. Visher, 2 Cal. 355 ; Smith 
 V. Bossard, 2 McCord's Chanc. 406 ; Inhabitants of Buckland v. Inhabitants of 
 Coiiway, 16 Mass. 396 ; Scarborough v. Reynolds, 12 Ala. 252 ; Hol\er v. Parker, 
 7 Cranch, 452; Wade v. Powell, 31 Geo. 1; Stokely o. Robinson, 34 Penn. St. 
 315 ; Somers v. Balabrega, 1 Dall. 164 ; Cahill v. Benn, 6 Binney, 99 ; Beverly 
 V. Stephens,. 17 Ala. 701; Coleman v. Grubb, 23 Penn. St. (11 Harris) 393; 
 Wilson V. Young, 9 Barr, 101 ; Bingham's Trustees v. Guthrie, 19 Penn. St. 
 (7 Harris) 418 ; Russell on Arb. p. 25 et seq. ; Talbot v. McGee, 4 T. B. Monroe, 
 377 ; Jenkins v. Gillespie, 10 Sm. & M. 31. 
 
16 PAETIES TO THE SUBMISSION. 
 
 and an examination of the opinion therein shows that it was 
 based upon a gross and unquestionable misconception of the 
 nature of the ruling in the English case of Bacon v. Dubarry 
 (1 Ld. Eaym. 246, Salk. 70, Carth. 412, Comb. 439, Mod. 
 129). There is no chance that this single opposing utterance 
 will sufBce to outweigh the mass of contrary authority .^ An 
 oral agreement of this nature, provided it be made in open 
 court and then and there entered by the clerk, will be good.^ 
 Mr. Parsons' language, loc. cit, would convey the impression 
 that an attorney might probably be allowed to refer his client's 
 business even before any suit had been instituted, and that it 
 is only in the courts of a few States that the existence of a lis 
 pendens has been declared a condition precedent to the accru- 
 ing of the power. There is slender basis for this distinction. 
 It is true that in only one or two causes have the courts de- 
 liberajtely stated that this limitation exists ; but it is true on 
 the other hand that in every American cause in which the 
 power has been upheld, it appears to have been exercised pen- 
 dente lite, and to have been a reference of a cause which the 
 referring counsel had been, employed to conduct. It may be 
 that counsel employed to urge or defend a claim can properly 
 refer on behalf of their clients before suit is brought, with the 
 express purpose of avoiding a suit. But no case adjudicated 
 in the courts of the United States can be justly regarded as 
 authority for this extreme position. 
 
 An attorney cannot, in Pennsylvania, aifect his client's title 
 to real estate by entering into any agreement or submission, 
 whether in a pending cause or not.^ 
 
 A strong inclination has been shown in Pennsylvania to 
 allow counsel to include in their submission, made in a pend- 
 ing cause, matters not in issue in that cause.* And the rule 
 
 1 Haynes v. Wright, 4 Hayw. 64. 
 
 2 Millar v. Criswell, 3 Barr, 449 ; Stokely v. Robinson, 34 Penn. St. 315. 
 
 3 Naglee v. IngersoU, 7 Penn. St. 185 ; Pearson v. Morrison, 2 Serg. & R. 20 ; 
 Huston V. Mitchell, 14 id. 307. See Gable v. Hain, 1 Penn. 267. 
 
 * Bingham's Trustees v. Guthrie, 19 Penn. St. 418. 
 
PARTIES TO THE SUBMISSION. 17 
 
 is imperative that if this, or aay other stretch of authority 
 upon the part of counsel in framing the submission, is objected 
 to by the client, objection must be promptly made by him, so 
 soon as the step thus taken becomes known to him, and must 
 be made in the court where the suit is then pending, by appli- 
 cation to vacate the submission. Otherwise it cannot be urged 
 for the first time at the hearing upon questions of law in the 
 upper court.i 
 
 The same rule prevails in England, where attorneys and 
 solicitors have unquestionable power to submit. Some dis- 
 tinctions were at one time made between the powers of solici- 
 tors and of counsel in this respect ; ^ but these seem now to 
 have been done away with.^ The English cases seem to fur- 
 nish some basis for the doctrihe that an attorney may even 
 refer a point in dispute before suit has been brought. Whether 
 or not these are to be regarded as constituting fair precedents 
 in the United States must, however, be questioned. The attor- 
 ney of the family or business firm in Great Britain occupies a 
 position, as towards his client, very different from that which is 
 filled by an American lawyer. The English attorney is often 
 the general and responsible business agent. Nearly all the 
 affairs of persons not themselves actually engaged in business 
 are frequently placed wholly in his hands. He has charge of, 
 and to a great extent control over, the property. Agreements 
 and arrangements concerning it are properly and customarily 
 entered into with him. Occupying this peculiar relationship, 
 he might well be considered empowered to enter into an agree- 
 ment for arbitration, when a lawyer, engaged only for occasional 
 
 1 Ibid ; Huston v. Mitchell, 14 Serg. & E. 307 ; Miller v. Creswell, 3 Penn. 
 St. 451 ; Babb v. Stromberg, 14 id. 399. 
 
 2 Russell on Arb. 27 ; Colwell v. Child, Ca. in Ch. 86, 1 Chanc. E. 104. See 
 Furnival v. Bogle, 4 Russ. 142. 
 
 3 Russell on Arb. 25 ; Latuohe v. Pasherante, 1 Salk. 86 ; Buckle v. Roach, 
 1 Chit. 198 ; Bodington v. Harris, 1 Bing. 187 ; Jamieson v. Binns, In rt, 4 Ad. 
 & E. 945 ; PauU v. Paull, 2 C. & M. 235 ; Dowse v. Coxe, 3 Bing. 20 ; Thomas 
 V. Hewes, 2 C. & M. 519 ; Eaviell v. Eastern Counties Railway Co., 2 Exch. 344 ; 
 Mole V. Smith, 1 Jac. & W. 673 ; In re Hobler, 8 Beav. 101. 
 
 2 
 
18 PARTIES TO THE SUBMISSION. 
 
 specific matters, could not be allowed to assume such an exten- 
 sive aiithority. 
 
 After a reference has been agreed to pendente lite, by the 
 counsel in the cause, the courts manifest extreme unwilling- 
 ness to go behind the record.^ In England the rules and 
 practice in this particular are extremely rigid. The action 
 of the counsel or attorney has often been held to be con- 
 clusive and final upon the client, who, if he be injured or 
 aggrieved, is left to pursue his remedy af law against his 
 wrong-doing agent.^ This has been so held where the client 
 had expressly instructed the attorney not to consent to a refer- 
 ence ; ^ where the client had not only never assented, but 
 prior to the making of the award had sent to the plaintiff and 
 the arbitrator a protest again^ the proceedings.* The courts 
 of the United States have declared that the client may, within 
 a "proper time," revoke the submission entered into by his 
 attorney." Or he may apply to the court for relief.^ But he 
 cannot seek it by a writ of error.^ What is the " proper 
 time " within which revocation must be made has never been 
 declared. 
 
 An attorney undertaking to refer on behalf of his client 
 must do so by a formal submission. This may be by writing, 
 by parol, or by consenting to a rule of court. But it is 
 essential that it should be done in some formal way, and that 
 the fact of its having been done should appear on the records 
 of the court or among the papers filed in the case ; for " there 
 is no submission where there is no evidence of it." Though 
 the award be signed by the counsel for both parties and recite 
 that there has been a submission, yet this will not sufi&ce.^ 
 
 1 Alexandria Canal Co. v. Swan, 5 How. (U. S.) 83. 
 
 2 Mole V. Smith, 1 Jac. & W. 673 ; rurnival v. Bogle, 4 Euss. 142. 
 
 3 Eilmer v. Delber, 3 Taunt. 486. 
 
 4 Smith V. Troup, 7 C. B. 757. 
 
 « Coleman v. Grubb, 23 Penn. St. 393 ; Wilson v. Young, 9 Barr, 101. 
 
 6 Millar v. Criswell, 8 Barr, 449; Wilson v. Young, 9 id. 101. 
 
 1 Millar v. Criswell, 3 Barr, 449. 
 
 8 Stokely v. Robinson, 34 Penn. St. 315. 
 
PAETIES TO THE SUBMISSION. 19 
 
 Where the submission is made pendente lite, and provides 
 that judgment shall be entered on the award " without excep- 
 tion or appeal," this will not make the agreement an excess of 
 authority on the part of the attorney. For such words woxild 
 not prevent the court from interfering in a suitable case.^ 
 
 A corporation will be bound, like any other client, by the 
 submission of its counsel entered into in a cause, and it is 
 not necessary that there should be any document executed 
 under the corporate seal in order to confer authority upon the 
 counsel.^ 
 
 An attorney's consent to an enlargement of time under a 
 submission binds the client.* 
 
 The assent of all the members of a firm to a parol submis- 
 sion will be presumed from the fact of the appearance of their 
 attorney for them before the arbitrator, though only one of 
 them requested the. arbitrator to act.* 
 
 Executors and Administrators. — At common law an executor 
 or administrator may, in his official capacity, submit to arbi- 
 tration demands for or against the estate.^ This rule is said 
 to be based upon the fact that the administrator has power 
 to prosecute or defend suits.^ The award will be binding 
 against him in his fiduciary capacity,^ and against the cred- 
 itors of the estate.^ The settlement or liquidation thus efifected 
 
 1 Wilson V. Young, 9 Barr, 101 ; Bingham's Trustees v. Guthrie, 19 Penn. St. 
 (7 Harris) 418. 
 
 2 Alexandria Canal Co. v. Swan, 5 How. (TJ. S.) 83; Mayor of Ludlow u. 
 Charlton, Ex. E. T. 1845 ; Faviell v. Eastern Counties Railway Co., 2 Exch. 
 344 ; Russell on Arb. 26. 
 
 a Russell on Arb. 26 ; Rex v. Hill, 7 Price, 636. 
 
 * Russell on Arb. 26 ; Adams v. Bankart, 1 Cr. M. & E. 681. 
 
 5 Russell on Arb. 29 ; Russell v. Lane, 1 Barb. 619 ; Yarborough v. Leggett, 
 14 Tex. 677 ; Swicard v. Wilson, 2 Rep. Con. Ct. 218 ; Ailing v. Munson, 2 Conn. 
 691 ; Chadbourn v. Chadbourn, 9 AUen, 173 ; Coffin v. Cottle, 4 Pick. 454; Bean 
 V. Farnam, 6 id. 269 ; Jones v. Deyer, 16 Ala. 221 ; Merchants' Bank v. Rawls, 
 21 Ga. 334 ; Overly's Executor t. Overly's Devisees, 1 Mete. (Ky.) 117 ; Logs- 
 don V. Roberts' Executors, 3 Monr. 256. 
 
 6 Kendall v. Bates, 35 Me. 367 ; Eaton v. Cole, 1 Fairf. 137 ; Weston v. Stew- 
 art, 2 id. '326. 
 
 1 Wheatley v. Martin's Adm'r, 6 Leigh, 62. 
 
 8 Strodes v. Patton, 1 Brook. 228, per Marshall, C. J. 
 
20 PARTIES TO THE SUBMISSION. 
 
 will be equally good, as against legatees or distributees, as if 
 accomplished in any other manner.^ A contrary opinion as to 
 the general right to submit has been expressed in Louisiana, 
 where it was said that, although it ought to be conceded that 
 administrators have no right to submit, yet since this prohi- 
 bition is intended to protect the rights of parties interested, 
 submissions thus made are not absolutely null, and their want 
 of authority may be cured by the ratification or acquiescence 
 of the heirs, distributees, and creditors.^ 
 
 But after award made, though the award will generally bind 
 the estate,^ yet if it appears that there were items unknown to 
 the executor, and not acted on by the referees, these may be 
 subsequently set up either by the executor himself or by the 
 creditors of the estate, notwithstanding an award of a general 
 balance has been rendered.* 
 
 It is common in the United States to provide by statute for 
 submissions to arbitration or reference to be made by adminis- 
 trators or executors on behalf of the estate of the deceased. 
 But if persons holding these positions are not protected by 
 legislative provisions, it seems that they incur no inconsider- 
 able personal risk in entering into such agreements. The first 
 ruling in the English courts was that a simple submission, 
 without an express protest or saving clause to the contrary, 
 would be construed as an admission of assets by the adminis- 
 trator or executor. If the award were that he should pay a 
 certain sum, he could not plead plene administravit to a suit 
 upon the award, but would be personally liable to pay the 
 amount if there were not sufficient assets of the estate.^ It 
 was said that he had misled the other party into incurring 
 the expenses of arbitration to no purpose, and that he should 
 have stated the deficiency of assets in the outset, in the same 
 
 1 Wheatley v. Martin's Adm'r, 6 Leigh, 62. 
 
 2 Lattier v. Eachal, 12 La. An. 695. 
 : Bean v. Farnam, 6 Pick. 269. 
 
 * Strodes v. Patton, 1 Brook, 228. 
 
 6 Barry v. Rush, 1 Term, 691 ; Robson v. , 2 Rose, 50 ; RusseU on 
 
 Art. 30. 
 
PARTIES TO THE SUBMISSION. 21 
 
 way that he would have been obliged to do in a suit at law, 
 had he sought to escape payment of the judgment on this 
 ground.^ But the harshness of these decisions as against the 
 executor were subsequently modified. The theory at first had 
 been, that the submission was in itself an admission of assets.^ 
 But afterward it was held, by a slight and very reasonable 
 change, that the question of whether or not there were assets, 
 was included as a part of the submission.^ Under this view, 
 the matter of the personal liability of the executor was often 
 made to turn upon the language of the award. If this bade 
 a certain sum to be paid by the executor or administrator, it 
 was equivalent to a finding that he had assets, and it bound 
 him accordingly.* But if.it simply found that a sum was due, 
 the administrator was not held personally liable, for this was 
 not a finding that he had assets.^ So where the award was 
 that the executor should pay a certain sum out of the assets, 
 it was held that the question of the existence of assets was left 
 open, and he was not personally liable.® 
 
 Questions of this nature seem to have been of rare occur- 
 rence in the United States, perhaps because statutory provisions 
 have generally intervened to protect the executor or adminis- 
 trator. Mr. Parsons, on the strength of the English cases, 
 lays down substantially the English rules, with their more 
 liberal modifications, as above developed.^ In a suit in New 
 Jersey^ the administrator bound himself and his heirs. He 
 afterward sought to plead plene administravit, but it was 
 objected that he had bound himself personally. The court 
 
 1 Eiddell v. Sutton, 5 Bingh. 200. And see Executors of Baracliff «. Adm'rs 
 of Griscom Coxe (N. J.), 165. 
 
 2 Russell on Arb. 30; Barry v. Rush, 1 Term, 691. 
 
 ' Russell on Arb. 30 ; Worthington ». Barlow, 7 Term, 453. 
 * Russell on Arb. 30, and cases above cited. "^ . 
 
 5 Pearson v. Henry, 5 Term, 6. 
 
 6 Lore V. Honeybourne, 4 Dowl. & Ey. 814 ; Joseph v. Webster, In re, 1 Buss. 
 & M. 496 ; Russell ofi Arb. 30, 31. 
 
 ' 1 Parsons on Contracts, 191. ' 
 
 8 McKeen v. Oliphant, 3 Harrison, 442. 
 
22 PARTIES TO THE SUBMISSION. 
 
 held otherwise, saying that the object of the suit was to deter- 
 mine whether or not any thing was due from the estate of the 
 deceased. The administrator bound himself only to abide by 
 this decision, i. e., to admit that any sum which should be 
 found was in fact due. The strict technical rule that a sub- 
 mission was an admission of assets, could pot be allowed to 
 prevail over the clear intention of the parties as found upon 
 the face of the submission. But it should be observed that the 
 arbitrators ordered in their award that the administrator 
 should pay the sum named " out of the estate of said deceased." 
 So that under the later English rule the administrator could 
 not have been held personally liable ; and, unquestionably, the 
 old rule that the submission is an admission of assets, what- 
 ever be the finding of the arbitrators or the form of the award, 
 must be regarded as not only " strict and technical," but also 
 as too antiquated to be novr regarded as law before any 
 tribunal. 
 
 But in a case in Massachusetts, in discussing whether or 
 not a submission made by one who was a co-executor was 
 made by him in his personal or his official capacity, the court 
 remark: "The defendant [executor], by submitting a claim 
 against the testator's estate, as [an ?] estate in the course 
 of administration, would have rendered himself liable to per- 
 form the award, although the sum awarded against him 
 might exceed the assets in his hands." It is true that the 
 statement was supported by no authorities, and as an inde- 
 pendent ruling it might be regarded as oUter dictum. Still it 
 was one of the considerations upon the strength of which the 
 decision of the cause was based. ^ 
 
 It has been said in England,^ and ruled in this country, that 
 if an executor or administrator submits on behalf of the estate, 
 though the estate will be bound by the award," yet if the award 
 be of a less sum than would have been recoverable at law, the 
 
 1 Tallman v. Tallman, 5 Pick. 325. 
 
 2 Russell on Arb. 29; WUliams bu Bx'rs, (Am. ed.) 1533. 
 
PARTIES TO THE SUBMISSION. 23 
 
 executor or administrator will be liable to make up the defi- 
 ciency. He may be held to account for it to the heirs, or it 
 may be charged as a devastavit against him at the settlement 
 of his accounts.^ The language of Chief Justice Marshall was: 
 " If the award be glaringly unjust, I will not say that the exec- 
 utor may not, under certain circumstances, be made personally 
 responsible."'^ But qucere, whether the application of these 
 remarks must not be confined to cases where the submission is 
 made by virtue of the common-law right ? For if there be 
 express statutory provisions permitting an executor or admin- 
 istrator to submit, it seems hardly conceivable that, after com- 
 plying with them, he should be held personally liable for the 
 decision of the arbitrator. 
 
 The executor or administrator should, of course, be properly 
 described as such in the submission; it should be distinctly 
 stated that he submits only on- behalf of the estate. It will be 
 wise to add that he does not admit the existence of assets ; or 
 to state whether or not the question of assets is to be included 
 in the submission. He should also sign in the ordinary form, 
 i. e., adding the proper terms of official description, to signify 
 that his signature is made by him in his official capacity. 
 Nevertheless if the intent to act only in this character can be 
 clearly gathered from the agreement, it will sufiice. If he be 
 described in the body of the instrument as undertaking as 
 administrator or executor, he will not be personally held by 
 reason of his signature being simply his own name without 
 more.^ And indeed, in a case in which A. had been sued in 
 her capacity as administratrix of B., and she entered into a 
 submission with the plaintiff of " all matters of controversy 
 between us subsisting, now in suit," but- did not in the sub- 
 mission describe herself as administratrix and signed it simply 
 with her own name, it was held that parol evidence was admis- 
 
 1 Bean v. Farnam, 6 Pick; 269 ; Wheatley v. Martin's Adm'r, 6 Leigh, 62. 
 
 2 Strodes v. Patton, 1 Brock. 228. 
 
 3 Dickey v. Sleeper, 13 Mass. 244; Chadbourn v. Chadbourn, 9 Allen, (Mass.) 
 173. 
 
24 PARTIES TO THE SUBMISSION. 
 
 sible to show that no other suit was pending between her and 
 this plaintiff, that the controversy heard was that involved in 
 the suit aforesaid ; and upon this evidence the submission was 
 upheld as that of A. in her capacity as administratrix.^ 
 
 A statute empowering an executor to enter into a submission 
 with any " creditor or debtor " of the estate, does not authorize 
 him to enter into such an agreement with the widow ; for she, 
 as such, is neither a creditor nor a debtor.^ 
 
 A. had demands against the copartnership of B. and C. B. 
 and C. died, C. being the longer liver. D. took out separate 
 administration on their separate estates. In a suit by A. 
 against D. there was reference and an award of a sum due from 
 the estate of C. Held, that although D. acted in different 
 rights, still the parties were the same in all the demands. A. 
 might substantiate his claims against the administrator of the 
 surviving partner, or each partner might have made payments 
 or advances on partnership account, so that A. might have 
 several demands. The submission and award were upheld.^ 
 
 A testator bequeathed to his son A. certain debts due from 
 A., to him, and the bulk of his property to his son B., and 
 named B. and his (the testator's) widow as executor and exec- 
 utrix. Joint letters of administration were issued to them 
 accordingly. Subsequently, the widow still surviving, A. and 
 B. submitted to arbitration " all matters and things whatso- 
 ever arising out of the will and estate of [the deceased] and the 
 just and equitable division thereof, as also any promise, agree- 
 ment, or contract alleged to have been made by the said B. to 
 the said A. touching the settlement of said estate, and all 
 demands between the parties relating thereto." Held, that B. 
 " entered into the submission in his individual capacity, and 
 not in his representative capacity as executor of his father's 
 will." * 
 
 1 Bennett ». Pierce, 28 Conn. S15. 
 
 2 Hutching v. Johnson, 12 Conn. 376. . 
 s Whitney v. Cook, 5 Mass. 139. 
 
 * Tallman v. TaUman, 5 Pick. 325. 
 
PARTIES TO THE SUBMISSION. 25 
 
 An administrator has no control over the realty of the 
 deceased, and consequently his submission concerning it, not 
 joined or acquiesced in by the heir, is not binding.^ 
 
 Guardians. — A guardian has a general authority to submit 
 on behalf of his infant ward. For the very reason, it has been 
 said, that an infant cannot Mnd himself to an arbitration, it is 
 right that the power should exist somewhere ; and it resides 
 nowhere so properly as with the guardian, who is not guardian 
 ad litem merely, but has the general charge of his affairs, and 
 may be supposed to know what is best for his interests. Per- 
 formance of the award will be a bar to a suit for the same 
 cause of action by the infant on coming of age.^ But a guar- 
 dian ad litem has no power to submit, even though the submis- 
 sion be made a rule of court. He cannot change the tribunal 
 or the principles of decision.^ 
 
 A parent may submit a claim for damages arising from a 
 physical injury done to his minor child ; and if the submission 
 contemplate that the sums due respectively to the infant in 
 compensation for the injury and to the parent in compensation 
 for the loss of services may be blended, an award of a gross 
 sum in full for both these claims will be good.* 
 
 A guardian or parent may enter into a submission which 
 will bind him personally, that his ward or infant child shall 
 perform the award.* 
 
 But though a submission entered into by a parent on behalf 
 of ar minor child might in itself be upheld as being for the 
 benefit of the infant, yet if the award require something to be 
 
 1 Bridgham v. Prince, 33 Me. 174. 
 
 2 Weed V. ElUs, 3 Gaines, 253; Bean v. Famam, 6 Pick. 269; Roberts v. 
 Newbold, Comb. 318; Golemau u. Turner, 14 Sm. & M. 118; McComb v. Tur- 
 ner, ib. 119 ; Strong v. Beroujon, 18 Ala. 168 ; "Westoii v. Stuart, 2 Fairf. (Me.) 
 326. 
 
 8 Fort V. Battle, 13 Sm. & M. 133 ; Hannum's Heirs v. "Wallace, 9 Humph. 
 129. 
 
 4 Beebee v. TrafiTord, Kirby, (Conn.) 215. 
 
 5 Russell on Arb. 18; Gill v. Russell, Freem. 62 ; Bowyeru. Blorksidge, 3 Lev. 
 17 ; Roberts v. Newbold, Comb. 318. 
 
26 PARTIES TO THE SUBMISSION. 
 
 done by the infant, which he is legally incompetent to do, e. g. 
 the execution of a release, that may therefore be bad.^ 
 
 The guardian of a lunatic may submit to arbitration on 
 behalf of the lunatic.^ 
 
 But in England permission of the Court of Chancery must 
 be obtained by the committee of the lunatic, before a valid 
 submission can be made.^ Though where no committee has 
 been appointed it has been held that the wife can sue in the 
 name of her distracted husband, to recover debts owing to 
 him ; * and it might be an inference from this that she could 
 refer either the action or the demand, though the latter ques- 
 tion has never yet been passed upon.^ 
 
 But a guardian cannot, of course, enter into a submission 
 where his power over the subject-matter is not co-extensive 
 with the terms of the submission, and, consequently, with the 
 possible requirements of the award, e. g. where the conveyance 
 of real estate may be called for.^ 
 
 Husband and Wife — Married Women. — The questions, 1. 
 In what cases a married woman can bind herself by her own 
 sole submission ; and 2. To what extent a husband can bind 
 his wife by his sole submission concerning her property, rights 
 or interests, are not capable of easy solution by the light of 
 the few adjudicated cases. Though in view of the general 
 theory concerning submissions, it ought to be safe to lay down 
 the rule substantially as follows, to wit : The wife may bind 
 herself by her own sole submission in respect of any property 
 in regard to which she has the absolute power of disposal and 
 conveyance by her own independent and individual action ; but 
 she may not bind herself otherwise than in respect of such 
 
 1 Russell on Arb. 19 ; Knight u. Stone, W. Jones, 164 ; Stone v. Knight, 
 Latch, 207, Noy, 93. 
 
 2 Weston V. Stuart, 2 Fairf. (Me.) 326 ; Hutohins v. Johnson, 12 Conn. 876. 
 
 3 Russell on Arb. 32 ; Dane v. Viscountess Kirkwall, 8 C. & P. 679. 
 « Rock V. Slade, 7 Dowl. 22. 
 
 5 RusseU on Arb. 82. 
 
 6 Weston V. Stuart, 2 Eairf. (Me.) 826. See division, post, on " Subject-Matter 
 of Submissions." 
 
PARTIES TO THE SUBMISSION. 27 
 
 property. The husband may bind the wife to any undertaking, 
 provided that he has the power to carry out the possible terms 
 of the award without her joinder or acquiescence ; or provided 
 that the law would enforce such joinder or acquiescence, if it 
 were legally indispensable to the due performance of the 
 award.i The phraseology of these rules seems sufficiently 
 broad to include both the antiquated hardship inflicted upon 
 women by the old common law and the statutory liberality of 
 modern times. 
 
 By the general rule of the common law the sole submission 
 of a feme covert is void. For her husband was entitled to her 
 chattels, real and personal, and to her clioses in action; nor 
 could she alien her real estate by her own sole deed.^ But 
 even at common law a married woman could submit concern- 
 ing her separate property ; and in New York her disability to 
 bind herself by a submission has been removed by statute.^ 
 Nor does it seem reasonable to doubt that the enactments in 
 the various States, going the length of giving to a married 
 woman the sole ownership, control, and power of conveyance in 
 respect of her personalty, and often the power to conduct busi- 
 ness on her own sole and separate behoof, would be construed 
 as, by necessary implication, giving her the appurtenant power 
 to enter into a submission in relation to such personalty or 
 business.* Such is the rule in equity in England.^ But since 
 a wife cannot convey her real estate without the joinder of her 
 husband in the deed, her sole submission of a dispute which 
 might result in her being ordered to make a conveyance, would 
 
 1 Fort V. Battle, 13 Sm. & Marsh. 133 ; Smith v. Ward, Styles, 351 ; Bac. Ab. 
 Arb. C. 
 
 2 Russell on Arb. 15 ; Palmer v. Davis, 28 N. Y. 242 ; Rumsey v. Leek, 5 
 Wend. 20 ; Kyd on Awards, 35 ; Miller v. Moore, 7 Serg. & R. 164. (In this last 
 case the submission concerned real estate.) 
 
 3 Palmer TJ. Davis, 28 N. Y. 242. 
 
 " By the custom of London a feme covert may carry on business as a sole 
 trader, and " it Is apprehended," says Russell, that " she might refer disputes 
 respecting her business to arbitration." Russell on Arb. 16. 
 
 ' Russell on Arb. 16. 
 
28 PARTIES TO THE SUBMISSION. 
 
 properly be held void on the general principle that her power 
 was not co-extensive with her undertaking. But if she join 
 with her husband in a submission of this description, the 
 agreement will be binding.^ 
 
 But even in England and under the rigidity of the ancient 
 doctrine of the common law, some exceptions were allowed to 
 establish themselves. Thus where parties had knowingly and 
 voluntarily entered into submission with a married woman, if 
 the award were in her favor they were held bound by it.^ And 
 it was held that the wife of one civiliter mortuus, as by exile, 
 banishment, &c.^ or of a transported felon,* might be a party 
 to a submission. 
 
 A statute authorizing a married woman " to manage " her 
 own property, real and pers#nal, " as if sole and without the 
 joinder or assent of her husband," has been held to authorize 
 her to enter by herself into a submission as to the amount of 
 damages to which she is entitled by reason of a flowage of 
 lands held by her as her separate property.^ 
 
 In a submission, A. and B., his wife, were parties of the one 
 part, and C. was party of the other part. The submission was 
 of " all demands between said parties, or all demands which 
 either of them has against the other." A. presented no claims 
 in his own individual right. The award was that C. owed 
 nothing to A. and B., " or either of them . . . upon any 
 demands which they or either of them have against " C. It 
 was held to be within the scope of the arbitrators' powers.^ 
 
 Where the submission is by the husband on behalf of the 
 
 1 Weston V. Stuart, 2 Fairf. (Me.) 326 ; an old case. Emery v. Wase, 5 Ves. 
 Jr. 846. 
 
 2 Palmer i>. Davis, 28 N. Y. 242; In re Warner, 2 Dowl. & L. 148 ; Russell on 
 Arb. 17. 
 
 ' RueseU on Arb. 16 ; Countess of Portland v. Prodgers, 2 Vem. 104. 
 
 * Russell on Arb. 16 ; Newsome v. Bowyer, 3 P. Wms. 37 ; Sparrow v. Car- 
 ruthers, cited in Marsh v. Hutchinson, 2 Bos. & P. 226, and in Lean v. Schutz, 
 Wm. Bl. 1197 ; Carrol v. Blencow, 4 Esp. 27. 
 
 6 Duren v. Getchell, 55 Me. 241. 
 
 ' French v. Richardson, 5 Cush. 450. 
 
PARTIES TO THE SUBMISSION. 29 
 
 wife, it has been said that it is a material point if the subject- 
 matter be a demand in favor of the wife, and there be no claim 
 against her, so that the award cannot require her to do any 
 thing.i * 
 
 Since at common law a /ewe covert was generally incom- 
 petent to submit, it has been held that the burden of proving 
 an exception, and that she is able to submit in any particular 
 case, will be upon the party seeking to uphold the submission.^ 
 But, on the other hand, it has been held that where a husband 
 submits in behalf of his wife, the presumption will be in favor 
 of the validity of the submission ; and since there are some 
 matters which he might properly submit on her behalf, it must 
 be specifically objected and shown that the matters in question 
 do not fall within this description.^ 
 
 It seems that in England divorce suits may be the subject of 
 a submission.* 
 
 If the parties really and those nominally in interest be dif- 
 ferent, the former should properly join in the submission. 
 Thus where an administrator's official bond, running formally 
 to the judge of probate, but in fact for the benefit of other 
 persons interested in the estate, was sued upon in the name of 
 the judge, it was held that he could not agree to a reference. 
 But after the penalty of the bond had been declared forfeited, 
 the indorsers of the writ, being the real parties in interest, 
 might submit, to determine for what sum execution should 
 issue for their benefit.^ So where there were several parties 
 plaintiff in an ejectment suit, but all save one of them were 
 mere nominal parties, a submission entered into by that one 
 who was the sole party really interested was upheld.^ 
 
 1 Per Denlo, J., in Palmer v. Davis, 28 N. Y. 242. 
 
 2 Rumsey «. Leek, 5 Wend. 20. 
 
 3 MoComb V. Turner, 14 Sm. & M. 119. 
 
 * Russell on Arb. 17 ; Bateman v. Olivia, Countess of Ross, 1 Dow, 235 ; Soil- 
 leux V. Herbst, 2 Bos. & P. 444. 
 
 5 Thomas v. Leach, 2 Mass. 152 ; Paine v. Ball, 3 id. 235. 
 
 * Griggs V. Seeley, 8 Ind. 264. 
 
30 PARTIES TO THE SUBMISSION. 
 
 The United States District Attorney, acting under the instruc- 
 tion of the Secretary of "War and Solicitor of the Treasury, 
 agreed, on behalf of the United States, to refer a question con- 
 cerning fiowage : Held, that he had no authority to do so ; that 
 an Act of Congress is necessary to enable any officer to submit 
 controversies concerning rights of the United States.^ 
 
 Assignees in Bankruptcy. — At common law, assignees in 
 bankruptcy seem to stand upon substantially the same footing, 
 as regards their power to submit on behalf of the estate, with 
 executors and administrators. They may enter into such an 
 agreement, and thareby bind themselves in their official capacity 
 and the estate. But unless statutory provisions intervene to 
 protect them, it seems that they might be held liable by the 
 creditors to make up any loss to the estate arising from an 
 award less favorable than the result which could have been 
 obtained by the regular process of litigation.^ Also, unless they 
 protest against such a construction, their submission may be 
 taken as an admission of assets ; ^ or, perhaps, of the question 
 whether or not there are assets, so that the award might be so 
 phrased as to bind them personally. 
 
 Bankrupts. — Submission entered into by the bankrupt may 
 be binding against himself, so that he may become personally 
 liable for costs, if they be awarded against him.* But as 
 towards his assignees or the estate, his submission is void.^ 
 But if the assignees are notified of the pendency of the refer- 
 ence, appear before the arbitrators and adopt the proceedings, 
 they will be bound by the award.^ 
 
 1 United States v. Ames, 1 Wood. & Min. 76. 
 
 2 Russell on Arb. 33, 34 ; 3 Parsons on Contr. 471. 
 
 3 Russell on Arb. 33 ; 3 Parsons on Contr. 471 ; Robson v. , 2 Rose, 50. 
 
 See ante, " Executors and Administrators." 
 
 < Milnes v. Robertson, 24 L. J. C. P. 29. 
 
 5 3 Parsons on Contr. 471 ; Russell on Arb. 83 ; Whiteacre v. Pawlin, 2 Vern. 
 229 ; , Ex parte Kemshead, 1 Rose, 149 ; Marsh v. Wood, 9 Barn. & C. 659 ; 
 Snook V. Hellyer, 2 Chitty, 43 ; Andrews v. Palmer, 4 B. & Aid. 250. 
 
 s Russell on Arb. 34 ; Dod v. Herring, 3 Sim. 143 ; s. c. on App. 1 Russ. & 
 M. 153 ; Ex parte Michie, 1 Mont., D. & De Gex, 181 ; s. c. 9 L. J. Bank. 28. 
 
PARTIES TO THE SUBMISSION. 31 
 
 Persons having a Joint Interest. — Where several parties are 
 jointly interested in the same matter, one can bind the other 
 by a submissioa only by virtue of a special authority.^ For 
 example, where there are numerous distributees of the estate 
 of one deceased, some of them may agree to a submission, and 
 their rights and interests may be conclusively determined as 
 against themselves, by the award, though the rights and inter- 
 ests of the non-signataries cannot be affected.-^ 
 
 Persons bound in Severalty. — Where there are two or more 
 parties of either part, even though they do not expressly declare 
 that they submit severally, it will be assumed that they do. 
 Consequently an award may be made in respect of questions 
 arising between any one of them singly, and all or any one of 
 the parties of the other part. Thus, if A. and B. of the one 
 part agree to submit matters in controversy between them- 
 selves, and C. and D. of the other part, matters between A. 
 singly and C. and D. jointly, between A. and C, between 
 
 A. and D., between B. singly, and C. and D. jointly, between 
 
 B. and C, between B. and D., are all included equally with 
 matters between A. and B. jointly and C. and D. jointly.^ Some 
 of the cases even go so far as to say that controversies between 
 parties of the same part, e.^. between A. and B. or between C. 
 and D., may be passed upon ; but this has been denied, and 
 probably would not be held to be law at the present day.* 
 
 Where the parties to the submission bind themselves sever- 
 ally, the agreement will hold good as against such of them as 
 were able to contract and did so with the proper formalities, 
 though as against others it may be void or voidable by reason 
 
 1 Eastman v. Burleigh, 2 N. H. 485. 
 
 2 Smith V. Smith, 4 Band. 95 ; Boyd's Heirs v. Magruder's Heirs, 2 Robins. 
 (Va.) 761. 
 
 3 Eidler v. Cooper, 19 Wend. 289 ; Baspole's Ca. 8 Coke, 193 ; Chapman v. 
 Dalton, 1 Plowd. 289 ; Athelstone v. Moon, Comyn, 547 ; Joyce v. Haines, 
 Hard. 399 ; Libtral v. Field, 1 Keh. 885 ; Cutter v. Whittemore, 10 Mass. 442. 
 
 < Carter v. Carter, 1 Vern. 259 ; 1 Eq. Ca. Ab. 49 ; also 2 Rep. 289, referred 
 to in Chapman v. Dalton, 1 Plowd. 289, but denied to be good law by Brook in 
 his abridgment of the case. 
 
32 PASTIES TO THE SUBMISSION. 
 
 of an incapacity to contract or an informality in execution.^ 
 An arbitration bond bound A., B., and 0. of the one part, 
 jointly and severally, to and with D. of the other part; it was 
 executed only by A. and B,, who, after award made, undertook 
 to urge that the bond was invalid by reason of its non-execution 
 by C. But the court held otherwise, in the absence of any 
 testimony going to show that after the signatures of A. and B. 
 had been affixed to it, it had been delivered only as an escrow. 
 For, it was said, A. and B. must be considered as intending to 
 bind themselves for C, and at any rate it was no hardship 
 upon them, for even had C. signed, the whole sum could have 
 been recovered from either one of them singly.^ 
 
 But if parties undertake to submit on behalf of themselves 
 and of others for whom they have no authority to submit, the 
 agreement will be binding on them, and a breach of it, though 
 committed by the others, will be a breach by them so far as 
 to make them liable on their bond or agreement.^ 
 
 A. and B. had disputes with their brother C.,' growing out of 
 a devise of lands by their father. They agreed to submit, and 
 A. and B. executed each his several bond with C. It was held 
 that this was " quasi but one submission by several bonds," 
 and would support a single award to the effect that A. and B. 
 should pay a certain sum to C, and that 0. should release to 
 A. and B. 
 
 But, on the other hand, a submission will be separated in 
 order to uphold it between two parties who sign, though a third 
 party named in the body of the instrument and intended to be 
 affected by it does not sign. Thus there were two suits pend- 
 ing, the one between A. and B., the other between A., of the 
 one part, and B. and C. of the other. An agreement for the 
 
 1 Dickey v. Sleeper, 13 Mass. 244 ; Bean i/. Newbury, 1 Lev. 139 ; Comyn's 
 Dig. Arb. D. 2. 
 
 2 Cutter V. Whittfemore, 10 Mass. 442. To the same effect is also Keith v. 
 Gore, 1 J. J. Marsh. (Ky.) 8. 
 
 ' Elliott V. Davis, 2 Bos. & P. 338 ; Mudy v. Osam, Litt. 30. 
 * Hayes v. Hayes, Cro. Car. 433. 
 
PASTIES TO THE SUBMISSION. 33 
 
 submission of both cases was drawn up and executed only by 
 A. and B. But it was held good as between them, at least so 
 far as concerned the case to which they alone were parties.^ 
 But where the accession of all parties to the submission is 
 the consideration to each to execute it, it is not valid as to 
 some who have signed until all have signed, even though it 
 refers all matters in difference between them or any two of 
 them.^ 
 
 To a bill in equity there were nineteen respondents, of 
 whom three neglected to appear ; three appeared, but took 
 no further steps ; thirteen appeared, filed answers, and sub- 
 sequently agreed to submit. Held, that they were bound 
 by their undertaking, since they had entered into it with 
 a knowledge of the non-concurrence of some of their co- 
 respondents.^ 
 
 Parties to a lis pendens. — If a submission be entered into in 
 a pending cause, or if a reference is undertaken to be made 
 by agreement of parties, all persons who are parties of re- 
 cord to the suit must unite, equally whether tliey are mere 
 nominal parties or really interested.* Strangers to the re- 
 cord may, however, be added as parties to the submission or 
 reference, and will be bound by the award.^ And the court 
 may, under some circumstances, exercise the same powers 
 towards such outside parties at subsequent stages of the pro- 
 ceedings as it is entitled to exercise over the parties to the 
 action, for the purpose of enforcing compliance with the 
 agreement.^ 
 
 Duress. — The fact that, at the time of entering into a sub- 
 mission, a party is under arrest under a process sued out in 
 the same matter does not constitute such duress as to avoid 
 
 1 Summerville «. Painter, 44 Penn. St. 110. 
 
 2 Antram v. Chase, 15 East, 209. 
 " Smith V. "Virgin, 33 Maine, 148. 
 * Owen V. Hurd, 2 Term, 648. 
 
 5 Hawkins v. Benton, 2 Dowl. & Low. 465 ; and 8 Q. B. 479. 
 
 6 Williams v. Lewis, 3 Jur. N. s. 1324 ; 7 El. & Bl. 929. 
 
 8 
 
34 PARTIES TO THE SUBMISSION. 
 
 his agreement for an arbitration. This constitutes neither 
 oppression nor undue advantage ; and the arrest, " of itself, 
 could not have been enough to avoid his acts, even had he 
 made a final settlement." ^ 
 
 1 Shephard v. "Watrous, 3 Caines, 166. 
 
CHAPTER II. 
 
 THE SUBMISSION. 
 
 Submission. 
 
 What constitutes a basis for a submission. 
 
 Purely ministerial acts are not such basis ; e. g. appraisals, Taluations, &c. 
 
 Other cognate cases. 
 
 Matters of recollection. 
 
 Contracts to submit, in pais and statutory. 
 
 Submissions intended to be statutory, but defectively or carelessly framed. 
 
 Superfluous formality. 
 
 Upholding submissions according to apparent intent. 
 
 The presumption is always favorable to validity. 
 
 Eeference by rule of court and consent of parties. 
 
 Manner of submitting, orally or by writing, &c. 
 
 Formalities and characteristics of the submission. 
 
 What may be the subject-matter of a submission. 
 
 1. Disputes of a civil nature only. 
 
 2. Dower. 
 
 3. Owelty. 
 
 4. Ejectment. 
 
 5. One item in account. 
 
 6. Actions on penal statutes. 
 
 7. Questions of pure law. 
 
 8. Eegulation of future rights. 
 Submissions concerning real estate. 
 
 boimdary lines. 
 
 nicely construed. 
 Construction of statutes concerning submissions. 
 Rules for construing submissions. 
 Construction of uncertain or indefinite submission. 
 Written submission is invariable and final. 
 Submission will not be stretched by forced construction. 
 Sundry specific cases of construction. 
 General submission. 
 Conditional submissions. 
 
 When a reference will be construed to have become changed into a submission. 
 Submission of a " cause." 
 
 1. Its extent and operation on the pleadings. 
 
 2. Its operation on previous errors. 
 
 May be made to include other matters. 
 Submission of separate actions. 
 
36 THE SUBMISSION. 
 
 Effect of a submission in a pending cause upon the status of the cause. 
 
 upon the right of action. 
 Making submission a rule of court, and agreeing for entry of judgment on 
 
 award. 
 References in crpss-actions. 
 Alteration of the submission. 
 
 Extension of time for award, named in submission, by new agreement. 
 Substitution of new arbitrator or referee. 
 Enlargement of rule of reference . 
 Suit upon an altered agreement to submit. 
 Correction of errors in submission. 
 How long the submission will remain in force. 
 Stipulations in submission to waive appeal from award. 
 " to abide by " an award. 
 
 Submission is the technical designation of that contract by 
 which parties agree to refer matters which are in dispute, dif- 
 ference, or doubt between them, to be finally decided by the 
 award of judges named by the parties and called arbitrators. 
 
 ■What constitutes a Basis for a Submission. — To furnish a suf- 
 ficient basis for entering into a submission, no legal cause of 
 action in favor of either party need exist. That there is a 
 dispute, controversy, or honest difference of opinion between 
 them concerning any subject in which they are both interested 
 is enough.^ Nor indeed is it necessary that they should have 
 come to the actual point of a dispute ; for a matter simply in 
 doubt may be submitted.^ 
 
 Purely Ministerial Acts are not such Basis ; e. g. Appraisals, 
 Valuations, Sac. — This last ruling, however, demands some 
 explanation or qualification. It is only matters inherently 
 doubtful that can constitute the material for a submission. 
 Matters which are doubtful, solely because no pains have been 
 taken to remove the doubt, are not proper to be submitted. 
 There must be, at least, a conceivable possibility of a difference 
 of opinion between the parties. The decision must be arrived 
 at by some use of discretion, by some exercise of the judicial 
 faculty. Thus the sum of a column of figures before they have 
 
 1 Mayo V. Gardner, 4 Jones, Law, 359 ; Findley v. Ray, 5 id. 125 ; Keson v. 
 Barclay, 2 Penn. 531. 
 
 2 Brown v. Wheeler, 17 Conn. 345; but see post, p. 40. 
 
THE SUBMISSION. 37 
 
 been added is, in a certain sense of the phrase, in doubt. The 
 number of square feet in a given surface is likewise in doubt 
 till the measurement and calculation has been made. But a 
 doubt of this nature is not of« the sort which can be submitted 
 to arbitration. It is more accurately to be described as a want 
 of hnowledge than as a doubt. It is an uncertainty of that 
 description that there is no intrinsic obstacle to a solution, no 
 room for intelligent men to dispute concerning the result 
 obtained from the application of established processes of calcu- 
 lation to known and unquestioned facts. Therefore there is 
 no occasion for calling into play the powers of a judge or arbi- 
 trator, since there is nothing to be adjudicated upon. The 
 labor to be performed is purely ministerial in character. 
 
 Accordingly where an accountant was to make up the sum 
 shown to be due by certain books of account, though it was 
 stipulated that his finding should be final, it was held that 
 there was no arbitration, because there was no controversy ; 
 there was to be only examination and calculation. ^ 
 
 Agreement for delivery of logs by A. to B., at a price named 
 per cord, " the timber to be measured by " a third party. The 
 court said that they did not consider the measurer as occu- 
 pying the position of a referee, in the ordinary sense of that 
 word. " It is true he must, to a certain extent, have exercised 
 his judgment, for it is difficult to suppose a case where that 
 must not be done. But his duty was ministerial rather than 
 judicial in its character. He was to measure a quantity of 
 logs as firewood is usually measured, and to hold that he 
 was invested with the powers of an arbitrator would be to 
 give him a character which, we think, the parties never in- 
 tended." « 
 
 In like manner the not unfrequent stipulation that an engi- 
 neer shall estimate the amount of work done, and compute the 
 
 1 Kelly V. Crawford, 5 WaU. (U. S.) 785 ; Carr v. Smith, 5 Q. B. 128 ; Good- 
 year V. Simpson, 15 Mee. & W. 16. 
 
 2 Hale V. Handy, 26 N. H. 206. 
 
38 THE SUBMISSION. 
 
 price according to the rates named in the contract for its per- 
 formance, has been declared not to be properly a submission.^ 
 The task is merely ministerial, calling for no exercise of dis- 
 cretion. A similar reason was asserted as forming part, though 
 a part only, of the foundation for the decision in Thayer v. 
 Bacon.2 Owners of flats, desirous of having their respective 
 lines run so that each might know his boundary, agreed, sev- 
 erally, to employ at their joint expense a surveyor to run the 
 lines and set up marks. The court held that the parties were 
 not conclusively bound by the lines so run, for that the service 
 expected from the surveyor was simply ministerial. But the 
 more essential point in this cause seems to have been that 
 there was no agreement to abide by his lines, nor any explicit 
 submission to arbitration from which such an agreement could 
 be implied. 
 
 Other authorities accord to the decision of the measurer a 
 greater force, and make it equivalent to an award, in one 
 respect at least ; for they hold it to be binding upon the parties 
 and final, though they construe the extent of his authority 
 very strictly. Thus if a third person is agreed upon to meas- 
 ure the amount of certain work done, the law in Illinois is 
 well settled to be that his measurement will, in the absence of 
 fraud, be conclusive upon the parties. He must necessarily 
 refer to the contract to see how he is to make the measurement, 
 and his estimate, fairly made in accordance with the manner 
 pointed out in the contract, will be binding.'* But his construc- 
 tion of the contract itself, in respect of its provisions concern- 
 ing the manner of measuring the work would not be conclusive 
 upon the parties, for that is matter of law, and is not embraced 
 within his authority.* 
 
 A decision, resembling those in Illinois in some parts, has 
 
 , 1 Condon v. Southside R.R. Co., 14 Gratt. 302 ; Baltimore & Ohio R.E. Co. 
 V. Polly, ib. 447. 
 
 2 3 AEen, 163. 
 
 3 McAvoy V. Long, 13 111. 147 ; Canal Trustees v. Lynch, 5 Gilm. 526. 
 * McAvoy V. Long, 13 111. 147. 
 
THE SUBMISSION. 39 
 
 been rendered also in the State of Maine, in the following 
 case : — 
 
 A contract provided that " all the work and materials should 
 he inspected by a third person, and made to correspond with 
 the decision of such person as may be selected, in all respects, 
 whose decision shall be final between the parties." The court 
 said that it was only the work and materials which were to be 
 inspected. There was no intention exhibited to give to the 
 third person selected any power to determine other difierences 
 than those which related to the workmanship, and to the fitness 
 and quality of the materials purposed to be used. But inas- 
 much as a question had arisen whether or not certain labor and 
 materials were required by the written contract to be furnished, 
 and in order to answer this question the legal construction of 
 the contract must be passed upon it, it was declared obvious 
 that this task was beyond the authority of the referee, and must 
 be determined not by him but by a court of law.-^ 
 
 A decision, apparently at variance with the ruling in Brown 
 V. Wheeler (^ante, p. 36), and less easily explainable upon any 
 general theory or doctrine, is furnished by a case in the Maine 
 reports. The parties disputant appointed a person " to see 
 whether " certain work had been done according to the require- 
 ments of a contract. It was held that there was no arbitration, 
 for that the agreement did not constitute a submission.- 
 
 A somewhat different class of cases is presented by an agree- 
 ment for appraisal, in which the determination of the price or 
 value of an article is to be declared by a third party, not in 
 accordance with any immutable established standard, but by 
 the exercise of discretion or opinion. Such agreements have 
 sometimes been declared not to be submissions to an arbitra- 
 tor.3 And though these American authorities are entitled to 
 no very great weight, yet there are several English cases to 
 
 1 Mason v. Bridge, 14 Maine, 468. 
 
 2 McKinney v. Page, 32 Maine, 513. 
 
 ' Garred v. Macey, 10 Missouri, 161 ; Curry v. Lackey, 35 id. 389. 
 
40 THE SUBMISSION. 
 
 the like effect, concerning valuations and sums due to con- 
 tractors for work done.^ Mr. Russell, in citing these cases, 
 lays down their principle in the following language: — the 
 "valuer, &c., " is not an arbitrator, in the proper sense, unless 
 there have been differences between the parties on the point 
 previous to their submitting it to his decision. A decision 
 which precludes differences from arising, instead of settling 
 them after they have arisen, is for many purposes not an 
 award." ^ 
 
 In Gan v. Gomez,^ Senator Seward, delivering his opinion, 
 says : " A distinction is justly made between the reference of 
 a collateral or incidental matter of appraisement or calculation, 
 the decision of which is conclusive of nothing as to the rights 
 of the parties except the mere appraisal or statement, and a 
 submission of matters in controversy for the purpose of final 
 determination. A reference of a collateral fact, or the submis- 
 sion of a particular question forming only a link in the chain 
 of evidence, is not calculated to put an end to the controversy; 
 it barely substitutes the judgment of the referee in the place of 
 evidence on that incidental or collateral matter, leaving the 
 controversy open. Such a decision is not an award, and a 
 reference of such a matter is not a submission to arbitration." 
 
 But these adjudications have not gone unquestioned. A 
 
 contrary position has been laid down by some tribunals, which 
 
 ft 
 are certainly of higher authority than are the courts of Mis- 
 souri. Thus in New Hampshire, in an elaborate opinion,* Mr. 
 Justice Bell says : " Though there are cases where it has been 
 
 ' Leeds v. Burrows, 12 East, 1; Collins v. Collins, 28 L. J. Chy. 184; 26 
 Beav. 306 ; Lee u. Hemingway, 3 Nev. & M. 860 ; s. c. 3 L. J. K. fe. 124 ; 
 Jenkins u. Betham, 24 L. J. C. P. 94 ; Scott v. The Liverpool Corporation, 28 
 L. J. Chy. 230. 
 
 2 Russell on Arb. 3d ed. p. 43, pt. I. c. iii. § 1. 
 
 » 9 "Wend. 649. 
 
 * Smith V. Boston, Concord & Montreal R.R. Co., 36 N. H. 458. See also 
 Leonard v. House, 15 Ga. 473, where a contract to build a bridge at such price 
 as it should be "reasonably worth, or the assessed value of the same by J. G. or 
 A. B.," was declared to be a " sort of parol submission to arbitrament and 
 award." 
 
\ THE SUBMISSION. 41 
 
 \ 
 
 \ held that a reference to a third person, to measure materials 
 \ or work, to judge of their quality, to fix a price, or to make an 
 appraisal, or the like, is not a submission to arbitration, yet it 
 seems to us that every agreement of parties, by which they bind 
 themselves to abide by the decision of an indifferent third per- 
 son, as to any matter affecting their rights, is a submission to 
 arbitration, and the decision of such party upon the matter 
 thus referred to him is an award. We do not perceive that 
 any difference in the nature or importance of the question 
 submitted, or of the evidence upon which it must be decided, 
 or in the means to be used to arrive at a correct result, can 
 affect in this respect the nature of the proceeding. If the 
 parties have a difference or dispute, however trivial, or upon a 
 matter however simple, and in whatever mode the truth is to 
 be ascertained, and they select an indifferent third person to 
 be the judge between them, and bind themselves to abide his 
 decision, that seems to us a submission to arbitration, and the 
 decision to be an award." So in New York, in the case of 
 Underbill v. Van Cortlandt,i where there was an agreement in 
 a lease for an appraisal to be made at the end of the term. In 
 the Court of Chancery, the person designated to make the 
 appraisal was spoken of as an arbitrator, and his decision was 
 called an award, without any apparent discussion or doubt 
 concerning the propriety of the phraseology. But later, in 
 the Court of Errors, in the same case,^ the point was directly 
 met by Spencer, C. J., who said : " Notwithstanding the ingen- 
 ious distinctions made between an appraisement, under an 
 agreement entered into many years before the appraisement 
 takes place, and an ordinary submission to arbitration, I con- 
 fess that I do not feel the force of those distinctions. It makes 
 no difference when the contract was made. It took its effect 
 from the mutual agreement as to the persons to become the 
 appraisers ; and by wliatever name they were called, they were 
 
 1 2 Johns. Chy. 339. 
 
 2 17 Johns. 405. 
 
42 THE SUBMISSION. 
 
 substantially arbitrators, with plenary power to decide upon 
 the subject in difference between the parties." ^ 
 
 A submission requiring the value of work to be determined 
 " according to the usual prices," was construed in New York 
 as merely prescribing the rule of valuation.^ The question 
 was not, whether or not the proceedings constituted an arbitra- 
 tion. It was not denied that they did so. But the rule of 
 construction is yaluable, and has an obvious bearing upon the 
 question now under discussion. 
 
 A contract to take certain real estate in payment of a debt 
 at a valuation to be determined by certain appraisers, is not 
 technically a submission to arbitration ; though it may be 
 revoked in the same manner in which a submission might be.* 
 
 Other Cognate Cases. — We find also an English case,* to the 
 like effect. The action was upon a bond conditioned for A. 
 M.'s due discharge of his duties as clerk, to be ascertained by 
 inspection of his accounts by J. S., and the amount so ascer- 
 tained to be liquidated damages. Parke, J., held that the 
 determination was an award ; and said the case was to be 
 distinguished from that of Leeds v. Burrows,^ where the valua- 
 tion of property, to settle an account between parties, was held 
 not to require a stamp as an award. ^ So a confession of judg- 
 ment for " damages, to the amount of one shilling besides their 
 costs, to be taxed by the prothonotary as he shall think the 
 plaintiffs entitled," is a submission to the award of the pro- 
 thonotary of the amount of costs, and his decision will be final, 
 and not reviewed by the court.^ 
 
 1 See also Lauman v. Young, 31 Penn. St. 306, where such an agreement is 
 called a " prospective submission." 
 
 2 Efner v. Shaw, 2 Wend. 567. 
 
 s Rochester v. Wliitehouse, 15 N. H. 468. 
 
 4 -Jebb V. M'Kiernan, Moody & Malk. 340. 
 
 6 12 East, 1, note. 
 
 6 The decision of such a referee has been held conclusive. Oakes v. Moore, 
 24 Me. (11 Shepl.) 214 ; Branscome v. Eowclifif; 6 C. B. 523. In the latter case 
 the referee was spoken of as the " so-called arbitrator." 
 
 ' Elvin V. Drummond, 1 Moore & Pa. 88 ; 4 Bing. 415. 
 
THE SUBMISSION. 43 
 
 Matters of Recollection. — Where the dispute is as to the 
 occurrence or non-occurrence of a fact in the past time, an 
 appeal to the recollection of a person is not to be confounded 
 with a submission to him.^ Though an agreement to accept 
 his decision might be binding, as an agreement to abide by the 
 oath of a third party has been held binding,^ yet no undertaking 
 of this description is properly a submission. 
 
 Contracts to submit, in pais and Statutory. — The contract 
 of submission may be framed either by virtue of the common 
 law, or under the provisions of statutes. The existence of 
 statutes establishing forms and methods of arbitration has 
 been generally held not to abrogate or modify the right of 
 submission according to the common law. The two systems 
 are commonly regarded as collateral and independent ; they 
 subsist beside each other, but without interference with each 
 other ; and the disputants may choose and follow which they 
 will.3 
 
 But one important adjudication presents an exception to this 
 rule. The statute " on arbitrations," in the New York Revised 
 Statutes, which in many sections, and especially in the intro- 
 ductory one, is general in its terms, has been held to be 
 " designed and intended to regulate and control, by uniform 
 and definite rules, all arbitrations upon written submissions in 
 this State." This, therefore, apparently amounts to an abroga- 
 tion of the right to submit by writing, and to be governed in 
 the arbitration following thereupon, by the rules of the common 
 law. The court say : " There are several cases in the reports 
 
 1 Williams v. "Wood, .1 Dev. 82. 
 
 2 Delesline v. Greenland, 1 Day, 458. 
 
 3 Wells V. Lain, 15 Wend. 99; Howard v. Sexton, 4 Comst. 157; Logsdon v. 
 Roberts' Bx'rs, 3 Monr. 255 ; Overly's Executors v. Overly's Derisees, 1 Mete. 
 (Ky.) 117; Winne v. Elderkin, 1 Chandl. 219; Byrd v. Odem, 9 Ala. 755; 
 Evans v. McKinsey, Litt. Sel. Ca. 262; Diedrick v. Richley, 2 Hill, 271, note; 
 Lamar v. Nicholson, 7 Porter, 158 ; Conger v. Dean, 3 Clarke (Iowa), 463 ; Fink 
 0. Eink, 8 id. 313; Titus v. Scantling, 4 Blackf. 89; Brown v. Kincaid, Wright, 
 37 ; Carson v. Earlywine, 14 Ind. 256 ; Miller v. Goodwin, 29 id. 46 ; Burneide 
 V. Whitney, 21 N. Y. 148. 
 
44 THE SUBMISSION. 
 
 in which it has been assumed by the court that the general 
 provisions of the statute were applicable to and controlled the 
 proceedings before arbitrators generally, when acting under 
 written submissions." " Nothing to the contrary of this has 
 been anywhere decided." For Wells v. Lain (supra) related 
 only to parol submissions ; and Diedrick v. Richley (supra) 
 was before the Revised Statutes were in force. ^ But the case 
 of Burnside v. Whitney ^ certainly does not seem to be quite 
 in harmony with Mr. Justice Johnson's views. 
 
 Submissions intended to be Statutory, but defectively or care- 
 lessly framed. — It is laid down as a general rule that where 
 parties undertake to enter into a submission under a statute, 
 they must follow strictly the statutory requirements. Most 
 statutes provide for entry of judgment on the award, and the 
 jurisdiction of the arbitrators to make an award on which judg- 
 ment can be entered is special, created entirely by the statute, 
 and sustainable only by compliance with the statute.^ In 
 Pennsylvania, however, a more liberal custom prevails, and 
 substantial compliance with the act has been held sufficient. 
 Thus where a submission did not in terms stipulate that it 
 should be made a rule of court, judgment was nevertheless 
 entered on the award, on the ground that the intention to this 
 effect would be presumed.* In New England, though the courts 
 are rigid, as aforesaid, in their abstract rule that the statutory 
 requirements must be strictly complied with, they have shown 
 some degree of liberality in construing precisely what those 
 requirements are. Thus, where the law required the submis- 
 sion to be signed and acknowledged by the parties, and two 
 copartners were parties of the one part, signature by both, but 
 
 1 Bulson V. Lohnes, 29 N. Y. 291. 
 
 2 21 N. Y. 148. 
 
 3 Abbott V. Dexter, 6 Cush. 108 ; Monosiet v. Post, 4 Mass. 532 ; Barnett v. 
 Peck, 6 Vt. 456 ; WiUingham u. Harrell, 36 Ala. 583 ; Halloran v. Bray, 29 
 Ga. 422. 
 
 * McAdams' Ex'rs v. Stillwell, 1 Harris, 90 ; Buckman v. Davis, 28 Penn. St. 
 211. 
 
THE SUBMISSION. 45 
 
 acknowledgment by only one, was held insufficient ; ^ but 
 signature and acknowledgment by one partner purporting to 
 be made for himself and his copartner, had been sustained in 
 an earlier case,^ and the court were careful to draw a distinc- 
 tion in order not to overrule it. The statute also required 
 a demand, " under the hand " of the pai-ty making it, to be 
 annexed to the submission. The court held that he need not 
 subscribe it, but if he had himself embodied his name in the 
 demand in his own handwriting, or had indorsed it on the 
 writ in the action in which the submission was made, it was a 
 sufficient compliance.^ So in Maine, the declaration in the 
 writ, and the indorsement thereon of the words " from the 
 office of A. and B." (plaintiff's attorneys), were declared a 
 sufficient specification of demand and signature ; and counsel 
 having agreed that for the sake of convenience in using it the 
 demand should not be annexed to the submission till the close 
 of the hearing, the informality was disregarded.* But when 
 the statute requires the annexation of the demand, it is indis- 
 pensable that some document capable of being construed as a 
 demand, and under the hand of the party, should appear,^ save 
 only in the case of a general submission of all demands between 
 the parties ; this is exceptional, and requires no attendant 
 specification.® But where the submission is only of all demands 
 arising after a certain day, the specification must be annexed.^ 
 
 Under a statute which said that where " all demands " were 
 submitted no specification need be appended, a submission of 
 " all demands on either part, except heirship," was held good 
 without any specification.^ 
 
 A rule requiring the prothonotary to determine the number 
 
 1 Abbott V. Dexter, 100 Mass. 108. 
 
 2 Skillings o. Coolidge, 14 Mass. 43. , 
 " Humphry v. Strong, 14 Mass. 262 ; Inman v. Wheeler, 1 Pick. 504. 
 
 < Harmon v. Jennings, 22 Maine, 240 ; Wood v. Holden, 45 id. 374. 
 
 5 Bullard v. Coolidge, 3 Mass. 324 ; Smith v. Kimball, 1 N. H. 72. 
 
 6 Barnett v. Peck, 6 Vt. 456. 
 
 1 Pierce v. Pierce, 30 Maine, 113. 
 8 KendaU v. Bates, 35 Maine, 857. 
 
4-6 THE SUBMISSION. 
 
 of arbitrators, was held to have been sufficiently complied with 
 where each party had respectively chosen one arbitrator and 
 the prothonotary had chosen a third.i 
 
 A statutory requirement that arbitrators shall seal their 
 award is merely directory. Their apparently accidental neglect 
 to seal it will not invalidate it.^ 
 
 A statutory requirement that all agreements in a pending 
 cause shall be in writing, will not, of necessity, totally avoid an 
 oral agreement to refer.^ 
 
 But all courts have been unanimous in refusing to sustain 
 submissions wherein any substantial deficiency existed. Thus 
 an unacknowledged submission, made under a statute requir- 
 ing acknowledgment, is void.* A seal, if required by statute, 
 has been held to be an indispensable formality .^ And a sub- 
 mission to one arbitrator, where the statute requires three, was 
 held to be bad.^ ' Though where the statute provided for the 
 choice of two arbitrators, and, on their failure to agree, for the 
 choice by them of an umpire, the selection of three, originally 
 made by the parties, to sit at the hearing, was held an imma- 
 terial variance.'^ 
 
 A submission, pursuing the statute and providing that it 
 may be made a rule of court, is a statutory submission ; ^ and 
 so it is if it expressly declare that it is intended to operate 
 under the statute, though it adds a waiver of the right of 
 appeal given by the statute ; for parties have a right to waive 
 the original rule and right of appeal without losing the other 
 privileges of the statute.^ So also they may waive the swear- 
 
 1 Withers v. Haines, 2 Barr, 435. 
 
 2 Price V. Kirby, 1 Ala. 184. 
 
 3 Wells V. Lain, 15 Wend. 99 ; and see Bulsom v. Lampman, 1 Kansas, 324 ; 
 contra, Smith v. Pollock, 2 Cal. 92 ; McClendon v. Kemp, 18 La. An. 162 ; Ea- 
 guet V. Carmouche, 5 id. 138. 
 
 < Pink V. Pink, 8 Clarke (Iowa), 313. 
 
 5 Hamilton v. Hamilton, 27 III. 158. 
 
 " Bowes V. Prench, 2 Pairf. (Me.) 182 ; Monosiet v. Post, 4 Mass. 532. 
 
 ' Porsley v. Galveston, Houston & Henderson R. K. Co., 16 Texas, 516. 
 
 8 Estep V. Larsh, 16 Ind. 82. 
 
 9 Wynn v. Bellas, 34 Penn. St. 160 
 
THE SUBMISSION. 47 
 
 ing of the arbitrator; the statutory requirement for such 
 swearing is only for the protection of the parties, and is not 
 imperative.! But where a submission becomes intrinsically 
 inconsistent, by professing an intention to be governed by the 
 rules of the statute, and at the same time, in some specific 
 particulars, asserting entirely contrary stipulations, the latter, 
 as being the distinctly expressed intention, will prevail.^ 
 
 In statutory submissions, especially if not made in a pending 
 cause, the particularity and technicality of pleading may be 
 dispensed with. The ground and extent of the demand must 
 be fully and clearly set forth ; but no more will be required.^ 
 Demands simply. naming an amount are insufficient.* 
 
 Superfluous Formality. — Where the Submission, though not 
 required by the statute to be under seal, has nevertheless been 
 signed under seal by an agent, it is not needful that the author- 
 ity of the agent should also be under seal.^ 
 
 Upholding Submissions according to Apparent Intent. — The 
 courts will always seek to uphold a su)3mission, in spite of a 
 defect in formality, according to the obvious intent of the parties.^ 
 Accordingly, where there are two different acts, under the one 
 of which it could be sustained, but under the other of which 
 it could not, it will be assumed to have been made under the 
 former, unless something appears in the instrument itself 
 clearly inconsistent with such an assumption. The parties 
 themselves having practically agreed to waive formalities, can- 
 not afterward seek to stand strictly upon them.'^ In a Michigan 
 case it is said that the courts will always seek to construe the 
 
 1 Howard v. Sexton, 1 Denio, 440; HiU v. Taylor, 15 Wis. 190. 
 
 2 South Carolina E.K. Co. v. Moore, 28 Ga. 398. 
 
 ' Houghton V. Houghton, 37 Me. 72 ; Tuskaloosa Bridge Co. v. Jemison, 33 
 Ala. 476 ; King u. Same, ih. 499 ; Barnett v. Peck, 6 Vt. 456. 
 
 i Hayes v. Bennett, 2 N. H. 422 ; Hill v. Page, 1 id. 190 ; Jones u. Hacker, 
 
 5 Mass. 264. 
 
 s "White V. Fox, 29 Conn. 570, 
 
 6 McAdams' Ex'rs v. StiUwell, 13 Penn. St. 90 ; Large w. Passmore, 5 Serg. 
 
 6 R. 51 ; Harris v. Hayes, 6 Binn. 422. 
 
 ' Kimmel v. Shank, 1 Serg. & R. 24; Okisonu. Plickinger, 1 Watts & S. 257 ; 
 Massey v. Thomas, 6 Binn. 333; Bemus v. Quiggle, 7 Watts, 863. 
 
48 THE SUBMISSION. 
 
 bond as a statutory or as a common-law bond, according to 
 the apparent intent of the parties. If it resembles a statutory 
 submission, but was evidently not meant as such, it will be 
 upheld as a common-law submission.^ Occasionally, .where it 
 has seemed to the court that they should thus best carry out 
 the intent of the parties, they have sustained a submission as 
 good at common law, though the purpose had either obviously 
 or apparently been to make it a statutory submission, but the 
 parties had failed to do so through some defect in compliance 
 with the requirements.^ 
 
 But in other cases the courts have refused to uphold defec- 
 tive statutory submissions as good common-Jaw submissions, 
 remarking that the parties should be held to their election,^ or re- 
 fusing to " substitute another and a very different contract from 
 that into which [the parties] entered." * In another case, tlie 
 statutory submission, had it only been properly made, would 
 have authorized the entry of judgment, and was obviously 
 designed to do so. The court refused to sustain it at common 
 law, for non constat that the parties would have agreed to 
 submit had they not anticipated the benefit of the judgment.^ 
 
 The abstract principle lies in the propriety of carrying out 
 the intent of the parties, and it may be a matter for the discre- 
 tion of the court in each case to determine how this will be bet- 
 ter done, whether by avoiding the invalid statutory submission 
 altogether, or by allowing it to be enforced as a common-law 
 submission. If the latter method would materially affect the 
 relative rights of the parties, it would be obviously improper 
 to adopt it. 
 
 The Presumption is always favorable to Validity. — The pre- 
 
 1 Clement v. Comstock, 2 Mich. 359. 
 
 2 French v. New, 20 Barb. 481; Tyler v. Dyer, 13 Maine, 41; Benjamin v. 
 Benjamin, 5 Watts & S. 562; Pink v. Fink, 8 Clarke (Iowa), 313. See also 
 Akely v. Akely, cited post in " When a Reference will be construed to have 
 become changed into a Submission." 
 
 ' Allen V. Chase, 3 Wis. 249. 
 
 i Deerfield v. Arms, 20 Pick. 480. 
 
 ' WiUiams v. Walton, 9 Cal. 142. 
 
THE SUBMISSION. 4'9 
 
 sumption is always in favor of the validity and regularity of 
 the would-be statutory submission as such. Thus, the statu- 
 tory requirement being that the parties should appear in person 
 or by attorney before a magistrate and there sign the submis- 
 sion and acknowledge it, the submission bore the simple sig- 
 nature of each party, but the acknowledgment of one of them 
 was stated to be made by attorney. The court said there was 
 nothing on the face of the papers to show that the name of the 
 party was not also signed by the attorney in the presence of 
 the magistrate, and the submission was upheld.^ 
 
 Reference by Rule of Court and Consent of Parties. — A refer- 
 ence by order of court in a pending cause is a statutory proceed- 
 ing.^ It differs from a submission, inasmuch as a submission, 
 even if enteired into under statutory provisions, is the volun- 
 tary private undertaking of the parties. But a submission, 
 stipulating for itself that it shall be made a rule or order of 
 court, and a reference entered into by the voluntary agreement 
 of both parties are so nearly the same thing that they are 
 usually treated as practically identical. Indeed, tlie language 
 of the courts in rendering their adjudications has nearly always 
 been so lax that the distinctions properly existing between the 
 various descriptions of reference and submission- have become 
 hopelessly confused. In England it is matter of course for a 
 judge to grant an order of court, referring a cause, upon the 
 written consent of the attorneys of both parties.^ 
 
 The mere fact that a suit is pending between the parties, 
 does not suffice to authorize the court to make their general 
 submission a rule of court, in the absence of any stipulation to 
 that effect.* But in Pennsylvania a simple reference to the 
 
 1 Wright V. Kaddin, 100 Mass. 319. 
 
 2 But in California, " in the anomalous condition of things," it was the cus- 
 tom of the profession to refer, though there was no statute in existence, and the 
 court said, that after the parties had voluntarily referred according to this cus- 
 tom, it was too late for one of them to claim that it was an arbitration and not 
 a reference, by reason of the non-existence of a statute. Gimter v. Sanchez, 
 1 Cal. 45. 
 
 » KusseU on Arb. 3d ed. p. 73. * Fox v. Eales, 2 Miles, 169. 
 
 i 
 
50 THE SUBMISSION. 
 
 pending action, embodied in the submission, without any- 
 express stipulation, will authorize the court to make it a rule.^ 
 
 Manner of Submitting : OraUy or by 'Writing, &c. — The submis- 
 sion is the agreement of the parties to refer. It is, therefore, 
 a contract, and will in general be governed by the law concern- 
 ing contracts. At common law it may be oral, by writing not 
 under seal, or by writing under seal.^ 
 
 Oral Submissions. — Generally an oral agreement will be 
 valid.3 It was even held in New York that though there was 
 a statutory requirement that all agreements made in any pend- 
 ing cause should be in writing, nevertheless an oral submission 
 would be good, though it could not rank as " a proceeding in 
 the cause." This ruling was based upon the ground that the 
 statute did not specifically declare that an agreement not in 
 writing should therefore be positively void.* But in Louisiana, 
 where the Code requires submissions to be in writing, verbal 
 submissions are declared void.^ 
 
 If the submission embodies undertakings, concerning which 
 it is competent for the parties to contract and bind themselves 
 only by writing, then of course an oral agreement will be void ; 
 and if only by writing under seal, then a parol agreement will 
 be void.^ Thus a parol submission of questions involving the 
 title to or any interest in real estate will be void, under the 
 Statute of Frauds.^ So also a parol agreement that arbitrators 
 
 1 McAdam v. Stilwell, 13 Penn. St. 90 ; Ford v. Keen, lb. 179. 
 
 2 Titus V. Scantling, 4 Blackf. 89 ; Carson v. Earlywine, 14 Ind. 256 ; Byrd 
 1). Odem, 9 Ala. 755 ; and see also the cases cited below in the further discussion 
 of this topic. 
 
 3 Winne v. Elderkin, 1 Chandler, (Wis.) 219; Russell on Arb. pt. I. c. iii. 
 § 2, p. 51. 
 
 * Wells V. Lain, 15 Wend. 99 ; Bulsom v. Lampman, 1 Kansas, 324 ; contra. 
 Smith V. Pollock, 2 Cal. 92. 
 
 6 McClendon v. Kemp, 18 La. An. 162; Raguet v. Carmouche, 5 id. 
 133. 
 
 6 Valentine v. Valentine, 2 Barb. Ch. 430, and see cases cited below. 
 
 1 Philbrick v. Preble, 18 Me. 255 ; Walters v. Morgan, 2 Cox Ch. 369 ; 
 McMuUen v. Mayo, 8 Sm. & M. 298 ; and see post, " Submissions concerning 
 Real Estate." 
 
THE SUBMISSION. 51 
 
 shall determine concerning the granting of a lease, is void 
 under the same statute.^ 
 
 If the dispute be as to the validity or effect of a sealed 
 instrument, it has been said that the submission must liiiewise 
 be under seal.^ 
 
 If a writing be necessary to pass the title to the thing in 
 controversy,^or to divest or convey the right in dispute, then 
 the submission must be in writing.^ 
 
 A written submission for the purpose of determining a 
 boundary line need not be under seal.^ And if, under an oral 
 submission concerning a boundary line, an award has been 
 made, and has been actually executed and fulfilled by the par- 
 ties, it will thereafter be valid and binding.^ So likewise if it 
 has been long acquiesced in.^ Such long acquiescence, how- 
 ever, is construed only as operating by way of evidence of the 
 agreement of the parties to accept and execute the award.' 
 And an oral submission and award, though they may fail to be 
 conclusive between the parties by reason of this technical 
 insufficiency, may yet be admissible in evidence at a trial of 
 the question before a jury.^ 
 
 A similar principle has been applied to a case of a submis- 
 sion concerning a specialty.. The instrument was a note 
 under seal ; and the question being simply whether or not it 
 had been paid, and therefore the case being wholly provable 
 by parol evidence, a verbal submission was held good.® 
 
 1 Walters v. Morgan, 2 Cox Ch. 369 ; French v. New, 20 Barb. 481. 
 
 2 Logsdon V. Roberts's Ex'rs, 3 Monr. 255. 
 
 3 French v. New, 20 Barb. 481 ; Evans v. M'Kinsey, Litt. Sel. Ca. 262 ; Mar- 
 tin V. Chapman, 1 Ala. 278 ; Logsdon v. Roberts's Ex'rs, 3 Monr. 255 ; Smith 
 «. Douglas, 16 111. 34. 
 
 * Stewart v. Cass, 16 Vt. 663. 
 
 5 Sawyer v. Fellows, 6 N. H. 107 ; Gray v. Berry, 9 id. 473 ;• Orr v. Hadley, 
 36 id. 575 ; Eaton v. Rice, 8 id. 378 ; Furber v. Chamberlain, 29 id. 405. 
 
 6 Gove V. Richardson, 4 Greenl. 327. 
 ' Byam v. Rohbins, 6 Allen, 63. 
 
 8 Byam v. Robbins, 6 Allen, 63; Whitney v. Holmes, 15 Mass. 152; Tolman 
 I). Sparhawk, 5 Mete. (Mass.) 476. 
 
 9 Shookey's Adm'r v. Glasford, 6 Dana, 9. 
 
52 THE SUBMISSION. 
 
 A verbal submission of a claim for dower has been allowed.^ 
 
 The rule was laid down by the older text-writers, and has 
 been asserted in some of the cases, that where matters, not in 
 themselves competent to be submitted by a parol submission, 
 have yet been so submitted in conjunction with other matters 
 which were of an uncertain nature, the submission would be 
 good as to both classes of subject-matter ; for the uncertainty 
 would pervade the whole.^ 
 
 Formalities and Characteristics of the Submission. — No for- 
 mality is requisite to the validity of the submission. Provided 
 it expresses clearly the intentions of the parties to submit and 
 to be bound by the award of the arbitrator, it will be bind- 
 ing.^ It may even be " contained in a clause quite collateral 
 to the main purpose of an agreement," * as for example in the 
 instruments recited in Jebb v. McKiernan, and Elvin v. Drum- 
 mond, previously discussed.^ 
 
 It has been said that where the submission is oral, it must 
 be proved that the parties mutually and concurrently agreed 
 to abide by the award ; and that in determining whether or 
 not such an agreement was made, it will be for the jury to iind 
 what words were actually used, and what meaning was attached 
 to them by the parties, as this may be gathered from the 
 attendant circumstances.^ But a contrary doctrine has been 
 asserted ; '' and the modern rule of general application must 
 probably be taken to be, that the agreement to submit suffi- 
 ciently implies an agreement to abide by the award.^ 
 
 1 Green v. Ford, 17 Ark. 586. 
 
 ' Kyd on Awards, 52, 53; French v. New, 20 Barb. 481; 2 Cowen & Hill's 
 Notes, 1025; Logsdon v. Roberts's Ex'rs, 3 Monr. 265. 
 
 s Brady v. Mayor of Brooklyn, 1 Barb. 584 ; Wilson v. Getty, 57 Penn. St. 
 266 ; M'Manus v. M'CuUoch, 6 Watts, 357. 
 
 * Russell on Arb. pt. I. o. iii. § 1, p. 42. 
 
 5 Ante, p. 42. 
 
 6 Copeland v. Hall, 29 Maine, 93 ; Houghton v. Houghton, 87 id. 72. 
 
 ' Valentine v. Valentine, 2 Barb. Ch. 430; Evans v. M'Kinsey, Litt. Sel. Ca. 
 
 m- ^ 
 
 ' Stewart v. Cass, 16 Vt. 663 ; Wilson v. Getty, 57 Penn. St. 266 ; M'Manus 
 V. M'Culloch, 6 Watts, 357. 
 
THE SUBMISSION. 53 
 
 The submission should be certain ; i. e. should definitely 
 set forth upon what questions the arbitrators are to award ; 
 and what, if any, are the limitations upon their power in mak- 
 ing up their award. But an uncertain submission may be 
 cured by a certain award. ^ 
 
 The submission may take the form joi an indenture with 
 mutual covenants, or it may be made by the several bonds of 
 the parties, executed and delivered by each to each or all the 
 rest. If the bonds name any specific sum as penalty, this will 
 not operate as a limitation upon the power of the arbitrators, who 
 may award a larger sum if they see fit. But no larger sum 
 can be recovered in a suit upon the bond.^ Russell says that 
 it seems to be no objection to the validity of a submission that 
 one party is bound by a sealed and the other by an unsealed 
 instrument ; instancing the case of a submission entered into 
 between a private individual, who simply affixed his signature, 
 and a corporatibn,, which affixed the corporate seal.^ 
 
 ■What maybe the Subject-Matter of a Submission — 1. Disputes 
 of a Civil Nature only. — All disputes and questions of a civil 
 nature may be the subject-matter of a submission. Matters of 
 an illegal nature, or criminal proceedings instituted against 
 one party at the instigation of the other, cannot be submitted.* 
 Though the courts will not open matters which have been 
 closed by a general award, apparently good, on the ground of 
 the admission of an illegal item into the account.^ If the sub- 
 ject-matter wear a double aspect, both civil and criminal, it 
 may be submitted in the former, but not in the latter. For 
 example, in case of an assault, the claim for damages may be 
 submitted, but the criminal prosecution cannot be.^ Such is 
 the general rule, though in Pennsylvania a submission of " all 
 
 1 Woodward v. Atwater, 8 Clarke, (Iowa) 61. 
 
 2 Russell on Arb. 51 ; Browes v. Bruce, Watson on Awards, 3d ed. 4, note (3). 
 
 3 Russell on Arb. 68 ; Tomlin v. Mayor of Fordwich, 6 N. & M. 594. 
 * Harrington v. Brown, 9 Allen, 579. 
 
 s Wohlenberg v. Lageman, 6 Taunt. 250; and see 3 id. 461, 2 Bos. & P. 371. 
 6 Noble I). Peebles, 13 Serg. & R 319. 
 
54 THE SUBMISSION. 
 
 business, civil and state, in dispute," has been held to include 
 prosecutions for assault and battery ; because these suits 
 " might easily be adjusted with the consent of both parties ; 
 and we have an act facilitating the settlement of prosecutions 
 of that nature." ^ 
 
 2. Dower. — A claim of dower is a proper matter for submis- 
 sion.^ 
 
 3. Owelty. — A husband may submit to arbitration his wife's 
 claim to owelty of partition.^ 
 
 4. Ejectment. — An ejectment suit may be submitted.* 
 
 5. One Item. — A single item of a long account in dispute of 
 suit may properly be singled out for submission by itself.® 
 
 6. Actions on Penal Statutes. — It has been doubted, in Eng- 
 land, whether actions upon penal statutes, by common inform- 
 ers, are competent to be submitted to arbitration.^ 
 
 7. Questions of Pure Law may be directly,^ or incidentally, 
 submitted.^ 
 
 8. The Regulation of Future Rights of the parties, which can 
 not as yet be reached by courts of law, may be submitted ; such 
 as the laying out of a way to be used by one over land of the 
 other, and other like matters.^ 
 
 Submissions concerning Real Estate. — In England, in old 
 times, the right to submit to arbitration disputes concerning 
 real estate, especially where the actual title was in dispute, was 
 regarded with great jealousy. But any doubt concerning the 
 validity of such submissions has been long 'since entirely 
 
 1 Noble V. Peebles, 13 Serg. & E. 319. 
 
 2 Cox V. Jagger, 2 Cow. 638 ; Green v. Ford, 17 Ark. 586. 
 
 3 Strawbridge v. Funstone, 1 Watts & S. 517. 
 
 4 McCracken v. Clarke, 31 Penn. St. 498 ; Austin v. Snow's Lessee, 2 Dall. 157. 
 6 McBride v. Hogan, 1 Wend. 326. 
 
 6 Eussell on Arb. 3d ed. p. 4. 
 
 ' Ching V. Ching, 6 Ves. Jr. 281; Young v. Walter, 9 id. 364; Matthew ». 
 Davis, 1 Dowl. n. s. 679. 
 
 8 Wilkinson v. Page, 1 Hare, 276; Price v. Hollis, 1 M. & S. 105; Steffu. 
 Andrews, 2 Madd. 6. 
 
 9 AUenby v. Proudlock, 4 Dowl. 54 ; Boss n. Clifton, 9 id. 856 ; Boodle v. 
 Davis, 3 Ad. & E. 200. 
 
THE SUBMISSION. 55 
 
 dissipated.! In the United States few traces of the ancient 
 doctrine are to be found ; and there is no question that any 
 dispute whatsoever relating to realty may be submitted to arbi- 
 tration. The cases are innumerable.^ Not even a specific 
 submission is now required. A general submission will in- 
 clude all questions relating to realty, equally with questions 
 relating to personalty.^ 
 
 In New York, the statute (2 R. S. p. 541, § 2) declares that 
 no submission to arbitration " shall be made respecting the 
 claim of any person to any estate, in fee or for life, in real 
 estate." A submission and award within the prohibition of 
 this enactment are held to be not merely voidable, but to be 
 absolutely void, and therefore to be incapable of ratification.* 
 But the statute is very narrowly construed. It has been held 
 to cover only claims to the legal title ; and, therefore, that 
 where this was not denied, but only an equitable title was 
 claimed, — e. g. a. right to compel a conveyance to the claim- 
 ant, — the statute did not interfere.^ 
 
 Boundary Lines. — Questions concerning boundary lines are 
 often submitted to arbitration.® 
 
 Submissions concerning Real Estate are nicely construed. — It 
 is a rule that the submission of questions involving the title to 
 real estate must be by deed. Yet the courts exercise- much 
 nicety in requiring that the precise point of title sliould be 
 
 1 Knight V. Burton, 6 Mod. 231; Johnson v. Wilson, Willes, 2i8; Taylor u. 
 Parry, 1 Man. & G. 604 ; Hunter v. Rice, 15 East, 100 ; Downs v. Cooper, 2 Q. 
 B. 256 ; Doe d. Morris v. Kosser, 3 East, 15. 
 
 2 Penniman v. Rodman, 13 Meto. 382 ; Carey v. Wilcox, 6 N. H. 177 ; Page 
 V. Foster, 7 id. 392 ; McMulIen v. Mayo, 8 Sm. & M. 298 ; People v. McGinnis, 
 1 Parker Crim. Ca. 387 ; Jones v. Boston Mill Corporation, 4 Pick. 507 ; Clark 
 V. Burt, 4 Cush. 396 ; Blair v. Wallace, 21 Cal. 317 ; Akely v. Akely, 16 Vt. 
 450, and cases cited below in further discussion of this topic. 
 
 3 Munro v. Alaire, 2 Caines, 320; Byers v. Van Deusen, 5 Wend. 268; Sel- 
 lick V. Addams, 15 Johns. 197; Penniman a. Rodman, 13 Mete. (Mass.) 382; Mc- 
 Near v. Bailey, 18 Maine, 251. 
 
 4 Wiles V. Peck, 26 N. Y. 42. 
 
 5 Olcott V. Wood, 14 N. Y. (4 Kern.) 32. 
 
 « Page V. Foster, 7 N. H. 392 ; Jones v. Boston Mill Corp., 6 Pick. 148, and 4 
 id. 507. 
 
56 THE SUBMISSION. 
 
 involved ; otherwise, submissions not under seal are upheld. 
 The following cases will serve for example : Where it is only 
 the price of land that is in dispute ; ^ where the submission 
 was only to settle the location of a particular lot according to 
 the description in a partition deed under which both parties 
 claimed title to respective lots, the lines and location of which 
 they could not agree upon ; the real dispute being as to the sit- 
 uation of, not as to the title to, the lot ; ^ where the defendant 
 had acknowledged that he held in trust for the plaintiff a cer- 
 tain sum of money, then invested in real estate, which he was 
 ready to make over so soon as his demands for disbursements 
 should be adjusted and deducted or paid ; ^ where the amount 
 of damages arising out of a dispute about real estate did not 
 in fact involve the title ;* where the demand is for damages 
 for an admitted encumbrance ; ^ or for flowage.® Plaintiff had 
 made a road chiefly over land of other persons, relying on the 
 fact that it was a benefit to them, as rendering it probable that 
 they would not close it up, and had agreed to let the defendant, 
 who knew the circumstances, use it upon payment of a compen- 
 sation, to be determined by arbitrators. The court said, that 
 as regarded far the greater portion of the road, there was no 
 interest in land in dispute, and therefore they should uphold 
 a parol submission.'^ But it seems evident from their language 
 that they strained the strictness of the law in order to meet 
 the substantial justice of the case. So a submission concern- 
 ing an " interest in " a farm, " or the proceeds thereof," was 
 declared not to be a claim in fee or for life to the realty, and 
 therefore not to fall within the rules concerning the submission 
 of questions about realty.^ 
 
 1 Davy's Ex'rs v. Taw, 7 Cranch, 171. 
 
 2 Jackson v. Gager, 5 Cow. 888. 
 
 8 French v. Richardson, 5 Cush. 450. 
 
 * Carson v. Earlywine, 14 Ind. 256 ; Byrd v. Odem, 9 Ala. 755. 
 
 5 Snodgrass v. Smith, 13 Ind. 893. 
 
 s Proprietors of Fryebut-g Canal v. Frye, 5 Greenl. 38. 
 
 ' Mitchell V. Bush, 7 Cow. 185. 
 
 s Palmer v. Davis, 28 N. Y. (1 Tiff.) 242. 
 
THE SUBMISSION. 57 
 
 So the fact that a guardian cannot convey land of his ward 
 does not invalidate his agreement to submit the question, 
 whether or not a sufiBcient and adequate price had been paid 
 for land of his ward previously sold.^ 
 
 A trustee gave to his cestui a written acknowledgment, stat- 
 ing that he held in trust for her 11700, then invested in real 
 estate, and promising to make over the same to her on request, 
 upon condition that she should deduct from such sum all 
 advances or payments which he might make to her. After he 
 had become liable to advance or pay on her account more than 
 f 1700, she presented the writing as a claim against him be- 
 fore arbitrators. Held, that the title to real estate was not 
 involved in the submission.^ 
 
 Coustruction of Statutes concerning Submissions. — The tend- 
 ency of the courts has at times been to construe with great 
 liberality statutes, permitting submissions in certain specified 
 descriptions of cases. Thus the Pennsylvania Act of 1805, 
 called the Defalcation Act, allowed only a reference of accounts ; 
 but it was by construction extended to embrace " every other 
 cause of action." ^ And it was under this act that the sub- 
 mission of the ejectment suit, Austin v. Snow's Lessee (^supra), 
 was upheld. A statute permitting the submission of all con- 
 troversies which might be the subject of " civil actions," has 
 been declared to include matters cognizable only in a Court of 
 Equity.* Under a statute authorizing the reference of any 
 disputed " claim," reference of an equitable claim against the 
 estate of a deceased person has been allowed.^ But the courts 
 of Pennsylvania, in construing their statute providing for com- 
 pulsory arbitration, which gives to " either party in any civil 
 suit or action " the power to compel a submission or reference 
 
 1 "Weston V. Stuart, 2 Fairf. (Me.) 326. 
 
 2 French v. Richardson, 5 Cush. 450. 
 
 3 Primer v. Kuhn, 1 DaU. 452. 
 
 * Tomlinson v. Hammond, 8 Clarke, (Iowa) 40. 
 
 5 White V. Story, 43 Barb. 124, citing Ackermon v. Congdon, apparently an 
 unreported case. 
 
58 THE SUBMISSION. 
 
 (Act of 1836, § 8), have said that a suit in equity begun by bill, 
 a case where judgment by default has been opened on terms, an 
 action on a bail bond, and a cause brought to an issue in law 
 by a demurrer, though they fall within the general words of 
 the law are not within its spirit. Arbitration cannot be com- 
 pelled in these cases under the statute; neither can it be 
 compelled where the defendant by neglecting to make an affi- 
 davit of defence has acknowledged that he has no defence, and 
 entitled the plaintiff to claim judgment.^ But an action on a 
 recognizance of bail for stay of execution may be referred 
 under this same statute.^ 
 
 A statute authorizing the submission of any matter which 
 might be " the subject of a personal action at law, or of a suit 
 in equity," does not authorize the submission of the question : 
 how much the defendant should pay to the plaintiff for the 
 plaintiff's surrender of a lease to him at a future day.^ 
 
 The Court of Massachusetts refused to uphold a reference 
 involving the title to realty, undertaken to be made under a 
 statute which did not in terms exclude such questions, but of 
 which the general phraseology seemed clearly to imply that 
 only questions concerning personalty were intended to be 
 covered by it.* 
 
 In Maine a statute (R. S. c. 108) provides for the submis- 
 sion of controversies which may be the subject of a personal 
 action, and wherein judgment could be entered up on .the 
 award by the court sitting as a Court of Law. It was held that 
 a claim for specific performance of a contract for the purchase 
 of real estate could not be submitted under this statute; 
 though a claim for damages for non-fulfilment of the contract 
 might be submitted." 
 
 The Massachusetts statute empowering an executor to refer 
 
 1 1 Grant's Ca. 191 ; Hoffnjan v. Locke, 7 Harris, 57. 
 
 2 Petit V. Wingate, 25 Penn. St. 74. 
 ' Hubbell V. Bissell, 13 Gray, 298. 
 
 * Fowler V. Bigalow, 8 Mass. 1. 
 » Butler V. Mace, 47 Maine, 423. 
 
THE SUBMISSION. 69 
 
 claims against the estate, allows him to refer claims of his own, 
 not held by him in his official capacity ; but not claims which 
 are held by him in such capacity.^ The New York statute, 
 2 R. S. 88, 89, covers all claims, legal or equitable, whicli 
 the executor or administrator could settle or adjust ; for ex- 
 ample, unliquidated claims by a surviving partner against the 
 estate of his deceased partner, growing out of partnership 
 transactions.^ 
 
 A Pennsylvania statute, forbidding the appellant from the 
 award of arbitrators to produce at the hearing on appeal any 
 books, papers, or documents which he had withheld from the 
 arbitrators, was construed to apply only to such evidence as 
 he had within his possession at the time of the hearing before 
 the arbitrators and had voluntarily refrained from placing 
 before them.^ 
 
 Hules for constrtiiug Submissions. — The courts will always 
 seek to put as liberal, large, and comprehensive a construction 
 upon the submission as the apparent intent of the parties to it 
 will admit.* Thus a submission of a specific question and 
 " divers other matters " has been regarded as equivalent to a 
 general submission of all questions and controversies between 
 the parties.^ Submission of a cause pending, " and all other 
 demands, and costs already accrued on or growing out of said 
 suit," has been construed as a reference of all demands be- 
 tween the parties, on the ground that the words, " all other 
 demands," were not intended to be limited to such demands 
 only as grew out of the suit.^ Pending an injunction suit for- 
 the abatement of a livery stable, a submission was made which 
 
 1 Dana v. Preseott, 1 Mass. 200. 
 
 2 rrancisoo v. Kitch, 25 Barb. 130. 
 
 s Estanson v. Dupuy, 2 Browne, 100 ; Brisbane v. Mitchell, 8 Serg. & B. 423. 
 
 4 Oreutt f. Butler, 42 Me. 83; Eoss v. Watt, 16 111. 99; Graham v. Gra- 
 ham, 9 Penn. St. 254 ; Noble v. Peebles, 13 Serg. & E. 319 ; Hopson v. Doo- 
 little, 13 Conn. 236 ; Shockey's Adm'r v. Glasford, 6 Dana, 9 ; Estep v. Larsh, 
 21 Ind. 190 ; Gerrish v. Ayres, 3 Scam. 245. But see Scott v. Barnes, post. 
 
 6 Munro v. Alaire, 2 Gaines, 320. 
 
 ^ Harmon v. Jennings, 22 Maine, 240. 
 
60 THE SUBMISSION. 
 
 stipulated that the award should " terminate and for ever decide 
 all matters of controversy, at law or in equity, in relation to 
 said livery stable." It was held, that though the bond given in 
 the injunction suit was not really a part of the subject-matter of 
 the submission, and was not mentioned in the award, it was yet 
 so far substantially included that suit upon it could not be subse- 
 quently maintained.^ A submission recited the existence of a 
 controversy as to " the settlement of the accounts between the 
 parties, and the claims of each upon the other." It was held 
 to include a claim for damages arising from an eviction of one 
 of the parties from demised premises, and for conversion of 
 personal property; inasmuch as it appeared that both these 
 and the other claims between the parties arose out of a written 
 agreement as to the occupation of the premises and cultivation 
 of plants thereon.^ A submission to arbitrators to settle co- 
 partnership affairs, as between the partners, includes the power 
 to say what is and what is not copartnership property.^ A 
 controversy about a road or path may be taken to include a 
 claim to the soil, as being within the ordinary meaning of the 
 phrase or word in commbn parlance.* 
 
 In a submission for the settlement of accounts, and of the 
 claims of each party upon the other, it appeared that there were 
 disputes concerning the ownership of certain chattels which 
 might be regarded either as claims in account for the value or 
 the proceeds of the property, or as a charge of a tortious con- 
 version. Held, that they should be regarded in the former light, 
 and therefore regarded as included within the submission.^ 
 
 Submission of " a claim " involves both the legality and the 
 amount of the claim.^ 
 
 A submission of pending actions to referees stipulated that 
 
 1 Jesse V. Cater, 28 Ala. 475. 
 
 2 Owen V. Boerum, 23 Barb. 187. 
 
 ^ Masters v. Gardner, 5 Jones, (Law) 298. 
 < Munro v. Alaire, 2 Gaines, 320. 
 > Owen V. Boerum, 23 Barb. 187. 
 6 Colcord V. Fletcher, 50 Maine, 898. 
 
THE SUBMISSION. 61 
 
 they should determine how much, if at all, a dam should be 
 cut down, and directed that the cutting down should be done 
 " imder their direction." It was held that it was not necessary 
 that they should actually supervise the reduction of the dam 
 to the level they should determine upon ; but that their award, 
 accurately establishing this level, would be sufi&cient, and the 
 alteration should be subsequently made by the sheriff in the 
 customary manner provided by statute.^ 
 
 In construing the extent of the subject-matter of a submis- 
 sion, all documents recited or referred to in the submission, 
 and laid before the referees or arbitrators, should be taken into 
 consideration.^ 
 
 Construction of Uncertain or Indefinite Submission. — Where 
 the submission is by no means so definite or certain as it should 
 be, yet if the deficiency can be easily and surely supplied, the 
 courts will seek to uphold it. For example, a submission 
 mentioned that a case was pending between the parties, and 
 referred " said case." The papers in a certain cause showed 
 that it was pending between these parties at the date of the 
 submission. In the absence of any proof of the pendency of 
 any other cause, the submission was upheld as relating to this 
 one.^ Again, " a matter in difference between the parties " 
 was submitted ; the court said, that after they hstd litigated 
 such a matter before the arbitrators without objection, and an 
 award had been made, it was too late for either of them to 
 object to the submission on the ground of its uncertainty ; but 
 some doubt was expressed as to what might have been the 
 effect of the indefiniteness had the objection been taken at an 
 earlier stage.* Submission of " difficulties existing between 
 [the parties] in relation to the said Columbus Bridge" was 
 held sufficiently certain.^ But submission of a controversy 
 
 1 Berkshire 'Woolleu Co. v. Day, 12 Cush. 128. 
 
 2 Commonwealth v. Pejepscut Proprietors, 7 Mass. 399. 
 
 3 Rixford V. Nye, 20 Tt. 132. 
 
 « Price V. White, 27 Mis. (6 Jones) 276. 
 5 King V. Jennison, 33 Ala. 499. 
 
62 THE SUBMISSION. 
 
 relating to " a certain piece of land in M. County" was held 
 void for uncertainty, as furnishing no means for identifying 
 the land, and making the award a bar to a subsequent action 
 for the same cause.^ 
 
 From the following case it would seem also that we might 
 devise a rule substantially as follows : That where a submis- 
 sion is so worded as to leave its extent ambiguous, and to 
 create a doubt whether a certain matter or class of matters 
 were included in it, the conduct of the parties at the hearing 
 before the arbitrators may be looked to for elucidation. If 
 such matter or matters have been presented by one without 
 objection by the other, if evidence has been offered upon thein, 
 and they have been considered in argument, it will be assumed 
 that they fall within the scope of the submission. But if they 
 have been wholly omitted in the proceedings, a contrary pre- 
 sumption would prevail. 
 
 A bond of indemnity between the parties was in force at the 
 date of their entering into a submission of " all demands." 
 Some obligations to pay under this bond had already accrued ; 
 others might be anticipated as probably to fall due in the future. 
 These latter were of such a nature that the court considered 
 that they could be estimated by experts with considerable 
 accuracy. The question was, whether or not an award could 
 operate as a bar in respect of obligations to fall due under the 
 bond after the date of the arbitration. The arbitrators had in 
 fact estimated, considered, and allowed for such future claims. 
 The court said that " under this ambiguity the parties them- 
 selves could best judge of their own intentions. By their 
 advice, or guided by the circumstances of the case, which indi- 
 cated a desire that every thing existing between the parties 
 should be finally adjusted, the referees proceeded to adjust all 
 the damages which had arisen, and which could arise under 
 the bond ; the parties were heard as to all ; the award embraced 
 all ; judgment was entered upon it as to all ; and now, if thd 
 
 1 Woodward v. Atwater, 8 Clarke, (Iowa) 61. 
 
THE SUBMISSION. 63 
 
 plaintiffs are not estopped as to all, they may recover twice for 
 the same subject-matter." ^ Accordingly the award was sus- 
 tained as a bar. 
 
 A submission, which is in itself void, may be considered in 
 connection with the subsequent acts of the parties, and by this 
 means may sometimes be upheld. Thus, where a written 
 submission, calling for an award, was made to a justice of the 
 peace or to a jury, if either party should demand one, the 
 parties proceeded before a jury of six men, presided over by 
 the justice. In some respects the process appeared judicial ; 
 in others it resembled an arbitration. The submission, so far as 
 it provided for a hearing before a jury, was so indefinite that it 
 could not have been enforced, and per se was bad. But it was 
 held that it should be considered in connection with the subse- 
 quent action of the parties and with the award. . Evidence was 
 admissible on behalf of each party, to show either that it was 
 an arbitration or 'that it was a judicial proceeding; and it 
 would be construed as the one or the other, according to the 
 ' preponderance of the testimony tlius introduced and derived 
 from the award and the proceedings.^ 
 
 A Wrilten Submission is unvariable and final. — A written sub- 
 mission cannot be varied by parol evidence. Neither is it com- 
 petent to show, by parol evidence, what the written submission 
 in fact was.^ In this respect the general law concerning con- 
 tracts applies without modification. 
 
 A memorandum of an agreement to refer is wholly super- 
 seded by a subsequent completed reference or submission.* 
 And a verbal agreement, made prior to, or contemporaneously 
 with, a written submission, is merged in the latter.^ 
 
 1 Cheshire Bank v. Eobinson, 2 N. H. 126. 
 
 2 Hays V. Hays, 23 Wend. 363. 
 
 5 Efner v. Shaw, 2 Wend. 567 ; McNear v. BaUey, 18 Maine, 251 ; De Long 
 V. Stanton, 9 Johns. 38. 
 
 * Billington v. Sprague, 22 Maine, 34. 
 
 " Loring v. Alden, 3 Mete. (Mass.) 576; Symonds w. Mayo, 10 Cush. 39; 
 Palmer v. Green, 6 Conn. 14. 
 
64 THE SUBMISSION. 
 
 Submission ■will not be stretched by Forced Construction. — 
 Though the courts wish to have a submission and award ter- 
 minate as many disputes as are reasonably and rightly within 
 their scope, still disputes obviously not included, though so 
 cognate that their annexation would liave been highly natural 
 and proper, will not be added by a forced construction. As, 
 where a submission recited that A. had claims against his 
 father's estate, and that the parties, " desirous of closing the 
 matter," referred " all matters in controversy," it was held that 
 only the matter specified was referred, that counter claims of 
 the executor against A. were not included. ^ And a submission 
 of all claims includes only such claims as exist between the 
 parties directly. A contingent interest which one of them has 
 in a demand by a third person against the other is not em- 
 braced.^ So also under a submission of " disputes " growing 
 out of partnership dealings and accounts, the court held that 
 the arbitrators could not take into consideration payments 
 made by one of the partners on partnership account subsequent 
 to the submission ; for these were not " in truth, subjects of * 
 dispute." ^ 
 
 A submission of whether or not the owners of a saw-mill had 
 a right to flow land of A. without paying him any compensa- 
 tion ; and if not, then what sum they should pay to him annu- 
 ally, does not include the independent question, whether or 
 not they had the right to flow the land upon paying a compen- 
 sation.* 
 
 An order of court appointing a referee to " take proof con- 
 cerning a confession of judgment, . . . the judgment roll, . . . 
 and whether the same were actually filed in the clerk's office, 
 cannot be extended to include the question whether or not the 
 judgment had been satisfied in whole or in part.^ 
 
 1 Scott V. Barnes, 7 Barr, 134. 
 
 2 Adams v. Adams, 8 N. H. 82. 
 
 3 Graham v. Graham, 9 Penn. St. (Barr) 254. 
 
 4 Hopson V. DooUttle, 13 Conn. 36. 
 
 5 Solomon v. Maguire, 29 Cal. 227. 
 
THE SUBMISSION. 65 
 
 Submission as to what sum annually should be paid to a 
 widow, instead of having dower assigned to her, intends that 
 a sum should be named which should be paid annually, not in 
 lieu or discharge of her right of dower, but in the nature of 
 rent for its use.^ 
 
 A. and B., each claiming the exclusive right to purchase 
 certain land, agreed in writing that it should be bid in by a 
 third party, each furnishing half the purchase-money, and that 
 it should thereafter be conveyed to the one or other of them as 
 should be awarded by five disinterested citizens. Held, that 
 this could not be construed as a submission for a division 
 of the land between them, but to determine which should take 
 the whole of it.^ 
 
 Sundry Specific Cases of Construction. — Where the same 
 paper contains an agreement to refer and an agreement to 
 enter an amicable action, the several agreements will be taken 
 in their appropriate order ; the case will be entered, and then 
 the reference made.^ 
 
 Where a submission and a note both bore date on the same 
 day, and it did not appear which was of prior execution, — the 
 submission being of all debts, &c., " heretofore existing between 
 the parties," and the note being payable in specific articles at 
 a day future, — it was held that the note should not be consid- 
 ered as included in the submission.* 
 
 General Submission. — A general submission includes all 
 questions, as well of law as of fact, all questions afiecting the 
 civil rights of the parties inter sese, and all demands between 
 them, whether legal or equitable, whether relating to personalty 
 or to realty ; ^ and demands growing out of allegations of fraud..* 
 
 1 Furber v. Chamberlain, 29 N. H. 405. 
 
 2 Irvine v. Marshall, 7 Minn. 286. 
 
 3 Massey v. Thomas, 6 Binn. 333. 
 
 " Bixby V. Whitney, 5 Greenl. 192. 
 
 5 Merritt v. Merritt, 11 111. 565 ; Indiana Central E.R. Co. v. Bradley, 7 id; 
 49; Munro v. Alaire, 2 Caines, 320 ; Byers v. Van Deusen, 5 Wend. 268 ; Sellicls. 
 V. Addams, 15 Johns. 197. 
 
 6 De Long v. Stanton, 9 Johns. 38. 
 
 5 
 
66 THE SUBMISSION. 
 
 It will be construed as widely and sweepingly as is possible, 
 without manifestly thwarting the obvious intent of the parties, 
 for the useful purpose of closing all controversies, and dispos- 
 ing of all rights of action.^ But it covers only matters in 
 dispute, doubt, or controversy between the parties at the date 
 of its execution,^ and only such demands as exist between the 
 parties directly.^ 
 
 A submission general in terms cannot be limited to matters 
 forming the subject of what amounts to an actual dispute ; * 
 neither, on the other hand, can a submission of " all contro- 
 versies " be stretched to include matters of business or indebt- 
 edness between the parties which are not in dispute.^ But a 
 submission of matters in dispute will not, unless the intent be 
 evident from the instrument or proved aliunde, be so construed 
 as to open matters formerly in dispute, but which have since 
 been settled. Thus, where the language of a bond was ambig- 
 uous, and might be construed to refer dispiites as to both a 
 paternal and a maternal succession, but the former had been 
 long since apparently finally disposed of, it was held that 
 without other extrinsifc and more satisfactory evidence that 
 such was the intent of the parties, it would not be presumed 
 that they had intended to open the matter of the paternal 
 succession.^ 
 
 Anon-negotiable note, assigned for value with notice, may 
 be properly included in a submission, entered into between the 
 assignee and the maker, of " all matters, claims, and demands, 
 either at law or equity." Payments and set-offs, made or 
 accruing before notice, are to be allowed to the maker.'^ 
 
 A submission of all matters in dispute does not operate to 
 
 1 Barker v. Belknap's Estate, 39 Vt. 168; "Woods v. Page, 37 id. 252; Oroutt 
 V. Butler, 42' Maine, 83. 
 
 2 Thrasher v. Haynes, 2 N. H. 429. 
 8 Adams v. Adams, 8 N. H. 82. 
 
 * De Long v. Stanton, 9 Johns. 38. 
 , 6 Robinson v. Morse, 29 Vt. 404. 
 
 6 Calvert v. Carter, 18 Md. 73 ; Carter v. Calvert, 4 Md. Chy. 199. 
 ' Brown v. Leavitt, 26 Maine, 251. 
 
THE SUBMISSION. 67 
 
 revive a claim barred by the Statute of Limitations. Such a 
 demand cannot properly be presented or allowed, unless it 
 be specifically named in the submission, or its admission is 
 expressly assented to by both parties at the hearing.^ But it 
 seems that the submission of a specific matter would sufiBce to 
 take it out of the statute.^ 
 
 Conditional Submissions. — If a submission be based upon the 
 fulfilment of an agreement, in such a way that the fulfilment 
 is practically made a condition precedent to the taking efiect of 
 the submission, a substantial fulfilment will be held sufficient.^ 
 
 Cases where the submission itself contains a condition to be 
 complied with by the arbitrators before the awarj^ can be valid, 
 are considered in connection with awards. 
 
 An order of court that an action be referred upon the condi- 
 tion that the plaintiff's attorney first enter into a specified stip' 
 ulation, becomes valid and operative after he has entered into 
 the stipulation.* 
 
 The parties in a pending cause agreed to refer certain speci- 
 fied items to C, and that either of them might have judgment 
 entered upon his finding, such judgment, when perfected, to be 
 a bar to further proceedings in the suit ; until such perfecting, 
 it was stipulated that this agreement should not interfere with 
 the suit; and if the suit should be conducted to judgment 
 pending the agreement, then the agreement should become null 
 and void ; also, that the agreement should not be construed as 
 an arbitration or discontinuance of the action, but only as an 
 efibrt in good faith to settle, and as binding in honor upon 
 both parties, but without prejudice to the legal rights of either. 
 The court held that this constituted a conditional submission 
 to arbitration.^ 
 
 When a Reference will be construed to have become changed 
 
 1 Adams v. Adams, 8 N. H. 82. 
 
 2 Adm'r of Colkins v. Partner of Thackston, Cam. & N. Conf. Eep. (N. Car.) 93. 
 ' Inhabitants of Boston v. Brazer, 11 Mass. 447. 
 
 * People V. McGinnis, 1 Parker Crim. Ca. 387. 
 s Merritt v. Thompson, 27 N. Y. 225, 
 
68 THE SUBMISSION. 
 
 into a Submission. — The matter of when a reference will be 
 construed to have been changed by circumstances into a sub- 
 mission, has been discussed in several New York cases. If 
 the parties voluntarily depart from the regulations of the stat- 
 ute concerning references, their undertaking will be treated 
 as a submission to arbitration.^ So where the reference is 
 entered into and the referees are chosen simply by consent of 
 parties, without taking out the statutory rule of court, the court, 
 having no control over referees so chosen, will leave the parties 
 to the same remedies which they would be entitled to in the 
 case of an ordinary submission to arbitration, neither rendering 
 judgment on the report nor setting it aside,^ nor entertaining 
 a motion to review the report.^ Where the parties have un- 
 dertaken to refer a cause of a nature not referrible under the 
 statute, it has been said that the proceedings will be a mere 
 arbitration, subject to the ordinary rules governing arbitration 
 and award.* But it has also been said that, if such reference 
 was by consent of parties, the report will be sustained as such, 
 and cannot be afterward sued on by either as an award.^ If 
 such improper reference was made in spite of the objection of 
 one of the parties, the objector will be entitled to have the 
 rule subsequently vacated.^ And where the action referred is 
 a species of action in which reference is proper, though the 
 particular case is not such as the court would refer, yet if 
 the parties consented to the reference, the report will be sus- 
 tained as such.'i' If the action has been sent to referees in the 
 expectation that there will be an examination of a long account, 
 the reference will not become an arbitration because it after- 
 
 1 Dodge V. Waterbury, 8 Conn. 136. 
 
 2 Cranston v. Kenny's Executors, 9 Johns. 212 ; Miller v. Vaughan, 1 Johns. 
 315 ; Stevenson v. Beeeker, ib. 492 ; Blunt v. Whitney, 3 Sandf. 4. <, 
 
 ' Beardsley v. Dygert, 3 Denio, 380; Silmser v. Eedfield, 19 Wend.* 21. 
 ■• Diedrick v. Eichley, 2 Hill, 271 ; Johnson v. Parmely, 17 Johns. 129 ; Green 
 V. Patchen, 13 Wend. 293. 
 
 5 Harris v. Bradshaw, 18 Johns. 26. 
 « Thomas v. Eeab, 6 Wend. 508. 
 ' Armstrong v. Percy, 5 Wend. 536. 
 
THE SinBMISSION. 69 
 
 ward turns out that no such examination is necessary. A 
 party who has requested or consented to a reference cannot 
 oppose the entry of judgment on the report for the reason that 
 the cause did not, as it was developed, furnish a proper case 
 for reference.! 
 
 If a statute provides for the reference of claims of a certain 
 nature, e. g., claims arising ex contractu, but the agreement of 
 parties includes also matters of a different nature, e. g., claims 
 sounding in tort, the undertaking will be construed to be a 
 submission in paisJ^ 
 
 Where parties have in most particulars, but not in all, 
 closely followed the provisions of a statute concerning refer- 
 ences, but have used throughout the terms appropriate to a 
 submission in pais, e. g., " submit," " determine and award," 
 " award and determination," this phraseology will generally 
 be regarded as conclusively giving to their undertaking the 
 character of a submission in pais instead of that of a statutory 
 reference.^ 
 
 A court of chancery having directed an issue to be tried by 
 a jury, the parties agreed together in pais to waive the jury 
 trial, and to submit to five persons, whose report should stand 
 in lieu of a verdict. Held, that this was a submission to arbi- 
 tration, and the report was an award.* 
 
 In Indiana, a pending cause was referred by agreement and 
 order of court to " arbitrators," who returned an " award." 
 It was held to be a common-law arbitration, and not a refer- 
 ence under the statute.^ 
 
 Submission of a " Cause " — 1. Its Extent and Operation on the 
 Pleadings. — The submission of a pending " cause " is a per- 
 fectly valid proceeding.^ Such an undertaking, or an agree- 
 
 1 Bloore v. Potter, 9 Wend. 480. 
 
 2 Akely v. Akely, 17 How. Pr. 21. 
 
 3 Ibid. 
 
 * Pleasants v. Eoss, 1 Wash. 156. 
 
 3 Moore v. Barnett, 17 Ind. 349. 
 
 s Gushing v. Babcock, 38 Maine, 452. 
 
70 " THE SOBMISSION. 
 
 ment of reference voluntarily entered into in a cause by the 
 parties thereto, will be construed to include all the issues, 
 whether of law or of fact, which are raised by the pleadings. ^ 
 Beyond this, it is understood in our country that the case is 
 to be tried and determined upon its merits, without regard to 
 the- technical issues joined by the pleadings, which are im- 
 portant only to show the extent of the submission and its sub- 
 ject-matter.2 Accordingly any amendment which either party 
 could have been allowed to make will be regarded as having 
 been made, to the end that it shall be as nearly as possible 
 the subject-matter of the suit that is referred, without regard 
 to form.^ 
 
 Any thing which could be introduced by way of amendment, 
 either by altering or adding a count, provided this would 
 amount only to presenting the same cause of action in a differ- 
 ent shape, may be regarded as included in the submission. 
 But matter which constitutes an independent cause of action 
 cannot be introduced.* The cited case of Merrill v. Gold fur- 
 nishes a good illustration of the exclusion worked by this rule. 
 A. owed money to B. ; C. represented to B. that he had funds 
 of A. in his possession ; B. thereupon sued A., and served 
 garnishee process on C. ; C. replied, under oath, that he had 
 no funds of A. in his hands ; B. then sued C. to recover dam- 
 ages caused by his false representations, whereby the plaintiff 
 had been induced to bring his suit. The case was referred by 
 consent. Before the referees the plaintiff wished to show that 
 defendant in fact had funds, and had falsely sworn to the con- 
 trary. The court held that this fact, if true,, constituted a 
 
 1 Gushing v. Baboock, 38 Maine, 452 ; Eenouil v. Harris, 2 Sandf. 641 ; New- 
 ton I'. West, 3 Mete. (Ky.) 241. 
 
 2 Eddy V. Sprague, 10 Vt. 216 ; Davis v. Campbell, 23 id. 236 ; Coffin v. Cot- 
 tle, 4 Pick. 454 ; Page v. Monks, 5 Gray, 492 ; Briggs v. Oaks, 26 Vt. 138. 
 
 3 Maxfield v. Scott, 17 Vt. 634 ; Briggs t. Oaks, 26 id. 138 ; Same v. Ben- 
 nett, ib. 146 ; Waterman v. Connecticut & Passumpsio Rivers E.R. Co., 30 id. 
 610. 
 
 * Merrill v. Gold, 1 Cush. 457. And see, also, in the chapter on " The Arbi- 
 trator's Authority " concerning " The arbitrator's power to allow amendments." 
 
 (.' ( 
 
THE SUBMISSION. 71 
 
 different cause of action from that sued upon, and tliat it was 
 not open to the consideration. of the referees, and consequently 
 could not be proved before them. 
 
 When a statute authorizes the reference of a cause upon its 
 appearing that it will involve the examination of a long account, 
 the power of the referees is not confined solely to an investiga- 
 tion into the account, but extends over the entire cause, and 
 all matters at issue in it. Every thing that might be inquired 
 into on a trial should be heard and decided by them. Such a 
 statutory limitation ought not to be narrowly construed.^ 
 
 2. Its Operation on Previous Errors. — A submission or volun- 
 tary reference operates as a waiver,^ or by way of bar, release, 
 or estoppel,^ in respect of all errors in the proceedings up to 
 that time. Thus, for example, it is a bar to the objection that 
 a plea in off-set had not been filed within the prescribed time ; ■* 
 it cures an insufficient service ; ° it is a waiver of a plea to the 
 jurisdiction.® In a suit in ejectment a variance between the 
 description of the premises in the declaration and that estab- 
 lished by the evidence is avoided by a reference.^ 
 
 But it is not a waiver of such a palpable misjoinder of plain- 
 tiffs as is fatal to the maintenance of an action by all or any of 
 them ; ^ neither of the objection that the court had no jurisdic- 
 tion to make the order.^ 
 
 Reference by agreement of parties of an appealed cause is 
 a waiver of an objection to the jurisdiction of the justice from 
 whose decision the appeal has been taken.^" 
 
 1 Lee V. Tillotson, 24 Wend. 337. 
 
 2 Vanderhoof v- Dean, 1 Mann. (Mich.) 463; Hazen v. Administrators of 
 Addis, 2 Green, 333 ; Taylor v. Say re, 4 Zabr. 647. 
 
 3 Forseth v. Shaw, 10 Mass. 253 ; Applegate «. Scliureman, 2 Penn. 868 ; 
 Ligon V. Ford, 6 Munf. 10. 
 
 * Swift V. Harriman, 30 Vt. 607. 
 
 5 Hix V. Sumner, 50 Maine, 290. 
 
 6 Maxfleld v. Scott, 17 Vt. 634. 
 
 T Spaulding v. Warren, 25 Vt. 816. 
 
 8 Porter v. Dickerman, 11 Gray, 482. 
 
 9 Garcie v. Sheldon, 3 Barb. 232. 
 
 10 Reed v. Stockwell, 84 Vt. 206. 
 
72 THE SUBMISSION. 
 
 Submission of a Cause may be made to include other Matters. 
 — The submission or reference will include nothing which is 
 not involved in the action, unless there is an express stipula- 
 tion to that effect. Such a stipulation is, however, perfectly 
 valid, and the submission or reference may by agreement be 
 extended to cover any number of alien matters.^ The record 
 should show what these matters are.'* The parties may also 
 insert in their rule provisions not called for by statute or the 
 rules of court, and provided the same be not in violation of the 
 rules of law, they will be sustained ; e. g., where the rule of 
 court requires only that a majority of the arbitrators should 
 agree in the award, the parties may stipulate for unanimity.^ 
 And a submission in lis pendens, extended to include other 
 matters than those involved in the cause, may still remain a 
 submission under a statute concerning submissions entered 
 into in pending causes.* 
 
 If made, pendente lite, of " all matters of difference between 
 the parties," the submission or reference will not relate back 
 to the date of the initiation of the suit, but embraces all such 
 matters existing at the time of the execution of the submission.® 
 
 Where the declaration in a cause upon its face presents a 
 case cognizable at common law, the court of common law is 
 not ousted of further jurisdiction by the fact that at a hearing 
 before arbitrators to whom the cause has been submitted, 
 matters not properly cognizable at common law have been 
 introduced.^ 
 
 Submissions of Separate Actions, — Where distinct actions 
 
 1 Henderson v. Walker, 2 Grant, (Penn.) 36; Eemington v. Morris, lb. 
 467 ; Berkshire Woollen Co. u. Day, 12 Cush. 128 ; Bemus v. Quiggle, 7 Watts, 
 363 ; Smith v. Kincaid, 7 Humph. 28 ; Harrison v. Wortham, 8 Leigh, 296, in 
 which "all matters of difference " were submitted. Harmau u. Jennings, 22 
 Maine, 240. 
 
 2 Fitzgerald v. Fitzgerald, Hardin, 227. 
 
 3 Anderson v. Farnham, 34 Maine, 161. 
 
 * Bingham's Trustees v. Guthrie, 19 Penn. St. 418. 
 5 Woods V. Page, 37 Vt. 252. 
 , 6 Caton V. McTavish, 10 GUI & J. 192. 
 
THE SUBMISSION. 73 
 
 are depending, and it is intended to refer them all, there must 
 be separate rules and separate reports, or the actions must be 
 first united and then referred, or in one of them a rule must 
 be entered, submitting all matters in dispute between the 
 parties. A consolidation effected by the arbitrators of their 
 own sole action will invalidate their finding. ^ 
 
 Effect of a Submission in a pending Cause upon the Status of 
 the Cause. — What effect a submission or reference has upon 
 the status of the pending cause in court is a subject which has 
 been thickly sown with difiiculties by a great number of incon- 
 sistent and loosely expressed adjudications. I shall endeavor 
 to do the best I can with the incongruous mass of material 
 furnished by the various opinions, but can promise no lucid or 
 satisfactory result. 
 
 In the first place, it would appear from some cases that a 
 submission made in pais, not made or stipulating that it shall 
 be made, or apparently intended to be made, a rule of court, 
 does not, ipso facto, oust the court of its jurisdiction. It can- 
 not be pleaded in bar.^ Either party may proceed to push the 
 case according to the regular mode of procedure, and if this 
 be a breach of his undertaking contained in his submission, 
 the remedy of the other party is by an action on the case for 
 damages.^ 
 
 But a far greater number of cases hold that a submission, 
 though not statutory, nor made a rule of court, yet works a 
 discontinuance of a pendin ^ cause.* In the case of Green v. 
 
 1 Craig V. Craig, 4 Halst. 198 ; contra, by reason of apparent equity, in Brown 
 V. Scott, 1 Dall. 145 (Shippen, Prea't, dissenting). The last case is discussed in 
 Goff V. Musser, 2 Serg. & E. 262, by Tilghman, C. J., who says it is bad law, 
 and that the dissenting opinion of President Shippen is sound. 
 
 2 United States v. Ames, 1 "Woodb. & Min. 76 ; Eaton v. Arnold, 9 Mass. 519; 
 Nettleton v. Gridley, 21 Conn. 531 ; Parnell v. King, Rice, (S. Car.) 376 ; Leon- 
 ard V. House, *I5 Ga. 473 ;»Smith v. Barse, 2 Hill, 887 ; Pielding v. Westermeier, 
 20 La. An. 51. 
 
 3 Haskell v. Whitney, 12 Mass. 47. 
 
 < Mooers v. Allen, 36 Maine, 276 ; "West v. Stanley, 1 Hill, 69 ; Towns v. Wil- 
 cox, 12 Wend. 50B ; Gunter v. Sanchez, 1 Cal. 45 ; Larkin v. Bobbins, 2 Wend. 
 505 ; Vanderhoof v. Dean, 1 Mann. 468 ; WeUs v. Lain, 15 Wend. 99 ; Saffle v. 
 
74 ' THE SUBMISSION. 
 
 Patchen,! the previous adjudications in the New York courts 
 were discussed, and it was stated as the " result," " that in 
 all actions not referrible under the statute, if the parties refer 
 the cause to referees, by stipulation or rule or both, and merely 
 provide that the referees report, such reference is an arbitra- 
 tion, and acts as a discontinuance. But if the stipulation pro- 
 vides for the entry of judgment on the report, and judgment 
 be entered, the parties are concluded by their agreement, and 
 cannot be heard to say that the reference and judgment were 
 not warranted by law." In Wells v. Lain,^ the Chancellor, 
 though in the minority on the main issue, said that the sub- 
 mission was only a consent to a discontinuance, and that if 
 either party undertook to proceed with his suit in court, appli- 
 cation should be made to stay him, on the ground that the 
 case was in fact discontinued. 
 
 Some decisions assert that if the submission contain any 
 saving clause, to the effect that it may be made a rule of court, 
 or that judgment may be entered on the award, or the like, it 
 will not operate as a discontinuance, for such stipulation is a 
 clear expression of the intention of the parties to keep the 
 suit alive.^ A fortiori a reference, as of an account, by order 
 of court is not a discontinuance, but is simply a proceeding 
 in the cause, a part of the litigation. 
 
 In the case of Camp v. Root,* it was held that the submission 
 was a discontinuance ; for, though the parties entered it on 
 the minutes, and directed the arbitrators to report to the 
 court, they could not thus alter their rights nor give the 
 
 Cox. 9 Humph. 142. (But contra, Bridges v. Vick, 2 id. 516.) Jewell «. Blank- 
 enship, 10 Yerg. 439 ; Bigelow v. Goss, 5 Wis. 421 ; Muckey v. Pierce, 3 id. 
 307 ; Smith v. Barse, 2 Hill, 387 ; Jordan v. Hyatt, 3 Barb. 275 ; Buel v. Dewey, 
 22 How. Pr. 342. 
 
 1 13 Wend. 293. 
 
 2 15 Wend. 99. 
 
 3 People V. Onondaga Common Pleas, 1 Wend. 314 ; Rogers's Heirs v. Wall, 
 6 Humph. 29 ; Ex parte Wright, 6 Cowen, 899. See also Ryan v. Dougherty, 
 80 Cal. 218 ; Wear v. Ragan, 80 Miss. 83. 
 
 * 18 Johns.' 22. . 
 
, THE SUBMISSION. 75 
 
 court power to enter judgment on the award. This case was 
 distinguished from that of Yates v. Eussell,i contained in the 
 next preceding volume of reports, and holding that neither 
 party could object to the entry of judgment upon the report 
 according to such an agreement. For, it was said, in Yates 
 V. Eussell the defendant's attorney had expressly stipulated 
 that, in case of a report against him, judgment should be en- 
 tered for the sum so reported, and this was considered equiv- 
 alent to a plea of confession for that amount. 
 
 In Larkin v. Robbins,^ the submission was declared to have 
 worked a discontinuance, though the arbitrators had not yet 
 assumed the burden of arbitration ; for the parties had selected 
 another tribunal, and the court would not look to the proceed- 
 ings of that tribunal to see whether or not it (the court) still 
 retained jurisdiction. 
 
 In Maine it has been said that a submission at common 
 law is a discontinuance ; but quare, as to a statutory submis- 
 sion.^ 
 
 In California a submission under which the parties fail to 
 follow the statute accurately will operate as a withdrawal of 
 the cause from the power of the court, and no judgment can 
 be entered on the award.* 
 
 Arbitrators agreed upon an award of a certain sum as due 
 from Nthe one party to the other, but held the award in their 
 hands, subject to the condition that unless the payment should 
 be made the-suit should not be estopped. Held, that the sum 
 not having been paid in due time, the whole proceeding of 
 arbitration fell to the ground ; and the suit, of which the sub- 
 mission was made, was not discontinued, but might be pro- 
 ceeded with.^ 
 
 Where a submission of the subject-matter of a pending cause 
 
 1 17 Johns. 461. 
 
 2 2 Wend. 505. 
 
 3 Crooker v. Buck, 41 Maine, 355. 
 " Heslep V. San Francisco, 4 Cal. 1. 
 6 Elliott V. Quimby, 13 N. H. 181. 
 
76 THE SUBMISSION. 
 
 embodied an agreement to withdraw the suit from court, but 
 the arbitrators named refused to act, the court said that the 
 stipulations to submit and to withdraw were inter-dependent, 
 and since, by no fault of either party, the arbitration had 
 Jjecome impossible, the whole agreement should fall and the 
 suit be regarded as still alive. ^ 
 
 Under similar circumstances, in New York, it was declared 
 that the submission had put an end to the suit, but had not 
 discharged the cause of action, and that upon the refusal of the 
 arbitrators to act, the claimant was relegated to his original 
 cause of action, and must institute a new suit.^ 
 
 Where the cause had been carried into a higher court by 
 appeal from the judgment of a lower court, and thereafter 
 there was a submission which stipulated for the " discontinu- 
 ance of the appeal," the arbitrators failed to agree. It was 
 held, that, the appeal having been " expressly abandoned," the 
 judgment of the original tribunal remained in full force.^ But 
 where, under like circumstances, the submission stipulated 
 that " all further proceedings in said suit at law are to be 
 hereby stayed and ended," it was held, that the suit at law 
 was " blotted out and ended in toto" from its inception before 
 the inferior tribunal to its latest subsequent stage.* 
 
 A party who, after a cause has been discontinued by a sub- 
 mission, proceeds with it in court, thereby waives or forfeits 
 his right afterward to claim that it was discontinued.^ 
 
 When the reference or submission does not operate to dis- 
 continue the cause, — or perhaps, we should rather say, to put 
 an absolute end to the cause, for it appears that the phrase dis- 
 continue is often used improperly as if equivalent to stay or 
 interrupt, — it has the effect of temporarily superseding the 
 
 1 Chapman v. Seccomb, 36 Maine, 102; and see ante, Elliott v. Quimby, 13 N. 
 H. 181. 
 
 2 Buel V. Dewey, 22 How. Pr. 342. 
 
 5 Miller v. Van Anken, 1 "Wend. 516. 
 * Van Slyke v. Lettice, 6 Hill, 610. 
 5 Buel V. Dewey, 22 How. Pr. 342. 
 
THE SUBMISSION. 77 
 
 power of the court to take any action in the cause. Pending 
 the reference or submission, by rule, no proceeding can be had 
 on the litigation in court. Neither party can take any of the 
 steps which ordinarily he would be entitled to take ; nor can 
 the judges enter orders or entertain motions. No pleadings or 
 papers, ordinarily required, need be filed. The regular tri- 
 bunal has for the time been superseded by the special tribunal 
 before which alone any thing can now be done.^ The jurisdic- 
 tion of the court, however, is not lost, it is only in abeyance. 
 It revives so soon as the report or award has been returned 
 into -court, or when the time limited for making this return has 
 elapsed.^ This effect of a reference or submission, as consti- 
 tuting only a link in the chain of litigation which precedes and 
 follows it in the cause, without destroying the unity of that 
 chain, has been carefully examined and discussed by the judges 
 of Pennsylvania. The case of Douglas v. Kenton ^ especially 
 deserves to be studied, as furnishing the fullest and best expo- 
 sition of the true doctrine in respect to this subject. It is 
 there said that the court retains a jurisdiction " outside of and 
 superior to " that of the arbitrators ; the power of the court 
 to proceed to try the cause is suspended only so far as is neces- 
 sary to enable the arbitrators to try it ; after their award the 
 jurisdiction of the court reverts, either, it may be, on appeal, 
 or for judgment and issue of execution. 
 
 By a submission of a pending cause without a rule, it is so 
 far out of court that the court is deprived of summary juris- 
 diction over the taxation of costs, which is directed by the 
 award to be made.* 
 
 1 Horn V. Roberts, 1 Ashm. 45; Pollock v. HaU, 4 Dall. 222; M'CaU v. Crou- 
 sillat, 6 Serg. & R. 167 ; Brown u. Schseffer, 6 Binn. 177 ; Crawford v. Gable, 2 
 Barr, 444 ; "Withers v. Haines, ib. 435 ; Grubb v. Grubb's Executors, 2 DaU. 191 ; 
 Pollock V. HaU, 4 id. 222; Maxfield v. Scott, 17 Vt. 634; Hazen </. Administra- 
 tors of Addis, 2 Green, (N. J.) 338 ; Grubb v. M'CuUough, 1 Yeates, 193. And 
 see cases cited in the notes next following this. 
 
 2 Ibid ; also De Lisle v. Priestman, 1 Browne, 115. 
 
 3 1 Miles, 21. 
 
 * Van Alstyne v. Wimple, 4 Cow. 547. 
 
78 THE SUBMISSION. 
 
 But where a case had been decided in the lower court, and 
 the decision appealed from, it was held that in order to divest 
 either party of the right to enter the action at the term of the 
 upper court to which the appeal was taken, and thereby to pre- 
 vent the legal time of entry from going by, it was necessary 
 either that there should have been a submission and award 
 entirely settling the controversy prior to said term, or else the 
 submission must in terms have named a time within which the 
 award might be rendered, extending beyond the entry day of 
 said term.i 
 
 The precise point at which the jurisdiction of the court be- 
 comes suspended and the exclusive jurisdiction of the arbitra- 
 tors vests, is likewise decided chiefly by Pennsylvania authorities. 
 Il was doubted whether this point should be fixed at the entry 
 of the rule or the choice of arbitrators. The former doctrine 
 was asserted in Mechanics' Bank v. Fisher ; ^ but this case was 
 afterward directly overruled in Camp v. Bank of Owego,^ and 
 other adjudications seem to have settled the doubt in favor of 
 the time of the choice of arbitrators.* So that if the entry 
 of the rule to refer has been improperly prejudicial to either 
 party, the court will stay the proceedings at any time before 
 the arbitrators are chosen.^ 
 
 The court in which the action is pending at the time of the 
 entry of the rule, may inquire into the sufficiency of the pro- 
 ceedings preliminary to the appointment of the arbitrators. 
 Their jurisdiction is contingent upon the regularity of the pre- 
 cedent action of the parties, and if any irregularity has occurred, 
 the appointment will be null and void, and the authority of the 
 arbitrators will not attach. But after their authority has once 
 
 1 Hayes u.'Blanchard, 4 Vt. 210. 
 
 2 1 Rawle, 341. 
 
 3 10 "Watts, 130. 
 
 * Schuylkill Bank v. Macalester, 6 Watts & S. 147 ; Horn v. Roberts, 1 Ash- 
 mead, 45. 
 
 6 Hoflanan v. Locke, 19 Penn. St. 57. 
 
THE SUBMISSION. 79 
 
 properly attached, the court can make no inquiry into the pro- 
 ceedings before them.^ 
 
 Effect of the Submission upon the Right of Action. — If parties 
 enter into a submission by which they are bound to present a 
 certain claim, it will, at least after award made, operate as a bar 
 to any subsequent suit to enforce such claim ; and this equally 
 whether it was or was not presented. But aliter, if the party 
 was not bound so to present. So where A. and B. entered into a 
 general submission, and A. had a claim growing out of an 
 attachment, which he was at liberty to enforce either against 
 B. who was the attaching creditor or against the officer, and he 
 did not present it against B. at the hearing, it was held that 
 he was not barred froni afterward pushing it against the 
 officer.^ 
 
 The presumption is that any claim which the claimant was 
 bound by the submission to present, was in fact presented and 
 adjudicated upon. But if the claimant had the option to pre- 
 sent it, or to withhold it for subsequent enforcement against 
 another party, no such presumption exists.^ 
 
 Pendency of an arbitration at the time of suit brought does 
 not operate by its own force to divest the court of jurisdiction. 
 The parties are in the same situation as if another suit had 
 been pending in another court. The circumstance can be 
 availed of only by a plea in abatement.* And the power to 
 avail of the existence of a submission is altogether lost if the 
 arbitrators have refused to act,^ or the time limited in the sub- 
 mission for making the award has elapsed without any award 
 having been made.^ 
 
 A mere agreement to submit, not carried out by proceeding 
 
 1 Thompson v. White, i Serg. & E. 135. 
 
 2 Eobinson v. Hawkins, 38 Vt. 693. 
 a Ibid. 
 
 * Small V. Thurlow, 37 Maine, 504. But see the chapter on " The Duration 
 of the Arbitrator's Authority," where beginning a suit pending the arbitration 
 • is said to operate as a revocation of the submission. 
 
 5 Brown v. Weloker, 1 Coldw. (Tenn.) 197. 
 
 6 St. Martin v. Mestay^, 18 La. An. 820. 
 
80 THE SUBMISSION. 
 
 with the arbitration, is not a bar to a suit upon the cause of 
 action intended to be submitted.^ 
 
 Where a submission has been made and the arbitrators have 
 refused to act, it would not ordinarily be conceivable that the 
 submission could be properly regarded as a bar to a subsequent 
 right of action. Such cannot reasonably be considered to be 
 the intention of the parties. It would be properly presumed 
 that the willingness of the arbitrators to act was an implied 
 condition precedent to the taking effect of the agreement.^ 
 
 Making Submission a Rule of Court, or agreeing for Entry of 
 Judgment on Award. — Statutes occasionally provide that sub- 
 missions in pais, either with or without lis pendens, may be made 
 rules of court, and judgment entered on the award. Such has 
 been the English practice, founded on the provisions of 9 & 
 10 Will. III. c. 15. It has been held in this country that it is 
 not too late to make a submission a rule .of court after the 
 award has been made.^ Since the parties have the right to 
 refer, the application for a rule of court has been said to be an 
 idle form,* and that consent of parties that the submission 
 shall be made a rule of court will be implied if a pending 
 action be referred to.^ But aliter, if no action be pending.^ 
 If the statutory directions are not followed, no judgment can 
 be entered on the award. ^ 
 
 But in the absence of statutes, the English practice has not 
 obtained in the United States, and no judgment will be entered 
 by the court on an award unless the referees proceeded upon 
 authority vested in them by a rule of court.® In Maine it has 
 
 1 Tobey v. The County of Bristol, 3 Story, 800. 
 
 2 EUiott V. Quimby, 13 N. H. 181 ; Buel v. Dewey, 22 How. Pr. 342 ; Chap- 
 man V. Seccomb, 36 Maine, 102. 
 
 3 McClure v. Gulick, 2 Harrison, 340 ; Hazen v. Administrators of Addis, 2 
 Green, (N. J.) 333 ; Ex parte Vasques, 5 Cow. 29. 
 
 * Bemus v. Quiggle, 7 Watts, 362 ; but see below, cases cited in note 8. 
 5 McAdams's Executors v. Stilwell, 13 Penn. St. 90 ; Large v. Passmore, 5 
 Serg. & E. 51 ; Eord v. Keen, 13 Penn. St. 179. 
 5 Beiyamin v. Beivjamin, 5 Watts & S. 562. 
 ' Carson v. Carson, 1 Mete. (Ky.) 434. 
 8 Shearer v. Mooers, 19 Pick. 308; Simpson v. McBee, 8 Dev. 581. 
 
THE SUBMISSION. 'SI 
 
 been held that where the submission had not been made a rule 
 of court the award might be properly admitted as evidence, 
 and judgment be based thereon.^ 
 
 A reference to arbitrators, stipulating that the award shall 
 be made a rule of court, will not discharge bail.^ 
 
 Where parties in a pending cause enter into a submission 
 which is not statutory, and which is not a reference, but which 
 nevertheless stipulates for the entry of judgment upon the 
 award, neither party can be permitted to allege for error 
 against the entry of a rule for judgment that the proceedings 
 were not authorized by law.^ 
 
 A submission providing that if the award be under $200 
 judgment may be entered by a justice of the peace, but if for 
 a sum beyond his jurisdiction then by the District Court, is 
 valid, and judgment on an award for 1741 may be entered by 
 the court.* 
 
 Reference in Cross Actions. — In cross actions and cross ap- 
 plications for reference, a joint reference will be ordered, and 
 the referees will be aiithorized to hold meetings at different 
 places to accommodate both parties.^ 
 
 When one of two cross suits has been referred, and in this 
 reference all can be obtained that could be obtained by a refer- 
 ence of the other also, the other will not be referred ; especially 
 where the reference of both might operate to make one party 
 unfairly bear the costs in each cause.^ 
 
 Alteration of the Submission. — A submission, being an agree- 
 ment and subject to the general laws governing contracts, may 
 be altered after its execution in the same manner as any other 
 contract of similar forpaality. 
 
 An oral submission may at any time be altered or enlarged 
 
 1 Gushing v. Babcock, 38 Maine, 452. 
 
 ' Cunningham v. Howell, 1 Ired. 9. 
 
 3 Harrington v. Hamblin, 12 Wend. 212; Yates v. Russell, 17 Johns. 465. 
 
 * McKnight v. McCuUough, 21 Iowa, 111. 
 
 5 Hart V. Trotter, 4 Wend. 198. 
 
 6 Codwise v. Hacker, 2 Caines, 261. 
 
 6 
 
82 • THE SUBMISSION. 
 
 orally .1 It has been held that a written submission may be 
 extended without writing at the hearing by mutual consent to 
 include additional matters. The introduction by both parties 
 of such matters and of evidence concerning them, without con- 
 temporaneous objection, constitutes such an extension ; and the 
 award, when rendered, cannot be overturned by reason of its 
 touching upon these jiew matters.^ To the same purport also 
 is the following : — 
 
 A written submission to three arbitrators was entered into, 
 providing that in case either of them could not be obtained a 
 fourth person named should sit in his place. At the meeting 
 all four attended, and by agreement of parties then and there 
 made the four heard the case and awarded upon it. It was 
 held that this was regular and legal.^ In Massachusetts, also, 
 it is held that a written submission may be abrogated in whole 
 or in part and an express new agreement entered into orally ; 
 but if such subsequent agreement is to be inferred, the evidence 
 must be clear, and the implication strong and free from all doubt. 
 Thus where there was a written agreement which named three 
 arbitrators, the evidence, consisting wholly of books and papers, 
 was laid before two of them. It was held that there was no 
 sufficient proof of an agreement that these two might act 
 instead of the three, for either party might have expected that 
 the evidence, being all documentary, would be examined also 
 by the third arbitrator, before the joint report of all was 
 made.* 
 
 If after a submission has been entered into by bond, a fur- 
 ther agreement is made under seal, bringing new matters before 
 the arbitrators, subjecting to their power another person who 
 was not a party to the original submission but is to the later 
 agreement, and enlarging the power which the arbitrators 
 already had over the subject-matter of the original submission, 
 
 1 Eveleth v. Chase, 17 Mass. 468. 
 
 2 Woods V. Page, 37 Vt. 252. 
 
 ' Blanchard v. Murray, 15 Vt. 548. 
 < Loring v. Alden, 3 Mete. (Mass.) 576. 
 
THE SUBMISSION. 83 
 
 the tendency will be to construe the later writing, not as an 
 alteration of the original submission, but as an entirely new 
 undertaking, superseding its predecessor.^ 
 
 In Pennsylvania it has been asserted, generally, that a sub- 
 mission by specialty may be subsequently altered by parol. 
 The case was of a submission of disputes arising out of part- 
 nership dealings. Afterwards it was verbally agreed that one 
 partner should take the books and pay the debts of the firm. 
 It was held, that this was such an enlargement of the terms of 
 the submission that this partner might be properly credited by 
 the arbitrator with his payments made under this arrange- 
 ment.^ 
 
 If parties to a submission by bonds, after execution of, 
 the bonds, materially alter the submission by a subsequent 
 valid agreement, enlarging the subject-matter, adding a new 
 party, and extending the power of the arbitrators in respect of 
 the matters originally submitted, the sureties on the bonds will 
 be discharged from liability.^ 
 
 Extension of Time for Award named in Submission by New 
 Agreement. — If a submission, entered into by deed, name a time 
 within which the award shall be made, it has been held that 
 this time can be extended only by deed ; and profert of the 
 deed must be made in pleading.* But other cases have held, 
 that if the submission be by bonds, the parties may enlarge the 
 time by a written agreement not finder seal.^ 
 
 If made by indorsement on the submission, it seems that 
 the instrument should be again properly delivered.^ And it so 
 far alters the original agreement that a stipulation therein for 
 
 1 Bullock V. Koon, 4 Wend. 531. 
 
 2 Graham v. Graham, 9 Penn. St. (Barr) 254. So, also, Shockey's Adminis- 
 trator V. Glasford, 6 Dana, 9 ; to the Uke effect are I'rench v. New, 20 Barb. 481 ; 
 Cooley V. Dill, 1 Swan, 313 ; contra, the EngUsh case. In re Morphett, 2 Dowl. 
 & Low. 967. 
 
 3 Bullock V. Koon, 4 Wend. 531. ' 
 * George v. Farr, 46 N. H. 171 ; Brown v. Copp, 6 id. 223. 
 
 5 Bloomer v. Sherman, 5 Paige, 575 ; Hill v. Taylor, 15 Wis. 190. 
 
 6 Shermer v. Beale, 1 Wash. 11 ; Bryer v. Stewart, 2 Hayw. 111. 
 
84 THE SUBMISSION. 
 
 making it a rule of court should be repeated in the.indorse- 
 ment.i 
 
 An agreement to extend, signed by one party only, is not 
 valid even for the purpose of preventing him from taking ad- 
 vantage of a delay beyond the original time limited.^ 
 
 If the submission be under a rule issued by a justice, any 
 extension of time mi^gt appear on his record. Otherwise the 
 award cannot be the basis of a judgment, though it may be 
 good at common law.^ 
 
 But an extension of time may be indirectly brought about 
 by the operation of the doctrine of waiver. If, after the time 
 named for the award has elapsed without award made, the 
 parties should, without objection, appear and proceed with 
 another hearing, the stipulation concerning time would be 
 thereby waived. Practically there would be an extension. 
 The preceding cases, therefore, must be taken to relate only to 
 deliberate and specific agreements to extend. 
 
 An extension of time, unless consented to by the sureties 
 on the arbitration bond, will operate to release them.* 
 
 A statutory submission, required to be acknowledged, if 
 extended to include other matters, must be again acknowledged 
 after the extension.^ 
 
 Substitution of Ne-w Arbitrator or Referee. — After an order of 
 reference has been entered into by stipulation, and the referee 
 is named therein, no other person can be substituted in his 
 place except by express consent of parties.^ Nor can the 
 parties to a reference by rule of court, by their own agreement 
 in pais indorsed on the rule, substitute another for the referee 
 named therein.'^ If they do so, the award cannot serve as the 
 
 1 Shermer v. Beale, supra. 
 
 2 Peters v. Johnson, 3 Har. & J. 291. 
 
 3 Lazell V. Houghton, 32 Vt. 579 ; to the same effect, substantially, is Russell 
 V. Gray, 6 Serg. & K. 145. 
 
 * Brookins v. Shumway, 18 Wis. 98. 
 5 Tudor V. Peck, 4 Mass. 242. 
 
 « Smith V. Warner, 14 Mich. 152 ; Shippen's Lessee v. Bush, 1 Dall. 251. 
 1 Woodbury v. Procter, 9 Gray, 18 ; but see Browning v. M'Manus, 1 Whart. 
 177 ; contra, Manlove v. Thrift, 5 Munf. 492 ; Lattimore v. Martin, Addis. 11. 
 
THE SUBMISSION. 85 
 
 basis of a judgment. But qucere, whether it might be sustained 
 as good at common law.^ 
 
 If a submission expressly stipulates for a power of substitu- 
 tion, the courts will recognize those whom the parties them- 
 selves clearly recognize (e. g., by proceeding before them) as 
 invested with the authority of arbitrators.^ And sometimes, 
 after the parties have appeared and proceeded before a substi- 
 tute, they will be held to have waived the right to object on the 
 sole ground of the substitution.^ 
 
 Enlargement of Rule of Reference. — After a rule of reference 
 has been once made, it cannot be enlarged, either upon recom- 
 mitment or otherwise, save with such consent of parties as 
 would be necessary in the case of an entirely new reference.* 
 
 Suit upon aii Altered Agreement to submit. — If the original 
 submission has been altered by any subsequent agreement, the 
 rule seems to be that suit must be brought upon the new 
 agreement to submit, implied in the agreement of alteration 
 taken in connection with the original bond. But suit cannot 
 be sustained on the original bond itself, since no breach precisely 
 of its conditions has taken place.^ The same rule applies, a 
 fortiori, where a new submission has been substituted for the 
 original one.^ 
 
 Correction of Errors in Submission. — Clerical errors and omis- 
 sions will either be corrected, or at least not allowed to invalidate 
 subsequent proceedings under the submission : e. g., the acci- 
 dental omission of the name of the third arbitrator in one 
 bond ; ' the accidental omission of a date, when the report was 
 
 1 Ibid ; and see Lazell v. Houghton, 32 Vt. 579 (cited supra). 
 
 2 Henneigh v. Kramer, 50 Fenn. St. 530 ; and see ante, Blanchard v. Murray, 
 15 Vt. 548. 
 
 » Browning v. M'Manus, 1 Wliart. 177 ; Bemus v. Clarke, 29 Penn. St. 251. 
 < Baxter v. Thompson, 25 Vt. 505 ; Rice u. Clark, 8 id. 104. 
 
 5 Freeman o. Adams, 9 Johns. 115 (citing and relying on English causes) ; 
 Bloomer v. Sherman, 5 Paige, 575 ; Myers v. Dixon, 2 Hall, (Sup. Ct. N. Y.) 456 ; , 
 Shockey's Adm'r v. Glasford, 6 Dana, 9 ; contra, Brookins v. Shumway, 18 
 Wis. 98. 
 
 6 George v. Farr, 46 N. H. 171. 
 ' Hill V. Taylor, 15 Wis. 190. 
 
86 THE SUBMISSION. 
 
 sufficiently dated.^ So where the words of the bonds were : 
 " Decision of the whole or any two of them shall be binding ; 
 then the above obligation to be void ; otherwise," &c., it was 
 held a condition for the perforMance of the award. ^ 
 
 Hovir long the Submission ■will remain in Force is a subject 
 considered in the chapter upon " The Duration of the Arbitra- 
 tor's Authority." The submission remains in force so long as 
 the authority of the arbitrator endures and e converso ; but it 
 seemed proper to discuss the topic under the above-named 
 head rather than in this connection. One point only may be 
 appropriately noticed here, as follows : — 
 
 If for any reason the submission is not binding upon all the 
 parties thereto, it fails to be binding upon any of them.^ In 
 the cited case, the submission was not binding by reason of a 
 failure of the consideration moving one of the parties to enter 
 into it ; that consideration having been the undertaking of the 
 other, party to do something which he was legally incompetent 
 or unable to do. But it has been also held that the state of 
 affairs prior to the submission cannot be gone into for the sake 
 of showing that the agreement to submit was without consider- 
 ation as towards one of the parties to it, and therefore void.* 
 
 stipulation in Submission to waive Appeal from Avsrard. — Par- 
 ties may waive their right to appeal from an award returnable 
 into court, or to file exceptions thereto. But they must do it 
 by express language, stating this specific intent, embodied 
 in the submission. Thus an agreement of submission in a 
 pending cause stipulated that the award should be final and 
 conclusive ; that neither party should have a right to appeal or 
 file exceptions to it, and that judgment should be entered upon 
 it so soon as it should be filed. The court held that, though 
 the statute gave a right of exception for an alleged mistake of 
 fact, the parties had by their stipulation conclusively abandoned 
 
 1 Bacon v. Ward, 10 Mass. 141. 
 '■i Kesler v. Kerns, 5 Jones, Law, 191. 
 3 Yeamans v. Yeamans, 99 Mass. 585. 
 « SchoflFw. Bloomfield, 8 Vt. 472. 
 
THE SUBMISSION. 87 
 
 this right. " That the court may disregard this agreement of 
 tlie parties . . . has nbt been seriously contended, and cer- 
 tainly cannot be claimed successfully." ^ 
 
 Such agreements have even been held to estop a party from 
 claiming a writ of error, though it is a writ of right.^ Though 
 in a case cited, Andrews v. Lee, the court remarks : " I ad- 
 ihit that bribery or corruption would vacate an award made 
 under any submission : so if the award was in terms which 
 could not be enforced, &c., &o., but nothing of the kind ap- 
 pears here." ^ So also in California, in case of fraud or 
 mistake appearing upon the face of the award.* 
 
 But the stipulation must be an express waiver in terms. An 
 agreement simply that the award shall be " final and conclu- 
 sive" is powerless to take away the right to assail its validity in 
 the ordinary way and upon the ordinary grounds. The words 
 are commonly used to express the intention of the parties to be 
 bound by the award, but they are not of greater force.^ Such 
 a stipulation is subject to the implied condition that the award 
 be made according to the submission.® 
 
 Whether or not the attorney of a party in a pending cause, 
 entering into a submission in the same, has authority to stipu- 
 late that the right to except to the award shall be waived, is 
 discussed but not finally adjudicated in Bingham's Trustees v. 
 Guthrie.^ 
 
 stipulation to " abide by " an Award. — A stipulation to 
 " abide by " an award is by no means equivalent, to a stipu- 
 
 1 McCahan u. Reamey, 33 Penn. St. 535 ; Rogers v. Playford, 12 Penn. St. 
 181 ; Bingham's Trustees v. Guthrie, 19 Penn. St. 418 ; Wightman u. Pettis, 29 
 Penn. St. 283. 
 
 2 Cunele v. Dripps, 3 Penn'a 291 ; Andrews v. Lee, 3 id. 99 ; and see McCahan 
 ». Kearney, 33 Penn. St. 535; Townsend v. Mastjarson Stone Dressing Co., 15 
 N. Y. 587 ; also a dictum in Eauck v. Becker, 12 Serg. & R. 412 (p. 416). 
 
 3 And see Rogers v. Playford, 2 Jones, 181 ; Daniels v. WiUis, 7 Minn. 874. 
 * Muldrow V. Norris, 2 Cal. 74. 
 
 5 McCahan v. Reamey, 33 Penn. St. 535 ; Large v. Passmore, 5 Serg. & R. 51 ; 
 Mussina v. Hertzog, 5 Binn. 387. But see Daniels v. Willis, 7 Minn. 374. 
 « McCracken v. Clarke, 31 Penn. St. 498. 
 ' 19 Penn. St. 418. 
 
88 THE SUBMISSION. 
 
 lation to dispense with the right to dispute the validity of the 
 award. It should rather be construed as equivalent to an 
 agreement to- abide an award, or to " await the award without 
 revoking the submission." ^ If it be allowable to criticise an 
 adjudication, it would certainly seem that this last construc- 
 tion of the phrase is hardly warranted by the real meaning of 
 the words. They are often used in connection with the word 
 " perform," and an agreement to abide by and perform " an 
 award " probably means no more than simply " to perform." 
 The ruling probably should be taken only as saying that an 
 agreement to abide by an award is of no greater force than an 
 agreement that it shall be "final and conclusive," already 
 commented upon. 
 
 1 Shaw V. Hatch, 6 N. H. 162. 
 
CHAPTER III. 
 
 AGREEMENTS TO SUBMIT. 
 
 No specific performance granted in equity. 
 
 Liability of party refusing. 
 
 Agreements to refer embodied incidentally in other contracts. 
 
 Agreement to refer, as condition precedent to right of action. 
 
 Pleadings. 
 
 Damages for refusal to refer according to agreement. 
 
 Breach of bond. 
 
 Wo Specific Performance granted in Equity. — " It is well set- 
 tled," says Judge Selden, " that courts of equity will never 
 entertain a suit to compel parties specifically to perform an 
 agreement to submit to arbitration." ^ 
 
 In an elaborate opinion,^ delivered by Mr. Justice Story, the 
 rule that a court of equity will not enforce specific perform- 
 ance of an agreement to refer is laid down, and is supported 
 both by argument and authority.^ A naked " agreement to 
 refer, without saying more, how, and when, and to whom the 
 submission is to be, can hardly be deemed any thing more than 
 an inchoate and imperfect agreement, the first step only in a 
 negotiation which is to fall of itself if the arbitrators are not 
 afterwards agreed upon." But if these subsequent matters, 
 such as the nomination of the arbitrators, have all been 
 settled, and the agreement to refer is complete and ab- 
 solute, still the impossibility of enforcing specific performance 
 survives. " The cases are divided into two classes : one where 
 
 / 
 
 1 Greason v. Keteltas, 17 N. Y. 491 ; Hurst v. Litchfield, 39 N. T. 377 ; Sin- 
 clair V. Tallmadge, 35 Barb. 602; March v. Eastern Kailroad, 40 N. H. 548; 
 Smith V. Boston, Concord & Montreal Railroad, 36 id. 487. 
 
 2 Tobey v. County of Bristol, 8 Story, 800. 
 
 s He cites Wellington v. Mackintosh, 2 Atk. 569 ; Mitchell v. Harris, 4 Bro. Ch. 
 311 ; s. 0. 2 Ves. Jr. 129; Kill v. Hollister, 1 Wils. 129 ; Street v. Rigby, 6 Ves. 
 Jr. 815 ; Thompson v. Charnock, 8 Term, 139. 
 
90 AGREEMENTS TO SUBMIT. 
 
 an agreement to refer to arbitration has been set up as a defence 
 to a suit at law as well as in equity ; the other, where the party, 
 as plaintiff, has sought to enforce such an agreement in a court 
 of equity. Both classes have shared the same fate. The 
 courts have refused to allow the former as a bar or defence 
 against the suit, and have declined to enforce the latter as ill- 
 founded in point of jurisdiction." The principles upon which 
 this ruling is based are also given by the learned judge. " The 
 first ground is, that a court of equity ought not to compel a 
 party to submit the decision of his rights to a tribunal which 
 confessedly does not possess full, adequate, and complete means 
 within itself to investigate the merits of the case and to ad- 
 minister justice." This should not be construed as equivalent 
 to a discouragement of arbitrations as against public policy. 
 The contrary is in fact the case. But the difficulty lies in 
 compulsion, and the taking away from the party who has en- 
 tered into such an agreement the locus poenitentice. In the 
 second place, " it is an established principle of courts of equity 
 never to enforce the specific performance of any agreement, 
 where it would be a vain and imperfect act, or where a spe- 
 cific performance is from the very nature and character of the 
 agreement impracticable or inequitable to be enforced." The 
 strength and appositeness of these objections to a bill for spe- 
 cific performance seemed to his honor so great, that he said 
 that even had he been unfettered by authorities, and free to 
 "decide the matter as a new question, he did not see how he 
 could have reached a different conclusion. 
 
 The same rule is well established also in England.^ 
 Liability of Party refusing. — The party refusing or rendering 
 it impossible to abide by the agreement to refer, is liable to the 
 other for damages, to be recovered in an ordinary suit based 
 
 '■ Gourlay v. Duke of Somerset, 19 Ves. Jr. 431 ; Agar v. Maoklew, 2 Sim. & 
 Stu. 418; Mitchell v. Harris, fi Ves. Jr. 129, notes 3, 4, Sumner's ed.; Earl of 
 Mexborough u. Bower, 7 Beav. 127 ; Tattersall v. Groote, 2 Bos. & P. 181 ; 
 Dari)ey v. Whitaker, 4 Drew. 134. 
 
AGREEMENTS TO SUBMIT. 91 
 
 on the breach of contract. But this is the only remedy of the 
 injured party. ^ 
 
 Agreements to refer embodied incidentally in other Contracts. — 
 If there be inserted in a contract a simple provision or agree- 
 ment, declaring that any disputes which shall arise thereunder 
 shall be referred to arbitration, this will not suffice to oust the 
 courts of law of their ordinary jurisdiction. Either party may 
 sue the other upon the contract, without having made any effort 
 towards carrying out the reference.^ His doing so will probably 
 lay him open to be sued in his turn for damages for breach of 
 his agreement to refer.^ But his own suit will not be stayed 
 or impeded by the agreement. 
 
 Nor does it make any difference that the arbitration has 
 actually been entered upon and proceeded with, but without 
 success in obtaining an award. Suit may still be maintained 
 upon the original contract.* 
 
 But if, in pursuance of the agreement, the parties have 
 proceeded in the arbitration, and an award has actually been 
 made, it has precisely the same force as an award under ordi- 
 nary circumstances, and the power of the courts to entertain 
 a suit on the original contract is at an end.^ 
 
 In Pennsylvania, whenever incidental agreements for estimat- 
 ing and valuing work are inserted in contracts, the tendency of 
 the courts has been to hold the parties very strictly to the per- 
 
 ' Haggart v. Morgan, 5 N. Y. (1 Seld.) 422; Miller v. President, &o., of the 
 Junction Canal Co., 53 Barb. 590. 
 
 2 Smith V. Boston, Coiicord & Montreal Railroad, 36 N. H. 487 ; March v. 
 Eastern Railroad, 40 id. 548 ; Randel v. Chesapeake & Delaware Canal Co., 1 Har- 
 ringt. 233 ; Stone v. Dennis, 3 Porter, 231 ; Allegre v. Maryland Ins. Co., 6 Har. 
 & J. 408 ; Gray v. Wilson, 4 Watts, 39 ; Cavanagh v. Dooley, 6 Allen, 66 ; «owe 
 «. Williams, 97 Mass. 163 ; Hurst v. Litchfield, 39 N. Y. 377. Such agreements 
 are not equivalent to agreements not to sue. Street v. Rigby, 6 Ves. Jr. 814 ; 
 Dimsdale v. Robertson, 2 Jones & La. 58, overruling Tattersall v. Groote, 2 Bos. & 
 P. 131 ; Percival v. Herbemont, 1 M'MulIan, 59. 
 
 3 Ibid. ; Livingston v. RalU, 24 L. J. Q. B. 269 ; 5 El. & Bl. 132. 
 * Cavanagh v. Dooley, 6 Allen, 66. 
 
 6 Smith V. Boston, Concord & Montreal Railroad, 36 N. H. 487 ; Cleworth v. 
 Plckford, 7 Mee. & W. 314. 
 
92 AGREEMENTS TO SUBMIT. 
 
 formance of such agreements, as being at least a necessary pre- 
 liminary to the right to sue. The decision of the referee will 
 be conclusive as to quantity, price, &c., and afterwards suit can 
 be brought only to enforce or recover upon his findings.^ In 
 one case,^ where the agreement was to " waive any right of 
 action, suit, or suits, or other remedy in law or otherwise," 
 and that the decision of the engineer should, " in the nature of 
 an award, be final and conclusive," the courts held it to be a 
 complete and binding submission to arbitration, and that there 
 was no right in the one party to sue the other, although the 
 engineer refused to act, or decided wrongly or even fraudulently. 
 The remedy could be only by suit against him. This is a very 
 interesting cause and well worthy of careful examination. The 
 Pennsylvania rule is in fact equivalent to holding such agree- 
 ments to be always conditions precedent to the right to sue, a 
 subject considered hereafter. The courts of other States differ 
 from those of Pennsylvania only inasmuch as they manifest 
 less willingness to adopt this construction 'in cases where the 
 precise language would not have the effect of creating such a 
 condition. 
 
 But in Snodgrass v. Gavit,^ where the incidental agreement 
 provided for a reference to arbitrators to be mutually chosen, 
 and one party sued the other on the contract without any sub- 
 mission having been made in pursuance of the proviso to that 
 effect, the court refused to allow the defendant to set up in 
 defence the failure to carry out the agreement to refer, unless 
 he showed positively that he himself had been ready and desirous 
 to carry it out, and had been prevented from doing so only by 
 the refusal of the plaintiff to concur with him. Otherwise 
 " the inference was a fair one that the indefinite submission 
 mentioned in the articles had been waived, and each party left 
 
 1 O'Keilly v. Kerns, 52 Perm. St. 214 ; Monongahela Navigation Co. u. Fenlon, 
 4 Watts & S. 205 ; Eaunce v. Burke, 16 Penn. St. 480 ; Snodgrass v. Gavit, 28 
 id, 221. 
 
 2 Reynolds v. Caldwell, 51 Penn. St. 298. 
 5 28 Penn. St. 221. 
 
AGREEMENTS TO SUBMIT. 93 
 
 to his full rights both of attack and defence." Thi# case is an 
 earlier one than that of Reynolds?;. Caldwell, and is not appar- 
 ently intended to be overruled by it. Yet the two certainly 
 escape inconsistency only by the aid of very strict and narrow 
 construction. It is probable that the more moderate force which 
 Snodgrass v. Gavit gives to incidental agreements to refer, would 
 be regarded as the more acceptable doctrine in most States. 
 
 In England it is said that if the agreement to refer future 
 disputes names the referee, then it is a complete submission.^ 
 So it is, also, if it provides the manner in which they shall be 
 nominated, and they in fact are afterward nominated in this 
 manner, despite that one of the parties is unwilling.^ 
 
 Agreeraeut to refer as Conation precedent to Right of Action. — 
 But if the parties agree substantially to make the reference a 
 condition precedent or necessary preliminary to the institution 
 of a suit, then the reference must be carried out.^ Thus if in 
 a building contract it should be provided that the architect's 
 certificate of the value of any extra work should be obtained as 
 a condition precedent to the right to bring an action for such 
 value, then the certificate would have to be procured before 
 suit could be sustained.* 
 
 Or the stipulation may be, to pay so much as a third person 
 shall determine to be just ; or it may be, that work shall be 
 done or materials furnished, to the satisfaction or acceptance of 
 a third person ; or that the price to be paid shall be dependent 
 upon his decision as to the quantity, quality, or price of the 
 materials or workmanship.^ In each of these cases the action 
 
 1 Parkes v. Smith, 15 Q. B. 297. 
 
 2 Haddan v. RoupeU, 9 C. B. n. s. 683; Woodcrofl u. Jones, 9 Dowl. 538. 
 
 3 Smith V. Boston, Concord & Montreal Railroad, 36 N. H. 458 ; Rowe v. 
 WiUiams, 97 Mass. 163 ; Goldstone v. Osbom, 2 Car. & P. 550 ; Scott v. Avery, 8 
 Exch. 487 ; 5 H. of L. Ca. 811 ; Tredwen v. Holman, 31 L. J. Exch. 398 ; Russell 
 V. Pelegrini, 6 El. & Bl. 1020 ; Hemans v. Picciolto, 1 C. B. n. s. 646 ; Braunstein 
 V. Accidental Death Ins. Co., 31 L. J. Q. B. 17 ; Westwood v. Secretary for India, 
 1 N. R. 262. 
 
 4 Hurst V. Litchfield, 39 N. Y. 377. 
 
 5 Smith V. Boston, Concord & Montreal R.K., 36 N. H. 458. And see United 
 States V. Robeson, 9 Pet. 327. 
 
94 AGREEMENTS TO SUBMIT. 
 
 of the third person must take place before the right to sue 
 can mature. 
 
 Where a lease stipulated that at the close of the term the 
 value of the buildings should be appraised by persons to be 
 chosen by the parties, and that the lessor should purchase the 
 buildings of the lessee at the price so set by the appraisers, it 
 was held, that before the lessee could sue for the value of the 
 buildings he must show that he had done all that was reason- 
 ably in his power to have the appraisement made ; that having 
 shown this, and that his efforts had been vain, he might then 
 sue for the fair value ; but that the failure of a board of ap- 
 praisers to agree, or their misconduct such as to disqualify them- 
 selves, was not conclusive evidence; as matter of law, that the 
 lessee had used all such reasonable exertions.^ 
 
 An agreement of parties was that a payment for labor on cer- 
 tain houses should be made when the architect should give a 
 certificate that " the work was fully and completely finished 
 according to the specification." Held, no suit could be main- 
 tained until this certificate, either in the precise terms used or 
 in language practically equivalent, should have been given ; 
 though there was no tendency manifested to regard the required 
 proceeding as an arbitration.^ 
 
 The rules of a Maine insurance company, established on mu- 
 tual principles, required an award by arbitrators as a condition 
 precedent to a suit, and that the suit should then be brought 
 only for the amount awarded. It was held that these provisos 
 were legal and binding upon members.^ 
 
 The duty of procuring the decision of the referee in cases 
 like the foregoing rests primarily upon the party who will have 
 the claim for payment ; i. e., upon the plaintiff in the suit to 
 be brought after the right of action shall have accrued. He 
 must use his best exertions to bring about and perfect the 
 
 1 Hood V. Hartshorn, 100 Mass. 117. 
 
 2 Smith V. Briggs, 3 Denio, 73. 
 
 3 Scott V. Avery, 5 H. of L. Ca. 811. 
 
AGREEMENTS TO SUBMIT. 95 
 
 agreement of reference. And it seems that his failure to 
 bring it about will enable him to institute suit without it, only 
 in case the obstacle to his success has grown out of the contu- 
 macious action of the other party. The debtor cannot, by pre- 
 venting the perfection of the reference, escape the liability to 
 be sued.i 
 
 Pleadings. — In suit brought under a contract containing a 
 stipulation in the nature of a condition precedent for a meas- 
 urement or estimate to be made by a third party, or for labor 
 or materials to be according to his satisfaction, it must be al- 
 leged that he has made the estimate or has accepted or is sat- 
 isfied with the work or materials. For, unless it appears that 
 these things have been done or their performance excused, it 
 is not shown that the right of action has accrued. If this 
 averment be omitted, the plaintiff must be nonsuited on the 
 ground of variance, since the contract alleged is absolute, and 
 that proved is conditional. If, however, the contract be truly 
 stated, but the fact of a decision by the referee is omitted, the 
 declaration will be held bad on demurrer or in arrest of judg- 
 ment, as showing no cause of action; or the plaintiff will be 
 nonsuited, because his evidence fails to show a riglit of action.^ 
 If the reference has been prevented by the defendant, in spite 
 of the endeavors of the plaintiff to perfect it, this fact must be 
 averred.^ 
 
 If the stipulation of the contract is that the estimate shall 
 be made by, or the work and materials be furnished to the sat- 
 isfaction and acceptance of, the party who is to make the pay- 
 ment for them, it will be void by virtue of the general rule that 
 no man shall be a judge in his own cause. In such case, it 
 need only be alleged that the work was properly performed, 
 that the defendant ought to have accepted it, and wrongfully 
 refused to do so, or that he ought to have made an estimate, and 
 
 1 Smith V. Boston, Concord & Montreal Railroad, 36 N. H. 458. 
 
 2 Ibid. 
 
 3 Ibid. 
 
96 AGREEMENTS TO SUBMIT. 
 
 wrongfully refused to do so, or made an erroneous one ; and that 
 the correct estimate is, &c. And it has sometimes been held 
 that these stipulations need not be referred to at all in the 
 declaration.^ 
 
 Damages for Refusal to refer according to Agreement. — Rus- 
 sell says that under the shape in which agreements to submit 
 embodied incidentally in other contracts are usually drawn up, 
 only nominal damages could be recovered, since the jury 
 would have no means of estimating substantial damages.^ 
 Lord Eldon advises the naming of some sum as liquidated 
 damages.^ A case in the courts of Vermont says that the 
 party refusing to proceed shall refund the costs and expenses 
 incurred by the other, unless the cause of action has been 
 released as a consideration for the submission ; in which event, 
 the value of the cause of action must be included in making 
 up the damages.* 
 
 Breach of Bond. — If an arbitration bond contains a clause 
 binding the parties to " have and perfect " the reference, either 
 of them who hinders the arbitrators from proceeding and award- 
 ing commits a breach of the bond ; and this equally whether 
 the arbitrators have or have not actually undertaken to arbitrate 
 or to award ; and whether the hinderance related to the whole sub- 
 ject-matter of the arbitration, or only to some small portion there- 
 of falling incidentally within the authority of the arbitrators.^ 
 
 The consequence of the misconduct of parties in neglecting 
 or refusing to present a claim, which by the submission they 
 are bound to present, thereby making a breach of their agree- 
 ment to refer, is discussed under the head of " Operation and 
 Effect of the Award." 
 
 1 Smith V. Boston, Concord & Montreal Railroad, 36 N. H. 458. 
 
 2 Russell on Awards, 3d ed. p. 63. 
 
 3 Street v. Rigby, 6 Ves. Jr. 814. 
 
 * Day V. Essex County Bank, 13 Vt. 97. 
 
 ' Quimby v. Melvin, 28 N. H. 250 ; 35 id. 198. 
 
PAET 11. 
 
 THE ARBITRATOR. 
 
CHAPTEE IV. 
 
 THE OFFICE OF ARBITEATOE. 
 
 Who may be an arbitrator. 
 Disqualifications. 
 
 1. Interest. 
 
 2. Eelationship. 
 
 3. PreconceiTed opinion. 
 
 "Waiver of objection on any of the aforesaid grounds. 
 
 Time, etc., of availing of objection on the aforesaid grounds. 
 
 A party may be also an arbitrator. 
 
 Judge of court as referee. 
 
 Arbitrators are agents of the parties. 
 
 They must be impartial agents of both parties alike. 
 
 Impartiality is a fundamental requisite. 
 
 Officials as arbitrators. 
 
 Public commissioners are amenable to the court. 
 
 Absence of person named as arbitrator. 
 
 Administration of oath to arbitrator. 
 
 Statutory provisions concerning arbitrator's oath. 
 
 Effect of neglect to administer oath. 
 
 Form of oath. 
 
 Dispensing with oath. 
 
 Presumption concerning the oath. 
 
 Pleadings concerning the oath. 
 
 Swearing the umpire. 
 
 Who may be an Arbitrator. — As a general statement, it may 
 be said that any person whomsoever may be cliosen to fill the 
 position of arbitrator. " Neither natural nor legal disabilities," 
 says Russell, " hinder a person from being an arbitrator." ^ And 
 he adds that " it has indeed been laid down as law, in works 
 to which great respect is due, that idiots, lunatics, infants, 
 married women, persons attainted and excommunicated, are 
 disqualified for the oflSce ; ^ but the better opinion is, that they 
 
 1 Eussell on Arb., 3d ed. p. 105 ; citing Huntig v. Balling, 8 Dowl. 879. 
 
 2 Com. Dig. Arb. C, West. Symb., pt. II., Tit. Compromise, pp. 164, 165, 
 §§ 23, 26. 
 
100 THE OFFICE OF ARBITRATOR. 
 
 may be arbitrators ; for every person is at liberty to choose 
 whom he likes best for his judge, and he cannot afterwards ob- 
 ject to the manifest deficiencies of those whom he has himself 
 selected." ^ 
 
 Disqualifications. — Yet there are various facts affecting the 
 relationship of the person named, as arbitrator, or his senti- 
 ments, towards any party to the submission, which, if not 
 known at the time of entering into the submission, may avoid 
 it at any stage in the proceedings, or may even avoid the award 
 itself. 
 
 1. Interest. — If the person selected as arbitrator has any 
 secret interest in the result or decision of the controversy, he 
 is incompetent.^ But the interest, in order to have this effect, 
 must not be so remote or contingent that it cannot supposably 
 affect his action. Thus shareholders in a bank which holds 
 shares in a railroad corporation pledged to it a^ collateral secu- 
 rity by a person in good financial standing, are not disqualified 
 by reason of interest from acting as arbitrators under a sub- 
 mission to which the railroad company is a party .^ In this case, 
 the testimony of the referees was offered to prove their igno- 
 rance of the fact that such security was held by the bank. The 
 evidence was objected to. But the court said it was altogether 
 immaterial whether it was properly admitted or not, since the 
 interest of the referees " was too remote and contingent to 
 induce any reasonable suspicion that it could have influenced 
 their decision." 
 
 A debtor or creditor of one of the parties to the submission 
 is said not to be, therefore, necessarily incompetent to act as 
 an arbitrator. It should be shown further that the debt is 
 considerable, or that it is unsecured, or that the debtor is in 
 such circumstances that the decision of this case may appre- 
 ciably affect his ability to pay the debt ; or otherwise that the 
 
 1 Bacon's Abr. Arb. D. ; Huntig v. Balling, 8 Dowl. 879. 
 
 2 Parker v. Burroughs, CoUe'e Pari. Ca. 257 ; Earl v. Stooker, 2 Vern. 251 ; 
 and also cases cited below. 
 
 ' Inhabitants of Leominster v. Worcester E.R. Co., 7 Allen, 38. 
 
THE OFFICE OF AEBITRATOR. 101 
 
 decision may affect the creditor's chances of obtaining pay- 
 ment.i 
 
 2. Relationship. — The existence of a relationship or family 
 connection between the arbitrator and a party to the submis- 
 sion, will be a sufficient ground for a revocation pending the 
 proceedings, or for setting aside the award afterward.^ 
 
 3. Preconceived Opinion. — ^ Persons who already have formed 
 an opinion, or received a bias, on the subject-matter of the sub- 
 mission, are incompetent to act as arbitrators.^ For example, 
 where an architect had assured a lady that the price of build- 
 ing a certain church should not exceed a specified sum, though 
 he had refused to guarantee it, he was held by a court of c^jan- 
 cery to be an improper person to determine upon claims for 
 extras made by the iDuilder against the lady.* So, also, where 
 a loss by fire had taken place, which was covered by an insur- 
 ance policy, and the insurers sent down two persons imme- 
 diately after the fire to make an estimate of the amount of 
 damage, and these persons did so, and were afterward, upon a 
 dispute arising, suggested as arbitrators by the insurers, and 
 accepted by the defendants, who knew, indeed, that their last 
 names were the same as those of the parties who had made the 
 estimate, but did not know them to be in fact the identical 
 persons, it was held that this was a sufficient reason for avoid- 
 ing the award." 
 
 In each of these cases, the opinion of the person nominated 
 as arbitrator was, at least substantially, known to the party in 
 whose favor it might be expected to operate. Whether or not 
 the existence of a prepossession or prejudice in the mind of 
 the arbitrator, if wholly unknown to both parties, or if known 
 only to him against whom it would operate (if this latter case 
 
 1 Wallis V. Carpenter, 13 Allen, 19 ; Morgan v. Morgan, 1 Dowl. 611 ; Drew 
 V. Drew, House of Lords, March 8, 1855, cited in Russell on Arb., 3d ed. p, 106. 
 '^ Brown v. Leavitt, 26 Maine, 251. 
 3 Fox V. Hazelton, 10 Pick. 275, stated at length below. 
 * Kemp v. Rose, 1 Giff. 258. 
 ' Conrad v. Massasoit Insurance Company, 4 Allen, 20. 
 
102 THE OFFICE OF ARBITRATOK. 
 
 be conceivable), would avoid the award, is a very different 
 question, not determined by any adjudicated case so far as I 
 can discover. In Fox v. Hazelton it is left doubtful whether 
 the plaintiff knew of the bias in the referee's mind in his favor 
 and against the defendant. But there was no evidence to this 
 effect offered, and the inference would be, since it was not 
 alleged that the plaintiff was cognizant of the fact, that lie 
 really was not so, or was not supposed to be so. 
 
 Waiver of Objection on any of the Aforesaid Grounds. — But 
 the parties may, if they choose, waive the objection which might 
 exist on any of the preceding grounds. They are at liberty to 
 select a person interested or a person prejudiced, a relation or 
 an enemy of either of them. Judge Gushing said, in Strong v. 
 Strong : 1 "If indeed parties in controversy choose to waive 
 the right of impartial trial, and purposely and avowedly select 
 as arbitrators persons having formed opinions on the subject- 
 matter, or known to have partialities for and against the re- 
 spective parties, the court, without commending, will not set 
 aside the award merely because of the character of the arbi- 
 trators." And Cliief Justice Shaw said, in Fox v. Hazelton : ^ 
 " Volenti nonfit injuria. If parties are content to submit ques- 
 tions in controversy to those who are known to have formed 
 and expressed opinions upon the subject-matter, or wlio are 
 known to have partialities or prejudices for or against the re- 
 spective parties, an award made by such arbitrators is binding." 
 As it often happens, each party selects some one in whose 
 favorable opinion he reposes confidence, and it is trusted that 
 the opposite prejudices will balance each other. Awards made 
 by such referees cannot be impeached. 
 
 A person selected as a referee had, at various times, ex- 
 pressed a strong bias, almost equivalent to a prejudgment of 
 the case, in favor of one the parties and against the other. The 
 latter party was not aware of this fact at the time of agreeing 
 
 1 9 Gushing, 560. 
 a 10 Pick. 275. 
 
THE OFFICE OF AEBITEATOE. ' 103 
 
 upon the referee. But afterward, and before the hearing, he 
 was told by another person of the expressions which had been 
 used by the referee, and he learned other facts which might cre- 
 ate a suspicion of the existence of a prejudice against himself. 
 He took no notice of this information, however, and proceeded 
 with the hearing without objection. Not until after the report 
 had been rendered did he move the court to set aside the 
 award on the ground of partiality. The motion was refused. 
 Chief Justice Shaw said : " If the objection is known to the 
 party before the hearing and not then disclosed, and no excep- 
 tion taken, the objection must be taken to be waived, and the 
 consent of the parties be presumed, that the hearing shall pro- 
 ceed. . . . The evidence is quite sufficient to show that if the 
 party was not fully apprised of the partiality of the referee 
 before the hearing, he had ample notice to put him upon in- 
 quiry which would have led to the full knowledge of the fact ; 
 and had the exception been taken at the hearing, and the ref- 
 erees had persisted in proceeding, it would have been a strong 
 ground of objection to the award. As he was content to 
 proceed witli a knowledge of the fact, relying upon tlie strength 
 of his cause, or the capacity and firmness of the other referees, 
 he must be deemed to have waived his exception." ^ 
 
 Hence arises the necessity for the existence of the ele- 
 ment of secrecy, at least as towards the party likely to be 
 injured by the existence of interest or relationship, or by the 
 preconceived opinion or bias. If such pai'ty is aware of the 
 fact at the time of entering into the submission, and neverthe- 
 less voluntarily binds himself by the undertaking, he cannot 
 afterward make it the basis of an objection. He will be taken 
 to have conclusively waived his right to avail himself of it in 
 this manner. Thus if parties submit to one whom they know 
 to be the owner of certain lands, a question respecting the mode 
 and expense of making a drain which will substantially benefit 
 his estate, his award will be good in spite of his own interest 
 
 1 Fox I'. Hazelton, 10 Pick. 275. 
 
104 THE OFFICE OF ARBITRATOR. 
 
 in it.i And the architect or surveyor, employed to superintend 
 a builder in the erection of a house, and whose pay is a com- 
 mission on the amount of the building charges, may act as an 
 arbitrator between the builder and the employer, provided the 
 latter agrees to it.^ 
 
 A somewhat odd case was where the parties had bound them- 
 selves in a bond to the arlitrator to abide by his award. It was 
 argued that the arbitrator was interested to make an unreason- 
 able award, so that the losing party should be tempted to re- 
 fuse to perform it, and should forfeit the penalty. But this objec- 
 tion was overruled, and the submission and award were upheld.^ 
 
 It seems that knowledge on the part of the attorney of a 
 party may sometimes be equivalent to knowledge of the party 
 himself. Where the reference was to three persons, of whom 
 one was in the same room with the plaintiff's attorney and in 
 daily and friendly intercourse with him, the court refused to 
 treat the fact as a ground for setting aside the award, because 
 it was " known to the defendant's attorney before the reference 
 commenced." Whether or not the defendant personally knew 
 the fact does not appear ; the court was content to rest its 
 decision on the knowledge of his attorney.* 
 
 Time, &c., for availing of Objection on the Aforesaid Groxinds. — 
 It will be observed that the matter of the time when the objec- 
 tion is to be taken is of the essence of this matter of waiver. 
 The rule is that it must be taken by the party aggrieved so 
 soon as he becomes aware of the existence of the fact creating 
 the incompetency. It is likened to the case of challenging a 
 juror.^ The party will not be allowed to lie by after he has 
 attained the knowledge, and proceed with the hearing without 
 objection, thereby accumulating expense and taking his chance 
 
 1 Johnston v. Cheape, 5 Dow Pari. 247; Drew v. Drew, H. of L., March 8, 
 1855 ; cited in Russell on Arb., 3d ed. p. 106. 
 
 2 Morgan v. Birnie, 9 Bing. 672. 
 ' Owdy V. Gibbons, Comb. 100. 
 
 4 Perry v. Moore, 2 E. D. Smith, 32. See Combs v. Wyckoff, 1 Caines, 147, 
 cited post. 
 
 5 Fox V. Hazelton, 10 Pick. 275. 
 
THE OFEICE OF ARBITRATOR. 105 
 
 of a decision in his favor, and tlien, at a later stage, or after a 
 decision has been, or seefhs likely to be, rendered against him, 
 for the first time produce and urge his objection.^ 
 
 If the attorney of a party has assented to a person as ref- 
 eree in a pending cause, who is, without his knowledge, person- 
 ally hostile to his client, it is the duty of the client within a 
 reasonable time after learning the fact of the assent, to apply 
 to the court to remove this referee and appoint another. Oth- 
 erwise he will waive his right to object on this ground to the 
 validity of the award.^ 
 
 A Party may be also an Arbitrator. — Even the rule that a 
 party cannot be a judge in his own cause, may be disregarded 
 by parties in choosing an arbitrator. If two disputants agree 
 that one of them shall finally determine the matter in issue, 
 his award will be good, though it be in his own favor.^ 
 
 Stewards of a horse-race are not disqualified from determin- 
 ing disputes by reason of their being interested by their own 
 bets upon the race. For, it is said, parties must expect that 
 very probably they will bet ; and, moreover, they are not, strictly 
 speaking, arbitrators.* 
 
 Judge of Court as Referee. — It seems that though a judge 
 cannot appoint himself referee in a cause pending before him, 
 yet he may by special agreement of parties act as such.^ But 
 parties cannot enter into a rule of reference before a justice 
 by which he is himself named as referee.® 
 
 1 Brown v. Leavitt, 26 Maine, 251 ; Perry v. Moore, 2 E. D. Smith, 32. 
 
 2 Combs V. "Wyckoflf, 1 Cainea, 147. 
 
 * Matthew v. OUerton, 4 Mod. 226 ; Comb. 218 ; and see Hunter v. Bennison, 
 Hardw. 43. 
 
 * Ellis V. Hopper, 28 L. J. Exch. 1 ; Parrw. 'Winteringham, 28 L. J. Q. B. 123; 
 Russell on Arb., 3d ed. p. 107. 
 
 5 Dinsmore v. Smith, 17 Wis. 20 ; Walworth Coimty Bank v. Farmers' Loan, 
 and Trust Co., 22 id. 231 (in which, however, the custom is reprobated) ; Davis 
 V, Eorshee, 34 Ala. 107 ; Galloway's Heirs v. Webb, Hardin, 318. In the last ease 
 the court intimated an astute doubt as to whether or not they could judicially 
 know that the persons named as arbitrators were identical with certain judges 
 of the court who happened to bear the same names. 
 
 6 Drew V. MuUikin, 6 N. H. 153. 
 
106 THE OETICE OF ARBITEATOR. 
 
 If no proceedings are pending or contemplated in court, 
 there is of course no objection to selecting a judge to act as an 
 arbitrator under a submission in pais. On the contrary, it is 
 very common so to do, and no objection has ever been made to 
 the arrangement before any tribunal of authority. 
 
 If the parties submit a lis pendens to the judge of the court, 
 he is an ordinary arbitrator acting in pais, and no writ of error 
 will lie to his decision and award.^ 
 
 Arbitrators are Agents of the Parties. — Arbitrators are Con- 
 sidered to be the agents of both parties. Their acts are there- 
 fore equivalent to the acts of the parties themselves. Thus a 
 balance found by them is substantially the same as a balance 
 struck by the parties. It is true that the latter may be opened, 
 explained, and corrected, and the former is final. " But this 
 only proves that arbitrators are a more solemn kind of agents, 
 through whose acts the parties may, if they please, estop them- 
 selves just as they may by their own acts " if they choose to 
 release under seal.^ 
 
 They must be Impartial Agents of both Parties alike. — But it 
 is to be remembered that they are agents of both parties alike, 
 and not of one party only. A single arbitrator, agreed upon 
 by both disputants, is not likely to forget that he is to be an 
 impartial judge. But where each party nominates an arbitra- 
 tor, the nominee may sometimes be tempted to regard himself 
 as specially bound to protect the interest of his appointor ; the 
 notion, however, is wholly wrong. Under no circumstances can 
 an arbitrator become an advocate. He is always bound to 
 exercise the highest degree of judicial impartiality, without the 
 slightest regard to the manner in which the charge has been 
 placed upon him.^ 
 
 In Calcraffc v. Roebuck,* Lord Thurlow said that by con- 
 
 1 Hughes's Adm'r v. Peaslee, 50 Penn. St. 257. 
 
 2 Hays V. Hays, 23 Wend. 363 ; Browning v. Wheeler, 24 id. 258 ; Keen v. 
 Batshore, 1 Esp. 194. 
 
 » Kussell on Arb., 3d ed. p. 205. 
 < 1 Ves. Jr. 227. 
 
THE OFFICE OF ARBITRATOR. 107 
 
 sidering himself the agent of the person appointing him, the 
 arbitrator would act against good faith and would break a most 
 solemn engagement. So in Featherstone v. Cooper,^ Lord 
 Eldon said that arbitrators must understand that " they are 
 acting corruptly, acting as agents ; " meaning of course, as is 
 shown by the context, acting as agents of one party in contra- 
 distinction to acting as agents of both parties. 
 
 Impartiality is a Fundamental Requisite. — From tllis rule aS tO 
 agency, and indeed also from all the foregoing pages of this 
 chapter, may be gathered the rule that the fundamental requisite 
 in the arbitrator is impartiality. If partiality should reach the 
 stage of fraud or misconduct, it is well .established that the 
 award would be thereby rendered void. But far short of these 
 points there may exist a partiality which will unfit a person to 
 fulfil the functions of an arbitrator. Judge Gushing said : 
 " Like jurors impanelled for the trial of a cause, or judges on 
 the bench, they [arbitrators] are invested pro hac vice with 
 judicial functions, the rightful discharge of which calls for and 
 presupposes the most absolute impartiality. And a judge, a 
 juror, an arbitrator, should not only possess the quality of 
 impartiality in fact, and have the conscience of it in the given 
 case ; he should moreover sedulously shun all the possibilities 
 even of insensible bias. And though, therefore, arbitrators be 
 , nominated, one by each party, still they are not to consider 
 themselves as representing separate parties, and the advocates 
 of opposite sides, but as called on to execute a joint trust, and 
 to look impartially at the true merits of the matter submitted 
 to their judgment. In this Commonwealth ... it has been 
 held theoretically that arbitrators ought to be indifferent and 
 impartial, both in sentiment and in action. . . . Therefore proof 
 of bias and strong partiality on the part of an arbitrator would 
 form a serious objection to the acceptance of an award. It 
 would be no answer to the objection, that such referee did not 
 discover undue partiality in the deliberations of the referees, 
 
 1 9 Ves. Jr. 67. 
 
108 THE OFFICE OF ARBITRATOE. 
 
 and made no unusual exertion to influence their minds, because 
 it is impossible to determine to what extent their judgment 
 might have reposed on his reasonings and suggestions, or how 
 far their decisions were influenced by him." ^ This language 
 is almost a literal quotation of that used by Chief Justice Shaw 
 in the earlier cause of Fox v. Hazelton,^ wherein that distin- 
 guished jurist said that " proof of bias and of strong partiality 
 would have formed a very serious objection to the acceptance 
 of the report. ... If parties really intend to have their rights 
 decided by impartial judges, they are entitled to insist that all 
 shall be impartial." 
 
 The evidence in the last-named case was that one of the 
 referees, both prior to and after his appointment, had repeatedly 
 expressed himself as follows: "That the defendant ought to' 
 pay for getting the plaintiff indicted ; that he had inquired 
 into the business, and that the defendant was altogether in the 
 wrong ; that the defendant did it out of spite and malice ; that 
 he hoped the defendant would have to pay for it ; that the 
 plaintiff was a good man, but he thought otherwise of the 
 defendant." The court held that the partiality of this referee 
 both before and at the hearing seemed to be sufficiently proved 
 by this evidence. 
 
 The same rule is well established in England by several cases, 
 in which it has been held that enmity existing in the mind of the 
 arbitrator against a party, or. his use of expressions indicative 
 of bias or hostility, will suffice to render the award void, though 
 the other arbitrators who have also joined in the award are 
 above suspicion of partiality.^ 
 
 Specific acts of the arbitrators, such as the receipt of money, 
 or private consultations with a party, and the like, raising a 
 
 1 Strong V. Strong, 9 Gush. 560. 
 
 2 10 Pick. 275. 
 
 3 Earle v. Stocker, 2 Vernon, 251 ; Burton v. Knight, ib. 515 ; Bac. Abr. 
 Arb. K. ; Parker v. Burroughs, CoUe's Pari. Ca. 257 ; Ward's Case, cited in 2 
 Atk. 155, 396 ; Chicot v. Lequesne, 2 Vesey, Sen. 315 ; Russell on Arb., 3d ed. 
 p. 109. 
 
THE OFFICE OF ARBITEATOE. 109 
 
 suspicion of partiality, constitute misconduct, and will be con- 
 sidered hereafter under that head. 
 
 Officials as Arbitrators. — It often happens that persons filling 
 official positions are called upon to act as arbitrators in their 
 official capacity. Thus commissioners are often named by 
 statute for such duties. But in the absence of a statute the 
 intent to submit to them in this official capacity must be clearly 
 apparent, otherwise they will act as individuals only ; as in 
 the following case. A submission was made to certain persons 
 who, as matter of fact, constituted or were the members of " the 
 Committee of Arbitration of the Board of Trade of the City 
 of Portland." Of this official character, the submission by its 
 language took no notice ; but in the award the arbitrators 
 styled themselves " as such Committee," &c. It was held that, 
 especially since no objection had been taken at the hearing to 
 the method of procedure, the arbitrators were not bound to 
 conduct it in accordance with the rules and regulations of the 
 Board of Trade ; that the submission was to them as individuals, 
 not in their official capacity.^ 
 
 Public Commissioners are amenable to the Court. — Where 
 commissioners, acting under a statute, make a report in the 
 nature of an award, it seems that it will be treated by the 
 courts as an award ; and if the commissioners are appointed 
 by the court, they must return the award to it. A statute pro- 
 vided that upon petition by either one of connecting railroad 
 corporations, the Supreme Court should appoint commissioners 
 to determine the terms upon which each corporation should 
 carry the passengers and freight of the other. The court said 
 that although the statute contained no express provision con- 
 cerning the publication of the award of the commissioners, or 
 requiring them to make any return of their doings into the 
 court from which their commission issued, yet it necessarily 
 became their duty to do so, in order that it might be known 
 whether they had exercised the authority conferred upon them. 
 
 1 Stewart v. Waldron, 41 Maine, 486. 
 
110 THE OFEICE OF AEBITEATOE. 
 
 They derived all their right and power to act in the premises 
 at all from their judicial appointment. The court, therefore, 
 ■Vfould so far supervise and control their proceedings as to see 
 that, in discharge of the duties imposed upon them, they had 
 acted within the scope of their authority, and neither exceeded 
 nor failed to exercise the full measure thereof. In short, their 
 report was treated as an award, subject to be sustained or 
 rejected according to the ordinary rules of law governing 
 awards.^ 
 
 Absence of Person named as Arbitrator. — The absence in 
 Europe of a person named as arbitrator, has been held to be 
 sufficient proof of his inability to act to justify the appointment 
 of a substitute in the manner provided for that purpose in the 
 submission.^ 
 
 And see 'post, under " Adjournment," Harrington v. Rich, 6 
 Vt. 666. 
 
 Administration of Oath to Arbitrator. — The rule at common 
 law is that an arbitrator or referee chosen by agreement of par- 
 ties need not be sworn.^ And this is so, even though he be 
 clothed by the agreement with all the powers appurtenant to 
 another description of officer whom the statute requires to act 
 under oath.* For in the latter case, as in the former, he de- 
 rives his -authority from the voluntary selection of the parties, 
 by which they express their confidence in him and a willingness 
 to abide his decision without an oath. 
 
 Statutory Provisions concerning Arbitrator's Oath. — Statutes 
 providing for arbitrations usually declare that the arbitrators 
 may or shall be sworn. When submissions fall within the stat- 
 utory provisions, it has become a question of frequent occur- 
 rence whether the direction that an oath shall be administered 
 is imperative or merely permissive ; that is to say, whether the 
 administration of the oath is indispensable, or whether it is a 
 
 1 Boston & "Worcester Eailroad Co. v. Western Railroad Co., 14 Gray, 253. 
 
 2 Binsse v. Wood, 47 Barb. 624. 
 
 3 Bradstreet v. Erskine, 50 Maine, 407 ; Daggy v. Cronnelly, 20 Ind. 474. 
 
 4 Ibid. 
 
THE OFFICE OF ARBITRATOR. Ill 
 
 mere extraordinary safeguard furnished for the protection of 
 the parties, and of which tliey may or may not avail themselves 
 at their pleasure. The rule has been differently declared in difi 
 ferent States. By some tribunals, the power on the part of the 
 parties to waive the formality has been asserted ; by others it 
 has been denied. 
 
 lu Louisiana and New Jersey, the statute requires the arbi- 
 trator to be sworn, and the swearing is indispensable.^ All 
 must be sworn, though a majority may make the award.^ 
 
 In New York and Vermont, the parties may dispense with the 
 oath of either arbitrators or witnesses.^ And it is held that they 
 do so dispense with it by proceeding with the hearing when the 
 oath has not been administered.* This evidence of waiver is 
 declared to be conclusive.^ 
 
 Effect of Neglect to administer Oath. — It is further held 
 in New York that the objection that an arbitrator has not been 
 sworn, even when available as a defence at all, is merely tech- 
 nical. A court of equity will not open a regular order to 
 close the proofs and a decree founded thereon, solely to allow 
 a party to introduce such an objection to the validity of the 
 award. On the contrary, even if other causes should render 
 it proper to open the order to close the proofs, it is said that 
 there should be a special restriction against the introduction of 
 any evidence going to sustain this technical objection.^ 
 
 Under a New York statute requiring a referee to be sworn, 
 the court held that he acquired jurisdiction from the order of 
 the court, even though the oath was not administered to him, 
 
 1 Oyerton v. Alpha, 13 La. An. 558 ; Inslee v. Flagg, 2 Dutoher, 368 ; Combs 
 V. Little, 3 Green Ch. 310 ; Bowen v. Lanning, 1 Penning. 139 ; Reeves u. Goff, 
 ib. 143 ; Parker v. Crammer, ib. 271 ; Little v. Silverthorne, 2 id. 680 ; Crammer 
 V. Mathis, ib. 550 ; contra, but overruled, Ford v. Potts, 1 Halst. 393. 
 
 2 Deputy V. Betts, 4 Harrington, 352. 
 
 s "Woodrow V. O'Connor, 28 Vt. 776 ; Browning v. Wheeler, 24 Wend. 258 ; 
 Howard v. Sexton, 1 Denio, 440 ; 4 Comst. 157. 
 * Sloan V. Smith, 1 Denio, 440. • 
 
 5 Winship v. Jewett, 1 Barb. Ch. 173. 
 
 6 Ibid. 
 
112 THE OFFICE OP ARBITRATOR. 
 
 and that the neglect was an irregularity merely, and could be 
 the subject only of a motion.^ 
 
 ' In California, where the statute does not require referees to 
 be sworn, it is held that though the oath be administered to 
 them by the court, they will not be amenable for breaking it.^ 
 
 Form of Oath. — No especial form of oath is necessary unless 
 it be prescribed by statute. An oath substantially following 
 any form which may be thus prescribed will be regarded as 
 sufficient.^ 
 
 Dispensing with Oath. — Where a statute required that referees 
 should be sworn, unless the parties dispensed with the oath, " to 
 try and determine the cause referred to them, and a just award 
 make out under the hands and seals of a majority of them," it 
 was held that if the parties dispensed with the oath they also 
 dispensed with the sealing.* 
 
 Presumption concerning the Oath. — The presumption is al- 
 ways in favor of regularity and sufficiency in the matter of the 
 oath. Thus if it be proper to swear the arbitrators, the pre- 
 sumption, at least until the contrary is affirmatively shown, is 
 that they were sworn.^ And if the award state that they were 
 sworn " before J. S.," it will be presumed that he was author- 
 ized to administer the oath.^ 
 
 But in Kentucky the fact of the swearing must appear in 
 the award.^ In New Jersey it is said the fact should properly 
 appear on the record ; ^ but it is sufficient if it be stated in the 
 award.^ 
 
 1 People V. McGinnis, 1 Parker Grim. Ca. 387. 
 
 2 Sloan V. Smith, 3 Gal. 406. 
 
 3 Vaughn v. Graham, 11 Mis. 575. 
 
 * Graham v. Hamilton, 1 Binn. 461. 
 
 ' Browning v. Wheeler, 24 Wend. 258. 
 
 6 Shryock v. Morton, 2 Marsh. 563. 
 
 1 French v. Moseley, 1 Litt. 248 ; Lile v. Barnett, 2 Bibb, 167. 
 
 8 Reeves a. Goff, 1 Penning. 143 ; Parker v. Crammer, ib. 271 ; Little v. SU- 
 verthorne, 2 id. 680 ; Crammer v. Mathis, ib. 550 ; Bowen v. Lanning, 1 Pen- 
 ning. 139 ; Ford v. Potts, 1 Halst. 388. 
 
 9 Swayze v. Kerkendall, 2 Penning. 660. 
 
THE OEFICE OF AEBITRATOR. 113 
 
 Pleading concerning the Oath. — In suit Oil the award it is not 
 necessary to allege that the arbitrators were sworn, at least if 
 the award is averred to have been made by " qualified arbitra- 
 tors." The analogy is traced between this tribunal and a bench 
 of judges.! 
 
 Whether it can be shown collaterally by plea in an action on 
 the award that the oath was omitted is said to be another 
 question, but one which, from the same analogy, must be an- 
 swered in the negative, though the swearing may have been 
 necessary. For as it cannot be pleaded in an action on a judg- 
 ment that the judges were not sworn, so must it be also, a 
 fortiori, in the case of judges de facto of the parties' own choos- 
 ing, and who have acted within the scope of their authority.^ 
 
 Swearing the Umpire. — The swearing of the umpire is equally 
 necessary with the swearing of the arbitrators.^ 
 
 1 Browning v. Wheeler, 24 Wend. 258. 
 
 2 Ibid. 
 
 8 Erissell v. Fickes, 27 Mis. 557. 
 
CHAPTER Y. 
 
 PROCEEDINGS IN THE ARBITRATION. 
 
 The arbitrator controls the mode of conducting the reference. 
 
 The arbitrator must appoint the time and place for hearing. 
 
 Parties entitled to be present. 
 
 Notice of hearing must be given to each party. 
 
 Of what meetings notice need be. 
 
 Notice after choice of third arbitrator. 
 
 No notice to surety. 
 
 Notice to attorney of party. 
 
 Revocation of appointment for hearing. 
 
 Sufficiency of notice. 
 
 Waiver of notice. 
 
 Non-attendance of party after notice. 
 
 Parties must have time to examine written evidence. 
 
 Pleading concerning notice. 
 
 Availing of the objection of want of notice. 
 
 Exceptions to rule requiring notice. 
 
 Ex parte hearings. 
 
 Private statements and examinations. 
 
 Duty of party objecting to private examination. 
 
 Curing objection on ground of improper receipt of evidence. 
 
 Attendance of counsel, advisers, &c. 
 
 Arbitrator's discretion to hear counsel. 
 
 Arbitrator's right to call in counsel. 
 
 Administration of oaths to witnesses. 
 
 Unauthorized administration of oath. 
 
 Parties may dispense with the oath. 
 
 Arbitrator's power to force attendance of witnesses and production of documents. 
 
 Protection of witnesses. 
 
 Kules governing arbitrator respecting admission of evidence. 
 
 His decision is final. 
 
 Eejection of evidence under mistake concerning the scope of the submission. 
 
 Erroneous ruhng on evidence by a referee. 
 
 The referee may leave the guestion of admissibility to the court. 
 
 A referee need not report evidence. 
 
 Parties may be admitted as witnesses. 
 
 Arbitrator's discretion to refuse to hear evidence. 
 
 Number of witnesses. 
 
 Closing case too hastily. 
 
 Opening case for new evidence. 
 
PEOCEEDINGS IN THE AEBITRATION. 115 
 
 Admission of eTidence de bene esse. 
 
 Adjournments are in arbitrator's discretion. 
 
 Adjournments before referee in lis pendeTis. 
 
 Death of witness during adjournment. 
 
 Record of adjournment. 
 
 Causes for demanding adjournment. 
 
 Erroneous refusal to adjourn. 
 
 Adjournments in case of absence. 
 
 All the arbitrators must act together during the proceedings. 
 
 Withdrawal or refusal of an arbitrator to act with his fellows. 
 
 The refusal or withdrawal must be distinct and final. 
 
 But it need not be formal. 
 
 Rule where a third arbitrator is called in. 
 
 Withdrawal or refusal before the proceedings are begun. 
 
 Refusal or withdrawal after recommitment. 
 
 Silence of award concerning joint action. 
 
 The rule that all the arbitrators must unite in the award. 
 
 Award by majority. 
 
 The rule concerning referees. 
 
 Time of expressing dissent. 
 
 Unanimity in each incidental question is unnecessary. 
 
 Process of coming to agreement. 
 
 Some judicial discretion must be exercised. 
 
 Delegation of authority by an arbitrator, and agreements to accept the decision 
 
 of another. 
 Delegation of purely ministerial acts or functions. 
 Waiver of right to object for incompetency or irregularity. 
 
 by appearing and proceeding. 
 
 of stipulation as to time. 
 
 is matter of apparent intention. 
 
 of stipulations concerning the form of the award. 
 
 by ratification and performance. 
 
 of departure from the scope of the submission. 
 
 The Arbitrator controls the Mode of conducting the Refer- 
 ence. — " The mode in whicU*the reference is to be conducted 
 depends entirely upon the arbitrator. The courts will not 
 review his discretion provided he acts according to the prin- 
 ciples of justice, and behaves fairly to each party." ^ Though, 
 as will appear hereafter, his discretionary power in conducting 
 the case is not so absolute but that it may be reviewed by the 
 courts, and his award set aside, if he appears to have abused 
 his authority, or even if, though acting in perfect good faith, he 
 
 1 Russell on Arb., 3d ed. p. 164 ; Tillam v. Copp, 5 C. B. 211 ; Hewlett v. Lay- 
 cock, 2 Car. & Payne, 574 ; Haigh v. Haigh, 31 L. J. Chy. 420. 
 
116 PROCEEDINGS IN THE AEBITEATION. 
 
 has, nevertheless, treated a party with serious and injurious un- 
 fairness. For the question of the honesty of his intent or his 
 bona fides is in this connection a matter of indifference. The 
 point is, whether or not in fact he has so failed in the per- 
 formance of his duty that a party has been prejudiced thereby.^ 
 The Arbitrator must appoint the Time and Place for Hearing. — 
 The time and place of meeting for hearing may be appointed 
 by the arbitrators or referees at their own discretion,^ unless an 
 express stipulation to a contrary effect be actually embodied in 
 the submission or rule of reference. A Connecticut case cov- 
 ers this ground very fully and satisfactorily. At the time of 
 the appointment of referees, the parties came to an understand- 
 ing not embodied in the rule of reference, that they would 
 subsequently determine upon a time and place of hearing con- 
 venient to each of them. At a later day they did accordingly 
 determine upon such time and place, and notified the referees. 
 One of the referees did not attend. Another effort to meet 
 proved equally unavailing. Finally the referees, at the request 
 of the defendants, named a time and place, and gave sufficient 
 notice thereof to the plaintiffs. The plaintiffs, in return, noti- 
 fied the referees that they could not and should not be ready. 
 The referees, nevertheless, met according to the appointment, 
 and in the absence of the plaintiffs proceeded to hear the 
 defendants ex parte. The court said : " The agreement re- 
 specting the time of meeting for a hearing by the referees was 
 no part of the submission, and, as such, cannot be noticed by 
 the court ; but if it was made use of to practise a fraud,- and 
 while the plaintiffs relied upon it, the defendants in violation 
 of it procured the referees to notify a meeting when the plain- 
 tiffs were absent or under such circumstances that they could 
 not have a fair trial, it might then be considered as a ground for 
 setting aside the award. But in this case it appears that actual 
 notice was given to the plaintiffs ; and it was in their power to 
 
 1 Haigh V. Haigh, 31 L. J. Chy. 420 ; Knowlton v. Mickles, 29 Barb. 465. 
 
 2 Eussell on Arb., 3d ed. p. 164 ; Eetheretone v. Cooper, 9 Ves. Jr. 67. 
 
PROCEEDINGS IN THE ARBITRATION, 117 
 
 have attended, and for any proper cause moved the referees to 
 postpone the hearing." If they suffered any damage, it was im- 
 putable only to their own neglect in failing to make such proper 
 application to the referees. " If no provision is made to the con- 
 trary, it is incidental to the power of referees or arbitrators to 
 appoint the time and place of trial, and to proceed therein 
 according to their discretion." The ex parte proceedings in this 
 case were accordiiigly sustained as valid.^ 
 
 Parties entitled to be present. — Bach party is not only entitled 
 to present his own case, both by evidence and argument before 
 the arbitrators, but he is also entitled to be present whenever 
 witnesses or arguments are heard on behalf of his opponent.^ 
 
 Notice of Hearing raust be given to each Party. — Hence arises 
 the necessity that each party should have notice of the time 
 and place appointed for hearing, and that such notice should be 
 served \ipon him sufficiently long before the time named to give 
 him due and reasonable opportunity for preparing his case for 
 presentation.^ There seems to be some difference between the 
 manner in which it is customary and proper to give this notice 
 in England and the method pursued in this country. Russell 
 says : " In general, soon after the submission is made, the party 
 who wishes to go on with the reference will call upon the arbi- 
 trator, deliver to him the submission, and request him to ap- 
 point a meeting." If a day convenient for all parties cannot 
 be agreed upon, and " it be necessary for the arbitrator to make 
 the appointment, he generally gives to the party applying for 
 it a written appointment, specifying the time and place at 
 which the parties and their witnesses are to appear. The party 
 obtaining the written appointment should serve a copy of it on 
 his opponent without delay, or at least within a reasonable 
 time before the day of meeting." * 
 
 1 Bray v. English, 1 Conn. 498. So also Fetherstone v. Cooper, 9 Ves. 67. 
 
 2 HoUingsworth v. Leiper, 1 Dall. 161 ; Hagner v. Musgrove, ib. 83 ; Chaplin 
 V. Kirwan, ib. 187 ; Herrick v. Blair, 1 Johns. 101. 
 
 3 Russell on Arb., 3d ed. p. 165. 
 * Ibid. 
 
118 PROCEEDINGS IN THE ARBITRATION. 
 
 In the United States, the duty of giving notice of the time 
 and place of hearing seems to belong to the arbitrators. They 
 have it in charge to see that sufficient notification is made to each 
 party, though the manner in which it shall be made, whether 
 according to the English method or any other, may apparently 
 be selected by them at their own option. It is the fact of no- 
 tice which alone appears to be essential ; and the numerous 
 cases which strenuously assert this rule are generally silent as 
 to tlie method or person in which or by whom the notice is 
 to be given.^ 
 
 The necessity that by some means or other sufficient notice 
 should be actually brought home to all parties, is absolutely 
 imperative. If there has not been such notice, there cannot 
 be a legal hearing nor a valid award.^ This rule is probably 
 without exception. 
 
 Of what Meetings Notice need be. — The notice need be only 
 of meetings at which evidence or arguments are to be heard. 
 Notice of the meetings of the arbitrators for the purposes of 
 deliberation and making up the award need not be notified, 
 since the parties are not expected to attend, and indeed ought 
 not to be allowed to attend, at such conferences.^ 
 
 But at any meeting at which there are to be proceedings, 
 not perhaps constituting a regular hearing, but having the 
 substantial effect of a hearing, and including the admission of 
 testimony or statements concerning the matter in dispute, 
 notice to both parties is indispensable. It was so held where 
 the arbitrators examined the premises in dispute, one party 
 
 1 Lutz V. Linthicum, 8 Peters, 178 ; Elmendorf v. Harris, 23 Wend. 628 ; Pe- 
 ters V. Newkirk, 6 Cow. 103 ; Young v. Reynolds, 4 Md. 375 ; McKinney v. Page, 
 32 Maine, 513 ; Brown v. Leayitt, 26 id. 251 ; Bullitt v. Musgrave, 3 Gill, 31 ; 
 Rigden v. Martin, 6 Har. & J. 403 ; Webber v. Ires, 1 Tyler, 441 ; Busliey v. 
 Culler, 26 Md. 534 ; Morewood v. Jewett, 2 Robertson, 496. But see HiU v. Hill, 
 11 Sm. & Mar. 616. 
 
 2 Conrad v. Massasoit Insurance Co., 4 Allen, 20 ; Braddick v. Thompson, 8 
 East, 344 ; Jordan v. Hyatt, 3 Barb. 275, and cases cited in the nSxt preceding 
 note. 
 
 3 Roloson V. Carson, 8 Md. 208. The same rule was apparently adopted in 
 Lutz V, Linthicum, 8 Peters, 178. 
 
PEOCEEDINGS IN THE ARBITRATION. 119 
 
 only being present, and made various inquiries and listened 
 to various statements from different persons as to their knowl- 
 edge of tlie damage claimed by the party present, and as to the 
 cause thereof.^ 
 
 Even -where the arbitrator was permitted to " collect all the 
 evidence he can and show it to the parties before he decides, 
 and that then either party may add what he can," and the 
 arbitrator may then decide, notice and opportunity to be heard 
 was declared to be necessary to be given to the parties.^ 
 
 If nothing is done at a meeting save to arrange an adjourn- 
 ment, the want of proper notice to a party of that meeting will 
 be immaterial.^ 
 
 Notice after Choice of Third Arbitrator. — It has been held in 
 Maryland, that where two arbitrators fail to agree, and, in pur- 
 suance of an authority given them by the submission, name a 
 third, notice should be given to the parties of the day fixed for 
 the meeting of the two original arbitrators with the third ; * 
 and this was so held in spite of the fact that all the evidence 
 in the case had been reduced to writing. 
 
 No Notice to Surety. — A surety upon a submission is not 
 entitled to notice of the hearing.^ Neither is a surety on a 
 lease which becomes the subject-matter of arbitration by vir- 
 tue of a provision to that effect embodied in it.^ 
 
 Notice to Attorney of Party. — Notice to the attorney of a 
 party must be usually regarded as equivalent to notice to the 
 party, though an old case in Pennsylvania is to the contrary 
 effect, and declares that notice must be served on the party 
 himself and not on his attorney, unless otherwise specially 
 provided in the rule of reference.^ 
 
 1 Knowlton v. Miokles, 29 Barb. 465. 
 
 2 Goodall V. Cooley, 9 Foster, 48. 
 
 8 In re Morphett, 2 Dowl. & Low. 967. 
 
 * Selby V. Gibson, 1 Har. & J. 362, note. See Lutz v. Lintbicum, 8 Peters, 
 165. 
 
 5 Farmer v. Stewart, 2 N. H. 97. 
 
 6 Binsse v. Wood, 47 Barb. 624. 
 ' Rivers v. Walker, 1 Dall. S\. 
 
120 PROCEEDINGS IN THE ARBITEATION. 
 
 Revocation of Appointment for Hearing. — After a time and 
 place of hearing have been named and the parties have been 
 notified thereof, it is still in the. power of the arbitrator, and 
 for good cause it may become his duty, to revoke the appoint- 
 ment. If he be asked by either party to make such revocation, 
 he may, at his discretion, grant or refuse the request.^ He 
 has the same power in this as in other matters concerning the 
 conduct of the proceedings. 
 
 Sufficiency of Notice. — The notice, it has been already said, 
 must be given sufficiently long before the hearing to give the 
 parties reasonable time to prepare for trial.'-' What will be 
 regarded as such reasonable notice is a matter regulated by 
 no arbitrary rule of law. It is necessarily left, in each case, 
 very much within the discretion of the arbitrator. It has been 
 said that if he acts in good faith, it will be sufficient, since his 
 action is within the authority conferred upon him by the sub- 
 mission ; and his award will be valid at law though he actu- 
 ally mistakes the true rule as to what is reasonable notice.^ 
 But another case takes a different view, and declares that the 
 question, whether or not reasonable notice was given, is one 
 properly to be determined . by a jury in view of the circum- 
 stances in each case.* 
 
 The notice must be given before the arbitrators have exam- 
 ined into the subject in controversy and come to a determina- 
 tion upon it. In a case where no notice was sent until after 
 the arbitrators had " substantially agreed upon the amount" 
 of their award, it was held a siifficient ground for declaring 
 the award void. The court said : " The object of a notice is to 
 give an opportunity to the parties to present their case to the 
 arbitrators before a conclusion is arrived at. It is an idle 
 
 1 Russell on Arb., 3d ed. p. 165; Eastham v. Tyler, 2 Bail. Court Rep. 
 136. 
 
 2 Emerson v. XJdall, 8 Vt. 357 ; Morewood v. Jewett, 2 Robertson, 496 ; Rus- 
 sell on Arb., 3d ed. p. 165. 
 
 3 Elmendorf v. Harris, 23 Wend. 628. 
 * Emerson v. Udall, 8 Vt. 357. 
 
PKOCEEDINGS IN THE ARBITRATION. 121 
 
 ceremony if given after the judgment of the arbitrators is 
 formed." ^ 
 
 ■Waiver of Notice. — The right to, or necessity for, notice 
 may be waived or dispensed with by a party .^ 
 
 The mere fact that a party declares his intention not to 
 appear, may not constitute a waiver of notice of the time and 
 place of hearing. But where a party asserted to an arbitrator 
 that by advice of counsel he would not appear before the um- 
 pire, and handed to the arbitrator a paper to be laid before 
 the umpire, it was held that his conduct amounted to a waiver 
 of notice.^ / 
 
 If a party has received a notice which he regards as insuf- 
 ficient or as not allowing him reasonable time, it will be better 
 for him to attend, if possible, at the time and place appointed, 
 to state his objection and to protest against proceeding then 
 and there. It is not, however, absolutely essential for him to 
 do so. The fact of sufficiency or insufficiency is the important 
 matter. If the notice was insufficient, the ■ hearing will be 
 none the less invalid though he entirely absents himself. If, 
 on the other hand, the notice is sufficient, his absence, though 
 under a bona fide belief to the contrary, will not operate to 
 avoid the award. 
 
 Non-attendance by Party after Notice. — No party, of course, 
 can practically avoid the submission or prevent the arbitrators 
 from proceeding to hear and to award, simply by contuma-' 
 ciously refusing to attend. " Every arbitrator is authorized by 
 the nature of his offi(Je to proceed ex -parte for good cause."* 
 The sufficiency of the occasion may be judged of by him- 
 
 1 Conrad v. Massasoit Insurance Co., 4 Allen, 20. 
 
 2 Hill V. Hill, 11 Sm. & M. 616, where the attorneys of the parties acted as 
 arbitrators ; Harding v. Wallace, 8 B. Monr. 536, where a non-resident party 
 was represented by counsel at the hearing ; Shockey's Adm'r v. Glasford, 6 Dana, 
 9, where there was a specific agreement of parties ; Hewlett v. Laycock, 2 Car. 
 & Payne, 574 ; Kingwell v. Elliott, 7 Dowl. 423. 
 
 8 Graham v. Graham, 9 Penn. St. (Barr) 254. 
 * Russell on Arb., 3d ed. p. 191. 
 
122 PROCEEDINGS IN THE ARBITRATION. 
 
 self,^ though it is said that a very strong justification should 
 subsist.^ 
 
 Russell lays down the English rule to be that if after the 
 party has been summoned he neglects to attend, and the arbi- 
 trator is of opinion from circumstances brought to his notice 
 that the absence arises out of a desire to prevent justice and 
 defeat the object of the reference, then the arbitrator ought to 
 give due notice of a meeting to be held at a subsequent day. 
 If the absentee fails to attend according to such second notifi- 
 cation, or to furnish some reasonable excuse, then the arbitrator 
 is bound to proceed ex farted And the general rule is said to be 
 that the arbitrator " is not justified in proceeding ex f arte without 
 giving the party absenting himself due notice," either verbal or 
 written, clearly setting forth the arbitrator's intention to pro- 
 ceed.* Making an ordinary appointment " peremptory," is 
 said to satisfy this requisition.^ But it has-been said that even 
 the second appointment ought to be marked " peremptory," or 
 otherwise designated as having this character.^ Certainly there 
 is no lack of tenderness displayed in these doctrines as towards 
 the delinqiient party. 
 
 Two later cases are somewhat less stringent. In an action 
 against a tenant for dilapidations, the arbitrator appointed a 
 meeting for a view and " to go into the reference." The defend- 
 ant was present at the view, and then withdrew without saying 
 ' any thing. The arbitrator proceeded ex parte, and the court 
 refused to vacate his award.'^ 
 
 1 "Wood V. Leake, 12 Ves. Jr. 412 ; Hetley v. Hetley, cited in Kyd on Awards, 
 p. 100. 
 
 2 Gladwin v. Chilcote, 9 Dowl. 550. 
 
 3 WaUer v. King, 9 Mod. 63 ; Wood v. Leake, 12 Ves. Jr. 412 ; In re Hall </. 
 Anderton, 8 Dowl. 326 ; Russell on Arb., 3d ed. pp. 191, 192. 
 
 < Gladwin v. Chilcote, 9 Dowl. 550 ; Scott v. Van Sandau, 6 Q. B. 237 ; Rus- 
 sell, loc. cit. 
 
 5 Gladwin v. Chilcote, supra ; Doddington v. Hudson, 1 Bing. 384. 
 
 6 Gladwin v. Chilcote, supra. 
 
 ' Tryer v. Shaw, 27 L. J. Exch. 320. See Angus v. Smythies, 2 Eost. & Fin. 
 381 ; Hewitt v. Portsmouth Waterworks Company, 10 W. R. 780. 
 
■ PROCEEDINGS IN THE ARBITRATION. 123 
 
 So where a party said to the arbitrator, " I will not attend, 
 because you are receiving illegal evidence, and no award you 
 can make will be good," it was held not only that the arbitrator 
 might proceed at that hearing ex parte, but that it was not 
 necessary that this party should be notified of subsequent hear- 
 ings ; though it was said it would be well to give him such 
 notice, in order to furnish him the opportunity to change his 
 mind.i 
 
 But if a party has ineffectually attempted to revoke a sub- 
 mission, and refused to attend a meeting on the ground of the 
 arbitrator having no authority to proceed, it is well settled that 
 the arbitrator may proceed forthwith ex parte? 
 
 In Connecticut it has been held that if, after a party has 
 received sufficient notice of the time and place of hearing, he 
 neglects to attend, the arbitrator or referee may proceed with 
 the hearing ex parte? 
 
 So also in Maine, where a party who had been notified and 
 had " the fullest opportunity " to attend and be heard, neglected 
 to appear and then objected to the award on the ground of an 
 ex parte, hearing, the court said, " to give effect to this objection 
 would be tantamount to a revocation of a submission which the 
 law has not contemplated could be so done." * 
 
 Parties must have Time to examine 'Written Evidence. — It is 
 the duty of the arbitrators to give to each party sufficient time 
 and opportunity to examine any documentary evidence put 
 into the case by his opponent. The duty is akin to that of 
 notifying the party to be present at the hearing of oral testi- 
 mony, and the neglect to perform it will be equally fatal to the 
 validity of the award.^ 
 
 1 Scott V. Van Sandau, 6 Q. B. 237 ; Harcourtr. Ramsbottom, IJac. & Walk. 
 512 ; Bignall v. Gale, 2 Man. & Gr. 830 ; In re Kyle, 2 Jur. 760. 
 
 2 Harcourt v. Ramsbottom, 1 Jac. & Walk. 512. 
 
 3 Bray v. English, 1 Conn. 498. 
 
 * Brown v. Leavitt, 26 Maine, 251. 
 
 5 Passmore w. Pettit, 4 Dall. 271. And see Harvey «. Shelton, 7 Beav. 455 ; 18 
 L. J. Chy. 466. " 
 
124 PROCEEDINGS IN THE AEBITEATION. 
 
 The receipt of a document after the hearing had been closed 
 was sustained in the following case.^ After the hearing was 
 over the plaintiff told the defendant in the presence of the 
 arbitrator that a certain document was in existence. The 
 defendant doubted it. All three then went to the office of one 
 S. to get it. S. was not in his office, and the paper was not 
 obtained. The arbitrator thereupon expressed a wish to see it, 
 and the plaintiff said, " We will get it." The plaintiff did 
 afterwards get it and sent it to the arbitrator, who did not 
 notify the defendant of the fact, but proceeded to make his 
 award. The arbitrator testified that defendant was present 
 when plaintiff promised to get the document, but did not say 
 that when the document should be produced he wished to be 
 heard upon it. The case had already been closed, and the 
 parties had stated that they had nothing more to say. The 
 court held that the award should stand. 
 
 Pleading concerning Notice. — The award need not aver 
 notice.^ Whether or not in suit on an award which does not 
 itself state the fact of notice, an averment to that effect should 
 be made, is left in some doubt by the decisions. It has been 
 held that the allegation is necessary in Maryland ; though it 
 is acknowledged in the same opinion that want of notice will 
 never be presumed.^ On the other hand, in New York it is said 
 that notice will be presumed, though not averred or proved.* 
 
 Availing of the Objection of Want of Notice. — In the same 
 State, in another suit brought on an arbitration bond, the 
 defendant simply pleaded want of notice, and that consequently 
 neither he nor his witnesses had been heard. The right to avail 
 of this fact in this manner was questioned, but the court sus- 
 tained the sufficiency of the plea. Chancellor Walworth said 
 that the validity of the award was in this case a purely legal 
 
 1 Winsor v. Griggs, 5 Cush. 210. 
 
 2 Rigden v. Martin, 6 Har. & J. 403 ; Webber v. Ives, 1 Tyler, 441 ; Mayor, 
 &c., of New York v. Butler, 1 Barb. 325. 
 
 8 Bullitt V. Musgrave, 3 Gill, 31. 
 
 * Mayor, &c., of New York v. Butler, 1 Barb. 325. 
 
PROCEEDINGS IN THE ARBITRATION. 125 
 
 question, proceeding on the ground that the arbitrator was 
 powerless to award without hearing the parties. It was 
 unreasonable to compel the party who had been prejudiced by 
 the ex farte proceeding to go into a court of chancery for relief, 
 instead of allowing him to assert the invalidity of the award 
 in the action instituted against him in a court of law, though 
 it was said that perhaps the court of chancery might have a 
 concurrent jurisdiction.^ 
 
 If no notice is in fact given, and therefore no due and suffi- 
 cient hearing is had, the proper mode for bringing the fact 
 before the court, provided it does not appear on the face of the 
 award, has been said to be by affidavit and motion to set aside 
 the award.2 
 
 The practice in Maryland would seem to be that the party 
 seeking to defend iu a suit at law on the ground of want of 
 notice, should move to set aside the award for this cause, and 
 support his motion by affidavit.^ 
 
 Exceptions to Rule reqxiiring Notice. — Tlie general rule that 
 each party should have notice to enable him to be present 
 when any thing is to be said on behalf of the other, is subject 
 to reasonable exceptions. For example, where, after the hear- 
 ing had been concluded, and the arbitrators were together for 
 deliberation, and differed as to what had been the testimony 
 of a certain witness on a certain point, they recalled him and 
 again examined him upon this point without notice to the 
 parties, the court held that it was no cause for interference 
 with the award. It did not constitute misconduct. The wit- 
 ness was only called to explain his own testimony, and it was 
 not alleged that he deposed differently as to any fact from 
 
 1 Elmendorf w. Harris, 23 Wend. 628. And see Peters v. Newkirk, 6 Cow. 103 ; 
 Mayor, &o., of New York v. Butler, 1 Barb. 325. To the same purport seem 
 also to be Maynard v. Erederick, 7 Cush. 247 ; McKinney v. Page, 32 Maine, 613. 
 The New York Code established the rule In that State, that in suit at law on an 
 award the defendant may set up any fact sufficient to vacate the award, and 
 pray an affirmative judgment to that effect; Knowlton v. Mickles, 29 Barb. 465. 
 
 2 Lutz V. Linthicum, 8 Peters, 165. 
 
 3 Young V. Reynolds, 4 Md. 375 ; Rigden v. Martin, 6 Har. & J. 403. 
 
126 PROCEEDINGS EST THE AEBITEATION. 
 
 ■what he meant to have testified, and to have been under- 
 stood to testify, on the first examination. The case is distin- 
 guished from that of an ex parte examination of witnesses, 
 which is characterized as " unfair, partial, and a gross mis- 
 conduct." ^ 
 
 Ex parte Hearings. — In discussing the subject of notice some 
 cases have been mentioned in which the arbitrator may be 
 allowed to proceed ex farte. Other circumstances may also 
 occur which will confer upon him the like authority ; but 
 these will be very exceptional. The rule of requiring him to 
 hear nothing on behalf of either party, unless the other party 
 is present or has distinctly assented to his doing so, is gener- 
 ally very rigidly enforced. " The smallest irregularity," says 
 Russell, " is often fatal to the award." ^ 
 
 It will make no difference in this respect whether or not the 
 arbitrator shall swear that the testimony, improperly received 
 by him in the absence of a party, or of both parties, had no 
 influence upon his decision. He will not be allowed to deter- 
 mine upon this matter.^ 
 
 Neither does it make any difference that the arbitrator acted 
 from unimpeachable motives in making some inquiry, though 
 from one of the witnesses introduced at the hearing, after 
 the hearing has been closed and in the absence of both 
 parties.* 
 
 Though Russell says that " at the present day, if no personal 
 misconduct or evil intention or gross disregard of proper rules 
 be imputable to the arbitrator, the courts will often refer back 
 
 1 Herrick v. Blair, 1 Johns. Ch. 101. And see Innes v. Miller, 1 Dall. 188 ; An- 
 derson V. Wallace, 3 CI. & Fin. 26, cited post, in the paragraphs concerning " Ex 
 parte hearings." 
 
 2 Eussell on Arb., 3d ed. p. 184 ; Drew v. Drew, House of Lords, March 8, 
 1855, given in Russell, he. cit. 
 
 8 Walker v. Frobisher, 6 Ves. Jr. 70 ; Fetherstone v. Cooper, 9 id. 67 ; Dob- 
 Bon V. Groves, 6 Q. B. 637 ; Plews v. Middleton, 6 Q. B. 845, overruling the 
 contrary doctrine asserted in Atkinson u. Abraham, 1 Bos. & P. 175, and Big- 
 nail V. Gale, 2 Man. & Gp 830. 
 
 * Dobsou V. Groves, 6 Q. B. 637 ; but see Herrick v. Blair, 1 Johns. Ch. 101, 
 ante, pp. 125, 126. 
 
PROCEEDINGS IN THE ARBITKATION. 127 
 
 the award to him, notwithstanding he may have been guilty of 
 some irregularities in the examination of the witnesses." ^ 
 
 It maiies no difference that the party who objects to an 
 award on the ground that a witness on behalf of the other 
 party has been examined in his absence and without notice to 
 him, has himself been guilty of a like irregularity in privately 
 communicating with the arbitrator.^ It is not a case for 
 balancing irregularities. 
 
 Again, where referees, having determined upon the princi- 
 ples of their report, sent for one of the parties and asked him 
 whether he would consent that a quarter's rent, accrued after 
 suit brought, should be included in the settlement, it was held 
 not to be such misbehavior as would invalidate the report.^ 
 
 An arbitrator may properly take the evidence of a sick or 
 infirm person at the residence of that person.* 
 
 Where the arbitrators called in a party, and in the absence 
 of his opponent asked him simply whether he admitted or 
 disputed certain items in an account, it was held not to be an 
 irregularity which would avoid the award.^ 
 
 Another old case asserts that referees may make inquiry 
 abroad to ascertain, for their own satisfaction, the price of 
 work or the truth of any other matter which may be said, 
 comparatively, to be of a public nature. This, it is said, " so 
 far from being irregular, would be highly commendable." It 
 is a " very diffei'ent case " from proceeding separately to exam- 
 ine a witness who has been produced by one of the parties, 
 although the evidence relates only to the like points of a 
 ■general nature. The adverse party is entitled to cross-examine 
 a witness.^ This is akin to the privilege, hereafter to be dis- 
 cussed, which arbitrators have of availing themselves of the 
 
 1 Russell on Art)., 3d ed. p. 186 ; Anning v. Hartley, 27 L. J. Exch. 145. ' 
 
 2 Harvey v. Shelton, 13 L. J. Chy. 466 ; 7 Beav. 455. 
 
 3 Innes v. MiUer, 1 Dall. 188. 
 * Tillam v. Copp, 3 C. B. 211. 
 
 5 Anderson v. Wallace, 3 CI. & Fin. 26. 
 
 6 Chaplin v. Kirwan, 1 DaU. 187. 
 
128 PROCEEDINGS IN THE AEBITEATION. 
 
 services and opinions of persons who are experts or peculiarly 
 cognizant of the subject-matter in dispute, without 'notifying 
 either party of their intention to do so. 
 
 Private Statements and Examinations. — Under a Submission 
 to two jointly, the admissions of one party made to one of the 
 referees singly, and by him reported to the other, ought not to 
 be taken into consideration.^ 
 
 It has been held that circumstances may arise in which, in 
 order to subserve the ends of justice, the arbitrator may be 
 justified in excluding both the parties and their counsel from 
 the hearing, and in examining the witnesses by himself in their 
 own houses.^ But Mr. Russell, commenting upon this ruling, 
 says very truly that " it is apprehended the circumstances 
 must be very peculiar to authorize a proceeding at first sight 
 so irregular."^ 
 
 Where upon a reference it was arranged that the books 
 should be referred to an accountant, but open to the exam- 
 ination of either party, it was held not to be improper for one 
 party, in the absence of the other, to give explanations con- 
 cerning the items to the accountant, since he was not a judge, 
 but only an assistant of the arbitrator.* In another case, how- 
 ever, where the accountant was to examine and report to the 
 arbitrator, explanations as to certain items, made to him by 
 one party in the absence of the other, were said to constitute 
 a " course of proceeding which the court of chancery could not 
 possibly sanction. "_^ 
 
 An express assent by the plaintiff's agent for conducting the 
 reference, that the defendant may call upon the arbitrator alonef 
 and produce his books before him, will prevent the possibility 
 of any objection founded upon such a proceeding.® 
 
 1 Blanton v. Gale, 6 B. Monr. 260. 
 
 2 Hewlett V. Laycock, 2 Car. & Payne, 574. See Matson v. Trower, 1 Eyl. & 
 M.,17. 
 
 3 Eussell on Arb., 8d ed. p. 166. 
 
 * Harvey v. Shelton, 7 Beav. 455. 
 
 5 Haigh V. Haigh, 31 L. J. Chy. 420. 
 
 6 Hamilton v. Bankin, 8 De Gex & S. 782. 
 
PROCEEDINGS IN THE AKBITRATION. 129 
 
 Duty of Party objecting to Private Examination. — Generally, 
 if a party intends to object to tlie award because evidence has 
 been received privately by the arbitrators, he should state the 
 fact at the next meeting.^ If he is silent on the subject, and 
 afterward attends meetings and proceeds with the hearing, he 
 will in most cases be taken to have waived the objection.^ 
 
 Curing Objection on Ground of Improper Receipt of Evidence. — 
 If the arbitrators improperly receive evidence in the absence of 
 both parties, but at the next meeting, upon objection being 
 made to their having done so they strike it out, a party who 
 afterward proceeds with the examination of witnesses before 
 them will be taken to have waived his right to demand that the 
 award be set aside on the ground of this irregularity .^ But if 
 it be clear from the conduct of the party that he does not intend 
 to waive his right to object because evidence has been received 
 in his absence and parties excluded whom he wished to have 
 present, the waiver will not be created by his simple continu- 
 ance to attend at the hearings.* Attendance only raises a 
 presumption of waiver, which is not conclusive in law, but may 
 be rebutted by proof of any facts showing with sufficient dis- 
 tinctness a contrary intention. 
 
 Attendance of Counsel, Advisers, &c. — Russell sayS that it 
 is the duty of a party who intends to employ counsel at a hear- 
 ing, to give notice of his intention to his opponent, so that he 
 also may be prepared with the like assistance if he desires it.^ 
 There is an English case wherein no such notice had been 
 given : the one party appeared with counsel ; the other, having 
 none, asked a postponement to obtain professional aid; the 
 arbitrator refused the request. The court held that in so 
 refusing the arbitrator had acted imfairly between the parties, 
 and consequently annulled the award. They said that it was 
 
 1 Hewlett V. Laycoek, 2 Car. & Payne, 574. 
 
 3 Drew V. Drew, House of Lords, March 8, 1855, 
 
 3 KingweU v. Elliott, 7 Dowl. 423. 
 
 4 Haigh V. Haigh, 31 L. J. Chy. 420. 
 6 Russell on Arb., 8d ed. p. 165. 
 
 9 
 
130 PROCEEDINGS IN THE ARBITRATION. 
 
 " not reasonable that one party should have the assistance of 
 counsel and the other not. Distinct notice ought to have been 
 given." ^ 
 
 No case, so far as I have been able to discover, has arisen 
 in the United States in which this rule has been asserted. I 
 believe it to be the established practice for each party to act as 
 he chooses in the matter of employing counsel ; provided, of 
 course, that he resorts to no concealment or deception in the 
 matter. And Eussell himself seems almost to contradict his 
 above-recited statement in the next following paragraph, in 
 which he says that " in the ordinary course " an arbitration is 
 conducted like a trial ; and the parties " are usually attended 
 or represented by their attorneys or counsel, who conduct the 
 proceedings in behalf of their respective clients." Certainly 
 the employment of counsel, though it cannot be quite said to 
 be a universal custom, is yet of such common occurrence that 
 there could seem to be little necessity for formally notifying 
 the opposite party of an intent so to do. 
 
 Arbitrator's Discretion to hear Counsel. — It is said to be in 
 the discretion of the arbitrators to hear or to refuse to hear 
 counsel, as they shall see fit.^ 
 
 They appear to have the same general discretion to allow or 
 refuse the presence of any person who is an expert, or who has 
 a peculiar knowledge of the subject-matter of the controversy, 
 who is present neither as a witness nor as counsel, but simply 
 to assist with his knowledge one of the parties.^ 
 
 But if they abuse this discretion, and a party is presump- 
 tively prejudiced by their refusal to allow him the aid which 
 he desires, their award may be therefore void. Thus where 
 an arbitrator excluded from some of the meetings the son of a 
 party who was familiar with the accounts in dispute, and also 
 a short-hand writer, both of whom the party wished to have 
 
 1 Whatley v. Morland, 2 Dowl. 249. 
 
 2 Russell on Arb., 3d ed. p. 166 ; Macquen v. Nottingham Caledonian Society, 
 9 C. B. N. S. 793 ; Collier v. Hicks, 2 Barn. & Ad. 663. 
 
 3 TiUam V. Copp, 3 C. B. 211. 
 
PROCEEDINGS IN THE ARBITRATION. 131 
 
 present, the Lords Justices vacated the award on the ground 
 that this party's interests might have been unfairly prejudiced 
 by the exclusion.^ 
 
 Arbitrator's Right to Call in Counsel. — The arbitrator cannot 
 always call in counsel to be present at the proceedings and to 
 aid him with advice^. Thus where one party had objected to 
 submitting to a professional man, and consequently submission 
 had been made to a mining agent, the arbitrator nevertheless 
 brought an attorney to the hearing to sit with him. The party 
 having protested in vain, withdrew from the hearing. The 
 arbitrator proceeded ex fao'te, and the court set aside his 
 award.^ 
 
 Administration of Oaths to Witnesses. — If the submission, rule 
 of court, or statute under which the arbitrators act are silent 
 on the subject of the administration of oaths to the witnesses, 
 no necessity for that formality will exist. The witnesses may 
 be heard unsworn if the parties make no objection.^ It was 
 held in England, that before the enactment of the Statute 
 15 & 16 Vict. c. 99, § 16, which empowered arbitrators to 
 administer oaths, even the arbitrator himself could not insist 
 upon the swearing if the submission was silent on the subject.* 
 
 At common law an arbitrator cannot administer an oath.® 
 His power to do so can be obtained only by virtue of specific 
 statutory enactments. Such statutes have been passed in 
 England and in many, perhaps in most, of the States in this 
 country. 
 
 But a referee, properly so called, may obtain power to admin- 
 ister a judicial oath, or compel production of books, &c., either 
 from statutory provisions or from the order of the court 
 
 1 Haigh V. Haigh, 31 L. J. Chy. 420. 
 
 2 Proctor V. "WilUamson, 29 L. J. C. P. 157, and 8 C. B. N. S. 386. 
 
 " Large v. Passmore, 5 Serg. & R. 51 ; Maynard a. Frederick, 7 Cush. 24T. 
 
 * Caledonian Railway Company v. Lockhart, 3 Macq. 808. 
 
 ' Tobey v. County of Bristol, 3 Story, 800 ; Large v. Passmore, 5 Serg. & E. 
 51 ; People v. Townsend, 5 How. Pr. 315 ; In the Matter of Wells, 1 N. Y. Legal 
 Obs. 189 ; Street v. Rigby, 6 Ves. Jr. 816 ; "Wellington v. Mclntosli, 2 Atk. 569 ; 
 Half hide v. Penning, 2 Bro. C. C. 836. 
 
132 PKOCEEDINGS IN THE AEBITRATION. 
 
 appointing him. In the absence of such provisions, and if 
 the order should be insufficient, the oath would be simply a 
 nullity .1 
 
 If the submission requires that the witnesses be examined 
 under oath, the necessity for so doing will be imperative, and 
 can be dispensed with only by the subsequent consent of the 
 parties to the submission.^ 
 
 If the submission or rule requires the arbitrators to swear 
 the witnesses, and they have no statutory authority to do so, 
 they must call in for this purpose some magistrate who has this 
 power. Or if the submission be in a pending cause, the cus- 
 tom in England, before the passage of the Statutes 3 & 4 W. 
 IV. c. 42, § 41, and 14 & 15 Vict. c. 99, § 16, was to have 
 the witnesses sworn before a judge at chambers, or in court at 
 Westminster.^ 
 
 But the magistrate called in must be fully empowered or the 
 oath will be invalid. Thus where witnesses were to give their 
 testimony orally, and they were sworn before a commissioner 
 for taking affidavits, it was held insufficient under a submis- 
 sion by judge's order requiring that the oaths should be taken 
 before a judge or before a commissioner duly authorized^ 
 
 If the submission provide that " the witnesses be examined 
 on oath," it has been held that the introduction of written affi- 
 davits would be a sufficient irregularity to avoid the award.^ 
 
 Unauthorized Administration of Oath. — If the arbitrators, or 
 attorneys of the parties in the presence of the arbitrators, under- 
 take to swear the witnesses, though having in fact no legal 
 authority to do so, they will not thereby render their proceed- 
 ings invalid. If the absence of a binding oath is not a fatal 
 omission, the administering one not binding will be imma- 
 
 1 Bonner v. MoPhail, 31 Barb. 106; Frazer v. Phelps, 3 Sandf. (Sup. Ct.) 
 741. And see the arguments in Imlay v. Wikoflf, 1 ffouth. (N. J.) 132. 
 
 2 Ridoat V. Pye, 1 Bos. & P. 91 ; Biggs v. Hansell, 16 C. B. 562. 
 
 3 Russell on Arb., 3d ed. p. 176. 
 
 * Rex V. Hanks, 3 Car. & Payne, 419 ; Rex v. Newman, 1 Wils. 7. 
 5 Banks v. Banks, 1 Gale, 46. 
 
PROCEEDINGS IN THE ARBITRATION. 133 
 
 terial.^ Such an oath would be a mere nullity, and the wit- 
 ness testifying falsely could not be punished for perjury .^ 
 
 Parties may dispense with the Oath. — The parties may dis- 
 pense with the formality of the oath if they see fit ; ^ unless per- 
 haps a statutory provision requiring its administration should 
 exist and should be held imperative and not directory merely, 
 and not within the reach of a waiver by the parties. It has 
 been held that if at the hearing both parties have apparently 
 assented to the examination of the witnesses unsworn, by pro- 
 ceeding without making an express objection on this ground, 
 they will not be allowed to make it a ground of objection after- 
 ward.* So also it was held in Massachusetts, the court, per 
 Bigelow, C. J., saying that, " In such cases silence is acquies- 
 cence, and amounts to a waiver of all objections to irregulari- 
 ties in the proceedings." ^ But another New York case appears 
 to take a different ground, and declares that the objection to 
 the competency of tlie arbitrator to administer the oath is not 
 waived, because it is not taken at the hearing.^ 
 
 The former doctrine must be regarded as the most sound, 
 and has the support of the English authorities. " By not per- 
 sisting at the time of examination in requiring that the witness 
 should be sworn, a party will be taken to have assented to the 
 omission of the oath." "^ So says Eussell, and the adjudica- 
 tions bear out the statement. Even where the defendant 
 objected to the examination of one of the plaintiff's witnesses 
 on the ground of his not having been sworn, and the arbitra- 
 tors overruled the objection and heard his testimony, the 
 defendant, having afterward himself called witnesses who were 
 heard to testify unsworn, was held not only to have waived 
 
 1 Large v. Passmore, 5 Serg. & R. 51. 
 
 2 Rex V. Hallett, 20 L. J. M. C. 197. 
 
 8 Ridoat u. Pye, 1 Bos. & P. 91 ; Biggs v. Hansell, 16 C. B. 562; and cases 
 cited post, in the further discussion of this topic. 
 
 * Bergh v. Pfeiffer, Hill & Den. 110 ; Large v. Passmore, 5 Serg. & R. 51. 
 
 5 Maynard v. Frederick, 7 Gush. 247. 
 
 6 In the Matter of Wells, 1 N. Y. Legal Obs. 189. 
 ' Russell on Arb., 3d ed. pp. 175, 176. 
 
134 PROCEEDINGS IN THE ARBITBATION. 
 
 his right to object, but even to have acquiesced in the course 
 pursued.^ 
 
 No especial form of oath is necessary .^ 
 
 Arbitrator's Power to force Attendance of Witnesses and Pro- 
 duction of Documents. — Except by virtue of statutory provi- 
 sions conferring the authority, an arbitrator has no power to 
 compel the attendance of witnesses or the production of books 
 or papers.^ 
 
 Protection of "Witnesses. — If, however, he acquires this power 
 by statute, as is the case in Great Britain, it has been held 
 in causes arising in that country,, that parties, witnesses, and 
 attorneys, attending under this compulsion are free from arrest, 
 eundo, morando et redeundo, in precisely the same manner as 
 if they were summoned by the ordinary judicial process to 
 attend a trial in a court of law.* 
 
 Though if the arbitrator possesses no such compulsory 
 power, witnesses who attend voluntarily are not entitled to this 
 privilege. But a voluntary attendance, if the arbitrator pos- 
 sesses the power though he has not exercised it, gives a right 
 to the exemption.^ 
 
 The protection covers adjournments from day to day, but not 
 the interval if one adjournment extends over several days.^ 
 
 If a person be arrested in contravention of this right, though 
 in the presence of the arbitrator, the authority of the arbitrator 
 does not extend to discliarging the arrest.'^ 
 
 Rules governing Arbitrator respecting the Admission of Evidence. 
 — The English rule is, that in determining such questions 
 
 1 Allen V. Francis, 9 Jur. 691 ; i Dowl. & Low. 007, n. ; Smith v. Sparrow, 16 
 L. J. Q. B. 139; 4 Dowl. & Low. 604. 
 
 2 Kussell on Arb., 3d ed. p. 178. 
 
 3 Tobey v. County of Bristol, 3 Story, 800 ; Webb v. Taylor, 1 Dowl. & Low. 676. 
 
 4 Webb V. Taylor, 1 Dowl. & Low. 676 ; Spenoe v. Stuart, 3 East, 89 ; Ran- 
 dal u. Gurney, 3 Barn. & Ad. 252 ; 1 Chitty, 679 ; Ricketts o. Gurney, 7 Price, 
 699 ; 1 Chitty, 682 ; Moore v. Booth, 3 Ves. Jr. 350, 
 
 5 Webb V. Taylor, 1 Dowl, & Low. 676. 
 
 8 Spencer v. Newton, 6 Ad. & El. 623 ; Ex parte Temple, 2 Ves. & B, 895 ; 
 Ex parte Russell, 1 Rose, 278. 
 
 ■J Russell on Arb., 3d ed. p. 175 ; citing also Taylor on Evid. 861. 
 
PROCEEDINGS IN THE ARBITRATION. 135 
 
 relating to the admissibility of evidence as arise in the course 
 of the proceedings, the arbitrator " is not at liberty to follow- 
 any arbitrary principle of his own, but is bound by the same 
 rules of evidence as govern the Superior Courts." ^ 
 
 The decisions in this country assert a different doctrine. It 
 may be laid down as law in the United States, that arbitrators 
 " are not bound by the strict rules of law as to the admission 
 of evidence." ^ So also in an earlier case it was said : " We 
 think there is no doubt that the referees might receive the 
 testimony of a (legally) incompetent witness, if in their judg- 
 ment the justice of the case required it." ^ 
 
 His Decision is final: But in both countries alike, though 
 there be a difference as to the latitude which may be allowed 
 him in regard to the principles by which it is his duty to be 
 governed in forming his decision upon these questions, yet that 
 decision itself is final. The arbitrator is the ultimate judge 
 both of admissibility and weight.* 
 
 In the great case of the Boston Water Power Company v. 
 Gray,^ Chief Justice Shaw said : " In general, arbitrators 
 have full power to decide upon questions of law and fact, 
 which directly or incidentally arise in considering and deciding 
 the questions embraced in the submission. As incident to the 
 decision of the questions of fact, they have power to decide all 
 questions as to the admission and rejection of evidence, as well 
 as the credit due to evidence, and the inferences of fact to be 
 drawn from it." 
 
 1 Russell on Art., 3d ed. p. 193 ; Attorney-General v. Davison, 1 M'Lel. & 
 Yerg. 160. But see on p. 136, post, Hagger v. Baker, 14 Mee. & W. 9. 
 
 ^ Hooper v. Taylor, 39 Maine, 224; per Bigelow, C. J., in Maynard v. Fred- 
 erick, 7 Cush. 246 ; Eyres's Executor v. Eennimore, 2 Penning. * 932 ; Eenni- 
 more v. Childs, 1 Halst. 386. And see Mulder v. Cravat, 2 Bay, (S. C.) 370; 
 Latimer v. Ridge, 1 Binn. 458. 
 
 3 Puller V. Wheelock, 10 Pick. 135. 
 
 * Campbell v. Western, 3 Paige, 124 ; Shaifer v. Baker, 38 Ga. 135 ; Hooper 
 V. Taylor, 39 Maine, 224 ; Pike u. Gage, 9 Poster, (N. H.) 461 ; In re Marsh, 16 
 L. J. Q. B. 330. Also the English cases cited on" p. 136, note 1 ; see also post, 
 under " Arbitrators as Pinal Judges of Law and Fact." 
 
 5 6 Mete. (Mass.) 131. 
 
136 PROCEEDINGS IN THE ARBITEATION. 
 
 Eussell says : " If, intending to decide rightly, [the arbitra- 
 tor] come to a wrong decision as to the competency of a wit- 
 ness, the admissibility of documentary or oral testimony, or 
 the relevancy and propriety of allowing proof of particular 
 facts, it is now settled law that the court will not review his 
 decision or set aside the award for the mistake." ^ 
 
 It seems, however, that cases may arise wherein the error is 
 so gross and its results are presumably so important, that an 
 exception to the rule would be allowed to obtain. Thus where 
 an arbitrator refused to hear evidence of the contents of a 
 letter which was proved to have been lost. Lord Eldon inti- 
 mated that he thought the mistake would constitute a good 
 objection to an application to carry the award into execution.^ 
 
 This rule of refusing to interfere with an award on the 
 ground of erroneous decisions as to the admission of proffered 
 evidence has been carried very far in England. Thus in a case 
 .where an arbitrator admitted the plaintiff's own books in evi- 
 dence for him, stating that he (the arbitrator) was aware they 
 would be inadmissible in a trial at Nisi Prius, but he was not 
 bound by such rigid rules of evidence, the court refused to set 
 aside the award, and said that the worst which was shown was 
 a mistake by the arbitrator concerning the law of evidence.^ 
 It must be confessed that it does not seem easy to reconcile 
 this decision with the rule above stated to have been laid down 
 in Attorney-General v. Davison (^ante, p. 135). In that case it 
 was said to be the duty of the arbitrator to be governed by the 
 rules of law as to admitting testimony. In this case, by his 
 own statement, he declined so to be governed ; and the deci- 
 sion of the court seems to go beside the case rather than to 
 
 1 Russell on Arb., 3d ed. p. 193 ; Hagger v. Baker, 14 Mee. & W. 9 ; Eastern 
 Counties Railway Company v. Robertson, 6 Man. & Gr. 38; Armstrong v. Mar- 
 shall, 4 Dowl. 593 ; Perriman v. Steggall, 9 Bing. 679 ; Wilson u. King, 2 Cr. & 
 Mee. 689 ; 2 Dowl. 688, n. a.; Campbell v. Twemlow, 1 Price, 81 ; Musselbrook 
 u. Dunkin, 9 Bing. 605 ; Slowman v. Wiggins, 6 C. B. 276. 
 
 '^ Anderson v, Darcy, 18 Ves. Jr. 447. 
 
 ' Hagger v. Baker, 14 Mee. & W. 9. 
 
PROCEEDINGS IN THE ARBITRATION. 137 
 
 meet it, for his mistake seems to have been quite obviously as 
 to his own power and duty, and not as to the legal character of 
 the evidence offered. At any rate, the practical effect of 
 Hagger v. Baker is to render the rule of Attorney-General v. 
 Davison a very empty and valueless doctrine. 
 
 In an action to recover for the board and lodging of defend- 
 ant's wife, defendant pleaded only non assumpsit. The arbi- 
 trator admitted evidence of adultery, and decided against the 
 plaintiif. The plaintiff objected to the award on the ground 
 that the matter of adultery was not open to inquiry, since it 
 had not been pleaded. The court, assuming the objection to 
 the evidence to be sound in law, yet held it to be immaterial, 
 since it amounted only to the admission of inadmissible testi- 
 mony.^ 
 
 It seems, however, to be a rule based both in justice and in 
 common sense, that an arbitrator shall not be allowed to admit 
 testimony going to establish a demand or a defence which the 
 defendant has no legal right to enforce or to rely upon. It 
 has been so held in California, in a case where the court 
 declared that the arbitrator had no right to admit testimony 
 against the objection of a party to establish a demand barred 
 by the Statute of Limitations.^ Nor is this in contravention of 
 the rule laid down in the preceding English cause ; for there 
 the defence of adultery does not appear to be one which the 
 defendant had no right to set up at all in the action, but only 
 one which he could not properly be allowed to urge under the 
 technical rules of law as applied to his pleadings. There is, 
 however, the great cardinal principle that arbitrators may 
 decide a case upon its general equity ; and as this rule would 
 sometimes enable them to allow demands or sustain defences 
 not strictly permissible at law, so they must of course have 
 the right to admit evidence concerning any such demand or 
 defence. The natural and proper test must be taken to be 
 
 1 Symes v. Goodfellow, 2 Bing. N. C. 532. 
 
 2 De La Eiva v. Berreyesa, 2 Cal. 195. 
 
138 PROCEEDINGS IS THE AKBITEATION. 
 
 whether or not, if the fact be proved, the arbitrators can con- 
 sider it, and this is not identical with the question of admissi- 
 bility, nor to be determined by the same principles. 
 
 The arbitrator may sometimes be authorized to inquire into 
 matters not submitted, provided he needs to do so in order to 
 come to a proper decision in the matter submitted. But even 
 if, without this justification, he receives evidence of matters 
 outside of the submission, it has been said that this is simply 
 a case of the reception of improper evidence, and will not con- 
 stitute cause for setting aside the award.^ 
 
 Rejection of Evidence under Mistake concerning the Scope of 
 the Submission. — It will sometimes happen that evidence will 
 be offered which in fact bears upon some matter included in 
 the submission, but which the arbitrator, being under a con- 
 trary impression, will refuse to receive. It is perfectly clear 
 that an error of this kind is not a mistake concerning the 
 admissibility of evidence, but concerning the scope of the sub- 
 mission. The courts have preserved the distinction, and set 
 aside the award in such cases upon the ground that the arbi- 
 trator has omitted to pass upon some of the matters sub- 
 mitted.2 
 
 Erroneous Ruling on Evidence by a Referee. — Where the 
 referee is to be regarded as an officer of the court, before 
 whom the trial is to be conducted upon legal principles, his 
 admission of incompetent evidence will be a ground for setting 
 aside his report and ordering a new trial.^ For though the 
 admission of such evidence would be an immaterial error 
 where it can be clearly shown that it could not reasonably have 
 influenced or misled the minds of the referees, and in such 
 
 1 Eastern Counties Railway Company v. Kotertson, 1 Dowl. & Low. 498 ; 6 
 Man. & Gr. 38. 
 
 2 Samuel v. Cooper, 2 Ad. & El. 752 ; Brophy v. Holmes, 2 Moll. 1 ; Russell 
 on Arb., 3d ed. p. 178. 
 
 3 Allen V. Way, 7 Barb. 585. But see Cliesley v. Chesley.lON. H. &27,post, 
 and Hooper v, Taylor, 39 Maine, 224, whicb shows clearly that a referee is not 
 always an officer of the court in such a sense as to be restricted in his free discre- 
 tion, to admit or reject evidence as he sees fit. 
 
PROCEEDINGS IN THE ARBITRATION. 139 
 
 cases the court, looking to the general result, will not inter- 
 fere,i yet it is matter of extreme delicacy and difficulty to 
 come to the decision that the interest of the party against 
 whom it was admitted was not at all, perhaps insensibly, prej- 
 udiced in the mind of the referee. This difficulty has been 
 regarded as very serious, even where the referee stated that 
 though he had at first admitted the evidence, yet he had after- 
 ward omitted it from his consideration in making up his deci- 
 sion and report.^ 
 
 Judge Redfield, commenting on the admission of what was 
 " no doubt, incompetent testimony " before referees, said that 
 it clearly had no possible tendency to mislead their "minds, 
 nor do they intimate that they relied upon it in any sense 
 in deciding the case. " Indeed, they could not if they were 
 rational men. The plaintiff had distinctly admitted a fact 
 against his interest. His showing that at other times he had 
 asserted the fact to be otherwise, would not in any sense 
 qualify his admission. And although the testimony was im- 
 properly admitted, yet as it had no tendency to mislead the 
 referees, and did not mislead them, so far as we can learn, it is 
 no sufficient reason for setting aside the report."^ 
 
 Referees in a pending cause have been allowed to admit 
 evidence equitably bearing upon the case, but inadmissible in 
 a court of law, where they undertook to make their decision 
 confirm to justice rather than to law.* The court in New 
 Hampshire said : " Even if [the evidence] was ' not admis- 
 sible at law, the report cannot be rejected for that reason. 
 The referees in admitting it do not appear to have undertaken 
 to decide according to law, and to have mistaken its principles. 
 If they thought proper to receive evidence which might equi- 
 tably have a bearing upon the case, but which could not have 
 
 1 Learned v. Bellows, 8 Vt. 79 ; Spear v. Myers, 6 Barb. 445. 
 
 2 Allen V. Way, 7 Barb. 585 (per Allen, J.). 
 
 3 Learned v. Bellows, 8 Vt. 79. 
 
 * Chesley v. Chesley, 10 N. H. 327 ; Fuller v. Wheelock, 10 Pick. 135. 
 
140 PROCEEDINGS IN THE ARBITRATION. 
 
 been admitted in a court of law, the report cannot be impeached 
 for that reason." 
 
 The Referee may leave the Question of Admissibility to the 
 Court. — The referee may, if he choose, decline to pass upon 
 the question of admissibility, and leave it for the court to 
 determine. This he will do by reporting the testimony as to 
 which he is in doubt, and giving his decision in the alternative. 
 If the court is of opinion that the testimony should have been 
 admitted, then he finds, &c. ; if, however, the court are of opin- 
 ion that the testimony should not have been admitted, then he 
 finds, &c. The court will then pass upon the admissibility, and 
 confirm the one or the other of his findings in accordance with 
 their ruling on this point.^ But he must, in such case, find the 
 facts and report them absolutely and conclusively. He cannot 
 report testimony and leave the court to find or infer the facts 
 from it.^ 
 
 In Fuller v. Wheelock,^ a pending cause was referred by the 
 rule of the Supreme Judicial Court. An interested person 
 was admitted to testify against the objection of a party. The 
 referees reported, awarding a certain sum to the plaintiff, " on 
 condition that W. (the interested witness) shall be adjudged 
 by the justices of the Supreme Judicial Court to have been 
 legally admitted to testify in the cause." Otherwise they 
 awarded the defendant his costs. The court said that the 
 extraordinary powers of the referees to admit legally incompe- 
 tent testimony were immaterial in this case, for the language of 
 the award showed it to be their intention to found their deci- 
 sion upon legal and competent evidence. The witness, W., was 
 not competent at law ; therefore judgment should be rendered 
 for the defendant for his costs. 
 
 In England, if a question as to the admissibility of evidence 
 arises as to which the arbitrator is in doubt, so that he desires 
 
 1 Hooper v. Taylor, 39 Maine, 224. 
 
 2 Barnard v. Spofford, 31 Maine, 39. 
 
 3 10 Pick. 135. 
 
PROCEEDINGS IN THE ARBITRATION. 141 
 
 the order of the court concerning it, his proper course is said 
 to be to state the point in the shape of a certificate or case 
 setting out all the necessary facts. This will be considered on 
 the argument before the court in the same manner as an objec- 
 tion to evidence at Nisi Prius, and the party objecting to the 
 admission of the evidence vrill be entitled to begin.^ 
 
 It is also held in England that a party may specifically 
 reserve to himself in the submission the right of objecting to 
 the admission of evidence in the same manner as in a trial 
 at Nisi Prius. If the arbitrator admit evidence to vehich 
 the party has objected, he may, under this stipulation, move 
 the court to set aside the award on the ground of error in the 
 admission.^ 
 
 A Referee need not report Evidence. — An arbitrator or referee 
 is not obliged to report the evidence, or to append copies of 
 documents submitted, even though requested so to do by the 
 parties ; ^ though in references under certain statutes of Mis- 
 sissippi the courts of that State have held otherwise.* 
 
 Parties may be admitted as "Witnesses. — Parties and persons 
 interested in the event may be allowed by the arbitrators to 
 testify.^ 
 
 The law is now the same in England, though formerly, 
 before the recent changes in the law of evidence, " nice ques- 
 tions were raised as to the extent of the power of the arbitrator 
 to examine the parties and the proper mode of such exami- 
 nation." ^ 
 
 But if arbitrators examine a party who by reason of interest 
 
 1 Russell on Arb., 3d. ed. p. 195; Attorney-General v. Davison, 1 M'Lel. & 
 Yerg. 160. 
 
 2 Russell on Arb., 3d. ed. p. 195 ; Scott v. Van Saiidau, 1 Q. B. 102. 
 
 3 Allen V. Miles, (Smith's Adm'r) 4 Harrington, 234. 
 * Green v. Creighton, 7 Sm. & Mar. 197. 
 
 5 Fuller V. "Wheelock, 10 Pick. 137 ; HoUingsworth v. Xeiper, 1 Dall. 161 ; 
 McRae v. Robeson, 2 Murph. 127 ; Askew v. Kennedy, 1 Bailey, 46 ; Maynard 
 V. Frederick, 7 Gush. 247. Aliter, as to parties, in New Jersey and Virginia; 
 Eyres's Ex'r v. Fennimore, 2 Penning. * 982 ; M'AUister v. M'Allister, 1 "Wash. 
 193 ; Fennimore v. Cliilds, 1 Halst. 386. 
 
 6 Russell on Arb., 3d. ed. p. 183. 
 
142 PROCEEDINGS EST THE ARBITRATION. 
 
 would be incompetent at law, and at the same time expressly 
 state their intention to found their decision upon " legal and 
 competent evidence," this error will be cause for vacating their 
 award.^ 
 
 An action of trespass quare clausum fregit was submitted, 
 with the stipulation that " the duties of the referees shall be 
 confined to reporting a statement of facts, and that the case 
 shall be presented to the court upon that report as an agreed 
 statement of facts, the court to draw such inferences as should 
 be properly drawn from the facts so reported." In order to 
 prove a fact material to the plaintiff's case, the plaintiifs them- 
 selves were admitted to testify, against the defendant's objec- 
 tion. It was acknowledged that at law parties were incompetent 
 witnesses in an action of trespass to land ; but it was urged 
 that the latitude allowed to referees made -their testimony com- 
 petent in this case. The court ruled otherwise. Whatever 
 might have been the power of the referees in an ordinary case, 
 it was restricted by the express agreement made by the parties 
 in this submission. They " were expressly limited to the duty 
 of reporting a statement of facts, restraining them from decid- 
 ing on any questions of law. It was for the purpose of pre- 
 senting the case to the court on the same ground as upon a 
 special verdict, and a special verdict must be upon strictly 
 legal evidence." ^ 
 
 Arbitrator's Discretion to Refuse to hear Evidence. — An arbi- 
 trator has some power within his discretion to determine how 
 much evidence he will hear ; ^ but it is his general duty to 
 hear all evidence material to the case, which is offered. Mr. 
 Eussell says that " declining to receive evidence on any matter 
 is, under ordinary circumstances, a delicate step to take, for 
 the refusal to receive proof where proof is necessary is fatal 
 to the award."* And we have already seen that refusal to 
 
 1 Fuller V. Wheelock, 10 Pick. 135. 
 
 2 Fowler v. Thayer, 4 Gush. 111. 
 
 ' Nichalls v. Warren, 6 Q. B. 615 (per Lord Denman, C. J., p. 618). 
 * Eussell on Arb., 8d. ed. p. 178 ; Johnstone v. Cheape, 5 Dow. 247. 
 
PROCEEDINGS IN THE AEBITRATION. 143 
 
 hear testimony concerning any special matter on the erroneous 
 supposition that such matter is not within the scope of the 
 submission will suffice to avoid the award.^ 
 
 Even where the subject-matter in dispute is such that the 
 arbitrator thinks he can judge conclusively about it by simply 
 taking a view, as where the action is for not repairing a house, 
 or for not building a certain vehicle according to a certain con- 
 tract, he must yet hear each party if desired so to do. His 
 award made simply on his own inspection will be bad, at least 
 if either party wished to be heard and to introduce testimony.^ 
 
 There ' are cases which would go far to sustain the broad, 
 general rule that if arbitrators refuse to hear testimony which 
 is offered, and is in fact pertinent and material to the contro- 
 versy, going to prove a point which needs to be proved, and 
 properly admissible,- the error may be cause for vacating the 
 award or report.^ Thus, for example, the matter being an 
 appraisement of the value of certain buildings erected on 
 land during the term of a lease, the refusal by the arbitrators 
 to hear testimony as to the original cost was held a sufficient 
 cause for setting aside their award.* And it has been lield 
 that arbitrators have no right to refuse altogether to hear 
 evidence going to impeach the credit of a witness.^ 
 
 But if the submission be to an expert, as such, the rule may 
 be different. Thus if a person is selected as an arbitrator by 
 reason of some especial knowledge or skill possessed by him 
 with reference to the matter in controversy, so that it is appar- 
 ent that the parties intended to rely upon his personal informa- 
 tion, investigation, and judgment, it may be that he will be 
 justified in refusing altogether to hear evidence. Thus where 
 
 1 Ante, p. 138. 
 
 2 Anon. 2 Chitt. R. 44 ; Braddick v. Thompson, 8 East, 344. 
 
 5 Johnstone v. Cheape, 5 Dow. 247. And see Samuel v. Cooper, 2 Ad. & El. 
 752; Brophy w. Holmes, 2 Moll. 1. 
 
 * Van Cortlandt v. Underhlll, 17 Johns. 405, overruling, on appeal, the con- 
 trary decision of the court of chancery in the same case, 2 Johns. Ch. 339 ; 
 Burroughs v. Thome, 2 South, 777. 
 
 6 Ligon V. Eord, 5 Munf. 10. 
 
144 PEOCEEDINGS IN THE ARBITRATION. 
 
 it was referred to surveyors to settle the' amount of rent and 
 the other terms of a lease of a coal mine, and no witnesses were 
 examined, Lord Chancellor Cranworth said : " I do not agree 
 in the suggestion that it was incumbent upon the arbitrators 
 to examine witnesses. I do not think that is the meaning 
 when a matter is referred to surveyors and people of skill to 
 settle what the value of the property to be bought or let is. 
 Necessarily they are entrusted from their experience and their 
 observation to form a judgment, which the parties referring to 
 them agree shall be satisfactory. Therefore I do not think 
 there was any thing of importance in their not examining wit- 
 nesses, provided, lona fide, they meant to say, ' we know suffi- 
 cient of the subject to decide properly without examining 
 witnesses.' " ^ 
 
 So also, in another case, the submission recited that the 
 arbitrator was selected on account of his skill and knowledge 
 concerning the subject. He refused to consider a statement of 
 facts which one of the parties presented and offered to support 
 by proof. He was held to have acted justifiably, provided 
 that, with the knowledge he had upon the subject, he felt satis- 
 fied that the proof of these facts, even if satisfactorily made, 
 could not affect his decision.^ 
 
 It has been held, however, that if an arbitrator is requested 
 by a party to view the premises, — e. g., under a submission of 
 a claim for builder's work done to a house, — it is within his 
 discretion whether he will do so or not.^ 
 
 Number of "Witnesses. — The number of witnesses who may 
 be introduced to give expert testimony or to express opinions 
 may be limited by the referee, as by any other judicial tribunal, 
 according to his discretion. The limitation of witnesses, as to 
 the genuineness of certain handwriting, to twenty upon each 
 
 1 Eads V. WiUiams, 24 L. J. Chy. 531 ; Caledonian Railway Company o. 
 Lockhart, 3 Macq. 808. 
 
 2 Johnstone v. Cheape, 5 Dow. 247. 
 
 3 Mundy v. Black, 9 C. B. N. S. 557. 
 
PROCEEDINGS IN THE ARBITRATION. 145 
 
 side, was held not to be an unreasonable exercise of such dis- 
 cretion.' 
 
 Closing Case too hastily. — It is said that if a case is closed 
 with such undue haste as to be a surprise upon a party and to 
 prevent his tendering evidence which he wished to have heard, 
 it will be a cause for setting aside the award.^ The proper 
 course, in order to prevent possible errors of this description, 
 is obviously that the arbitrator shall state to the parties when 
 he considers that the case is closed. They can then notify him 
 if they still have other testimony to present.^ 
 
 Opening Case for New Evidence. — Whether or not a case shall 
 be opened at any stage, to allow a party who has rested to 
 introduce new evidence which should have been offered in the 
 first instance and does not operate in rebuttal, is a matter rest- 
 ing in the first instance, at least, within the discretion of the 
 referee.* The rule is the same if the whole case has been 
 closed and rests with him for decision.^ And an arbitrator has 
 been sustained in allowing a case to be opened, even after he 
 has actually drawn up but has not delivered his report, the 
 party offering the evidence not having been previously culpably 
 negligent in failing to procure it earlier.'' 
 
 In Williams v. Hayes,'' the court said : " As to the offers 
 of proof, they were made after the case had been closed by 
 consent -of all parties. The receiving of further proof was 
 then not matter of strict legal right on the part of the party 
 offering it. Its admission rested primarily in the discretion of 
 
 1 Sizer v. Burt, 4 Denio, 426. 
 
 2 Earle v. Stacker, 2 Vern. 251 ; Pepper v. Gorham, 4 Moore, 148 ; Dodding- 
 ton V. Hudson, 1 Bing. 384 ; Gladwin i;. Chilcote, 9 Dowl. 550 ; Bedington v. 
 Southall, 4 Price, 232 ; Haigh v. Haigh, 31 L. J. Chy. 420 ; Eryer v. Shaw, 27 
 L. J. Exch. 320 ; Spettigue v. Carpenter, 3 P. Wms. 361. 
 
 2 Pepper v. Gorham, 4 Moore, 148 ; Earle v. Stocker, 2 Vern. 251 ; Peterson 
 V. Ayre, 23 L. J. C. P. 129. 
 
 i Williams v. Hayes, 20 N. Y. 58; Pearson v. Fiske, 2 Hilton, 146 ; Delafleld 
 V. De Grauw, 9 Bosw. 1 ; Spear v. Myers, 6 Barb. 445. 
 
 5 Duguid V. Ogilvie, 3 E. D. Smith, 527 ; Cleaveland v. Hunter, 1 Wend. 104. 
 
 6 Cooper V. Stinson, 5 Minn. 201. 
 1 20 N. Y. 58. 
 
 10 
 
146 PROCEEDINGS IN THE AEBITEATION. 
 
 the referee, and if he did not think proper to allow the proof 
 to be made, and the supreme court [out of which the rule of 
 reference issued] did not think a case made out requiring them 
 to relieve the party, there is no remedy. The court of appeals 
 cannot review the exercise of the discretion of the original 
 tribunal." 
 
 But where it had been agreed that a certain meeting should 
 be the last, and that all the evidence on both sides should be 
 produced, and a party afterward applied to the arbitrator for 
 another hearing on the ground of having come into possession 
 of fresh evidence in rebuttal of accounts introduced by his 
 opponent at the last meeting, and the arbitrator refused to 
 grant the application, the court refused to interfere with the 
 award, saying that the request was addressed to the discretion 
 of the arbitrator.-^ 
 
 Admission of Evidence de bene esse. — The arbitrator cannot, 
 against the objection of a party, admit evidence de bene esse, or 
 provisionally, or reserving to himself the power of subse- 
 quently retaining or rejecting it at the conclusion of the case.^ 
 Neither can he admit evidence absolutely and afterward throw 
 it out of his consideration in coming to his conclusion upon 
 the case.^ The obvious injustice which might be worked to 
 each or either party shows the necessity of this rule. 
 
 In Allen v. Way,* it was said that " it would be liable to 
 great abuse if a referee or court could admit eviden(Je in fact 
 de bene esse, although professedly admitting it absolutely, and 
 then reject it upon making up a decision or report upon the 
 whole case. The rights of both parties might be prejudiced by 
 the act of the court or referee in thus reviewing their inter- 
 locutory decisions. (1) The party whose evidence is at first ad- 
 
 ' Ringer v. Joyce, 1 Marsh. 404 ; and see In re Hall v. Anderton, 8 Dojrl. 326. 
 
 2 Peck u. York, 47 Barb. 131 ; Allen v. Way, 7 Barb. 585 {per Allen, J.) ; 
 Clussman v. Merkel, 3 Bosw. 402 ; Brooks v. Christopher, 5 Duer, 216 ; and see 
 McKnight v. Dunlop, 1 Seld. 537. 
 
 3 Allen V. Way, 7 Barb. 585 {per Allen, J.). 
 * 7 Barb. 585 {per Allen, J.). 
 
PROCEEDINGS I IN THE AEBITEATION. 147 
 
 mitted and finally rejected, loses the opportunity of excepting to 
 the final decision by which his evidence is excluded as well as 
 the opportunity of supplying evidence of the same facts from 
 some other source. (2) The party against whom the evi- 
 dence is admitted, relying upon the ruling, may, for aught that 
 can appear, have presented his case in an entirely different 
 manner from that in which, but for the admission of the objec- 
 tionable evidence, he would have done. It is a power which 
 cannot be safely exercised by a referee. His discretion, as 
 well as his authority, over the interlocutory questions presented 
 in the progress of the trial, ceases with his decision of them 
 or at least with the trial itself. Probably during the trial an 
 error in the admission or rejection of evidence may be cured ; 
 for during that time the parties may be placed in the same posi- 
 tion they were in before the error." 
 
 " A party has a right to know, when evidence is received 
 against him, whether it is to be held competent, so that he may 
 except to its reception and conduct his side of the case with 
 knowledge of what is to remain in it as evidence." ^ 
 
 But the objecting party must except at the time to the pro- 
 visional reception of evidence ; ^ or at the close of the hearing, 
 he must obtain a distinct ruling thereon, and then except to 
 that ruling, if it displeases him.* 
 
 Adjourumeuts are in Arbitrator's Biscretion. — The matter of 
 adjourn"ment is within the discretion of the arbitrator or ref- 
 eree.* He may adjourn at the request of a party or even for 
 his own convenience without the consent of the parties or 
 either of them ; provided, however, that the adjournment must 
 be for no more than a reasonable time.^ 
 
 A submission named a time for making the award, but 
 
 1 Peck V. Yorks, 47 Barb. 131. 
 
 2 Patten v. Huunewell, 8 Greenl. 19 ; Brooke v. Christopher, 5 Duer, 216 ; 
 and see Spear v. Myers, 6 Barb. 445. 
 
 3 Brooks V. Christopher, 5 Duer, 216. 
 
 « Brown v. Leavitt, 26 Maine, 261 ; Bray v. English, 1 Conn. 498. 
 5 Ex parte Butter, 3 Hill, 464. 
 
148 PROCEEDINGS IN THE ARBITRATION. 
 
 extended it for a further reasonable period " in case either of 
 the said parties shall, by affected delay or otherwise, prevent 
 the arbitrators from making their award by the time limited." 
 Held, that adjournments made at the request of the defendant 
 and carrying the hearing beyond the time limited, fell within 
 the case provided for ; and the time was reasonably extended. 
 Also that this period of extension was not to be employed exclu- 
 sively for making and signing the award, but that it might be 
 used for hearing the parties.^ 
 
 Statutory provisions allowing referees to adjourn " from day 
 to day," or " from time to time as may be necessary," do not 
 materially affect their inherent power to adjoiirn in their 
 own good discretion, nor preclude them from the right to ad- 
 journ for a longer time than a day.^ Of the necessity the 
 referees themselves must be judges. But the court may 
 inquire into the matter and see that they do not act oppres- 
 sively, and that the parties are not delayed for an unreasonable 
 time. 
 
 Adjournments before Referee in lis pendens. — When a cause 
 is before a referee, application for an adjournment is, as a gen- 
 eral rule, properly made to him and not to the court.^ But his 
 decision will be inquired into, on motion, by the cj)urt, to see 
 that his action has not operated to oppress or unreasonably 
 delay the parties.* 
 
 For example, a decree of divorce had been granted, and the 
 question of alimony was sent to a referee. Held, that his 
 adjournment of the case, against the objection of the wife, to 
 enable the husband to make a three months' trip to Europe 
 was unreasonable ; and that unless he should vacate the order 
 of adjournment, the court would remove him.^ But after the 
 parties have agreed that the referees shall proceed to make 
 
 1 Bixby V. Whitney, 11 Maine, (2 Fairf.) 62. 
 
 2 Ex parte Rutter, 3 Hill, 464 ; Richardson v. Hartsfield, 27 Geo. 528. 
 
 " Baker v. Lafitte, 4 Rich. Eq. 392 ; Langley v. Hickman, 1 Sandf. 681. 
 * Langley v. Hickman, 1 Sandf. 681 ; Ex parte Rutter, 8 Hill, 464. 
 5 Eorrest v. Forrest, 3 Bosw. 660. 
 
PROCEEDINGS IN THE ARBITRATION. 149 
 
 theii" decision, and they have accordingly agreed upon it, the 
 application for an adjournment will come too late.^ 
 
 In some cases, e.g., where leave to postpone beyond the next 
 term of the court is sought, for cause shown, it seems that 
 application for a postponement may be made to the court, and 
 the referees will be ordered to grant the requisite delay.^ But 
 though this power rests with the court, it is not exclusive of 
 the like power in the referees.^ 
 
 In New York an adjournment by referees in a cause beyond 
 the next term of that court to which their report is returnable, 
 unless perhaps by actual or implied consent of parties,* is 
 error.^ 
 
 Death of Witness during Adjournment. — An adjournment 
 was ordered by referees for their own convenience, but with 
 the consent of both parties, at the close of the direct examina- 
 tion of a witness. Pending the adjournment, the witness died, 
 so that the other party lost the opportunity to cross-examine 
 him. The court held that the direct examination should be 
 allowed to stand and should be considered by the referees. By 
 consenting to the adjournment, the party calling the witness 
 ran the risk of impairing the force of his direct testimony by 
 reason of the occurrence of any circumstance which should 
 prevent the cross-examination ; and the adverse party ran the 
 risk of the occurrence of such a circumstance depriving him 
 altogether of the advantage of cross-examination. But it was 
 admitted that the rule should be otherwise, where the power to 
 cross-examine had been lost by the fault or negligence of the 
 party calling him, or by the misconduct of the witness in 
 departing from the court without permission, or by his wilful 
 
 1 Coryell v. Coryell, Coxe, 385. 
 
 2 Ex parte Eutter, 3 Hill, 464 ; Sudam «. Swart, 20 Johns. 476 ; Graham v. 
 Morton, 6 Wend. 552 ; Bird v. Sands, 1 Johns. Ca. 394; Combs v. WyckoflF, 1 N. 
 Y. Term Reports, (Gaines) 147. 
 
 3 Sudam v. Swart, 20 Johns. 476. 
 * Ex parte Rutter, 3 Hill, 464. 
 
 5 Jackson v. Ives, 22 Wend. 637 ; and see 2 R. S. 384, § 43. 
 
150 PROCEEDINGS IN THE AEBITEATION. 
 
 neglect to attend at the time and place to which the hearing 
 stood adjourned.^ 
 
 Record of Adjournment. — The fact of the adjournment must 
 appear of record .^ 
 
 Causes for Demanding Adjournment. — It is perfectly proper 
 to adjourn at the request of a party, surprised at an unexpected 
 case set up against him, in order to enahle him to introduce 
 further evidence.^ And where a referee had refused to adjourn 
 for this purpose for the sole reason that he thought he had not 
 authority to do so, the court ordered the hearing to be opened 
 to receive the new testimony, the party introducing it paying 
 the costs.* But generally the arbitrator's discretion will not 
 be interfered with.^ 
 
 Absence of a material witness from the State, who is, how- 
 ever, expected to return at a reasonably near day, is a siiffi- 
 cient cause for adjournment.^ 
 
 Under the English rule that notice should be given by a 
 party to his opponent of an intention to employ counsel, it was 
 held, where a party had failed to give such notice and appeared 
 with counsel, that his opponent was entitled to demand an 
 adjournment to enable him also to procure professional assist- 
 ance.'' 
 
 If a party goes voluntarily to a hearing relying upon the 
 witnesses of his adversary, it is* too late for him afterward to 
 demand an adjournment as matter of right to enable him to 
 meet testimony of one of their witnesses which has surprised 
 him, and which he believes to be false. The rule is the same as 
 it would be in a trial at Nisi Prius in the courts.® 
 
 J Forrest v. Kissam, 7 Hill, 463. 
 
 " Eickard v. Patterson, 5 Harrington, 2§5 ; Deputy ». Betts, 4 id. 352. 
 
 s Ibid. ; Solomon v. Solomon, 28 L. J. Exch. 129. 
 
 * Packer v. French, Hill & Den. 103. 
 
 s Einger v. Joyce, 1 Marsh. 404. 
 
 6 Sudam v. Swart, 20 Johns. 476. 
 
 ' Whatley v. Morland, 2 Dowl. 249. 
 
 8 Woodworth v. Van Buskerk, 1 Johns. Ch. 4S2. 
 
PROCEEDINGS IN THE ARBITRATION. 151 
 
 The naked allegation of a party that he desires further time 
 to produce testimony, is an insufficient ground upon which to 
 demand an adjournment as matter of right. What evidence 
 he expects to produce, the reason why he cannot produce it at 
 once, and his expectation to be able to produce it within a 
 reasonable time should be alleged.^ 
 
 A request for a continuance in order to procure witnesses to 
 a certain fact, may be properly met by the arbitrators by an 
 offer to hear the rest of the case at once, and then to adjourn 
 for a sufficient time to enable the party to procure and intro- 
 duce these witnesses.^ 
 
 Erroneous Refusal to adjourn. — If, by the unreasonable refu- 
 sal by the referees of an apparently just and hona fide request 
 for an adjournment, the party loses the opportunity to produce 
 material evidence,^ or any other substantial advantage to which 
 he is entitled, as for example, the privilege of obtaining coun- 
 sel,* the report or award will be set aside. 
 
 Adjournments in Case of Absence. — A portion of the arbitra- 
 tors or referees only, in the absence of the rest, have no power 
 to adjourn, inasmuch as they have no power to do any act 
 whatsoever.^ But if arbitrators fail to attend at the time and 
 place set for a meeting,^ they may call another session, unless 
 some limitation of time or other objection arising out of the 
 terms of the submission should prevent.^ 
 
 All the Arbitrators must act together during the Proceedings. 
 — It is aji imperative rule that where the submission is to sev- 
 eral arbitrators jointly, all must act together during the pro- 
 ceedings. English and American authorities are alike agreed 
 upon this. All must be present throughout each and every 
 
 1 Latimer v. Ridge, 1 Binn. 458. 
 
 2 Madison Ins. Co. v. Griffin, 3 Ind. 277. 
 
 8 Passmore v. Pettit, 4 Dall. 271 ; Forbes v. Fracy, 2 Johns. Ca. 224 ; Coryell 
 V. Coryell, Coxe, 385. 
 
 < Whatley u. Morland, 2 Dowl. 249. 
 
 5 Harris v. Norton, 7 Wend. 534 ; Jackson v. Ives, 22 Wend. 637. 
 
 6 Harrington v. Rich, 6 Vt. 666. 
 
152 PROCEEDINGS IN THE ARBITRATION. 
 
 meeting, equally whether the meeting be for hearing the evi- 
 dence or arguments of the parties or for consultation or deter- 
 mination upon the award. The disputants are entitled to the 
 exercise of the judgment and discretion, and to the benefit of 
 the views, arguments, and intluence, of each one of the persons 
 whom they have chosen to judge between them ; and they are 
 entitled to these, not only in the award, but at every stage of 
 the arbitration.' 
 
 In the cited English case of Plews v. Middleton, the referees 
 agreed to carry on their inquiries apart, and to examine the 
 witnesses separately, and, if they should all come to the same 
 conclusion, to decide accordingly. The court held that such 
 a course of proceeding would not be sanctioned in any 
 instance, and that an award based upon facts ascertained in 
 this manner would be regarded as procured by "undue 
 means," and would be set aside ; for that such a mode of 
 examination was a departure not only from established courses 
 of procedure, but from natural justice. 
 
 No exception to the general rule obtains even where a statu- 
 tory provision or a stipulation in the submission declares that 
 the award of a majority shall be binding. All must nevertheless 
 meet both for hearing and consultation ; and the fact that the 
 hearing or consultation has been conducted in whole or in part 
 by a majority only will suffice to avoid the award. It is one 
 thing to agree to be bound by the decision which a majority 
 shall come to, and quite a diiferent thing to agree that only 
 a majority need give their attention to the case. The rule is 
 the same whether the tribunal be arbitrators or referees. The 
 award may be made by a part, but the submission is to all. 
 The opinions and arguments of one may have such an effect 
 upon the rest that he will turn them to his view of the case. 
 
 ' Smith V. Smith, 28 111. 56 ; also all the American cases cited in the note next 
 after this ; and the following English cases : Plews v. Middleton, 6 Q. B. 845 ; 
 Little V. Newton, 9 Dowl. 437 ; 2 Man. & Gr. 351 ; Stalworth v. Inns, 2 Dowl. 
 & Low. 428; Lord i,. Lord, 5 El. & Bl. 404 ; 26 L. J. Q. B. 84; Beck v. Jack- 
 son, 1 0. B. N. s. 695 ; Morgan v. Bolt, 1 N. R. 271. 
 
PROCEEDINGS IN THE ARBITRATION. 153 
 
 The parties have stipulated for the benefit of the thought and 
 consideration of each of the arbitrators and for the influence 
 of each upon the rest ; and that which the parties have stipu- 
 lated for they must have, if the award is to be upheld. ^ 
 
 It has even been held that unless all the arbitrators meet 
 together to inspect and sign the award, after it has been drawn 
 up, it will be avoided by their neglect so to do.^ This is cer- 
 tainly carrying the rule to a point beyond what reason would 
 seem to require. It is probable that so rigid a doctrine would 
 throw out many awards, which justice would require should 
 be upheld. Yet the same adjudication has been rendered in 
 the English tribunals. It was said that the award should be 
 reduced to writing by the common consent of the arbitrators, and 
 by them jointly executed. This was on the principle that the law 
 required that every judicial act done by several should be com- 
 pleted by them in the presence of each other, and that in the case 
 of arbitrators it was possible that at the last moment one might 
 change his opinion.^ In an earlier case the Court of Common 
 Pleas had been inclined' to doubt whether it was essential that 
 the signatures should be affixed by each of two arbitrators in 
 the presence of the other.* But the later cases already cited 
 must be regarded as conclusively overruling this doubt. 
 
 A leading Massachusetts case is to the contrary effect. There 
 were three arbitrators. At the consultation for determining 
 upon the award two were agreed. The third dissented. There- 
 upon, one of the two concurring arbitrators wished to take 
 
 1 Thompson v. Mitchell,, 35 Maine, 281 ; Brewer v. Kingsley, 1 Johns. Ca. 334 ; 
 Mclnroy v. Benedict, 11 Johns. 402; Howard o. Conro, 2 Vt. 492; Ackley v. 
 Finch, 7 Cow. 290 ; Blin v. Trimble, 2 Tyler, 804 ; Hoff v. Taylor, 2 Southard, 829 ; 
 Carpenter v. Wood, 1 Mete. (Mass.) 409 ; Short v. Pratt, 6 Mass. 496 ; Walker v. 
 Melcher, 14 id. 148 ; Maynard v. Frederick, 7 Cush. 247 ; Harris v. Norton, 7 
 Wend. 534. 
 
 2 Moore v. Ewing, Coxe, (N. J.) 144. 
 
 3 Stalworth v. Inns, 2 Dowl. & Low. 428 ; 13 Mee. & W. 466 ; Wade v. Dowling, 
 4 EI. & Bl. 44 ; Eads v. Williams, 24 L. J. Chy. 531 [per Lord Chancellor 
 Cranworth) ; and see Wright v. Graham, 3 Exch. 131 ; Anning v. Hartley, 27 L. 
 J. Exch. 145. 
 
 < Little V. Newton, 9 Dowl. 437. 
 
154 PROCEEDINGS IN THE AKBITEATION. 
 
 more time to consider tlie matter and asked a delay of two or 
 three days. At the end of that period he signed the award, 
 which had been already signed by the arbitrator who agreed 
 with him. The court held that the signature at this time had 
 " the same effect as if it had been done when all were pres- 
 ent. " 1 
 
 A statement in the award that all met is sufficient.^ 
 How Objection that all have not acted together may be availed 
 of. — If the report is returnable into court, the objection that 
 all the referees have not acted together may be availed of 
 either by motion to set aside the report,^ or as a reason why 
 the court should not accept it upon application.* If the award 
 is made by arbitrators m pais, the defect would unquestionably 
 be a good ground for a bill in equity to declare the award void. 
 Probably, also, the fact could be averred and proved in a suit 
 at law on the award, by analogy to the practice where want of 
 .notice or excess of authority are relied on ; though I find no 
 case where this point of practice is discussed or determined. 
 
 Withdra-wal or Refusal of an Arbitrator to act vrith his Fellows. 
 — A necessary exception to the foregoing rule is raised by the 
 refusal or neglect of an arbitrator to attend and act with his 
 .fellows.^ But it is obvious that the exception can extend only 
 to cases where a majority of the arbitrators have authority to 
 make a binding award. None of the adjudications cover the 
 case where unanimity in the award is necessary, and it is clear 
 that there would be an intrinsic impossibility in their doing so, 
 since an unanimous award could not be obtained under such 
 circumstances ; unless indeed an arbitrator who had not been 
 present at the meetings should blindly adopt and sign the 
 
 1 Maynard v. Frederick, 7 Cush. 247. 
 
 2 Thompson v. Mitchell; 35 Maine, 281. 
 
 5 Mclnroy v. Benedict, 11 Johns. 402 ; Harris v. Norton, 7 Wend. 534. 
 
 * Howard v. Conro, 2 Vt. 492. 
 
 5 Kingston v. Kincaid, 1 Wash. C. C. 448 ; Cumberland v. North Yarmouth, 
 4 Greenl. 459, see p. 468 ; Kunckle v. Kunckle, 1 Dall. 364 ; Schultz v. Halsey, 3 
 Sandf. 405; and cases cited post in the further discussion of tMs subject. 
 
PEOCEBDINGS IK THE ARBITRATION. 155 
 
 award agreed upon by his co-arbitrators, and this very proceed- 
 ing, as will be seen directly, would of itself invalidate the 
 award. 
 
 In Maynard v. Frederick,^ there was a regular meeting of 
 the arbitrators for the purpose of coming to a decision. At this 
 meeting two were agreed ; a third " refused to assent to or to 
 sign the award." One of the two then asked for a delay of a 
 day or two for further consideration, at the end of which time, 
 without any further meeting, he signed the award. The court 
 said that after the absolute refusal of the third or dissenting 
 arbitrator to sign the award to which the other two had agreed, 
 " it was no longer necessary to consult or even meet with the 
 dissenting arbitrator." 
 
 The decision in the last case was founded upon the earlier 
 cause of Carpenter v. Wood.^ In that case the three referees 
 had two meetings for consultation. At the first, two differed 
 from the third ; at the second the difference was even more 
 wide ; and then the dissenting arbitrator said he should do no 
 more with the other referees about it, and that he should not sit 
 with them any more ^ because they could not agree about the 
 award. An award subsequently signed by the two concurring 
 arbitrators was upheld. The court considered that the dis- 
 senting arbitrator had voluntarily withdrawn, and that notice 
 to him of a subsequent meeting for making an award, would 
 have been a work of supererogation if not of impertinence. 
 In this case and also in Walker v. Melcher,*it was remarked, 
 as an important fact, that the dissenting referee had been pres- 
 ent at the hearings. 
 
 It has been said in New York that there can be no doubt, 
 under a submission to three arbitrators requiring the award to be 
 signed by them " or any two of them," that at common law 
 two might lawfully meet and hear the parties, after the third 
 
 1 7 Cash. 247. 
 
 2 1 Mete. (Mass.) 409 ; Short v. Pratt, 6 Mass. 496. 
 ' The italics are so written in the opinion. 
 
 * 14 Mass, 148. 
 
156 PROCEEDINGS IN THE ARBITRATION. 
 
 had been notified and had refused to attend and share in the 
 proceedings. The award of the two would be valid and 
 binding.! The theory adopted was that by the quoted clause 
 of the submission the entire authority was disjoined, so that 
 the majority were empowered to hear as well as to determine. 
 Such, it was said, would still be the law in the State of New 
 York were it not that a statute (2 R. S. 542, § 7) had come in 
 and changed it by providing that "all the arbitrators must 
 meet together and hear all the proof and allegations of the 
 parties," though a majority may award unless otherwise 
 agreed by the parties. 
 
 Russell lays down the same rule as constituting the law in 
 England. " Under such a submission," he says, using the 
 very language of the court in the cited case of Balling v. 
 Matchett, " it will be sufficient for any two of the arbitrators 
 to act jointly, though the third from obstinacy, or the desire of 
 a party, or business, or any other cause, absent himself from 
 the meetings, provided he have full notice and opportunity of 
 being present at them if he please, and be not kept away by 
 any practice of the other arbitrators or of the parties." ^ 
 " Otherwise," as the court added iu the same cause, " it would 
 be in the power of one of the parties to trick the other and 
 entirely to defeat him of the benefit of the reference." " This 
 latter remark," it has been said in a Massachusetts case, 
 " would apply more strongly where one of the referees should 
 withdraw after the hearing before all of them." ^ 
 
 After a submission has once been entered into, it is not in 
 the power of one of the arbitrators to annul or avoid the 
 agreement by withdrawing from the trust.* But this rule, 
 
 1 Per Johnson, J., in Bulson v. Lohnes, 29 N. Y. 291 ; Green u. Miller, 6 Johns. 
 39 ; Crofoot v. AUen, 2 Wend. 495. 
 
 2 Russell on Arb. 8d ed. p. 210 ; Goodman v. Sayers, 2 J. & W. 242 ; Balling 
 V. Matchett, Willes, 215 ; Barnes, 3d ed. 57 ; In re Morphett, 2 Dowl. & Low. 967 ; 
 Young V. Bulman, 13 C. B. 623. 
 
 3 Carpenter v. Wood, 1 Mete. (Mass.) 409. 
 
 ' Ibid. And see Phippen v. Stickney, 3 id. 884. 
 
PROCEEDINGS IN THE ARBITRATION. 157 
 
 though laid down generally by the court in the Massachusetts 
 case cited, must necessarily be confined to cases where the 
 majority may award. For if all must unite in the award it is 
 clearly in the power of one refusing to proceed, to annul the 
 submission.^ 
 
 The Refusal or WithdraTval must be Distinct and Final. — The 
 refusal to act, or the withdrawal of an arbitrator, is usually 
 the result of a disagreement with his fellows and his total de- 
 spair of ever being able to come to an agreement with them. 
 In such cases it is necessary that the refusal or withdrawal be 
 a distinct and unmistakable fact ; also that it be not virtually 
 revoked by subsequent renewed efforts to consiilt and come 
 together. 
 
 At a meeting of three arbiti-ators one dissented from the 
 award upon which the other two were agreed, and declared that 
 if they would not change their views they must make the 
 award for themselves, for he would not join in it. Afterwards, 
 however, a draft for a new award, different from that first pro-, 
 posed, was sent, though by mistake, by the two to the third and 
 was by him returned to them with comments and objections. 
 But after communications had been thus again opened, the two 
 made an award corresponding with that first proposed, and 
 without notification or further consultation with the dissenter. 
 The court set aside this award, saying that after the two had 
 received the objections and comiuents of the third upon the 
 second draft, they were bound to consider them, to consult 
 with him, or at least to hear what he had to say in support of 
 his emendations. Had the two made their award at once upon 
 the withdrawal of the third and' before subsequent discus- 
 sion had been opened with him, the court intimated that it 
 might have been good.^ 
 
 But it need not be Formal. — But though the refusal or with- 
 drawal must be certain and complete, it need not be made in any 
 
 1 Little V. Newton, 2 Man. & Gr. 351 ; Stalworth v. Inns, 2 Dowl. & Low. 428. 
 
 2 In re Pering v. Keymer, 3 Ad. & El. 245. 
 
158 PROCEEDINGS IN THE ARBITRATION. 
 
 set form of words ; ^ nor indeed need it be made by words at 
 all. Any act of indubitable import, whereby an arbitrator 
 abandons the task and separates himself from the rest, so that 
 his intention cannot be questioned, will suffice. In Kingston 
 V. Kincaid,^ the referees often met, but agreement becoming 
 apparently hopeless, one of them said that since they could 
 not agree it was needless to call him again, and thereupon with- 
 drew from the meeting. An award made by the other two, 
 without further notification to him, was upheld as valid. 
 
 Again, where, upon consultation, two referees agreed and a 
 third said he disagreed with them, and they might make their 
 report without him, their report subsequently made without 
 further notice to him was upheld.^ 
 
 So where one of three arbitrators, having been duly notified 
 to attend, wilfully and without cause absented himself, it was 
 held " to be settled " that the others might proceed with the 
 hearing.* 
 
 Rule where a Third Arbitrator is called in. — The rule where a 
 third arbitrator is called in is shown by the following case : 
 Two persons originally chosen as arbitrators, failed to agree, 
 and called in a third arbitrator. Bach of the first two drew 
 up a written statement of his opinion, and delivered it to the 
 third. After examination of these the third arbitrator and the 
 one whose opinion he preferred met together and made an 
 award. It was set aside because there had been no consulta- 
 tion between the three together concerning it. For, it was 
 said, it was by no means certain that the arguments of the 
 third arbitrator might not have produced unanimity between 
 the original two ; also the one whose views were rejected had 
 the right to discuss the award with the other two. Though, it 
 was said, if he had been notified of a meeting and had failed 
 
 1 Carpenter v. Wood, 1 Meto. (Mass.) 409. 
 
 2 1 Wash. C. C. 448. 
 
 3 Kunokle v. Kunckle, 1 Dall. 364. 
 
 ' Crofoot V. Allen, 2 Wend. 494 ; citing Green v. Miller, 6 Johns. 39, which, 
 however, seems not properly an authority to this point. 
 
PROCEEDINGS IN THE ARBITRATION. 159 
 
 to attend, his withdrawal would have been final, and the award 
 then made by the two would have been good.^ 
 
 Where there is no refusal to act, two cannot make the award 
 without first obtaining the opinion of the third. But if after 
 consultation and comparison of views it appears impossible 
 for them to agree, then of course the two may award. ^ 
 
 In Alabama it is said that the previous dissent of one from 
 the opinion of the rQst increases rather than diminishes the 
 necessity for notifying him of the meeting for making up the 
 award.^ But this case extends only to the requisition of 
 notice. 
 
 Withdra-wal or Refusal before the Proceedings are begun. — If 
 the withdrawal or refusal to act occurs at the outset, before 
 any hearing has been had or any attempt at agreement can 
 have been made or can have failed, it might reasonably be said 
 that the tribunal chosen by the parties has been so far changed 
 that they can no longer be bound by its decision. Authorities 
 for this rule can be found only where references have been 
 made by rule of court to referees. Then, though a majority 
 may make a valid report, yet if one of the number refuses 
 altogether to share in the proceedings and withdraws and 
 absents himself from the beginning, the rule is said to be 
 thei'eby discharged.* ' 
 
 The rule is the same, where, after a recommitment, the 
 referees are obliged to start upon the hearing and considera- 
 tion of the matter de novo. In this connection the case of 
 Cumberland v. North Yarmouth ^ deserves to be stated. A 
 report of referees was recommitted. The chairman thereupon 
 refused to notify a meeting or to meet at the time and place 
 
 1 In re Templeman & Reed, 9 Dowl. 962. 
 
 2 White V. Sharp, 12 Mee. & W. 712 ; SaUowes v. Girling, Yelr. 203 ; Cro. Jac. 
 277 ; 1 Brownl. 112; Berry v. Perry, 3 Bulst. 62; Thomas v. Harrop, 1 Sim. & 
 St. 524. 
 
 3 McCrary v. Harrison, 36 Ala. 579. 
 * Boardman v. England, 6 Mass. 70. 
 6 i Greenl. 459. 
 
160 PROCEEDINGS IN THE AEBITEATION. 
 
 appointed by his colleagues. The others therefore met, and 
 returned a second report very different from the former. A 
 majority of the court, Mellen, C. J., dissenting, set aside the 
 report by reason of the withdrawal of the chairman. The 
 referees, it was said, derived their authority to adjudicate from 
 the assent of the parties, and the assent of the plaintiffs (the 
 losers under the report) may have depended upon the confi- 
 dence they reposed in the judgment and integrity of the chair- 
 man of the referees. To oblige them to abide by a decision 
 reached at a meeting at which he was not present, would be to 
 subject them to the determination of a tribunal differently con- 
 stituted from that to which they had submitted. 
 
 Refusal or Withdravral after Recommitment. — If after a re- 
 commitment an arbitrator or referee refuses to attend further 
 hearings, but the majority either hear or consult or both, and 
 then return again an award or report identical with the pre- 
 vious one, it will be upheld.^ The authorities are unanimous, 
 though some of the adjudications seem to have been rather 
 reluctantly and dubiously arrived at. But if the award or 
 report differ in any respect whatsoever from its predecessor, it 
 will be void.^ 
 
 If, after having once undertaken the trust, one of the referees 
 in a pending cause refuses to re-examine the subject after 
 recommitment, it is said that the court may enforce obedience 
 by attachment or mandamus; though it is believed, said the 
 judge, in 1827, that no precedent can be found of a resort to 
 such a process in a case of this kind, and it would be a more 
 eligible course to discharge the rule.^ 
 
 A rule of reference will not be discharged on the ground of 
 the refusal of one of the referees to act, unless that fact is 
 substantiated by affidavits, and due notice of the application 
 has been given to the other party.* 
 
 1 Peterson v. Loring, 1 Greenl. 64 ; May v. Haven, 9 Mass. 325. 
 
 2 Cumberland v. North Yarmouth, 4 Green). 459. 
 
 3 Ibid. 
 
 * Seamans v. Pharo, 1 South, 123. 
 
PROCEEDINGS IN THE ARBITRATION. 161 
 
 Silence of Award concerning Joint Action. — When it does 
 not appear upon the face of the report that all the referees met 
 together and heard the parties, it will nevertheless be presumed 
 that they did so, if nothing appear to the contrary. ' It was 
 so declared even in a case where three referees had been 
 named, but two only subscribed the report, which stated that 
 " the subscribers" had met, &c.^ 
 
 But it has been held in Vermont and Massachusetts, that it 
 must be recited in the award, especially if it be signed by a 
 majority only of the arbitrators, that all of them attended the 
 hearings ; or at least that they were all notified.^ 
 
 The rule is different in New York. A submission to three 
 arbitrators authorized an award by two. The award, signed 
 by two only, did not state whether or not all the arbitrators 
 heard the cause. In suit, it was objected that it did not 
 appear that all heard the cause. Proof that all did hear it 
 was thereupon offered and rejected. Upon appeal, the Supreme 
 Court overruled this decision, saying, " It is apprehended 
 that no case can be adduced showing the necessity of this fact 
 appearing in the award itself. To prove it by parol, does not 
 contravene any adjudged principle in the exposition of awards. 
 It neither impeaches nor supports its merits ; but supplies a 
 fact necessary to be determined, not aiSrmed or denied by the 
 award, and which perhaps it was not the duty of the arbitra- 
 tors to notice. If, in this case, one of the arbitrators had not 
 met and arbitrated with the other two, would it not be compe- 
 tent to prove it, and thereby show what a defendant is always 
 entitled to show in a court of law, that the award is not within 
 the submission ? The court ought to have received the testi- 
 mony offered. Had it shown that all the arbitrators heard the 
 cause, the award was valid." * 
 
 1 Yates V. Russell, 17 Johns. 461 ; Brower v. Kingsley, 1 Johns. Ca. 334 ; May- 
 nard v. Frederick, 7 Gush. 247. 
 
 ^ Yates V. Russell, 17 Johns. 461 ; Schultz v. Halsey, 8 Sandf. 405. 
 8 Blin V. Trimble, 2 Tyler, 804 ; Short v. Pratt, 6 Mass. 496. 
 * Aekley v. Finch, 7 Cow. 290. 
 
 11 
 
162 PROCEEDINGS IN THE ARBITRATION. 
 
 In Short v. Pratt,i the statute under which the proceedings 
 were had required that it should appear on the record that the 
 report of the referees was made pursuant to the statutory 
 provisions. On the strength of this the court held that where 
 a report was made by a majority of the referees only, it must 
 appear upon the record that the hearing had been by all, 
 since such a hearing was called for by the statute. 
 
 The Rule that all the Arbitrators must unite in the Award. — 
 Unless the statute or the submission, under which the arbitra- 
 tors act and derive their authority, provide to a contrary effect, 
 or unless a contrary intention of the parties can be clearly and 
 unmistakably gathered from the submission and attendant 
 facts, the rule is general and imperative that all the arbitrators 
 must unite in the award in order to render it valid.^ A differ- 
 ent rule is allowed to prevail in matters of public concern. 
 Where persons are charged with the performance of public 
 duties, the decision of a majority is usually accepted. So it 
 is with a bench of judges, where the concurrence of a majo-rity 
 constitutes the decision of the court. But a submission to 
 ■ arbitration is a " delegation of power for a mere private pur- 
 pose," and the " concurrence of all interested with the power 
 is necessary to its due execution." ^ The rule is thoroughly 
 established both in England. and in the United States. 
 
 The submission, however, or the statute under which the 
 arbitrators derive their power, may of course stipulate or 
 declare that an award concurred in by a majority shall be 
 valid. 
 
 » 6 Mass. 496. 
 
 2 Maynard v. Frederick, 7 Gush. 247 ; Towne v. Jaquith, 6 Mass. 46 ; Cope 
 V. Gilbert, 4 Denio, 347 ; Nettleton v. Gridley, 21 Conn. 531 ; Reeves v. Goflf", 1 
 Pen. 143 ; Howard v. Pollock, 1 Yeates, 509 j Rhodes v. Baird, 16 Ohio St. 573 ; 
 Mackey v. Neill, 8 Jones, Law, 214 ; Quinjby «. Melvin, 28 N. H. 250 ; Knowl- 
 ton V. Homer, 30 Maine, 552; Grindley v. Barker, 1 Bos. & Pul. 229 ; Yin. Abr. 
 Authority, B. ; Rex v. Whitaker, 9 Bam. & C. 648; Crawshay v. Collins, 3 
 Swanst. 90 ; contra, Black v. Pearson, 1 M'Cord, 137. 
 
 ^ Green v. Miller, 6 Johns. 39 ; Patterson v. Leavitt, 4 Conn. 50 ; Russell on 
 Arb., Sd ed. p. 207. 
 
PEOCEEDINGS IN THE ARBITEATION. 163 
 
 Award by Majority. — The authorization of a majority to 
 make a valid decision, need not always be made in distinct 
 terms. If it can be clearly gathered from a necessary implica^ 
 tion, it may suffice. For example, where the submission is to 
 two, with a provision that in case they cannot agree a third is 
 to be called in, it is an inevitable inference that the decision of 
 two out of the three will be binding, and an award made by 
 two will be upheld as valid.^ An agreement that the award 
 shall " be made up by the referees or by a majority of them," 
 expresses with certainty not alone that a majority only must 
 join in the actual execution of the instrument, but also that 
 a majority only need agree in the decision.^ 
 
 In the following somewhat peculiar case unanimity was dis- 
 pensed with. A. signed a written contract to sell certain land 
 to B., " on such terms as the witnesses to this instrument shall 
 decide to be just and reasonable." There were three witnesses. 
 B. did all in his power to procure an award fixing the amount 
 to be paid by him. Two of the three arbitrators agreed on a 
 price, but the third, though present at the meeting and sharing 
 in the discussion, refused to agree or to sign the award. The 
 court said that the act of any one of the three persons selected 
 as arbitrators, in refusing to concur with his associates in fix- 
 ing the sum to be paid, ought not to be allowed to operate to 
 divest B. of his rights under the contract ; that if the sum to 
 be paid by the plaintiff, before he was entitled to the convey- 
 ance, could not be adjusted in the manner contemplated by the 
 parties, the effect must be that he must pay for the land such 
 a sum as was reasonable and such sum as the arbitrators 
 ought to have awarded.^ The action, however, was not for 
 specific performance, so that the court had no occasion to 
 adopt any course for fixing upon a price, and decreeing a con- 
 veyance to be made. The demand was for damages for breach 
 
 1 Battey v. Button, 13 Johns. 187. 
 
 2 Maynard v. Frederick, 7 Cush. 247. 
 
 ' Phippen v. Stickney, 3 Mete. (Mass.) 384. 
 
164 PEOCEEDINGS IN THE AEBITRATION. 
 
 of the contract by A., and it was held that damages were re- 
 coverable. 
 
 The Rule concerning Referees. — A Contrary rule holds gOod 
 in the case of referees, and the report of a majority of them 
 is valid. For they are at least quasi public officers, persons 
 appointed under a general statute to perform a judicial duty.^ 
 
 Time of expressing Dissent. — The dissent of an arbitrator 
 from the award of his fellows must be expressed at or before 
 the time of publication. If he unites with them in making 
 the award, or is present at the publication and pronounces the 
 award to be the decision of the arbitrators, it has been held 
 that evidence going to show that, as matter of fact, he differed 
 in opinion from the others, is entitled to no weight.^ 
 
 Unanimity in each Incidental Question is Unnecessary. — All the 
 arbitrators need not, however, agree upon each incidental ques- 
 tion which arises in the course of the proceedings, as to the ad- 
 mission of evidence or other points of practice. If they all hear 
 the cause and finally concur in the award, it is sufficient.^ 
 
 An obvious and inevitable necessity has also led to tlie rule 
 that if each arbitrator exercises his own independent judg- 
 ment on the matter submitted, it is no objection to the award 
 that one gives way to the other ; since in case of any differ- 
 ence of opinion arising an agreement and determination could 
 be reached in no other way.* But this must not be con- 
 founded with the rule forbidding one arbitrator to delegate his 
 authority to his coadjutor, and accept the opinion of another 
 as his own ; a matter which will be disciissed hereafter. 
 
 The unanimity must, however, be bona fide. If one of the 
 arbitrators deliberately violates his own convictions, and signs 
 
 1 Billington v. Sprague, 22 Maine, 34 ; Petition of Farwell, 2 N. H. 123 ; East- 
 man V. Burleigh, lb. 484 ; Lockhart v. Kidd, 2 Rep. Const. Ct. 217. But to a 
 contrary eflect is an old case. Tetter v. Rapesuyder, 1 Dall. 298. 
 
 2 Jackson v. Gager, 5 Cow. 383 ; Cox v. Jagger, 2 id. 638 ; Campbell v. West- 
 ern, 3 Paige, 124. 
 
 3 Campbell v. Western, 1 Paige, 124 ; Bean v. Wendell, 22 N. H. 582 ; Camp- 
 bell V. Western, 3 Paige, 124. 
 
 < Eardley v. Steer, 4 Dowl. 423. 
 
PROCEEDINGS IN THE ARBITRATION. 165 
 
 an award which he believes to be unjust, his conduct will 
 vitiate the award. Where, in a reference to surveyors to settle 
 the terms of the lease of a mine, they, relying upon the judg- 
 ment of an expert, valued it at 4:001. per acre, but one of the 
 surveyors said that he did not think it worth 2001. per acre, but 
 concurred in the award because he thought it no use differing, 
 Lord Chancellor Cranworth held the award bad because this 
 surveyor had not exercised a judicial decision upon the case, 
 not having adopted as his own the opinion given by the 
 expert, but merely subscribing what he in fact thought wrong 
 because another person thought it right. ^ 
 
 Process of coming to Agreement. — A kindred doctrine is, 
 that the process by which arbitrators come to an agreement is 
 of no consequence, and cannot be inquired into- by the court, 
 neither be made a. basis to vacate their award. Thus where 
 several questions are contained within the submission, though 
 the arbitrators differ as to some of them, yet if, by different 
 courses, they all come to an agreement upon the sum total, 
 the award shall stand. And where they have made up their 
 award upon a general consideration of all the items presented, 
 and in view of the substantial equity of the whole matter, it 
 makes no difference that in reaching this conclusion they 
 threw out a single item which both parties had agreed to 
 admit.2 
 
 Some Judicial Discretion must be exercised. — But it seems 
 to be essential that the arbitrators should have exercised some 
 degree of judgment and discretion, and if it should appear 
 that they have not done so, their award may be rejected. 
 Thus where the value of a water-privilege was to be deter- 
 mined, the referees were of different opinions. Thereupon each 
 party was summoned before them and gave his own opinion of 
 the value, and the arbitrators shortly afterward awarded a 
 
 1 Eads V. "WilUams, 24 L. J. Cliy. 531. 
 
 2 Beau V. Wendell, 22 N.H. 582 ; Campbell v. Western, 1 Paige, 124; Brown 
 V. Bellows, 4 Pick. 179. 
 
166 PROCEEDINGS IN THE ARBITRATION. 
 
 sum which was precisely the mean between these two oppos- 
 ing valuations. The court said that if the award of this sum 
 was based solely upon the fact . that it was the exact mean 
 between the sums named by the disputants, it would be bad ; 
 but if (as was assumed) the arbitrators had really exercised 
 their own judgment and thought their determination was 
 right, then that the award should stand ; that the fact that the 
 sum was a middle sum did not by any means prove a want of 
 independent judgment ; * that the inquiries from the parties 
 as to their opinions was perfectly proper if made to assist the 
 the arbitrators' judgment, and not for the naked purpose of 
 dividing the difiference.^ 
 
 Delegation of Authority by an Arbitrator, and Agreements to 
 accept the Decision of Another. — To the rule that each arbitra- 
 tor must exercise his own independent judgment upon the 
 matters submitted, is appended as a necesfsary corollary the 
 rule that no arbitrator can delegate his authority to another or 
 can elect another to act with him, except, of course, where 
 he is specially authorized by the submission so to do.^ He 
 has an authority from another to do an act for liim, and he is 
 within the grand doctrine of the law, delegatus non potest 
 delegare. 
 
 This principle is so strictly enforced that it extends even to 
 a delegation made by one to his co-arbitrator, which is held to 
 be no less fatal in its effect upon the validity of the award 
 than a delegation to an entirely outside person. Thus where 
 a submission was to two merchants and one lawyer, and the 
 three agreed upon an award subject only to the decision of the 
 lawyer upon a point of law, and he examined into the point of 
 law, made up his opinion upon it, and drew the award in the 
 manner which had been arranged upon, and it was subse- 
 quently executed in this shape by a majority, the court never- 
 
 1 Brown v. Bellows, 4 Pick. 179. 
 
 2 Russell on Arb., 3d ed. p. 198 et seq. ; Lingood v. Bade, 2 Atk. 501 ; Proctor 
 V. WilUamson, 29 L. J. C. P. 157 ; 8 C. B. n. b. 386. 
 
PROCEEDINGS IN THE ARBITRATION. 167 
 
 theless set it aside on the ground that it was impossible to say 
 but that, had the lawyer stated his opinion before the award 
 was made, his co-arbitrators might not • have advanced some 
 arguments which would have produced a different result from 
 that at which he arrived in drawing the award alone.^ 
 
 But if two appraisers, in selecting a third to act with them, 
 agree beforehand to concur in his decision, whatever it may 
 be, the resulting award would be void. But if, after having 
 made such an improper agreement, they in fact disregard it, 
 and all three really act together in determining a value, their 
 award will be good.^ 
 
 So also it has been held in England that if the arbitrators 
 agree together beforehand to be bound by the opinion of a 
 third person, and do accordingly adopt his opinion as their 
 award, without exercising any judgment of their own in the 
 premises, the award will be set aside.^ 
 
 But Russell says, " The cases are numerous to show that an 
 arbitrator may submit a material question affecting the merits 
 of the case to another, and after hearing his opinion adopt it 
 as his own, upon the credit which he gives to the judgment and 
 skill of the person to whom he refers." * 
 
 Thus, where the arbitrators had acted with the umpire, the 
 court sustained the award, because the umpire was at liberty 
 to take what advice or opinion or assessors he would.^ And 
 so it has been held in the House of Lords that an arbitrator 
 may consult men of science, when it is necessary.® 
 
 In Emery v. Wase,^ it was objected that the arbitrator had 
 not used his own judgment in valuing certain lumber. Lord 
 Alvanley, M. R., said, " That alone is not sufficient to prove 
 
 1 Little V. Newton, 9 Dowl. 437. 
 
 2 Haff V. Blossom, 5 Bosw. 559. 
 
 8-Whitmore v. Smith, 5 Hurl. & Nor. 824; 29 L. J. Exch. 402; in error, 31 
 id. 107 ; 7 Hurl. & Nor. 509. 
 
 ' Russell on Arb., 3d ed. p. 199. 
 
 5 Soulsby V. Hodgson, 3 Burrows, 1474. 
 
 6 Caledonian Railway Company v. Lockhart, 3 Macq. 808 
 
 7 5 Ves. Jr. 846. 
 
168 PEOCEEDINGS IN THE ARBITRATION. 
 
 the award bad, for a man may make use of the judgment 
 of another upon whom he can depend, and the valuation of that 
 person is his if he choose to adopt it." On appeal Lord Chan- 
 cellor Eldon said he did not mean to determine that referring 
 this valuation to be made by another was sufficient cause for 
 refusing to order a specific performance of the award.^ 
 
 Two land surveyors to whom was referred the valuation of 
 an estate, not being accustomed to value houses, called in two 
 builders to value the mansion-house. Vice-Chancellor Leach 
 held this was unobjectionable, since they had not agreed 
 beforehand to be bound by the decision of the buildfers, but 
 had received it merely as evidence, and had adopted it because 
 they were satisfied of its accuracy.^ 
 
 Lord Lyndhurst has since held that an arbitrator has power, 
 without any especial provision, to call in a valuer to assist 
 him.^ Though, if there be a provision for his doing so, that 
 will supersede his general power, and he can act only under 
 and by virtue of it.* It was also held in the same case that, 
 where the arbitrators were specially empowered to call in a 
 valuer of partnership stock and property, it was no objec- 
 tion to the award that they availed themselves of the assist- 
 ance of the same person in deciding on the partnership 
 accounts. For by adopting his opinions they did not make him 
 their umpire, but only made his opinions their own, which 
 they had a right to do.^ But as in Hopcraft v. Hickman 
 (supra) the valuer's opinion is treated as evidence, so it is to 
 be noted that in this case Lord Brougham stated that the 
 proper and more regular course, and one which a professional 
 arbitrator would have followed, would have been to have ex- 
 amined as a witness the person of whose experience, by the 
 
 1 8 Ves. Jr. 504 a. 
 
 2 Hopcraft v. Hickman, 2 Sim. & St. 130. 
 
 3 So held also in Caledonian Railway Company v. Lockhart, 3 Macq. 
 808. 
 
 < Anderson v. Wallace, 3 CI. & Fin. 26. 
 5 Ibid. 
 
PROCEEDINGS IN THE AEBITRATION. ~ 169 
 
 terms of the submission, the arbitrators might avail them- 
 selves. 
 
 The theory is sufficiently plainly developed in these English 
 cases that the arbitrator may, for his own information and 
 guidance, ask information from persons whose capacity to form 
 an accurate opinion concerning the subject-matter he relies 
 upon ; that the statements thus obtained by him are to be 
 treated as evidence or as aids by which he may make up his 
 own opinion. He may give them such weight and credence as 
 he sees fit, even to the point of founding his judgment upon 
 them ; but it is essential that he should form his judgment, 
 and not adopt and follow them absolutely, blindly, or in con- 
 travention of an actual opinion of his own. The process 
 resembles the taking of expert testimony ; though it differs 
 in the one essential particular, that the arbitrator may make 
 these investigations privately without notice to or presence of 
 the parties. 1 
 
 Where surveyors were to settle the terms of a lease of a 
 mine, and an expert was sent down into the mine to examine 
 and value it, it was held that an adoption by the surveyors 
 of his opinion as their own, on this point of value, was not 
 an objection to the validity of their award.^ 
 
 There is an American case in which it has been held that 
 referees may make inquiry abroad to ascertain, for their own 
 satisfaction, the price of work, or the truth concerning any 
 other matter which may be said to be of a comparatively pub- 
 lic nature.^ 
 
 Delegation of purely Ministerial Acts or Functions. — A dis- 
 tinction is very properly taken between acts of a judicial and 
 acts of a merely ministerial character. Though the arbitrator 
 cannot delegate his power concerning the former, there is no 
 doubt that he may concerning the latter.* The- difficulty, as 
 
 1 Eussell on Arb., 3d ed. p. 202. 
 
 2 Eads V. Williams, 24 L. J. Chy. 531 
 8 Chaplin v. Kirwan, 1 Dall. 187. 
 
 4 Eussell on Arb., 3d ed. p. 204 ; Thorp v. Cole, 2 Cr. Mee. & Eos. 367 ; 4 Dowl. 
 457. 
 
170 PROCEEDINGS IN THE AEBITRATION. 
 
 Mr. Russell observes, is not as to the accuracy of this doc- 
 trine, which is not questioned, but as to what may be treated as 
 ministerial acts. The measurement of the superficial area of 
 a field or lake have been held to be such ; ^ and there would 
 seem to be no doubt that the making up of accounts by a 
 skilled accountant would properly fall within the same cate- 
 gory .2 
 
 It seems to be established in England not only that an arbi- 
 trator may consult or employ counsel to assist him in framing 
 his award ,^ but also that any one of several joint arbitrators 
 may, by himself, obtain the opinion of counsel as to questions 
 arising in regard to framing the award,* or even as to ques- 
 tions concerning the dispute itself.^ Though the cases cited 
 to the last two points made out, upon a statement of the cir- 
 cumstances, a strong equitable showing to the eifect that no 
 prejudice to either party, no partiality or secrecy, could be 
 suspected. 
 
 In New Jersey it has been held that if, after they have fully 
 determined upon what their decision and award shall be, the 
 arbitrators feel doubtful of their own capacity to draft the 
 award in legal and valid shape, they may call to their assist- 
 ance, for this purpose only, even the counsel of the party in 
 whose favor the instrument is to operate.^ As a means of 
 obtaining an award technically unimpeachable, this rule might 
 reasonably be expected to prove efficient. But it is a danger- 
 ous doctrine to establish, since it must often lead into tempta- 
 tion men of questionable power of moral resistance. 
 
 Waiver of Right to object for Incompetency or Irregularity. — 
 Many instances have already been mentioned in which it has 
 been held that a party has, either in fact or presumably, 
 
 1 Thorp V. Cole, supra; Hunter v. Bennison, Hard. 43. 
 
 2 Harvey v. Shelton, 7 Beav. 455 ; Moore v. Barnett, 17 Ind. 349. 
 
 8 Dobson V. Groves, 6 Q. B. 637 ; Fetherstone v. Cooper, 9 Ves. Jr. 67. 
 
 4 In re Hare, 6 Bing. N. C. 158. 
 
 5 Goodman v. Sayers, 2 Jac. & Walk. 249. 
 
 6 Moore v. Ewing, Coxe, 144. 
 
PROCEEDINGS IN THE AEBITRATION. 171 
 
 waived his right to object to an award either on the ground of 
 the incompetency of the person selected to act as arbitrator, 
 or on the ground of excess of authority or of irregularities in 
 the proceedings before the arbitrator. A few other principles, 
 however, remain to be stated concerning this topic. 
 
 The waiver usually grows out of acts or words of the party 
 having the right to object.^ It is obviously a matter of pri- 
 mary necessity, that at the time of doing these acts or speaking 
 these words he should have a knowledge of the fact upon 
 which his right to object is founded. Otherwise waiver, which 
 is matter of intention, cannot take place. 
 
 It would appear that his ignorance of the fact disqualifying 
 the person selected to act as arbitrator must be affirmatively 
 proved by the party seeking to avoid the award on this ground. 
 Otherwise his knowledge will be presumed, and as consequent 
 thereupon, his waiver also will be presumed. In the cited 
 case, the objection was on the ground of relationship between 
 the arbitrator and the opposite party. The court said that 
 " in the absence of all proof that he [the objector] had no 
 knowledge of this connection," in a"ddition to the fact that all 
 objections to the proceeding had been based on other grounds 
 — (though this would seem to suggest rather than to contra- 
 dict the fact of ignorance) — the defence could not be allowed 
 to prevail.^ 
 
 Waiver by Appearing and Proceeding. — The general rule is 
 that by appearing and proceeding before the arbitrators, after 
 having obtained knowledge of the incompetency or irregular- 
 ity, the party waives and loses his right to avail himself of 
 this objection to the validity of the award. Silence operates 
 as acquiescence or condonation. To proceed is to involve all 
 concerned in loss of time and in expense, and also to take the 
 chances of a favorable presentation of the case and a decision 
 
 1 In re Salkeld, 12 Ad. & El. 767 ; In re Jenkins, 1 Dowl. N. s. 276 ; Drew v. 
 Leburn, 2 Maeq. 1. 
 
 2 Brown v. Leavitt, 26 Maine, 251. 
 
172 PROCEEDINGS IN THE ARBITRATION. 
 
 in his favor. The party will not be allowed, after putting him- 
 self and others in such a position, to refuse to abide by a 
 result which proves unsatisfactory to him.^ 
 
 The objection that witnesses are heard unsworn, if not 
 taken at the time, is lost. Silence is acquiescence.^ 
 
 Appearing and proceeding before an arbitrator has been 
 held to constitute a waiver of any objection to the mode of 
 his appointment.^ 
 
 If an irregularity in the meeting of the referees, sufficient 
 in itself to render the award void, has occurred, it will be 
 cured by the subsequent appearance and proceeding of the 
 parties.* 
 
 Appearing and proceeding before a substitute for the arbi- 
 trator named is a waiver of any objection to tlie substitution.^ 
 
 Any defect in serving upon a party notice of a meeting is 
 waived or cured by his appearing and proceeding at the meet- 
 ing either in person or by counsel.^ 
 
 An arbitration bond purported to bind three persons named 
 as obligors, jointly and severally. It was signed by only two 
 of them. These two proceeded to a hearing. An award was 
 made against them, and the obligee sued one of them upon it. 
 Apart from the result of the provision for joint liability, it 
 was declared by the court that the two signataries by proceed- 
 
 1 MitcheU v. Wilhelm, 6 "Watts, 259 ; Brooke v. Bannon, 3 Watts & S. 382 ; 
 Cutter V. Whittemore, 10 Mass. 442; Fox v. Hazelton, 10 Pick. 275; Brown v. 
 Leavitt, 26 Maine, 251 ; Maynard u. Frederick, 7 Cush. 247 ; Perry u. Moore, 2 
 E. D. Smith, 32; Norton v. Savage, 10 Maine, 455 ; Strong u. Strong, 9 Cusli. 
 560 ; Valle u. Nortli Missouri Railroad Company, 37 Mis. 445 ; Jolinston v. 
 Cheape, 5 Dow (Pari.) 247 ; Morgan v. Bimie, 9 Bing. 672 ; Owdy v. Gibbons, 
 Comb. 100 ; Hewlett u. Laycock, 2 Car. & Payne, 574 ; Kingwell u. Elliott, 7 
 Dowl. 423 ; Bignall c.. Gale, 2 Man. & Gr. 880. But see Dobson u. Groves, 
 6 Q. B. 637. 
 
 2 Maynard v. Frederick, 7 Cusli. 247. 
 8 MitcheU v. Wilhelm, 6 Watts, 259. 
 
 * Dorman v. The Turnpike Company, 3 Watts, 126 ; Tracy v. Herrick, 25 N. 
 H. 381. 
 
 5 Browning v. M'Manus, 1 Whart. 177 ; Bemus v. Clarke, 29 Penn. St. 251. 
 But see Russell v. Gray, 6 Serg. & R. 145. 
 
 " Madison Ins. Co. v. Griffin, 3 Ind.''277 ; Lattier i-. Rachal, 12 La. An. 695. 
 
PROCEEDINGS IN THE ARBITRATION. 173 
 
 ing with the reference, though they knew that the third party 
 had not signed the bond, had deprived themselves of the right 
 to avail themselves of this fact as an objection to the validity 
 of the award. By doing so they would render themselves 
 guilty of having grossly misled the party of the other part, 
 insomuch as they had allowed him to go on and establish his 
 claims under the impression that the award, if in his favor, 
 would not be disputed, and all the while they had retained a 
 secret objection in their own minds of which they intended to 
 avail themselves in the event of an unfavorable result.^ 
 
 ■Waiver of Stipulation as to Time. — If the submission name 
 a certain time within which arbitrators must be chosen, or the 
 award must be made, this stipulation will be taken to be 
 waived if the parties, after the lapse of the time named, choose 
 arbitrators and proceed with the arbitration. Their action of 
 this nature will amount to or have the effect of a substitution 
 by agreement of the time when the trust is in fact executed 
 by the arbitrators in place of the time originally stipulated.^ 
 
 ■Waiver is Matter of Apparent Intention. — But the question 
 of waiver is one of apparent intention. Wherefore the fact 
 that a party, in order to prevent ex parte proceedings, con- 
 tinues to attend and conduct his case after the occurrence of 
 an irregularity within his knowledge, does not necessarily 
 amount to a waiver. If he has protested against the error, 
 and his intention not to waive it is made obvious by his con- 
 duct, no waiver will take place.^ In the cited case of Davis v. 
 Price, a party, whose objection to the examination of certain 
 witnesses had been overruled, protested, but attended and 
 cross-examined the witnesses. Held, he had not waived the 
 right to avail himself of the wrongful admission of this testi- 
 mony. But it is possible for a party to waive even his pro- 
 test, by proceeding with the arbitration, if an intention or 
 
 1 Cutter V. 'Whittemore, 10 Mass. 442. 
 
 2 Montague v. Smith, 13 Mass. 396. 
 
 s Haigh V. Haigh, 31 L. J, Chy. 429 ; Davies v. Price, 10 'W. R. 865. 
 
174 PROCEEDINGS IN THE ARBITRATION. 
 
 willingness so to do is clearly to be inferred from the circum- 
 stances.^ 
 
 ■Waiver of Stipulations concerning the Form of the Award. — 
 So an agreement embodied in the submission as to the form in 
 which an award shall be executed, published, or delivered, 
 has been held to be waived by a subsequent " understanding 
 between the parties," proved by the testimony of the arbitra- 
 tors.2 And the delivery of a sworn copy of the award to each 
 party, if the same be received without objection, will be 
 regarded as a waiver of a right to receive the original.^ 
 Where parties had submitted by bonds, in which they required 
 a written award, but subsequently and before award made 
 they notified the arbitrators that they had executed other 
 writings under seal in place of the written award, and that 
 they did not wish the award in writing, but only wished to be 
 informed verbally of the amount determined upon by the arbi- 
 trators in order that they might insert it in these writings, it 
 was held that by these acts and directions they waived the 
 requirement in the bond for a written award, and the verbal 
 award was good.* 
 
 A stipulation for a written award may be waived so far as 
 regards a part only of the several matters submitted.* And a 
 stipulation in a submission that the award shall be returned 
 into court and judgment entered thereon, is waived by the 
 subsequent agreement of the parties made when the award is 
 ready, that it may be opened in pais, by its being so opened 
 and by each of them paying one-half the costs, according to 
 its order in this respect.^ 
 
 Waiver by Ratification and Performance. — After ratification 
 of an award and execution of its requirements it is too late 
 
 1 Christman v. Moran, 9 Barr, 487. 
 
 2 Tracy v. Herrick, 25 N. H. 381 
 
 3 Ibid. ; Sellick v. Adams, 16 Johns. 197. 
 
 4 French v. New, 20 Barb. 481. 
 
 5 Tudor V. Scovell, 20 N. H. 174. 
 
 8 Norton v. Savage, 10 Maine, (1 Pairf.) 455. 
 
PROCEEDINGS IN THE ARBITRATION. 175 
 
 for the parties to set up any defect in tiie proceedings or in the 
 awardji or any want of original authority in the persons acting 
 as arbitrators to act as such.^ 
 
 Where the statute required three referees unless a less num- 
 ber was agreed to, and in fact the hearing was had before one, 
 if was held too late to object on this ground after award had 
 been made.^ 
 
 Waiver of Departure from the Scope of the Submission. — 
 Where arbitrators were appointed to appraise certain personal 
 property appurtenant to certain real estate, and the parties 
 met with them and showed them the articles, and no dispute 
 was made concerning any of the articles, it was held not to 
 invalidate the award though some of the appraised chattels 
 were not included in the submission, and though other 
 chattels not appraised were included. The parties were con- 
 sidered to have waived the appraisement of the omitted articles, 
 and to have agreed that the articles included in the appraise- 
 ment, but not in the submission, were appurtenant to the 
 estate, and were to be valued by the arbitrators.* 
 
 1 Reynolds v. Roebuck, 37 Ala. 408 ; Hoogs v. Morse, 31 Cal. 128 ; and see 
 White V. Fox, 29 Conn. 570 ; Brown v. Bellows, 4 Pick. 179. 
 
 2 Henneigh v. Kramer, 50 Penn. St. 530. 
 
 3 McShane v. Gray, 13 Iowa, 504. 
 * Brown v. Bellows, 4 Pick. 179. 
 
CHAPTER VI. 
 
 THE AKBITEATOE'S AUTHORITY. 
 
 Source of the arbitrator's authority. 
 
 The arbitrator's action in excess of his authority. 
 
 FaTOrable presumptions. 
 
 General rules concerning an arbitrator's authority. 
 
 The arbitrator cannot go beyond the precise question submitted. 
 
 The arbitrator cannot modify the question submitted. 
 
 The arbitrator cannot do general equity. 
 
 Orders concerning price and payment. 
 
 Orders concerning allowance of interest. 
 
 The arbitrator's power in disputes between partners. 
 
 Power of arbitrator to order execution of a release. 
 
 Power to order conveyance of real estate. 
 
 Specifications concerning legal form, &c., of the conveyance 
 
 When conveyance need not be ordered. 
 
 Power of arbitrator in cases of land-damages. 
 
 Power to go behind a receipt in full. 
 
 Orders concerning incidental matters. 
 
 Power and duty to order what shall be done by a party in the future. 
 
 Validity of orders concerning future conduct of a party. 
 
 Orders concerning future acts will be sustained if possible. 
 
 Limitation of authority as to time past. 
 
 Orders concerning the persons and property of strangers. 
 
 Order that an act be done by a stranger. 
 
 Other non-enforceable orders. 
 
 Effect of performance of such non-enforceable orders. 
 
 Reference of cross-actions. 
 
 Arbitrators cannot name substitute. 
 
 The arbitrator's power in a lis j'endens. 
 
 The arbitrator's power to allow amendments where the submission is in or of a 
 
 lis pendens. 
 Limitations upon the power to allow amendments by the plaintifi". 
 Limitations upon the power to allow amendments by the defendant. 
 Power to consider a claim in offset. 
 The allowance of amendments is discretionary. 
 Who may object if the arbitrator exceeds his authority. 
 
 How the objection of excess of authority may he availed of; rules of pleading. 
 Evidence as to excess of authority. 
 The arbitrator is the final judge of both law and fact. 
 Whether or not the arbitrator ought to conform to strictly legal principles. 
 Power of arbitrator to save questions of law for the court. 
 An arbitrator may consider defences not strictly legal. 
 Rules of court practice. 
 
THE ARBITRATOR'S AUTHORITY. 177 
 
 Source of the Arbitrator's Authority. — If a submission be 
 entered into in pais and not in a lis pendens, or under a stat- 
 ute, it constitutes the sole source of the arbitrator's power. 
 Prom it, and only from it, is to be gathered the extent of his 
 authority. In furtherance of this purpose, every part of the 
 submission should be referred to, as, the preamble, the recital 
 and the agreements or covenants, as well as the express dele- 
 gations of powers ; also all documents referred to in the sub- 
 mission in such a manner as to make it obvious that they are 
 intended to be made a part of it, or that it is intended to be 
 construed in connection with them.^ 
 
 If the submission be statutory, the statute must of course 
 be taken into consideration in determining the extent and 
 nature both of the powers and of the duties of the arbi- 
 trators. 
 
 If the submission be made of or in a lis pendens, whether in 
 pais or by rule of court, all the papers in the case form a part 
 of the submission for the purpose of determining what it is 
 that is submitted and what is the real question to be passed 
 upon ; also the rwle of court, if there be one, may contain 
 important intimations both upon this point and also concern- 
 ing the powers and duties of the referees or arbitrators. 
 
 A dispute having arisen between two merchants as to a bar- 
 gain between them, a correspondence ensued which resulted in 
 an agreement to submit. This agreement was finally embodied 
 in two letters, exchanged between them. The court, however, 
 held that the entire correspondence, beginning with the letters 
 in which the contract of bargain and sale was made, and 
 including all the letters in which the project and terms of the 
 submission were discussed, was admissible in evidence, so far 
 as it was explanatory of the terms of the reference, and of 
 what was intended to be submitted by the parties. And if 
 any letters were withheld by the one party, it was said at the 
 first trial, and not afterward denied, that the other party might 
 
 1 Boston Water Power Co. v. Gray, 6 Mete. (Mass.) 131, pp. 170 «f seq. 
 
 12 
 
178 THE AKBITEATOR'S AUTHORITY. 
 
 give evidence of their contents so far as they related to the 
 reference.^ 
 
 The Arbitrator's Action in Excess of his Authority. — It is 
 peculiarly necessary to understand accurately in every arbitra- 
 tion the exact scope of the arbitrator's authority. For if he 
 should chance in his award to exceed the powers which he 
 may properly exercise, the effect will be fatal to the validity of 
 the award,2 save only where by good fortune the part consti- 
 tuting the excess is independent of and separable from the 
 rest.^ 
 
 A principle, constituting what may perhaps be regarded as 
 an exception to the foregoing rule, has been laid down in New 
 Hampshire. The sureties of the losing party in an arbitration 
 objected that the arbitrators had exceeded their authority in 
 allowing a certain claim against him. The court refused to 
 entertain the objection, because it appeared that the claim had 
 been subsequently paid and discharged by the debtor, and was, 
 therefore, no longer a subsisting or possible claim against the 
 sureties. And it was said generally, that though the court did 
 " not feel called upon to question the correatness of the general 
 principle laid down in Adams v. Adams,'* viz., that the court 
 will look only to the award itself for the means of rejecting a 
 claim not submitted and therefore improperly allowed, yet 
 we have no doubt that where it appears by the same evidence 
 which proves the allowance of a demand not submitted, that 
 the same demand has been paid or released or in any way dis- 
 charged, that the award should not be set aside for that cause, 
 in case the allowance of such claim has merely the effect to 
 
 1 Walsh V. Gilmor, 3 Har. & J. 383. 
 
 2 Eiehardson v. Huggins, 23 N. H. 106 ; Cook v. Carpenter, 34 Vt. 121 ; But- 
 ler V. Mayor, &e., of New York, 7 Hill, 829 ; Blanton v. Gale, 6 B. Monr. 260 ; 
 Smith V. Kincaid, 7. Humph. 28 ; Howard v. Edgell, 17 Vt. 9 ; Adams v. Adams, 
 8 N. H. 82; Eussell on Arh., 3d ed. p. 661. In this connection that portion of 
 Chapter II. upon " The Submission," which discourses concerning the construc- 
 tion of the submission, should be also examined. 
 
 " See post, " Divisibility of the award ; award good in part, bad in part." 
 « 8 N. H. 82. 
 
THE ARBITRATOR'S AtTTHORITY. 179 
 
 increase the amount of the award against the party objecting, 
 and the other party is satisfied. In sucli case the award should 
 be held valid and effectual for the residue, just as a judgment 
 exceeding the ad damnum of a writ will not be set aside for that 
 cause in case the excess is remitted." So if the party in 
 whose favor the claim has been wrongfully allowed releases this 
 excess, the award is good for the balance.^ 
 
 Favorable Presumptions. — It seems almost needless to remark 
 that as the presumptions of law in suits concerning awards 
 are always in favor of validity, so it is always presumed that 
 the arbitrator has not exceeded his authority, unless the con- 
 trary appears on the face of the record, or is affirmatively 
 shown. The following somewhat singular case shows how far 
 this presumption will be carried ; almost, indeed, to the point 
 of presuming the entire contents of the submission itself. The 
 submission couM not be produced, and the only evidence of 
 its extent consisted of a statement, embodied in the award, 
 that it embraced " all matters in difference." Beyond this, 
 the only evidence as to what these " matters in difference " in 
 fact were, was the statement that the arbitrators " carefully 
 considered all accounts and statements presented." An objec- 
 tion that the award did not follow the submission was over- 
 ruled. The court said, " The intendments are in favor of 
 the validity of an award as well as of a judgment. We must 
 presume, in absence of evidence to the contrary, from the 
 award or otherwise, that all matters passed upon were matters 
 of difference, and that all matters of difference were passed 
 upon."® 
 
 Where arbitrators are empowered to determine concerning 
 partnership claims, the fact that certain claims laid before 
 them and decided by them, are such that they might very nat- 
 urally not be really partnership claims, does not suffice to 
 
 1 Richardson v. Huggins, 23 N. H. 106, 
 
 2 Lamphire a. Cowan, 39 Vt. 420 ; Myers v. York & Cumberland Railroad 
 Company, 2 Curtis C. C. 28 ; Hayes u. ForskoU, 31 Maine, 112. 
 
180 THE ARBITRATOR'S AUTHORITY. 
 
 overthrow the favorable presumption. " The party who assails 
 an award, must clearly go further than merely to show that 
 the referees may have erred." ^ 
 
 General Rules concerning an Arbitrator's Authority. — The old 
 rule laid down in Rolle's Abridgment is, that an arbitrator 
 cannot bind a man's liberty, or his right to real property, where 
 the submission is only conceming things personal. Wherefore 
 an award that one party shall serve another for a certain term 
 of years, or an award ordering a release of a right to lands 
 where the claim is for damages for trespass, will be void. For 
 since only personal estate could be taken on execution at com- 
 mon law, where the action was for a personal injury, so it was 
 Said nobody could be supposed to submit more than his per- 
 sonal estate in such a case.^ The arbitrator may, of course, 
 award money. It has also been said in some cases that he 
 may award other chattels, as a horse or a quart of wine.^ But 
 this again has been denied, and it has been said that he could 
 award a chattel, other than money, only if there was a contro- 
 versy between the parties concerning such chattel.* 
 
 But where an arbitrator was empowered " iinally to settle the 
 differences," and an action had been brought for non-delivery 
 of goods shipped on board the defendant's vessel, it was held 
 that, after awarding compensation to the plaintiff for non- 
 delivery, the arbitrator might direct that the defendants should 
 keep the goods found to be in their possession.* 
 
 It seems that an arbitrator may order that one party shall 
 beg pardon of the other. Though unless he name time and 
 place, the award may be void for uncertainty.^ 
 
 1 Richardson v. Huggins, 23 N. H. 106. 
 
 2 Rolle's Abr. Arb., B. 12, p. 243. 
 
 ' Bac. Abr. Arb., E. ; Purslow v. Baily, 2 Ld. Eaym. 1039 ; 1 Salk. 76 ; 6 
 Mod. 221. 
 
 « Rolle's Abr. Arb. B. 10, 11, p. 243; Hemsworth'w. Brian, 1. C. B. 131. 
 
 6 In re Gillon v. Mersey Navigation Company, 3 Barn. & Ad. 493 ; and see 
 Hemsworth v. Brian, 1 C. B. 131 ; Baillie v. Edinbirrgh Oil Gas Company, 3 
 01. & Fin. 639. 
 
 6 Glover v. Barrie, 1 Salk. 71 ; and see Spigurnell v. Jene, 1 Sid. 12. 
 
THE ARBITRATOR'S AUTHORITY. 181 
 
 An award ordering two persons to intermarry is in excess of 
 an arbitrator's authority and void ; apparently on the ground 
 that it is against public policy to force marriages on any ground 
 other than mutual inclination of the persons.^ 
 
 An award ordering a party to do a criminal act,^ or an 
 illegal act,^ or an act which would make him a trespasser,* 
 is invalid.^ 
 
 Tiie Arbitrator cannot go beyond the Precise Question submitted. 
 — The general rule is that the power of the arbitrator is lim- 
 ited to the determination of precisely the questions which are 
 submitted.^ It will not do for him to take into consideration 
 and to determine any claims or demands, though existing 
 between the same persons who are parties to the submission, 
 save only those which they have agreed that he shall decide. 
 It often seems to be so convenient, useful, and reasonable to 
 include and dispose of in the award other outstanding and 
 perhaps cognate controversies, that the temptation to do so will 
 be very strong. But the error, unless the excess be separable, 
 will be fatal to the validity of the whole award ; and in every 
 instance the excessive portion will be void. For example, if 
 claims made by A. against B. are submitted, it would be an 
 excess of authority to consider claims of B. against A. An 
 agreement of submission recited that A. had begun an action 
 of trespass against B. and C, also another suit against B., 
 which two actions the parties submitted. The referees awarded 
 that B. and C. should recover from A. a certain siim of money, 
 and that B. should recover from him a cow. The court said 
 that it was manifest that nothing was intended to be submitted 
 except two actions brought by A. No demands of B. and 0. 
 
 1 Bac. Abr. Arb., E. 3 ; RoUe's Abr. Arb., I. 10, p. 252. 
 
 2 Co. Litt. 206 ; Wood v. Griffith, 1 Swanst. 55 ; Bac. Abr. Arb., E. 4. 
 
 3 Bac. Abr. Arb., E. 4. 
 
 " Bac. Abr. Arb., E. 4 ; Turner v. Swaiuson, 1 Mee. & W. 572. 
 6 Russell on Arb., 3d ed. 391. 
 
 6 Cook V. Carpenter, 34 Vt. 121 ; Butler v. Mayor, &e., of New York, 7 Hill, 
 329 ; Robinson v. Moore, 17 N. H. 479 ; Hayes v. EorskoU, 31 Maine, 112. 
 
182 THE ARBITRATOE'S AUTHORITY. 
 
 against A. were submitted, unless perhaps a claim for costs in 
 those actions. The arbitrators had exceeded their powers and 
 had made an award not warranted by the submission, which 
 was, therefore, set aside.^ 
 
 G. and C. presented claims against the estate of one B., a 
 deceased person, which it was arranged to submit to three 
 arbitrators, to be appointed by the probate court. The arbitra- 
 tors awarded that nothing was due to G. and C. from the 
 estate of B., but further found that there was due to said 
 estate from G. and C. a certain sum. Held, that in this last 
 finding, the arbitrators exceeded their authority.^ 
 
 A submission concerning the " earnings and expenses " of a 
 vessel does not authorize the arbitrators to consider sums paid 
 or received by way of insurance, unless there was express 
 power given to the party effecting the insurance to do so ; 
 otherwise it is not an " expense." Nor are receipts from it 
 " earnings." ^ 
 
 The Arbitrator cannot modify the Question submitted. — Of 
 course the arbitrator cannot vary or modify the precise question 
 submitted, and substitute in the place of that matter which 
 the parties wish to have decided some other similar, cognate or 
 collateral point bearing upon the same general subject, or some 
 other form of the same controversy. Thus where a boundary 
 line has once been determined by an award, but has again 
 become a subject of dispute, a submission to a new arbitrator 
 by a proper construction of its language confined him to the 
 task of retracing so nearly as he could the line determined by 
 his predecessor. Held, that his running a new line on the 
 basis of his own judgment as to what was the correct boundary, 
 was an excess of authority which avoided his award.* 
 
 The Arbitrator cannot do General Equity. — So also the arbi- 
 
 1 Worthen v. Stevens, 4 Mas^. 448 ; but see ante, the chapter on " Parties.'' 
 
 2 Gilmore v. Hubbard, 12 Cush. 220. 
 
 3 Sawyer v. Freeman, 35 Maine, 542. 
 
 * Wyman v. Hammond, 55 Maine, 534. 
 
THE ARBITEATOR'S AUTHCtRITY. 183 
 
 trator will often be tempted, without actually including, as in 
 the preceding cases, other distinct claims, yet to take the whole 
 subject-matter out of which the controversy grows into his 
 consideration and to seek to do a large and liberal equity con- 
 cerning the whole of it by making an award of a more exten- 
 sive character than he would be authorized to do by the strict 
 terms of the submission. But the following adjudications will 
 show that this course, however much it may seem to have 
 to excuse or even to recommend it in any particular case, is a 
 fatal infringement of the rule which requires the authority 
 contained in the submission to be rigidly respected and ad- 
 hered to. 
 
 A submission concerning the claims of A. against B., au- 
 thorized the arbitrators, if they should find B. indebted to A., 
 to estimate the improved value of chattels of A. in B.'s pos- 
 session and deduct the valuation from the indebtedness, also 
 to appraise certain property belonging to B. and to be received 
 by A. in part payment. Held, that an award transferring 
 more property from B. to A. than was necessary to discharge 
 the indebtedness and ordering the balance of the value of the 
 property so transferred to be paid by A. to B., was bad, as not 
 following the submission, and exceeding the authority con- 
 ferred by it. And though the arbitrators were also author- 
 ized to consider all demands between the parties, and to 
 " estimate what was just, right, and lawful between them " 
 according to their contract, yet this gave them no authority to 
 compel one party to become a purchaser, since this was not in 
 pursuance of the contract.^ 
 
 Under a submission of " all unsettled accounts," an award 
 dividing between the parties the personal property owned by 
 one of them, and decreeing that each should pay one-half of 
 the indebtedness, which both or either of them owed, was held 
 bad, as being in excess of authority-. For the party owning 
 the personalty had not authorized the arbitrators to determine 
 
 1 Culver V. Ashley, 17 Pick. 98. 
 
184 THE AEBITEATOE'S AUTHOEITT. 
 
 upon what terms she should dispose of it. Neither did the 
 submission authorize the arbitrators to declare how the debts 
 should be paid ; a matter settled by the law. The referees, it 
 was said, proceeded as if the parties had authorized them to 
 hear and determine what debts they, and each of them, owed, 
 and what part each was to pay. Whereas, it does not appear 
 that there was any dispute between them on that subject.^ 
 
 Certain insured goods were burned up. The owner and the 
 insurance company agreed vipon a sum to be paid for the 
 goods enumerated in a certain list, and submitted to arbitra- 
 tion the question what sum should be paid for certain other 
 goods. Held, that the arbitrator had no authority to award 
 that the owner was entitled to salvage on the goods named in 
 the list.2 
 
 Under a submission of the question whether some fixtures, 
 removed by a landlord, were part of the demised premises, it 
 was held not to be within the arbitrator's power to order the 
 tenant to replace the fixtures, and the landlord to reimburse 
 to him the expense of replacement.^ 
 
 The question submitted was, whether or not the title to 
 certain real estate was good. Held, that the arbitrator's 
 authority did not" extend to ordering the purchaser to take the 
 title, with all its faults, and the seller to execute a bond in- 
 demnifying him against eviction.* 
 
 Orders concerning Price and Payment. — Generally, if the 
 arbitrator awards that one party shall pay the other a certain 
 sum, he may order at what time and place payment shall be 
 made.^ 
 
 If, however, the duty of the arbitrator is merely to fix the 
 price to be paid for certain property, it is in excess of his 
 
 1 Shearer v. Handy, 22 Pick. 417. 
 
 2 Skipper v. Grant, 10 C. B. 237. 
 
 3 Price V. Popkin, 10 Ad. & El. 139. 
 
 4 Boss V. Boards, 8 Ad. & El 290. 
 
 5 In re Morphett, 2 Dowl. & Low. 967 ; Freeman v. Bernard, 1 Salk. 69 ; Anon. 
 1 Keb. 92, 2 Brownl. 309 ; Armitage v. Walker, 2 Kay & J. 211. 
 
THE ARBITRATOR'S AUTHORITY. 185 
 
 power, in addition to settling the price, to order tliat the 
 payment shall be made on a future day named by him.^ And 
 Russell says it is " very questionable " whether, when a ver- 
 dict is to be taken for an amount to be determined by a 
 reference, the referee may set the day or place for payment of 
 the sum for which he orders a verdict to be entered.^ 
 
 Where the duty of tlie arbitrator is not so closely restricted 
 to the mere statement of a sum of money, but he has a general 
 power to order a payment to be made, it is within the scope of 
 his authority to direct that the payment be made in the shape 
 of a promissory note, payable on a future day named, to be 
 given by the losing to the gaining party .^ Also, he may order 
 the debtor to give a bond to the creditor, conditioned for the 
 payment of the sum awarded on a future day certain.* He 
 may award payment by instalments,^ with the further proviso 
 that, on failure to pay any instalment, the whole amount shall 
 at once come due.^ 
 
 But an authority to fix upon a sum to be paid, does not in- 
 clude authority to order the payment to be in something else 
 than money. Where it was agreed that a confessed judgment 
 should be released on payment of such sum as A. should find 
 to be due, it was held that A. had not power to order that the 
 payment should be made in certain property at an appraised 
 value.'^ 
 
 Orders oonoerning Allowance of Interest. — In England the 
 courts have permitted the arbitrator to exercise a liberal 
 power concerning the allowance of interest. The propriety of 
 
 1 Emery v. Wase, 8 Ves. Jr. 504, u,. 
 
 2 Russell on Arb., 3d ed. p. 392 ; Rees v. "Waters, 16 Mee. & W. 263 ; 4 
 Dowl. & Low. 567. 
 
 3 Booth V. Garnett, 2 Strange, 1082. 
 
 * Cook V. Whorwood, 2 Saund. 337 ; 2 Lev. 6 ; Brown v, Watson, 6 Bing. N. 
 C. 118. 
 
 5 Kockill V. Witherell, 2 Keb. 838. 
 
 6 Royston v. Rydall, Rolle Abr. Arb., H. 8, p. 250 ; Com. Dig. Arb. E. 15 ; 
 Koekill V. Witherell, 2 Keb. 838. 
 
 T State V. Jones, 2 Gill, 49. 
 
186 THE ARBITRATOR'S AUTHORITY. 
 
 such allowance is ■ regarded as a question falling within his 
 discretion, and therefore his finding will be treated as final.^ 
 It has been so held where he gave compound interest.^ He 
 may also compute interest upon accounts under circumstances 
 where the courts of law would not do so ; at least, provided 
 he thereby violates only a regulation of practice and not any 
 general rule of law.^ 
 
 The Arbitrator's Power in Disputes between Partners. — Dif- 
 ferences between partners constitute a very common subject- 
 matter of submission, and many nice questions have arisen 
 out of such arbitrations, especially in England. 
 
 An arbitrator to whom all matters in difference between 
 partners are submitted, can award a dissolution of the part- 
 nership, provided the question, whether or not they shall 
 dissolve, is in issue between the parties.* But where he was 
 authorized " to arbitrate and determine as well a dissolution 
 . . . and the cancelling the indenture of a copartnership, as 
 of and concerning all matters in difference between the par- 
 ties," it was held that he was under no positive obligation to 
 order a dissolution.^ 
 
 A bill in equity was filed against a partner by his copart- 
 ners, praying a dissolution and settlement of accounts. The 
 cause was referred to a master to take and state an account 
 between the parties to the cause. Afterward, by agreement 
 of parties and order of court, " this cause and all mutual 
 claims and demands between the plaintiff and defendant in 
 any way resulting from the transactions of said copartnership," 
 &c., were referred. The award only directed one partner to 
 pay a sum of money to the other partners, leaving the part- 
 nership account still' open. Held, that the report, in this 
 
 1 Sherry v. Oke, 3 Dowl. 349 ; Beahorn v. Wolfe, 1 Alcock & Nap. (Irish E.) 
 233 ; Armitage v. "Walker, 2 Kay & J. 211. 
 
 2 Morgan v. Mather, 2 Ves. Jr. 15 ; In re Morphett, 3 Dowl. & Low. 967. 
 
 3 In re Badger, 2 Barn. & Aid. 691. 
 * Green v. Waring, 1 Wm. Bl. 474. 
 
 ' Simmonds v. Swaine, 1 Taunt. 548. 
 
THE AEBITRATOR'S AUTHORITY. 187 
 
 shape, was not final, and could not be accepted without direct- 
 ing a decree that the partnership should be dissolved. The 
 arbitrator was empowered to do both what a master would find 
 and what the court should decree, as a final settlement of the 
 partnership account between each partner and the firm, and 
 thus ascertain what is due to it from each. For this purpose 
 it was necessary to close the concern, to provide for the col- 
 lection of all dues, and for the payment of all debts, and to 
 distribute between the parties any surplus there might be. 
 Accordingly, the case and report were re-committed to the 
 arbitrator to take the account and complete the settlement 
 upon the grounds indicated.^ 
 
 Eussell says that " a wide discretion is given to the arbi- 
 trator where he is to settle the terms on which a partnership 
 is to be dissolved ; " ^ and illustrates his statement by the fol- 
 lowing cases : An arbitrator was to determine the terms 
 upon which a partnership between two attorneys should be 
 dissolved, and also which of them should have the right to 
 collect certain bills of costs. He awarded to one this right to 
 collect the costs and to keep them as his own, and also awarded 
 that this one should be entitled to use the name of the other 
 either alone or jointly with his own in suing for these costs. 
 The award was upheld as being within the authority of the 
 arbitrator. The power to give such a right of action was re- 
 garded as implied in the duty to decide which of the two 
 should collect the costs, and also in the power to settle the 
 terms of dissolution ; nor was it considered a sufficient objec- 
 tion that, though the attorney whose name should be used by 
 the other in actions, might be thereby rendered liable for costs 
 in those actions, no indemnity was provided for him.^ 
 
 A submission between two persons carrying on business as 
 surgeons and apothecaries in a town, left to the arbitrator to 
 
 1 Paine v. Paine, 15 Gray, 299. 
 
 2 Russell on Arb., 3cl ed. p. 399. 
 
 3 Benton v. Wigley, 1 Bing. N. C. 665. 
 
188 THE AEBITRATOB'S AUTHORITY. 
 
 determine the terms of dissolution, and provided that one of 
 them should continue to conduct the business for his own 
 sole benefit. An order in the award, that it should not be 
 lawful for the other to carry on the same business in the said 
 town, or within thirteen miles of it, was upheld, as being within 
 the authority of the arbitrator.^ 
 
 Copartners agreed orally to submit all differences arising 
 out of the partnership, and especially the several claims of the 
 partners against the firm, or against each other, growing out 
 of the partnership, and the several demands of the firm against 
 the partners severally, to the end that there might be a final 
 settlement thereof. After determining the indebtedness of the 
 partners, one to another, the arbitrators proceeded to declare 
 how any future receipts on firm account should be divided, and 
 how debts should be paid ; conforming in these directions to 
 the provisions in the articles of copartnership. The court 
 was " strongly inclined to the opinion " that the arbitrators 
 did not exceed their authority in thi's latter portion of their 
 award.^ 
 
 Two partners entered into an agreement of submission, 
 " with a view to make provision for a full and perfect settle- 
 ment of all things which are now, or may hereafter be, between 
 them," empowering the arbitrators "to arbitrate, award, order, 
 and determine of and concerning all manner of actions, causes 
 of actions, suits, bills, bonds, controversies, and demands of 
 every nature," and stipulating " to abide by and perform 
 the award of said arbitrators, and to execute such releases, 
 discharges, and conveyances, and any other papers deemed by 
 said arbitrators proper to be executed, to carry into full effect 
 their award." The arbitrators ordered one partner to execute 
 to the other a deed, with release of dower by his wife, of a 
 certain lot owned by the partners as tenants in common, also 
 a release and assignment of all personal property and assets of 
 
 1 Morley v. Newman, 5 Dowl. & Ryl. 317. 
 
 2 Barrows v. Capen, 11 Cush. 37. 
 
THE AEBITEATOR'S AUTHORITY. 189 
 
 the firm. The recipient was ordered to execute in return an 
 indemnity to the conveying partner against all claims of every 
 name and natui-e outstanding against the firm, or the partners 
 jointly, or jointly and severally. The court said the arbitra- 
 tors had full power to adjust the matter in dispute, relative to 
 the partnership, in such manner as should seem to them just ; 
 and the award was upheld as within the scope of their au- 
 thority, in every respect, save only as to an item of time imma- 
 terial in this connection. And, upon a further argument of. 
 the same cause, the objection that the joint and several notes 
 were not embraced in the submission, was scouted by the 
 court.^ 
 
 The arbitrator should determine the claims and demands of 
 each party to the submission against each of the others, and 
 should state the amount which each is to receive from any 
 other, or to pay to any other, on the footing of such account.^ 
 
 The arbitrator of course has no power over the creditors or 
 debtors of the firm. He may order one partner to pay all the 
 debts, or he may order the partners to pay the debts in certain 
 proportions respectively, as^between themselves ; he may order 
 that such sums as shall be paid in shall be distributed among 
 the partners in a certain ratio. Such orders may create rights 
 and demands in favor of one partner against another, which 
 will be valid and enforceable at law. But the right of a credi- 
 tor to hold each and every partner liable in solido, or the right 
 of a debtor to discharge his indebtedness by a payment to any 
 one of the partners, are matters which obviously cannot be 
 affected by an award made under a submission to which 
 neither such creditor nor such debtor is a party .^ 
 
 In winding up the affairs of a partnership, if there be any 
 dispute as to amounts, the arbitrators should take an account 
 
 ' Richardson v. Huggins, 23 N. H. 106. 
 
 2 Aitken's Arbitration, 3 Jur. n. s. 1296. 
 
 3 Wood V. "Wilson, 2 Cr. Mee. & Ros. 241 ; Lingood v. Eade, 2 Atk. 501 ; 
 Lamphire v. Cowan, 89 Vt. 420. 
 
190 THE ARBITKATOE'S ATJTHOEITY. 
 
 of the debts and credits of the firm ; and if they add a list of 
 debtors and creditors with the amount of their respective debts 
 or credits set against their names, these lists will be presumed 
 to be full and correct until the contrary is proved to be the 
 fact.i 
 
 But if there be no dispute such a finding is unnecessary ; 
 and in the absence of such a finding the presumption is that 
 there was no such dispute. Therefore, an order that the 
 partners shallcontribute equally to the payment of the debts 
 and shall share the assets equally, is sufficient, though the 
 amount of debts or assets is not stated.^ 
 
 Where the submission recites, in terms, that there are dis- 
 putes touching the division of partnership property, gives the 
 arbitrator power to divide it between the parties, and contains 
 interchangeable stipulations that each party will convey to the 
 other according to such division, it would seem that it is the 
 duty of the arbitrator to make a division, and that awarding 
 the whole to one partner at a price to be paid by him to the 
 other would be unsatisfactory. Yet in a case where an arbi- 
 trator had made an award of this latter character the court 
 held it to be good on its face ; not however as being per se 
 correct, but upon the presumption, to be entertained till the 
 contrary should be shown, that the parties had made some ar- 
 rangement before the arbitrator, whereby one of the parties 
 was ultimately to become possessor of the whole property .^ 
 
 But a power tp divide partnership assets is by no means 
 always to be inferred as incidental to a submission of disputes 
 between partners, as is shown by the following case. 
 
 A submission was made by partners of all demands between 
 them, whether arising out of tlieir business as partners or out 
 of any other transactions. It was held that an effort to divide 
 or otherwise dispose of the partnership property or credits, or 
 
 1 Lingood v. Bade, 2 Atk. 501. 
 
 2 Wood V. Wilson, 2 Cr. Mee. & Eos. 241. 
 
 » Wood V. Wilson, 2 Cr. Mee. & Eos. 241 ; Eussell on Arb., 3d ed. p. 399. 
 
THE ARBITRATOR'S AUTHORITY. 191 
 
 to determine how the debts owing by the firm should be paid, 
 was an excess of avithority.^ 
 
 Nor when it might be gathered from the submission that 
 the power to make division is conferred, does it therefore fol- 
 low that it must be exercised. Under an agreement " to sub- 
 mit all demands of every name and description, whether Rising 
 out of their business as partners under the firm of B. & P. or 
 out of any other transactions between them " the arbitrators 
 stated in their award that they had not taken into considera- 
 tion the stock, tools, and other property of the firm, nor the 
 debts owing to it nor due from, but that they left all these to 
 be thereafter adjusted and divided between the partners. 
 Held that though disputes concerning these matters might 
 have been in existence at the date of the submission which 
 should therefore have been determined, yet since this fact did 
 not appear the contrary would be presumed. That disputes 
 might afterwards naturally spring out of these same sources 
 was immaterial. The award was upheld.^ 
 
 If the award directs a distribution of surplus assets and is 
 silent as to the contingency of the assets being insufficient to 
 meet the liabilities, it is not necessarily invalid. The court 
 will presume, till the contrary is shown, that the arbitrators 
 were correct in their supposition as to the sufficiency of 
 assets.^ 
 
 An arbitrator has no power to appoint a receiver of the firm 
 assets, unless he be specifically authorized by the submission 
 so to do.* If he has such authority and exercises it, it is pro- 
 per, though not necessary, that he should order the partners 
 to give a power of attorney to the person named as receiver to 
 collect debts, &c.^ It has also been said that care should be 
 taken in the submission to exonerate the arbitrator from any 
 
 Hayes v. ForskoU, 31 Maine, 112. 
 2 Ibid. 
 
 " Wilkinson v. Page, 1 Hare, 276 ; Routh v. Peach, 3 Anst. 637. 
 < Lamphire v. Cowan, 39 Vt. 420 ; In re Mackay, 2 Ad. & El, 356. 
 '> Lingood v. Eade, 2 Atk. 501. 
 
192 THE ARBITRATOR'S AUTHORITY. 
 
 liability growing out of the application of the moneys collected 
 by the receiver ; since otherwise, if the receiver become insol- 
 vent, it is doubtful whether the arbitrator might not under 
 some circumstances be held personally liable.^ 
 
 Pow^er of Arbitrator to order Execution of a Release. — It 
 may pe laid down as a general rule that arbitrators have 
 power to order a party to the submission to execute a release 
 to another party to the submision of or concerning any claim or 
 demand constituting a portion of the subject-matter thereof. 
 
 Under a general submission of all matters in difference, 
 mutual general releases may be ordered to be executed.^ 
 Where " all debts, sums of money and demailds " are sub- 
 mitted, a release may be awarded to be executed of any 
 bonds, specialties, judgments, executions, &c., under and 
 by virtue of which the debts, &c., are due.^ But a release of 
 the arbitration bond itself cannot be ordered.* 
 
 Of course if the submission be of a specific matter an 
 award of general releases will be an excess of authority.^ 
 But the intendments and presumptions of the law always 
 come to aid the validity of the award by cutting down an 
 order for releases of an apparently general nature, to an 
 order commensurate with the arbitrator's authority, provided 
 that such a construction be possible.^ This rule is carried 
 so far that even where such a construction is impossible the 
 award may still be upheld. For example, where the authority 
 of the arbitrator would allow him to order a release only of 
 such claims as exist up to a certain date, and he awards a 
 release of claims existing up to a later date, the court will 
 presume, until the contrary is shown, that no new claim 
 
 1 Lingood v Bade, 2 Atk. 501. But see Anon. 12 Mod. 560. 
 
 2 Cable V. Rogers, 3 Bulst. 311. 
 
 3 Roberts v. Harriett, 2 Saund. 190. 
 
 * Doyley v. Burton, 1 Ld. Raym. 533. 
 
 5 Doe d. Williams v. Richardson, 8 Taunt. 677. 
 
 6 Russell on Arb., 3d ed. p. 403 ; Doe d. Williams c. Richardson, 8 Taunt. 
 697 ; Barry v. Rush, 1 Term, 691 ; Boyes v. Bluck, 13 C. B. 652 ; Marks v. Mar- 
 riot, 1 Ld. Raym. 114. 
 
THE ARBITRATOR'S AUTHORITY. 193 
 
 arose in the interval. And even if the fact that such new claim 
 did arise be actually shown, the award will in general be bad 
 only as to this interval, and this bad portion may be re- 
 jected as surplusage. So if the award in an arbitration con- 
 cerning particular matters calls for a general release, the courts 
 will compel a release concerning the particular matters and 
 will reject the rest of the order.^ 
 
 An award that a sum be paid at a day future, and that a 
 release be given before that day, is bad ; since such a release 
 might avoid the arbitration bond and take away the right to 
 collect the sum by legal process. ^ 
 
 An award directed A. & B. to execute " forthwith " certain 
 conveyances to C, and ordered C. "forthwith" to execute 
 indemnities and releases to A. & B: This award was con- 
 strued to require C. to give the indemnities arid releases 
 immediately upon receiving the conveyances from A. &B.,and 
 was upheld as good.^ 
 
 As a general rule, it is said that the award need not desig- 
 nate the form of the releases, neither the time at which they 
 are to be executed.* 
 
 Poiver to order Conveyance of Real Estate. — If disputes 
 concerning the title to or boundaries of real estate are prop- 
 erly presented to and determined by arbitrators, they have 
 power to direct in their award that such deeds of conveyance 
 shall be executed and delivered by either party to the other, 
 as may be necessary to give effect to their decision.^ The 
 
 1 Russell on Arb., 3d ed. pp. 313, 314, 408 ; Bac. Abr. Arb. E. 1 ; Hill v. Thorn, 
 2 Mod. 309 ; Squire v. Grevett, 2 Ld. Raym. 961 ; Lee v. Elkins, 12 Mod. 585 ; 
 Anon. lb. 8 ; Hooper v. Pierce, ib. 116 ; Abrahat v. Brandon, 10 id. 201 ; Pick- 
 ering V. "Watson, 2 W. Bl. 1118 ; Stevens v. Matthews, 1 Ld. Raym. 116. 
 
 2 Adams v. Adams, 2 Mod. 169. 
 
 3 Boyes v. Bluck, 13 C. B. 652. And to the same general effect is Inhabitants 
 of Portland v. Brown, 43 Maine, 223, and McNeil v. Magee, 5 Mason, 244, to be 
 discussed hereafter. 
 
 * Russell on Arb., 3d ed. p. 404 ; Toby v. Lovlbond, 17 L. J. C. P. 201 ; 5 C. 
 B. 770. 
 
 5 Penniman v. Rodman, 13 Mete. (Mass.) 382 ; Williams v. Warren, 21 HI. 
 641 ; Johnson v. Wilson, WUles, 248 ; Russell on Arb., 3d ed. p. 404. 
 
 18 
 
194 THE ARBITEATOE'S AUTHORITY. 
 
 power is an inherent one, and resides in the arbitrator by vir- 
 tue of the nature of the controversy which he has to deter- 
 mine, without any authorization in terms in the submission. ^ 
 Indeed it is obvious that without it the object of the submis- 
 sion could often not be attained ; and its exercise is rendered 
 indispensable by reason of the rule, that an award finding that 
 the title to real estate is in a certain person, whether he be a 
 party to the submission or not, does not vest the title in him 
 without the formality of a conveyance from the person in 
 whom the nominal title is outstanding.^ But a power to 
 determine a disputed title is not equivalent to or inclusive 
 of a power to change or transfer title. If the controversy 
 be, who is the owner, the duty of the arbitrator is confined to 
 deciding this' precise fact, and ordering any conveyance neces- 
 sary to vest a complete title in the party in whose favor he 
 finds. 
 
 A demand for certain buildings and land was submitted. 
 It was held that the arbitrators might award the buildings and 
 land, either in whole or a certain specified part thereof, to one 
 party ; or the land to one party and the buildings to the other ; 
 according as they should find the title actually to be. But 
 they had no authority to award that one should take the whole 
 land and buildings and should pay to the other a certain sum, 
 whereby, in fact, they would arrange a purchase and sale of 
 the property.^ 
 
 Specifications concerning the Legal Form, &c., of the Convey- 
 ance. — If the 'arbitrator orders a conveyance to be made, it 
 has been said, in England, that he should specify the nature 
 and character of the instrument.* But it seems, that any 
 ordinary phraseology will suffice, provided its meaning be 
 
 1 Penniman v. Rodman, 13 Meto. (Mass.) 382. 
 
 2 Loring v. Whittemore, 13 Gray, 228. 
 
 3 Robinson v. Moore, 17 N. H. 479. 
 
 * Tandy v. Tandy, 9 Dowl. 1044 ; Tipping v. Smith, 2 Strange, 1024 ; Thinne 
 V. Rigby, Cro. Jac. 314 ; Smalley v. Blackburn Railway Company, 2 Hurl. & 
 Nor. 158 ; 27 L. J. Exch. 65. 
 
THE ARBITRATOR'S AUTHORITY. 195 
 
 reasonably clear. Thus an order that a deed of assignment, 
 a mortgage deed, and a release of all right, title, and interest 
 in certain premises be severally executed, is sufficient, without 
 the actual drafting of these instruments, or minute setting 
 forth of their contents by the arbitrator himself.^ 
 
 In Massachusetts specific performance was compelled upon 
 an award ordering a conveyance to be made " to the said P., 
 his heirs and assigns for ever, by a good and sufficient deed of 
 warranty, free and discharged from all incumbrances " ; also 
 ordering that one party should " execute a good and sufficient 
 deed of release to the said P., his heirs and assigns for ever, of 
 all the right, title, interest, and estate " of the grantor, in cer- 
 tain real estate. The question as to the sufficiency of the de- 
 scription of the legal instruments was apparently not raised, 
 even by the defendant's counsel in argument. It was taken 
 for granted by all concerned as well as by the court.^ 
 
 An award ordered a party " to make and well execute a 
 good authentic deed of conveyance." It was held that it would 
 be sufficiently complied with by the execution of such a deed 
 as was valid and sufficient in point of law to pass the title to 
 the estate. The real point of the ruling, however, lay in the 
 decision that these words could not be made to refer to the 
 title conveyed, and the remark as to the description of deed 
 which would be a fulfilment of the requirement was only obiter 
 dictum? 
 
 Russell says that the arbitrator is recommended to state in 
 his award by which party and at the charge of which party the 
 conveyance sliall be drawn.* But this direction does not ap- 
 pear to be indispensable.^ 
 
 1 Tebbutt V. Ambler, 2 Dowl. N. s. 677. 
 
 ^ Penniman v. Rodman, 13 Mete. (Mass.) 382. See also Jones v. Boston Mill 
 Corporation, 4 Pick. 507 ; McNeil v. Magee, 5 Mason, 244. 
 
 3 Preston v. Whitoomb, 11 Vt. 47. And see Kyle v. Kavanagh, 103 Mass. 356. 
 
 * Russell on Arb., 3d ed. p. 405 ; Standley v. Hemmington, 6 Taunt. 561 ; Doe 
 d. Clarke v. Stilwell, 8 Ad. & El. 645. 
 
 5 In Penniman v. Rodman, 13 Meto. (Mass.) 382, no such direction was made, 
 but specific performance was compelled without reference to this as a defect. 
 
196 THE AEBITKATOE'S AUTHORITY. 
 
 ■When Conveyance need not be ordered. — It seems that it 
 may be fairly gathered from a Massachusetts case that if the 
 owners of adjoining lots submit a dispute concerning their 
 boundary line, and in their bond bind themselves " to give 
 deeds according to the award of the referees," it will not be 
 necessary for the award itself to contain an order for the exe- 
 cution of a conveyance by the losing party. If the boundary 
 line be run, his obligation to give such a deed, if any, as is 
 necessary to establish that boundary line, is complete with- 
 out the arbitrator's order. ^ 
 
 Po-wer of Arbitrator in Cases of Land Damages. — Under stat- 
 utes providing that where land is taken for a highway, and the 
 selectmen and owner are unable to agree on the price or dam- 
 ages, there may be an arbitration, the arbitrators can consider 
 only such matters as could properly be considered by the 
 selectmen. The precise duty which was first imposed upon 
 the selectmen is shifted upon the arbitrators. If they go be- 
 yond the strict determination of damages caused by the taking 
 of the land ; as, for example, if they award also for injury done 
 to the owner by the discontinuance of an old road or for the 
 cost of cutting a new cross-road through his own premises to 
 reach the new highway, they exceed their powers, and their 
 award is, at least pro tanto, void. The value of the land taken, 
 the expense of fencing against the new road, and the damage 
 done to the land remaining, are the sole matters which can be 
 taken into consideration.^ 
 
 Povrer to go behind a Receipt in full. — In the following case 
 it was held not only that the arbitrators might go behind a re- 
 ceipt in full given by one party to the other, but even that it 
 might be their duty to. do so. A submission was of all matters 
 arising out of the trade and dealings of the parties, and stipu- 
 lated that the award should be in full settlement and discharge 
 
 1 Caldwell v. Dickinson, 13 Gray, 865. 
 
 2 Dalrymple v. Town of Whitingham, 26 Vt. 345. And see Commonwealth 
 V. Justices, &c., of Norfolk, 6 Mass. 435 ; Livermore v. Jamaica, 23 Vt. 363. 
 
THE AEBITEATOR'S AUTHORITY. 197 
 
 from one to the other concerning and in respect to their said 
 trade and dealings, from the commencement thereof to the date 
 of the submission. The court said that there was no doubt 
 that this language was sufficiently comprehensive to authorize 
 the arbitrators to go behind the receipt and look into the set- 
 tlement which led to it, and the results of which it represented. 
 The submission set no limit of time to their investigation. 
 Neither was the receipt conclusive between the parties. It 
 might have been given by mistake, or as the consequence of 
 fraud ; and all such matters would be open to the arbitrators. 
 Indeed the court even went so far as to add that if the arbitra- 
 tors had refused to go behind the receipt and look into the 
 settlement, at the request of either of the parties, it would 
 have afforded a much stronger reason for setting aside the 
 award than the objection now taken by the defendant.^ 
 
 Orders concerning Incidental Matters. — Such matters as are 
 necessarily or properly incidental to or comprised within the 
 precise question submitted may be disposed of by the arbi- 
 trator. And such directions as are reasonably necessary or 
 conducive towards the completion of such an award in the 
 premises as it is within his authority to make can be given by 
 him, and will be valid.^ 
 
 But it seems that this power is closely limited. The precise 
 function or duty which the arbitrator is called upon to fulfil 
 constitutes the limit of his authority. He cannot go beyond 
 the task allotted to him ; though he may provide necessary 
 means for carrying out his award, he cannot order things not 
 absolutely necessary but only convenient to be done. In a 
 cause there had been confession of judgment, to be released on 
 payment of such sum as A. should find to be due. Held, A. 
 
 1 Maynard v. Frederick, 7 Cush. 247. 
 
 2 Boston Water Power Company v. Gray, 6 Mete. (Mass.) 131 ; Paseoe v. 
 Pascoe, 3 Bing. N. C. 898 ; Atkins v. Baldwin, 1 Stark, 209 ; Becklngham v. 
 Hunter, EoUe's Abr. Arb. D. 8, p. 246 ; Harrison v. Lay, 13 C. B. n. s. 528. And 
 see Eussell on Arb., 3d ed. pp. 389, 390, wh^ere brief statements of these cited 
 cases are given. 
 
198 THE ARBITRATOE'S ATTTHOEITY. 
 
 could only designate the amount due ; he could not order the 
 judgment to be released.^ 
 
 Power and Duty to order what shall be done by a Party in the 
 Future. — An authority in the arbitrator to order what shall be 
 done by the parties, or either of them, in the future, in respect 
 to the subject-matter of the submission, is derived only from a 
 power to that effect expressly or impliedly given him by the 
 submission. Power of this kind is often given where the dis- 
 pute concerns an easement or the use of a water-power, and 
 disputes of a* similar nature, wherein the future enjoyment of 
 the property or regulation of the right ought to be disposed 
 of if it is desired to achieve a final settlement of the contro- 
 versy. 
 
 The question which it is most difficult to answer in relation 
 to the delegation of an authority of this kind is, whether or 
 not it is permissive or compulsory. If it be permissive only, 
 then it is in the discretion of the arbitrator to act under it or 
 not, as he sees fit. If it is compulsory, he is under an obli- 
 gation to a'ct under it ; and if he fails to do so, the defect may 
 avoid his award. The language and subject-matter of the sub- 
 mission will of course give the one or the other character in 
 each particular case. 
 
 Giving the arbitrator " power to determine what he shall 
 think fit to be done by the parties respecting the matters in dis- 
 pute " is considered to give a discretionary power to the arbi- 
 trator, under which he may either give or refrain from giving 
 orders, as he may see fit.^ 
 
 Power to direct " what, if any thing, shall be done'" is, of 
 course, permissive only.'' 
 
 Words grammatically permissive are sometimes construed 
 to be imperative by reason of the intrinsic fitness or necessity 
 
 1 State V. Jones, 2 Gill, 49. 
 
 2 Angus V. Redford, 2 Dowl. n. s. 735 ; 11 Mee. & W. 69 ; Morgan v. Smith, 
 1 Dowl. N. s. 617 ; 9 Mee. & W. 427. 
 
 3 NichoUs V. Jones, 6 Exch. 373. ' 
 
THE ARBITRATOR'S AUTHORITY. 199 
 
 of such a construction, arising out of the subject-matter or 
 circumstances of the submission.^ 
 
 In the Court of Exchequer it has been held that if the clause 
 conferring the power be permissive only, and the arbitrator 
 acts under it, but in this portion of his award commits some 
 error, nevertheless the whole award need not be set aside.^ But 
 the Court of Queen's Bench has held otherwise, except in the 
 case where the error is a mere excess of authority and separ- 
 able, in which case it may be rejected under the doctrine of 
 divisibility in the award. ^ 
 
 Validity of Orders concerning Future Conduct of a Party. — The 
 matter of whether or not the directions as to what shall be 
 done are valid or invalid depends in each case upon the lan- 
 guage of the submission and character of the subject-matter 
 and the circumstances. Mr. Russell has given brief statements 
 of the various English decisions in cases of this kind, which, 
 however, do not seem likely to prove of sufficient value as pre- 
 cedents, by analogy, to be transferred at length to these pages. 
 They are cited below.* 
 
 Where the dispute concerns the use of water-power the 
 temptation to provide for future use is often great, since the 
 mere award of damages for past misuse seems to leave the con- 
 troversy in a very unsatisfactory condition. But the nature of 
 
 > Crump V. Adney, 1 Or. & Mee. 355 ; 3 Tyrw. 270 ; Ross ... Clifton, 9 Dowl. 
 356. But see Grenfell v. Edgcome, 7 Q. B. 661. 
 
 2 Nicholls V. Jones, 6 Exch. 373. 
 
 3 Stonehewer v. Farrar, 6 Q. B. 730. 
 
 * In the following cases the directions were held valid : Taylor o. Shuttle- 
 worth, 8 Dowl. 281 ; Prosser v. Goringe, 3 Taunt. 425 ; Boodle u. Davies, 3 Ad. 
 & El. 200 ; Winter v. Lethbridge, 18 Price, 533 ; Walker v. Frobisher, 6 Ves. Jr. 
 70; Round v. Hatton, 10 Mee, & W. 660; Miller v. De Burgh, i Exch. 809; 
 Mays V. Cannell, 24 L. J. C. P. 41 ; Eastern Union Railway Company w. Eastern 
 Counties Railway Company, 2 El. & Bl. 530. In the following cases the direc- 
 tions were held invaUd : Hayward v. Phillips, 6 Ad. & El. 119 ; Prentice v. Reed, 
 1 Taunt. 151 ; Hooper v. Hooper, M'Lel. & Y. 509 ; Johnson v. Latham, 19 L J. 
 Q. B. 329 ; Price v. Popkin, 10 Ad. & El. 139 ; Stonehewer v. Farrar, 9 Jur. 203 ; 
 6 Q. B. 730 ; Sharpe v. Hancock, 7 Man. & Gr. 354. And see RusseU on Arb., 
 3d ed. pp. 408-415 
 
200 THE ARBITRATOR'S AUTHORITY. 
 
 the subject-matter does not increase the actually conferred 
 authority, and regulations concerning future use will be void 
 unless the arbitrators have been specifically empowered to 
 make them.^ 
 
 In a dispute concerning a lease of a water-power, it appeared 
 that the lessee claimed that he had not had his due quan- 
 tity, and the lessors claimed that he had had more than such' 
 quantity. The arbitrators were expressly empowered to regu- 
 late the future enjoyment of the rights of the parties. They 
 ordered a measuring apparatus, or gauge, to be set up and 
 thereafter maintained at the lessee's mills, to measure the 
 amount of water which should be used, and that a portion of 
 the expense of setting up and maintaining should be borne by 
 him. The court upheld the validity of this direction. Chief 
 Justice Shaw said, that " when power is given to provide for 
 the accomplishment of a certain end, it carries with it, by rea- 
 sonable implication, the power to direct the means by which 
 it shall be done ; being judged to be suitable and proper." 
 Here the arbitrators evidently thought that only by means of 
 the maintenance of this gauge could an effectual regulation of 
 the future enjoyment by the parties of their respective rights 
 be secured. " Under an authority to direct' how, in future, 
 water and water-power should be measured, with a view to its 
 future enjoyment, they had power to direct that a proper appar- 
 atus should be erected and maintained, and, as incident thereto, 
 to direct how the expense of erecting and maintaining it should 
 be apportioned." ^ 
 
 In an action on the case for nuisance, a submission was 
 made to arbitrators to determine " whether the defendant's 
 dam shall be cut down wholly or in part, and fix the height at 
 which it shall be maintained, if it may be maintained at all, 
 and whatever they decide shall be done under their direction." 
 The award gave damages and fixed the height at which the 
 
 1 BoyntoH v. Frye, 33 Maine, 216. 
 
 2 Boston Water Power Co. v. Gray, 6 Mete. (Mass.) 131. 
 
THE ARBITRATOR'S AUTHORITY. 201 
 
 dam might be maintained. The plaintiffs moved for judg- 
 ment for the damages, and that the part of the dam above the 
 height determined be abated, under the statute concerning the 
 abatement of nuisances. The award was accepted, and it was 
 ordered that a warrant should issue for the abatement of that 
 part of the dam which, being above the height named by the 
 arbitrators, constituted a nuisance.^ 
 
 The conclusive character of orders concerning future con- 
 duct or acts of the parties, where they have empowered the 
 arbitrator to make such orders, is shown by the following 
 case. A bond was executed by administrators of an estate to 
 the heirs at law, conditioned to abide the award of an arbitra- 
 tor, who was to determine all differences respecting the settle- 
 ment of the estate, to award when and in what manner the 
 administrators should settle their final account in the Probate 
 Court, and what items of debit or credit should constitute such 
 final account. The award directed that the account should 
 contain the items of debit and credit specified in the award, 
 stated in the usual form of administrators' accounts. The 
 administrators presented an account conforming to the award 
 in every particular save in the addition of one item not named 
 in the award. In an action of debt on the bond, it was held 
 that these facts showed a breach of the condition of the bond. 
 The administrators bound themselves absolutely concerning 
 their future action, and were liable for failing to make it con- 
 form to the award. The fact that the item added was a charge 
 for services done after the award was made was immaterial. 
 The administrators, by their unreserved submission, cut them- 
 selves off from the right of preferring such subsequent 
 claim.^ 
 
 Orders concerning Future Acts •will be sustained, if possible. — 
 The court will entertain any justifiable presumption in order 
 to sustain the directions as to future acts given in the award. 
 
 1 Berkshire Woollen Co. v. Day, 12 Gush. 128. 
 
 2 Stratton v. Mason, 15 Pick. 508. 
 
202 THE AEBITEATOE'S AUTHORITY. 
 
 If any state of facts would render these directions valid and 
 proper, the existence of that state of facts will be presumed, 
 unless the contrary is shown, or the party on whom the burden 
 of the orders rests has been misled. ^ 
 
 If objections to the directions embodied in the award resolve 
 themselves into questions on the merits, or go to the justice or 
 propriety of the arbitrator's decision concerning the facts, they 
 will not be considered by the courts.^ 
 
 Limitation of Authority as to Time Past. — If there be limits 
 of time within which only the arbitrators are empowered to 
 inquire or to establish rules or regulations, they cannot exceed 
 them. The power to determine what shall be done in the 
 future does not carry with it any authority as to the like 
 matters in the past. Thus where commissioners are appointed 
 to settle the terms upon which connecting railroad corpora- 
 tions shall carry passengers and freight for each other, they 
 cannot make any award which shall relate back to a time 
 pj'ior to the petition for their appointment under the statute.^ 
 In the cited case the commissioners did in fact exceed their 
 authority by determining that their award should relate back 
 to a date anterior -to that of the filing of the petition. But 
 the whole award was not therefore held void. So much of it 
 as related to the rights, duties, and obligations of the parties 
 prior to the filing was " set aside and rejected," and the re- 
 mainder was " accepted, affirmed, and established." 
 
 Orders concerning the Persons or Property of Strangers. — 
 Arbitrators have, of course, no authority over persons, or over 
 the property of persons, who are strangers to the submission. 
 Orders concerning such persons or concerning their property 
 must therefore in most cases be void. 
 
 An order that one party shall do any act, though it be a 
 beneficial one, as tbe payment of money to a stranger, will 
 
 1 Russell on Arb., 3d ed. p. 409 ; Mays v. Cannell, 24 L. J. C. P. 41. 
 
 2 Russell on Arb., 8d ed. p. 408 ; Winter v. Lethbridge, 13 Price, 538. 
 
 3 Boston & Worcester Railroad Co. v. Western Railroad Co., 14 Gray, 258. 
 
THE AEBITRATOE'S AUTHORITY. 203 
 
 generally be void, and may often avoid the award.' Though 
 if this order can be eliminated from the award without pre- 
 judice to the parties to the submission, the court will often 
 separate it and maintain the rest of the award.^ 
 
 But if the thing directed to be done to the stranger be bene- 
 ficial to that party to the submission who is entitled to receive 
 satisfaction, the order and award may be good.^ 
 
 Whether or not the fact of advantage to the party will be 
 presumed, or whether it should appear upon the face of the 
 award, was a matter left in some degree of doubt by the old 
 case of Bird v. Bird.* It has since been decided that it should 
 appear.^ 
 
 An order that payment be made to a stranger for the use of 
 a party may be good, though the stranger has no actual au- 
 thority from the party to receive money on his account.^ In a 
 partnership dispute an order that money be paid to an agent 
 of the partners in trust for them, both partners, and for the 
 benefit of the partnership, was held good.'^ So, also, an 
 order that money be paid either to a party or to A., his 
 attorney, was upheld as convenient and right.^ 
 
 Order that an Act be done by a Stranger. — An order that 
 an act be done by a person who is a stranger to the sub- 
 mission, is, of course, generally void.^ Though an exception 
 
 1 Dale V. Mottram, 2 Barn. 291 ; Kusaell on Arb., 3d ed. p. 418. 
 
 '•i Bretton v. Prat, Cro. Eliz. 758 ; Pope v. Brett, 2 Saund. 292 ; Samou's Case, 
 5 Rep. 77, b ; Samon v. Pit, RoUe's Abr. Arb. B. 7, p. 243 ; Busfield v. Busfield, 
 Cro. Jac. 577. And see Rous v. Lun, 1 Keb. 569 ; Alsop v. Senior, 2 Keb. 707, 
 718 ; Anon. 1 Leon. 316 ; Russell on Arb., 3d ed. p. 419. 
 
 it Russell on Arb., 3d ed. pp. 419, 420, citing Dudley v. Mallery, 3 Leon, 62 ; 
 Norwich v. Norwich, ib. 62 ; Bedam v. Clarkson, 1 Ld. Raym. 123 ; Wood v. 
 Thompson, Rolle's Abr. Arb. F. 11, p. 249 ; Gray v. Gray, Rolle's Abr. Arb. E. 
 6, p. 247 ; In re Skeete, 7 Dowl. 618. 
 
 i 1 Salk. 74. 
 
 6 Laing v. Todd, 13 C. B. 276. 
 8 Snook V. Hellyer, 2 Chitt. 43. 
 
 7 Dale V. Motham, 2 Barnard, 291. 
 
 8 Hare V. Fleay, 11 C. B. 472. 
 
 9 Russell on Arlj., 3d ed. pp. 421, 422, citing Bac. Abr. Arb., E. 4 ; Rolle's 
 Abr. Arb. F. 2, p. 248 ; Mudy v. Osam, Litt. 30 ; Cooke v. Wherwood, 2 Saund. 
 
204: THE AEBITEATOR'S AUTHORITY. 
 
 has been allowed where the losing party to the submission 
 has power by proceedings in law or equity to compel per- 
 formance of the act by the stranger. It will then be his 
 duty to exercise such compulsion and procure the perform- 
 ance. ^ 
 
 As has been already seen in the chapter on Parties, a party 
 to a submission may stipulate and agree that certain acts, if 
 ordered by the award, shall be done by a stranger. In such 
 case the award may impose orders upon the stranger ; for, 
 though the stranger cannot be compelled to perform them, 
 yet, if he refuse to do so, the party who has bound himself for 
 such performance will be liable for a breach of the a ward. ^ 
 
 Other Non-enforceable Orders. — Where arbitrators award that 
 a certain thing shall be done by a certain person, but by reason 
 of lack of power in them to make such an order it is void, it 
 follows that the award itself will be void, either in whole or in 
 such of its parts as are dependent upon or connected with 
 this order, or based upon it as a consideration. Thus, where 
 a party to the submission was ordered to procure a release 
 of their rights in certain real estate, to be executed by persons 
 who were strangers to the submission, this order was held 
 void. For though the persons were tenants of the party against 
 whom the order ran, yet he had no apparent means of com- 
 pelling them to do the act specified.^ The ruling seems to 
 
 377 ; Norwich v. Norwich, 3 Leon. 62 ; Thursby v. Helbert, Carth. 159 ; 1 Show. 
 82; Moore v. Bedel, Rolle's Abr. Arb. B. 5, p. 247 ; Pits v. Wardal, Godb. 164; 
 Barney v. Fairchild, Rolle's Abr. Arb. E. 10, p. 248 ; N. 9, p. 259 ; Lee v. Elkins, 
 12 Mod. 585 ; Proudfoot v. Poile, 3 Dowl. & Low. 524. 
 
 1 Russell on Arb., 3d ed. pp. 422, 423, citing Com. Dig. Arb. E. 13 ; Rolle's 
 Abr. Arb. P. 1, p. 248 ; Phillips v. Knightley, Fitzg. 272 ; Dudley v. Mallery, 3 
 Leon. 62 ; Liuch v. Clemence, Lutw. 571 ; Bradsey v. Clyston, Cro. Car. 541 ; 
 Bac. Abr. Arb. E. 4 ; Anon. March, 18 ; Beckett u. Taylor, 1 Mod. 9 ; 2 Keb. 
 546, 554 ; Kirk v. Unwin, 6 Exch. 908. ' And see Martin v. Williams, 13 Johns. 
 264, discussed post. 
 
 2 Shelf w. Baily, 1 Com. R. 183 ; Bacon v. Dubarry, 1 Ld. Raym. 246 ; Cayhill 
 0. Fitzgerald, 1 WUs. 28, 58 ; Adams v. Statham, 2 Lev. 285 ; Browne v. Mev- 
 erell, Dyer, 216, b. 
 
 * Martin v. Williams, 13 Johns. 264, and cases cited below. 
 
THE ARBITRATOR'S AUTHORITY. 205 
 
 have been based upon this fact of his disability to compel per- 
 formance by them, and might have been to a different effect 
 had he possessed the power of compulsion.^ 
 
 Effect of Performance of such Non-enforceable Orders. — It has 
 been said, that an offer by the person to perform such an order, 
 in itself not legally enforceable, or a fortiori^ his actual per- 
 formance of it will render valid and enforceable the rest of the 
 award which is founded upon this order as a consideration.^ . 
 In Smith v. Sweeny the matter submitted concerned certain 
 real estate, which, in fact, belonged to the wife of one party, 
 and not to the party himself. A release of this land was 
 ordered to be executed to the other party. The wife did in 
 fact execute such release, and it was tendered simultaneously 
 with service of the award. It was held, on the strength of 
 the other cases cited, that this voluntary compliance by the 
 wife removed the objection, which would otherwise have been 
 good, on the ground of the non-enforceability of the order and 
 its being in excess of authority. But Judge Peckham, in 
 enunciating this rule, did not seem wholly satisfied with its 
 soundness, and pointed out the objection to it : that it leaves 
 to the option of the person who is affected by the intrin- 
 sically void order to determine whether or not the award 
 shall stand, whereas, as a general rule, there should be no 
 such option. 
 
 Reference of Cross-Actions. — Under a reference of cross- 
 actions, to one arbitrator, he may generally award that one 
 claim be set off against the other, and order the balance only 
 to be paid.^ 
 
 Arbitrators cannot name a Substitute. ^ Arbitrators or ref- 
 
 1 See ante, " Order that an Act be done by a Stranger," p. 203. 
 
 2 Smith u. Sweeny, 36 N. Y. 291 ; Nichols v. Rensselaer Co. M. Ins. Co., 22 
 Wend. 129 ; Schuyler v. Van Der Veer, 2 Gaines, 235 ; Lee v. Elkins, 12 Mod. 
 585. By analogy. Page v. Monks, 5 Gray, 492, might bear indirectly upon this 
 principle. 
 
 s PenneU v. Walker, 26 L. J. C. P. 9 ; Maloney v. Stockley, 4 Man. & Gr. 647 ; 
 Williams v. Moulsdale, 7 Mee. & W. 134. 
 
206 THE ARBITRATOR'S AUTHORITY. 
 
 erees have no inherent power to name a substitute for one of 
 tlieir number who is unable or unwilling to act. It is an act 
 of the like import with a delegation of authority of a judicial 
 nature, which, as has already been seen, is wholly irregular. 
 Where a submission naming three referees provided that, in 
 the absence of any of them, " another or others are to be 
 chosen in their room," it was held that the choice could be 
 made only by the parties. There was nothing in this language 
 indicative of an intention of the parties to part with their right 
 to select their own referees. This power still rested with 
 them exclusively. 1 , 
 
 But where the parties named two referees, with power, in 
 case of their failing to agree, to " choose one or more with 
 them," the two did fail to agree, and chose three more to sit 
 with them. The parties appeared, and proceeded with the 
 hearing before the five without preferring any objection. Held, 
 they were bound by the award as much as if they had named 
 all five in the original submission. The ruling was apparently 
 based in part on the fact that the choice was sufficiently regu- 
 lar, and partly on the waiver of objection, if any could have 
 been made, by appearing and proceeding. The court did not 
 select between the two reasons.^ 
 
 The Arbitrator's Power in a lis pendens. — It has been held 
 that arbitrators in a lis pendens may award to the plaintiff a 
 larger sum than the ad damnum laid in the writ.^ The pro- 
 ceedings in this case were of a singularly anomalous character. 
 But there was evidently no rule of court, and the submission 
 does not appear to have been a regular proceeding in the 
 cause. Had it been so, or had there been a rule, it is con- 
 ceivable that a quite different principle might have been 
 enunciated. 
 
 If a cause in equity is submitted upon the pleadings, the 
 
 1 Potter V. Sterrett, 24 Penn. St. 411. And see Russell v. Gray, 6 Serg. & R. 
 145. 
 
 2 Norton v. Savage, 10 Maine (1 Fairf.) 455. 
 ^ Sutton V. Dickinson, 9 Leigh, 142. 
 
THE ARBITRATOR'S AUTHORITY. 207 
 
 arbitrators are not bound to accept as the basis of their de- 
 cision the principles of law asserted in the bill.^ 
 
 The Arbitrator's Povrer to alloiv Amendments where the Sub- 
 mission is in or of a lis pendens. — Where the submission is of 
 a lis pendens, whether in pais or as part of the proceedings in 
 the cause by virtue of a statute or a rule of court, the general 
 rule is, as already laid down, that the authority of the arbitra- 
 tors is confined to the precise matter submitted. That matter 
 is the substantial question or questions, whether of law or 
 fact, which are put at issue in the suit. What these questions 
 are, is to be determined from the pleadings and the papers 
 filed in the cause. But this broad principle is subject to the 
 very important qualification that any matters which might 
 have been introduced into the trial of the cause in court, under 
 any amendment legally allowable by the court, are regarded as 
 embraced within the submission and as properly before the arbi- 
 trator for consideration and determination.^ And the courts 
 are inclined to go to the extreme v&rge of liberality in allowing 
 such an extension of the subject-matter before the arbitrator by 
 virtue of this rule as may be necessary for securing the trial 
 and determination of the real matters in controversy.^ The 
 case, it is said, is to be heard and decided upon its merits, with- 
 out regard to the technical issues joined by the pleadings.* It 
 has been laid down that even where it is a " part of the submis- 
 sion or rule of reference, that the arbitrator or referee is to be 
 governed by the rules of law, it is nevertheless the cause of 
 action which forms the basis of the submission, and not the par- 
 
 1 Smith V. Virgin, 33 Maine, 148. 
 
 ' Sumner v. Brown, 34 Vt. 194 ; Fulton v. Wiley, 32 id. 762 ; Clifford v. Rich- 
 ardson, 18 id. 620 ; Maxfield v. Scott, 17 id. 634 ; Waterman u. Connecticut & 
 Passumpsic Rivers R.R. Co., 30 id. 610 ; Merrill v. Gold, 1 Cush. 457. See in 
 chapter on the Submission, under " Submission of a Cause," a full abstract of this 
 last case and further remarks on this subject. 
 
 3 Sumner v. Brown, 34 Vt. 194 ; contra, see De la Riva v. Berreyesa, 2 Cal, 
 195. 
 
 * Eddy V. Sprague, 10 Vt. 216 ; Davis v. Campbell, 23 id. 236 ; Coffin v. Cot- 
 tle, 4 Pick. 454 ; Page v. Monks, 5 Gray, 492; Brigga v. Oaks, 28 Vt. 138. 
 
208 THE AEBITEATOE'S AUTHORITY. 
 
 ticular form of the declaration which the party has adopted, or 
 any particular issue which may have been formed upon it, and 
 that, therefore, the referee is not bound by the particular 
 declaration and pleadings, but may award upon the subject- 
 matter of the suit without regard to them." ^ According to 
 the language of some other cases, he may try the cause of 
 action on its merits, and not the particular issue joined in 
 court .^ 
 
 Judge Curtis, in the United States Circuit Court, laid down 
 substantially the same rule, saying that the referee, though 
 he might not allow formal defects to be amended, might dis- 
 regard them, and might take into consideration any subject- 
 matter substantially embraced in the declaration. ^ 
 
 In the same case, in the Supreme Court of the United States, 
 the court said, " the law is well settled that by the reference 
 of an action . . . nothing is included in the submission but 
 the subject-matter involved in it" (the action). A railroad 
 company had covenanted to pay a contractor partly in shares. 
 He sued for breach of covenant, and alleged breaches co-exten- 
 sive with the covenant. The arbitrator included in his award 
 damages for non-delivery of the shares. It was held that he 
 did rightly, since the averments of the declaration had " this 
 scope and operation." * 
 
 Limitations upon the Power to allovir Amendments by the 
 PlaintiflF. — But the liberality of the courts will not be stretched 
 to the point of allowing the introduction of a new subject- 
 matter of litigation, or of a new substantive cause of action 
 different from that upon which the plaintiff intended to declare 
 and rely at the time of the institution of his action.^ 
 
 In the lower courts of New York it has been said that a 
 
 1 Cook V. Carpenter, 34 Vt. 121. 
 
 " Hicks V. CottriU, 26 Vt. 80 ; Eddy v. Sprague, 10 id. 216 ; Spaulding v. War- 
 ren, 25 id. 316. 
 
 3 Myers v. York & Cumberland R.R. Co., 2 Curtis C. C; 28. 
 * York & Cumberland E.E. Co. v. Myers, 18 How. (U. S.) 246. 
 ' Sumner v. Brown, 34 Vt. 194 ; Cook v. Carpenter, ib. 121. 
 
THE AEBITEATOR'S AUTHORITY. 209 
 
 referee under the Code may allow amendments to be made to 
 remedy an immaterial variance. But his power is by no 
 means so extensive as that of tlie court.^ Though there is a 
 case wherein he has been permitted to allow the addition of a 
 " new cause of action," which demanded the same sum as that 
 already demanded in the causes alleged.^ But these decisions, 
 it should be remembered, are under the statute. 
 
 In New York it has also been held that either party waives 
 his objection to the' allowance of an amendment by amend- 
 ing his own pleadings to meet the alteration in those of his 
 adversary.^ 
 
 Limitations upon the Power to allovr Amendments by the 
 Defendant. — Similar rules also affect the power of the arbitra- 
 tor to allow amendments of his defence by the defendant. 
 The strict rule is, that if the pleadings could be amended to 
 admit the defence offered, it may be considered by the arbi- 
 trators.* And a case in the Supreme Court of New York would 
 allow amendments before a referee, though they should go to 
 the entire scope and meaning of the defence.^ There is no 
 reason to suppose, however, that the liberality shown to the 
 defendant in this respect would be any greater in proportion 
 than that shown to the plaintiff. Thus a defendant cannot, by 
 amendment or otherwise, rely before the referee on the Statute 
 of Limitations when he had not pleaded it in the cause. ^ 
 
 ■ Power to consider a Claim in Offset. — If no claim in offset has 
 been filed before the cause is referred, the referee cannot admit 
 or consider any such claim.'' And if a claim for unliquidated 
 damages has been filed in offset, which could not be thus 
 
 1 Union Bank v. Mott, 18 How. Pr. 506; 19 id. 267 ; Hoyt v. Hoyt, 8 Bosw. 
 511. 
 
 ■2 Secor V. Law, 9 Bosw. 163. 
 
 3 Ibid. 
 
 * Van Buskirk v. Stow, 42 Barb. 9. 
 
 5 Johnson v. Mcintosh, 31 Barb. 267. 
 
 6 Pord V. Ford, 53 Barb. 525. 
 
 1 Fulton V. Wiley, 32 Vt. 762 ; Woodruff v. Hurson, 32 Barb. 567. 
 
 14 
 
210 THE AEBITRATOR'S AUTHOEITT. 
 
 availed of at law, the arbitrator should reject it from consid- 
 eratiori.i 
 
 The Allowance of Amendments is discretionary. — Motions 
 to amend the pleadings so as to allow the introduction of evi- 
 dence, if within the authority of tftie referee to grant, are 
 addressed to his discretion. No appeal or exception will lie 
 to his decision.^ But qucere, whethen the power of the referee 
 extends to allowing the amendment, or simply to disregarding 
 the defect ? ^ An examination of the cases cited in the discus- 
 sion of this topic of the power of the arbitrator to allow amend- 
 ments will not be found to furnish any satisfactory answer to 
 this query. Sometimes it is said that the arbitrator may per- 
 mit the amendment to be made, sometimes that the scope of 
 his authority extends to the substantive cause of action and 
 defence. But, as matter of technicality and practice, the 
 extent of his authority to allow actual formal amendments, and 
 the manner in which this authority, such as it may be, is to 
 be exercised, are points concerning which no clear information 
 is furnished by the adjudications. 
 
 In New York it was said that, before the Code, a referee 
 had no power to grant any amendments to the pleadings, in 
 an action pending before him. But the Code, § 272, gives 
 him the same powers of this nature as are possessed by the 
 court on the trial of the cause.* 
 
 ■Who may object if the Arbitrator exceeds his Authority. -— 
 Only the party prejudiced by the exercise of excessive authority 
 by the arbitrator is entitled to object to the award by reason 
 of it. The party in whose favor the erroneous action of the 
 referees operates cannot be heard to impeach the validity of the 
 award on this ground.^ A party objected to an award because 
 
 1 Harrison v. Wortham, 8 Leigh, 296. 
 
 2 Woodruff V. Hurson, 82 Barb. 557. 
 
 8 Vide Myers v. York & Cumberland E.R. Co., 2 Curtis C. C. 28, an<c, p. 208. 
 < Ford V. Ford, 53 Barb. 525. 
 
 6 Lyman v. Arms, 5 Pick. 213 ; Galvin v. Thompson, 13 Maine, 367 ; In re 
 Bradshaw and the East and West India Docks, &c., 12 Q. B. 562. 
 
THE ARBITRATOR'S AUTHORITY. 211 
 
 it made certain deductiona from demands presented against 
 him by his adyersary, and assigned to himself certain goods 
 and merchandise. He contended that these acts were beyond 
 the authority of the referees. The court said : " He has no 
 right of complaint ; it was in his favor." ^ 
 
 How the Objection of Excess of Authority may be availed of; 
 Rules of Pleading. — The practice in England appears to be, 
 where tliere has been an excess of authority by the arbitrator, 
 that the party aggrieved thereby may avail himself of the defect 
 by a motion to set aside the award. Russell says : " That 
 the arbitrator has exceeded his authority is often a good 
 ground of motion. It is so in all cases, unless the bad part is 
 clearly separable from the rest of the award and does not affect 
 the good part." ^ T|}is, of course, presupposes that the award is, 
 by some means or other, returnable into court ; for otherwise 
 the court would have no jurisdiction to entertain a motion. If 
 the proceedings be wholly in pais, it is obvious that this defect, 
 like any other, can be availed of in the first instance only by a 
 bill in equity to avoid the award ; or in defence to a suit on 
 the award as hereinafter indicated. 
 
 In this country the fact that an arbitrator in making his 
 award has either acted altogether without authority, or that 
 he has in some part of his award exceeded his authority, may 
 be pleaded and shown in defence to a suit at law upon 
 the bond and award. It is regarded as a defence of an 
 entirely different nature from an attempt to impeach an 
 award on the ground of partiality, fraud, mistake, want of 
 mutuality, certainty, finality, or other defect of the like nature.^ 
 
 1 Lyman v. Arms, 5 Pick. 213. 
 
 2 Russell on Arb., 3d ed. p. 661, citing as instances the following cases, to 
 wit : Tandy v. Tandy, 9 Dowl. 1044 ; Warren v. Green, Ca. temp. Finch, 141 ; 
 Morgan v. Mather, 2 Ves. Jr. 15 ; Boodle v. Davies, 3 Ad. & El. 200 ; Seckham 
 !/. Bobb, 8 Dowl. 167 ; Price v. Popkin, 10 Ad. & El. 139 ; Ross «. Boards, 8 id. 
 290 ; In re Morphett, 2 Dowl. & Low. 967 ; Wood v. WUson, 2 Or. Mee. & R. 241 ; 
 In re Maokay, 2 Ad. & El. 356 ; Turner v. Swainson, 1 Mee. & W. 572. Nearly 
 all these oases have been already stated in the preceding parts of this chapter. 
 
 3 Relyea v. Ramsay, 2 Wend. 602 ; Woodbury v. Northy, 3 Greenl. 85. And 
 
212 THE ARBITEATOE'S AUTHORITY. 
 
 In the famous case of Boston Water Power Company v. Gray,^ 
 the plaintiffs, in an action of covenant broken, counted upon an 
 indenture of submission and the award made thereunder. The 
 general issue was pleaded and joined, and the defendant filed a 
 specification of defence. Excess of authority in divers particu- 
 lars was, among other things, relied upon by the defendant, 
 and no question appears to have been raised as to the sufii- 
 ciency or propriety of the pleadings. 
 
 In a suit growing out of partnership disputes, a reference 
 was had by order of court. ' The report was accepted, and judg- 
 ment rendered thereon, to which one of the parties excepted. 
 As a ground of exception, excess of authority was alleged, and 
 no objection was made to the propriety of this course of pro- 
 ceeding.^ 
 
 In an action of debt upon an arbitration bond, the defend- 
 ant pleaded non est factum, with a brief statement that the 
 award was void for the reason that the arbitrators had exceeded 
 their authority in certain specified particulars. No objection 
 was taken to the form of the plea, or to the propriety of this 
 method of availing of the objection. ^ 
 
 Excess of authority may apparently be availed of in defence 
 against a motion for entry of judgment on an award returned 
 into court.* 
 
 An award having been accepted by the Court of Common 
 Pleas, and judgment rendered thereon, the plaintiff sued out a 
 writ of error, assigning, among other errors, excess of author- 
 ity by the arbitrators in certain particulars. The defendants 
 in error moved to quash the writ, on the ground that the pro- 
 ceedings should have been by petition for a writ of certiorari. 
 
 see Worthen v. Stevens, 4 Mass, 448 ; Culver v. Ashley, 17 Pick. 98 ; Shearer v. 
 Handy, 22 id. 417. 
 
 1 6 Mete. (Mass.) 131. 
 
 2 Cook V. Carpenter, 34 Vt. 121. 
 
 3 Richardson v. Huggins, 23 N. H. 106. 
 
 * Berkshire Woollen Co. v. Day, 12 Gush. 128 ; Boston & Worcester Railroad 
 Corporation v. Western Railroad Company, 14 Gray, 253 ; MerrEl v. Gold, 1 
 Cush. 457. 
 
THE ARBITEATOE'S AUTHOEITY. 213 
 
 The court said it was too late to call in question the proceed- 
 ing by error instead of certiorari. Until the distinction was 
 taken by C. J. Parsons,^ error was most commonly brought in 
 cases more proper for certiorari, but the court appear not to 
 have seen any objection to error in a case like this ; possibly 
 because the judgment is rendered in a common-law court. It 
 is true the judgment here can be only affirmed or reversed ; 
 but that may be either in part or in whole. A venire facias 
 de novo cannot be ordered because there was no writ and no 
 
 jury-^ 
 
 In New Hampshire it is said that when an award is relied 
 upon in bar, an excess of authority on the part of the arbitra- 
 tor in making his award should be taken advantage of by the 
 plaintiff by demurrer.^ 
 
 But in Massachusetts no demurrer was required in a similar 
 case. The action was in contract for labor and materials fur- 
 nished. The answer was an oral submission and a written 
 award, which w^as set forth. Apparently there were no further 
 pleadings in the cause. The court held that the plaintiff was 
 entitled to testify as to what he in fact submitted, and if this 
 showed an excess of authority in the award, then the award 
 was no bar.* 
 
 Evidence as to Excess of Authority. — As a natural Corollary to 
 the rule allowing excess of authority to be pleaded in a suit at 
 law, we find also the rule that parol evidence is admissible to 
 show that arbitrators have gone beyond the authority delegated 
 to them by the submission, and have considered and adjudicated 
 upon matters not comprehended within its terms. The rule 
 holds good, although both the submission and the award be in 
 writing. For testimony to this effect is not offered for the pur- 
 pose of varying the import of a written instrument, but in 
 
 1 In Savage v. Gulliver, 4 Mass. 171. 
 
 2 Lyman v. Arms, 5 Pick. 213. 
 
 " Cheshire Bank v. Rohinson, 2 N. H. 126. 
 * Cook V. Jaques, 15 Gray, 59. 
 
214 THE ARBITRATOR'S AUTHORITY. 
 
 order to show that the acts of the arbitrators did not fall 
 within the \indisputed intendment of that instrument.^ And 
 it has been held that parol evidence is admissible in a suit on 
 an award to show what matters were in fact submitted, 
 where the submission was oral,^ and also to show what matters 
 were brought to the notice of the arbitrators.^ 
 
 The evidence of the arbitrators themselves, which must often 
 be the best and sometimes the only means of proving the fact 
 of excess, appears to be available to the objecting party for this 
 purpose.* It has been held that the arbitrators are competent 
 witnesses to prove what matters were presented before them,^ 
 and what claims were or were not included in their award ;^ 
 also, as to the time when, and the circumstances under which 
 the award was made.''' 
 
 The Arbitrator is the Final Judge of both La-w and Fact. — Un- 
 less otherwise restricted by the submission or rule of court, 
 arbitrators and referees are final judges, not only of all matters 
 of fact, but also of all questions of law which arise in the 
 course of the proceedings before them, or which are involved 
 in the decision of the subject of the submission.^ 
 
 The same rule concerning the authority of an arbitrator is 
 established also in England. ^ Sometimes, it has been said, he 
 
 1 Butler V. Mayor, &c., of New Yol-k, 7 Hill, 329. 
 
 ^ Cook V. Jaques, 15 Gray, 59. 
 
 3 Walker «. "Walker, 1 Wins. (N. C.j No. 1, 259. 
 
 ' Russell on Arb., 3d ed. p. 468 ; Woodbury v. Northy, 3 Greenl. 85. 
 
 6 Spruck V. Crook, 19 111. 415. 
 
 6 Hale V. Huse, 10 Gray, 99. 
 
 1 Woodbury v. Northy, 3 Greenl. 85. 
 
 8 White Mountains Railroad v. Beane, 39 N. H. 107 ; Kleine v. Catara, 2 Gall. 
 61 ; Myers v. York & Cumberland R.R. Co., 2 Curtis C. C. 28 ; Brown v. Clay, 
 31 Maine, 518 ; Boston Water Powfer Co. v. Gray, 6 Mete. (Mass.) 131 ; Johnson 
 </. Noble, 13 N. H. 286 ; Walker v. Sanborn, 8 Greenl. 288; Smith v. Thorndike, 
 lb. 119 ; Whitmore v. Le Ballistier, 35 Maine, 488 ; Sweetsir v. Kenney, 32 id. 
 464 ; Indiana Central R.R Co. v. Bradley, 7 Ind. 49 ; Tyler v. Dyer, 13 Maine, 
 41 ; Haseltine v. Smith, 3 Vt. 535 ; Downer v. Downer, 11 id. 395 ; Bhss v. Rol- 
 lins, 6 id. 529 ; Bigelow v. Newell, 10 Pick. 348 ; Rundell v. La Fleur, 6 Alien, 
 480 ; HaU v. Decker, 51|Maine, 31. 
 
 s Payne v. Massey, 9 J. B. Moore, 666 ; Cramp v. Symons, 7 id. 434 ; 1 Bing. 
 
THE ARBITEATOR'S AUTHORITY. 215 
 
 fulfils the functions of a jury ; ^ sometimes of a judge at Nisi 
 Prius ; ^ sometimes of the court in banc ; ^ sometimes of a 
 master in chancery ; * sometimes of the chancellor himself.^ 
 
 Whether or not the Arbitrator ought to conform to strictly Le- 
 gal Principles. — Cognate to this broad general principle, and 
 often discussed and sometimes confounded with it, is the really 
 distinct matter : by what principles the arbitrator or referee 
 should be guided in making up his decision ? Is he obliged 
 to be governed, at-least so far as his knowledge will permit, by 
 the principles of law, or can he deliberately and intentionally 
 throw these overboard, and determine the controversy accord- 
 ing to what he regards as equity and good conscience ? It will be 
 seen that the rule that he is a final judge both of law and fact, 
 is by no means equivalent to giving him power of the latter 
 description. For he may well be held bound to attempt to 
 decide according to law ; though if his attempt be unsuccessful 
 in the view of a court at law, the result at which he has arrived 
 will yet not be interfered with. It is one thing to say 
 that he must strive to conform to legal principles ; but quite 
 another to say that if he fails to do so in any particular his 
 award shall therefore be void. In too many of the decisions 
 this distinction, substantial and obvious as it is, has not been 
 observed, and the discussion of the subject and the effort to 
 lay down a satisfactory and intelligent rule is thereby rendered 
 needlessly difficult. 
 
 Russell " hazards as the safest general rule that can be drawn 
 from a consideration of the cases, — that an arbitrator should 
 
 104 ; Morgan v. Mather, 2 Yes. 17 ; Dick v. Milligan, lb. 23 ; Armstrong v. Mar- 
 Bhall, 4 Dowl. 593 ; Perriman v. Steggall, 9 Bing. 679 ; Angus v. Retford, 11 Mee. 
 & W. 69 ; 2 Dowl. N. s. 735. 
 
 1 Angus V. Retford, 11 Mee. & W. 69; 2 Dowl. n. s. 736; Lee «. Lingard, 1 
 East, 400 ; Borrowdale v. Kitchener, 3 Bos. & P. 244 ; Bury v. Dunn, 1 Dowl. & 
 Low. 141 ; Bouttilier v. Thick, 1 Dowl. & Ry. 366. 
 
 2 Caila V. Blgood, 2 Dowl. & Ry. 193. 
 8 Allen V. Lowe, 4 Q. B. 66. 
 
 * Knox V. Symmonds, 1 Ves. Jr. 869. 
 s Pitcher v. Rigby, 9 Price, 79. 
 
216 THE AEBITRATOE'S AUTHORITY. 
 
 endeavor to arrive at his conclusions upon the same rules and 
 principles which would have actuated the tribunal or tribunals 
 for which. he is substituted in coming to a decision."^ Thus 
 it is his opinion that at a reference at Nisi Prius the referee 
 should be governed by the principles which a judge at Nisi 
 Prius would lay down for the guidance of the jury. Though he 
 admits that in such a case, where Lord Kenyon thought that 
 the arbitrator had cut the knot rather than unloosed it, accord- 
 ing to strict rules of law, his Lordship expressed no disap- 
 probation.^ 
 
 After remarking the unquestionable fact, that it is hard to 
 reconcile the various statements of judges concerning the prin- 
 ciples by which an arbitrator should be guided, he further lays 
 down another " general rule, that an arbitrator, like every other 
 judge, is bound by the rules of law,^ and that it is beyond his 
 authority to award any thing contrary to law. For the ordi- 
 nary presumption is, that the parties intend to submit to him 
 only the legal consequences of their transactions and engage- 
 ments.* So that when parties refer their legal rights to arbi- 
 tration, the arbitrator must endeavor to award according to 
 law, although a mere mistake in law is rarely fatal to the 
 award." ^ 
 
 But the word legal, he says, is used in " an enlarged sense, 
 for the arbitrator on a general reference should take into his 
 consideration the rights of the parties in equity as well as at 
 common law." ® 
 
 It is with diffidence that I venture to differ from a writer, so 
 thoroughly a master of his subject, upon a point so important. 
 Yet it seems to me that Eussell lays down the rule in 
 
 1 Russell on Arb., 3d ed. p. 111. 
 
 2 Habershon v. Troby, 3 Esp. 38. 
 
 3 Aubert v. Maze, 2 Bos. & P. 375 ; In re Badger, 2 Bam. & Aid. 691. 
 
 * In re Badger, 2 Barn. & Aid. 691 ; Morgan v. Mather, 2 Ves. Jr. 15 ; Young 
 V. "Walter, 9 id. 364. 
 
 5 Russell on Arb., 3d ed. pp. Ill, 112 ; Blennerhassett v. Day, 2 Ball & Beatty, 
 104. 
 
 * Delver v. Barnes, 1 Taunt. 48 ; Craven v. Craven, 7 id. 642. 
 
THE ARBITRATOR'S AUTHORITY. 217 
 
 conformity to what he very justly conceives it should be upon 
 sound abstract principles, rather than in conformity to the cur- 
 rent of adjudication even in England. Certainly the tribunals 
 in the United States have asserted the contrary doctrine ; and I 
 conceive that in this country, the general rule must be admitted 
 to be established, to the effect that arbitrators are at liberty 
 voluntarily and deliberately to disregard the strict principles of 
 law, and to decide according to their general views of what is 
 right, just, and conscientious in the case.^ 
 
 It may be worth while to give the language of the courts in 
 a few instances, as follows : Where the submission does not 
 restrict the arbitrators to decide according to strict principles of 
 law, " they are not bound to decide upon ' mere dry principles 
 of law,' but may make their award ex cequo et hono."'^ " The 
 referees, being judges of the parties' choice, are not obliged to 
 decide upon the strict principles of law, but may disregard 
 them altogether, and adopt certain principles of equity or jus- 
 tice to govern their decision." ^ If under an unqualified sub- 
 mission, " knowing what the law is, the referees choose to 
 disregard it, and decide according to what they think to be the 
 equity and good conscience of the case, the report is not, for 
 this cause, to be rejected." * 
 
 Judge Story gives it as a reason why an arbitrator's decision 
 on matter of law or fact should be final, that under an unre- 
 stricted submission " the reasonable rule seems to be, that the 
 referees are not bound to award upon the mere dry principles 
 of law applicable to the case before them. They may decide 
 upon principles of equity and good conscience, and may make 
 their award ex cequo et bono." He goes on to say that, there- 
 
 1 Tyler v. Dyer, 13 Maine, 41 ; Kleine v. Catara, 2 Gall. 61 ; Sweetsir v. Ken- 
 ney, 32 id. 464 ; HolUngsworth v. Leiper, 1 DaU. 161 ; Hazeltine u. Smith, 8 Vt. 
 585; Downer v. Downer, 11 id. 371 ; Cushman v. Wooster, 45 N. H. 410 ; Boston 
 Water Power Co. v. Gray, 6 Mete. (Mass.) 131 ; Greenough v. Rolfe, 4 N. H.357. 
 
 2 Johnson v. Noble, 13 N. H. 286. 
 
 3 Hazeltine v. Smith, 3 Vt. 535. So also Downer v. Downer, 11 id. 395. 
 * Greenough v. Rolfe, 4 N. H. 357. 
 
218 THE AEBITRATOR'S ATJTHOEITT. 
 
 fore, if the referees mean to take upon themselves the whole 
 responsibility, they may do so without interference by the 
 court.-' 
 
 The referees " had all the powers of any court of law and of 
 any court of equity." It does not appear that they may not 
 have acted " upon their view of the equity and justice of the 
 case." ^ 
 
 It is obvious that the phrase " equity " is not used in the pre- 
 ceding cases in a technical sense, as in the last quotation from 
 Russell. It is not the treatment which a court of equity 
 would give the case which it is said that the arbitrator may 
 give it. The immediate connection of the word with some 
 equivalent or explanatory phrase, like "justice" or "good 
 conscience," shows that the force of the language is broad and 
 liberal. • 
 
 The value of the preceding decisions, as bearing upon this 
 precise point, must be acknowledged to be somewhat diminished 
 by the fact, which becomes obvious on an examination of the 
 whole opinion in nearly every instance, that the court con- 
 founded this matter with the rule of finality, or more properly 
 conclusiveness, in the decision, and treated them as substan- 
 tially the same, or as though the rule of conclusiveness or 
 finality in the decision necessarily and logically drew after it 
 this allowance of latitude in the principles upon which that 
 decision ought to be founded. 
 
 I must also say that I do not think Mr. Russell is much bet- 
 ter supported by the English cases than he would be by those 
 of the United States, did he regard the latter as authorities. 
 The English cases seem, for the most part, to be to the same 
 effect as our own, though in a more clear-headed and satisfac- 
 tory way. For example, it is said that arbitrators " in some 
 
 * 
 
 1 Kleine v. Catara, 2 Gall. 61 ; relying on the foEowing authorities : South 
 Sea Company v. Bumstead, 2 Eq. Ca. Abr. 80 ; Knox v. Symmonds, 1 Ves. Jr. 
 369 ; Delrer v. Barnes, 1 Taunt. 47 ; for all which see post. 
 
 2 Sweetsir v. Kenney, 32 Maine, 464. 
 
THE ARBITRATOR'S AUTHORITY. 219 
 
 respects have a greater latitude, not being confined within the 
 rules of law or equity, and therefore may make such allow- 
 ances as could not be admitted in courts of judicature." ^ 
 Lord Thurlow said, " the arbitrator has a greater latitude than 
 the court, in order to do complete justice between the parties. 
 For example, he may relieve against a right which bears hard 
 upon one party, but which, having been acquired legally and 
 without fraud, could not be resisted in a court of justice." ^ 
 Chief Justice Mansfield said : " In a reference of all matters 
 in difference an arbitrator ought to consider not legal only, but 
 also equitable demands, — demands of all sorts. . . . Besides, if 
 the arbitrator is not right in the point of strict law, he is cer- 
 tainly right in every other point. The sum of £100 was really 
 due in conscience ; the court ought not to set aside such an 
 award unless they are compelled so to do, ^d I recollect no 
 case where an award has been set aside upon such a sug- 
 gestion."^ ' 
 
 Russell himself, citing the preceding and other cases,* is 
 obliged to say that " it has been said by judges of great celeb- 
 rity that under a general reference of all matters in difference, 
 the arbitrator is not confined within the rules of law and 
 equity, that he has greater latitude than the courts of law, in. 
 order to do complete justice between the parties, and that he 
 may take all moral questions into consideration in forming 
 his judgment, and decide according to equity and good con- 
 science." ^ And he adds that " in one instance the Court of 
 Queen's Bench is said to have laid down the following rule : 
 ' that when arbitrators knowing what the law is, or laying it 
 entirely out of their consideration, make what they conceive, 
 under all the circumstances, to be an equitable decision, it is 
 
 1 South Sea Company v. Bumstead, 2 Eq. Ca. Abr. 80, per Talbot, Chanc. 
 
 2 Knox V. Symmonds, 1 Ves. Jr. 369. 
 8 Delver v. Barnes, 1 Taunt. 47. 
 
 * Young V. Walter, 9 "Ves. Jr. 364 ; Hanson v. Liversedge, 2 Vent. 242. 
 5 RusseU on Arb., 3d ed. p. 113. 
 
220 THE ARBITEATOE'S AUTHORITY. 
 
 no objection to the award that in some particular point it is 
 manifestly against law.' " ^ Also a dictum of Wilde, C. J., 
 in a recent case, that the courts will not set aside an award , 
 for a mistake in law, unless they can distinctly see on the 
 face of the award that the arbitrator, professing and intend- 
 ing to decide according to law, has unintentionally and mis- 
 takenly decided contrary to it,^ may be quoted to the same 
 effect. 
 
 " But," he says, " these and similar general observations 
 must, in general at least, it is humbly suggested, be considered 
 and explained in reference to the matters in dispute in the par- 
 ticular case, showing the intention of the parties to give the 
 arbitrator power beyond law." ^ Yet even the slender shadow 
 of authority,^ which he furnishes for this rule, goes no further 
 than to show ths||J; in one instance where the arbitrators did 
 voluntarily decide contrary to rules of law, they were probably 
 empowered to do so by the submission. It certainly does not 
 show negatively and generally that where they are not so 
 empowered they have not such authority. 
 
 Po'wer of Arbitrator to save Questions of La^w for the Court. 
 — It is very common for an arbitrator to refrain from exercis- 
 • ing his full authority as a final judge of points of law arising 
 in the conduct or decision of the arbitration. He often finds 
 the facts and decides in the alternative, leaving the question 
 of law to be determined by the regularly constituted tribunals. 
 This matter is discussed elsewliere in its appropriate place.^ It 
 is only necessary here to remark that he is under no obligation 
 to take this course, even though requested so to do by a party. 
 
 1 Ainsley v. GofF, B. E. 1799 ; Kyd on Awards, 351. 
 
 2 FuUer v. Fenwick, 3 C. B. 705. 
 
 3 Eussell on Arb., 3d ed. p. 118. 
 
 * Ainsley v. Goff, supra. 
 
 * See ante, Chapter V. pp. 140, 141. " The referee may leave the question of 
 admissibility to the court ; " also the discussion concerning awards in the alter- 
 native : Boston Water Power v. Gray, 6 Mete. (Mass.) 131, p. 168. 
 
THE ARBITKATOR'S AUTHORITY. 221 
 
 An action was referred to an arbitrator, with the stipvUation 
 that he should " be at liberty to raise any point of law for the 
 opinion of the court, at the request of either of the said par- 
 ties." He was requested to state a certain question for the 
 opinion of the court, but refused to do so. The court held the 
 power to be distributive, and that he was not bound to raise any 
 question of law. The clause was to be construed as enabling, 
 not as compulsory.! 
 
 An Arbitrator may consider Defences not strictly Legal. -^ The 
 rule that an arbitrator is not bound even to attempt to de- 
 cide in conformity with law derives some degree of corrob- 
 oration from the fact, as shown by some of the cases already 
 stated in this connection, that he may consider matters by 
 way of defence or otherwise, which could not have been 
 relied upon for the same purpose at law, or probably even in 
 equity. 
 
 Though an arbitrator, on questions of mixed law and fact, 
 has made allowance for transactions apparently illegal, as pre- 
 miums of insurance on a voyage to a hostile port, the court 
 will not set aside the award.^ And arbitrators may sometimes 
 award a sum to be paid in consideration of a claim not enforce- 
 able at law.^ 
 
 Where arbitrators are required by the submission to pass 
 upon " the construction " of a contract, and to make it " the 
 basis " of a settlement of disputes between the parties, their 
 decision will be final, even though they appear to have exceeded 
 in favor of one party the strict and literal provisions in his 
 behalf contained in the contract.* 
 
 If it is contended that a deed is erroneously drawn up, the 
 arbitrator may, in virtue of his equitable authority, reform it, 
 
 1 Wood V. Hotham, 5 Mee. & W. 674. 
 
 'i Wohlenberg v. Lageman, 6 Taunt. 254. 
 
 3 Mitchell V. Bush, 7 Cow. 185. 
 
 * Porter v. Buckfield Branch R.R., 32 Maine, 539. 
 
222 THE AEBITRATOR'S AUTHORITY. 
 
 unless he is called upon only to decide upon the construction ; 
 in which case he must take it as it stands.^ 
 
 Rules of Court Practice. — Mere rules of practice established 
 by the courts an arbitrator is, of course, never bound to regard 
 or conform to.^ 
 
 1 In re Keene & Atkinson, Bxoh. Ap. 16, 1847, stated in Russell on Arb., 3d 
 ed. p. 112. 
 
 2 RusseU on Arb., 3d ed. p, 112 ; In re Badger, 2 Barn. & Aid. 691. 
 
CHAPTER YII. 
 
 DURATION OP THE ARBITRATOR'S AUTHORITY. 
 
 When the duration of authority is limited by the submission. 
 Construction of specific phrases. 
 When the submission or rule is silent as to time. 
 Exhaustion of authority by making an award or report. 
 Effect of vacating the award. 
 An arbitrator cannot refuse to deUrer his award. 
 Exceptions to the foregoing general rule. 
 Revocation in fact and in law. 
 I. Revocation in fact. 
 
 Time for making revocation by a party. 
 
 Stipulation that the submission shall be irrevocable. 
 
 Revocation by one of several who jointly constitute only one party. 
 
 Revocation by joint consent of both parties. 
 
 The revocation must be notified. • 
 
 When the right of revocation does not exist. 
 
 The revocation of reference by rule of court. 
 
 Eormality of revocation by a party. 
 n. Revocation in law. 
 
 1. By death of party. 
 
 2. By death of an arbitrator. 
 
 3. By marriage of a feme sole, a party. 
 
 4. By lunacy of a party. 
 
 6. By arbitrator's refusal to act. 
 
 6. By the institution of a suit. 
 
 7. By neglect to perform a preUminary act. 
 Revocation through the instrumentality of a stranger. 
 Revocation by Congress. 
 
 Revocation by an agent. 
 
 Damages may be claimed for revocation. 
 
 The measure of damages. 
 
 Pleading revocation. 
 
 EflTect of submission ceasing to bind a party. 
 
 When the Duration of Authority is limited by the Submis- 
 sion. — If the submission or rule of court names any time 
 within which the award or report is to be made, the authority 
 of the referees or arbitrators ceases with the expiration of that 
 time. After it has elapsed, they have no power to do any act 
 
224 DURATION OF THE AEBITRATOE'S AUTHORITY. 
 
 whatsoever in the matter of the arbitration, or in relation to 
 the subject-matter thereof.^ 
 
 An exception to this rule, and probably the only exception 
 that can be found to it, is furnished by an early Pennsylvania 
 case, where the rule of court required the referees to return 
 their report to the then ".next term." It was held that if they 
 neglected to .do so, they might return it to any other subse- 
 quent term, or to an adjourned court as part of a term.^ 
 
 Of course there may be. an extension of the time, made by 
 the parties themselves, beyond the limitation first set. This 
 extension may either be express, by a direct agreement to 
 extend, or it may be by a waiver of the stipulation as to time, 
 which will be inferred if the parties proceed with the arbitra- 
 tion without objection, after the time has elapsed. But it 
 must be the act of the parties themselves. In Connecticut 
 the court itself is not allowed to extend the time named in a 
 submission or reference entered into in a pending cause by 
 rule and agreement of parties, unless the parties also agree to 
 the extension.^ 
 
 But in Maine it is said, generally, that the cases which show 
 that recommitment cannot be ordered under a submission in 
 pais, where the arbitrators are restricted as to time, or where 
 the execution of their power puts an end to their authority, do 
 not furnish precedents in point where the submission is by 
 rule of court. The court may recommit the report or award, 
 not only in order that errors in form may be corrected, but 
 even when the objection extends to the substantial merits of 
 the matter in controversy, and a re-examination of the whole 
 subject is deemed expedient.* 
 
 It seems almost needless to remark that the arbitrator has 
 
 1 White V. Puryear, 10 Yerg. 441 ; Brower v. Kingsley, 1 Johns. Ca. 334 ; Hall 
 V. Hall, 3 Conn. 308 ; White v. Kemble, 2 Penn. 349 ; Marshall v. Powell, 9 Q. B. 
 779. 
 
 2 Shaw V. Pearce, 4 Binn. 485. 
 
 3 HaU V. Hall, 3 Conn. 308. 
 
 * Cumberland v. Inhabitants of North Yarmouth, 4 Greenl. 459. 
 
DURATION OF THE ARBITRATOR'S AUTHORITY. 225 
 
 no authority, by his own sole action, to extend the limit set to 
 his functions in point of time. 
 
 Whore parties agreed that a valuation of crops should be 
 made on a certain day named, the time was considered to be 
 of the essence of the contract. A valuation which had been 
 made after that day, was declared not to be binding.^ 
 
 Construction of Specific Phrase^. — If a submission give a 
 certain time after its execution, the day of execution is not 
 counted.2 If it give " until" a certain day, the arbitrator anay 
 take the whole of that day.^ The word " months," without 
 explanation from the context, means lunar months.* 
 
 V/hen the Submission or Rule is silent as to Time. — If no 
 time is named in the submission within which the award is to 
 be made, it is said that the arbitrators may take what time 
 they please.^ But this privilege is subject to the limitation 
 that they must not, against the will of the parties, inflict an 
 unreasonable delay. At the request of either party they are 
 bound, within a reasonable time, to render an award,; and 'their 
 refusal or neglect to do so would justify the revocation by 
 either contestant of their authority in the premises.^ But 
 the revocation is essential. The authority does not terminate, 
 without this specific act, simply because an unreasonable time 
 has elapsed. Consequently, in an action of debt on an ^ward 
 made by arbitrators upon a submission in which no time for 
 making the award is named, a plea that the arbitrators did not 
 make the award within a reasonable time, is ill.'^ 
 
 In like manner, if an order of reference in a Us pendens 
 designates no time for the return of the report, it may continue 
 
 1 Marshall v. Powell, 9 Q. B. 779. 
 
 '■* In re Higham v. Jessop, 9 Dowl. 203. 
 
 3 Kerr v. Jeston, 1 Dowl. n. s. 538; Knox v. Simmonds, 3 Bro. Ch. Ca. 358. 
 
 /» In re Swinford, 6 Maule & Sel. 226. 
 
 5 Small V. Thurlow, 37 Maine, 504 ; Harrington v. Rich, 6 Vt. 666 ; Rogers 
 V. Tatum, 1 Dutcher, 281. 
 
 <> Small V. Thurlow, 37 Maine, 504 ; White v. Puryear, 10 Yerg. 441 ; Curtis 
 V. Potts, 3 Maule & Sel. 145. 
 
 ' Curtis V. Potts, 3 Maule & Sel. 145. 
 
 15 
 
226 DURATION OF THE AEBITEATOR'S AUTHORITY. 
 
 in force indefinitely.^ But if the referees delay unreasonably, 
 the court will, upon application, grant a rule ordering them 
 eitlier to report or to show cause why an attachment should 
 not issue against them.^ 
 
 Exhaustion of Authority by making an ATvard or Report. — 
 "When the arbitrator or Referee has made, or, as it is said in 
 some cases, has made and published, his award or report, as a 
 completed instrument, his power is wholly at an end. He has 
 exhausted his authority. He is thoroughly functus officio. 
 He can do nothing more in reference to the arbitration or the 
 subject-matter. He cannot reopen the case, nor make a new 
 or supplemental award or report, nor alter or amend the award 
 or report already made, nor file additional, explanatory, alter- 
 ative, or amendatory documents. What he has done must 
 stand or fall, without further aid or assistance from him. He 
 can neither support nor impeach it.^ 
 
 Arbitrators had made and delivered an award, in which some 
 of them apparently joined with reluctance. Two of them tes- 
 tified afterwards that they were misled, and did not intend to 
 award as they had done, and they procured another meet- 
 ing to correct the award in this respect. The court said that 
 the first award " exhausted the powers of the arbitrators, and 
 they had no more power to make a subsequent award upon 
 the same subject, without the consent of the parties, than they 
 would have had to make an award without any submission." 
 The admission of the testimony of the arbitrators was also 
 declared to have been wholly improper.* 
 
 1 Harding v. Wallace, 8 B. Monr. 536 ; Tyson v. Robinson, 3 Iredell, 333 ; 
 White V. Puryear, 10 Yerg. 441. 
 
 2 Stafford v. Heskett, 1 Ward, 71 ; Brower v. Kingsley, 1 Johns. Ca. 334. 
 
 3 Bayne v. Morris, 1 Wall. 97 ; Woodbury v. Northy, 3 Greenl. 85 ; Clement 
 V. Eohraback, 15 Penn. St. 116 ; Aldrich v. Jessiman, 8 N. H. 516 ; Indiana 
 Central R.R. Co. u. Bradley, 7 Ind. 49 ; Lansdale v. Kendall, 4 Dana, 618 ; 
 Cleaveland a. Dixon, 4 J. J. Marsh. 226 ; Bigelow v. Maynard, 4 Cush. 317 ; 
 Ward u. Gould, 5 Pick. 291 ; Doke u. James, 4 Comst. 567 ; Smith v. Smith, 
 28 111. 56 ; Fitzgerald «. Fitzgerald, Hardin, 227 ; French v. Moseley, 1 Littell, 
 248 ; Butler v. Bogles, 10 Humph. 155 ; Brooke v. Mitchell, 6 Mee. & W. 473 ; 
 Henfree v. Bromley, 6 East, 309 ; Trew a. Burton, 1 Cr. & Mee. 533. 
 
 * Doke V. James, 4 Comfit. 667. 
 
DURATION OF THE ARBITRATOR'S AUTHORITY. 227 
 
 A second award, which, by a note annexed to it, the arbitra- 
 tors said they "considered to be a true explanation of their 
 judgment, and to fix the bounds of the land in controversy," 
 was held to be a mere nullity. By reason of the well-settled 
 rule, that testimony or afiidavits of xeferees or arbitrators are 
 inadmissible to explain or correct their award.^ 
 
 A Pennsylvania statute reqviired an account to be annexed 
 to a report of referees. The report was filed, and on the next 
 day the account was filed. It was held that this was insufS- 
 cient. The two should have constituted one document, and 
 been filed together. The filing of the account was too late.^ 
 
 Where two insti'uments, each purporting to be an award, 
 had been prepared, and been delivered respectively to the par- 
 ties, and were afterwards found to differ materially, it was held 
 that the award was bad. For by the making of one of these papers 
 (whichever was in fact made earlier), the power of the arbitra- 
 tors was at an end. But since both were delivered together, it 
 was impossible to ascertain which was the actual award, and 
 both must be construed as one transaction, which would then 
 be avoided by the variance ; nor would any subsequent deter- 
 mination or selection between these two, though made by the 
 arbitrators, fall within the submission, since they had already 
 exhausted the powers conferred by it upon them.^ 
 
 Arbitrators drew up duplicate instruments setting forth their 
 award, in each of which they made, in a certain part only, an 
 error in the name of one of the parties. In reading one of 
 the instruments, by way of publication to the parties, the error 
 was discovered and corrected in it. But the correction was not 
 made in the other duplicate, which was delivered to one of the 
 parties. An effort was made, on the strength of the decision 
 in Green v. Lundy (jujprd), to set aside the award for vari- 
 ance. But the court distinguished the cases, and refused the 
 
 1 Aldrich v. Jessiman, 8 N. H. 516. 
 
 2 Clement v. Rohraback, 15 Penn. St. 116. 
 
 3 Green v. Lundy, Coxe, 435. 
 
228 DURATION OF THE ARBITRATOR'S AUTHORITY. 
 
 application : First, becaxise no doubt could have reasonably 
 rested on the intention of the arbitrators ; their mistake was 
 evident, and could be rectified without the aid of parol evi- 
 dence. Second, because the publication of the first and cor- 
 rected instrument " formed a complete execution of the power " 
 of the arbitrators, whereby " their authority terminated." The 
 delivery of the other duplicate " was a superfluous act, and 
 superflua non nocent." ^ 
 
 Effect of Vacating the Award. — If the award or report is va- 
 cated or declared to be void, the authority of the arbitrator 
 or referee is not thereby revived. He cannot again hear the 
 case, unless he is appointed afresh.^ 
 
 An Arbitrator cannot refuse to Deliver his Award. — After arbi- 
 trators have duly executed their award, and published it to the 
 parties, so that they are really functi officio, and have no more 
 to do about it, they cannot destroy its validity as a perfect 
 instrument, and ready to be sued upon, by wrongfully with- 
 holding it from the possession of the parties, or either of 
 them.^ 
 
 Exceptions to the foregoing general Hule. — Exceptions, prop- 
 erly so called, to the foregoing rule, tliat the arbitrator after 
 making his award can do no further act in the premises, are 
 very rare. The most important is furnished by the cases which 
 allow the affidavit of an arbitrator to be introduced to show 
 some simple error in fact, like a miscalculation. These will be 
 hereafter discussed in the chapter concerning Mistakes in Law 
 and Fact. 
 
 A solitary case in Vermont also breaks through the rigid 
 application of the rule, as follows : Eeferees had made an error 
 in computation, and discovered it before the sitting of the court 
 to which their report was returnable; a supplemental report 
 
 1 Schenck v. Voorhees, 2 Halst. 383. 
 
 " Calvert v. CaUert, 18 Md. 73 ; Russell on Arb., 3d ed. p. 132 ; and see 
 De Groot v. The United States, 5 Wall. 419. 
 
 ' Thompson v. Mitchell, 35 Maine, 281 ; Patton v. Baird, 7 Ired. Eq. 255. 
 
DURATION OF THE ARBITRATOR'S AUTHORITY. 229 
 
 amending the error was allowed to be filed. ^ But a contrary 
 rule has been asserted and enforced in Maine ; ^ and the con- 
 trary is also the established doctrine in England. Lord Ellen- 
 borough said, " that the arbitrator's authority having been once 
 completely exercised, pursuant to the terms of the reference, 
 was at an end, and could not be revived again, even for the 
 purpose of correcting a mistaken calculation of figures," which 
 might indeed include the essential merits of the case. In this 
 instance, inasmuch as the original award was admitted to be 
 erroneous, " it was agreed that both the awards should be set 
 aside." ^ 
 
 Recommitment by order of court for the correction of an 
 error, or for a rehearing of the case, may also be said to con- 
 stitute an exception to tlie general principle. But it is an 
 exception of which the extent and operation is so well under- 
 stood, that it introduces no element of uncertainty into the 
 matter. 
 
 RevQcation in Fact and in Law. — At any time before the award 
 is actually made, the authority of the arbitrators may be- re- 
 voked. Revocation is of two kinds : revocation in fact, and 
 revocation in law. Revocation in fact, or express revocation, 
 is made by the parties to the submission, or by one of them, by 
 the declaration that they or he will not longer abide by the 
 agreement of submission. Revocation in law,' or by implica- 
 tion, is the effect or consequence which the law imposes as the 
 . necessary legal sequent of some intervening occurrence. As, 
 for example, if a party to the submission die, the law declares 
 the arbitration to be at an end.* Though it is not necessary 
 that the event should be thus beyond the control of the party. 
 It may be brought about by his own deliberate act, as will be 
 seen in the further discussion of the subject. 
 
 1 Hazeltine v. Smith, 3 Vt. 535. 
 
 2 Woodbury v. Northy, 3 Greenl. 85. 
 
 s Irvine v. EInon, 8 East, 54 ; afad see Ward v. Dean, 3 Barn. & Ad. 234 ; 
 Jn re Hall and Hinds, 2 Man. & Gr/847. 
 
 < Sutton V. TyrreU, 10 Vt. 91/ Green v. Pole, 6 Bing. 443. 
 
230 DURATION OP THE ARBITRATOR'S AUTHORITY. 
 
 I. Revocation in Fact — Time for making Revocation by a 
 Party. — As a general rule, any person who is a party to a sub- 
 mission may, at any time before award made, revoke the 
 authority of the arbitrator.^ For this purpose it makes no 
 difference whether the submission be by deed, by parol, or, 
 according to some authorities, by rule of court. ^ 
 
 Stipulation that the Submission shall be Irrevocable. — Nor 
 is the rule affected by a stipulation, embodied in the submis- 
 sion, providing that it shall be irrevocable. For a man cannot 
 by his own act make that power or aiithority not counter- 
 mandablc which is by law and of its own nature countermand- 
 able.^ 
 
 Revocation by one of several who jointly constitute only one 
 Party. — It has been said that a person who is joined with others, 
 so that all of them constitute only one party to the submis- 
 sion, may, by his own sole act, without the concurrence of his 
 associates, revoke tlie arbitrator's authority.* Tlie language of 
 the court was : " It is a general rule, that any party, or any one 
 of a party, may revoke his submission before award made." 
 But so far as the words in italics are concerned, the statement 
 of the law is an ohiler dictum. The question of the power 
 of " one of a party " to revoke was not raised by the case. 
 And, upon the other hand, this doctrine has been denied, and it 
 has been said -that, where one or more persons jointly consti- 
 tute the party of one part, revocation can only be by them 
 
 1 Allen V. Watson, 16 Johns. 205 ; Marseilles v. Kenton's Executors, 17 Penn. 
 St. 238; Erie v. Tracy, 2 Grant's Ca. 20; Aspinwall v. Tousey,'_2 Tyler, (Vt.) 
 828 ; Tyson v. Robinson, 3 Iredell, 333 ; Peters' Adm'r v. Craig, 6 Dana, 307 ; 
 Leonard v. House, 15 Geo. 473 ; Bank of Monroe v. Widner, 11 Paige, 529. 
 
 2 Power V. Power, 7 Watts, 205; and see cases cited supra; also Newgate v. 
 Degelder, 2 Keb. 10, 20, 24 (writing) ; Milne u. Gratrix, 7 East, 607 (bond) ; 
 Warburton v. Storr, 4 Barn. & Cr. 103 (deed) ; Green v. Pole, 6 Bing. 448 (rule 
 of court). 
 
 8 Tobey v. County of Bristol, 8 Story, 800 ; Power v. Power, 7 Watts, 205 ; 
 Hide V. Petit, 1 Ca. in Ch. 185 ; 2 Ereem. 133 ; Marsh v. Bulteel, 5 Barn. & Ad. 
 507 ; 1 Dowl. & Ry. 106 ; Vynior's Case, 8 Eep. 162. 
 
 * Brown v. Leavitt, 26 Maine, 251. 
 
DURATION 01? THE ARBITRATOR'S AUTHORITY. 231 
 
 jointly. An authority jointly given must be jointly taken 
 away.^ 
 
 Revocation by Joint Consent of both Parties. — If the revoca- 
 tion by the parties be by joint consent, it may, provided the 
 proceedings be not by rule of court, be either of the entire 
 submission, and therefore of the entire authority of the arbi- 
 trators ; or it may be only of some portions of the submission, 
 in which case it operates only as a curtailment of the author- 
 ity of the arbitrators.^ This is substantially equivalent to the 
 power of the parties, acting together, to alter the submission 
 at any time pending the proceedings. If it be by joint con- 
 sent, it has been said that it may take place even after the 
 award is made.^ But, obviously, this is not properly a revoca- 
 tion of the authority, since by the very act of making the 
 award, the arbitrator becomes functus officio, and his author- 
 ity no longer exists. Such an agreement is in fact an agree- 
 ment to annul the award, and allow the matter in dispute to 
 stand precisely as it did before the submission was entered 
 into. Properly speaking, revocation must, in the nature of 
 things, take place before the award is made. That it should 
 take place afterward, is as much against possibility as it is 
 against law. 
 
 The Revocation must be Notified. — A revocation is not com- 
 plete until it has been notified to the arbitrators. Merely 
 writing and signing a revocation is an incomplete act, and 
 insufficient fully to effect the purpose.* 
 
 "When the Right of Revocation does not Ezist. — But though 
 generally a submission is revocable, being assimilated by the 
 courts to any other power which is naked and without consider- 
 ation, yet the rule may fall with the reason for the rule. Ac- 
 cordingly where one party had agreed to abandon, and in fact 
 
 1 Robertson v. M'Niel, 12 Wend. 578 ; Wilde v. Vinor, 1 Brownl. 62 ; Kyd 
 on Aw. p. 30. 
 
 2 Varney v. Brewster, 14 N. H. 49. 
 
 8 Clement «. Hadlock, 13 N. H. 185. 
 
 * Allen V. Watson, 10 Johns. 205 ; Brown v. Leavitt, 26 Maine, 251. 
 t 
 
232 DUEATION OF THE ARBITRATOR'S AUTHORITY. 
 
 had abandoned, certain proceedings which he had instituted in 
 chancery to compel an accounting by the other, upon consider- 
 ation that the other would enter into a submission of the 
 matters in difference, it was held that the undertaking of the 
 other was upon sufficient consideration, and he could not annul 
 it by revoking the submission.^ 
 
 And where, as preliminary to'entering into a submission in a 
 is pendens, one party agreed to waive a default which he was 
 entitled to against his adversary, it was said that the adversary 
 would not afterward be allowed to revoke ; or, at least, not un- 
 less he abandoned all the benefits of this stipulation to waive 
 his default and allow an answer to be filed. ^ 
 
 No Revocation of Reference by Rule of Court. — It is said that 
 a reference by rule of court is irrevocable by act of the parties 
 (though revocable, of course, by the court upon good cause 
 shown), and this too although it includes other matters besides 
 those actually involved in the pending cause.^ " For tlie object 
 is to place the parties in a situation that either may compel the 
 other to make a final settlement of the dispute." * At any 
 time before the agreement is actually made a rule of court, it 
 remains open to revocation ; but to revoke it afterward would, 
 it has been said, constitute -a contempt.^ 
 
 Formality of Revocation by Party. — The formality of the rev- 
 ocation must follow and conform to the formality of the sub- 
 mission. Thus, if the submission be under seal, so also must 
 be the revocation ; if the submission be in writing, the revoca- 
 tion must be written ; but if the submission be only verbal, 
 then the revocation may be verbal also. If this rule be not 
 complied with, a revocation which is insufficient under it will 
 
 1 McGheehen v. Duffield, 5 Penn. St. 497. 
 
 2 Bank of Monroe v. Widner, 11 Paige, 529. 
 
 " Dexter v. Young, 40 N. H. 130; Tyson v. Robinson, 3 Ired. 838; Ferris v. 
 Munn, 2 N. J. 161 ;^Haslcell v. Wliitney, 12 Mass. 47 ; Cumberland v. North 
 Yarmouth, 4 Greenl. 459 ; but see Bank of Monroe v. Widner, 11 Paige, 529. 
 
 * Bray v. English, 1 Conn. 498. 
 
 5 Frets V. Frets, 1 Cow. 335; but see ante, p. 230, n. 2. 
 
DURATION OF THE AEBITEATOR'S AUTHORITY. 233 
 
 be of no effect.^ Though Russell says, this is not " clearly 
 determined." ^ In pleading a revocation of a submission en- 
 tered into by bonds, the fact that the revocation was also under 
 seal must be averred, otherwise a demurrer will be sustained.^ 
 
 But it is said in an old case that, if a person revoke in a 
 manner which is in itself insufficient, as if he revoke orally a 
 written submission, yet if neither the arbitrator nor the other 
 party object at the time to the sufficiency of the revocation, 
 the revoking party is thereafter estopped to deny its validity in 
 an action brought against him to recover damages for his 
 breach of his agreement.* 
 
 The instrument of revocation need riot be formal, or even 
 grammatical in its language, provided a clear intention to revoke 
 can be gathered from the entire document, full operation will 
 be given to it.^ 
 
 II. Revocation in Law. — The nature of revocation in law, 
 or by implication, as it is sometimes called, has been already 
 described. Instances of its occurrence are as follows : — 
 
 1. By Death of a Party. — The most familiar case in which it 
 talces place is where one of the parties to the submission dies 
 pending the arbitration. As a general rule, this occurrence is 
 a revocation of the arbitrator's authority.^ 
 
 Where a partnership is party to a submission, and pending 
 the arbitration one of the partners dies, it. has been held to be 
 competent for the survivors to proceed with the submission, in 
 
 1 Howard a. Cooper, 1 Hill, 44 ; Relyea v. Ramsay, 2 Wend. 602 ; Sutton v. 
 Tyrrell, 10 Vt. 91 ; MuUins v. Arnold, 4 Sneed, (Tenn.) 262; Brown v. Leavitt, 
 26 Maine, 251. But see "Wallis u. Carpenter, 13 Allen, 19 ; French v. New, 20 
 Barb. 481. 
 
 2 Russell on Arb., 3d ed. p. 144 ; and see Barker v. Lees, 2 Keb. 64. 
 
 3 Van Antwerp v, Stewart, 8 Johns. 125. 
 * Hawley v. Hodge, 7 Vt. 237.' 
 
 5 Frets V. Frets, 1 Cow. 335. 
 
 6 Marseilles v. Kenton's Executors, 17 Penn. St. 238 ; Power v. Power, 
 7 Watt's, 205. Dexter v. Young, 40 N. H. 130 ; Tyson v. Robinson, 3 Iredell, 
 333 ; Cain v. Pullam, 1 Hay. 173 ; Tyler v. Jones, 3 Barn. & Cr. 144 ; President, 
 &o. V, Van Reenen, 1 Knapp, Pr. C. Eep. 83 ; Caledonian Railway Co. v. Lock- 
 hart, 3 Macq. 808. 
 
234 DURATION OF THE ARBITRATOR'S AUTHORITY. 
 
 like manner as it is competent for them to submit anew. If 
 the submission is by parol, and the surviving partners expressly 
 . direct the arbitrator to proceed after the decease, they cannot 
 afterward set up the decease as a revocation of authority.^ 
 But semble that this case would be no authority for holding 
 the estate of the deceased partner to be responsible for the 
 fulfilment of the award. 
 
 Where several persons constitute the party of the one part, 
 and one of these persons dies, it is said, by Russell, to be 
 " very questionable, as a general proposition of law," whether 
 the submission will be thereby avoided as to the rest.^ 
 
 But if the submission be by rule of court in a lis pendens, 
 the result of death may be different.^ 
 
 Death of a party occurring after the return of an award into 
 court and rendition of an interlocutory decree thereon, but 
 before entry of a final decree, does not operate as a revocation. 
 The award remains binding upon the representatives of the 
 deceased party.* But in North Carolina, the death of a party 
 occurring after the report had been returned into court, but 
 before it had been confirmed, whereby an abatement of the 
 suit was brought about, was held to prevent the confirmation 
 of the award.® 
 
 If the action survives ; ^ or if the administrator of the de- 
 ceased goes on before the referee ; "^ or becomes a party to the 
 action ; ^ or revives and proceeds with the suit ; ^ the award 
 will be good. 
 
 2. By Death of an Arbitrator. — Another case in which revo- 
 
 ' Emerson v. Udall, 8 Vt. 357 ; and see Power v. Power, 7 Watts, 205. 
 ^ Russell on Arb., 3d ed. p. 159, et seq., where the English cases are discussed. 
 I have found no American decision to this point. 
 
 ^ Freeborn v. Denman, 3 Halst. 116 ; and cases post. 
 * Baker's Heirs v. Crockett, Hardin, (Ky.) 388. 
 
 5 Farmer v. Frey, 4 M'Cord, 160. 
 
 6 Bacon v. Crandon, 15 Pick. 79 ; and see Edmunds v. Cox, 2 Chitt. 432. 
 ^ Ibid. 
 
 ^ Ruston V. Dunwoody, 1 Binn. 42. 
 
 " Wheatley ;;. Martin's Adm'r, 6 Leigh, 62. 
 
DURATION OF THE AEBITRATOE'S AUTHORITY. 235 
 
 catiou is effected by operation of law is where an arbitrator or 
 referee dies before award made.^ If lae be one of several, this 
 event will operate as a revocation of the power of his associates,, 
 even though the submission would in terms enable them to 
 act either jointly or severally .^ 
 
 3. By Marriage of a Feme Sole, a Party. — Another instance 
 is the marriage, pending the arbitration, of a feme sole, a party 
 to the submission.^ 
 
 It was laid down generally in Vermont, in 1839, by Judge 
 Redfield, that " there can be but little doubt that if a feme sole, 
 after submitting to arbitration, intermarry before the award, 
 . the power of the arbitrator ceases." In the especial case 
 the /erne sole was an administratrix, and by statute her power 
 as such was " extinguished by her marriage." It was held 
 that the power she had conferred upon the arbitrators, and upon 
 an attorney to appear and conduct the case before them, ex- 
 pired simultaneously with this extinction of her own power.* 
 
 The same rule obtains in England.^ 
 
 If one of the parties be a feme sole, her marriage will avoid 
 the submission as to all.^ Since, however, it is her voluntary 
 act, it is a breach of her agreement to submit, and subjects 
 herself and her husband to an action.'^ 
 
 4. By Lunacy of a Party. — Another instance would be, 
 where one of tlie parties to the submission should become a 
 lunatic. Though it should be said that this was mentioned 
 only by way of example, in the cited case, and was not the 
 event which had actually occurred.^ 
 
 I Sutton a. Tyrrell, 10 Vt. 91 ; Crawshay v. Collins, 8 Swanst. 90. 
 
 ' Potter V. Sterrett, 24 Penn, St. 411. 
 
 3 Sutton V. Tyrrell, 10 Vt. 91 ; Marseilles v. Kenton's Executors, 17 Penn. St. 238. 
 
 * Abbott V. Keith, 11 Vt. 525. 
 
 5 Charnley v. Winstanley, 5 East, 266 ; M'Can v. OTerrall, 8 CI. & Kin. 30 ; 
 Andrews v. Palmer, 4 Barn. & Aid. 250 ; Saocum v. Norton, 2 Keb. 865. 
 
 •> So say the old authorities : Com. Dig. Arb. D. 5 ; White v. Gifford, BoUe's 
 Abr. Auth. E. 4, p. 833 ; Bacon's Abr. Baron & Eeme, E. 
 
 1 Charnley v. Winstanley, 5 East, 266. 
 
 8 Sutton V. Tyrrell, 10 Vt. 91. 
 
236 DURATION OF THE ARBITRATOR'S AUTHORITY. 
 
 5. By Arbitrator's Refusal to Act. — The refusal of a person 
 named as arbitrator to act as such, or his resignation of 
 
 . the office, will put an end to the submission.^ Nor is it neces- 
 sary that the refusal or resignation should be executed with 
 any formality. Though the submission be by writing, under 
 seal, yet the arbitrator may decline orally. Obviously this 
 must be so, for there is no possible means of compelling 
 the persons nominated to fulfil these functions to execute a 
 sealed or even a written instrument, if they do not choose 
 to do so.^ 
 
 6. By the Institution of a Suit. — The institution of a Suit 
 by .one party against the other, after the submission has been 
 entered into, and before the award has been made,- the cause of 
 action being the subject-matter of the arbitration, will operate 
 to revoke by implication the agreement to arbitrate.^ But the 
 entry, on the proper day, of an action, the subject-matter of 
 which was included in the submission, has been held not to con- 
 
 . stitute a revocation. It was said that this did not prevent the 
 arbitration from proceeding, but was only " an ordinary act 
 of caution " to keep the action in existence, should the other 
 party revoke or refuse to attend ; and this was so held in 
 spite of the fact that the submission stipulated that all pending 
 actions should be discontinued. For no time was named for 
 the discontinuance', and it would be sufficient if it should be 
 made when the success of the attempt to arbitrate should be 
 assumed.* 
 
 7. By Neglect to Perform a preliminary Act. — The simple 
 neglect of the parties to perform certain acts, stipulated in the 
 siibmission, and indispensable to be done before the arbitrators 
 could proceed according to the terms of the submission, has 
 
 1 Crawshay v. Collins, 3 Swanst. 90 ; Chapman v. Seccomb, 36 Maioe, 102 ; 
 Eelyea v. Ramsay, 2 Wend. 602. 
 
 2 Relyea y. Ramsay, 2 Wend. 602. 
 
 ' Peters' Administrator v. Craig, 6 Dana, 307. 
 * Sutton V. Tyrrell, 10 Vt. 91. 
 
DURATION or THE ARBITRATOR'S AUTHORITY. 237 
 
 been held to work a revocation. ^ Though it mus-t be confessed 
 that, especially if the neglect be that of one party only, this 
 rule would seem often to be contrary to the spirit as well as to 
 the letter of the principle by which the revocation is required 
 to be made by an instrument of equal dignity with the sub- 
 mission itself. The difficulty, however, is perhaps of a practi- 
 cal nature ; for if a party is bound by his agreement to do 
 some specific act which will put the arbitratoi'S in a position 
 to proceed with the arbitration, and he refuses or neglects to 
 do it, either the courts must compel him to a specific perform- 
 ance, or else the contract between the parties must, by his act, 
 be annulled. For it is impossible that the party not in default 
 should be kept out of his right to have the controversy decided 
 by reason- of the dishonesty or laches of his opponent, yet he 
 would be then kept out of this right if the contract of submis- 
 sion were still in force, and yet could not be carried out by reason 
 of such refusal or neglect. It would come, therefore, to this, 
 either there must be an order foi:.specific performance, or there . 
 is a revocation. The order it might often be impossible to 
 render effectual, and, moreover, it is against the established 
 policy of the courts to grant specific performance of agree- 
 ments to submit. Therefore, the revocation seems to follow as 
 an inevitable practical necessity. 
 
 But the neglect of tlie party must prevent the performance 
 of some act which is an indispensable preliminary to the power 
 of the arbitrators to proceed with the hearing and determina- 
 tion of the controversy. Non-performance of a proper and 
 customary, but not strictly essential, act would not have this 
 effect. 
 
 Thus, a party by failing to attend at a meeting, of which he 
 has had due notice, cannot revoke the authority of the arbitra- 
 tors. They may proceed ex parte. " The law has not con- 
 templated " that revocation " could be so done." ^ 
 
 1 Allen V. Galpin, 9 Barb. 246. 
 
 2 Brown v. Leavltt, 26 Maine, 251 ; Bray v. English, 1 Conn. 498. , 
 
238 DURATION OF THE ARBITRATOR'S AUTHORITY. 
 
 Revocation through the Instrumentality of a Stranger. — Revo- 
 cation may sometimes come from a source wholly external to 
 the submission. Thus a Vermont statute authorizes a refer- 
 ence of a disputed claim between an administrator or executor 
 and the supposed creditor or debtor of the estate, upon written 
 consent of parties, and an order from the Probate Court. Held, 
 that a person, not being a party, may apply to the Probate 
 Court to set aside and annul such reference, while it is still 
 pending ; and that upon proof of collusion or of facts, which 
 might render further proceedings before the referees fraudu- 
 lent and injurious to the rights of any person interested in 
 the particular claim or in the estate, it would be the duty of 
 the court to revoke the reference.^ 
 
 Revocation by Congress. — If Congress, by resolution, sends 
 a claim to be awarded upon by the head of one of the executive 
 departments, and his award is invalid, by reason of excess of 
 authority, Congress may revoke his power, by repealing the 
 resolution of appointment.^ 
 
 Revocation by an Agent. — Revocation may, of course, be 
 made through the intervention of an agent as well as by the 
 party himself. But the agent must be actually authorized to 
 revoke. His power to revoke is not included in, and cannot 
 be inferred from, his power to enter into the submission on 
 behalf of his principal.^ 
 
 Damages may be claimed for Revocation. — It is clear that if 
 either party revokes the authority of the arbitrators, without 
 the assent of the other party, or without sufficient justification 
 moving from the other party, he has broken his undertaking 
 contained in the submission. For this, in like manner, as for 
 any other breach of contract, he is liable to be held to respond 
 in damages.* 
 
 1 Lathrop v. Hitchcock, 38 Vt. 496. , 
 ■ De Groot v. United States, 5 Wall. 419. 
 8 Madison Ins. Co. v. GrifSn, 3 Ind. 277. 
 
 * Brown v. leavitt, 26 Maine, 251 ; Dexter v. Young, 40 N. H. 130 ; Frets v. 
 Frete, 1 Cow. 335.' 
 
DURATION OF THE AERITRATOR'S AUTHORITY. 239 
 
 The phraseology of the bond will not be nicely construed in 
 order to save the revoking party from this proper consequence 
 of his own act. Thus, if the bond does not bind him in precise 
 terms to " submit," but only to perform or keep the award, his 
 revocation will still be a breach of the condition and a forfeit- 
 ure of the bond, since, by his own act, he has deprived himself 
 of the power to fulfil the condition of the bond.^ 
 
 The Measure of Damages. — The rule as to the measure of 
 damages has been laid down to be, that the revoking party 
 must pay all damages which the other party has sustained. 
 These, it has been said, " would of course include " the costs 
 of a suit discontinued by reason of the submission, and the 
 cost and expenses incurred by the other party in preparing for 
 the trial before the arbitrators.^ The damages sought to be 
 recovered in the discontinued actions cannot be included in 
 the damages, at least, as it would seem, unless the claim- 
 ant has in some way lost his power to recover in a fresh 
 suit.^ 
 
 Where the submission has been entered into by bond, the 
 revocation is a breach of the condition of the bond.* But if 
 the bond names a penalty, without expressly declaring it to be 
 stipulated or liquidated damages, though the one party re- 
 voke, yet the other is not, therefore, entitled to judgment for 
 the full sum named in the bond. He must show his actual 
 damages.^ 
 
 Pleading Revocation. — In an action for the forfeiture of the 
 bond, on the ground of revocation, the plaintiff should assign 
 for breach the revocation itself, and not the non-performance 
 of the award.® 
 
 1 Town of Craftsbury v. Hill, 28 Vt. 763 ; Aspinwall v. Tousey, 2 Tyler, ( Vt.) 
 328 ; Warburton v. Storr, 4 Barn. & Or. 103 ; Vynior's Case, 8 Coke, 162. 
 
 2 Hawley v. Hodge, 7 Vt. 237 ; Rowley v. Young, 3 Day, 118. 
 
 3 Blaisdell v. Blaisdell, 14 N. H. 78. 
 * Brown v. Leavitt, 26 Maine, 251. 
 
 5 Blaisdell v. Blaisdell, 14 N.'h. 78. 
 
 6 Frets V. Frets, 1 Cow. 335. 
 
240 DURATION OF THE AUBITRATOE'S AUTHORITY. 
 
 . Effect of Submission ceasing to Bind a Party. — If the submis- 
 sion and award for any cause cease to be binding upon one of 
 the parties thereto, it also ceases to be binding upon all the 
 rest. For the assent of all, and the fact that all are to be 
 bound alike, is of the essence of the consideration.^ 
 
 1 Power V. Power, 7 Watts, 205. 
 
CHAPTER VIII. 
 
 THE UMPIRE. 
 
 The functions of umpire and of third arbitrator distinguished. 
 Appointment — 1. How to he made. 
 
 2. When may be made. 
 Effect of appointment of umpire on power of arbitrators. 
 Whence arbitrators derive power to appoiat an umpire. 
 They may make several nominations. 
 Parol appointments. 
 Evidence of umpire's authority. 
 Umpire's duty as to re-hearing parties. 
 Construction of a submission. 
 
 The Functions of ITnipire and of Third Arbitrator distinguished. 
 — An umpire is a person whom two or more arbitrators, under 
 authority of the parties to the submission, select. His func- 
 tion is to decide the controversy which the arbitrators have 
 been unable to decide. He is not to act in conjunction with 
 them* but as a substitute for them. He is, as it were, a sole 
 arbitrator, with the same duty of hearing the whole case rfe wow 
 as would have devolved upon him had he been originally ap- 
 pointed alone.i Though this duty may, of course, be waived by 
 consent of parties. Neither of the arbitrators need join with him 
 in his award. If they do so, it will not, however, avoid the 
 award, but their joinder will be rejected as surplusage.^ It is 
 evident, therefore, that an umpire is to be distinguished from a 
 third arbitrator, since his powers and duties are widely differ- 
 ent.^ A third arbitrator, when only called in, is simply an 
 
 1 Haven v. Winnisimmet Co., 11 Allen, 377 ; Shields v. Eenno, 1 Overt. 313 ; 
 Bassett's Adm'r v. Cunningham's Adm'r, 9 Gratt. 684. 
 
 2 Haven v. Winnisimmet Co., 11 Allen, 377 ; Mulhns v. Arnold, 4 Sneed, 262 ; 
 Risen v. Berry, 4 Rand. 275 ; King v. Cook, Charlt. 286 ; Boyer v. Amand, 2 
 Watts, 74 ; Butler v. Mayor, &c., of New York, 1 Hill, 489 ; Eigden u. Martin, 
 6 Har. & J. 403. 
 
 ' Haven v. Winnisimmet Co. supra ; Lyon v. Blossom, 4 Duer, 318. 
 
 16 
 
242 THE UMPIEE. 
 
 addition to the number of the original board, and all together 
 constitute a new board. The customary proviso, where a tliird 
 arbitrator is desired, that after such third party shall have been 
 named, the award of a majority shall be final, shows that such 
 supernumerary is to act with his fellows, originally nominated, 
 in hearing and deciding the controversy. And this, too, al- 
 though he be erroneously called " an umpire." ^ The award 
 must then express the finding of, and be executed by at least 
 a majority of, the new board.^ 
 
 In neither case is the person called in, whether as umpire or 
 third arbitrator, justified in considering only the differing opin- 
 ions of the two original arbitrators, and selecting for his con- 
 currence that which seems to him to be nearer to correctness. 
 He must exercise his individual and independent judgment, for 
 the purpose of making up an award which he considers 
 proper.^ He must consider the whole case, and not merely the 
 points on which the arbitrators have been vinable to agree.* 
 But he may, if he chooses, accept and adopt as his own their 
 report upon the points wherein they have agreed, and by incor- 
 porating it with his own findings on the other points, his award 
 thus made up upon the whole will be good.^ 
 
 The power to two arbitrators, in case of disagreement, to 
 choose a third person as arbitrator, has been construed to be a 
 power to choose an umpire.^ 
 
 If two arbitrators, mistaking the directions of the submission, 
 appoint an umpire instead of a third arbitrator, a party who 
 has attended the meetings before the umpire, without objection, 
 will not be allowed to impeach the award on this ground.' 
 
 Appointment — 1. How to be made. — The appointment of the 
 
 1 Mullins V. Arnold, 4 Sneed, 262. 
 
 2 Haven v. Winnisimmet Co., 11 Allen, 377. 
 
 3 Haven v. Winnisimmet Co., 11 Allen, 377 ; TolUt v. Saunders, 9 Price, 612. 
 * Crabtree v. Green, 8 Geo. 8. 
 
 ' Executors of Finney v. Miller, 1 Bailey, 81. 
 
 6 Scudder v. Johnson, 5 Mis. 551. 
 
 ' Graham v. Graham. 12 Penn. St. 128. 
 
THE XJMPIEE, 243 
 
 timpire must be made by the agreement of the arbitrators upon 
 a particular person. If the selection be left to be determined 
 by a chance, it will be void.^ Though where each arbitrator 
 names a person, to whom the other pannot object, and they toss 
 up to decide between the two nominees, this will be a valid 
 arrangement.^ 
 
 It is said, however, that though an umpire may not be chosen 
 by lot, yet a choice by lot will be sustained if the parties have 
 proceeded with the hearings before him, after having knowledge 
 of the manner of selection.^ 
 
 2. When may be made.— Where two arbitrators are named, 
 with power to choose an umpire, they may make their choice 
 before they have heard or considered the evidence or disagreed 
 between themselves, and while it yet remains uncertain whether 
 they will be able to agree or not. Indeed it has often been 
 remarked that this is the fairest manner in which to make the 
 choice.* So also where the choice is to be of a " third ref- 
 eree." ^ The same rule was laid down by Kent, C. J., where 
 the submission was to A. and B., so that they should make 
 their award on or before a day certain, and if they should not, 
 then to such umpire as they should choose.® So where the 
 language is, " with power in case of disagreement to choose an 
 umpire."^ In case of such choice, it seems that the umpire 
 may sit with the arbitrators, and hear and consult in conjunc- 
 tion with them.^ 
 
 1 In re Cassell, 9 Bam. & Cr. 624 ; Ford v. Jones, 3 B. & Ad. 248 ; In re Green- 
 wood & Titterington, 9 Ad. & EI. 699 ; Hodson v. Drewry, 7 Dowl. 569. 
 
 3 Neale v. Ledger, 16 East, 51 ; Morgan v. Bolt, 1 N. R. 271 ; European and 
 American Steam Shipping Co. o. Croskey, 8 C. B. n. s. 397. 
 
 3 Graham v. Graham, 12 Penn. St. 128. 
 
 * Alexandria Canal Co. v. Swann, 5 How. (U. S.) 83 ; Butler v. Mayor, &c., 
 of New York, 1 Hill, 489 ; Tan Cortlandt v. Underbill, 17 Johns. 405 ; Eigden v. 
 Martin, 6 Har. & J. 403 ; Bates v. Cooke, 9 Barn. & Cr. 407 ; Harding v. Watts, 
 15 East, 556. 
 
 ' Bigelow V. Maynard, 4 Cush. 317. 
 
 <> M'Kinstry v. Solomons, 2 Johns. 57. 
 
 ' Peek V. Wakely, 2 M'Cord, 279. 
 
 8 Butler V. Mayor, &c., of New York, 1 Hill, 489 ; Bassett's Adm'r v. Cun- 
 ningham's Adm'r, 9 Gratt. 684. 
 
244 THE UMPIRE. 
 
 But if a time be limited within which the arbitrators are to 
 make their award, and, in case of their disagreement, a later 
 day is named on or before which the umpire must award, they 
 may name the umpire after the time for returning their own 
 award has expired. " For the power of appointing an umpire 
 is quite collateral to that of making an award, and survives 
 when the latter power is extinct." ^ 
 
 The English rule is well established, that arbitrators need 
 not wait until the time limited for them to award is actually 
 expiring. So soon as it becomes evident that they will not 
 agree, they may name an umpire and send the matter to 
 him.^ 
 
 And so also is the rule in the United States, where it has 
 been held that if the submission gives the arbitrators a certain 
 time within which to make their award, and they, finding them- 
 selves unable to agree, choose an umpire, according to a power 
 given in the submission in case of disagreement, who renders 
 his award before this time has elapsed, his award will be good. 
 The arbitrators are not bound to await the expiration of the 
 time allowed them before proceeding to a choice.* 
 
 Effect of Appointment of Umpire on Po'wer of Arbitrators. — 
 What effect is produced upon the power of the arbitrators by 
 their appointment of an umpire, the time allowed them to 
 award not having expired, is a question not satisfactorily settled 
 by any authority which I have found. It might be naturally 
 imagined that by such an appointment they would divest them- 
 selves, immediately, by this act of their own, of their own 
 authority to award. Yet the only adjudication in which the 
 matter has been discussed at all, contains a contrary intima- 
 tion, to the effect that even after the arbitrators have disagreed 
 
 1 Russell on Arb., 3d ed. p. 218 ; citing Harding v. "Watts, 15 East, 566 ; Bur- 
 dett V. Harris, 3 Keb. 387 ; Adams v. Adams, 2 Mod. 169 ; Winteringliam v. Rob- 
 ertson, 27 L. J. Exch. 301. 
 
 2 Roe d. Wood v. Doe, 2 Term, 644 ; Harding v. Watts, 15 East, 556 ; Cowel 
 V. Waller, 2 Barnard. 154 ; Elliott v. Cheval, 1 Lutw. 541 ; Coppin v. Hurnard, 
 2 Saund. 133 (a) note ; Jennings v. Vandeputt, Cro. Car. 263. 
 
 2 Richards v. Brockenbrough's Adm'r, 1 Rand. 449. 
 
THE UMPIRE. 245 
 
 and nominated an umpire, yet their authority is not thereby 
 necessarily concluded ; and if they can afterward agree, they 
 can award at any time before he has awarded.^ But they can- 
 not return his award as their own, if they stiljl continue to dis- 
 agree as to its propriety .2 
 
 ■Whence Arbitrators derive Poiwer to appoint Umpire. — Arbi- 
 trators have no inherent power to call in an umpire. They 
 must be in terms authorized so to do by the submission. An 
 umpire called in by them, without specific authority, would be 
 endued with no power whatsoever in relation to the parties or 
 the subject-matter of the controversy ; and bis award would 
 be a mere nullity.^ 
 
 But it may be shown by parol that after a submission in 
 writing the parties agreed that the arbitrators might call in an 
 umpire ; and it may also be shown that a written submission 
 to " the arbitrators now about to sit," was intended to confer 
 upon them this power.* 
 
 If the arbitrators are authorized to appoint an umpire, the 
 consent of the parties is not necessary to render valid their 
 selection.^ 
 
 They may make several Nominations. — The power of arbitra- 
 tors to name an umpire is not necessarily exhausted by a single 
 nomination. If the nominee refuse to accept, or neglect to act, 
 successive nominations may be made, until some one is found 
 who will actually exercise the function. The authority is de- 
 termined only when it has h^eu fully executed.^ 
 
 Parol Appointments. — Where the submission may be by 
 parol, the appointment of an umpire may also be by parol. 
 But where the submission is to be made a rule of court, the 
 appointment should be in writing, so that the authority of the 
 
 1 Daniel v. Daniel, 6 Dana, 93. 
 
 2 Ibid. 
 
 8 Daniel v. Daniel's Adm'r, 6 Dana, 98 ; Sharp v. Lipsey, 2 Bailey, 113. 
 
 < Sharp V. Lipsey, 2 Bailey, 113. 
 
 6 Ibid. 
 
 « Cloud V. Sledge, 1 BaUey, 106. 
 
246 THE UMPIRE. 
 
 umpire may appear on the face of the record.^ But if the 
 parties acquiesce in the choice of an umpire made by the ar- 
 bitrators, by proceeding before him and submitting the ques- 
 tions to him, or to him in conjunction with the arbitrators, it 
 will be too late for either of them afterwards to object to the 
 choice as not having been made with due formality.^ 
 
 ETidence of Umpire's Authority. — When there is no specific 
 time named in the submission for the appointment of the umpire, 
 semhle that, if the award recites the fact of the appointment, and 
 is signed by all the arbitrators and the umpire, it will be suffi- 
 cient evidence of his authority. But not so, if it be signed only 
 by himself.^ And not so when the submission in terms requires 
 the umpire to be appointed previous to entering upon the ref- 
 erence.* In Virginia it has been held that where the award 
 does not recite the choice of the umpire, it may yet be proved 
 by extrinsic evidence that the party apparently signing the 
 award in that capacity was in fact so chosen.^ 
 
 Umpire's Duty as to re-hearing Parties. — The question as to 
 the duty of an umpire to re-hear a cause, was said by Judge 
 Waite, in 1845, " to be not very well settled." ^ It remains to- 
 day in substantially the same dubious condition. If there is no 
 dispute about the facts, but the arbitrators differ only in the 
 conclusions to be drawn from them, it would seem sufficient if 
 they lay before the umpire the claims and evidence. In this 
 especial case the umpire was rather a third arbitrator than an 
 umpire, strictly so called ; he was called in to act in conjunc- 
 tion with the arbitrators, concerning certain specific points in 
 which, as it turned out, they differed. The court held that a 
 party to the submission was not entitled to have the award set 
 aside because there had been no re-hearing ; for that if he had 
 
 1 Elmendorf u. Harria^23 Wend. 628. 
 
 2 Knowlton v. Homer, 30 Maine, 552. 
 
 3 Elmendorf u. Harris, 23 "Wend. 628. 
 * Ibid. 
 
 ' Eison V. Berry, 4 Rand. 275. 
 
 6 Ranney v. Edwards, 17 Conn. 309. 
 
THE UMPIRE. 247 
 
 wished a re-hearing in the event of the third arbitrator being 
 called in, he should have said so at the time the case was 
 submitted. 
 
 The same judge declares and indorses the English rule, to 
 wit : That if a party knows of the disagreement and the calling 
 in of an umpire, and does not thereupon demand a re-hearing, 
 he will lose his right to it, and will be concluded from after- 
 wards objecting that it did not take place.^ But if either party 
 demands a re-hearing he should have it.^ 
 
 Russell, however, lays down the English rule as follows : 
 " He [the umpire] must examine such witnesses as the parties 
 choose to produce, and as to such points as they choose to raise, 
 although the same witnesses have 'been examined to the same 
 points before the arbitrators. He may not take the evidence, 
 or any part of it, from the notes of the arbitrators, unless there 
 be a special provision in the submission, or a clear agree- 
 ment between the parties permitting such a course." ^ But 
 the objection to his proceeding without a re-hearing may be 
 waived.* 
 
 In Pennsylvania, in two old cases, it was held that the um- 
 pire ought to re-hear the cause.^ The case of Daniel v. Daniel^ 
 (Kentucky) says that these cases follow the older rule in 
 England, which, however, lias since been modified to the shape 
 above expressed. But it cannot be doubted that if a party 
 requests the umpire to hear him and examine his witnesses, he 
 is entitled to have his request granted. Whence it follows 
 
 1 Ranney v. Edwards, 17 Conn. 309 ; citing Tunno v. Bird, 5 B. & Ad. 488 ; 
 and see Sharp v. Lipsey, 2 Bailey, 113 ; Knowlton v. Homer, 30 Maine, 552 ; Gra- 
 ham V. Graham, 9 Barr, 254, in which the same rule is substantially adopted. 
 
 2 Ranney v. Edwards, 17 Conn. 309 ; citing Salkeld. v. Slater, 12 Ad. & E. 
 767 ; in which case there was conflicting testimony, but no new testimony was 
 proposed to be offered before the umpire. 
 
 » Russell on Arb., 3d ed. p. 230 ; Salkeld v. Slater, 12 Ad. & E. 767 ; In re 
 Jenkins, 1 Dowl. N. s. 276 ; Waltonshaw v. Marshall, 1 H. & W. 209 ; Watson ». 
 Trower, Ryl. & M. 17. 
 
 * Salkeld v. Slater, and In re Jenkins, supra. 
 
 6 Falconer v. Montgomery, 4 DaU. 232 ; Passmore v. Pettit, ib. 271. 
 
 " 6 Dana, 93. 
 
248 THE UMPIRE. 
 
 that he is entitled to such notice of the time and place, when 
 and where the umpire will act, as will enable him to prefer this 
 request if he wishes to. 
 
 Construction of a Submission. — A submission to two and 
 their umpire requires that an umpire be summoned only in 
 case of disagreement ; an award by the two is good.^ 
 
 ' Keans v. Rankin, 2 Bibb, 88. 
 
PAET III. 
 
 THE AWARD. 
 
CHAPTER IX. 
 
 THE FORMALITIES AND CONTENTS OP THE AWARD. 
 
 No especial form,, if a decision be expressed. 
 
 The fact of decision need not be declared. 
 
 Decision by implication. 
 
 Oral awards. 
 
 Stipulations for a written award. 
 
 Award concerning real estate. 
 
 Award concerning boundary lines. 
 
 Attesting witness. 
 
 Seal. 
 
 Instructions of submission must be followed. 
 
 Stipulations construed as conditions precedent. 
 
 Award under statute must comply with the statute. 
 
 But may be upheld if it does not so comply. 
 
 Strict compliance may be waived. 
 
 Award may be of a sum in gross. 
 
 Or may be of each item separately. 
 
 What the award must contain. 
 
 Award need not order release nor discontinuance. 
 
 Award of a nonsuit. ' 
 
 Some peculiar forms of awards by means of promissory notes. 
 
 Professional assistance in drawing award. 
 
 Eecitals of the submission and proceedings in the award. 
 
 Erroneous recitals. 
 
 Referee need not report evidence. 
 
 Stipulations for delivery of the award. 
 
 Delivery must be of the original award. 
 
 Delivery in duplicate. 
 
 Waiver of actual delivery. 
 
 To whom delivery is to be made. 
 
 What constitutes delivery. 
 
 Delivery of an oral award. 
 
 Pleading delivery. 
 
 How non-delivery is to be availed of. 
 
 Publication of the award. 
 
 Possession of award. 
 
 Neither party is bound to notify the other of the award. 
 
 No especial Form, if a Decision be Expressed. — If the submis- 
 sion prescribes no formalities to be observed in the execution 
 
252 THE FORMALITIES, ETC., OF THE AWARD. 
 
 of the award, the arbitrator may put it in such shape as he 
 chooses. No especial formula need be observed, and no tech- 
 nical characteristics are necessary to the validity of the instru- 
 ment.^ Any language which expresses an actual decision is 
 sufficient. For example, the words, " I am of opinion that," 
 &c., are good.^ But where the arbitrator wrote a letter to the 
 parties, saying, " To meet the circumstances of the case in a 
 liberal manner, I propose that B. should pay A.," &c., it was 
 held that this was no award.^ 
 
 An award of the arbitrator, in which he states that he has 
 made an examination, and -^^ finds " the cost of certain labor 
 at a certain amount, is a sufficiently decisive expression of his 
 determination in the matter.* 
 
 The parties to a submission agreed to be bound by the 
 opinion of a professional man upon the construction of an act 
 of Parliament. He gave an opinion, in which he recommended 
 that the printed statute should be compared with the parlia- 
 mentary roll before the parties should finally settle the matter ; 
 for he conceived it possible that a discrepancy or error in the 
 printed statute might be found to exist. His opinion, how- 
 ever, was not couched in any conditional or dubious form, but 
 was a decisive and absolute expression of his determination 
 concerning the construction. For this reason it was held to 
 be a final and binding award.^ 
 
 Words not in themselves absolutely, imperative will some- 
 times be construed as such in order to bring an award, which 
 obviously ought to be sustained, within the foregoing rule. 
 Thus an award in which a balance is found in favor of one 
 party, and the other party is " requested " to pay it, is good, 
 since the request will be construed as equivalent to an order.* 
 
 1 Ott V. Schroeppel, 5 N. Y. (1 Seld.) 483. 
 
 2 Matsou V. Trower, Ryl. & M. 17 ; Price v. HoUis, 1 M. & S. 105 ; Eardley v. 
 Steer, 4 Dowl. 423. 
 
 ' Lock V. VulUamy, 2 N. & M. 336 ; 5 B. & Ad. 600. 
 * Whitehead v. Tattersall, 1 Ad. & El. 491. 
 
 5 Price V Holiis, 1 M. & S. 105. 
 
 6 Smith V. Hartley, 10 C. B. 800. 
 
THE FORMALITIES, ETC., OF THE AWAED. 253 
 
 The finding would constitute an award, and, strictly speaking, 
 after the amount of an indebtedness has been determined, an 
 order for its payment would seem to be matter of supererogation. 
 Wherefore it would appear reasonable in the foregoing case 
 to have upheld the award without regarding it as necessary to 
 construe the request into a command. 
 
 The fact of Decision need not be Declared. — It is not necessary 
 that arbitrators should expressly declare, in an award, that 
 tlaey have decided the matters submitted to them. It is suf- 
 ficient if the fact appear from the contents of the award. 
 
 Thus a bond of arbitration- recited that differences were 
 pending between A. and B. " concerning the matter that the 
 said B. demands of the said A. possession of certain tracts of 
 land," which wei'e then described, " which the said B. alleges 
 the said A. has, without law, entered upon and disseised the 
 said B., and still withholds the possession thereof from him." 
 The award recited that the parties had been heard, and their 
 proofs and arguments duly considered, and the arbitrators 
 awarded and determined " that the ' north line,' so called, 
 between said A. and B., shall be the line established," &c., 
 describing the line. A bill for specific performance was de- 
 murred to on this ground, among others, that the award did 
 not exhaust the matter submitted, since it did not determine 
 whether a trespass had been committed, whether there was a 
 wrongful withholding, or whether damages should be paid. 
 But the court said that the boundary line was clearly the mat- 
 ter in dispute ; this had been determined, and " the award, in 
 the opinion of the court, decides the matters submitted to the 
 arbitrators, and is final and complete." ^ 
 
 Decision by Implication. — As will be seen hereafter, in the 
 discussion of the topic of Certainty in the Award, the decision 
 of the arbitrators may sometimes be derivable only through 
 implication. But implication will take the place of an express 
 statement only when it is obvious and unavoidable. The in- 
 i Caldwell v. Dickinson, 13 Gray, 365. 
 
254 THE FOEMALITIES, ETC., OF THE AWARD. 
 
 stances are chiefly furnished by reports of referees, rendered in 
 pending causes, awarding costs to one of the parties, and giving 
 no further directions by way of determining tlie matters in dif- 
 ference. In such cases it lias been held that the award of costs 
 was equivalent to a finding in favor of the same party upon 
 the point in controversy.^ 
 
 An action on the case to recover damages for the diversion 
 and obstruction of a water-course was referred by rule of court. 
 The award was : " We, &c., having heard the parties and their 
 several allegations and proofs, do award and determine, and 
 this is our final award and determination, that the defendant 
 shall pay to the plaintifi" the sum of ten dollars, without costs, 
 either before the referees or the court, — that is, each party is to 
 pay his own costs ; the above sum of ten dollars being given 
 to the plaintiff as the defendant's share of the referees' fees." 
 The court said : " The award was, that each party should pay 
 his own costs, and that the defendants should pay to the plain- 
 tiff a part of the fees of the referees. If not, they looked to 
 him for their fees, and discharged the defendant from any 
 claim therefor on him. And the necessary implication from 
 the award is, as it was in Buckland v. Conway, that the refer- 
 ees determined the question submitted to them in the defend- 
 ant's favor. The legal presumption is, that they could not 
 have made this award without having decided that the plaintiff 
 had not maintained the action submitted to their determina- 
 tion." 2 The same principle, it was said, was applied in this 
 case which the court was wont to apply in verdicts.^ 
 
 The old case of Inhabitants of Buckland v. Inhabitants of 
 Conway, relied upon as a controlling precedent in the fore- 
 going adjudication, was as follows : A pauper cause between 
 the two towns was submitted. The award was only that the 
 
 1 Inhabitants of Buckland «. Inhabitants of Conway, 16 Mass. 396 ; Stickles 
 0. Arnold, 1 Gray, 418; Rixford v. Nye, 20 Vt. 132 ; Lamphire v. Cowan, 39 Vt. 
 420 ; Hartnell v. Hill, Forrest, 73. 
 
 2 Stickles V. Arnold, 1 Gray, 418. 
 
 3 Hodges V. Raymond, 9 Mass. 316 ; Hawks v. Crofton, 2 Bur. 698. 
 
THE FORMALITIES, ETC., OF THE AWARD. 255 
 
 defendants should recover against the plaintiffs the costs of the 
 reference and the costs of court. The court, per Parker, C. J., 
 said : " As to the validity of the report in reference to the ob- 
 jection that it does not adjudicate upon the subject-matter 
 submitted to the referees, we think it sufficient, because, by 
 necessary implication, it must be considered as a determination 
 upon the question. They award that the defendant town shall 
 recover the costs of the action. This they could not have 
 done without having decided the point in controversy in their 
 favor. At least, the legal presumption is, that they so de- 
 termined. The judgment of the court will be, that the plain- 
 tiffs take nothing by their writ, and that the defendants recover 
 their costs ; and this makes a final determination of the action, 
 which is what was submitted to the referees." ^ 
 
 Where title is in dispute, an award which does not in direct 
 terms pass upon or dispose of the title, may yet be upheld if 
 it orders one party to pay to the other the price or value of the 
 property. 
 
 A dispute concerning the ownership of certain oxen, sold by 
 A. to B. and claimed by C, and as to who should pay for the 
 same, and who should be entitled to receive the amount, was 
 submitted. The award was, that B. should pay a certain sum 
 to A. and another certain sum to C. ; but it contained no spe- 
 cific determination or direction concerning who owned, or who 
 should by virtue of the award become the owner of, the cattle. 
 It was held, however, thai? the disposition of this point was 
 made sufiiciently clear by implication. B. was directed to pay 
 the other two parties, and it was an obvious and necessary 
 presumption that he was to take and hold the oxen ; from the 
 payment ordered to be made by him, " it is certainly to be 
 inferred that the ownership of the oxen was adjudged to be in 
 him, and A. and C, having the consideration of the same, have 
 no rights in the oxen themselves." ^ 
 
 1 Inhabitants of Buckland v. Inhabitants of Conway, 16 Mass. 396. 
 
 2 Hanson v. Webber, 40 Maine, 194. 
 
256 THE FOEMALITIES, ETC., OF THE AWARD. 
 
 Oral Awards. — The old common law allowed an award to be 
 made orally. Nor has the ancient rule been changed except 
 by express provisions of statutes. The submission, however, 
 may of course call for an award in such shape as the parties 
 may desire, and if it call for a written award, an oral award 
 will be bad. But in the absence of statutory restrictions, or of 
 stipulations in the submission, and except where the right to 
 be disposed of is, by its own nature, capable of being dis- 
 posed of only by a sealed instrument, a verbal award will be 
 good.i 
 
 Owing to the uncertainty necessarily attendant upon oral 
 awards, especially where they relate to matters of importance, 
 or where they,are to be of continuing effect, the courts are 
 averse to them. An oral award, satisfactorily established, 
 must be sustained ; but the judges always speak of these 
 verbal decisions with disapprobation. In the United States it 
 is sometimes said that they may properly follow oral submis- 
 sions.^ From which remark might be inferred an inclination 
 to restrict their use to this connection. So says Mr. Kyd, 
 stating that when the submission is in writing the award must 
 be in writing.^ But he cites no authorities, and the court, in 
 Marsh v. Packer,* refuse to accept his rule, and, on the 
 strength of English cases, lay down the doctrine, that the man- 
 ner in which the submission is made has no such connection 
 with the manner in which the award must be made ; and a 
 written submission, or even a submission by deed, may be fol- 
 lowed by a verbal award. 
 
 A purpose or attempt on the part of the arbitrators to put 
 their award in writing, subsequently desisted from, does not 
 
 1 Philbrick v. Preble, 18 Maine, 255 ; Valentine ». Valentine, 2 Barb. Chy. 
 430; M'Manus v. M'Culloch, 6 Watts, 357 ; Jones v. Dewey, 17 N. H. 596 ; Han- 
 son V. Liversedge, Carth. 176, and 2 Vent. 242 ; Rawliug v. Wood, Barnes, 54 ; 
 Bailey v. Lechmere, 1 Esp. Ca. 377 {per Lord Kenyon). 
 
 2 Valentine v. Valentine, 2 Barb. Chy. 430 ; Cable v. Rogers, 3 Bulst. 311. 
 8 Kyd on Award, 74. 
 
 * 20 Vt. 198. 
 
THE PORMAXITIES, ETC., OF THE AWARD. 25 T 
 
 invalidate their verbal award, provided that a verbal award is 
 good under the submission.^ 
 
 stipulations for a Written Award. — The stipulation for a 
 written award need not always be made in precise terms. 
 Occasionally it will be a necessary implication, and in this form 
 will be upheld in like manner as if it were couched in plain 
 and unmistakable language. For example, if the submission 
 requires that the award shall be signed by the arbitrators, it is 
 obvious that the parties intend to demand a written award, 
 since no other could be signed. But a mere proviso that an 
 award shall be made and ready for delivery, does not import a 
 proviso for a written award, since a verbal award is as capable 
 of delivery as is one thrown into writing.^ 
 
 In the case cited from Dyer the condition in the arbitration 
 bond was that " the award should be delivered by " a certain 
 day. It was held to be satisfied by an oral award pronounced 
 to the parties. 
 
 In Gates v. Bromil the submission was by bond, containing 
 a proviso that the award should be ready to be delivered upon 
 a day named. An oral award, ready to be published to the 
 parties on that day, was held sufficient. 
 
 Award concerning Real Estate. — An award which profeSSeS to 
 determine the title to real estate, or dispose of any interest 
 therein, must be in writing.^ The Statute of Frauds comes in/ 
 to control this matter. For the award derives all its force and 
 validity from the fact of the agreement of the parties. It is, so 
 to speak, a limb or joint in the agreement. The arbitrators, as 
 has been already shown, are merely the agents of the parties, 
 for determining and bringing into shape the latter part of an 
 agreement, of which the submission constitutes the first part. 
 Consequently not only the submission, but the award which 
 follows it, and which makes a part of the one great whole, 
 
 1 Jones V. Dewey, 17 N. H. 596. 
 
 2 Gates u. Bromil, 1 Salk. 75, and 6 Mod. 176 ; Cocks v. Macclesfield, Dyer, 
 218, 6 ; BlundeU v. Brettafgh, 17 Ves. Jr. 232, 240. 
 
 PhUbrick v. Preble, 18 Maine, 255. 
 
 17 
 
258 THE rORMALITIES, ETC., OF THE AWARD. 
 
 must be in writing, in order to be valid under the statute. 
 Substantially so it was said by Eedfield, J., in Smith v. Bullock,^ 
 explaining the earlier case of Akely v. Akely.^ " That case 
 was decided mainly upon the ground that a contract by sub- 
 mission and award was to be put upon the same ground as any 
 other contract in the same form, — the arbitrators being but 
 the agents of the parties for carrying into effect the intention 
 of the parties." And in the case of Akely v. Akely, the same 
 judge said : " At present, both in this country and in England, 
 an award of arbitrators, in writing and under seal, made in 
 pursuance of a submission under seal, is itself a portion of 
 the contract between the parties, and as much binding in 
 regard to the title of real estate, unless in some way defective, 
 as any other contract under seal, made in the same terms, and 
 signed and sealed by the same parties." 
 
 Award concerning Boundary Idnes. — The only exception to 
 the foregoing rule is furnished by oral awards concerning 
 boundary lines. After the parties have accepted the award, and 
 have actually run the lines according to it, so that the line of 
 division remains a completed and established fact, the award 
 will be regarded as final. ^ 
 
 The parties to an arbitration bond submitting a dispute con- 
 cerning the title to a corner of land, " after this matter had 
 been settled and while the parties were upon the ground, . . . 
 arranged . . . that the same arbitrators should proceed and 
 settle the line between the respective estates " of the parties, 
 " and that the line which should be so settled should be taken 
 to be the boundary, and conclusive upon either party. This 
 was done by the arbitrators, and both parties assisted, and 
 neither of them dissented from the decision." Thus neither 
 the submission nor the award was in writing, but they were 
 upheld as valid and binding upon the parties.* 
 
 1 16 vt. 592. 
 
 2 16 Vt. 450. 
 
 3 Jones V. Dewey, 17 N. H. 596 ; Sawyer v. Fellows, 6 id. 107. 
 * Jones V. Dewey, 17 N. H. 596. 
 
THE FORMALITIES, ETC., OF THE AWARD. 259 
 
 Attesting Witness. — There is no necessity, at common law, 
 for an attestation by witnesses.^ Though Mr. Russell says, " it 
 is customary to have an attesting witness who may prove the 
 execution." ^ 
 
 Seal. — A seal is not ordinarily necessary upon an award. 
 Nor is it rendered necessary simply by reason of the submission 
 having been made by a sealed instrument.^ 
 
 Instructions of Submission must be followed. — If the submis- 
 sion contain instructions concerning the form, execution, or 
 publication of the award, they must be strictly followed. For, 
 says Mr. Russell, " whenever a special authority is created, 
 those who give it have a right to annex to it their own terms, 
 with which he on whom it is conferred must comply." * Any 
 deviation from these instructions, if in a substantial point, will 
 be fatal to the validity of the decision.^ 
 
 " The parties," said Cady, J., in Allen v. Galpin,^ " had a 
 perfect right to give to the arbitrators such powers as they 
 pleased, and to dictate the manner in which the award should 
 be made. They might have directed it to be written upon 
 parchment or engraved upon brass, or that the arbitrators 
 should cause it to be printed ; and if the arbitrators did not 
 choose to do as they were authorized, their acts would not bind 
 the parties." 
 
 " The authority given by the submission must be pur- 
 sued." 7 
 
 " An award owes its force and validity to the agreement of 
 the parties, and is not, of course, binding upon them, unless it 
 
 1 Valle V. North Missouri R. R. Co., 37 Mis. 445 ; Hedrick v. Judy, 23 lud. 
 548. 
 
 2 RusseU on Arb., 3d ed. p. 235. 
 
 3 Owen V. Boenim, 23 Barb. 187. See post, " Instructions of Submission must 
 be foUowed." 
 
 « Russell on Arb., 3d ed. p. 234. 
 
 6 Allen V. Galpin, 9 Barb. 246. See statement of this case, post, pp. 274, 275. 
 
 6 9 Barb. 246. 
 
 1 Pratt V. Hackett, 6 Johns. 14. 
 
260 THE FORMALITIES, ETC., OF THE AWAED. 
 
 has been made in the manner which the agreement has pointed 
 out." 1 
 
 This rule, however, is so far limited in its application to essen- 
 tials, that it is not to be extended to frivolous inconsistencies 
 or neglects. The award will not be vacated for matters of sheer 
 insignificance. On the other hand, considerable strictness is 
 shown in determining what are essentials. Generally, however, 
 it may be said that if the parties distinctly agree that a certain 
 specific formality shall be observed in the execution of the 
 award, their express demand must be complied with, or the 
 award will be bad. Thus where a submission concerning 
 the amount of rent to be reserved in a lease required the finding 
 to be indorsed on the lease, an award written on a separate 
 piece of paper, and fastened on to the lease by a wafer, was 
 held, for this defect alone, to be not obligatory on the parties.^ 
 Though it must be acknowledged that the equities in this 
 especial cause made out a very strong case in favor of the party 
 seeking to impeach the award on the ground of this infor- 
 mality. 
 
 If the submission requires the award to be in writing, and 
 under the hands of the arbitrators, each one of these matters 
 will be essential to its validity .^ But a requirement that an 
 award be " made and published in writing " is satisfied by a 
 written award, without written notice to the parties that it has 
 been made.* 
 
 A submission concerning a boundary line, to be run by the 
 arbitrators, stipulated for an award to be " made and published 
 in writing under the hands of" the arbitrators on or before a 
 certain day. The arbitrators heard the parties, decided upon 
 their respective rights, and made, signed, and sealed an instru- 
 ment intended to be their award. The arbitrators then met 
 
 1 Tudor V. Scovell, 20 N. H. 174 {per Gilchrist, C. J.). 
 
 2 Montague v. Smith, 13 Mass. 396. 
 
 3 Everard v. Paterson, 6 Taunt. 625 ; Thompson v. Mitchell, 35 Mame, 281. 
 « Thompson v. Mitchell, 35 Maine, 281. 
 
THE FORMALITIES, ETC., OE THE AWARD. 261 
 
 the parties, read this paper to them, and delivered to each of 
 them a written and signed copy. But at the same time the 
 chairman explained that they were doubtful whether the paper 
 expressed correctly what they had in fact decided; he then 
 stated verbally what their decision actually was, and that if the 
 written award did not accurately express it, the instrument would 
 be amended when the mistake should be ascertained by an 
 inquiry from the surveyor. Afterward the chairman learned 
 from the surveyor that the award did not correctly set forth the 
 decision, and he amended the sealed copy, which he had retained, 
 and made it conform to the decision, according to his statement 
 to the parties. But, after this alteration, the document was not 
 again presented to the other arbitrators, and no notification was 
 given to the parties. The court said that upon no just ground 
 could this award be considered to have been made in writing, 
 under the hands of the arbitrators, and to have been published 
 by them. The real award and decision had been published to 
 the parties orally, and this instrument, which conformed to the 
 award orally published, differed in an essential particular from 
 the only written award which had been published. " The 
 foundation of the defendant's agreement to perform an award 
 published in writing was never laid ; the condition of it was 
 never performed." His agreement was not to do whatever the 
 arbitrators might decide, " but to do what they should make 
 obligatory upon him, by a decision made and promulgated in 
 a manner expressly stipulated." The stipulation not having 
 been complied with, the obligtition did not attach.^ 
 
 If the submission calls for an award under , seal, an award 
 in writing, but not under seal, is bad.^ 
 
 If a time be named within which the award is to be made, it 
 is invalid if it be not made until after that time has elapsed.* 
 
 1 Caldwell v. Dickinson, 13 Gray, 365. 
 
 2 Stanton v. Henry, 11 Johns. 133 ; Henderson v. Williamson, 1 Strange, 116 ; 
 Thaire u. Thaire, Palm. 109 ; 2 RoUe's Rep. 243 ; Sallours v. Girling, Cro. Jac. 
 278, note a. 
 
 8 Brown v. Copp, 5N. H. 228. 
 
262 THE FORMALITIES, ETC., OF THE AWAED. 
 
 So also a stipulation concerning the time of publication must 
 be strictly complied with.^ 
 
 If the submission requires that there be a subscribing wit- 
 ness to the award, the failure to have such witness will be fatal ; 
 neither can it be cured after the award has been delivered to 
 the parties, even though the time allowed for making it has not 
 expired.^ 
 
 Where the submission requires the signatures of the arbitra- 
 tors upon the award to be witnessed ; if the signatures of two 
 are witnessed, and that of the third is not, the execution will 
 be held sufficient, provided that the award of two would be 
 binding. For then the signature of the third may be rejected 
 as surplusage.^ 
 
 In Iowa it has been held that though the submission in a lis 
 pendens, and also a statute under which the submission was 
 entered into, both required the award to be " inclosed and 
 sealed, and transmitted to the court," yet a neglect of these for- 
 malities would not be fatal if the award was in fact handed by 
 one of the arbitrators to the clerk of the court, and by this 
 means all possibility of unfairness was disproved.* For the 
 obvious purpose of these requirements would have been by this 
 means thoroughly secured. But the doctrine upon which this 
 ruling is based is dangerous, though in this specific cause it 
 perhaps seemed just. Complete uncertainty would be intro- 
 duced if it should once become established that a distinct 
 statutory order might be dispensed with, if by some other 
 means the apparent purpose of that order was satisfactorily 
 effected. 
 
 In England, a requisition that the award should be not only 
 written and sealed, but also indented, was considered, in an 
 old case, to be sufficient to render an award, written and sealed 
 
 1 Pratt V. Haekett, 6 Johns. 14. 
 
 ' Bloomer v. Sherman, 5 Paige, 575 ; Buck v. Wadsworth, 1 Hill, 321 ; Pratt 
 1^. Haekett, 6 Johns. 14. 
 
 3 Ott V. Sohroeppel, 1 Seld. 482. 
 
 * Higgins V. Kinneady, 20 Iowa, 474. 
 
THE FOEMALITIES, ETC., OF THE AWARD. 263 
 
 but not indented, void.^ This opinion has, however, been since 
 overruled,^ or, as Mr. Russell says, has " been scouted by the 
 court." ^ 
 
 Stipiilations construed as Conditions Precedent. — A submission 
 in pais, stipulating that the award shall be returned into court, 
 and that judgment shall be entered and execution .be issued 
 thereupon, may be so phrased that this provision shall be a 
 conditional clause, or it may be so phrased that it shall be only 
 a distinct and independent stipulation. 
 
 A case of this de_scription arose in Massachusetts, upon an 
 agreement to extend time, as follows : " It is further agreed by 
 the parties that the report of referees shall be deemed and 
 taken to have been made in due season, if made at and during 
 the session of the Court of Common Pleas, to be holden at said 
 B., on the first Tuesday of April next, it being agreed that 
 the award be made to said court, judgment to be entered and 
 execution to issue accordingly." It was held (^per Shaw, C. J.) 
 that, admitting the clause in this instance to be conditional, 
 though it was doubted whether it was properly so, it was at 
 least " plainly a condition subsequent, and did not impair, 
 limit, or suspend the authority of the arbitrators." Neither 
 did it begin to operate until they had " finished their duties." 
 The award, once made, became binding without the adjudica- 
 tion of the court, unless such adjudication was required by the 
 clause in question. But inasmuch as the court could possibly 
 " have no jurisdiction, and could render no effectual judgment," 
 and the return of the award to the court " would, therefore, 
 have been a useless or idle act," it followed that the neglect to 
 make such return was matter of no account, and did not inval- 
 idate the award.* 
 
 Award under Statute must Comply with the Statute. — An 
 award in a statutory arbitration should strictly conform to the 
 
 1 Hintou V. Cray, 3 Keb. 512. 
 
 2 Gatliffe v. Dunn, Barnes, 55. 
 
 3 Russell on Arb., 3d ed. p. 235. 
 * Foster v. Durant, 2 Cush. 544. 
 
264 THE FOEMAXITIES, ETC., OF THE AWARD. 
 
 statutory requirements. If it fails to do so, it maybe void alto- 
 gether, and certainly it cannot be sustained as a statutory award.^ 
 
 But may be Upheld if it does not so Comply. — Yet an award 
 in a statutory arbitration, intended to b6 statutory, and which 
 should therefore comply strictly with all the requisitions of the 
 statute, may sometimes be upheld, although it fails of such 
 compliance. To this end it must appear that the upholding 
 would be in furtherance rather than in contravention of the will 
 and intent of the parties.^ And also that the purpose which 
 the statute sought to secure by means of t\\e neglected require- 
 ments has been, by some other means, amply satisfied.^ 
 
 A statute provided certain specific proceedings to be had for 
 •the enforcement of awards following submissions made under 
 it, but expressly declared that nothing contained in it should 
 impair or affect any action upon an award, or upon any bond 
 or other engagement to abide by an award. An arbitration 
 was had which was intended to be statutory. But the award 
 was not attested by a subscribing witness, though this formality 
 was required by the statute. The court held that the award 
 should be upheld as an award at common law, though it was 
 clearly not a basis for the peculiar proceedings given by the 
 statute;* 
 
 Strict Compliance may be Waived. — Strict compliance with 
 the stipulations of the submission may, however, be waived by 
 the parties by tlieir subsequent conduct.^ 
 
 "Whether or not strict compliance with statutory requirements 
 could be waived by the parties, without having the effect of 
 transmuting their arbitration, intended to be under the statute, 
 into a proceeding in pais, must be regarded as at best doubt^ 
 
 ' DarUng v. Darling, 16 Wis. 644 ; Steel v. Steel, 1 NeT. 27. 
 2 Ibid. 
 
 ' Higgins V. Kinneady, 20 Iowa, 474 ; cited ante, under " Instructions of Sub- 
 mission must be followed." 
 
 4 Darling v. Darling, 16 Wis. 644. 
 
 5 Sellick V. Addams, 15 Johns. 197 ; Perkins v. Wing, 10 Johns. 143 ; Tudor 
 V. Soovell, 20 N. H. 174. See under the head of " Waiver," and post under " De- 
 livery." 
 
THE FORMALITIES, ETC., OF THE AWARD. 265 
 
 ful. No case decides the point generally ; but those which 
 bear upon the question of whether or not a statutory require- 
 ment that arbitrators shall be sworn can be waived by the 
 parties, are in point so far as they go.^ 
 
 Award may be of a Sum in Gross. — Where many different 
 items of account, or separate demands for money, are presented, 
 or where there are counter-claims for money, the arbitrators 
 need not, as a general rule, pass upon them separately. Their 
 award of a gross sum due from one party to the other will 
 suffice.^ 
 
 Under a general submission of all demands, an award of a 
 certain sum of money as being due from one party to the other, 
 without further specifications or orders, will be sufficient.^ 
 
 Though if the submission distinctly requires a separate find- 
 ing of the amount due by each to the other, it must of course 
 be complied with ; and an award of a gross sum in the nature 
 of a stricken balance due by one only, will be bad.* 
 
 Or may be of each Item separately. — There can, however, 
 never be any objection to passing upon each item or claim 
 separately, provided the arbitrators see fit to be at the trouble 
 of doing so. And it has been held that an award which passed 
 upon each claim separately, and then neglected to strike any 
 balance, was nevertheless perfectly good. The action was debt 
 on the bond, by which the defendant bound himself to pay the 
 plaintiff the amount of the award. In five matters the findings 
 were for the plaintiff, in two they were for the defendant. The 
 court, per Redfield, C. J., said: "If the arbitrators made a 
 separate award upon each matter submitted, without stating 
 the final balance, giving to each party the balance coming in 
 his favor, we do not think this such a departure from the sub- 
 
 1 See Part II., Chap. IV., "Administration of Oath to Arbitrator." 
 
 2 Strong V. Strong, 9 Cush. 560 ; Shirley v. Shattuck, 4 id. 470 ; Bigelow v. 
 Maynard, ib. 317 ; Lamphire v. Cowan, 39 Vt. 420. 
 
 3 Shirley v. Shattuck, 4 Cush. 470; Strong v. Strong, 9 Id. 560; Spoflford o, 
 Spofford, 10 N. H. 254. 
 
 * Houston V. Pollard, 9 Mete. (Mass.) 164. 
 
266 THE FORMALITIES, ETC., OF THE AWARD. 
 
 mission as to be fatal to the award. If the defendant had 
 withheld his portion of the award, it might have been proper 
 enough for the plaintiff to have judg^ient on that portion in 
 his favor. But as this judgment is for the final balance, there 
 can be no possible objection to it on that ground." ^ 
 
 What- the Award must Contain. — The awardinust, of course, 
 contain that actual decision of the arbitrators which is the 
 result of their consideration of the various matters discussed 
 before them. But it need contain nothing else. The means 
 by which they have come to this conclusion, the reasoning or 
 principles on which they base it, are needless and superfluous.^ 
 Not only this, these may often work positive mischief, by induc- 
 ing the losing party to contest the award on the ground that 
 the principles are false, or the deductions incorrect, and may 
 thus tend to promote that very delay and litigation which it was 
 the chief purpose of the arrangement for arbitration to avoid. 
 But the insertion of such matter in the award does not affect 
 its validity. It " is not exceeding the terms of the submis- 
 sion ; " and the " only effect that it can have upon the award is 
 to furnish the means of testing its accuracy." ^ 
 
 It was said by the court in Vermont, that " the fact that the 
 arbitrators have stated results, without the processes which led 
 to them, does not make the award uncertain. To make the 
 award invalid, it must be the decision which is left uncertain, 
 not the reasoning which led to the decision." So where the 
 affairs of a partnership were to be settled, it was held that the 
 amounts claimed by the several partners, the respective accounts 
 of the parties, and the findings upon these, need not be stated. 
 But an award, finding only that a certain sum was due from one 
 partner to the other, and giving directions concerning the pay- 
 
 1 Kendrick v. Tarbell, 26 Vt. 416. And see Camochan v. Christie, 1 Wheat. 
 446. 
 
 2 Patterson v. Baird, 7 Ired. Eg. 255 ; Blossom v. Van Amringe, 63 N. C. 65 ; 
 Lamphire v. Cowan, 89 Vt. 420. 
 
 8 Stewart v. Cass, 16 Vt. 663. 
 
THE FORMALITIES, ETC., OF THE AWARD. 267 
 
 ment of the partnership debts and the collection and disposi- 
 tion of assets, was considered good.^ 
 
 Award need not Order Release. — Where the submission itself 
 embodies an agreement for a release of rights or demands 
 according to the award, or where the award itself by its legal 
 effect necessarily operates as a bar or estoppel against the 
 enforcement at law of such rights or demands, or if it actu- 
 ally extinguishes them, the execution of a release by the party 
 need not be directed.^ In Cox v. Jagger, the submission was 
 for the purpose of determining what sum should be paid to a 
 widow in lieu of her dower. The award found the sum, but did 
 not order a release of her dower to be executed by the widow. 
 But this was said by the court to be unnecessary, for two rea- 
 sons : First, because in the submission the widow had specifi- 
 cally stipulated and bound herself to release her dower, and 
 " this act being provided for by the parties, it became unneces- 
 sary for the arbitrators to direct a release." Second, because 
 the arbitrators awarded that all suits touching the premises 
 should cease, and that the yearly sum of thirty-five dollars is 
 in lieu of the right of dower, and since, " in consequence of 
 this award, the demandant could not maintain an action, the 
 effect, as it respects the defendants, is the same as if a release 
 had been awarded and actually executed." 
 
 Nor Discontinuance. — An award under a submission, entered 
 into in a pending cause, need not direct the discontinuance of 
 the cause. " The legal effect of the submission, and the mak- 
 ing an award pursuant to the submission, is to put an end to 
 the suit." 8 
 
 But the submission must be entered into between the parties 
 to the suit ; and the award must be good as between them, and 
 must operate as a final disposition of the cause of action. In 
 
 1 Lamphire v. Cowan, 39 Vt. 420. 
 
 2 Cox V. Jagger, 2 Cow. 638 ; Spofford v. Spofford, 10 N. H. 254 ; Purdy v. 
 Delavan, 1 Caines, 320. 
 
 8 Rixford V. Nye, 20 Vt. 132. 
 
268 THE FORMALITIES, ETC., OF THE AWARD. 
 
 the absence of these facts it is certain that the failure to order 
 a discontinuance will be fatal, and the language of the decision 
 would by no means authorize the inference that, under any and 
 all circumstances, the courts of New York would be willing 
 to dispense with such an order.i 
 
 Russell says, " when the terms of the submission are such 
 that the award will be final and certain, without showing in 
 whose favor the cause referred is decided (though that is rarely 
 the case, and never when costs abide the event of the cause and 
 are to be taxed by the of&cer of the court), it is sufficient if the 
 arbitrator somehow dispose of the cause absolutely." ^ 
 He gives the English adjudications, as follows : — 
 Awards that all suits now pending between the parties shall 
 cease, are regarded as constituting a final determination of the 
 suits. They are not equivalent to ordering a nonsuit, and 
 leaving it open to the plaintiff in the pending causes to institute 
 other suits. But the cause of action is itself taken away. The 
 suit is to " cease absolutely for ever, so that the right itself is 
 gone, because the remedy is quite taken away ; for if the suit 
 fail, the party has no remedy to come at his right." ^ In the 
 cited case of Knight v. Burton, the award was that a suit in 
 chancery should be " dismissed." The court said, " We will 
 intend this to be meant of a substantial dismission and a per- 
 petual cesser in this case. If a man be to deliver up a bond to 
 be cancelled by such a day, and he sues and gets judgment in 
 the interim, and then delivers up the bond, this is a performance 
 in the letter, but not in the intent. So will be such a dismis- 
 sion, in case a new bill be brought afterwards." Though an 
 old English case is to a contrary effect, and in spite of an 
 award that all pending legal proceedings, if any, should be no 
 further prosecuted, it was asserted that the plaintiff might 
 
 1 Vosburgh v. Same, 14 Johns. 302. 
 
 2 RusseU on Arb., p. 324. 
 
 3 Simon v. Gavil, 1 Salk. 74 ; Knight v. Burton, ib. 75. And see Lord v. 
 Hawkins, 2 Hurl. & Nor. 55. 
 
THE FOKMALITIES, ETC., OF THE AWARD. 269 
 
 bring a suit, if he had not already brought one ; and if he had 
 already brought one, he might discontinue it and bring an- 
 other.i 
 
 But an award of a discontinuance is perfectly satisfactory. 
 An award that each party should pay his costs in certain ac- 
 tions, and that the actions should be discontinued, is final and 
 good, and is in effect an award of a stet processus? 
 
 Award of a Nonsuit. — An award of a nonsuit does not operate, 
 in the manner aforesaid, to take away the right of instituting 
 a new suit. It is held not to be good as a determination of 
 the cause, by reason of its want of finality.^ 
 
 A cause and all matters in difference were submitted, with 
 authority to the arbitrator to direct a verdict or a nonsuit to 
 be entered. The award was simply that a verdict, already en- 
 tered in the cause in favor of the plaintiff, should be vacated, 
 and that a nonsuit should be entered ; and the matters at issue 
 in the cause were in no other way disposed of. The award 
 was held bad, as not finally determining the matters in dif- 
 ference in the cause. The court held that such determination 
 was necessary, and that the power to enter a nonsuit was only 
 given to the arbitrator for the subordinate purpose of enabling 
 him to dispose of the cause on the record. A verdict migbt 
 have had the effect of a decision, and of setting the disputes 
 for ever at rest, which a nonsuit could not have. Parke, B., 
 dissented regarding the termination of the pending suit by a 
 nonsuit as terminating the cause in accordance with the stip- 
 ulation of the parties.* 
 
 Some pectiliar Forms of Awards by means of Promissory 
 Notes. — It may be worth while to mention some few instances 
 of awards taking the unusual and anomalous shape of promis- 
 
 1 Tipping V. S«Qith, 2 Strange, 1024. 
 
 2 Eussell on Arb., p. 325 ; Blanchard v. Lilly, 9 East, 497 ; Gray v. Gray, Cro. 
 Jac. 525. 
 
 3 Knight V. Burton, 1 Salk. 75. 
 
 < Wild V. Holt, 9 Mee. & W. 161 ; Eussell on Arb., p. 234. 
 
270 THE rOEMALITIES, ETC., 01' THE AWARD. 
 
 sory notes of a party, since they may occasionally be of ser- 
 vice by way of analogy or otherwise. 
 
 A submission was made by parol, and each party made his 
 promissory note, and placed it in the hands of the arbitrators. 
 The agreement was, that the arbitrators should hand to the 
 party in whose favor they should decide the note of the other 
 party. It was held that the recipient of the note of his adver- 
 sary might maintain suit upon it. Want of consideration was 
 set up as a defence, but the court said that it could not be main- 
 tained. " The note in question may be regarded as the award 
 of the arbitrators. It was conditional when made and put 
 into their hands, to become consummated by their decision of 
 the matter submitted ; and by such decision it has become 
 absolute for the payment of the money awarded to the plain- 
 tiff." No evidence of " corrupt practices or improper conduct 
 on the part of the arbitrators . . . being presented in this 
 case, we think the award final and conclusive." ^ 
 
 A somewhat different theory as to the character of a note, 
 given in a substantially similar way, has been adopted in New 
 Hampshire. The case was as follows : Arbitrators agreed 
 upon an award, and stated the fact of their agreement to the 
 parties, without, however, disclosing what the award was. It 
 was thereupon- agreed verbally between the parties that the 
 arbitrators should write mutual receipts, also a note for the 
 amount awarded by them, and that all these instruments 
 should be signed by the parties respectively without seeing or 
 knowing the contents. This course was pursued. The arbi- 
 trators gave to each party the receipt of the other, and 
 handed the note to the party who was payee. In a suit upon 
 the note the court said that, stripped of its peculiar form, the 
 note might be properly regarded as a promise or undertaking 
 by the losing party to pay the amount of the award, and as 
 such it would be binding. The adjustment of the controversy 
 
 1 Shephard v. Watrous, 3 Caines, 166. 
 
THE FORMALITIES, ETC., OF THE AWARD. 271 
 
 by the mutual receipts formed a sufficient consideration for 
 such an engagement. Another view which might be taken of 
 the same case was said to be that the note might be regarded 
 as expressly given to secure the amount of the award. The 
 award itself shoiild then be considered as constituting the con- 
 sideration for the note, and the note should be considered as 
 agreed to be given and received either as security for, or in 
 discharge and payment of, the award. The only plausible 
 objection to the validity of the note, under either of these 
 views, would be that the losing party might lose his opportu- 
 nity of objecting to the validity of the award itself " But the 
 same objection applies, to a certain extent, to all submissions 
 not made under some rule from a court or magistrate." Be- 
 cause in actions on an award, matters dehors the award cannot 
 be availed of in defence, the only redress being in chancery. 
 " How far, in the absence of a Court of Chancery, we ought to 
 admit such evidence to defeat an action on the promise or on 
 the award, is questionable. But iu an action on a note by the 
 promisee, when the note is in substance such a promise, or only 
 security for such an award, the same defence would seem to 
 be admissible that would be on either the original promise or 
 the award." The same rule would obtain if the theory adopted 
 should be that the note was given and received by agreement 
 in actual discharge and payment of the award. It was further 
 suggested that the maker of the note might waive his right to 
 object to the award, by paying and discharging the same, whether 
 by a note or by money. If he " deliberately chose to fulfil and 
 execute the award ; or, in other words, if he actually waived 
 by this note every privilege he might otherwise have possessed 
 to impeach the award, blame rests upon himself alone." The 
 validity of the note appears to have been the only question 
 really at issue in this cause, and that was upheld.^ 
 
 In neither of the foregoing cases was any defence, going to 
 the validity of the award, o^ered by the defendant. Conse- 
 
 1 Page V. Pendergast, 2 N. H. 233. 
 
272 THE FORMALITIES, ETC., OF THE AWARD. 
 
 quently neither of them contains a direct adjudication upon the 
 admissibility and effect of evidence of sucli a nature. But 
 the closing remark of the court, in Shephard v. Watrous, and 
 the oliter dictum in Page v. Pendergast, both point distinctly 
 to the rule that a defence of this kind would be competent and 
 good in a suit on the note. 
 
 As a general rule, it may be said that notes, executed by the 
 parties respectively at the time of the submission, and placed 
 in the hands of the arbitrators, with directions to them to 
 indorse down the note of the losing party to the sum they 
 shall find against him, and then to deliver it to the party in 
 whose favor they find, are valid, after they have been thus 
 indorsed down and delivered.^ 
 
 But it seems that if the award is altogether void, a note of 
 a party deposited with the arbitrators, and by them handed to 
 the other party, cannot be collected in a suit by the latter. In 
 the case of Towne v. Jaquith,^ decided in MassEichusetts in 
 1809, the statement of the case recites that the parties sub- 
 mitted to three arbitrators a dispute as to the quantity and 
 value of certain timber ; that the referees " persuaded each 
 party to subscribe a note payable to the other for 12000.00, 
 intending, when they had determined the amount due from 
 either, to deliver both notes to the prevailing party, after hav- 
 ing indorsed on the one payable to him such sum as would 
 leave due thereon the sum which they should find actually due 
 upon the adjustment. Two of the arbitrators agreed upon the 
 balance," fixing it at $1300.00. They reduced the note of the 
 losing party to this sum, by indorsement, and then delivered 
 both notes to the gaining party. In the suit on the reduced 
 note, the defendant alleged that the award was invalid, because 
 made by two only of the arbitrators, whereas the submission 
 coatained no authority for less than the whole number to make 
 the award. The court held that the notes were " deposited as 
 
 » Battey v. Butler, 13 Johns. 157 ; Page v. Pendergast, 2 N. H. 233. 
 3 6 Mass. 46. 
 
THE FORMALITIES, ETC., OF THE AWARD. 273 
 
 mutual pledges, to secure the performance of an award by three 
 arbitrators ; . . . that the promisee obtained the note in ques- 
 tion in consequence of an award, consented to by two of the 
 arbitrators, against the opinion and without the consent of the 
 other ; " that, therefore, the note could not be enforced either 
 by the original payee, or by his indorsee taking it with knowl- 
 edge of these facts. 
 
 In the following case, also, the court refused to give the note 
 the force which the arbitrators intended. An award, returned 
 into court under a statutory submission, was, that A. owed to B. 
 $1229.66, and that the note of A., held by B., for 12000, " has 
 been indorsed down to the sum of $1229.66, which note, thus 
 indorsed down, is the amount of our award ; and said note, so 
 indorsed, is held by said B. as our award." Held, that, with- 
 out passing upon the question of whether or not the award 
 might not be upheld as a basis of adjustment between A. and 
 B., it was yet perfectly obvious that it did not authorize the 
 issue of an execution against A. in favor of B. for the sum 
 declared to be due. The court said : " The award does not 
 authorize the judgment and execution thereon, because, on the 
 face of it, it does not award that B. is to recover any sum in 
 money from A." It finds the sum due, and indorses the note 
 down to that sum, " thus directing in what manner B. is to 
 hold the evidence that A. is indebted to him, but not discharg- 
 ing the note nor assuming to cancel it, but, on the contrary, 
 directing it to be retained by B., the payee ; all which is entirely 
 inconsistent with the idea that a judgment is to be rendered by 
 the court for so much money, and an execution to issue there- 
 for." 1 
 
 The question, whether or not, if the payment upon the note 
 has been made to a third party, a iona fide holder without no- 
 tice of the facts causing the invalidity, the payer can recover 
 back from the original payee, is left in doubt by the following 
 case, in which the court avoided passing upon it by taking 
 
 1 Day V. Laflin, 6 Mete. (Mass.) 280. 
 18 
 
274 THE FORMALITIES, ETC., OE THE AWARD. 
 
 advantage of a nice point of pleading. The parties to a sub- 
 mission made their respective notes, and placed them in the 
 hands of the arbitrators. The arbitrators were to indorse down 
 the note of the losing party to the amount which they should 
 find against him, and deliver it in this shape to the other. 
 They did so ; and the party who received the note afterward 
 indorsed it over to a third party, to whom the maker paid it. 
 The maker then sued the successful party to recover the 
 amount so paid by him, on the ground that the award was void. 
 On special demurrer the plaintiff's declaration was held bad, 
 because it failed to aver that the transfer of the note was made 
 before maturity. If the note was void, " payment of it should 
 have been resisted if the defence was admissible ; and, if not, 
 the declaration in this case should show why it was not. It 
 was, therefore, a material averment, that the note was trans- 
 ferred before it fell due, so as to show that the defence could 
 not have been then set up against the note in the hands of an in- 
 nocent indorsee, to whom it was transferred before it fell due." ^ 
 If the stipulation is for an award, to be made by means of 
 the note of the losing party, it must be made in this shape, or 
 not at all. An ordinary finding of indebtedness will be void 
 under such a submission. The agreement between A. and B., 
 parties to a submission, was, that A. should deliver to the arbi- 
 trators his note for five hundred dollars, and B. should deliver 
 to them a receipt in full for all demands against A. The arbi- 
 trators were to find how much was due from A. to B., were to 
 reduce the note to that amount, and deliver it, so reduced, to B., 
 and were then to deliver the receipt to A. Whether or not the 
 note and receipt were ever placed in the hands of the arbitra- 
 tors did not appear. But they awarded that A. should pay to B. 
 the sum of five hundred dollars on a day and at a place named, 
 and that the payment should be in full satisfaction of damages 
 and loss suffered by B. in closing up his labors and leaving the 
 premises. Held, the award was void. The arbitrators had no 
 
 1 Battey v. Button, 13 Johns. 187. 
 
THE FORMALITIES, ETC., OF THE AWARD. 275 
 
 authority to make it in any other shape than by means of the 
 note and receipt, as stipulated in the submission. If the note 
 and receipt had not, in fact, been delivered to them, this omis- 
 sion did not operate to enlarge their power and enable them to 
 make an award in any other manner, but, on the contrary, left 
 them without any authority in the premises whatsoever.^ 
 
 Professional Assistance in DraTwing A-ward. — In England it is 
 considered " highly objectionable " for an arbitrator, even after 
 coming to his decision, to employ the lawyer of a party to the 
 submission to draw it up in legal form. " It may even endan- 
 ger the award being set aside." ^ 
 
 Erie, C. J., in In re Underwood and Bedford & Cambridge 
 Eailway Company, said that he must " highly disapprove " of 
 this course of the arbitrator, as subjecting him to the sqspicion 
 of having been swayed by communications or information 
 derived from one side only. But an afiSdavit by the arbitrator 
 positively denied that he had had advice or assistance from or 
 communication with this counsel until after he had fully made 
 up his mind as to the sum he should award ; and other evidence 
 corroborated this statement. Wherefore the judge said, he 
 did not feel justified in going so far as to set aside the award, 
 but he thought enough appeared to afford a justification for the 
 appeal to the court, and therefore he ordered that the rule 
 should be discharged without costs. 
 
 But it has been already stated ^ that, after the arbitrators 
 have come to their conclusion, there is no objection to their 
 availing themselves of professional assistance in drafting their 
 award, provided they do not resort to the counsel of either 
 party. 
 
 Recitals of the Submission and Proceedings in the Award. — 
 There is no legal necessity for a recital in the award of any 
 
 i Allen V. Galpin, 9 Barb. 246. 
 
 2 Russell on Arb., p. 236 ; In re Underwood and Bedford & Cambridge 
 Railway Co., 11 C. B. n. s. 442; 31 L.J. C. P. 10 ; Fetherstone v. Cooper, 9 Ves. 
 Jr. 67. 
 
 ' Part II., Chap. V., the paragraph on Delegation of Authority. 
 
276 THE FORMALITIES, ETC., OP THE AWARD. 
 
 portion of the submission. Yet recitals verbatim of so much 
 of the submission as confers upon the arbitrator his authority, 
 and describes the subject-matter concerning which his author- 
 ity is to be exercised, are of frequent occurrence. It would be 
 difl&cult to suggest any objection to a verbatim recital ; and, 
 upon the other hand, it has the advantage of presenting with 
 accuracy, for use in future time, a record of the matter in dis- 
 pute, and which the arbitrators assume to have disposed of. 
 Then, though the submission itself may happen to be lost, the 
 deficiency may be supplied from the very document relied upon 
 as establishing the decision. But a recital paraphrasing or 
 briefly compressing the substance of the submission in the 
 aforementioned particulars, is open to the objection that some 
 real or, fancied discrepancy between the two instruments might 
 be made the source of sincere or pretended misunderstanding, 
 and of consequent litigation. If any recital is made, it is, 
 therefore, safest to use the very words of the parties. 
 
 But no recital of any description whatsoever, whether from the 
 submission or concerning the proceedings, is essential to the 
 validity of the award. If made, it will be entirely gratuitous. 
 
 Accordingly an award need not recite the various facts nec- 
 essary to give it validity. Their actual existence is suflBcient, 
 and will be presumed, until the contrary is affirmatively proved. 
 Thus it need not be stated, or made to appear upon the face 
 of the award, that the parties were heard ; i or that all the legal 
 evidence presented by either party was admitted ; ^ or that aU 
 the arbitrators were present at the hearing.^ An extension of 
 time need not be recited, even though the award is made after 
 the expiration of the period originally set.^ Neither need the 
 arbitrator state that he has done any specific act, his doing 
 which was prescribed in the submission as a condition prece- 
 
 1 Houghton V. Burroughs, 18 N. H. 499. 
 
 2 Inhabitants of Leominster v. Worcester R.R. Co., 7 AUen, 88. 
 8 Rixford v. Nye, 20 Vt. 132. 
 
 « Baker v. Hunter, 16 L. J. Exch. 203 ; 16 Mee. & W. 672 ; George v. Lonsley, 
 8 East, 12. 
 
THE JOEMALITIES, ETC., OF THE AWARD. 277 
 
 dent to his right to proceed in the arbitration and to award ; as, 
 for example, taking a view of the premises in dispute.^ 
 
 So where an arbitrator was not to proceed with the arbitra- 
 tion until after he had awarded in a certain specified action, his 
 neglect to state that he had awarded in that action was not 
 regarded as a ground for vacating his award. It was pre- 
 sumed, in the absence of contrary evidence, that he had taken 
 this step, which was a necessary preliminary to qualify him to 
 arbitrate.^ 
 
 Erroneous Recitals. — An erroneous or false recital, made by 
 the arbitrator, if it be merely concerning his authority, appears 
 to be an immaterial matter. It does not enlarge his authority ,3 
 nor does it invalidate his award.* Provided it does not appear 
 that, as matter of fact, he has acted upon this enlarged concep- 
 tion of his powers, and has considered things which he ought 
 not to, no real harm is done by the mere misunderstanding. 
 
 An arbitration bond was entered into between A. and B. 
 concerning a boundary line. At the argument it aippeared 
 that another controversy, also concerning a boundary line, was 
 pending between B. and C, and had been by them submitted, 
 by other bonds, to these same arbitrators. In their award, 
 under the submission between A. and B., the arbitrators re- 
 cited that A. and C. of the one part, and B. of the other part, 
 had submitted their differences. But they proceeded to deter- 
 mine the line " between said A. and B.," and were silent as to 
 the line between B. and C. Held, that the inaccurate recital 
 did not affect the validity of the award.* 
 
 Erroneous statements, embodied in the award, concerning 
 facts or occurrences during the proceedings, are not necessa- 
 
 1 Spence u. Eastern Counties Railway Co., 7 Dowl. 697 ; Davies v. Pratt, 25 
 L. J. C. P. 71 ; 17 C. B. 183. 
 
 2 Davies v. Pratt, 17 C. B.JISS. 
 
 3 Difblee w. Best, 11 Johns. 103 ; Price v. Popkin, 10 Ad. & EI. 139. 
 
 * Dibblee v. Best, 11 Johns. 103 ; Watkins v. PhEpotts, MXel. & Y. 393 ; 
 Baker v. Hunter, 16 Mee. & W. 672. 
 6 CaldweU v. Dickinson, 13 Gray, 365. 
 
278 THE FORMALITIES, ETC., OF THE AWAED. 
 
 rily fatal to the validity of the instrument. For example, the 
 misnomer, in an umpire's award, of the Christian name of an 
 original arbitrator ; ^ the statement that the umpire was chosen 
 by the parties, instead of by the arbitrators ; ^ an erroneous 
 recital of the date of the submission ; ^ or of an extension of 
 time, even though thereby the award appeared to have been 
 made too late ; * a misstatement of the extent of the subject- 
 matter ; ^ or where the award recites that it is made by three, 
 and in fact it is executed only by two.^ 
 
 But it is conceivable that an erroneous statement concerning 
 a fact essential to the validity of the award might be a different 
 matter, and might have a different effect from the comparatively 
 harmless instances of error above noted. Thus a recital of an 
 appearance by a party, when there had not been an appearance, 
 would be too material an error to be overlooked. Of course, 
 as against the non-appearing party, the award would be void. 
 The false statement could not bring him within its operation. 
 But wljether or not, if there were other parties, as between 
 whom the award would be valid, this error would suffice to 
 vacate it, is a question which no adjudication determines. 
 
 Referee need not Report Evidence. — A referee, unless spe- 
 cially ordered so to do by the court, need not report his rulings 
 upon the admission or rejection of testimony.^ Indeed, it is 
 the general and familiar practice for him not to do so. 
 
 stipulations for Delivery of the Award. — A stipulation that 
 the award shall be delivered or ready for delivery on or before 
 a day certain, or within a time named, is of frequent occur- 
 
 1 Trew V. Burton, 1 Or. & M. 533. 
 
 2 Adams v. Adams, 2 Mod. 169 ; Vln. Abr. Arb. N. 2, 3. 
 
 3 Dole V. Dawson, 2 Keb. 878; Vent. 184; Ingram u. Webb, 1 Eolle's Hep. 
 362. 
 
 < Addison v. Spittle, 6 Dowl. & Low. 531 ; Baker v. Hunter, 16 Mee. & W. 
 672 ; George v. Lonsley, 8 East, 12. 
 
 5 Paul! V. Paull, 2 Cr. & M. 235; 2 Dowl. 340 ; Kynaston v. Jones, Styles, 97. 
 
 6 White V. Sharp, 12 Mee. & W. 712 ; 1 Dowl. & Low. 1030 ; overruKng Thom- 
 as V. Haj-rop, 1 Sim. & St. 524. 
 
 7 State V. Petticrew's Ex'r, 19 Mis. 373. 
 
THE FORMALITIES, ETC., OF THE AWARD. 279 
 
 rence in submissions. Mr. Russell says : " When it is made, 
 it is ready to he delivered, and the court will so intend it, espe- 
 cially where it is to be ready to be delivered on request." ^ 
 The delivery need not actually take place, if the stipulation be 
 only that the award shall be ready for delivery. The status of 
 readiness will be sufficient.^ 
 
 The American rule resembles the English. That an award 
 was ready for delivery upon a certain day, will be inferred from 
 the fact that it was made and executed, or that it was made 
 and published, or even from the simple fact that it was made 
 on that day.^ 
 
 A stipulation that it shall be made, is not equivalent to 
 a stipulation that it shall be delivered. A bond was condi- 
 tioned to abide by such award as should "be made in writing 
 on or before " a day named. It was held that " nothing more 
 was necessary than that the award should have been made 
 within the 'term appointed." ^ 
 
 A submission required an award to be ready on a certain 
 day. All that appeared was, that it was first called for on the 
 next day after that named, and that it was then delivered in a 
 complete state. But it bore date on the day of delivery. 
 Held, that the mere fact of the date was not sufficiently strong 
 evidence to overcome the presumption in favor of regularity 
 and accuracy on the part of the arbitrators.^ 
 
 But the readiness must be complete, so that the delivery of 
 a valid and perfect instrument could be made, if it should be 
 demanded by a party. An award, drawn and executed in every 
 
 1 Russell on Arb. and Award, 3d ed. p. 237, citing Veale v. Warner, 1 Saund. 
 327 6, notes ; Garret v. Weeden, 1 Lev. 133 ; Bradsey v. Clyston, Cro. Car. 541 ; 
 Marks v. Harriot, 1 Ld. Raym. 114 ; Freeman v. Bernard, ib. 247 ; Joyce u. 
 Haines, Hard. 399 ; Robison u. Calwood, 6 Mod. 82 ; Anon., 2 Ld. Raym. 
 989. 
 
 2 Brown v. Vawser, 4 East, 584. 
 
 3 Rundell «. La Fleur, 6 Allen, 480; Houghton v. Burroughs, 18 N. H. 
 499. 
 
 * Houghton V. Burroughs, 18 N. H. 499. 
 6 Owen V. Boerum, 23 Barb. 187. 
 
280 THE FORMALITIES, ETC., OE THE AWARD. 
 
 particular, but not duly stamped, is, by reason of that defi- 
 ciency alone, not ready for delivery.^ 
 
 It was said by Chancellor Walworth, in Bloomer v. Sher- 
 man,2 that where, by the terms of the submission, the award is 
 to be made in a particular form, the award is not made and 
 ready for delivery until all the required forms are complied 
 with. Thus where the submission stipulated for the attesta- 
 tion of a subscribing witness, it was held that this attestation 
 would be absolutely indispensable at common law before the 
 state of readiness. for delivery could begin to exist. 
 
 But a stipulation for delivery is fulfilled only by actual deliv- 
 ery, and the award, though ready, is void if not delivered at or 
 within the time named.^ 
 
 It is not necessary that a copy of the award should be fur- 
 nished to each party, if neither the submission, nor the statute 
 under which the submission is made, specially require such 
 delivery.* 
 
 Delivery must be of the Original Award. — If the submission 
 contains no stipulation to the contrary, delivery of the original 
 award should properly be made, and can be claimed by either 
 party. But if, before the time limited for the delivery has 
 elapsed, a sworn copy of the award be delivered to each party, 
 and be received by each without objection, this will constitute 
 a waiver of the right to receive the original, and its retention 
 by the arbitrators will not affect its validity.^ 
 
 Delivery in Duplicate. — If the submission contain a condi- 
 tion or stipulation for delivery of the award to " the parties," 
 duplicate originals or counterparts miust be prepared, one for 
 each party, or the award may be avoided.^ " The only 
 
 1 Wilson V. Wilson, 1 Saund. 327c, n. (m). See this case stated, post, under 
 " Pleading concerning Delivery." 
 
 2 5 Paige, 575. 
 
 3 Russell on Art., 3d ed. p. 238. 
 
 * Wade V. Powell, 31 Geo. 1 ; Houghton v. Burroughs, 18 N. H. 499. 
 
 5 Sellick V. Adams, 15 Johns. 197 ; Houghton v. Burroughs, 18 N. H. 499. 
 
 6 Buck V. Wadsworth, 1 Hill, 321 ; Pratt v. Haokett, 6 Johns. 14. 
 
THE FORMALITIES, ETC., OF THE AWARD. 281 
 
 method," said Cowen, J., " by which the condition of a bond 
 such as this can be rendered binding, is by the arbitrators 
 executing and delivering two parts, unless one party shall 
 expressly discharge them of that necessity, as by telling them 
 they need make no counterpart, for he will not receive it ; or, 
 as in Sellick v. Adams,^ by accepting sworn copies in lieu of the 
 original, without objection." ^ So, likewise, it has been held, 
 rather rigidly, in England, that a requirement of delivery to 
 either party is satisfied only by delivery to both parties.^ 
 
 Waiver of Actual Delivery. — Though there be a stipulation 
 for delivery, yet actual delivery may be waived by the parties. 
 An arbitration bond was conditioned " so as the award be in 
 writing under the hands and seals of the arbitrators, or a 
 major part of them, and ready to be delivered to the parties in 
 difference, or any of them requiring the same, on or before the 
 first day of September then next." On the question of a deliv- 
 ery under this stipulation, the court, per Kent, 0. J., said 
 that " the evidence was sufficient to show that the defendants 
 had admitted a delivery, or waived the necessity of any. The 
 award was, on the 25th of August, duly executed and pro- 
 duced to the parties ; and it was twice read over by the arbitra- 
 tors to the defendants, and they appeared to be satisfied with 
 it, and promised to perform it, and did, in fact, make a part 
 performance, by paying sixty-three dollars, which was part of 
 the sum awarded to be paid ; and they did not require a copy 
 of the award, or a duplicate original ; and the arbitrators then 
 finally separated. This was the consummation of the business. 
 The defendants were concluded from alleging afterwards, that 
 the award had not been delivered according to the condition of 
 the bond. They were bound to speak then, at the time of the 
 publication, and when the arbitrators were on the point of cpn- 
 
 1 15 Johns. 197. 
 
 2 Buck V. Wadsworth, 1 HiU, 321. 
 
 3 Russell on Arb., 3d ed. p. 238 ; Parker v. Parker, Cro. Eliz. 448 ; Block v. 
 Palgrave, ib. 797. 
 
282 THE rOEMALITIES, ETC., OE THE AWAED. 
 
 eluding and dispersing, if they required any further notice, 
 j)ublication, or delivery. No circumstances could be stronger 
 from which to infer acquiescence in'that mode of delivery, and 
 a waiver of any delivery more formal. Evidence of part pay- 
 ment at that time was properly introduced to show the acqui- 
 escence of the defendants in the production and reading of the 
 award, as amounting to a delivery of it, and as being all the 
 delivery required." ^ 
 
 To whom Delivery is to be Made. — Delivery is custom- 
 arily made to the prevailing party, and, being thus made, is 
 sufficient, unless the submission calls for delivery to " the 
 parties," or otherwise specifically requires that duplicate origi- 
 nals or copies should be given to other persons.^ But, in Eng- 
 land, either party can generally obtain it, on payment of the 
 arbitrator's fees.^ Demand, even by a person entitled to 
 receive an award or copy, must be reasonably made, both as 
 regards time and place, and also as regards the member of the 
 board of arbitrators of whom it is made. Each arbitrator, as 
 the court in New Hampshire remarked, cannot be expected to 
 have a copy in his pocket at all hours. 
 
 The American practice with regard to delivery is said to be, 
 in the absence of express stipulations in the submission, that 
 the arbitrators deliver their award to the party deriving a title 
 or right of action under it, as being the party entitled, for 
 obvious reasons, to its possession. This is " all the delivery 
 known to our practice, and all that seems to be required for 
 the ends of justice." It is not customary for the arbitra- 
 tors to prepare as many awards as there are parties. Though 
 it might, in some exceptional cases, become proper to do so, if 
 each party, by the peculiar nature of the award, should derive 
 some title or acquire some right of action under it. Neither 
 is it usual for copies to be prepared for delivery to the unsuc- 
 
 1 Perkins v. Wing, 10 Johns. 143. 
 
 2 Houghton V. Burroughs, 18 N. H. 499 ; Buck o. Wadsworth, 1 Hill, 321 ; 
 Pratt V. Hackett, 6 Johns. 14. 
 
 3 EusseU on Arb., 3d ed. p. 238 ; Hicks v. Richardson, 1 Bos. & P. 93. 
 
THE FORMALITIES, ETC., OE THE AWARD. 283 
 
 cessful parties though Russell says the practice in England is 
 to deliver unstamped copies to the losing parties. ^ 
 
 ■What Constitutes Delivery. — A copy of an award was handed 
 by an arbitrator to the son of one of the parties, sixteen years 
 old, standing at the time near the house, and in charge of it, 
 and who immediately carried the document into the house. 
 Held, that this was a sufficient delivery to or service upon the 
 party .2 
 
 Delivery of an Oral Award. — An oral award is capable of 
 delivery, which will be made by pronouncing it to the parties.^ 
 When the case of Gates v. Bromhill first came before the 
 court,* they were much at a loss what to do with it, but after- 
 ward, upon another hearing,^ it was said, jper totam curiam, 
 " upon great consideration, notwithstanding the late case in the 
 Common Pleas, a parol award is capable of delivery, viz., a dec- 
 laration of it to the parties, or either of them, if they desire it ; 
 and that being so, as soon as the arbitrators have agreed on the 
 award, it is ready to be delivered." 
 
 Pleading Delivery. — The plaintiff's declaration need not aver 
 that the award was ready to be delivered on a certain day, if it 
 avers a making or publication on or before that day. The read- 
 iness is included in the making or publishing.^ But the 
 presumption may be rebutted by a direct averment, by the 
 defendant, of non-readiness,'' and will be destroyed by proof of 
 such non-readiness ; as, for example, by proof that a party 
 entitled to the award demanded it on the day, and that it was 
 refused to him.^ 
 
 1 Houghton V. Burroughs, 18 N. H. 499. 
 
 2 Conrad v. Johnson, 25 Ind. 487. 
 
 3 Gates V. Bromhill, 6 Mod. 176. 
 
 4 6 Mod. 160. 
 
 5 6 Mod. 176. 
 
 6 Munro v. Alaire, 2 Caines, 320 ; Pratt v. Hackett, 6 Johns. 14 (per Kent, 
 C. J.) ; Houghton v. Burroughs, 18 N. H. 499. 
 
 ' Pratt V. Hackett, 6 Johns. 14. 
 
 8 Houghton V. Burroughs, 18 N. H. 499 ; Wilson v. Wilson, 1 Saund. 327 c, 
 n. (m.) 
 
284 THE FORMALITIES, ETC., OF THE AWARD. 
 
 A condition in a submission was, " so as the said award be 
 made, and ready to be delivered and given up to the said 
 parties, or such of them as should desire it." The court said : 
 " The readiness of delivery need not to have been averred, 
 because the alleging an award made imports it. Nor is the 
 condition in the submission therefore vain ; for if, after the 
 award made, the parties, or either of them, had come and asked 
 the arbitrators what award they had made, and they had 
 refused to tell, then he might plead that it was not ready to be 
 delivered, showing that matter. So, perhaps, if the arbitrators 
 had died in so short a time after the award made that the party 
 could not have had convenient time to ask them, [the award in 
 this case was oral] . For the intent of the condition was, that 
 the parties should have notice of the award." ^ 
 
 How Non-delivery is to be Availed of. — If the defect tO be 
 relied upon is a non-delivery within the time stipulated, a plea 
 of " no award " will be bad. Request and refusal to deliver 
 must be specifically averred.^ 
 
 Kent, 0. J., said : " If the award had not been delivered 
 upon request, as the defendants contend, they should have 
 pleaded specially such a request and refusal. The objection 
 cannot be raised under the plea of no award. This rule has 
 been declared and settled repeatedly .^ The form of plea in 
 such a case is stated in Wilson v. Wilson, as reported in note, 
 § 3, in 1 Saunders, 327 b." In Saunders, at the place cited, 
 we find it stated that, " if either of the parties do, on the last 
 day, request the arbitrators to deliver the award to him, and 
 they neglect or refuse to do so, the bond is void ; and the 
 defendant must not say ' nul agard,' but he should plead the 
 matter specially, namely, that he requested the arbitrators to 
 deliver the award, and they refused to do so. . . . So, in a late 
 
 1 Oates V. Bromhill, 6 Mod. 176. 
 
 2 Perkins v. Wing, 10 Johns. 143 {per Kent, C. J.) ; Munro u. Alaire, 2 
 Gaines, 320. 
 
 3 Eowsby V. Manning, 3 Mod. 331 ; Markes v. Marryott, 1 Lutw. 524 ; Oatea 
 V. Bromhill, 6 Mod. 176. 
 
THE FORMALITIES, ETC., OF THE AWARD. 285 
 
 case of Wilson v. Wilson, C. P. Sittings in London, after 
 Hilary Term, 1798, before Eyre, 0. J., where in debt on bond 
 conditioned for performance of an award," conditioned to be 
 " ready to be delivered to the said parties in difference, or such 
 of them as shall require the same, on or before " a day named, 
 " the defendant pleaded that the arbitrators did make their 
 award on the day limited in the condition, and that he on that 
 day required them to deliver their award to him, but they 
 neglected and refused so to do; and issue being joined thereon, 
 it appeared in evidence that the arbitrators had made their 
 award on the day, but, because it was not stamped, refused to 
 deliver it to the defendant, according to his request ; and, upon 
 this evidence, the jury, under the. direction of his Lordship, who 
 thought it an extreme hard case, found that the arbitrators had 
 not complied with the condition of the bond, and gave a verdict 
 for the defendant ; and the plaintiff's counsel, being satisfied 
 both of the law and fact, acquiesced." 
 
 Publication of the Award. — Publication of an award is neces- 
 sary only where the submission expressly stipulates that it shall 
 be published or notified to the parties.^ 
 
 The American adjudications concerning what constitutes 
 publication are few, substantially as follows : — 
 
 Execution of an award in duplicate, and delivery of one of 
 the duplicate originals to each party to the submission, is a 
 publication.* 
 
 Where the award is delivered to the prevailing party, and by 
 him or his agent is carried to the losing party, who is thereupon 
 notified thereof, and requested to pay the amount, there is a 
 sufficient publication to the latter party ; and, of course, also to 
 the former.^ 
 
 The condition in an arbitration bond required the award to 
 be " made and published in writing." The court construed 
 
 1 Parsons v. Aldrich, 6 N. H. 264. 
 
 2 Plummer v. Morrill, 48 Maine, 184. 
 ) Enowlton v. Homer, 80 Maine, 653. 
 
286 THE FORMALITIES, ETC., OF THE AWARD. 
 
 this as meaning, not only that the award should be made in 
 writing, but that the parties should be enabled to obtain a 
 knowledge of it in writing. But it was not necessary that they 
 should be informed in writing that an award had been made, 
 and was subject to their examination. It appeared that one 
 of the parties had paid the fees of the arbitrators, and asked for 
 their copy of the award, which had been refused to him. But 
 this, as it was said, constituted no breach of the condition, 
 since it did not show that he might not have read it, had he 
 wished to do so. Shepley, 0. J., said : " It was stated, in the 
 case of Knowlton v. Homer, 30 Maine, 552, that an award 
 should be considered as published when the parties were in- 
 formed that it was within their reach, on payment of the 
 charges. This must be understood, when the condition of the 
 bond is like the present, to mean when they are legally entitled 
 to it, or to examine and read it. If it should be wrongfully 
 withholden from them, after the referees had fully performed 
 their duties, had made up and signed their award, and com- 
 municated it to them, its validity would not be thereby im- 
 paired." ^ 
 
 Where an award was executed by the arbitrators, and de- 
 livered by them to the successful party, within the time limited 
 by the submission, it was held that this was a sufficient publi- 
 cation of the award.2 It does not appear from the report of this 
 case that the submission contained any stipulation concerning 
 publication. 
 
 Where owners of adjoining estates, meeting with arbitrators 
 selected between them in relation to another dispute, agreed 
 orally that tliey should also run the line between the two 
 estates ; and with the assistance of the parties the arbitrators 
 accordingly did then and there run the line ; it was held that, 
 the parties being witnesses to the act, no formal publication was 
 required, or even expected.^ 
 
 1 Thompson v. Mitchell, 35 Maine, 281. 
 
 2 Rixford v. Nye, 20 Vt. 132. 
 
 3 Jones V. Dewey, 17 N. H. 596. 
 
THE FOEMALITIES, ETC., OP THE AWAED. 287 
 
 An award, duly made and sealed up, was left with one of the 
 arbitrators ; the parties appeared before him, and the award was 
 then read to them at their request. Held, that " no further 
 publication Was required to give effect to the award." ^ 
 
 An award was made in writing, and copies handed to the 
 parties, with the proviso that it might not be found to be an 
 accurate expression of the real decision of the arbitrator as to 
 the description of a boundary line, which real decision was ex- 
 plained to the parties verbally ; and that if it should be found, 
 on consultation with the surveyor, not to be so, it would be 
 amended. T&e original, signed and sealed, was kept in the 
 hands of the chairman, for making this amendment, should it 
 prove necessary. It did prove necessary, and he made it, but 
 did not communicate the fact to the parties, or either of them, 
 probably considering that the verbal explanation was all that 
 was necessary, since it had described fully what the award 
 really was. But the court held that there was no publication 
 of the written award.'-* 
 
 A stipulation, that an award be made and published to the 
 parties, is said not to imply a formal notification to the 
 parties.^ 
 
 When referees are required to make their report and return 
 it into court, the publication of it is the reading it and filing it 
 in court.* 
 
 The reading an award to the parties by the arbitrators was 
 spoken of as a publication, by Kent, 0. J., in Perkins v. Wing,^ 
 though it was not necessary directly to hold it to be such. 
 
 It is obvious that these form no sufficient basis for laying 
 down any general rule upon the subject of what description of 
 act will, or what will not suffice to constitute publication. All 
 the cases above cited would seem to contemplate some more or 
 
 1 EundeU v. La Eleur, 6 Allen, 480. ' 
 
 2 Caldwell v. Dickinson, 13 Gray, 365. 
 
 3 Hunt V. Wilson, 6 N. H. 36 ; citing Caldwell, 51. 
 * Den, ex dem. Pancoast v. Curtis, 1 Halst. 415. 
 
 5 10 Johns. 143. 
 
288 THE FORMALITIES, ETC., OP THE AWARD. 
 
 less formal act, equivalent at least to an actual or constructive 
 notification of the contents of the award to the parties. And this 
 notion perhaps derives some slight degree of corroboration from 
 the rule laid down in some cases, that a party cannot be sued 
 upon an award till he has been notified of it. Yet no cause 
 gives us any right to regard publication as equivalent to or 
 identical with notification. Indeed, the English rule and the 
 English cases are to a very different effect. Mr. Eussell says : 
 " So far as the validity of the award is affected, it will in general 
 be considered as 'published ' as soon as the arbitrator has done 
 some act whereby he becomes functus officio, and has declared 
 his final mind, and can no longer change it ; that is, as soon 
 as he has made a complete award." ^ 
 
 An English case has also declared that, where the arbitrator 
 had executed the award in the presence of attesting witnesses, 
 and had read it over to them, and the plaintiff died on the morn- 
 ing of the next day, before notice of the readiness of the award 
 had reached either him or his attorney, the award was to be con- 
 sidered as made and published before the death.^ 
 
 But, " so far as regards the rule which regulates the time for 
 an application to set aside an award, the publication, from which 
 the time begins to run, is not in any case the publishing of the 
 award itself, but the publication of it to the parties." ^ 
 
 Prom this language it might be inferred that a subtle dis- 
 tinction is to be drawn between the simple publication of the 
 award and a publication of the award to the parties. If this be 
 so, an award may be published before it has been published to 
 the parties. It would then be fair to assume that publication 
 to the parties could only be made by some act affecting them, 
 either in fact or constructively, with a knowledge of the con- 
 tents of the award ; as, for example, a reading or delivery to 
 
 1 Russell on Arb., 3d ed. p. 236 ; citing Henfree v. Bromley, 6 !East, 309 ; 
 MacArthur v. Campbell, 5 B. & Ad. 518. 
 
 2 Brooke v. Mitchell, 6 Mee. & W. 473. 
 
 ' RusseE on Arb., 3d ed. p. 237 ; citing MacArthm: v. Campbell, supra ; 
 Brooke v. Mitchell, supra; Moore v. Darley, 1 C. B. 445. 
 
THE FORMALITIES, ETC., OF THE AWAED. 289 
 
 them. The distinction, though nice, is not without reasonable 
 foundation in the strict force of the respective phrases. Per- 
 haps, too, it is borne out by the ruling in Brooke v. Mitchell, 
 supra. For in that case it is obvious that there had been no 
 real or constructive publication to the parties, though the court 
 held tliat there had in fact been a publication. 
 
 In Musselbrook v. Dunkin,^ the court said that the require- 
 ment that an award should be published was " satisfied by the 
 award having been made, and notice having been given to the 
 parties that it is within their reach on payment of just and 
 reasonable expenses." 
 
 In McArthur v. Campbell,^ an award was held to be published 
 when the arbitrator gave notice to the parties that it might be 
 had on payment of his charges ; without regard to whether or 
 not these charges were just and reasonable. 
 
 Publication to some only of several persons who together 
 Qonstitute the party of the one part is insufficient. Thus, 
 under a submission requiring publication of the award to be 
 made to each of the parties, the plaintiff was party of the one 
 part, and several defendants constituted the party of the other 
 part. A publication to the plaintiff and to one only of the de- 
 fendants was held to be insufficient, and ground for avoiding the 
 award.* 
 
 Possession of Award. — Possession of an award, to all appear- 
 ance complete, by a party to the submission is prima facie evi- 
 dence that the arbitrators have delivered it to him as their 
 award; and unless explained away by satisfactory proof will 
 suffice to render a subsequent award made and returned by 
 them null and void.* 
 
 The fact that possession of an award has been wrongfully or 
 improperly obtained by a party does not invalidate it or affect 
 
 1 9 Bing. 605. 
 
 2 5 Barn. & Ad. 518. 
 
 « HuDgate V. Mease, Cro. Eliz. 885 ; 5 Rep. 103 ; F. Moore, 642. 
 * Lansdale v. Kendall, 4 Dana, 613. 
 19 
 
290 THE FORMALITIES, ETC., OF THE AWARD. 
 
 his right to sue upon it.^ The award is as good and binding 
 as if possession of the instrument itself had been rightfully ob- 
 tained, or even as if it had remained in the hands of the arbi- 
 trators. 
 
 Neither Party is bound to Notify the other of the Award. — 
 Where the submission stipulated only that the award should 
 be made in writing on or before a day named, and said nothing 
 specifically about delivery or publication, it was said that both 
 parties were bound to take notice of the award, and it was not 
 incumbent upon the party seeking to found an action upon it to 
 give any notice to the other.^ Other cases, however, hold that 
 notice is necessary before suit can be brought.^ 
 
 1 Thompson v. Mitchell, 35 Maine, 281. 
 
 2 Houghton V. Burroughs, 18 N. H. 499 ; Hodsden v. Harridge, 2 Saund. 62 a. 
 " Woodbury v. Northy, 3 Greenl. 85; Wright v. Smith, 19 Vt. 110. 
 
CHAPTER X. 
 
 MISTAKE IN THE AWARD. 
 
 Inconsistency of judicial decisions. 
 
 Two classes of decisions. 
 
 Conclusiveness of the arbitrator's decision, both in law and fact, asserted by 
 C. J. Shaw. 
 
 This doctrine is generally acknowledged. 
 
 A general submission constitutes arbitrators final judges of law and fact. 
 
 Cases establishing the finality of the arbitrator's finding in matter of law. 
 
 Exception to the broad principle, in matter of law. 
 
 The exception covers two classes of cases. 
 
 Insertion of restriction in the submission. 
 
 The award may give the court the right to interfere for a mistake in law. 
 
 Statement by the arbitrator of an intention to be governed by law. 
 
 The decisions in Vermont. 
 
 Statement of grounds, &c., of decision in the award. 
 
 The rule in this matter in England. 
 
 Suggestion of a distinction. 
 
 Efiect of a recital of facts in the award. 
 
 The statement of grounds, &c., must constitute a part of the award. 
 
 The fundamental matter is the arbitrator's intent. 
 ■ Error in a fundamental and clear principle of law. 
 
 Awards on questions of pure law. 
 
 Distinctions between professional and' non-professional arbitrators. 
 
 Matters of fact are peculiarly within the arbitrator's authority. 
 
 Exception where the judgment has been prevented from being fairly or cor- 
 rectly exercised. 
 
 Mistake of an arbitrator as to contents of award. 
 
 The general doctrine that a mistake is ground for vacating an award.. 
 
 The Enghsh authorities supporting this doctrine. 
 
 The case of In re Hall & Hinds, and comments upon it. 
 
 Mistakes of the arbitrator on his own principles. 
 
 Objection that the award is against evidence. 
 
 Clerical errors, blunders in calculation, &c., in the award. 
 
 The court cannot alter a report or award. 
 
 Variance in duplicate awards. 
 
 Method of availing of an alleged mistake. 
 
 Recommitment for correction of acknowledged errors. 
 
 Recommitment for re-hearing. 
 
 Recommitment for errors in form. 
 
 Recommitment for costs. 
 
 Power and duty of the arbitrator after recommitment. 
 
292 MISTAKE IN THE AWARD. 
 
 Eecommitment is for the discretion of the court. 
 
 Eecommitment must be of the whole case. 
 
 Impeaching the award by extrinsic evidence, or by the arbitrator's testimony of 
 
 a mistake. 
 Effect of setting aside a report. 
 Promise to correct error. 
 
 Inconsistency of Judicial Decisions. — We now approach the 
 most difficult topic in the law of arbitration, to wit, the ques- 
 tion, what will be the effect of a mistake made by the arbitrator 
 in matter of law or of fact, not obvious on the face of the award 
 itself ? The embarrassment in dealing with this matter lies in 
 the utter inconsistency of the judicial decisions ; for so soon as 
 we seem to have successfully educed a rule or principle from 
 some of them, we straightway find it contradicted by other au- 
 thorities. Thus the only certain element is the entire uncer- 
 tainty.^ The trouble exists in England to an even greater 
 extent than in our own country. Russell acknowledges that 
 " a close examination of the cases compels one to say that one 
 uniform principle has not been adhered to as to the conse- 
 quences of a mistake." ^ 
 
 Two Classes of Decisions. — The numerous adjudications may 
 be separated into two grand classes, to wit, those which are 
 based upon defined, intelligible, and generally consistent prin- 
 ciples ; and those which cannot be said to be founded upon or 
 to embody any legal principle or doctrine whatsoever, but 
 which subject each case to the arbitrary exercise of judicial 
 discretion. Prom the former class it is possible to build up a 
 philosophical theory capable of general application. In the 
 latter class there is no philosophy, nothing of a general nature 
 whatsoever, except, perhaps, a sort of dogmatic assertion, 
 either declared or necessarily to be inferred in every instance, 
 which seems to be substantially to the effect that the court in 
 
 1 Lord EUenborough acknowledged the same difficulty, in Chace v. Westmore, 
 13 East, 356 ; and Chief Justice Parker, in Jones v. Boston Mill Corporation, 6 
 Pick. 148. 
 
 2 Eussell on Arb., 3d ed. p. 292. 
 
MISTAKE IN THE AWARD. 293 
 
 each case will do what it thinks fit. The former, as the more 
 deserving, and fortunately also the growing class, will be dis- 
 cussed first. But it should be borne in mind that even the 
 fundamental rules established by these cases will be found later 
 in the chapter to have been disregarded and denied by many 
 tribunals. It is noticeable also that the theory of this subject 
 has been much more carefully studied and fully elaborated by 
 American than by .English judges. The latter have usually 
 contented themselves with the brief annunciation of their de- 
 cision in the specific case, whereas in the United States the 
 opinions have usually been exceptionally long and carefully 
 prepared. 
 
 Conclusiveness of the Arbitrator's Decision, both in Law and 
 Pact, asserted by c. J. Shaw. — The ablest discussion of the 
 subject is to be found in the opinion delivered by Chief Justice 
 Shaw, in the famous cause of the Boston Water Power Company 
 V. Gray.i Yery valuable interests were involved in this litiga- 
 tion ; the arguments were made by the foremost counsel in New 
 England, and the elaborate opinion in which this distinguished 
 jurist embodied the results of his careful examination into the 
 subject is probably not surpassed in the volumes of American 
 reports. 
 
 The language of the Judge is : " In general, arbitrators have 
 full power to decide upon questions of law and fact, which directly 
 or incidentally arise in considering and deciding the questions 
 embraced in the submission. . . . When not limited by the 
 terms of the submission, they have authority to decide ques- 
 tions of law necessary to the decision of the matter submitted ; 
 because they are judges of the parties' own choosing. Their 
 decision of matters of fact and law, thus acting within the scope 
 of their authority, is conclusive, upon the same principle that 
 a final judgment of a court of last resort is conclusive ; which 
 is, that the party against whom it is rendered can no longer 
 be heard to question it. It is within the principle of res judi- 
 
 1 6 Mete. (Mass.) 131. 
 
294 MISTAKE IN THE AWARD. 
 
 cata ; it is the final judgment for tliat case and between these 
 parties. It is amongst the rudiments of the law, that a party 
 cannot, when a judgment is relied on to support or to bar an 
 action, avoid the effect of it by proving, even if he could prove 
 to perfect demonstration, that there was a mistake of the facts 
 or of the law." . . . When the parties have expressly or by 
 reasonable implication submitted the questions of law, as well 
 as the questions of fact, arising out of the matter of controversy, 
 the decision of the arbitrators on both subjects is final. It is 
 upon the principle of res judicata, on the ground that the mat- 
 ter has been adjudged by a tribunal which the parties have 
 agreed to make final, and a tribunal of last resort for that con- 
 trovei-sy; and therefore it would be as contrary to principle 
 for a court of law or equity to rejudge the same question, 
 as for an inferior court to rejudge the decision of a superior, or 
 for one court to overrule the judgment of another, where the 
 law has not given an appellate jurisdiction, or a revising power 
 acting directly upon the judgment alleged to be erroneous." 
 
 This Doctrine is generally Acknowledged. — Thus strongly is 
 the general doctrine of conclusiveness laid down. And cer- 
 tainly there is abundant authority to support it. In many 
 cases arbitrators have been declared to be the supreme and 
 final judges of both the law and the facts. ^ 
 
 Their decision cannot be appealed from, revised, or annulled 
 by reason of any mistake which they may have fallen into.^ 
 
 1 Eundell v. La Fleur, 6 AUen, 480 ; White Mountains Railroad v. Beane, 39 
 N. H. 107 ; Kleine v. Catara, 2 Gall. 61 ; Myers v. York & Cumberland R.R. 
 Co., 2 Curtis, C. C. 28 ; Brown v. Clay, 31 Maine, 518 ; Tyler v. Dyer, 13 id. 41 ; 
 Whitmore v. Le Ballistier, 85 id. 488 ; Sweetser v. Kenney, 32 id. 464 ; Walker 
 V. Sanborn, 8 Greenl. 288 ; Johnson v. Noble, 13 N. H. 286 ; Indiana Central 
 R.R. Co. V. Bradley, 7 Ind. 49 ; De Long v. Stanton, 9 Johns. 38. 
 
 2 York & Cumberland R.R. Co. «. Myers, 18 How. (U. S.) 246 ; Burchell v. 
 Marsh, 17 id. 344 ; Jackson v. Ambler, 14 Johns. 96 ; Cranston v. Kenney's Ex- 
 ecutors, 9 id. 212 ; Campbell o. Western, 8 Paige, 124 ; Greenough v. Rolfe, 4 
 N. H. 357 ; Beane v. Wendell, 22 id. 582 ; Mitchell v. Bush, 7 Cow. 185 ; Jones 
 V. Boston Mill Corporation, 6 Pick. 148 ; Ewing v. Beauchamp, 3 Bibb, 41 ; 
 Baker's Heirs v. Crockett, Hardin, (Ky.) 388 ; Swing's Administrators v. Beau- 
 champ, 2 Bibb, 456 ; Bumpass v. Webb, 4 Porter, 65. 
 
MISTAKE IN THE AWARD. 295 
 
 Russelt lays down the " general rule, that as arbitrators are 
 judges of the parties' own choosing, they cannot object to their 
 decision as an unreasonable judgment, or a judgment against 
 law." ^ Though, as will hereafter be seen, this general rule 
 is nearly as often broken as it is observed in the English courts. 
 
 To set aside an award for an error, whether in law or fact, 
 " would be a substitution of the judgment of the chancellor in 
 place of the judges chosen, by the parties, and would make 
 an award the commencement, not the end, of litigation." 
 Thus says Mr. Justice Grier, in proceedings under a bill in 
 equity to set aside an award ; adding that " courts should be 
 careful to avoid a wrong use of the word ' mistake,' and, by 
 making it synonymous with mere error of judgment, assume to 
 themselves an arbitrary power over awards." ^ 
 
 " We take one principle to be very clear," said Chief Justice 
 Parker, in 1828, " which is, that where it manifestly appears 
 by the submission that the parties intended to leave the 
 whole matter, law and fact, to the decision of arbitrators or 
 referees, the award is conclusive, although they should have 
 mistaken the law, unless the award itself refers such question 
 to the consideration of the court." ^ 
 
 Cockburn, C. J., says, in Hodgkinson v. Fernie,* in 1857 : 
 " It is not easy to reconcile all the decisions as to how far the 
 court will interfere with the determination of an arbitrator, 
 whether upon the law or upon the facts. But the modern cases 
 which have been cited certainly go the length of deciding that 
 unless there be something upon the face of an award to show 
 
 1 Russell on Arb., 3d ed. p. 293 ; citing Fuller v. Tenwick, 3 C. B. 705 ; 16 L. J. 
 C. P. 79 ; In re Marsh, 16 L. J. Q. B. 330 ; Steff k. Andrews, 2 Madd. 6 ; Ires v. 
 Metcalfe, 1 Atk. 63 ; Evans v. Pratt, 3 Man. & Gr. 759 ; Hodge v. Burgess, 3 
 Hurl. & Nor. 293 ; 27 L. J. Exch. 318 ; Hodgkinson v. Fernie, 27 L. J. C. P. 66 ; 
 3 C. B. N. s. 189 ; Baggalay v. Mackwiek, 30 L. J. C. P. 342 ; 10 C. B. N. s. 61 ; 
 Gensham v. Germain, 11 Moore, 1 ; Hagger v. Baker, 14 Mee. & W. 9. So also 
 is the ruling in Young v. "Walter, 9 Ves. Jr. 364. 
 
 2 Burchell v. Marsh, 17 How. (U. S.) 344. 
 
 3 Jones V. Boston Mill Corporation, 6 Pick. 148. 
 
 4 3 C. B. N. s. 189'; 27 L. J. C. P. 66. 
 
296 MISTAKE IN THE AWARD. 
 
 that the arbitrator has proceeded upon grounds which are not 
 sustainable in point of law, the court will not entertain an 
 objection to it. . . . So, here, the parties have selected their 
 own tribunal ; and they are bound by the decision, be it right 
 or wrong." 
 
 Lord Bllenborough, 0. J., said (1816), that where the 
 merits both in law and fact are referred to an arbitrator of com- 
 petent knowledge (in this case a barrister), " the court will not 
 open the award, unless something can be alleged amounting to 
 a perverse misconstruction of the law, or misconduct on the 
 part of the arbitrator." ^ 
 
 A General Submission constitutes Arbitrators Final Judges of 
 Law and Fact. — That a general submission, containing no re- 
 striction or stipulation to a contrary efiFect, constitutes the arbi- 
 trators final judges of both law and fact, has been stated to be 
 settled law, at least in Massachusetts and New Hampshire.^ 
 If the parties, it was said, in " general terms submit their re- 
 spective rights depending upon considerations of law and fact, 
 and the referees decide accordingly, such award is conclusive 
 as well of the law as the fact ; and the court upon the return 
 of such an award will not inquire whether the referees, thus au- 
 thorized, have decided correctly upon principles of law or not."^ 
 
 An action was referred to referees, who reported in favor of 
 the defendant. The plaintiff moved to set aside the report on 
 the ground of a mistake in law, and introduced testimony of a 
 referee to the effect that the referees intended to decide " ac- 
 cording to their views of the law of the case." In refusing to 
 grant the motion, the court said that if the parties agree that 
 the award shall be made agreeably to legal principles, it will 
 be set aside for a mistake in law. But if the submission em- 
 
 1 Sharman v. Bell, 5 Maule & Selw. 504. 
 
 'i Eundell v. La Fleur, 6 Allen, 480 ; Smith v. Boston & Maine Eailroad Com- 
 pany, 16 Gray, 521 ; Bigelow v. NeweU, 10 Pick. 348 ; White Mountains Rail- 
 road V. Beane, 39 N. H. 107 ; Johnson v. Noble, 13 id. 286. So held also in 
 Young V. Walter, 9 Yes. Jr. 364. 
 
 ' Per Shaw, C. J., in Bigelow v. NeweU, 10 Pick. 848, 355. 
 
MISTAKE IN THE AWARD. 297 
 
 body no such restriction, " the arbitrators are constituted judges 
 of the law as well as of the facts ; and their decisions upon any 
 question of law that may arise in the course of the trial, . . . 
 which has been discussed by the parties before them, and has 
 been deliberately considered and decided by them, is final and 
 conclusive in the cause and between the parties.to it. No court 
 will revise their decision, where they have fairly exercised 
 their judgment upon the question submitted to them ; and their 
 award will not be set aside, however different the decision upon 
 the law may be from the opinions entertained by the court." 
 It is added, that " this narrows the exception on account of 
 mistake of law to the case of a reference limited to legal prin- 
 ciples, or of some error in relation to a point not discussed or 
 decided by the arbitrators, but assumed by them, by which they 
 have in fact been prevented from exercising their judgment 
 upon the real question submitted to them." ^ This last point, 
 concerning the necessity of an actual consideration of a ques- 
 tion, has been taken in other cases decided in New Hampshire ; ^ 
 but, at least so. far as I have discovered, it is not embodied in 
 the adjudications of any other court, unless, perhaps, by remote 
 implication, in the case of Myers v. York & Cumberland Rail- 
 road Company .3 This case is authority for saying that where 
 it does not appear whether or not the question was in fact 
 raised before the referee, it will be enough that it might have 
 been so raised, and the presumption will be that it in fact was, 
 and that he decided it. 
 
 Cases establishing the Finality of the Arbitrator's Finding in 
 matter of Law. — Sutherland, J., said that where an action was 
 referred to arbitrators by the mere act of the parties, without 
 being made a rule of court, it is no ground of objection to their 
 award, in an action to enforce it, that it is against law. 
 
 1 White Mountains Railroad v. Beane, 39 N. H. 107 ; Johnson v. Noble, 13 
 id. 286. 
 
 ^ Cushman v. Wooster, 45 N. H. 410; Beaue v. WendeU, 22 id. 582; Green- 
 oughw. Rolfe, 4id. 357. 
 
 8 2 Curtis, C. C. 28 ; and see Roosevelt v. Thurman, 1 Johns. Chy. 220, 226. 
 
298 MISTAKE IN THE AWARD. 
 
 Whether or not if there be a rule of court a different principle 
 would have been asserted is left to be inferred.^ It has been 
 already intimated, in discussing the question of the admission 
 of legally incompetent evidence before a referee, that, if he is 
 merely an officer of the court, it would seem reasonable that 
 he should be governed by legal rules. Yet it must be con- 
 fessed that the authorities do not seem to favor this view. And 
 in Vermont it is held that where a case is referred by a general 
 rule of reference, no questions of law are before the court, ex- 
 cept such as are saved by the referees.^ 
 
 An action by a London apothecary for his bill of charges 
 was referred. Affidavits were offered to show that the arbi- 
 trator had allowed certain items which a London apothecary 
 could not legally charge or collect. The court said : " The 
 award is conclusive, there being nothing on the face of it to 
 warrant the objection ; affidavits cannot be received to show 
 what particular charges have been allowed." ^ 
 
 And the court, in another case, refused to grant a rule to 
 set aside an award, on the ground that the arbitrator had 
 improperly treated as a penalty what was really stipulated 
 damages, the mistake not appearing on the face of the award. 
 Wilde, G. J., said that the parties " having obtained the de- 
 cision of the tribunal which they themselves had chosen, had 
 but little ground of complaint if its judgment did happen 
 to be erroneous." Maule, J., remarked that " it is sometimes 
 advantageous to have a matter decided by a person possessing 
 the smallest possible knowledge of law." * 
 
 Courts will interfere in case of a mistake in law only if it 
 be apparent upon the submission or award that the arbitrators 
 were bound or intended to decide according to law.^ 
 
 An important English case is as follows : In an action of 
 
 1 Mitchell V. Bush, 7 Cow. 185. 
 
 2 Spear v. Stacy, 26 Vt. 61. 
 
 3 Gensham v. Germain, 11 Moore, 1. 
 * FuUer v. Fenwick, 3 C. B. 705. 
 
 6 BeU V. Price, 2 Zabr. 578. 
 
MISTAKE m THE AWARD. 299 
 
 debt the defendant's attorney agreed to a judge's order refer- 
 ring to arbitration " the claims of the plaintiff in the action." 
 The plaintiff claimed before the arbitrator a sum for extra 
 work occasioned by the defendant's breach of covenant in not 
 giving the plaintiff possession of certain land at a stipulated 
 time. The claim was objected to on the ground that it could 
 not be included in an action of this nature, and was therefore 
 not within the authority of the arbitrator ; but the arbitrator 
 entertained it, and awarded to the plaintiff a sum in respect 
 of it. Baron Alderson, concurring with Chief Baron Pollock, 
 said : " I was at first struck by the argument, that the extent 
 of the arbitrator's jurisdiction could not be interpreted by his 
 own judgment ; and I still think so. But here the arbitrator 
 had a general jurisdiction over the matter, because the refer- 
 ence was of the plaintiff's " claims in the action," and the 
 plaintiff claimed this amount of damage as a deht. He may 
 be wrong in his view, and the arbitrator also wrong in taking 
 it into consideration ; but when the defendants saw the arbi- 
 trator entertaining a question which he ought not to entertain, 
 it was their duty to interpose and apply to a judge, for the 
 purpose of being allowed to revoke the submission. . . . But 
 the defendants, though they find the arbitrator going on, do 
 not interpose, but make the question one for his determination, 
 and he has determined it. The extent of the arbitrator's 
 jurisdiction is to be taken according to the plain words of the 
 submission, namely, of the "claims" which the plaintiff 
 makes in the action, and this is one."^ 
 
 If an arbitrator is "silent as to his law," it cannot be 
 inquired into.^ 
 
 Exception to the Broad Principle, in matter of Law. — But 
 though the broad principle is that the decision of the arbitra- 
 
 1 Faviell v. Eastern Counties Railway Company, 2 Exch. 344. A case not 
 unlike this is furnished by the Massachusetts Reports ; Rundell v. La Fleur, 6 
 Allen, 480. 
 
 2 Bouttilier v. Thick, 1 Dowl. &. Ry. 366. 
 
300 MISTAKE IN THE AWARD. 
 
 tor is final, yet it is a principle which in its application is sub- 
 ject to some well-established exceptions. These occur more 
 especially where the alleged mistake is of the law than where 
 it is of fact. For " in matters of law it is considered that the 
 court has a larger jurisdiction." ^ 
 
 The Exception covers two Classes of Cases. — The cases in 
 which a mistake in law by the arbitrator will render his award 
 void may be divided into two classes : 1. Where the parties 
 themselves in their submission stipulate and require that the 
 hearing shall be conducted, or that the decision shall be made, 
 in conformity with the rules and principles of law ; 2. Where 
 the arbitrators themselves, either by the shape in which they 
 make their award, or by embodying in it a statement of the 
 grounds of their decision, or of their intention to be governed 
 by legal principles, have conferred upon the court a power of 
 inquiry and revision which it would not otherwise have had. 
 
 Insertion of Restriction in the Submission. — With regard to 
 the first of these classes it is admitted in all the cases that it 
 is perfectly competent for the parties to embody in their sub- 
 mission a valid limitation or restriction requiring the arbitra- 
 tors to proceed and decide according to law.^ 
 
 The arbitrators will then be obliged at least to try to do so. 
 Whether or not, if they fail, their award is void by reason of 
 their failure is a question in the determination of which a nice 
 distinction must be observed. This distinction lies between 
 the effort and success, and is exemplified by the following 
 case. The submission stipulated that " the said referees are 
 to determine all questions according to the rules of law and 
 equity, the same as though the matter was to be tried in a 
 court of law or equity." In placing a construction upon 
 
 1 Fairchild v. Adams, 11 Cush. 547. 
 
 2 Johnson v. Noble, 13 N. H. 286 ; White Mountains Bailroad v. Beane, 39 id. 
 107 ; Kleine v. Catara, 2 GaU. 61 ; Walker v. Sanborn, 8 Greenl. 288 ; Brown 
 V. Clay, 31 Maine, 518 ; Commonwealth v. City of Koxbury, 9 Gray, 451 ; also 
 many other of the cases cited in the discussion of this topic recognize, at least 
 incidentally or inferentially, the existence of the same principle. 
 
MISTAKE IN THE AWARD. 301 
 
 this clause, the court said, " one of the principal questions 
 made in the case is, whether this clause is to be interpreted as 
 a limitation of the power of the arbitrators, or whether it is 
 merely directory. If it is directory, it leaves them to be the 
 ultimate judges as to how the matter would be tried in a court 
 of law or equity, and thus makes their decision final and con- 
 clusive, as the parties agree it shall be. But if it is a limita- 
 tion of their power, then the award is not final and conclusive ; 
 but this court is the ultimate tribunal to decide how the pciu- 
 cipal questions ought to be settled. It is an objection to this 
 view that the only power thus left to this court is of a destruc- 
 tive character, in case of a disagreement with the arbitrators. 
 We may destroy the award, but have no power to correct it." i 
 Upon the strength of an earlier case in the same State this 
 clause was apparently construed as directory. In that earlier 
 case the submission was to the arbitrators to determine certain 
 controversies, " always having regard to the legal rights of the 
 parties." It was contended that the referees were only authorized 
 to decide " according to the legal rights of the parties ; and if 
 they decided otherwise their award was void, and not conform- 
 able to their authority." Shaw, C. J., delivering the opinion, 
 said, " The court are of opinion that this conclusion does not 
 follow from the clause." This was " intended to prescribe a 
 rule for the government of the referees as to the principles 
 upon which they were called upon by the parties to decide, not 
 as a limitation of their authority." The submission was very 
 . comprehensive and general, apparently designed to cover ques- 
 tions both of law and fact ; and, in addition to this, the specific 
 phrase above quoted " expressed the understanding of the par- 
 ties, that the referees were not to go upon mere equitable and 
 hypothetical claims or arbitrary grounds, but upon the respec- 
 tive existing vested legal rights. But it necessarily included 
 an authority to inquire into and decide what those rights were, 
 
 1 Mickles v. Thayer, 14 Allen, 114. 
 
302 MISTAKE IN THE AWARD. 
 
 and of course to decide the questions of law upon which they 
 depended."^ 
 
 The language of some of the cases has been so general, that 
 it would seem to ignore the above-noted distinction, and to lay 
 down a general rule that where the parties sufficiently indicate 
 their intention, that the arbitrators shall be governed by legal 
 rules and principles, a mistake in law will avoid the award. 
 Judge Shaw neither states nor precludes the distinction. He 
 simply says, in very comprehensive sharpe, that " if the submis- 
 sion be of a certain controversy, expressing that it is to be 
 decided conformably to the principles of law, then both parties 
 proceed upon the assumption that their case is to be decided 
 by the true rules of law, which are presumed to be known to 
 the arbitrators, who are then only to inquire into the facts, and 
 apply the rules of law to them, and decide accordingly. Then 
 if it appears by the award to a court of competent jurisdic- 
 tion that the arbitrators have decided contrary to law, — of 
 which the judgment of such a court, when the parties have not 
 submitted to another tribunal, is the standard, — the necessary 
 conclusion is, that the arbitrators have mistaken the law, which 
 they were presumed to understand ; the decision is not within 
 the scope of their authority, and is for that reason void. But 
 when the parties have expressly, or by reasonable implication, 
 submitted the questions of law as well as the questions of fact 
 arising out of the matter of controversy, the decision of the 
 arbitrators on both subjects is final." ^ 
 
 A cause was submitted, with the stipulation that the referees 
 should decide it " upon just and legal grounds." The court 
 said that the referees were restricted to decide according to 
 law ; that it must, therefore, be jjresumed that they intended to 
 make the law their guide ; and if they had mistaken the law, 
 their report should be set aside." 
 
 1 Bigelow V. Newell, 10 Pick. 348. 
 
 2 Boston Water Power Company v. Gray, 6 Mete. (Mass.) 131, 166. 
 » Greenough v. Eolfe, 4 N. H. 357. 
 
MISTAKE IN THE AWARD. , 303 
 
 When a submission was entered into by rule of court and 
 agreement of parties, providing that the referee should deter- 
 mine both law and fact, " but subject to the review and final 
 adjudication of all matters of law in the cause by the court ; " 
 the referee reported the facts, and found in favor of one of the 
 parties. The court, accepting his finding of facts, but consider- 
 ing that his decision thereupon involved an erroneous ruling of 
 law, rendered a judgment for the other party without recom- 
 mitting the award.^ 
 
 A rule of reference empowered the arbitrator to award upon 
 law and facts, " but subject to the review and final adjudication 
 of all matters of law in the cause by the court." The court 
 were of opinion that his decision was erroneous in point of 
 law, and they ordered a judgment contrary to the award to be 
 entered.^ 
 
 If the statute under which the submission is entered into 
 requires the court " to approve " the award, it is essential that 
 the award shall be good in point of law.^ 
 
 In Estes v. Mansfield,* an award was pleaded in bar. The 
 parties in their submission had provided that the award should 
 be " in accordance with the law." The arbitrators began by 
 assuming the existence of a fact upon which they ought to 
 have found ; and then in lieu of making a proper application of 
 the rule of law to such fact, if proved, they did precisely the 
 opposite of what such proper application would have led them 
 to do. " This was manifestly a gross mistake of law, which 
 led the arbitrators to decide the case on a false issue. On well 
 settled principles, the award is void." 
 
 The Awaid may give the Court the Right to Interfere for a 
 Bdistake in Law. — The second class of cases is where the basis 
 for the interference of the court is furnished by the arbitrator 
 
 1 Commonwealth v. City of Koxbury, 9 Gray, 451. 
 
 2 Ibid. 
 
 ' Allen V. Miles, (Smith's Administrator) 4 Harrington, 234. 
 *6 Allen, 69. 
 
304 MISTAKE IN THE AWARD. 
 
 himself in the award. For an arbitrator, though empowered 
 to decide finally upon matters of law as well as of fact, may- 
 refrain from fully exercising this power. He may either de- 
 cline to decide at all, or he may decide and express his decision 
 in such a manner that it will be considered to be reviewable. 
 He declines to decide at all when he reports his finding of the 
 facts, and raises the question of law to be determined by the 
 court ; or makes his award in the alternative, without express- 
 ing his own opinion as to the law. In cases of this nature it 
 is obvious that he commits no mistake, since he takes no posi- 
 tion, but remains wholly uncommitted to any view. If he finds 
 the facts, expresses his opinion and decides accordingly, but 
 declares that if in the case stated the law be otherwise, then 
 his award shall be for the other party ; he may make a mistake 
 in his idea of the law, but the power of the court to rectify 
 that error is, of course, unquestionable. 
 
 But a large number of cases remain in which the court 
 assumes the power to review ; and these are either where the 
 arbitrator recites in his award the grounds of his decision, or 
 where he states that he intended to decide according to law. 
 The theory is that these two forms are equivalent, and that 
 the setting forth of the grounds of decision is substantially a 
 declaration that those grounds are assumed by the arbitrator 
 to be good in law. Thus, in either case, is brought into opera- 
 tion the principle upon which interference is justified, to wit, 
 that if the arbitrators intended to make their decision accord 
 with sound principles of law, but were mistaken in those prin- 
 ciples or in the application of them, then their decision is not, 
 in fact, what they designed that it should be ; it is not really 
 their judgment in the cause, and for this reason it should be 
 set aside. 
 
 To quote again from the opinion of Chief Justice Shaw : 
 " Where it is manifest upon the award itself that the arbitra- 
 tor intended to decide according to law, biit has mistaken the 
 law, then the award is set aside, because it is manifest that the 
 
MISTAKE IN THE AWARD. 305 
 
 result does not coiiform to the real judgment of the arbitrator. 
 For then, whatever his authority was to decide the questions 
 of law, if controverted, according to his own judgment, the 
 case supposes that he intended to decide as a court of law 
 would decide ; and therefore, if such decision would be other- 
 wise, it follows that he intended to decide the other way." ^ 
 
 The same doctrine is asserted in the following opinion : " If 
 the referees, intending to decide according to law, mistake the 
 law, and refer the same to the court for revision, either by 
 an express reference or by stating specially the principles upon 
 which they have acted, which raises a presumption of intention 
 so to refer, the award will be set aside, ... for the reason that 
 in such case it is apparent that the award is not such as the 
 referees intended to make." " The fair and impartial judgment 
 of the referees is conclusive, both upon the law and the facts of 
 the matters submitted and decided." ^ 
 
 The English decisions proceed upon the same theory .^ 
 
 An arbitrator delivered to the parties, together with his 
 award, a paper containing observations on the evidence and his 
 reasons for making the award. The court held that it was not 
 necessary that the reasons should appear upon the award, since 
 there could be no doubt what they were. It was " evident that 
 he meant to determine according to law, and he had mistaken 
 it ; therefore the award is not' such as he intended it to be." 
 " He has gone wrong according to his own principles and view 
 of the subject." The award was set aside.* 
 
 statement by the Arbitrator of an Intention to be governed by 
 Law. — There seems to be no question that if the arbitrator dis- 
 tinctly asserts in his award his intention that his decision 
 should accord with legal principles, the court will examine into 
 
 1 Boston Water Power Company v. Gray, 6 Mete. (Mass.) 131, 168; Ward v. 
 American Bank, 7 id. 486. 
 
 2 Johnson v. Noble, 13 N. H. 286. 
 
 3 Kent V. Elstob, 3 East, 18 ; and see Young v. Walter, 9 Ves. Jr. 364 ; Broad- 
 hurst V. Darlington, 2 Dowl. 38 ; Eussell on Arb., 3d ed. p. 295. 
 
 « Kent V. Elstob, 3 East, 18. 
 
 20 
 
306 MISTAKE IN THE AWARD. 
 
 the soundness of his law, and set aside his award if he has 
 fallen into mistake. 
 
 Where a referee recited in his report the facts and the 
 grounds on which he had based his decision, stating that he 
 considered that the plaintiff, " in a legal point of view," was 
 not entitled to recover, the court said that it appeared that the 
 referee intended to follow the law, and to decide upon the legal 
 rights of the parties ; that therefore the questions of law 
 which arose upon the facts were properly open to the consider- 
 ation and revision of the court, and, if the referee had made a 
 mistake in the law, his report should be set aside.^ 
 
 But where, upon a written statement of facts, the arbitrators 
 reported that one party was " legally entitled" to a certain 
 amount, their decision was held final, and not liable to be over- 
 hauled for a mistake of the law.^ 
 
 In an affidavit annexed to his report, a referee said that he 
 presented the facts in his report and liis ruling thereon, 
 " expecting that the court would review the questions there 
 decided, and sustain or set aside the report as they might 
 consider the questions of law decided by me right or wrong." 
 The court said that " a plainer case could not well be stated ; " 
 the accuracy of the referee's law was left to be determined by 
 the court, and if it were wrong his report could not be sus- 
 tained.^ 
 
 The Decisions in Vermont. — In the reports of Vermont, where 
 a little eccentricity marks the decisions of the courts concern- 
 ing this subject, something like a contradiction of this rule may 
 be found. For example: Where referees concluded their 
 report with the statement that " in all things they intended 
 to decide according to law," tJudge Redfield, remarking that it 
 was becoming common for referees to conclude their reports in 
 this shape, said that it could not be tolerated that this clause 
 
 1 Johns V. Stevens, 3 Vt. 308. 
 
 2 Smith V. Thorndike, 8 Greenl. 119. 
 ^ Cushman v. Wooster, 45 N. H. 410. 
 
MISTAKE m THE AWARD. 307 
 
 should have the effect, in every instance, of bringing the whole 
 case before the court for a re-trial, to determine whether or not 
 the referees had fallen into any error of law in the course of 
 the proceedings. Previous cases ^ in the State, he said, had 
 only established the principle that if referees adopt any rule of 
 actjon, whether law, equity, or arithmetic, and so fail in its 
 application as to come to a different result from that to which 
 a correct application of their own rule of decision should have 
 brought them, and this is clearly shown, then their report will 
 not be accepted .'■' 
 
 statement of Grounds, &c., of Decision in the A'ward. — But 
 the matter of whether or not a mere statement, embodied in 
 their award by the arbitrators, of the principles, grounds, or 
 theory upon which they have based their decision, is entitled 
 to have the operation of referring the legal soundness of those 
 principles to the court for examination, is by no means well 
 settled. 
 
 Judge Story says that in all cases in which the referees 
 specially state the principles or reasons upon which they have 
 acted or based their decision, the presumption is that they 
 intended to decide according to law, and refer it to the court 
 to review their decision ; and in this case it was held that since 
 the referees had expressly laid the grounds of their decision 
 before the court, the accuracy of these grounds was submitted 
 for consideration, the question of whether or not a mistake in 
 law had been committed must be inquired into, and if such 
 mistake should appear, then the award would be avoided.^ 
 
 Judge Shaw laid down the general principle as follows: 
 " But it is argued that if the arbitrators state the grounds of 
 their award simply and without expressing the contrary, it is 
 to be presumed that they do mean to submit those grounds to 
 
 1 Johns V. Stevens, 3 Vt. 308 ; Hazeltine v. Smith, ib. 535. 
 
 2 Learned v. Bellows, 8 Vt. 79. 
 
 ' Kleine k. Catara, 2 Gall. 61 ; and see Greenough v. Eolfe, 4 N. H. 357 ; 
 Cushman v. Wooster, 45 id. 410 ; Johnson v. Noble, 13 id, 286 ; Learned v. Bel- 
 lows, 8 Vt. 79. 
 
308 MISTAKE IN THE AWARD. 
 
 the court. This is to be taken with some qualification. If 
 they state the grounds of their decision avowedly for the satis- 
 faction of the parties, or one of them,i and it distinctly appears 
 that they do not intend to submit their conclusions as matter 
 of law to the court, then the award is conclusive. The question 
 is as to the intent of the arbitrators. Perhaps, where they say 
 nothing in regard to their intent, the presumption is that they 
 intend to say, ' These are the grounds of our award ; if they 
 are right in point of law, we think the award is right, but we 
 submit the question to the court.' In such case the court 
 might revise and set aside the award, if it were found not to 
 be well grounded in point of law, because it would not then be 
 the award which the arbitrators intended to make." ^ 
 
 The doctrine that an award is to be set aside " where it is 
 manifest upon the award that the arbitrator intended to de- 
 cide according to law, but has mistaken the law, . . . has been 
 supposed," says Judge Dewey, " to open awards where the 
 report of the arbitrators has presented on its face the full 
 grounds of the making the award for supervision, and many 
 cases may be found of its recognition. This proposition as- 
 sumes that the error is manifest on the award itself; and, as 
 it seems to us, it must be taken with the qualification that the 
 award so clearly indicates the purpose of the arbitrator to de- 
 cide by the strict rules of law that it justifies the judicial mind 
 in supposing that the arbitrator would have made a different 
 award, had he known that the judicial tribunals held a differ- 
 ent view of the questions of law arising in the case from those 
 entertained by himself." ^ 
 
 "Where a referee in his report stated the grounds of his deci- 
 sion, without adding that he intended to decide the case accord- 
 ing to the strict rules of law. Judge Redfield held that no 
 question could be raised in regard to any question of law 
 
 1 See Smith v. Boston & Maine Railroad, 16 Gray, 521. 
 
 2 I'airchild v. Adams, 11 Cusli. 547 ; Smith v. Boston & Maine B.R. Co. 16 
 Gray, 521. 
 
 3 Smith V. Boston & Maine Raikoad, 16 Gray, 521. 
 
MISTAKE IN THE AWARD. 309 
 
 decided by the referee, adding, certainly either in defiance or 
 in ignorance of many authorities, that " no rule of law is per- 
 haps better settled than this." ^ 
 
 An important point is made in the case of Smith v. Boston 
 and Maine Railroad.^ A complete award was made, and then 
 a supplemental paper was signed by the arbitrators, in these 
 words : " A statement of the facts and principles upon which 
 the foregoing award is made is, at. the request of the said S., 
 hereto annexed, signed by the said arbitrators, and to be taken 
 as a part of said award." Laying aside for the time the ques- 
 tion of whether or not this document could be treated as a 
 part of the award, " taking the view of it most favorable for 
 the petitioner, as to its being properly before the court with the 
 award," it was said that Massachusetts cases certainly fur- 
 nished precedents for inquiring into the correctness of the law, 
 on the doctrine that the statement of the principles should be 
 presumed to be a submission of their accuracy to the court. 
 But, said Judge Dewey, " it is to be remembered that this pre- 
 sumption, thus spoken of as arising from the arbitrators mak- 
 ing a statement to the court, was a presumption authorized to 
 be made in a case not like the one before the court, but the 
 case of an award founded on a submission by a rule of court, 
 and returnable to a court to enter judgment on the award. . . . 
 This presumption is, in the present case, fully rebutted by the 
 fact that this was a submission in pais, making these arbitra- 
 tors the highest tribunal to act upon the question. The award 
 was not to be returned to any court. The case furnishes no 
 ground for supposing that these arbitrators meant to say, ' We 
 think the award is right in point of law, but we submit the 
 question to the court,' as was suggested might be the case in 
 Fairchild v. Adams.^ ... To whom was the report of the facts 
 and law to go for an appellate judgment ? . . . The arbitrators 
 
 1 Cutting V. Stone, 23 Vt. 571. 
 
 2 16 Gray, 521. 
 
 3 Ante, p. 308. 
 
310 MISTAKE IN THE AWARD. 
 
 undoubtedly intended to give publicity to their reasons for the 
 award they had made, holding themselves responsible as men 
 of intelligence and learning in the matter submitted to them. 
 Bnt there must be something beyond this to establish the posi- 
 tion that they made this supplement to their award in order 
 that it might appear whether they had decided according to 
 law. It must appear that they made the statement for the pur- 
 pose that their award might be inoperative if it appeared that 
 they had not decided according to law as held by judicial tri- 
 bunals. For aught that appears, this board of arbitrators 
 intended to make an award based upon their own views of the 
 law and facts of the case, irrespectively of the law of the 
 books."! 
 
 The Rule in this Matter in England. — The older rule in 
 England has been that where the arbitrator stated his grounds 
 and reasons in his award, the matter of whether or not 
 these were good in law would be examined by the court, and 
 the award would be set aside if these were not good in law.^ 
 " Possibly, however," says Eussell, " in many cases where the 
 report does not give the submission, the arbitrator may have 
 been authorized to state a case for the decision of the court." ^ 
 Prom which remark it might be inferred that this writer does 
 not approve of the rule. Yet he adduces only one instance of 
 a contrary adjudication, where the Court of Queen's Bench 
 refused to consider the validity of the legal principles on which 
 the arbitrators had proceeded, since there was no authority 
 conferred upon the arbitrators to submit a point of law for 
 review. It was said that every thing subsequent to the actual 
 decision of the arbitrators was " inoperative and surplusage, 
 and need not be regarded." * 
 
 1 Smith V. Boston & Maine Railroad, 16 Gray, 621. 
 
 2 Pratt V. Hillman, 4 Barn. & Cr. 269 ; Williams v. Jones, 5 Man. & Ry. 3 ; 
 Ames V. Milward, 8 Taunt. 637 ; Gaby v. Wilts Canal Company, 3 Maule & S. 
 580; Kent v. Elstob, 8 East, 18 ; and see Fuller v. Eenwick, 3 C. B. 705 ; Toby 
 ^. LoVibond, 17 L. J. C. P. 201. 
 
 » Russell on Arb., 3d ed. p. 304. 
 
 * In re Wright & Cromford Canal Company, 1 Q. B. 98. 
 
MISTAKE IN THE AWAED. 311 
 
 Suggestion of a Distinction. — It is suggested that a sound 
 distinction might be drawn between the statement of the 
 mere grounds or reasons of a decision and the enunciation of a 
 supposed legal principle, as such. For though an arbitrator's 
 reasons may be bad in law, yet his award may well be allowed 
 to stand in spite of it, since he has a right to disregard strict, 
 law and pursue a broad and substantial justice, and non constat 
 that he has not intended to do so. But if he states what he 
 conceives to be a legal principle, as having governed his action 
 in the premises, it is fair to say that if that legal principle is 
 wrong, then he has been so far misled that his award is not in 
 fact entitled to be regarded as his judgment in the controversy. 
 It seems to me that there may be something in this view, 
 though I have nowhere found it mentioned in any argument or 
 judicial opinion, unless, perhaps, it is distantly hinted at by 
 Judge Dewey. In a sort bf supplemental instrument the arbi- 
 trators had set forth the " facts and principles " upon which 
 they had made their award. Counsel wished to make this a 
 basis for reviewing the law, and propositions necessary to be 
 maintained by him were, of course, that the arbitrators in- 
 tended to decide according to law, and that they had stated 
 the law and facts in their award, in order that it might ap- 
 pear whether or not they had executed that intent. Yet 
 the only pi*oof of the first proposition lay in the second propo- 
 sition. There was no proof of intent to decide according to 
 law, unless the statement of facts and principles was such, 
 " Now," said Judge Dewey, " it might be asked, where is the 
 evidence that they intended to decide according to the princi- 
 ples of law rather than equity and substantial justice between 
 the parties ? Or where is the evidence that they intended to base 
 their award upon any other legal opinions than their own ? " ^ 
 
 Effect of a Recital of Facts in the Award. — If the arbitrator, 
 not being empowered to state facts in order to raise an issue 
 of law for the court, simply recites his finding of the facts, and 
 
 1 Smith V. Boston & Maine Railroad, 16 Gray, 521. 
 
312 MISTAKE IN THE AWARD. 
 
 then makes his decision, without connecting the two by any 
 declaration of his reasons, views, or opinions, the English rule 
 is that the award will be sustained. The court will not draw its 
 own conclusion from the facts stated, and, if this be different 
 from the conclusion of the arbitrator, then vacate his award.^ 
 
 In one instance the court remarked that the facts stated were 
 not set forth as the full evidence in the cause, but the mere im- 
 pression of the evidence which the arbitrator had received.^ 
 
 Moreover, it has been said the court will not presume that 
 there were no other facts to warrant the award, save only those 
 which the arbitrator has set forth in it. His finding of a par- 
 ticular fact does not show that he made it the ground of his 
 decision. He may have made only a partial statement, desir- 
 ing for some reason to state some particular fact.^ 
 
 If the facts recited present any evidence which a judge would 
 be justified in leaving to a jury, as going to make out such a 
 conclusion as the arbitrator has 'come to, the court will not 
 interfere, though they might have come to a different conclu- 
 sion. The court has no such control over an arbitrator as it 
 has over a jury "in the case of an apparently wrong conclusion.* 
 His statement that he finds some specific fact, as, in. the case 
 cited, the existence of a partnership, though it appear to be the 
 ground of his decision, may often be wholly supererogatory, or 
 beside the question, and will then be treated simply as sur- 
 plusage, and not allowed to vitiate the award.^ 
 
 The Statement of Grounds, &c., must constitute a Part of the 
 Award. — It seems that the statement of grounds or principles 
 should be embodied in the report or award itself, or in an in- 
 
 1 Archer v. Owen, 9 Dowl. 341 ; Barton v. Ransom, 3 Mee. & W. 322 ; Brad- 
 bee V. Christ's Hospital, 4 Man. & Gr. 714, p. 757 ; Scott v. Van Sandau, 6 Q. 
 B. 237. 
 
 2 Archer v. Owen, 9 Dowl. 341. 
 
 3 Eussell on Arb., 3d ed. p. 305 ; Lancaster v. Hemington, 4 Ad. & El. 345 ; 
 Teale v. Younge, M'Lel. & Y. 497. 
 
 < Barrett v. Wilson, 1 Cr. Mee. & Eos. 586 ; 3 Dowl. 220 ; Archer v. Owen, 9 
 id. 341. 
 
 * Harrison v. Lay, 13 C. B. n. s. 528 ; Bradbee v. Christ's Hospital, 4 Man. & 
 Gr. 714, p. 757. 
 
MISTAKE IN THE AWARD. 313 
 
 strument properly made a part of the report or award.^ At 
 the request of counsel, a referee put into writing an exposition 
 of the views and considerations upon which he had founded 
 his award. But since it was no part of the award, and 
 not referred to in it, the court refused to give it any con- 
 sideration.2 
 
 At the request of a party, a referee, who had made a com- 
 plete award, made a subsequent separate report of the evidence, 
 stating that he had no intention of thereby submitting the 
 matters arbitrated to the revision of the court, unless the party 
 was legally entitled to such revision independently of this pro- 
 ceeding, ' The court refused to inquire into the legality of the 
 decision upon the strength of this instrument.^ 
 
 But the old English cases tend to show that if the arbitra- 
 tor annexes any explanatory instrument,* or even writes a 
 letter,^ setting forth the grounds of his decision, and these be 
 bad, and would, if established, furnish a sufficient cause for 
 vacating the award, the court will take notice of these ex- 
 trinsic documents, and will set aside the award, as if tlie 
 objectionable matter had been embodied in it. 
 
 The Fundamental Matter is the Arbitrator's Intent. — It is evi- 
 dent from the preceding pages that the fundamental fact to be 
 established is the intention of the arbitrators to decide accord- 
 ing to law, and the difficult questions chiefly relate to the 
 matter of what shall be considered sufficient or conclusive 
 evidence to establish this intent. It appears, however, that the 
 necessity for such evidence may be superseded by the admission 
 of the parties. Where, in the argument of the cause, the 
 counsel upon both sides proceeded upon the assumption that 
 
 1 Smith V. Boston & Maine Railroad, 16 Gray, 521 ; Cushman v. Wooster, 45 
 N. H. 410 ; Ward v. American Bank, 7 Mete. (Mass.) 486. 
 
 2 Brown v. Cfay, 31 Maine, 518. 
 
 " Ward V. American Bank, 7 Mete. (Maes.) 486. 
 
 * Kent V. Elstob, 3 East, 18 : Sharman v. Bell, 5 Maule & S. 504 ; Holmes v. 
 Higgins, 1 Barn. & Cr. 74 ; Pratt v. Hillman, 4 id. 269. 
 
 * The Ayre & Calder Narigation Case, cited in Williams v. Jones, 5 Man. 
 & Ry. 3. 
 
314 MISTAKE IN THE AWARD. 
 
 the arbitrators intended to be governed in their determination 
 by the rules of law, the court said that the award could prob- 
 ably be examined into, and its legality be considered by a 
 court of law, when it was pleaded in bar to an action.^ 
 
 Error in a Fundamental and Clear Principle of Law. — Some 
 of the English cases support a doctrine substantially as follows : 
 that if the arbitrator is declared to have adopted some erro- 
 neous fundamental principle, upon which he has proceeded in 
 investigating the case, and in coming to a determination, and 
 making his award in the controversy, the courts may inquire 
 into the matter with the purpose of vacating the award if they 
 find that he has in fact fallen into the alleged mistake.^ For 
 example, a suit by an attorney for a bill not taxable was re- 
 ferred to the clerk of assize ; the Court of Exchequer consid- 
 ered that they had the power to examine whether the arbitrator 
 had adopted the right rule of taxation.^ But it was said in 
 Corneforth v. Geer that the mistake must be a plain one ; and 
 again it was said that if the point of law were a doubtful one, 
 the Court of Chancery would give no relief against the arbitra- 
 tor's decision.* 
 
 And still another holds that if the error in law is in a point 
 " universally known and clear," then the decision is " plainly 
 and grossly against law," and is bad. But if the point " might 
 be doubtful," then the award shall stand.^ 
 
 Awards on Questions of Pure Law. — Questions of pure law 
 are sometimes directly submitted. In such cases it makes 
 no difference whether or not the arbitrators decide them as 
 the court would see fit to do. The award, whether it meets the 
 approbation of the court or not, is final and conclusive. The 
 
 1 United States v. Ames, 1 Woodb. & Min. 76. 
 
 2 Russell on Arb., 3d ed. p. 294 ; Hardy v. Innes, 6 Moore, 574 ; Johnson v. 
 Durant, 2 Barn. & Ad. 925 ; Corneforth v. Geer, 2 Vern. 705 ; Anon., 3 Atk. 
 644 ; Richardson v. Nourse, 2 Barn. & Aid. 237. 
 
 ' Broadhurst v. Darlington, 2 Dowl. 38. 
 * Eidout V. Pain, 3 Atk. 486 ; 1 Yes. 11. 
 
 ' Cleary v. Coor, 1 Hayw. (N. Car.) 225; see also Morris v. Ross, 2 Hen. & 
 Munf. 408. 
 
MISTAKE IN THE AWAED. 315 
 
 agreement of the parties is, substantially, that they will be 
 bound by whatever the arbitrator declares to be the law be- 
 tween them, and by this agreement they are bound.^ 
 
 Distinctions bet-ween Professional and ITon-Professional Arbi- 
 trators. — It has sometimes been made a question whether the 
 court will not set aside an award, on the ground of mistake of 
 the law, when the arbitrator is not a professional man, and 
 decline inquiry into such mistake when he was understood 
 from his profession to be well acquainted with the law. In 
 the courts of law in England some of the earlier cases counte- 
 nanced this distinction.^ But it never was adopted by equity 
 tribunals,^ and it can no longer be considered to exist.* Chief 
 Justice Shaw surmises that it was probably originally " taken 
 rather by way of instance to illustrate the position that, 
 when the parties intended to submit the questions of law as 
 well as of fact, the award should be final, but otherwise not." 
 In another case, speaking of the same old doctrine, he says, 
 " But what does this mean ? Simply that it is supposed to be 
 intended that the case shall be decided according to law. And 
 do they not intend this in all cases ? The rule [of court] refers 
 contested questions of right to arbitrators ; and what are any 
 questions of right but questions of fact first, and then of the 
 rules of law applicable to the facts ? " ^ 
 
 Matters of Fact are peculiarly vtrithin the Arbitrator's Authority. 
 
 1 Greenough v. Eolfe, 4 N. H. 357 ; Smith v. Smith, 4 Eand. 95 ; Kleine v. 
 Catara, 2 Gall. 61 ; Jackson v. Ambler, 14 Johns. 96 ; Cranston v. Kenny's Ex- 
 ecutors, 9 id. 212 ; Campbell v. Western, 3 Paige, 124 ; Ching v. Ching, 6 Ves. 
 Jr. 281 ; Young v. Walter, 9 id. 864 {per Lord Chancellor Eldon) ; Steff i>. An- 
 drews, 2 Madd. 6 ; Price v HoUis, 1 Maule & S. 106. 
 
 2 Chace v. Westmore, 13 East, 356 ; Sharman t>. Bell, 5 Maule & S. 504 ; 
 Perriman v. Steggall, 9 Bing. 679 ; Cramp v. Symons, 1 id. 104 ; Williams v. 
 Jones, 5 Man. & Ey. 3. 
 
 » Ching V. Ching, 6 Ves. Jr. 281 ; Steff w. Andrews, 2 Madd. 6. 
 
 * Fuller V. Penwick, 3 C. B. 705 ; Brown v. Croyden Canal Co., 9 Ad. & B. 
 522 ; Ashton v. Poynter, 3 Dowl. 201 ; Jupp v. Grayson, ib. 199 ; Huntig v. Rai- 
 ling, 8 id. 879 ; Boston Water Power Company v. Gray, 6 Mete. (Mass.) 131 ; 
 Ward V. American Bank, 7 id. 486. 
 
 ' Pairchild v. Adams, 11 Cush. 547. 
 
316 MISTAKE IN THE AWARD. 
 
 — Less hesitation has been manifested in treating as conclu- 
 sive the finding of arbitrators upon facts than their rulings 
 upon principles of law. Matters of fact are regarded as pecul- 
 iarly within the scope of their authority. The absence of 
 technicality leaves no, room for questioning the accuracy of 
 their knowledge. As intelligent men they judge of the facts 
 and merits finally, as a jury does. The department is pecul- 
 iarly their own. That their discretion and judgment upon all 
 questions of fact or merits are absolutely final, arid not subject 
 to review or examination, is a leading principle often enun- 
 ciated, and nearly, though not quite, universally accepted in 
 the law concerning arbitration.^ Chief Justice Shaw says, " It 
 has long since been settled that awards are conclusive on all 
 matters of fact submitted to the arbitrators." ^ 
 
 Exception Trbere the Judgment has been prevented from being 
 fairly or correctly exercised. — It might seem that there is a 
 great number of cases in which this rule has been set at 
 naught, yet a careful examination will show that a large pro- 
 portion of these are covered by one grand principle, which 
 ought rather to be regarded as constituting a development of 
 the rule than an exception to it. The rule is that the judg- 
 ment of the referees or arbitrators upon a question of fact is 
 conclusive. The development or exception, whichever it may 
 be called, requires that this judgment should be the real dis- 
 cretion, fairly exercised, of the persons selected to judge. If 
 fraud or corruption intervene, the decision will not be the judg- 
 ment. This matter is treated of elsewhere. No less evident is 
 it that if a supposition of fact upon which the arbitrators have 
 acted should turn out to be false, the conclusion to which they 
 
 1 Boston Water Power Company v. Gray, 6 Mete. (Mass.) 131 ; Weston v. Stu- 
 art, 2 Fairf. 326 ; Goldsmith's Administrator v. Tilly, 1 Harris & J. 361 ; De Long 
 V. Stanton, 9 Johns. 88 ; and see ante, p. 294, notes 1 & 2 ; Morgan v. Mather, 
 2 Ves. 17 ; Dick v. Milligan, ib. 28 ; Baggalay v. Mackwick, 30 L. J. C. P. 342 ; 
 10 C. B. N. s. 61 ; Winter v. Lethbridge, 13 Price, 533 ; Brown v. Brown, 1 Vern. 
 157 ; Lancaster v. Hemington, 4 Ad. & EI. 345 ; Bouttilier v. Thick, 1 Dowl. & 
 By. 366 ; Hill v. Ball, 1 Dow, N. s. 164. 
 
 ' Fairchild v. Adams, 11 Cush. 647. 
 
MISTAKE IN THE AWARD. 317 
 
 have come upon this erroneous basis will be so far perverted 
 that it will not represent their true discretion or judgment in 
 the matter. To illustrate by an example : If arbitrators are 
 called upon to make an appraisement of land, and are obliged 
 as a preliminary step to determine its measurement and con- 
 tents, if they use a measure which is, without their knowledge, 
 imperfect, — as, if they use a chain from which a link is miss- 
 ing, — they will make a mistake in fact which will destroy the 
 accuracy of their conclusion. Upon a mistaken basis they can- 
 not build a decision which truly expresses their judgment or 
 discretion. The mistake is in a matter of fact ; but it is a 
 matter of fact in respect of which no judgment or discretion 
 has been exercised, for the arbitrators have not inquired into 
 and passed upon the accuracy of the chain ; they have erro- 
 neously taken it for granted. Still more simple is the case of 
 an error in calculation, obvious on the face of the award itself. 
 I do not know that I can do better than here again to quote 
 from the opinion of Chief Justice Shaw.^ " Another ground," 
 he sayS; " for setting aside the award is a mistake of fact^ 
 apparent upon the award itself ; and this is held to invalidate 
 the award, upon the principle stated in the preceding propo- 
 sition, that the award does not conform to the judgment of the 
 arbitrators, and the mistake apparent in some material and 
 important particular shows that the result is not the true 
 judgment of the arbitrators. The mistake must be, therefore, 
 of such a nature, so affecting the principles upon which the 
 award is based, that if it had been reasonably known and dis- 
 closed to the arbitrators, if the truth had been known and 
 understood by them, they would probably have come to a dif- 
 ferent result. A familiar instance of this class of mistakes is 
 an obvious error in computation, by which the apparent result, 
 in sums or times, or other things of like kind, is manifestly 
 erroneous.^ In such case it is clear that the result stated is 
 
 1 Boston Water Power Company v. Gray, 6 Mete. (Mass.) 131. 
 
 2 To the same effect is the opinion of Judge Story, in Kleine v. Catara, 2 Gall. 
 
318 MISTAKE IN THE AWARD. 
 
 not that intended ; it does not express the real judgment of the 
 arbitrators." 
 
 Brro-rs in matters of fact, misleading the judgment of the 
 arbitrators, may also occur in the course of the proceedings, 
 without, however, being " apparent upon the award itself." 
 Thus it may happen that the " arbitrators make a mistake in 
 matter of fact by which they are led to a false result. This 
 would not extend to a case where the arbitrators come to a 
 conclusion of fact erroneously, upon evidence submitted to and 
 considered by them, although the party impeaching the award 
 should propose to demonstrate that the inference was wrong. 
 This would be tlie result of reasoning and judgment upon facts 
 and circumstances known and understood ; therefore a result 
 wliich, upon the principles stated, must be deemed conclusive. 
 But the mistake must be of some fact, inadvertently assumed 
 and believed, which can now be shown not to have been as so 
 assumed ; and the principal illustration [is] that of using a 
 false weight or measure believing it to be correct. Suppose, 
 as a further illustration, that a compass had been used to as- 
 certain the bearings of points, and it should be afterwards 
 found that by accident or the fraud of a party a magnet had 
 been so placed as to disturb the action of the needle, and this 
 wholly unknown to the arbitrators ; it is not a fact, or the infer- 
 ence of a fact, upon which any judgment or skill had been exer- 
 cised, but a pure mistake, by which their judgment, as well as 
 the needle, had been swerved from the true direction which it 
 would have taken had it followed the true law understood to 
 govern it. One test of such a mistake is that it is of such a 
 kind, and so obvious, that when brought to the notice of the 
 arbitrators, it would induce them to alter the result to which 
 they had come in the particular specified. It is not to be un- 
 derstood that such mistake can be proved only by the testi- 
 
 61. He says that for an error in fact, e. g. of miscalculation, apparent on the 
 face of the atward, or where the referees are satisfied of the existence of an error, 
 and wish to correct it, the court will recommit the award to receive the correc- 
 tion, but will not set it aside. 
 
MISTAKE IN THE AWARD. 319 
 
 mony or by the admission of the arbitrators. They may, from 
 various causes, be unable to testify, or may not be able to 
 recollect the facts and circumstances sufficiently. It is not, 
 therefore, as matter of law, confined to a case of mistake ad- 
 mitted or proved by the arbitrators ; but it must be of a fact 
 upon which the judgment of the arbitrators has not passed as 
 a part of their judicial investigation, and one of such a nature, 
 and so proved, as to 'lead to a reasonable belief that they were 
 misled and deceived by it, and that, if they had known the 
 truth, they would have come to a different result." 
 
 The accident or mistake by reason of which an award may 
 be impeached is, at a later stage in the opinion, said to be one 
 of such a nature that by it the arbitrators " were deceived and 
 misled, so that the award is not, in fact, the result of their 
 judgment. In a certain loose sense, the arbitrators may be 
 said to have fallen into an error or mistake, a palpable mistake, 
 when they have judged wrong upon the evidence before them. 
 This is not the kind of error or mistake intended, because, so 
 far as they have exercised their judgment, it is conclusive, 
 though the result might, to other minds, seem palpably erro- 
 neous. . . . The mistake or accident, therefore, must be of 
 some fact which deceived and misled the arbitrators, and not 
 a mistake in drawing conclusions of fact from evidence or ob- 
 servation, or mistake in adopting erroneous rules of law or 
 theories of pliilosophy." The illustration of the compass is 
 again referred to. If the action of the needle be disturbed by 
 an accidental cause unknown to the arbitrators, their award 
 made in reliance upon its accuracy may be avoided. But if 
 they " adopted a theory of magnetism in relation to the varia- 
 tion " of the needle which " other philosophers, conversant 
 with all that is known of the science of magnetism," consider 
 incorrect, yet the testimony of these other philosophers is inad- 
 missible to controvert the award, because it " would be an 
 appeal from [the arbitrators'] decision in a case where they 
 have exercised their judgment." So if arbitrators use loga- 
 
320 MISTAKE IN THE AWAED. 
 
 rithms incorrectly calculated, "it would be a mistake that 
 misled them. But if they adopted, purposely and deliberately, 
 a process of mathematical reasoning which they believed to be 
 correct, their award could not be impugned by the testimony of 
 other mathematicians tending to show that it was erroneous." 
 
 Mistake of an Arbitrator as to Contents of A-ward. — It was 
 offered to show by testimony of an arbitrator that he had joined 
 in the execution of the award, without- reading it, under a 
 misapprehension of its contents. For that he thought the 
 judgment which had been agreed upon was materially different 
 from that which his associates understood it to be and had 
 expressed in drawing up the award. Chief Justice Shaw said 
 that this was " not such a mistake as would avoid an award. 
 It would go to show, not that the arbitrators together, as a 
 body, had been misled by the use of any false token or measure, 
 or table of computations, or the like, to make an award which 
 was not the result of their judgment upon the facts found by 
 them, as in Boston Water Power Company v. Gray.^ It would 
 simply tend to show that one of the arbitrators misunderstood 
 the other two, or they him, in reference to the supposed item. 
 It would be hazardous in the extreme to admit such an alleged 
 mistake, long after an award is made and acted upon, to im- 
 peach its validity." ^ 
 
 The General Doctrine that 3 Mistake is Ground for vacating an 
 Award. — The second of the two grand classes of cases men- 
 tioned heretofore ^ is now reached. They may be said, in a 
 word, to lay down a doctrine precisely opposite to that enun- 
 ciated upon page 294, ante, and supported by so many high 
 authorities. The only consistent principle which can be ex- 
 tracted is that an award may be set aside for a mistake in law 
 or in fact, provided the circumstances are such that the court 
 thinks it best or proper to do so. It is needless to dilate upon 
 the mischief wrought by such a rule. In one or another 
 
 1 6 Mete. (Mass.) 131. 2 Withington v. Warren, 10 id. 431. 
 
 ' Ante, p. 292, " Two Classes of Decisions." 
 
MISTAKE IN THE AWARD. 321 
 
 spe'cial instance it may work a substantial equity between tlie 
 parties which the rigid doctrine of conclusiveness would render 
 impossible. But it is obvious that it would introduce such a 
 degree of uncertainty and want of finality into the whole sys- 
 tem of settling disputes by arbitration as to deprive that method 
 of the greatest portion of its value. In addition to this in- 
 trinsic weakness of this doctrine, it will be remarked that the 
 great proportion of the tribunals by which it has been asserted 
 in the United States are not usually regarded as consti- 
 tuting very high professional authorities. The adjudications of 
 those courts which are entitled to more respect are old, and 
 are based upon the English authorities. Both in this country 
 and in England the current of the law has been carrying us 
 away from these antiquated positions, and their age must be 
 regarded as an element of weakness, rather than as a token of 
 the strength pertaining to a long-established doctrine. Russell 
 says that greater latitude was allowed formerly in review- 
 ing the arbitrator's judgment than the courts would be disposed 
 to permit at present ; ^ and the ^ame statement also unquestion- 
 ably represents correctly the tendency in the United States. 
 
 Relief against an award will be granted in equity if a " plain 
 error in law or fact " be specifically set forth and proved .^ An 
 award will be set aside for a mistake palpable upon its face ; ^ 
 or for a plain mistake in the law upon some material point ; * or 
 for a mistake in fact such as the arbitrator himself would 
 adinit, e. g. a miscalculation ; ^ or for a palpable mistake which 
 is extremely prejudicial to the losing party ;,8 for a very gross 
 or manifest mistake.' Though in Illinois, where the same lax 
 rule is recognized, it is nevertheless subject to the limitation 
 
 1 Eussell on Arb., 3d ed. p. 293. 
 
 " "Williams v. Paschall, 4 Dall. 285 {per Shippen, C. J.) 
 « Morris v. Ross, 2 Hen. & Munf. 408. 
 4 Hartshorne v. Cuttrell, 1 Green's Chj*. 297.] 
 " Ibid. 
 
 6 Bumpass v. Webb, 4 Porter, 65. 
 
 ' Sumpter v. Murrell, 2 Bay, 450 ; Askew v. Kennedy, 1 Bailey, 46. 
 
 21 
 
322 MISTAKE IN THE AWARD. 
 
 that the mistake must be that of all the arbitrators, not of a 
 part only.i 
 
 A very bad case is that of Cleaveland v. Dixon, which allows 
 an award to be set aside for an error in law or fact, apparent 
 on its face, 'provided that it is in the nature of an error in the 
 exercise of their discretion by the arbitrators.^ But the judge 
 was evidently so muddy in his ideas upon this subject that the 
 cause is not likely to become a leading one. 
 
 A report of referees may be set aside either for an evident 
 mistake in a matter of fact, or for an obvious error in matter 
 of law.^ 
 
 Other cases to the same general effect as the foregoing, as 
 well as some of those already cited, add, as an essential stipula- 
 tion, that the mistake must be apparent on the face of the award 
 itself, so that no extrinsic inquiry or evidence is needed to 
 establish it.* 
 
 Another case, acknowledging that an award may be vacated 
 for an error in law, yet says that this will be done only if the 
 error be apparent on the face o'f the award, and also if it was 
 the evident means of leading the arbitrators to an erroneous 
 conclusion.^ 
 
 The English Authorities supporting this Doctrine. — Rlissell 
 says that "The result of the numerous cases cited seems 
 clearly to establish that though the courts could not interfere 
 with the arbitrator's decision on the simple ground that he had 
 judged erroneously, yet where there was a clear gross mistake 
 affecting the result of the award, and that admitted or made 
 out to the satisfaction of the arbitrators (as to which Lord 
 Thurlow insisted on having their affidavits) the courts both 
 
 1 Pulliam V. Pensoneau, 33 lU. 375. 
 
 2 4 J. J. Marsh. 226. 
 
 s WiUiams v. Craig, 1 Dall. 313 {per M'Kean, C. J.) ; Lyle v. Clason, 1 Gaines, 
 823. 
 
 4 Pleasants v. Ross, 1 Wash. 156 ; Hartshorne v. Cuttrell, 1 Green's Chy. 297 ; 
 Brickhouse v. Hunter, 4 Hen. & Munf. 363 ; Goldsmith's Administrator v. Tilly, 
 1 Harris & J. 361 ; 3 Band. 122. 
 
 6 Cohen v. Hobenicht, 14 Eichardson Eq. (S. Car.) 31. 
 
MISTAKE IN THE AWAED. 323 
 
 of law and equity would, as a general rule not many years ago, 
 have set aside the award." ^ 
 
 But, he continues, " whether this rule will be followed in 
 equity at the present day is perhaps uncertain, as the courts 
 of law are now evidently inclined to hold that an award good 
 on its face is not to be impeached on the ground of mistake 
 alone." ^ 
 
 It is, however, " clear that for an admitted mistake of the 
 arbitrator a court of equity will refer back an award." ^ 
 
 The Case of In re Hall & Hinds, and Comments upon it — A. 
 claimed that B. owed to him two separate sums of money. 
 The dispute was whether B. owed him both or only one of 
 these sums. The afbitrators were of opinion that B. should 
 pay both sums to A. But by a singular series of blunders, 
 they deducted the less from the greater, instead of adding the 
 tyro together ; and instead of directing this erroneous balance 
 to be paid by B. to A., they reversed the matter and ordered 
 the payment to be made by A. to B. The mistake was obvious, 
 and was even acknowledged in a formal affidavit made by the 
 arbitrators and produced in court. In delivering his opinion, 
 Tindal, C. J., laid great stress upon the manifest failure of 
 justice which must ensue if the court could not relieve in this 
 case, especially since no defence could apparently be made in a 
 suit at law on the award. It would bring the administration 
 of justice " into scandal and contempt," he said, if the remedy 
 could not and should not be applied. This mistake was to be 
 regarded as " a mere clerical error by which the arbitrators 
 have expressed on the copy of the award delivered out, not 
 
 1 Russell on Arb., 3d ed. p. 296 ; Knox v. Symmonds, 1 Ves. Jr. 369 ; An- 
 derson V. Darcy, 18 id. 447 ; Delrer v. Barnes, 1 Taunt. 48 ; Anon., 2 Chitt. 44 ; 
 Payne v. BaUey, 7 Moore, 147 ; "Ward v. Dean, 3 B. & Ad. 234 ; Potter v. New- 
 man, 4 Dowl. 504 ; Rogers v. Dallimore, 6 Taunt. Ill ; Hardy v. Ringnose, 1 H. 
 ■& W. 185 ; Hutchinson v. Shepperton, 13 Q. B. 955. 
 
 2 Russell on Arb., 3d ed. p. 296 ; PuUer v. Fenwick, 3 C. B. 705 ; HodgMn- 
 Bon V. Fernle, 27 L. J. C. P. 66 ; 3 C. B. n. s. 189. 
 
 ' Russell, «6j supra ; Mills v. Bowyer's Society, 3 Kay & J. 66. 
 
324 MISTAKE IN THE AWARD. 
 
 the intention of their own minds, but one widely different. 
 But the mistake and act of carelessness were so gross as to 
 amount, though not morally, yet in a judicial sense of that 
 term, .to misconduct on the part of the arbitrators. " We 
 think we do not extend the jurisdiction of the court beyond 
 its proper limits, when we give relief in a case under these 
 very peculiar circumstances, by holding this case to fall within 
 the acknowledged power of the court to relieve against the 
 misconduct of the arbitrators." ^ 
 
 Previously Baron Parke had said that an award could be 
 set aside for an error in fact, only if it were " so glaringly 
 wrong as almost to amount to misconduct in the arbitrators." ^ 
 
 The unwillingness of the court to set aside the award in the 
 foregoing case upon the simple ground of mistake as such, and 
 their feeling that it was necessary to drag it under the shelter of 
 the doctrine of.misconduct, indicated nevertheless a wide depar- 
 ture from the discretionary power so often asserted in earlier Eng- 
 lish cases. Yet long as was this stride, the judges of the Court 
 of Exchequer were willing to go even further in the same direc- 
 tion. They were not satisfied with this notion'of construing a 
 mistake into misconduct. They thought that where the real 
 fault in the award was a naked mistake, the award ought not 
 to be set aside. Tlie inflexible rule might sometimes work 
 harshly ; but, if a contrary doctrine were allowed to prevail, in 
 the vast majority of arbitrations the losing party would assert 
 that there had been a mistake. The arbitrator had made a 
 mistake in omitting to take into account a large item, which 
 the defendant acknowledged to be owing from him to the plain- 
 tiff. When the attention of the arbitrator was called to the 
 error, he admitted that he had fallen into it, and wished the 
 matter to be again referred to him, so that he might rectify his 
 blunder ; to this, however, the defendant objected. The court 
 refused to set aside the award. They did not directly overrule 
 
 1 In re Hall & Hinds, 2 Man. & Gr. 847 (1841). 
 
 2 Ashton V. Pointer, 2 Dowl. 651 (1834); 
 
MISTAKE IN THE AWARD. 325 
 
 the decision in re Hall & Hinds ; but they said they would 
 carry it no further, and distinguished this case from it on the 
 slender point, that in Hall & Hinds the arbitrator had made 
 an affidavit admitting his error, whereas in this case there was 
 only an affidavit made by a party stating the fact of such an 
 admission having been made by the arbitrator.^ 
 
 But in the Court of Queen's Bench it has been said that the 
 Exchequer judges had gone too far, and that the doctrine in re 
 Hall & Hinds was sound. Accordingly an award was set aside 
 where it appeared by the oath of the arbitrator that he had 
 mistaken the intention of the parties, and had therefore 
 omitted to include in his award a sum which was admitted to 
 be due and owing to the plaintiff. Lord Denman, C. J., said 
 that the rule of conclusiveness " is at most one for guiding 
 our discretion, which cannot be so absolutely fettered and ren- 
 dered powerless." ^ 
 
 " The old rule," that the " decision of an arbitrator, both 
 upon the law and facts, was conclusive," though broken into by 
 the Court of Queen's Bench in Kent v. Elstob,^ and again 
 by the Court of Common Pleas in re Hall & Hinds,* was reaf- 
 firmed and enforced in Hodge v. Burgess,^ decided in the Court 
 of Exchequer in May, 1858. 
 
 Baron Pollock said (1845) of In re Hall & Hinds, that the 
 fact that the arbitrators had not done what they intended to do 
 was the best ground on which to rest that decision, which it 
 would be difficult otherwise to reconcile with previous cases. 
 " The general rule is, that if an arbitrator makes a mistake 
 which is not apparent on the face of his award, the party 
 injured has no redress." The mistake alleged 'in this case 
 
 1 PhiUips V. Evans, 12 Mee. & W. 309 ; 13 L. J. Exch. 80 ; and see Hagger 
 V. Baker, 14 id. 9 ; Russell on Arb., 3d ed. p. 297. 
 
 2 Hutchinson v. Shepperton, 13 Q. B. 955. 
 8 3 East, 18. 
 
 * 2 Man. & Gr. 847; 3 Scott, N. R. 250. 
 5 3 Hurl. & Nor. 298. 
 
326 MISTAKE IN THE AWARD. 
 
 was the receipt of incompetent evidence, but the objection was 
 not entertained by the court.^ 
 
 Mistakes of the Arbitrator on his own Principles. — The judges 
 in Connecticut say that it is acknowledged that a court of 
 chancery can interfere and set aside an award where the 
 arbitrators have fallen into " mistakes on their own princi- 
 ples.'"^ 
 
 Objection that the Award is against Evidence. — As the judg- 
 ment and discretion of the arbitrators exercised upon a ques- 
 tion of fact or merits is final, it follows that the award cannot 
 be impeached on the ground that it is against the evidence.* 
 Though of course, if it be so far against the evidence that the 
 court will be obliged to infer from it fraud or corruption on the 
 part of the arbitrator, a case for setting aside the award will be 
 presented. But it will be upon the ground of misconduct, not 
 of mistake. 
 
 Clerical Errors, Blunders in Calculation, &o., in the Award. — It 
 will be remembered, that in his opinion in re Hall & Hinds,* 
 Chief Justice Tindal said that he regarded the mistake as 
 being substantially a clerical error. It was not precisely such, 
 yet it was of that nature. A distinction certainly ought to be 
 and might be drawn between this description of inaccuracy and 
 a mistaken view of a question of fact or evidence, or an incor^ 
 rect notion concerning a legal principle. Errors of the latter 
 class are customarily called mistakes of the arbitrator, or mis- 
 takes in the award. Errors of the former class are certainly 
 mistakes; but in order to distinguish them in language, as they 
 certainly are distinguishable in their intrinsic nature, it would 
 seem well tcf call them blunders : they are, precisely, blunders 
 in writing out the decision ; they are not mistakes in the deci- 
 
 1 Hagger v. Baker, 14 Mee. & W. 9. 
 
 2 Brown v. Green, 7 Conn. 536 ; Allen v. Eanney, 1 id. 569. 
 
 ' Brown v. Green, 7 Conn. 536 ; Bell v. Price, 2 Zabr. 578 ; In re Bradshaw & 
 The East and West India Docks, &o., 12 Q. B. 562. 
 « 2 Man. & Gr. 847, ante, p. 323. 
 
MISTAKE IN THE AWARD. 327 
 
 sion itself. It is not the decision that is wrong, but the mere 
 expression of the decision. The decision may be final, while 
 the expression may be open to correction. To say that a court 
 could not correct such " blunders," especially when acknowl- 
 edged by the arbitrator, would, at least from the point of view 
 of common sense, seem absurd. So jieedlessly rigid an applica- 
 tion of the rule of conclusiveness would bring the rule itself 
 into, that degree of discredit, that it would soon be shaken, 
 and, as a consequence, would probably be set aside, with very 
 mischievous results, even in the case of mistakes in the deci- 
 sion, properly so called. 
 
 As a general rule, the courts in the United States, and some- 
 times, also, in Bnglatfd, will find some way of correcting cleri- 
 cal errors, blunders in calculation, and the like, as the following 
 cases will show, or at least of vacating the award on account 
 of them, so that the injustice will not be perpetrated.^ 
 
 Where the arbitrator has written in his award a sum which 
 is different from that which he intended to award and to write 
 out, it is said that the award may sometimes be set aside, inas- 
 much as it is not, in fact, his award, since it is not the inten- 
 tional decision" of his mind.^ 
 
 But the following case is hardly so liberal. An award was 
 made in a cause under a general order of reference. Cross- 
 motions were made to confirm and to set aside the award. 
 Lord Loughborough said that he could not review thfe judgment 
 of the arbitrators, or correct any error therein. And even 
 supposing that it evidently appears from the accounts annexed, 
 that the, arbitrators, by mistake in calculation, have awarded a 
 sum different from that which the figures really produce, yet 
 that objection cannot be dealt with upon motion, if no corrup- 
 
 1 See the discussion of In re Hall & Hinds, ante, p. 323; and see post, pp.333, 
 335 in this chapter, under the head of " Eecommitment," Daries v. Pratt, 16 
 C. B. 586; Howett v. Clements, 1 id. 128. 
 
 2 Brown v. Hellaby, 26 L. J. n. s. Exch. 217 ; 1 Hurl. & Nor. 729 ; see Whit- 
 more V. Smith, 31 L. J. Exch. 107 ; 7 Hurl. & Nor. 509. * 
 
328 MISTAKE IN THE AWAED. 
 
 tion is charged. Though, he added, " it would be another ques- 
 tion, what the court would do as to enforcing an award by 
 attachment in a case of evident mistake." ^ 
 
 Objection was taken to an award that it bore date the 23d 
 August, 1813, and purported to be made by virtue of a bond 
 of submission, which bore, date " August 21, now last past," 
 whereas, the bond declared on, and produced in evidence, bore 
 date August 21, 1813, being August instant, instead of past. 
 Further general releases were ordered from the beginning of 
 the world until the " 21st day of August last past, being the 
 day of the date of the arbitration bond," thus apparently 
 showing that the award was made under a bond of submission 
 of August 21, 1812, whereas the bond d'eclared on was dated 
 August 21, 1813, and consequently no authority was shown 
 to make the award. The court, in refusing to entertain these 
 objections, said that, though the strict grammatical construc- 
 tion of the bond might be as contended, yet the intention of 
 the arbitrators was perfectly clear. They had run into a mere 
 inaccuracy of expression. " Last past " might be construed 
 to refer to the day, and not to the month. And, at any rate, 
 awards, often drawn up by illiterate men, were not to be tested 
 by the strict rules of grammar.^ 
 
 W. 0. and P. S., appointed arbitrators, in pursuance of a 
 power in the submission duly nominated an umpire. In mak- 
 ing his umpirage, he erroneously described his authority as 
 delegated to him by W. C. and Thos. S. The court held that 
 the mistake did not vitiate the award, and would not justify 
 them in setting it aside ; on the ground that the recital was 
 entirely unnecessary, and that in declaring on the award the 
 recital need not be stated. It was further held that a correc- 
 tion of the error by a stranger was not fatal, but left the 
 award in the state in which it was before the alteration, inas- 
 
 1 Morgan v. Mather, 2 Ves. Jr. 16. 
 
 2 Browij V. Hankerson, 3 Cow. 70 ; and see Higgina v. Kinneady, 20 Iowa, 
 474 ; Moulson v. Kees, 6 Binn. 32, 
 
MISTAKE IN THE AWARD. 329 
 
 much as the change was made in an entirely immaterial part 
 of the instrument.^ 
 
 In a case where submission had been made by rule of 
 court, Judge. Story said, " If, however, there be an error of 
 fact, as a mistake in calculation, apparent upon the face of an 
 award, or if referees are satisfied that such a mistake has inter- 
 vened and wish to correct the error, although the court will 
 not set aside the award, yet it will recommit it to rectify the 
 mistake." ^ 
 
 A court will interfere, otherwise than upon a bill in equity, 
 to vacate an award on the ground of an alleged mistake in 
 fact only if the mistake be such jas the arbitrators would admit, 
 as a miscalculation, and if it appear on the face of the instru- 
 ment, or an accompanying paper, or be made out to the satis- 
 faction of the arbitrators. In such case the award is not what 
 the arbitrator intended it to be ; it is not the result of his judg- 
 ment. The " safe rule " is said to be that of Lord Thurlow, 
 who always required the oath of the arbitrator himself to estab- 
 lish or admit the alleged mistake. The mistake must be such 
 that no extrinsic evidence is necessary to establish it, and it 
 must be really and not only colorably a mistake in computa- 
 tion ; if it be a mistake in the principle upon which any part 
 of the computation is based, it lies too deep to be reached by 
 this principle. An award was accompanied by a paper entitled 
 "general result," containing certain calculations, showing how 
 the arbitrators had come to their final determination. It was 
 alleged that these calculations showed that an item had been 
 admitted and allowed which ought to have been rejected. But 
 the court said this was no error in calculation, or mistake 
 apparent on the face of the award, though the " general result " 
 might be construed as a part of the award. It was an inde- 
 pendent fact, which could be proved only by extrinsic evidence. 
 It could not, therefore, be reached by proceedings in a court of 
 
 1 Trew V. Burton, 1 Cr. & Mee. 533. 
 3 Kleine v. Catara, 2 Gall. 61. 
 
330 MISTAKE IN THE AWARD. 
 
 law, though the court did not feel " called upon to make any 
 inquiry as to the power of courts of equity, upon bill filed, to 
 set aside an award." ^ 
 
 The Court cannot alter a Report or Award. — The COUrt has nO 
 power to modify an award, even to correct an obvious miscal- 
 culation, unless the authority be expressly given by statute.* 
 Neither has the court power to vary the report of referees. Its 
 authority is only to confirm, to reject, or to recommit. A 
 judgment different from the award or report cannot be 
 entered. 3 No inquiry can be made into an alleged mistake, for 
 the purpose of ascertaining its amount, rectifying it, and enter- 
 ing judgment for a correct g,mount.* Yet in one instance, 
 where the submission reserved to the court the right to review 
 the law, it was held that the referee's law was erroneous, and 
 had led him to an opinion precisely opposite to that which he 
 should have adopted. A judgment substantially different 
 from, and in fact even contrary to, the report was therefore 
 entered.^ But the circumstances in this cause made it practi- 
 cally resemble the case of an alternative award, and the court 
 probably felt justified in treating it as such. They doubtless 
 considered that the phraseology of the submission contained 
 the element if not the literal expression of alternativeness. 
 
 Variance in Duplicate Awards. — Where arbitrators delivered 
 to one of the parties a paper purporting to be their award, but 
 which differed materially from a paper also delivered to the 
 other party as their award, the difference being as to courses 
 and distances in the description of certain land in dispute, a 
 variance of so substantial a nature was held to be fatal. Both 
 instruments were declared void, since it was impossible to 
 say what was in fact the award.^ But the variance must be 
 
 » Bell V. Price, 2 Zabr. 578. 
 
 2 Smith V. Cutler, 10 Wend,. 589. 
 
 ' Commonwealth v. Pejepscut Proprietors, 7 Mass. 399. 
 
 * Commonwealth v. Pejepscut Proprietors, 7 Mass. 399 ; Phelps v. Goodman, 
 14 Mass. 252. 
 
 5 Commonwealth v. City of Eoxbury, 9 Gray, 451. 
 
 * Green v. Lundy, Coxe, 435 ; and see this case, ante, in the chapter on " The 
 
MISTAKE IN THE AWARD. 331 
 
 substantial ; if it be immaterial or clerical in its nature, like 
 the omission of a word clearly to be supplied from the con- 
 text, it will not vitiate the award. For example, where there 
 was an accidental omission, obviously to be supplied, of the 
 word " dollars" in a counterpart copy of the award given to 
 one of the parties, the award was enforced as if the word had 
 not been wanting.'* 
 
 An award was written by the arbitrators on the back of the 
 bond of submission. In describing the parties and arbitrators, 
 reference was made to them as being named " in the within 
 bond." Another instrument, intended to be a duplicate award, 
 was prepared for the other party, in which the arbitrators and 
 parties were described at length. The court disregarded this 
 " slight variation in phraseology." A variance which will 
 avoid the award, it was said, must be substantial, relating to a 
 material matter and affecting the sense of the award.^ 
 
 Method of Avaihng of an Alleged Mistake. — As might be 
 anticipated, where the courts are in such confusion as to 
 the effect of a mistake, a still greater confusion exists as to the 
 mode of proceeding in order to avail of the defect. In a large 
 proportion of the cases cited in this chapter, the fact has been 
 set up and alleged in the courts of law as a defence or upon 
 motion. And it is probable that it might generally be thus 
 availed of, if apparent on the face of the award itself: In sur- 
 prisingly few cases has the method of procedure been a subject 
 of discussion, and these few, it is feared, will not be found to 
 be very satisfactory. 
 
 Many cases bring corruption, partiality, misbehavior, and 
 mistake on the part of the arbitrators into the same category. 
 The rule is said to be established, if the submission be in pais, 
 that none of these defects can be availed of in defence in a suit 
 at law, but that the only remedy is by a bill in equity seeking 
 
 Duration of the Arbitrator's Authority," p. 227 ; Spofford v. Spofford, 10 N. H. 
 254. 
 
 1 Piatt V. Smith, 14 Johns. 368. 
 
 2 Spofford V. Spofford, 10 N. H. 254. 
 
332 MISTAKE IN THE AWAHD. 
 
 to correct or vacate the award. But if the submission be in a 
 pending cause, it is said, application may be made to the court 
 to set aside the award.^ 
 
 But in Massachusetts, before the Supreme Court had such 
 full equity powers as have been since conferred upon it, and 
 when it was therefore incapable of correcting or vacating an 
 award upon a bill brought for that purpose, the judges, in 
 order to prevent a failure of justice, allowed corruption, excess 
 of authority, or gross mistake, to be pleaded in au action on 
 the award. 2 
 
 The rule in New York is that a court of chancery may cor- 
 rect a palpable mistake or miscalculation made by the arbitra- 
 tors ; bat there is no such remedy at law, unless it be given by 
 a statute governing the case.^ 
 
 In New Hampshire it is admitted that a judgment on the 
 merits is conclusive. But, it is said, " where the mistake is 
 one simply of a fact not involving the exercise of such a judg- 
 ment as a tribunal must exercise upon the merits of a question 
 where conflicting claims are to be examined and the credibility 
 of witnesses to be weighed, but is one of mere arithmetical 
 computation, there seems to be no reason why the matter may 
 not be inquired into in a suit at law."* 
 
 A pending cause had been submitted to arbitrators without 
 any rule or order of court. A motion was made to set aside 
 the award on the ground of a mistake in law. The court said 
 there was no authority whatsoever enabling them to inter- 
 fere for this cause upon motion. The relief lay only in 
 equity. Though had there been a special rule of reference, 
 and an award so notoriously against justice and the arbitrator's 
 
 1 Bean v. Farnam, 6 Pick. 269 ; Elkins v. Page, 45 N. H. 310 ; Fletcher v. Hub- 
 bard, 43 id. 58 ; Sisk •/. Garey, 27 Md. 401 ; Bassett v. Harkness, 9 N. H. 164 ; 
 Strong V. Strong, 9 Cush. 560 (p. 568) ; In re Williams, 4 Denio, 194. 
 
 2 Bean v. Farnam, 6 Pick. 269 ; Strong v. Strong, 9 Cush. 560.: 
 
 3 Newland v. Douglass, 2 Johns. 62 ; Person v. Drew, 19 Wis. 225 ; and see 
 Barlow w. Todd, 8 Johns. 367 ; De Long v. Stanton, 9 id. 38. 
 
 * 26 N. H. 206 ; and see Carey v. WUcox, 6 id. 177. 
 
MISTAKE IN THE AWAED. 333 
 
 duty as to constitute misconduct on his part, then the case of 
 Chace v. Westmore^ might, by inference, be construed as an 
 authority in support of the propriety of this mode of pro- 
 ceeding.^ 
 
 Recommitment for Correction of Acknowledged Errors. — If the 
 award or report be returnable into court, the proper way to 
 deal with such errors would seem to be by a recommitment for 
 the specific purpose of the correction.^ In England the matter 
 of referring back has been provided for by statute.* 
 
 Before the passa-ge of this statute, it was said that where 
 the court perceived in the report some great mistake, or even 
 some " very small mistake, perhaps a mistake in the Christian 
 name of the plaintiff, or some error in the heading of the cause, 
 or something of that description," the judges could not correct 
 the mistake or send his report back to the arbitrator to be cor- 
 rected by him. Nothing could be done save to set it aside 
 altogether.^ 
 
 Where' the arbitrator had by mistake called the defendant 
 " David " instead of " Daniel," the award was sent back to the 
 arbitrator, in order that this " mere slip" might be amended. 
 The court said it had no other power in the matter.^ 
 
 Recommitment for Re-hearing. — But the cases in which re- 
 commitment is proper are by no means limited to the rectifica- 
 tion of blunders like the foregoing. Recommitment is often 
 ordered for obtaining substantial alterations and amendments 
 as the result of a fresh hearing and consideration.'^ 
 
 1 13 East, 357. 
 
 2 Cranston v. Executors of Kenny, 9 Johns. 212. 
 
 3 Kleine v. Catara, 2 Gall. 61 ; Blood v. Robinson, 1 Cush. 389 ; Mills v. Mas- 
 . ter, &c., of the Society of Bowyers, 3 Kay & J. 66 ; Davies v. Pratt, 16 C. B. 
 '586. 
 
 1 17 & 18 Vict. c. 125, § 8. 
 
 5 Mills V. The Master, &c., of the Society of Bowyers, 3 Kay & J. 66. 
 
 Davies v. Pratt, 16 C. B. 586 ; Howett v. Clements, 1 id. 128 ; and see Trew 
 V. Burton, 1 Cr. & Mee. 533, stated ante, pp. 828, 329. 
 
 1 Cumberland v. North Yarmouth, 4 Greenl. 459 ; M'Eae v. M'Lean, 2 El. & 
 Bl. 946 ; and cases cited post in the further discussion of this topic. 
 
334 MISTAKE IN THE AWARD. 
 
 Recommitment for Errors in Form. — As a general rule, it is 
 said to be perfectly proper to recommit the report for the per- 
 formance of a mere ministerial act, requiring no hearing of 
 parties or deliberation ; as, for example, in this case, to enable 
 the majority of the referees, who had signed the report, to add 
 to it the omitted but undisputed fact that the non-sigjiing 
 minority had been present at the hearings. The substance of 
 the award is not to be changed ; the mere certification of 
 past facts is desired. Therefore, it was immaterial that the 
 report went back into the hands of the two referees who origi- 
 nally signed it, and who now, without notice to the third, and 
 without his knowledge, made the desired correction and affi- 
 davit and returned the report.^ 
 
 In an action of indebitatus assumpsit the pleas were, first, 
 except as to £150, Hon assumpsit; secondly, as to that sum, 
 payment. The arbitrator not having determined the issue on 
 the account stated, the award was sent back to him by the 
 court, to be corrected in this particular.^ 
 
 Recommitment for Costs. — An award maybe recommitted 
 for the purpose of having the amount of costs ascertained and 
 stated in it.* 
 
 Po-wer and Duty of the Arbitrator after Recommitment. — By a 
 simple recommitment, not specifying a particular purpose, an 
 arbitrator is not restricted within narrower limits than were 
 prescribed by the original submission.* 
 
 A cause was ordered to be sent back to an arbitrator that he 
 might decide on certain matters which were specified in the 
 order. He made an amended award, deciding these matters, 
 and ordering the defendant to bear the costs of the amended 
 award. It was held that he had power to give this direction 
 concerning costs ; for whatever power he had " under the 
 
 i Brann v. Inhabitants of Vassalboro', 60 Maine, 64. 
 
 2 Bird V. Penrice, 6 Mee. & W. 754. 
 
 8 In re Huntley, 1 El. & Bl. 787. 
 
 * Erench v. Richardson, 5 Cush. 450 ; M'Eae v. M'Lean, 2 El. & Bl. 946. 
 
MISTAKE IN THE AWARD. - 335 
 
 original submission, he had impliedly under the reference 
 made back to him.*' ^ 
 
 If the recommitment be for the correction of an acknowledged 
 or obvious error, so that there is no necessity for a re-hearing, 
 the arbitrator may make the amendment and return the corrected 
 award without notifying the parties or giving them any oppor- 
 tunity to be heard ; ^ and this, though he makes a new award 
 instead of " botching up " the old one.^ Recommitment under 
 such circumstances, at least if it be made with consent of the 
 parties, may be regarded as an agreement that the error may 
 be corrected.* 
 
 If a report be recommitted on motion of a party who thinks 
 himself aggrieved by it, no absolute obligation is upon the ref- 
 erees to alter it, or even to hear the parties again. They may, 
 if they see fit, simply return again an identical report.^ 
 
 Recommitiaent is for the Discretion of the Court. — The ques- 
 tion whether or not an award or report which has been returned 
 into court shall be recommitted is one of discretion, and not of 
 law. If the court to which a report is returnable refuses to re- 
 commit it, this decision is not subject to the revision of a court 
 of law upon exception.^ Semble, also, that the question of ac- 
 ceptance or non-acceptance of a report, objected to on the strength 
 of extraneous facts alleged concerning the proceedings before the 
 referees, not being fraud, partiality, or corruption, is of the same 
 nature.'^ 
 
 Recommitment must be of Whole Case. — Recommitment, if 
 not made simply for the correction of a clerical error, or of 
 
 1 M'Rae v. M'Lean, 2 El. & Bl. 946. 
 
 2 Blood V. Robinson, 1 Cash. 389 ; Howett v. Clements, 1 C. B. 128 ; Bird v. 
 Penrice, 6 Mee. & W. 754 ; In re Huntley, 1 El. & B1..787 ; Johnson v. Latham, 
 20 L. J. Q. B. 236 ; In re Morris v. Morris, 6 El. & BI. 383. 
 
 3 Per Lord Campbell, In re Huntley, 1 El. & Bl. 787. 
 < McGheeheu v. Duffield, 5 Penn. St. (Barr) 497. 
 
 5 May V. Haven, 9 Mass. 325. 
 
 5 Walker v. Sanborn, 8 Greenl. 288 ; Cumberland v. Inhabitants of North 
 Yarmouth, 4 id. 459. 
 
 ' Walker v. Sanborn, 8 Greenl. 288. 
 
336 MISTAKE IN THE AWAED, 
 
 one which may be corrected from an inspection of the report 
 itself, must be of the whole case, and not of a single issue 
 only.' 
 
 Impeaching the Award by Extrinsic Evidence or by the Arbi- 
 trator's Testimony of a Mistake. — If an error Or mistake is appar- 
 ent on the face of the award, no further evidence will be required 
 to establish it. But if it is not thus fully apparent, it may be desir- 
 able to adduce extrinsic evidence. It is very seldom, however, 
 that the courts have allowed awards to be impeached by extrinsic 
 evidence for errors not evident upon the instrument alone, or 
 with its accompanying documents.^ Judge Story makes it a 
 quasre in Kleine v. Catara,^ whether collateral evidence, to 
 show an error in law not appearing on the face of the award, 
 is admissible. In Boston Water Power Company v. Gray,^ at 
 the trial at Nisi JPrius, it was ruled that in showing gross errors 
 and palpable mistakes, of a nature to avoid the award, the im- 
 peaching party was not confined to errors and mistakes appar- 
 ent on the award ; but that evidence might be given of such 
 gross and palpable error, though not apparent on the face of 
 the award ; and that it might be shown that the arbitrators, 
 " through inadvertence or mistake, assumed a fact as true 
 which was not true, or overlooked some material fact which 
 was true, in either case affecting their decision." Judge Shaw 
 said that since this part of the ruling of the lower court had 
 not been excepted to, it had not been brought under the con- 
 sideration of the whole court, and was " not, therefore, afEtrmed" 
 by the decision in this case." 
 
 Many cases also show that the affidavit or testimony of an 
 arbitrator may be received to show that a mistake has been 
 made in the award. But the kind of mistake which can be 
 
 1 Smith V. Warner, U Mich. 152; but see M'Eae v. M'Lean, 2 El. & Bl. 946. 
 
 2 Pleasants v. Eoss, 1 Wash. 156 ; Hartshorne v. Cuttrell, 1 Green's Chy. 297 ; 
 Brickhouse v. Hunter, 4 Hen. & Munf. 363 ; Goldsmith's Administrator v. Tilly, 
 1 Harris & J. 361. 
 
 8 2 Gall. 61. 
 
 * 6 Mete. (Mass.) 131. 
 
MISTAKE IN THE AWARD. 337 
 
 shown in this way is limited to cases ^ where the error has 
 occurred in making up or expressing the opinion or judgment. 
 The fact of a miscalculation, or of an accidental and uninten- 
 tional omission, might be thus made out. But no case fur- 
 nishes any authority for supposing that a substantial error 
 in judgment could be thus proved. No arbitrator could be 
 allowed to testify that he thought he had made a mistaken 
 decision, or that he had misunderstood or misapplied the rules 
 of law. Testimony of the arbitrators to impeach their oiyn 
 award is inadmissible.^ 
 
 In a Massachusetts case an arbitrator was summoned as a 
 witness to prove a mistake. The mistake, as it turned out, 
 was not properly a mistake in the award, but a mistake in his 
 understanding of the opinion of his co-arbitrators, and in the 
 contents of the award. It seemed that he thought that it had 
 been agreed to charge rent at $60 for five years, whereas the 
 others intended and understood that rent was to be charged at 
 175 for ten years. The latter was the tenor of the award, which 
 this arbitrator signed without reading it, on the supposition that 
 it embodied a judgment which he knew and in which he con- 
 curred. Tlie court refused to admit the proffered testimony. 
 It was " only another mode of asking whether the award, as 
 drawn up and signed, was conformable to the principles agreed 
 to by the arbitrators, or, in other words, whether the award as 
 it now appears is not different, in regard to certain debts and 
 credits, from that which was previously agreed upon by the 
 arbitrators at their conference. It appears to us that this 
 would be inadmissible on many grounds. . . . The most the 
 witness could say was, that according to his present recollec- 
 tion he understood the agreement of the arbitrators at their con- 
 ference to be, to charge a certain rent for five years, when by his 
 
 1 Hartshorne v. Cuttrell, 1 Green's Chy. 297 ; In re Hall & Hiuds, 2 Man. & 
 Gr. 847 ; and see ante, p. 323, the cases cited in note 1. 
 
 2 Bigelow V. Maynard, 4 Cusli. 317 ; and see, in the chapter on " The Dura- 
 tion of the Arbitrator's Authority," the paragraphs entitled Exhaustion of Au- 
 thority by making an Award or Report. 
 
 22 
 
338 MISTAKE IN THE AWARD. 
 
 formal and solemn act, done at the time, in concurrence with 
 the other arbitrators, in a form binding upon the rights of the 
 parties, he has declared that they agreed to allow rent for ten 
 years. He could not be received thus, by his parol testimony, 
 to contradict his formal award in writing." ^ 
 
 Speaking of summoning a referee to testify as to the evidence 
 on which he had made up his report, for the purpose of enabling 
 the court to judge of the correctness of his inferences of fact 
 and conclusions of law, Shaw, C. J., said that such a proceed- 
 ing would not be allowed. " Formerly, it is believed, it was 
 not unfrequent to call upon referees thus to testify, with a 
 view to prevent the acceptance of their report ; but we think it 
 contrary to the principle on which such references proceed, and 
 opposed by the most recent and satisfactory decisions." ^ 
 
 Effect of setting aside a Report. — If the report of a referee be 
 entirely set aside, the cause remains as if it had never been sent 
 to a referee at all.^ 
 
 Where referees have once made their report', which has been 
 set aside, it is incompetent for the court again to refer the case 
 to the same parties without again obtaining the assent of the 
 parties to the action to such reference, precisely as in the 
 original reference.* 
 
 Where the order of reference is made by stipulation of parties 
 to a referee named, there is no power in the court to appoint a 
 new one without obtaining the assent of the parties to such 
 appointment.^ 
 
 Promise to correct Error. — A promise by a ^arty to a sub- 
 mission to correct any mistakes which the arbitrators may 
 have made is without consideration and void.^ 
 
 1 WithingtoD v. Warren, 10 Mete. (Mass.) 431 {per Shaw, C. J.) ; and see Camp- 
 bell V. Western, 3 Paige, 124. 
 
 2 Ward V. American Bank, 7 Mete. (Mass.) 486. 
 
 3 nice v.- Benedict, 18 Mich. 75. 
 * Smith V. Smith, 28 lU. 66. 
 
 ' Smith V. Warner, 14 Mich. 152. 
 6 E&er V. Shaw, 2 Wend. 567. 
 
CHAPTER XL 
 
 THE AWARD MUST BE CO-EXTENSIVE WITH THE SUBMISSION. 
 
 The stipulation called the ila quod clause in the submission. 
 
 The ita quod clause, if used, still retains its old force'. 
 
 The modern rule supersedes, in a measure, the ita quod clause. 
 
 The intention of the parties is the test. 
 
 Withdrawal of some matters from the arbitration. 
 
 The nature of the matters submitted may make the determination of all in- 
 dispensable. 
 
 Efiect of a failure to determine all the matters submitted. 
 
 Exception expressed in the award. 
 
 The motive of the arbitrators is immaterial. 
 
 An award not co-extensive with the submission is not final. 
 
 Awards that nothing is due at the date of submission. 
 
 Award of a sum of money under a general submission. 
 
 Separate matters need not be specifically mentioned. 
 
 Awarding separately on distinct matters. 
 
 Awards of a gross sum under a submission of several matters. 
 
 Award of a particular thing under a general submission. 
 
 Awarding on different pleas in an action. 
 
 An award may be co-extensive with the submission by implication. 
 
 Awards seeking to do general equity are often not final. 
 
 The award must decide respecting all the parties. 
 
 The arbitrator need not award on incidental matters. 
 
 Award of a balance upon money claims. 
 
 The award need determine only such matters as are brought to the arbitrator's 
 notice. 
 
 Notice by the recitals of the submission. 
 
 The recitals of the award may prove notice. 
 
 Silence of the award on an undecided matter. 
 
 A party not injured by the efiect cannot avoid the award. 
 
 Method of availing of the objection that the award is not co-extensive with th& 
 submission. 
 
 Rules of evidence. 
 
 Presumption that the award disposes of all matters presented. 
 
 This presumption is not conclusive. 
 
 Burden of proof. 
 
 Adjudications exemplifying the rule of favorable presumption. 
 
 Favorable presumption in cases of doubt. 
 
 A case where the favorable presumption was not admitted. 
 
 Award in fact but not apparently co-extensive with the submission. 
 
340 AWARD CO-EXTENSIVE WITH SUBMISSION. 
 
 Presumption that the award does not include matters not submitted. 
 Presumption based on award of mutual releases. ' 
 
 Award in the altematire. 
 
 The Stipulation called the ita quod Clause in the Submission. — 
 The old rule, both at law and equity, was, that where more 
 than one matter was submitted, the award might determine one 
 matter only, and be good pro tanto, provided that no actual 
 injustice between the parties was effected by this elimination.^ 
 If it was intended to oblige the arbitrators to pass upon all the 
 matters, and, in the event of their failing to do so, to regard 
 their award as invalid ; the obligation was imposed upon them 
 by introducing into the submission or bond the clause " ita 
 quod arbitrium fiat do (et supra) prsemissis" (provided the 
 award be made upon and concerning the premises).^ If the 
 submission be made expressly conditional by this or an equiv- 
 alent phrase, a neglect to pass upon any matter included in the 
 submission, and brought to the notice of the arbitrators, will 
 inevitably Uvoid the award. ^ 
 
 If the submission ran, " so as the said award," or " so as the 
 same award," be made within a time named, though the ita 
 quod clause was not added, yet its force was held to be suffi- 
 ciently contained in these words, and a determination of all the 
 matters contained in the submission was indispensable to the 
 validity of the award.* 
 
 In Oarnochan v. Christie,* the submission entered into in a 
 pending cause was, " We agree to the reference. The arbitra- 
 tors to determine all matters in controversy as exhibited in the 
 
 ' Russell on Arb., 3d ed. p. 248; citing Wrightson v. Bywater, 3 Mee. & 
 W. 199 ; Dowse v. Coxe, 3 Bing. 20 ; Ormelade v. Coke, Cro. Jac. 354 ; Hide v. 
 Cooth, 2 Vern. 109 ; Baspole's Ca., 8 Eep. 97 6 ; Payne v. Cook, cited in Sim- 
 monds v. Swaine, 1 Taunt. 548 ; Bean v. Newbury, 1 Lev. 139 ; Randall v. Ran- 
 dall, 7 East, 81. 
 
 2 Ott V. Schroeppel, 5 N. Y. (1 Seld.) 482. 
 
 3 Richards v. Drinker, 1 Halst. 307 ; Harker v. Hough, 2 id. 428. 
 
 * Russell on Arb., 3d ed. p. 249 ; Cockson v. Ogle, 1 Lutw. 550 ; Risden v. In- 
 glet, Cro. Eliz. 838 ; 0,tt v. Schroeppel, 5 N. Y. (1 Seld.) 482 ; T\ right v. Wright, 
 5 Cow. 197. 
 
 5 11 Wheat. 446. 
 
AWARD CO-EXTENSIVE WITH SUBMISSION. 341 
 
 pleadings," &c. The court did not say in express terms that 
 tlie decision of all the matters submitted was essential to the 
 validity of the award ; but they clejirly assumed and acted 
 upon this doctrine by categorically showing that each one of 
 those several matters which the defendant asserted had not 
 been decided, had in fact been sufficiently determined and dis- 
 posed of. 
 
 The ita quod Clause, if used, still retains its Old Force. — It is 
 probable that at the present day this precise and formal phrase 
 of " ita quod," &c., is seldom inserted in submissions. Yet if it 
 be found there, it retains all its old force. 
 
 In Ott V. Schroeppel,^ Paige, J., says : " If the submission is 
 made conditional by the clause of ' ita quod arbitrium fiat de 
 praemissis,' and recites several distinct matters which are 
 specifically referred, and the arbitrators omit to decide one of 
 the matters, and there are no general words in the award 
 which can be construed to embrace a decision on such partic- 
 ular matter, the whole award is bad." 
 
 The Modern Rule supersedes in a Measure the ita quod Clause. — 
 It is certainly always wise to take the precaution, if not of in- 
 serting this precise phrase, yet at least of expressing in some 
 shape the stipulation for a decision upon all the matters sub- 
 mitted, if the parties wish to make the validity of the award 
 conditional and dependent, beyond the possibility of question, 
 upon such a comprehensive determination. Yet this can no 
 longer be regarded as so indispensable a formality as it was in 
 times past. The doctrine now generally established is that 
 whatever the parties submit they intend to have decided ; for 
 it cannot be presumed that they would be content to submit 
 some only of the disputes presented, without also disposing of 
 the others. Generally, therefore, it is said that the arbitrators 
 must make their award concerning all the points submitted 
 and raised before them.^ 
 
 1 5 N. Y. (1 Seld.) 482. So also Wright v. Wright, 5 Cow. 197. 
 
 2 James v. Thurston, 1 Cliff. C. C. 367 ; Edwards u. Stevens, 1 Allen, 315 ; 
 
34:2 AWARD CO-EXTENSIVE WITH SUBMISSION. 
 
 Baron Parke said, in 1838, that " the old rule was that un- 
 less the submission expressly made it conditional with an ita 
 quod, an award of part only was good. ... In more modern 
 cases it has been said that an express condition is not re- 
 quired." ^ For example, C. J. Willes said, " Were it not for the 
 cases, I should be of opinion that when all matters are sub- 
 mitted, though without such condition, all matters must be 
 determined ; because it was plainly not the intent of the parties 
 that some matters only should be determined, and that they 
 should be left at liberty to go to law for the rest." ^ 
 
 The Intention of the Parties is the Test. — The question is 
 properly of the intention of the parties. The courts will look 
 at the language of the submission in its every part, and from 
 a consideration of the whole will determine the matter of intent. 
 If the reasonable construction appears to be that the parties in- 
 tended to have every thing decided if any thing should be, then 
 a decision of all the matters submitted will be imperatively 
 required.^ And, as has been just stated, the presumption is in 
 favor of this purpose on the part of the disputants. 
 
 But if any thing in the submission indicates a contrary pur- 
 pose, an award determining a part only of the matters sub- 
 mitted will be sustained. Thus a clause empowering the 
 arbitrator to make one or more awards, at his discretion, if not 
 overcome by other portions of the award, is regarded as con- 
 ferring upon him authority to award concerning a single matter 
 only out of several ; and this, too, although the submission con- 
 tains the proviso " so as such award or awards be made before " 
 a certain day, or so as the award be " concerning the premises." 
 In Wrightson v. Bywater, Baron Parke said that the parties had 
 
 Vamey v. Brewster, 14 N. H. 49; Russell on Arb., 3d ed. p. 248; citing Sim- 
 monds v. Swaine, 1 Taunt. 554 ; Hide v. Petit, 1 Ca. in Chy. 185. 
 
 1 Wrightson v. Bywater, 3 Mee. & W. 199. 
 
 2 Bradford v. Beavan, Willes,, 270. 
 
 8 Russell on Arb., 3d ed. p. 249 ; Wrightson u. Bywater, 3 Mee. & W. 199 ; 
 Bradford v. Bryan, Willes, 268 ; Eirks v. Trippett, 1 Saund. 32 ; Bowes v. Fernie, 
 4 M. & Cr. 150. 
 
AWAto CO-EXTENSIVE WITH SUBMISSION. 343 
 
 given the arbitrator the power to dispose of all matters, but had 
 not made it a condition that all matters should be disposed of 
 by him. The only case which it was regarded as " necessary 
 to consider as opposed to this view of the question," was stated 
 to be that of Biddell v. Dowse,^ where a similar clause was em- 
 bodied in the agreement of reference. But since in that cause 
 this point was not raised or considered, the judgment cannot be 
 treated as " a binding authority upon a point which was never 
 brought before the court." ^ In discussing the general prin- 
 ciple, the same judge remarked : " The question, therefore, is 
 reduced to this, whether, under this reference, it is necessary 
 to the validity of any award to be made pursuant to it, that 
 it should decide all the matters in dispute. And this is a mere 
 question of construction, for there is no rule of law requiring 
 it ; its necessity arises from the contract of the parties." 
 
 Withdra-wral of some Matters from the Arbitration. — The parties 
 may, however, at any time after the submission has been en- 
 tered into, and before the award has been made, withdraw from 
 the consideration of the arbitrators any portion of the matters 
 submitted. If tliey do so, it will, of course, be needless and 
 even erroneous for the arbitrators to include these matters in 
 their decision. The withdrawal operates as a revocation, pro 
 tanto, of the submission, or as a waiver by the party, who was 
 the demandant in the part withdrawn, of his right under the 
 submission to insist upon having his claim presented and 
 adjudicated by the arbitrators.^ 
 
 A demand is not withdrawn from the consideration of the 
 arbitrator simply because it is not denied or disputed by the 
 party against whom it is made. If presented before the arbi- 
 trator, it must be considered by him in making up the award, 
 though it be admitted by the defendant to be correct. The 
 
 1 6 Barn. & Cr. 255 ; 9 Dowl. & By. 404. 
 
 2 Eussell on Arb., 3d ed. p. 249 ; Wrightson v. Bywater, 3 Mee. & W. 199 ; 
 Dowse V. Coxe, 8 Bing. 20. 
 
 3 Varney v. Brewster, 14 N. H. 49 ; Bird v. Cooper, 4 Dowl. 148 ; and see 
 Chapter VII., " Duration of tlie Arbitrator's Authority." 
 
344 AWARD CO-EXTENSIVE WITH SUBMISSION. 
 
 admission only supersedes the necessity of proof. The omis- 
 sion of the matter would avoid the award.^ 
 
 The Nature of the Matters submitted may make the Determina- 
 tion of all indispensable. — It may be, even where the ita quod 
 clause, or any equivalent, has not been introduced, and the lan- 
 guage of the submission could not in itself be construed to re- 
 quire imperatively a determination of all the matters siibmitted, 
 that the nature of tliese very matters themselves will create the 
 necessity. This will be the case where there is such a connec- 
 tion and interdependence between the various matters covered 
 by the submission that the decision and disposition of some of 
 them only, to the exclusion of others, would operate to produce 
 injustice between the parties.^ 
 
 The cited case was as follows : A. mortgaged his real estate 
 to B., to secure a debt. He then conveyed his real and per- 
 sonal estate to C.,the wife of D., and took from C. and D. their 
 bond to support him for the rest of his life, secured by mortgage 
 on the real estate. A controversy arose, and the parties, in 
 order to adjust it and to dissolve the contract, submitted the 
 whole matter. The award was that A. should release a certain 
 portion of the real estate to C, and that C. should release the 
 remainder to A. The bond for maintenance was not mentioned, 
 nor the debt or mortgage.to B., nor the claim of A. for non- 
 performance of the contract to support him, nor the claims of 
 0. and D. for improvements. Nor did any thing indicate that 
 the releases were intended to be in satisfaction of these re- 
 spective claims, though there was nothing in the submission 
 requiring all the matters embraced by it to be determined. 
 But the court said that the matters omitted were so connected 
 with the title to the real' estate that it was very apparent that 
 injustice would be done by permitting them to remain unad- 
 justed and sustaining the award. The award was accordingly 
 declared void. 
 
 1 Russell on Arb., 3d ed. 256 ; In re Robson & Eailston, 1 Barn. & Ad. 723. 
 
 2 McNear v. Bailey, 18 Maine, 251 ; Archer v. Williamson, 2 Har. & Gill, 62. 
 
'award CO-EXTBNSIVB "WITH SUBMISSION. 345 
 
 Effect of a Failure to determine all Matters submitted. — If the 
 submission requires an award to be concerning all the matters 
 submitted, either by virtue of the construction placed by the 
 court upon the submission as a whole, or by reason of the in- 
 troduction of the ita quod clause, or equivalent phraseology, a 
 failure to determine any controversy submitted will render 
 the whole award void.^ 
 
 Exception expressed in the Award. — If the arbitrator in his 
 award expressly excepts out of his decision a particular mat- 
 ter included in the submission, and declares that he does not 
 decide it, and that he leaves it to one.of the parties to be pros- 
 ecuted by him if he should see fit, it is obvious that the award 
 will be altogether bad. For being obliged to pass upon evpry 
 thing, it is nevertheless apparent on the face of the award 
 that he -has not done so.^ 
 
 If the submission be general, the exception of any matter 
 in the award will suffice to avoid it.^ For under a general 
 submission every thing in dispute between the parties is in- 
 cluded, and the exception of any thing makes the award incom- 
 plete. 
 
 In Bowes v. Pernie,* the arbitrators stated, for a reason 
 assigned, that they had " altogether abstained from taking the 
 Durham account into consideration, and from arbitrating in 
 any way thereupon." The duty of the arbitrators appeared 
 to be to correct this account, if they thought it wrong in any 
 respect. The Vice-Chancellor was of opinion that the award 
 might be upheld by construing this language as equivalent to 
 stating that the arbitrators had considered the subject and had 
 decided not to alter the account. But Lord Chancellor Cotten- 
 
 1 Ott V. Schroeppel, 1 Seld. 482 ; Wright v. Wright, 5 Cow. 197 ; McNear v. 
 Bailey, 18 Maine, 251 ; Richards u. Drinker, 1 Halst. 307 ; Barker v. Hough, 2 
 id. 428 ; Carnoohan v. Christie, 11 Wheat. 446 ; Edwards v. Stevens, 1 Allen, 315 ; 
 Varney v. Brewster, 14 N. H. 49 ; Stone v. Phillips, 4 Bing. N. C. 37 ; Mitchell 
 V. Staveley, 16 East, 58. 
 
 2 Bradford v. Bryan, Willes, 268 ; Wright v. Wright, 5 Cow. 197. 
 
 3 Ott t). Schroeppel, 5 N. Y. (1 Seld.) 482; Turner v. Turner, 3 Russell, 494. 
 < 4 M. & Ct. 150. 
 
346 AWARD CO-EXTENSIVE WITH SUBMISSION. ' 
 
 ham refused to entertain this construction, and set the award 
 aside on motion. 
 
 The Motive of the Arbitrators is immaterial. — The motive 
 from whicli the arbitrators resolve to omit the determination 
 of a matter submitted, seems to be immaterial. The question 
 is what their duty or obligation in the premises was, not what 
 they thought that it was. Thus, if they decline to pass upon any 
 specific point, and give as their reason for declining that they 
 deem it to be beyond their authority to do so ; nevertheless if 
 they are in error in this respect, and the point is not really 
 beyond the scope of their powers, then their award will be bad. 
 For example, having stated in their award that they had not 
 passed upon a certain claim to an annuity because they con- 
 ceived that they were prevented from doing so by reason of the 
 pendency of a suit in chancery concerning it, the conrt held 
 that they were not precluded by the suit from considering, it, 
 and that their misconception was no excuse for the omission ; 
 wherefore the award was held void.^ 
 
 A somewhat similar ruling has been made in another cause. 
 An arbitrator to whom a cause had been referred recited in 
 his award the fact of the presentment of certain claims by the 
 plaintiff, but said that these were not matters in difference in 
 the cause, and that therefore he had not taken them into ac- 
 count. The coiirt said that they would not regard his state- 
 ment in this particular as conclusive, but would look into the 
 question of whether or not these omitted matters were in fact 
 in issue in the cause, and, upon finding that they were so, would 
 set aside the award for want of finality .^ 
 
 An Avirard not co-extensive iwith the Submission is not final. 
 — The rules that an award must be co-extensive with the sub- 
 mission, and that it must be final, necessarily coalesce in many 
 instances. Finality means, briefly, that the controversies sub- 
 
 1 Bowes V. Fernie, 4 M. & Cr. 150 ; and see Brown v. Meverell, Dyer, 216 a ; 
 Wilkinson v. Page, 1 Hare, 276. 
 
 2 Samuel v. Cooper, 2 Ad. & El. 752 ; and see Brophy v. Holmes, 2 MoUoy, 1, 
 
AWARD CO-EXTENSIVE WITH SUBMISSION. 347 
 
 mitted must be so thoroughly and completely decided as not to 
 continue possible subjects of litigation in the future. It is 
 obvious that if the award leaves a portion of the dispute unde- 
 cided, it does not finally shut the door against future misun- 
 derstanding as to the very matter submitted. The rules and 
 cases arising under this duplex principle seem to be more 
 appropriately discussed here than under the head of " Final- 
 ity." They are as follows : — 
 
 It was in controversy whether or not A. had been in part- 
 nership with B., and, if so, whether or not the partnership had 
 been concluded, and when it had been concluded. The award 
 was only that if a partnership had ever existed it had been put 
 an end to upon a day named. The award was hold bad, be- 
 cause it did not cover the ground of the submission, and was 
 not a filial decision of the matters submitted. i 
 
 Awards that a Matter remain in Statu Quo. — Among several 
 matters in dispute between the parties, there was one as to 
 whether or not one of them was entitled to indemnity for his 
 liability to pay a note made by himself, and indorsed by the 
 other. The award ordered this matter to stand as it was. 
 Held, the award was void.^ 
 
 But some other cases are to be distinguished from this last 
 upon principle. If the matter which the award orders to 
 stand , as it is, is sufficiently certain in this status, the award 
 may be good. Thus, an award that one party should release 
 to the other all actions and debts, except certain bonds, was 
 held good. For it was not an exception of these borids from 
 the award, leaving them an outstanding and undecided matter 
 in dispute ; but rather it was a finding in favor of their valid- 
 ity, and that they should remain in full force.^ They were in 
 thgir own nature certain and definite, and an order that they 
 should remain in force was considered sufficiently final. 
 
 1 Shear v. Harradine, 7 Exch. 269. 
 
 2 Wilkinson v. Page, 1 Hare, Ca. in Chy. 276. 
 
 ' Sallows V. Girling, Cro. Jac. 277 ; Berry v. Penring, lb. 399 ; Russell on Arb,, 
 3d ed. p. 252 ; and see Strong v. Strong, 9 Cush. 560. 
 
348 AWARD CO-EXTENSIVE WITH SUBMISSION. 
 
 Awards that Nothing is due at the Date of Submission. — An 
 arbitrator, unless otherwise expressly authorized by the sub- 
 mission, can determine only matters in difference matured or 
 existing at its date. Consequently his award that there is 
 nothi-ng due at the time, though he expressly says that he does 
 not find tlwat something may not come due at some subsequent 
 day, under an agreement already entered into, and which he 
 ought to consider, so far as it could give rise to or have any 
 bearing upon claims already accrued, is good.^ 
 
 To the same effect is the following cause : The plaintiff pre- 
 sented a demand for a loss -which he alleged that he had sus- 
 tained upon some hats. The arbitrator, in his award, recited 
 that the plaintiff had failed to prove that at the date of the 
 order of reference he had sustained such a loss, and therefore 
 found that he was not entitled to recover any thing upon that 
 claim. The court held the decision to be sufficiently final, as 
 being virtually a finding that at the time of the reference 
 nothing was due on account of this claim.^ 
 
 A-ward of a Sum of Money under G-eneral Submission. — If a 
 submission be general, an award of a sum of money as due 
 from one party to the other will be presumed to be a full exe- 
 cution of the submission. In like manner, if the submission 
 be of specific matters, and conclude with a general submission 
 of all other claims, an award disposing in terms of the specific 
 matters, and then directing a certain sum to be paid by one 
 party to the other, will be presumed to be good as an execu- 
 tion of all the duties imposed upon the arbitrators.^ 
 
 Separate Matters need not be specifically mentioned. — Where 
 several specific matters are submitted, if the award appear 
 upon its face to be intended to decide them all finally, and is 
 in fact logically capable of doing so, it need not mention or 
 dispose of them individually. A general finding will sufiQce, 
 
 1 Harding v. Forshaw, 1 Mee. & W. 415. 
 
 2 Cockburn v. Newton, 2 Man. & Gr. 899. 
 
 '■> Strong V. Strong, 9 Cush. 560; Shirley «. Shattuck, i id. 470; Bigelow v. 
 Maynard, lb. 317. 
 
AWARD CO-EXTENSIVE WITH SUBMISSION. 349 
 
 provided there be no demand among them of such a nature 
 that it canndt be thus disposed of.^ For example, if all the 
 demands consist of disputes concerning indebtedness, a gen- 
 eral award of a certain sum, to be paid by the one party to the 
 other, will be good.^ But if among demands of this n-ature 
 were also included a dispute concerning a boundary line, the 
 award of a sum of money would be bad, since in the nature of 
 things it could not conclude the boundary controversy.'' 
 
 Awarding separately on Distinct Matters. — If, however, there 
 be any thing in the submission indica,tive of an intention of the 
 parties to liave separate matters separately passed upon, it will 
 be necessary for the arbitrators to respect this purpose.* Thus 
 in the cited case the submission was of " said action at law and 
 all other matters in difference between the parties," and the 
 phraseology of the agreement was disjunctive, as follows : 
 that the parties would abide by the award " of and concerning 
 the said action, and also of and concerning all matters in dif- 
 ference between the said parties thereto." Chief Baron Pol- 
 lock said, " It imports to my mind that some notice should 
 have been taken of the action and of the other matters sepa- 
 rately, and that they should not have been lumped together, as 
 they are in the present award ; " and Baron Piatt said, " I 
 think that the parties intended to refer two matters to be 
 awarded upon separately." But both Chief Baron Pollock 
 and Baron Eolfe expressed some doubt whether the award 
 might not be good, and refused to grant the rule to enforce it, 
 because, " as the matter was doubtful, they thought they ought 
 not to grant the rule." 
 
 A'wards of a Gross Sum under a Submission of Several Matters. 
 
 1 Dolbier v. Wing, 3 Greenl. 421 ; In re Brown & The Croydon Canal Co., 9 
 Ad. & E. 522; Cargey v. Aitcheson, 2 B. & C. 170; Ott v. Schroeppel, 1 Seld. 
 482 ; and see Wrightson v. Bywater, 3 Mee. & W. 199, in which several items 
 were held well disposed of by a general finding. 
 
 2 Gray v. Gwennap, 1 Barn. & Aid. 106. 
 
 3 Harrison v. Creswick, IB C. B. 399. . 
 * Rule V. Bryde, 1 Exch. 151. 
 
350 AWAED CO-EXTENSIVE WITH SUBMISSION. 
 
 — Where divers matters in difference are submitted, an award 
 of a gross sum of money, by way of determination of tliem 
 all, is sufficiently final,i provided they are of such a nature 
 that an award of this Icind can reasonably be supposed to 
 determine them.^ It is true that the award must dispose 
 for ever of all the matters submitted, and that an award of tliis 
 nature does not show either what was submitted or how any 
 specific matter was determined. But the first of these func- 
 tions should be performed by the submission ; and the second 
 is not absolutely necessary to be performed at all. It is shown 
 that certain matters were submitted ; it is shown that an award 
 intrinsically capable of disposing of them all has been ren- 
 dered. The conclusiveness and finality are perfect, and are not 
 impeached, as matter of law, by the necessity for going outside 
 of the award to find out what was determined by it, or by the 
 impossibility of discovering the opinion of the arbitrator upon 
 any specific point. 
 
 See post, " Presumption that Award disposes of all Matters 
 submitted." 
 
 Where arbitrators are authorized to award damages already 
 accrued by reason of the flowage of certain land, and also 
 damages by way of compensation for the perpetual right to 
 flow the land in the future, they may find a gross sum in dis- 
 charge of both demands.^ 
 
 Award of a Particular Thing uuder a General Submission. — 
 If the submission be general, and the award be only of a par- 
 ticular thing, it will be presumed that this was the only matter 
 in dispute,* especially if the award purport to be made of and 
 concerning the matters submitted.^ But this presumption is 
 
 1 Wrightson v. Bywater, 3 Mee. & W. 199. 
 
 2 Aliter, of course, if such an award cannot, logically, dispose of some of the 
 matters submitted. Randall v. Randall, 7 East, 81. 
 
 3 Darge v. Horicon Mining Co., 22 Wis. 691. 
 
 4 Kleine v. Catara, 2 Gall. 61; Baspole's Ca*, 8 Rep. 97 6; Wyatt v. Curnell, 
 1 Dowl. N. B. 327 ; Strong v. Strong, 9 Cush. 560 ; Tallman v. Tallman, 5 id. 
 325 ; Hayes v. ForskoU, 31 Maine, 112. 
 
 5 Ott V. Schroeppel, 5 N. Y. (1 Seld.) 482. 
 
AWARD CO-EXTENSIVE WITH SUBMISSION. ■ 351 
 
 not conclusive ; and if it be shown as matter of fact that some 
 other controversy was pending, embraced by the terms of the 
 submission, and to which the attention of the arbitrators was 
 called, the award is void.^ 
 
 So where a submission was between A., as representative of 
 the firm of A. & Co., and also on his individual account, of 
 the one part, and B. of the other part, nothing was said in the 
 award about individual claims of A. It was held, though the 
 submission contained the ita quod clause, that the award was 
 good. For non constat that A. had any individual claims, or 
 that the arbitrators refused to pass on such. The presumption, 
 being in favor of the award, was to the contrary.^ 
 
 Awarding on Different Fleas in an Action. — In an action of 
 debt, the defendant pleaded never indebted, and a set-off. 
 The suit was referred, and the arbitrator found both pleas in 
 favor of the defendant. Held, that the award, resting at this 
 point, was not final. For it found that the defendant had a 
 claim in set-off, and also that he had never been indebted to 
 the plaintiff. It was obvious, therefore, that the plaintiff was 
 now indebted to him ; yet the award, as it stood, failed to find 
 the amount of such indebtedness, and to direct payment. It 
 did not, therefore, dispose of the matter submitted. ^ 
 
 An Award may be co-extensive with the Submission by Impli- 
 cation. — An award may sometimes be co-extensive with the 
 submission, and final, though it does not, in terms, pass upon 
 and dispose of the main, issue submitted, but leaves the de- 
 cision of the arbitrators upon it to be gathered from implica- 
 tion. Thus, where a cause is submitted, it sometimes happens 
 that the award does not contain any decision, save directions 
 concerning the payment of costs. In this event, efforts have 
 been made to vacate the award, on the ground that it does not 
 
 1 Ott V. Schroeppel, 5 N. Y. (1 Seld.) 482; Ingram v. Milnes, 8 East, 444, and 
 cases above cited. 
 
 2 Karthaus v. Ferrer, 1 Pet. 222. . 
 
 3 Maloney v. Stockley, 2 Dowl. N. s. 122; and 4 Man. & Gr. 647; and see 
 Fenton v. Dimes, stated in Williams v. Moulsdale, 7 Mee. & W. 134. 
 
352 AWARD CO-EXTENSIVE WITH SUBMISSION. 
 
 pass upon and dispose of the chief matters submitted. But if 
 a decision of these matters can be inferred from tlje orders 
 given in relation to the costs, the award will be upheld as final 
 by implication.^ The causes illustrating this rule have been 
 already fully recited in the chapter on 'Formalities, and need 
 not therefore be repeated here. 
 
 A'wards seeking to do General Equity are often not final. — An 
 arbitrator, by departing from the strict question siibmitted, and 
 attempting, instead of simply determining that, to do general 
 equity concerning the subject-matter between the parties, runs 
 serious risk of rendering an award which will not be final. 
 Thus where there was an agreement for the sale of land, but 
 the vendee questioned the vendor's title ; and all questions 
 relating to tlie agreement were submitted, the arbitrator 
 awarded that the purchaser should accept the title, with such 
 faults as pertained to it, and should receive an indemnity 
 against them. The court held that the duty of the arbitrator 
 was to determine whether the title was good or bad, and that 
 his award, not being a final settlement of this question, was 
 bad.2 
 
 So under a submission concerning the right, title, interest, 
 and possession of certain land, an award that the defendant 
 should have the brakes growing on it for his life, was held bad. 
 The question of the property in the land was submitted, but 
 was not determined by this award.^ 
 
 The A-ward must decide respecting all the Parties. — The rule 
 is that the award must decide respecting all the parties to the 
 submission as well as respecting all the subject-matter. Thus 
 a submission of all controversies between A. <fe B. of the one 
 part and 0. of the other part, would not, upon the sound 
 theory, be satisfied by an award determining only contro- 
 
 1 Inhabitants of Buckland v. Inhabitants of Conway, 16 Mass. 396 ; Stieldes 
 V. Arnold, 1 Gray, 418 ; Rixford v. Nye, 20 Vt. 132 ; Hicks u. Gleason, ib. 139 ; 
 Lamphire v. Cowan, 39 id. 420. 
 
 2 Ross V. Boards, 8 Ad. & El. 290 ; Russell on Arb., 3d ed. p. 257. 
 ' Anon., Dyer, 242 a. 
 
AWARD CO-EXTENSIVE WITH SUBMISSION. 353 
 
 versies between A. and C, and omitting controversies between 
 B. & C.i . 
 
 In a chancery suit, instituted to enforce a pecuniary demand 
 against the real and personal estate of a testator, all matters in 
 difference between the parties were referred. The arbitrators 
 ordered the executor, who was a defendant, to pay a certain 
 sum to the complainants in full discharge and satisfaction of 
 all demands against him or his testator ; and also directed that 
 certain other defendants, having interests under the will in 
 the testator's real estate, should be at liberty to prosecute 
 their claims against his estate in- like manner as if no reference 
 had been had. The court was of opinion that the order of ref- 
 erence contemplated the adjustment of the individual rights of 
 all the parties to the suit, and not merely of such matters as 
 were in controversy between the complainants on the one side 
 and the defendants on the other. Inasmuch as this complete 
 adjustment had not been provided by the award, it was held to 
 be void.^ 
 
 But where a claim between A. on the one side and B. & C. 
 on the other side was referred, an award that B. should make 
 a certain payment to A. was held good as against B., without 
 regard to the objections which A. or C. might make to it as not 
 finally disposing of the matter as between them ; upon which 
 latter point the court gave no opinion.^ 
 
 The Arbitrator need not aivard on Incidental Matters. — The 
 arbitrator need pass specifically only upon the main and 
 substantial issue presented.* ' Incidental and collateral points 
 need not be separately awarded upon in terms. For example, 
 where disputes arose as to the rights and interests of parties 
 under a deed of partnership, each party pressed upon the arbi- 
 
 1 Russell on Arb., 3cl ed. p. 267 ; Com. Dig. Arb., E. 5; Harris v. Paynter, 
 RoUe's Abr. Arb., O. 8, p. 261. 
 
 2 Turner v. Turner, 3 Russ. 494. 
 
 " Wood V. Adcock, 7 Exch. 468 ; but see Rees v. Waters, 16 Mee. & W. 263.. 
 * Russell on Arb., 3d ed. p. 250 ; Richards v. Drinker, 1 Halst. 307 ; Harker 
 V. Hough, 2 id. 428. 
 
 23 
 
354 AWARD CO-EXTENSIVE WITH SUBMISSION. 
 
 trator a different theory as to the construction of the deed. It 
 was necessary for the arbitrator to put a construction upon the 
 deed before he could proceed to make up his award. Tlie 
 court held that since the parties had not originally submitted 
 the question of construction to him as a separate matter, and 
 had not even at the argument demanded from him a specific find- 
 ing upon it, he was not obliged to render any such specific 
 finding. Having disposed of it in his own mind and awarded 
 upon the rights and interests in dispute according to his 
 opinion, he had fulfilled his duty in the premises.^ 
 
 Award of a Balance upon Money Claims. — Where money is 
 claimed upon divers distinct claims or various items of ac- 
 count on either or both sides, an award between the parties of 
 a balance to be paid by either is generally taken to be co- 
 extensive with the submission and to include and imply a deter- 
 mination upon each and all of the several matters involved in 
 the controversy without a detailed account or other statement 
 of those matters.^ 
 
 Arbitrators to whom various items and demands upon each 
 side had been submitted, enumerated several which they found 
 in favor of the plaintiffs ; they then found a specific sum in 
 favor of the defendant, and directed that the amount of the 
 items, enumerated in the preceding part of the award as 
 credits to which the plaintiffs were entitled, should be deduct- 
 ed from this sum. The award was objected to because it did 
 not state that any items had been rejected or disallowed, and 
 it was argued that this showed that some of the items had not 
 been taken into consideration or passed upon. But the court 
 upheld the award, saying that the finding of specific credits 
 in favor of the plaintiffs, and ordering their amount to be de- 
 ducted from the gross sum found for the defendant, was 
 equivalent to a rejection of all credits not enumerated.^ 
 
 1 In re Keene & Atkinson, Exch. Ap. 16, 1847 ; stated in Russell on Arb., 3d 
 .ed. p. 250.; and see Giddings v. Hadaway, 28 Vt. 342. 
 
 2 Emery v. Hitchcock, 12 Wend. 156. 
 
 3 .Cacnochan u. Christie, 11 Wheat. 446. 
 
AWARD CO-EXTENSIVE WITH SUBMISSION. 355 
 
 A building contract between N. and M. named a sum certain 
 to be paid to the builder for building the house. Afterward 
 the person for wh6m the house was built refused to pay the 
 whole amount. The dispute was submitted by a bond reciting 
 that " the said M. claims a deduction from the sum named in 
 said contract, as the pay agreed upon," and that it was 
 " mutually agreed to refer it to D. and W. to say what deduction 
 shall be made in favor of said M., and what balance shall be 
 due." The award stated simply a decision " that a balance of 
 1322.04 is due said N." Held, that the award was not void by 
 reason of the failure of the arbitrators to declare specifically 
 what deduction should be made from the sum named in the 
 contract. By finding the balance due to N. they necessarily 
 found what deduction should be made, and indicated it as 
 clearly by stating the balance as if they -bad named it in 
 figures. 1 
 
 A-ward of a Sum of Money under a General Submission. — In 
 like manner where a submission is in the most general form, 
 of all demands and controversies whatever, and there is an 
 award of a certain sum of money as a balance due from the 
 one party to the other, it may well be taken as a full execution 
 of the submission. 
 
 And by parity of reasoning, if under a particular submission, 
 accompanied by a general submission, certain specific things 
 be awarded, and also payment of a certain sum of money, the 
 money payment will be intended to cover all other demands 
 unless the contrary appear.^ 
 
 The Award need determine only such Matters as are brought 
 to the Arbitrator's Notice. — The rule requiring the arbitrator to 
 pass upon every matter which the submission requires him 
 to pass upon, or which could be included within it, is strictly 
 limited, and obliges him only to pass upon all matters pre- 
 sented before him. For he is called upon to determine nothing 
 
 1 Bigelow V. Maynard, 4 Gush. 317- 
 
 2 Strong V. Strong, 9 Gush. 560. 
 
356 AWARD CO-EXTENSIVE WITH SUBMISSION. 
 
 to which his notice is not attracted by the one or the other 
 party. Though there may be disputes in existence between 
 the parties, which could properly be included under a submis- 
 sion and disposed of by the award, yet if these are not actually 
 brought before the arbitrator,, the fact that they are not decided 
 by him will not invalidate the award.^ The rule is said to be 
 that an award is void when it appears either on the face of it 
 or from intrinsic proof that the arbitrators had notice of any 
 matter covered by the submission which they failed to decide.^ 
 
 Chief Justice Sliaw says tliat " the cases where an award 
 has been held to be bad, as not being final, and not embracing 
 all the matters submitted, are those where through mistake of 
 their authority, or oversight, or other accident, the referees 
 have neglected or refused to take into consideration and pass 
 upon demands within their authority, and brought before them 
 by one or the other of the parties." ^ 
 
 Eussell says, " In order to invalidate the award for not de- 
 ciding a particular question, the point must have been specifi- 
 cally stated."* Thus, an action of trespass for taking the 
 plaintiif's goods as distress for rent was referred, with all mat- 
 ters in difference. The main question before the arbitrator 
 was, whether the plaintiff became a tenant of the defendant oi> 
 a certain day. This was satisfactorily determined ; but an- 
 other question — whether at the date of the order of reference 
 a tenancy existed between the parties — was not determined. 
 It appeared, however, not to have been specifically brought 
 before the arbitrator, and the court therefore held that his 
 failure to find upon it did not invalidate his award.^ 
 
 1 Hodges V. Hodges, 9 Mass. 320; Karthaus v. Ferrer, 1 Pet. 222; Ott v. 
 Schroeppel, 1 Seld. 482 ; Hewitt v. Furman, 16 Serg. & R. 135 ; Middleton v. 
 Weeks, Cro. Jac. 200 ; Elsom v. Rolfe, 2 Smith, 459 ; Hawkaworth v. Brammall, 
 5 M. & Cr. 281. 
 
 2 Moore v. Cockcroft, 4 Duer, 133. 
 
 » Warfield v. Holbrook, 20 Pick. 531. 
 
 * Russell on Arb., 3d ed. p. 250. 
 
 s Rees v. Waters, 16 Mee. & W. 263 ; and 4 Dowl. & Low. 567. 
 
AWARD CO-EXTENSIVE "WITH SUBMISSION. 357 
 
 In Karthaus v. Ferrer^ it was said : " But the rule is to be 
 understood with this qualification ; that in order to impeach 
 an award, made in pursuance of a conditional submission, on 
 the ground of part only of the matters in controversy having 
 been decided, the party must distinctly show that there were 
 other points in difference, of which express notice was given to 
 the arbitrator, and that he neglected to determine them." 
 
 Notice by the Recitals of the Submission. — The last-named 
 case furnishes some ground for saying that it is not essential 
 that either party should actually present a specific claim before 
 the arbitrators in order that their attention should be so far 
 attracted towards it as to oblige them to decide it. For if the 
 claim is specifically stated in the submission, such statement 
 is sufficient for this purpose. The language of the court is, 
 " The question, then, is, does it distinctly appear, from the face 
 of the submission, that any other point of difference between 
 the parties was submitted, and of which the submission itself 
 gave the arbitrators notice, but which they have neglected to 
 determine." The submission was between " K., acting for his 
 late house of K. & Co., and for himself an'd the above-named 
 P." The award adjudged that the late firm of K. & Co. pay 
 a certain sum, and said nothing about K. individually. The 
 court said, " It shall not be intended that there were any con- 
 troversies with K. individually other than those decided by the 
 arbitrators. If any such did exist, inasmuch as they are not 
 specifically and distinctly set forth in the submission, so as to 
 give notice to the arbitrators, it was the duty of the party to 
 show, by averment and proof aliunde, that they were brought 
 before the referees." But the court showed that in this case 
 it could make no difference to K. whether he was directed to 
 pay as an individual or as a member of the late firm. If a 
 person does submit in separate characters or capacities, and it 
 is essential to know in which character or capacity he is di- 
 rected to make the payment, but the award was silent upon 
 
 1 1 Pet. 222. 
 
358 AWARD CO-EXTENSIVE "WITH SUBMISSION. 
 
 the subject, the omission would be fatal,i but whether on the 
 theory that it did not decide all the matters siibmitted, and to 
 which the attention of the arbitrators was actually called by 
 the submission, is doubtful. The language of Chief Justice 
 • Marshall is, " There is certainly a want of precision in this 
 part of the award, which exposes it to solid objection, and 
 might subject D. to serious inconvenience." 
 
 Judge Dewey construed the case of Houston v. Pollard ^ to 
 the same effect, saying, in general terms, that in that case it 
 was holden " that where it appears upon the face of the sub- 
 mission that various distinct matters in controversy are the 
 subjects of the submission, and the particular subjects are 
 recited, each of those subjects must be passed upon by tiie 
 arbitrators and noticed in their award, or the award will not 
 be valid." ^ But this dictum is deprived of much of its force 
 by an examination of the case referred to by the learned judge, 
 in which it is by no means ruled that the mere recital in the 
 submission obliges the arbitrator to notice the matter in bis 
 award, even though it has not been presented by either party at 
 the hearing. This aspect of the question was not put before 
 the court. 
 
 In Hewitt v. Furman * the submission was of " a matter in 
 dispute between us relative to a certain grist-mill and five 
 acres of land, on which the said mill stands, together with all 
 books, accounts, debts, and demands, of whatsoever name or 
 nature." The award, which mentioned only the grist-mill and 
 land, was objected to, because it was wholly silent as to books 
 and accounts. But the fact that such were mentioned in the 
 submission was not regarded as sufficient to invalidate the 
 award in the absence of proof of their having been actually laid 
 before the arbitrators by the parties. 
 
 Yet it would seem as though instances might occur in which 
 
 1 Lyle V. Eodgers, 5 Wheat. 894. 
 
 2 9 Mete. (Maes.) 164. 
 
 " Leavitt v. Comer, 5 Cush. 129. 
 * 16 Serg. & E. 136. 
 
AWAUD CO-EXTENSIVE WITH SUBMISSION. 359 
 
 it would be just and reasonable to build a presumption upon the 
 doctrine of withdrawal. If a submission should recite contro- 
 versies concerning entirely separate matters, as, for example, 
 concerning the title to a house and the title to a ship, and the 
 parties should offer evidence and arguments as to the house 
 only, and should rest at that point, neither of them making any 
 mention of the ship, and not having produced any evidence 
 whatsoever bearing upon the title to the ship, such conduct 
 might be regarded as satisfactory evidence of a withdrawal of 
 the controversy concerning the ship from the consideration 
 of the arbitrators. But I find no authorities to this precise 
 point. 
 
 The Recitals of the Award may prove Notice. — Mention of a 
 matter in the award itself constitutes sufficient evidence of its 
 having been brought to the notice of the arbitrators. In Wright 
 V. Wright the award began with the statement by the arbitra- 
 tors that " we do, in the first place, say that we do not take 
 into consideration the house and shed nor pass no order upon 
 it;" also, the defendant in his plea averred that the arbitrators 
 were asked to decide about this. The court held that this re- 
 mark in the award sufficiently showed that the arbitrators had 
 notice of the house and shed as a matter in controversy, and 
 having failed to pass upon it their award was void.^ 
 
 Silence of the Award on an Undecided Matter. — It is not, how- 
 ever, necessary that the award should mention the matter not 
 determined. If, in point of fact, any matter which ought to be 
 disposed of by it is not so disposed of, the award will be as void 
 as if it expressly professed to except this matter .^ 
 
 The recitals of the submission showed an obligation upon the 
 arbitrators to determine all actions and controversies, and also 
 to ascertain what rent should be paid by the plaintiff. They 
 found a balance due from the defendant, but they gave no direc- 
 
 1 Wright V. Wright, 5 Cow. 197. 
 8 Eussell on Arb., 3d ed. p. 253. 
 
360 AWARD CO-EXTENSIVE WITH SUBMISSION. 
 
 tion whatsoever concerning the rent. The court held the award 
 to be altogether void by reason of this omission.^ 
 
 Again, in a dispute upon a building contract the arbitrators 
 were required to award on alleged defects in the building, on 
 claims for extra work, and deductions for omissions, and to 
 ascertain what balance, if any, miglit be due to the builder in 
 respect of the extras and omissions. They awarded that a 
 gross sum should be paid to the builder, and should be re- 
 ceived by him in full compensation and satisfaction of all the 
 matters iu difference. The court held the award bad, inasmuch 
 as it left undecided the question as to the alleged defects, and also 
 left it doubtful whether the sum awarded was to be applied in dis- 
 charge of the extra work, or to a general balance of accounts.^ 
 
 A Party not injured by the Defect cannot avoid the Avrard. — 
 A party cannot avoid an award on the ground that the arbitra- 
 tors have not passed upon some one of several matters submitted, 
 unless the objector has himself been placed at some loss or dis- 
 advantage by reason of this neglect. If the omission has really 
 operated for his benefit, as, for example, if it were of a claim 
 held by the other party against him, and as to which the award 
 will act as a bar, he has no ground of complaint.^ 
 
 In an arbitration between A. and B., A. demanded that B. 
 should bring forward and present before the arbitrators his 
 claim against A. upon a certain note. B. refused to do so, on 
 the ground that it was a demand against A. and another per- 
 son jointly, and not between the parties to the submission. A. 
 then objected to the award because this demand was not in- 
 cluded and disposed of by it. The court refused to entertain 
 the objection. The award was final as to everything which the 
 parties saw fit to bring before the referees. If the note afore- 
 said was not embraced in the terms of the submission, then the 
 
 1 Randall v. Randall, 7 East, 81. 
 
 2 In re Rider v. Fisher, 3 Bing. N. C. 874 ; and see Houston v. Pollard, 9 Mete. 
 (Mass.) 164, stated at length, post, in this chapter. 
 
 " Davy's Ex'rs v. Faw, t Cranch, 171 ; Warfield v. Holbrook, 20 Pick. 531. 
 
AWARD CO-EXTENSIVE WITH SUBMISSION. 361 
 
 referees could not pass upon it, as it was not within tlieir au- 
 thoritj'. If, on the other hand, it was embraced in the sub- 
 mission, then the award and judgment upon the award would 
 be a bar to any suit which B. could bring upon it against A.^ 
 
 Method of availing of the Objecjiou that the A'ward is not 
 co-extensive with the Submission. — The practice appears to be 
 universal to allow the fact that the arbitrators have not passed 
 upon all the matters submitted, and to which their attention was 
 drawn, to be availed of as a defence in a suit at law upon the 
 award, or upon the bond for the performance of the award.^ 
 
 If the award be returnable into court, the same defect may be 
 alleged as an objection to granting a motion or application for 
 the entry of judgment on the award.^ 
 
 In Mitchell v. Staveley,^ the submission was general of all 
 matters in difference between the parties. The plaintiff de- 
 clared in debt on the arbitration bond. The defendant pleaded 
 in bar that a certain matter which the arbitrators were bound 
 to decide was not included or determined by the award. He 
 was allowed to introduce evidence in support of the plea, and 
 the court, being satisfied of the omission, gave judgment for 
 the defendant. 
 
 Rules of Evidence. — Parol evidence is admissible to show 
 that matters embraced in the submission were brought to the 
 notice of the arbitrators and not determined by the award.^ 
 
 In proceedings under a bill in equity, seeking specific per- 
 formance of an award concerning the dissolution of a partner- 
 ship, the arbitrators were permitted to testify concerning what 
 matters were presented before them, and even whether or not 
 they had decided all the matters referred.^ 
 
 1 Warfield v. Holbrook, 20 Pick. 531. 
 
 2 See, for example, McNear v. Bailey, 18 Maine, 251; Ott u. Schroeppel, 6 
 N. Y. (1 Seld.) 482; Shear v. Harradine, 7 Exch. 269. 
 
 3 Warfield v. Holbrook, 20 Pick. 531. 
 • 16 East, 58. 
 
 5 McNear v. Bailey, 18 Maine, 251 ; Mitchell v. Staveley, 16 East, 58. 
 
 6 Hawksworth v. Brammall, 5 M. & Or. 281. 
 
362 AWARD CO-EXTENSIVE "WITH SUBMISSION. 
 
 Presumption that the Award disposes of all Matters presented. — 
 The court always wish to uphold the award, and consequently 
 make every reasonable intendment, and entertain every pre- 
 sumption in its favor.i Accordingly, it will always be pre- 
 sumed that the arbitrators^ passed upon all matters presented 
 before them by either party, and upon nothing more, unless 
 the contrary is apparent upon th'e face of the award.^ If the 
 award in terms purports to determine all the matters sub- 
 mitted, it is considered to do so, provided that by any reason- 
 able construction it can be so taken. If the award professes 
 to be made de et super prcemissis (" of and concerning the 
 premises"), or contain any phrase which can be construed 
 as an expression by the arbitrator of his intention to decide 
 every thing brought to his notice, it purports to be final. Thus, 
 an award written on the back of the arbitration bond, stating 
 that the arbitrators " met ... on the within business and 
 agreed," purports upon its face to be an award de et super 
 prcemissis J So, also, does an award in which the arbitrators 
 state that they have " carefully considered all accounts and 
 statements presented." * 
 
 A general award, purporting to be " in full of and for all 
 matters submitted," will be upheld as having decided every 
 thing brought to the notice of the arbitrators, provided that 
 this be logically possible.^ 
 
 Where the submission was of all demands, and counter- 
 claims were presented by the defendant, an award of a sum 
 
 1 Strong V. strong, 9 Cush. 560 ; Tallman o. Tallman, 5 id. 325 ; Hayes v. 
 Forskoll, 31 Maine, 112 ; Ott v. Schroeppel, 1 Seld. 482 ; "Wright v. "Wright, 5 
 Cow. 197 ; M'Kinstry v. Solomons, 2 Johns. 57 ; 13 id. 27 ; Karthaus v. Ferrer, 
 1 Pet. 222 ; McNear v. Bailey, 18 Maine, 251 ; Hewitt v. Furman, 16 Serg. & R. 
 135; Wood v. Griffith, 1 Swanst. 43; Hawkins v. Colclough, 1 Burr. 275; Doe 
 d. Madkins v. Horner, 8 Ad. & El. 235 ; Stonehewer v. Farrar, 9 Jur. 203. 
 
 ^ Sperry v. Ricker, 4 Allen, 17 ; Parsons v. Aldrich, 6 N. H. 264 ; Hodges v. 
 Hodges, 9 Mass. 320 ; Strong o. Strong, 9 Cush. 560; Caton v. MacTavish, 10 
 Gill & J. 192. 
 
 3 Dolbier v. Wing, B Greenl. 421. 
 
 * Lamphire v. Cowan, 39 Vt. 420. 
 
 s Bowman v. Downer, 28 "Vt. 532. 
 
AWAED CO-EXTENSIVE WITH SUBMISSION. 363 
 
 named in favor of one party, " and the same is in full of all 
 matters referred," was held to be good.^ 
 
 This Presumption is not conclusive. — But though an award 
 should purport in the most distinct manner to decide all 
 matters brought to the notice of the arbitrators, yet this state- 
 ment is by no means conclusive. It will always be open to an 
 objecting party to show that in fact a specific matter has been 
 submitted and presented, and cannot by any reasonable con- 
 struction of the award be taken to be included and deter- 
 mined by it.^ 
 
 Burden of Proof. — The burden of proof rests upon the party 
 who asserts that the award is not co-extensive with the sub- 
 mission. He must show affirmatively that there were matters 
 included ia the submission, and presented before the arbitra- 
 tors, which it is logically impossible that the award should dis- 
 pose of, or which, as matter of absolute fact, have not been 
 determined.^ 
 
 Adjudications exemplifying the Rule of Favorable Presumption. — 
 Where a submission mentions several specific matters, and the 
 award determines some of them, but is silent as to others, it will 
 be presumed, in the absence of proof to the contrary, that the 
 omitted points were not brought to the notice of the arbitrators. 
 The award will therefore be sustained.* A more satisfactory 
 shape in which to put the presumption might perhaps be found, 
 for it is somewhat difficult to say that a dispute specifically de- 
 scribed in the submission is not brought to the arbitrator's notice. 
 But whatever may be the shape which the exigencies of one or 
 another case may make it convenient for the presumption to 
 assume, in some form it is always found wherever it is reason- 
 
 1 Harden v. Harden, 11 Gray, 435 ; and see Creswick v. Harrison, 10 C. B. 
 441 (overruling Gyde v. Boucher, 5 Dowl. 127) ; and Duke of Beaufort v. Swan- 
 sea Harbor Trustees, 29 L. J. C. P. 241 ; 8 C. B. n. s. 156. 
 
 2 Mitchell V. Staveley, 16 East, 58 ; Randall v. Randall, 7 East, 81. 
 s Sperry v. Eicker, 4 Allen, 17 ; Leavitt v. Comer, 5 Cush. 129. 
 
 *. Hewitt V. Eurman, 16 Serg. & E. 135. 
 
364 AWAED CO-EXTENSIVE WITH SUBMISSION. 
 
 ably possible.^ For example, it was held in a Massachusetts 
 case, that if it be logically possible that a demand was con- 
 sidered in making up the award, it will be presumed that this 
 was done.^ 
 
 If the submission be of a cause and of all matters in difference, 
 and the award determines the cause only without mentioning 
 any other matters of dispute, it will be presumed that there 
 were no such other matters, beyond those included in the 
 clause, and the award will be upheld.^ 
 
 Arbitration bonds were entered into on December 28, 1842, 
 by which it was submitted to the arbitrators to determine 
 what amount had been actually paid under a certain contract. 
 Their finding was that a certain sum had been paid " up to 
 the first day of January, in the year 1841." An effort was 
 made to set aside the award on the ground that the arbitrators 
 had not passed upon the whole of the matter submitted, since 
 they had said nothing of payments made between January 1, 
 1841, and the date of the submission. But the award was 
 upheld upon the strength of the English cases. Paige, J., 
 said : " These authorities tend to show that in this case the 
 court is authorized to presume that there were no payments 
 made between the first day of January, 1841, and the date of 
 the submission bonds ; or that, on the latter day, there was no 
 matter in controversy depending in relation to payments on the 
 contract, which was not depending on the 1st January, 1841. 
 This is not the case of an omission to determine a distinct 
 matter specifically submitted. Here the arbitrators actually 
 pass upon the matters submitted. They say in their award 
 that they have heard the proofs and allegations of the parties 
 and examined the matter in controversy by them submitted in 
 the bonds of submission ; and then they find that the whole 
 
 1 See Craven v. Craven, 7 Taunt. 642 ; Gray v. Gwennap, 1 Barn. & Ad. 106 ; 
 Hayllar v. Ellis, 3 N. & P. 553 ; Harrison v. Lay, 13 C. B. u. s. 528. 
 
 2 Hodges V. Hodges, 9 Mass. 320. 
 
 " Day „. Bonnln, 3 Bing. N. C. 219 ; Wynne v. Edwards, 12 Mee. & W. 
 708, 
 
AWARD CO-EXTENSIVE "WITH SUBMISSION. 365 
 
 amount paid on the contract up to January 1, 1841, is f 530.62. 
 They declare that they have passed upon all the matters sub- 
 mitted, and find the amount paid to that day. It seems to me, 
 under the rule that every reasonable intendment must be 
 made to uphold an award, that in this case we must intend 
 that no more than the sum indorsed on the contract had been 
 paid up to the date of the bonds of submission, and that the 
 arbitrators embrace in their finding the whole period down 
 to that time." ^ 
 
 Favorable Presumption in Cases of Doubt. — A submission 
 between partners was not upon its face entirely certain as to 
 whether or not the parties originally intended to submit any 
 other demands than such as were in some way connected with 
 their copartnership. The recital of the matters inducing the 
 submission, which preceded the enumeration of matters sub- 
 mitted, authorized the inference that it was with reference 
 solely to partnership concerns. The subsequent part of the 
 submission was broad enough to authorize the construction 
 that it embraced all demands between the parties. The award 
 disposed only of matters growing out of the partnership, and 
 was objected to on this ground. But the court overruled the 
 objection, in the absence of any_evidence that there in fact 
 were in existence private demands outside of the partnership 
 controversies.'^ 
 
 A Case iwhere the Favorable Presumption vraa not admitted. — 
 It was submitted to arbitrators to determine between A. & B., 
 1st. Whether A. had finished a certain house according to his 
 contract with B. ; what, if any thing, remained to be done by 
 him upon it ; how much, if any thing, remained to be paid by 
 B. to A. ; what damage, if any, should be allowed to B. for 
 failure to fulfil the contract. 2d. What amount, if any, re- 
 mained to be advanced by B. to A. ; and what, if any thing, 
 
 1 Ott V. Schroeppel, 6 N. Y. (1 Seld.) 482 ; and see Ward v. Uncorn, Cro. Car. 
 216 ; Busfield v. Busfield, Cro. Jac. 577 ; Barnes v. Greenwell, Cro. Eliz. 868. 
 
 2 Leavitt v. Comer, 5 Cash. 129.' ■ 
 
366 AWARD CO-EXTENSIVE WITH SUBMISSION. 
 
 to be done upon another house by A. to finish it according to 
 another contract between him and B. The parties stipulated 
 to perform, respectively, whatever the arbitrators should order. 
 The award was only that B. should pay a certain sum to A. in 
 fulfilment of the first contract aforesaid, and that a certain 
 sum remained to be advanced by B. to A. in fulfilment of the 
 second contract. The award in terms purported to be " of and 
 concerning the premises and the wliole subject-matter thereof;" 
 but it was nevertheless set aside, because the arbitrators had 
 not found whether any thing remained to be done towards com- 
 pleting the houses or either of them. Chief Justice Shaw said, 
 " We take the rule to be, that when the claims on both sides 
 are for debts, or pecuniary claims, or for damages capable of 
 being liquidated, ascertained, and I'educed to a sum certain, if 
 the arbitrators, professing to decide on the whole subject, find 
 a balance due from the one to the other, such an award is final 
 and conclusive, although the particulars from which that bal- 
 ance resulted are not stated." In this case, " Even if it was 
 within the arbitrators' authority to find damages for the non- 
 performance of the contracts," instead of " directing a spe- 
 cific performance of the contract by malting good tlie deficiencies, 
 yet it was clearly within their authority to direct such things 
 to be done specifically ; and the parties stipulated to do and 
 perform what should thus be directed. Now this award, find- 
 ing a balance on the pecuniary claims, leaves it wholly uncer- 
 tain whether the arbitrators decided on the fact that there were 
 or were not any such deficiencies, and, if there were, that they 
 allowed any compensation for tliem in damages, in stating the 
 balance of the account. We think it would be carrying the 
 doctrine of intendment too far to assume that they decided 
 against all claims for specific performance on both sides, 
 merely because they have said nothing on the subject." The 
 award is not sufficiently clear, as to what has and what has not 
 been passed upon, to prevent future controversy aud litigation ; 
 and it could not, for the same reason, operate as a bar, should 
 
AWARD CO-EXTENSIVE WITH SUBMISSION. 367 
 
 an action be brought on the original contract for alleged 
 breaches, in the non-performance of its stipulations.^ 
 
 ATward in Fact but not apparently co-extensive -with the Sub- 
 mission. — An award may sometimes not be co-extensive with 
 the submission in appearance when it is so in fact. For the 
 award need only cover matters in dispute, question, or doubt 
 between the parties, to which the attention of the arbitrators is 
 called ; and if the submission, by reason of being loosely or 
 largely worded, would include more matters, yet these need 
 not be passed upon by the arbitrators.^ The example given by 
 Mr. Kyd ^ is that of a submission of all actions, real and per- 
 sonal, and an award only concerning personal actions, which 
 will be good, provided that, as matter of fact, no real actions 
 are pending between the parties. It is possible also that the 
 decision of one point may, as matter of necessity, include or 
 draw after it the decision of other points which will not there- 
 fore be specifically mentioned. 
 
 Presumption that the A'ward does not include Matters not sub- 
 mitted. — If the submission be broad enough to include any 
 thing, and the arbitrators profess to base their award on the 
 proofs and allegations of the parties, the court will presume 
 that they have not decided matters not in dispute.* The pre- 
 sumption always is, that nothing has been decided beyond 
 what was submitted and presented ; and the onus of proof rests 
 upon the party who asserts that the arbitrators have gone 
 beyond these matters.^ 
 
 Presumption based on A'ward of Mutual Releases. — RuSSell 
 lays down the established rule in England to be, that if, on 
 submission of a cause and all matters in difference, the arbi- 
 
 1 Houston V. Pollard, 9 Mete. (Mass.) 164; and see In re Rider & Fisher, 3 
 Bing. N. C. 874 ; stated ante, p. 360. 
 
 2 Jackson v. Ambler, 14 Johns. 96. 
 ' Kyd on Award, 172. 
 
 * Byers v. Van Deusen, 5 Wend. 268. 
 
 5 Byers v. Van Deusen, 6 Wend. 268 ; Caton v. MacTavisli. 10 GHl & J. 192 ; 
 Sperry v. Ricker, 4 Allen, 17. 
 
368 AWARD CO-EXTENSIVE "WITH SUBMISSION. 
 
 trators award that the one party shall pay to the other a sum 
 of money, and that mutual and general releases shall be ex- 
 ecuted, the award will be taken to be a disposition of all the 
 several matters submitted, although it does not embody any 
 adjudication upon some specific matters presented at the hear- 
 ings ; as, for instance, on particular liabilities of the parties with 
 respect to some bills of exchange, or on the liabilities in an 
 action between them. For by the award of general releases, 
 the arbitrator " must be deemed to have taken into considera- 
 tion these particular matters in difference, since the releases 
 would operate as a final determination respecting them.''^ 
 
 But, he adds, where the arbitrator stated on the face of his 
 award that he had, for reasons which the court held untenable, 
 refused to arbitrate on certain claims within the scope of the 
 submission, his proceeding to direct the parties to execute 
 mutual general releases respecting the matters submitted was 
 not allowed to cure the defect, by reason of the gross injustice 
 which would ensue regarding the omitted claims, in case the 
 award should not be set aside.^ , 
 
 It is apprehended also that, by parity of reasoning, the same 
 result would follow if, in the absence of any express exception 
 by the arbitrator, it should nevertheless appear on the face 
 of the award that it was not logically capable of disposing of 
 some of the matters submitted, or if the fact of such non- 
 determination should be established by extrinsic proof. 
 
 1 Russell on Arb., 3cl ed. p. 257 ; Birks v. Trippet, 1 Saund. 32 ; Wharton v. 
 King, 2 Barn. & Ad. 528 ; Addison v. Gray, 2 Wils. 293. 
 
 2 Russell on Arb., 3d ed. p. 258 ; Bowes v. Eernie, 4 M, & Cr. 150 ; and see 
 Wilkinson v. Page, 1 Hare, 276. 
 
CHAPTER XII. 
 
 THE AWARD MUST BE ENTIRE AND POSSIBLE. 
 
 Meaning of the phrase " entire.'' 
 
 There can be but one award. 
 
 Two certificates in cross-actions. 
 
 Separate awards embodied in one instrument. 
 
 The award need not he all contained in a single instrument. 
 
 The award may refer to extrinsic documents. 
 
 An award on whicli judgment is to be rendered must be complete in itself. 
 
 Marginal notes on an award. 
 
 Special power to make separate awards. 
 
 An award must be possible. 
 
 Meaning of the phrase "Entire." — It is an imperative I'ule that 
 the award must be entire ; but it is difficult to define with clear- 
 ness and precision what is the real force and meaning of this 
 requisition. It seems to be a demand for unity and complete- 
 ness. There can be but one award, and that award must be 
 perfect and complete. Russell says that " the arbitrator can 
 make but one award. This must be one entire and complete 
 instrument in itself ; therefore if it be made part one day and 
 part at another, though each and every part be made within the 
 time limited for the award, it will be void." ^ It is not, of 
 course, to be conceived that this language is intended to affect 
 the formal or manual labor of drafting the award. It is prob- 
 ably rather to be understood as a prohibition of any severance 
 of the award into parts, of which one shall be concluded upon 
 one day, and another upon a later day. And it is stated that 
 arbitrators may " assemble and consult and form their final 
 determination on specific matters at several days ; but their 
 
 1 Russell on Arb., 3d ed. p. 247 ; Com. Dig. Arb., E. 16 ; EoUe's Abr. Arb., 
 H, 1, 2, p. 250 ; Gould v. Staffordshire Potteries Water-works Company, 5 Exch. 
 214, at p. 223. 
 
 24 
 
370 THE AWARD MUST BE ENTIRE AND POSSIBLE. 
 
 award, which expresses their final determination on all the 
 matters together, must be one and entire." ^ 
 
 There can be but One Award. — A cause and all matters in 
 difference between A. and B. were referred. Subsequently, and 
 after this first reference had begun, another order was made, 
 by which it was directed that C. should be made a party to the 
 reference, as if he had been an original party ; and that a cause 
 between A. and C, and all matters in difference between A., 
 B., and C, each and every of them, jointly and severally, 
 should be referred to the same arbitrator. The arbitrator made 
 two awards, in one of which he awarded that A. was indebted to 
 B., without mentioning C. ; in the other he awarded that A. 
 was indebted to C, without mentioning B. Both awards were 
 held to be bad, because there was no one award determining 
 all the matters in difference between the parties. The second 
 order of reference consolidated both the causes, and the arbi- 
 trator " should have decided in one award the two causes 
 referred to him." ^ 
 
 Two Certificates in Cross-actions. — An exception to the strict- 
 ness of the foregoing rule was very reasonably allowed to obtain 
 where an arbitrator was called upon to certify on cross-actions 
 between the parties. He made a separate certificate in each 
 action on a separate piece of paper. It was objected that the 
 arbitrator had power to make only one certificate. To which 
 objection, said the court, " the answer is, that it may be in- 
 tended that the papers were made at the same time ; and if so, 
 they would be one instrument, containing the decision of each 
 cause, written on separate papers for the purpose of being ap- 
 plied to the separate clauses.^ 
 
 Separate Awards embodied in One Instrument. — It will be 
 observed that in the United States the strictness of the Eng- 
 lish principles, laid down and exemplified in the foregoing 
 paragraphs, has been very much relaxed. 
 
 1 Russell, loc. cii. ; Com. Dig. loc. cit. ; EoUe's Abr. Arb., E. 3, p. 250. 
 
 2 Winter v. Munton, 2 Moore, 723. 
 
 8 In re Smith v. Reece, 6 Dowl. & Low. 520. 
 
THE AWARD MUST BE ENTIRE AND POSSIBLE. 371 
 
 The case of Kendrick v. Tarbell is very badly reported, but 
 from the statement and opinion it may be gathered that there 
 were several distinct matters in difference between the parties ; 
 that all were submitted together, and that the parties bound 
 themselves to fulfilment of " the award ; " that the arbitrators 
 found separately upon each one of these several matters ; that 
 they drew up apparently a single instrument, but that in that 
 instrument they kept each finding separate, and spoke of each 
 finding as an award in itself ; so that the one document con- 
 tained what in terms purported to be seven different awards ; 
 whereas, in the absence of this phraseology, the whole instru- 
 ment would probably and naturally have been regarded as con- 
 stituting a single award, in seven different articles. The court , 
 contented itself with saying, per Eedfield, C. J., that " the 
 bond seems to us to oblige the defendant to pay all the awards, 
 or to pay the ' award ', against defendant, which the arbitrators 
 should make upon the matters submitted. And these five 
 awards are but the detail of ' the award ' which the submission 
 seems to have contemplated, and we do not perceive how the 
 award is in any sense invalidated because the decision upon 
 each claim is stated in detail." ^ It will be observed that the 
 doctrine of entirety, though it might properly have been re- 
 garded as the. basis of the discussion, was not clearly or directly 
 touched upon at all ; but the orders of the arbitrators were 
 upheld, and the question whether they were embodied in one 
 award or distributed between seven separate awards was re- 
 garded as immaterial. 
 
 The Award need not be all contained in a Single Instrument. — 
 The departure from the rigid rule which was made in the case 
 of In re Smith v. Reece ^ has been carried to a much greater ex- 
 tent in New York, as the following case will show. Parties 
 executed arbitration bonds submitting to arbitration, first, the 
 amount which had been actually paid upon a certain contract 
 
 1 Kendrick v. Tarbell, 26 Vt. 416. 
 
 ^ 6 Dowl. & Low. 620, stated ante, p. 370. 
 
372 THE AWARD MUST BE ENTIRE AND POSSIBLE. 
 
 which in justice sliould be applied thereon, said amount so 
 found to be indorsed on said contract ; second, of and con- 
 cerning all actions, &c., and all other matters, &c. (excepting 
 a slander suit) ; " so as the said award be made in writing sub- 
 scribed by [the arbitrators] or any two of them, and attested 
 by a subscribing witness, ready to be delivered to the parties 
 on or before the first day of February then next." The arbi- 
 trators made an award concerning the actions and other mat- 
 ters, which was duly signed by two of them and witnessed, and 
 at the same time they indorsed upon the contract the follow- 
 ing : " The whole amount which has been paid actually on the 
 within contract up to the first day of January, in the year 1841, 
 •is, and by our award amounts to, the sum of $530.62," &c. 
 This was signed by three arbitrators, and the signatures of two 
 of them were witnessed. In suit on the award it was insisted 
 that the indorsement on the contract was not an award. The 
 court, however, held otherwise, saying, per Paige, J., " The 
 indorsement on the contract may be regarded as a part of the 
 principal award. The indorsement and the award were simul- 
 taneous acts of the arbitrators. Having been made at one and 
 the same time, they must be considered as constituting but one 
 instrument, and must be construed as such." If the substance 
 of the indorsement had been incorporated in the principal award, 
 or indorsed upon it, it would have been unobjectionable in form. 
 " The indorsement, on the contrary," was said to be " good as 
 a distinct award." And directly afterward it was said that 
 " the arbitrators in this case, in the indorsement on the con- 
 tract made and signed by them, adjudicate that the amount 
 paid on the contract ... is 1530.62, and to indicate that 
 this indorsement is made and signed by them as a separate 
 award, or as a part of the principal award, they declare that 
 the amount so paid ' by our award amounts to 1530.62.' " i It 
 will be observed that in this case, on the strength of English 
 authorities, the simultaneous writing and execution of the 
 1 Ott V. Schroeppel, 6 N. Y. (1 Seld.) 483. 
 
THE AWAKD MUST BE ENTIRE AND POSSIBLE. 373 
 
 principal award and indorsement are regarded as an essential 
 element, going to sustain tlie latter. And the court, having 
 evidently resolved that they would at any rate sustain the in- 
 dorsement, and not being inclined to be too particular as to the 
 theory so long as this end should be gained, indicate a will- 
 ingness to treat it either as a part of the " principal award," so 
 called, or as an independent award. It cannot be both, but the 
 court thinks it may be either, and, without showing any partial- 
 ity, simply declares it good. It is noticeable, too, that no stress 
 appears to be laid upon the proviso inserted in the bond, for an 
 indorsement upon the contract of the finding concerning it; 
 though it is not easy to see why this was not reasonably to be 
 construed as equivalent to a deliberate stipulation by the parties 
 for two awards,, one of which should be made in a peculiar 
 manner. 
 
 An award was accompanied by a paper entitled " General Re- 
 sult," which contained a sort of summary of the calculations by 
 which the arbitrators had ascertained the amount of indebted- 
 ness between the parties. In proceedings to set aside the award 
 on the ground of mistake, the court held that " this paper might 
 be considered, for the purposes of the present inquiry, as part 
 of the award." ^ But it is added in a foot-note that " the rule 
 does not appear to be very clearly settled as to how far extrin- 
 sic statements by arbitrators slaall be received to impeacli their 
 award," citing some Massachusetts cases.^ And it is obvious 
 that the foot-note touched tlie real principle, and that the lan- 
 guage tised by the court was lax in the extreme. An explana- 
 tory paper, letter, or other instrument has been sometimes 
 allowed to invalidate an award, because it furnishes evidence 
 of error in the award; and the courts have treated it in the 
 same manner as if the error appeared on the face of the award 
 itself. But this is different from holding that two separate and 
 distinct instruments make one award. 
 
 1 Bell V. Price, 2 Zabr. 578. 
 
 2 Ward V. American Bank, 7 Mete. (Mass.) 490 ; Jones v. Boston Mill Corpo- 
 ration, 6 Pick. 154. 
 
374 THE AWAED MUST BE ENTIRE AND POSSIBLE. 
 
 The Award may refer to Extrinsic Documents. — An award may 
 refer to some other document or instrument, as a report of a board 
 of commissioners, a deed, &c., provided such paper be accessible 
 and be described with sufficient certainty. ^ 
 
 A building contract provided that in case any alteration should 
 be made in the form, &c., of the work, and the parties should not 
 agree as to the price, there should be an appraisal by arbitrators. 
 Arbitrators were called in, and recited in their award that having 
 been chosen to examine and value the extras, &c., " as provided 
 for. in the contract for said buildings between, &c., dated, &c." 
 they did determine, <fec. It was held that the articles of the con- 
 tract, being thus expressly referred to in the award, must be read 
 and considered as if recited at length in it.^ 
 
 An Award on -which Judgment is to be rendered must be complete 
 in itself. — Referees, after various recitals of their doings, stated, 
 " A duplicate statement of proceedings relating to our award we 
 have delivered to each of the parties : We have considered the 
 purchase of the A. property as a partnership transaction, and 
 have adjusted the same as will appear by said statement." The 
 award was held void, as being " imperfect and uncertain as to 
 the extent of it, and the final result of the action of the referees. 
 . . . Whatever of the doings of the referees, in the matter of 
 making their award, is borne only upon the duplicates thus de- 
 livered to the parties, is not so distinctly set forth in the award 
 as to be acted upon by the court to which the award is returned 
 for acceptance. If, upon a submission and award at common 
 law, such statements, furnished to the parties, might be con- 
 sidered sufficient, as bringing directly to their knowledge the 
 nature and extent of the award, yet such a course of proceed- 
 ing will not do, in a submission under the statute. . . . This 
 
 1 Santee u. Kleister, 6 Binn. 36 ; Brickhouse v. Hunter, 4 Hen. & Munf. 363; 
 Henrickson v. Reinback, 33 111. 299 ; but see post, in the chapter entitled " The 
 Award must be certain/' the paragraph, Award referring to Extrinsic Instru- 
 ments. 
 
 2 Butler V. Mayor, &o., of New York, 1 Hill, 489. The decision of the Su- 
 preme Court in this cause was subsequently reversed (see 7 Hill, 329) ; but I do 
 not see that the reversal overrules the above doctrine. 
 
THE AWAED M0ST BE ENTIRE AND POSSIBLE. 375 
 
 award has no efficacy until accepted by the court ; and every 
 thing that enters into the award must, from the nature of the ' 
 case, be borne upon the award returned to the court ; and if 
 not so done, it cannot be legally accepted by the court, and 
 made the foundation of a judgment against the party to be 
 charged thereby." ^ 
 
 Marginal Notes on an Award. — In the margin of an award 
 was written : " G. P. is to give up the note which he holds 
 against N. S. & Co. The store remains joint property. The 
 outstanding debts to be equally divided." The court were of 
 opinion that these words were " to be considered as part of the 
 award, and to receive the same construction as if they had been 
 inserted in the body of the instrument. The words form a dis- 
 tinct sentence, and the meaning is the same, whether they be 
 read in one place or another, after any distinct sentence. Be- 
 sides, these words are merely explanatory of what would have 
 been the operation and effect of the award, if they had not been 
 inserted." ^ 
 
 Special Power to make Separate Awards. — The same parties 
 may enter into two distinct submissions concerning separate 
 matters before the same arbitrators ; and the awards, if they 
 contain in themselves nothing to the contrary, will be in every 
 respect wholly independent of each other.^ 
 
 So, also, the parties may specially empower the arbitrators to 
 make separate awards. The determination of distinct matters 
 may then be distributed among distinct awards, each one of 
 which, being complete in itself as a finding upon an independ- 
 ent matter, will be final and binding from the time of its 
 execution.* 
 
 An Award must be possible. — An award ordering an im- 
 possible act or thing is necessarily bad. Such is the old rule. 
 
 1 Day V. Laflin, 6 Meto. (Mass.) 280. 
 
 2 Piatt V. Smith, U Johns. 368. 
 
 3 Fay V. Bond, 1 Allen, 211. 
 
 < Russell on Arb., 3d ed. p. 248 ; Dowse v. Cox, 3 Bing. 20 ; 'Wrightson v. 
 Bywater, 3 Mee. & W. 199. 
 
376 THE AWARD MUST BE ENTIRE AND POSSIBLE. 
 
 But it seems that the impossibility must be of that description 
 that its existence is apparent upon the face of the award itself, 
 or so soon as the act or thing is named. Russell says that an 
 award of a " thing impossible ex natura rei " is void. The old 
 examples are an order for the payment of money or surrender 
 of an estate at a day already past. These orders, being obviously 
 and in the nature of things impossible of performance, are there- 
 fore necessarily niill.^ 
 
 But to order a man to pay " twenty pounds when he has not 
 twenty pence," is in one sense of the word an equal impossibility. 
 Yet, since it is not obvious and inherent in the very order itself, 
 it is not of such a description as will render the award void. The 
 debt will be created, though it may not be collectible.^ 
 
 If the act or thing ordered be possible at the time when the 
 award takes effect, but afterward becomes impossible, whether 
 by the act of the party ordered to perform it or of a stranger, 
 the obligation of performance is not discharged.^ 
 
 It seems that absolute impossibility is not necessary in order 
 to avoid the award, but impossibility within what may be re- 
 garded as the reasonable limits of a man's power. Thus, it is 
 said that an order, that a person should turn aside the course of 
 the river Thames would be void, since it would be presumed not 
 to be within his power.* And this must unquestionably be good 
 law ; though as it is possible to conceive of instances in which 
 a direction to a party to deflect the course of a stream might be 
 both possible and proper, so it is difficult to lay down, either in 
 abstract phraseology, or even by ' the aid of examples, the rule 
 concerning this description of what may be called presumable 
 impossibility. 
 
 1 Russell on Arb., 3d ed. p. 288 ; Com. Dig. Arb., E. 12 ; RoUe's Abr. Arb., 
 E. p. 248, and F. ; Bacon's Abr. Arb., E. 4 ; Colwell v. Child, Ca. in Cliy. 86. 
 
 2 Ibid. 
 
 8 Russell on Arb., p. 288 ; Com. Dig. Arb., E. 12. 
 < Bac. Abr. Arb., E. 4; Co. Lit. 206. 
 
CHAPTER XIII. 
 
 THE AWAED MUST BE MUTUAL. 
 
 Force of the requirement of mutuality. 
 
 Award ordering releases is mutual. 
 
 Award of payment to one only of two joint creditors. 
 
 Force of the word " for " in an award of payment. 
 
 Award under a submission by an agent. 
 
 If a party is not bound by the award, it is not mutual. 
 
 Force of a stipulation concerning releases, contained in the submission. 
 
 An award neglecting to order a conveyance of real estate. 
 
 Awards may be mutual by implication. 
 
 Order that a party ^ay a debt to a stranger. 
 
 Force of the Requirement of Mutuality. — Mutuality is an 
 essential characteristic of an award. But the ancient rigor of 
 interpretation concerning "this trait has been much relaxed in 
 modern times. The old and unquestionably sound theory 
 was that " awards must not be on one side only ; that they 
 are void unless something be arbitrated for the defendant's 
 benefit as well as for the plaintifif*." Thus, if in a controversy 
 between A. and B. it was awarded that B. should pay to A. a 
 certain sum, it was considered that it ought, on the other 
 hand, to be awarded for the benefit of B. that this payment 
 should be in full discharge of his indebtedness, or that A. 
 should execute a release to him vipon receiving the sum. The 
 difference between the old arid the new cases is not so much in 
 the theory or general rule as it is in the operation given to 
 it. Thus in old times it would have been held that the award 
 was not mutual unless it contained a discharge of B. in express 
 terms, or ordered the release, or said for what the money was 
 to be paid, or purported to be de et super prmmissis. Other- 
 wise it was considered that there might be danger that it 
 would not sufficiently appear what demand was satisfied and 
 
378 THE AWAKD MUST BE MUTUAL. 
 
 acquitted by the payment when made.^ But the recent author- 
 ities are to the effect that any payment or act ordered to be 
 done will be presumed to be in full and final settlement of the 
 controversy or subject-matter of the submission. Such is, at 
 present, the recognized law in England. Russell says it is " not 
 now necessary, whatever it may have been, that an award 
 should express that a sum awarded to be paid, or an act to be 
 done in favor of one of the parties, shall be in satisfaction, or 
 that it should contain any equivalent terms ; a discharge to the 
 other must necessarily be presumed from the payment of the 
 sum or the performance of the act." ^ 
 
 A cause was referred. The arbitrator in his award ordered 
 the defendant to pay the plaintiff a certain sum, without speci- 
 fying for what it was to be paid, or ordering any manner of 
 acquittance to be executed in return for it. But the court held 
 that it was a presumption that the payment was to be in re- 
 spect of the claim made in the cause. The matters in differ- 
 ence in the cause only were referred ; " and to hold that the 
 arbitrator awarded this sum of money, not in respect of the 
 matters in difference in the cause, but in respect of some mat- 
 ter in regard to which he had no right to award, would be 
 to make an intendment for the express purpose of defeating 
 the award." ^ 
 
 The rule as laid down in several courts in the United States 
 is, that an award is not bad for want of mutuality simply 
 because it does not order that a release be executed, or does 
 not itself contain words of satisfaction superseding the neces- 
 sity of the release. If the controversy or demand is finally dis- 
 posed of, so that the same claim cannot again be made the subject 
 
 1 Russell on Arb., 3d ed. p. 285 et seq. ; Bac. Abr. Art., E. 3 ; Stains v. Wild, 
 Cro. Jac. 352 ;. Nichols v. Grunnion, Hob. 49 ; Horton v. Benson, Ereem. 204 ; 
 EoUe's Abr. Arb., K. p. 253 ; Ayland v. NichoUs, Ereem. 265 ; Ormelade v. Coke, 
 Cro. Jac. 354 ; Veale v. Warner, 1 Saund. 327, n. 2. 
 
 2 Russell on Arb., 3d ed. p. 286 ; Thomlinson v. Arriskin, Com. Rep. 328 ; 
 Cooper V. Hirst, 1 Lutw. 539 ; Veale v. Warner, 1 Saund. 327, n. 2. 
 
 * Hobson V. Stewart, 4 Dowl. & Low. 589. 
 
THE AWAED MUST BE MUTUAL. 379 
 
 of a suit at law, it is sufficient. " Mutuality is notliing more 
 than that the thing awarded to be done should be a final dis- 
 charge of all future claim by the party in whose favor the 
 award is made, against the others, for the causes submitted, 
 or, in other words, that it shall be final."* 
 
 Award ordering Releases is mutual. — Thoilgh releases be not 
 necessary, yet if they be ordered the matter of mutuality is put 
 beyond a question. Thus in an old New York case it was said 
 that if an award puts a final end to the controversy, and directs 
 mutual releases to be executed and exchanged, it is, of course, 
 mutual. Nor does it make any difference that 'the one party is to 
 perform and execute the acts required of him before the other 
 party is to execute the general release.^ 
 
 Award of Payment to One only of Two Joint Creditors. —7 The 
 doctrine is asserted in Vermont that generally, where a single 
 claim is submitted and the arbitrator finds a sum due upon it, 
 an award of payment is sufficiently mutual and final. For the 
 award becomes the legal evidence of the debt, and when the 
 debt is paid the debtor's obligation and discharge will both 
 rest upon the award. But in the present case the debt found 
 by the award to be due from the defendant, R., to the plaintiff, 
 0., was not due to 0. alone, but to him and one W., who was 
 not a party to the submission. " And though payment of that 
 debt to 0., in pursuance of the award, would operate to dis- 
 charge R., yet his discharge would not rest upon the award, 
 but upon the prior and continuing right of 0., as one of the 
 joint creditors, to receive payment of the debt for himself and 
 W. Thus it would seem that no protection or benefit what- 
 ever could result to R. from the submission or award ;" and the 
 award was declared not to be mutual.^ 
 
 Force of the word " For " in an Award of Payment. — If an 
 
 1 Purdy V. Delavan, 1 Caines, 304 ; Karthaus v. Ferrer, 1 Pet. 222 ; Cox v. 
 Jagger, 2 Cow. 638 ; Spofford u. Spofford, 10 N. H. 254. See statement of last 
 two cases in Chapter IX., in the paragraphs, Award need not order Release. 
 
 2 Munro v. Alaire, 2 Caines, 320. 
 = Onion v. Robinson, 15 Vt. 510. 
 
380 THE AWAED MUST BE MUTUAL. 
 
 award direct a sum of money to be paid " for " any thing, it 
 has always been regarded as sufficiently mutual and final. 
 The word " for " clearly implies that for which the payment is 
 to be in satisfaction, and the payer is benefited by the discharge 
 of his liability .1 
 
 An award that all suits shall cease has been held to be 
 mutual, inasmuch as it has the effect of a release ; and the sub- 
 mission and award may be pleaded in discharge as well as the 
 release.^ 
 
 But where " all matters in controversy " were submitted by 
 rule of court, and the award was only that a certain sum should 
 be paid by one party to the other; Holt, C. J., refused to grant 
 an attachment before the payee should tender a release, though 
 he did not set the award aside. ^ 
 
 Award under a Submission by an Agent. — If a person under^^ 
 takes to dnter into a submission on behalf of another for whom 
 he has no authority to submit, and who is therefore not bound 
 by either the agreement or award, the submission will not be 
 mutual, and, as a necessary result, the award also will be 
 neither mutual nor final ; and it will be too late, after the 
 award is made, for the party in whose favor it is made to 
 rectify the submission, if he was not bound by it at the time of 
 the hearing and making the award. For example, where 
 overseers of the poor undertook to submit the claim of a pau- 
 per, they having no legal authority so to do, the award was 
 held void in a suit brought upon it by the pauper herself.* 
 But this ruling must be understood to be confined to the rela- 
 tionship of the supposed principal and the party of the other 
 part, as between them the award will not be mutual. But the 
 agent who actually enters into the submission may have be- 
 
 1 Russell on Arb., 3d ed. p. 286 ; Hopper v. Hackett, 1 Lev. 132 ; Hawkins v. 
 Colclough, 1 Burr. 275 ; Baspoole v. Freeman, Cro. Jao. 285 ; 8 Rep. 97 6 ; Elli- 
 ott V. Chevall, 1 Lutw. 541. 
 
 2 Strangford v. Green, 3 Mod. 228 ; Harris v. Knipe, 1 Lev. 58. 
 3 V. Palmer, 12 Mod. 234. 
 
 « Purbish v. HaU, 8 Maine, (Greenl.) 315. 
 
THE AWARD MUST BE MUTUAL. 381 
 
 come personally bound by it and by the award, and the award 
 may be mutual and Yalid as between him and the party of the 
 other part.^ 
 
 Disputes existing between A. and B., a submission was entered 
 into by A. with C, as. attorney for B. The award was that C. 
 should pay to A. a certain sum of money, and that C. and A. 
 should execute mutual releases ; but the release of A. to 0. 
 was ordered to run to the use of G. The award was held bad 
 for want of mutuality, inasmuch as nothing was awarded for 
 the benefit of B. ; if the release to be executed by A. had run 
 to B., or even to C. generally, the award might have been up- 
 held ; for in the latter shape the release would have been 
 intended to be for B.'s use, since the submission had been 
 professedly entered into by 0. on B.'s behalf.^ 
 
 If a Party is not bound by the Award, it is not mutual. — It 
 has until recently been a tendency of the English courts to 
 hold that if an infant or a feme covert were a party to a sub- 
 mission, the submission, and consequently also the award, 
 were void for want of mutuality. For neither an infant nor a 
 feme covert could be thus bound.^ But the principle is now 
 gaining ground that if a person enters into a submission with 
 a party thus incapacitated, and knowing the fact, he at least 
 shall be held bound by his own voluntary act and its conse- 
 quences, though the incapacitated person may not be.* 
 
 Force of a Stipulation concerning Releases, containe.d in the 
 Submission. — Under a submission to determine a disputed 
 boundary line, embodying an agreement to execute such re- 
 leases as the arbitrators see fit to direct, it is not essential to 
 
 1 Buchanan v. Curry, 19 Johns. 137. 
 
 2 Bacon v. Dubarry, 1 Ld. Eayin. 246 ; and see, to the same effect, Cayhill v. 
 Fitzgerald, 1 Wils. 28, 58. 
 
 3 Cavendish v. , 1 Ca. in Chy. 279 ; Biddell v. Dowse, 6 Barn. & Or. 
 
 255. To the same effect is the case of Furbish v. Hall, 8 Maine, 315, stated at 
 length, supra, p. 380. 
 
 * In re Warner, 2 Dowl. & Low. 148 ; Wrightson v. Bywater, 3 Mee. & W. 
 199 ; Jones v. Powell, 6 Dowl. 483'; and see Kussell on Arb., 3d ed. pp. 17, 287, 
 288 ; Palmer v. Davis, 28 N. Y. 242, and ante, p. 28. 
 
382 THE AWARD MUST BE MUTUAL. 
 
 the validity of the award, in the particular of mutuality, that 
 releases should be required on both sides. If the title is so 
 ascertained by the award itself as to leave no room for doubt 
 or. dispute, and a release be awarded, to be executed by one 
 party only, it will not be bad for want of. mutuality, because no 
 release is required from the other party. Thus where A. was 
 in possession of the land over which the line was run, and was 
 directed to release to B. all the land up to that line, it was held 
 that it was no objection to the award, that it did not direct B. 
 to execute to A. a release of the land lying on the other side 
 of the line, since A. was already in possession and claiming 
 title.i 
 
 Power conferred in the submission to order mutual releases 
 is satisfactorily exercised by ordering several releases, where 
 the party of the one part is composed of several individ- 
 uals.^ 
 
 An Award neglecting to order a Conveyance of Real Estate. — 
 An award directed a son to take the real estate of his deceased 
 father, and to pay certain sums to the other heirs. It was 
 held to be bad for want of mutuality. For though an award 
 concerning real estate can operate by way of estoppel, yet it 
 does not actually pass and vest title ; consequently the son was 
 bidden to pay for property, the legal title to which was never- 
 theless not placed in him.^ But if the title is already vested 
 in the party in whose favor the award is, of course no con- 
 veyance is required.* 
 
 Awards may be mutual by Implication. — An award con- 
 cerning a disputed title to oxen declared that one party should 
 pay to the others a certain sum. Held, that the failure specifi- 
 cally to state that the payer should have the oxen as his prop- 
 erty did not avoid the award for want of mutuality, since this 
 
 ' Jones V. Boston Mill Corporation, 6 Pick. 148. 
 
 2 Smith V. Demarests, 3 Halst. 195. 
 
 ' Miller v. Moore, 7 Serg. & R. 164. 
 
 * Jones V. Boston Mill Corporation, 6 Pick. 148. 
 
THE AWAED MUST BE MUTUAL. 383 
 
 disposition of the ownership was " certainly to be inferred " 
 from the order to pay.^ 
 
 An award that one party should " keep and enjoy the goods, 
 paying " a certain sum to the other, was objected to on 1;lie 
 ground that there was no positive direction that the money 
 should be paid. But it was held to be good, as sufficiently 
 implying an order for payment.^ 
 
 But where an award was that certain work done was worth 
 a certain sum, for which the creditor should accept a bill of 
 sale of part of a ship, it was held that the award was bad be- 
 cause it did not order the debtor to give such bill of sale, and 
 the defect could not be supplied by implication.^ 
 
 Order that a Party pay a Debt to a Stranger. — An award that 
 one party to the submission shall pay a debt to a third person 
 who is a stranger to the submission, for which debt both par- 
 ties are alike bound, is valid as between the parties. It makes 
 no difference that the stranger is not affected in his right to 
 sue either of them at his option. This rule frequently comes 
 into play in the settlement of partnership matters, where one 
 partner i's ordered to pay the partnership debts, but the cred- 
 itors are of course not obliged thereafter to look only to him.* 
 
 1 Hanson v. Webber, 40 Maine, 194. 
 
 2 Stiles V. Triste, 1 Sid. 54. 
 
 ^ Clapcott V. Dayy, 1 Ld. Eaym. 611. 
 * Lamphire v. Cowan, 39 Vt. 420. 
 
CHAPTER XIV. 
 
 THE AWARD MUST BE FINAL. 
 
 Nature of the requisition of finality. 
 
 Award should put an end to litigation. 
 
 Only litigation hetween the parties need he prevented. 
 
 Award operating for only a limited time. 
 
 Award leaving an act of a judicial nature to he done in the future. 
 
 1. Eeserration of further judicial duty or authority to the arhitrator. 
 
 2. Eeservation of further judicial duty or authority to a stranger. 
 
 3. Reserving a judicial power to a party. 
 The functions of a valuer are judicial. 
 
 The void order may be eliminated, and the rest of the award stand. 
 
 Award reserving a ministerial duty or authority. 
 
 Directions for deductions and calculations. 
 
 Directions for taxation of costs. 
 
 Directions for the calculation of interest. 
 
 Directions for correction of errors. 
 
 Directions for the execution of deeds, releases, &c. 
 
 The ruling in a peculiar case. 
 
 Award upon condition that an act be done by a party. 
 
 Award conditioned to be void upon the happening of an event. 
 
 Entry of judgment on a conditional award. 
 
 Eeferring questions of law to the court by means of a condition. 
 
 Award conditioned on the arbitrator's authority. 
 
 Award in the alternative. 
 
 ImpossibiUty in one of the alternatives. 
 
 Uncertainty in one of the alternatives. 
 
 Method of availing of want of finality. 
 
 Nature of the Requisition of Finality. — It is one of the car- 
 dinal rules in the law concerning arbitration that the award 
 must be final ; that is to say, it must constitute a complete and 
 final disposition and determination of the matter submitted. The 
 very sweeping character and operation of this rule will become 
 obvious upon a moment's reflection. Without stretching the 
 phrase beyond its ordinary meaning, the requisition of finality 
 may be made to include a large proportion of all the charac- 
 teristics essential to a valid award. Thus an award which is 
 
THE AWARD MUST BE FINAL. 385 • 
 
 not certain, is not final ; for where there is doubt there can be 
 no finality. An award which is not consistent is not final. 
 An award which does not dispose of all the matters wliich the 
 arbitrators are under obligation to dispose of, or wliich, in 
 other words, is not co-extensive with the submission, is evi- 
 dently not final. An award which neglects to give directions 
 which are indispensable to the fulfilment of its decision is not 
 final. As, for example, it is a rule that an award concerning 
 the title to real estate is not sufficient by itself to pass the title 
 to the land, but a subsequent conveyance must be made by the 
 party in whom the legal title is outstanding. Consequently if 
 an award finds that the title is in a person other than him in 
 whose name it legally stands, or if an award malces a partition 
 of lands held in common,^ or runs a disputed boundary line, 
 and does not order conveyances, it may be bad for want of 
 finality. This inclusion of other traits in the grand trait of 
 finality will be noticed in the language of many of the deci- 
 sions. Often a defect will be displayed and the courts will 
 say, as though the phrases were interchangeable, that by rea- 
 son of it the award is neither certain nor final, or that it is not 
 final and does not dispose of the matters which the arbitrators 
 were bound to dispose of." In this chapter, it has been deemed 
 best to bring together only such matters and causes arising 
 under the rule requiring finality as could not easily or nat- 
 urally be classed under any other distinct head. 
 
 Award should put an End to Litigation. — An award; in order 
 to be really final, ought so thoroughly to determine and dis- 
 pose of the controversies submitted, that they cannot become 
 the basis of future litigation.^ But this rule must be con- 
 
 1 Johnson v. Wilson, Willes, 248. 
 
 2 A great many cases, which might seem to many persons to have fallen nat- 
 urally and appropriately into this chapter, will be found in Chapter XI., entitled 
 " The Award must be Co-extensive with the Submission," where they appeared 
 to me to find a fitting place ; though the selection is not easily determined upon, 
 and would probably be differently made by different people. 
 
 8 Waite V. Barry, 12 Wend. 377. 
 
 25 
 
386 THE AWARD MUST BE FINAL. 
 
 strued reasonably. It is only the precise question submitted 
 which can or ought to be thus laid for ever at rest. Collateral 
 or cognate doubts growing out of the same subject-matter, but 
 not falling within the actual scope of the arbitrator's authority, 
 neither can nor ought to be decided. And of course it is im- 
 possible that the institution of future litigation should be ren- 
 dered an impossibility. A person may begin a suit upon a 
 claim which has been finally settled by an award, and the rule 
 of finality will be satisfied if the award can operate as a perfect 
 bar to the prosecution of the suit. So the award may become 
 the subject of litigation, either in proceedings to enforce it or 
 to set it aside. But in such an event, it is the award itself 
 that constitutes the independent subject-matter of the legal 
 proceedings, and not the matters decided in the award. 
 
 An award has been said to be final when " nothing further 
 remains to fix the rights and obligations of the parties, and no 
 further controversy or litigation is required or can arise on the 
 matter. It is such an award that the party against whom it is 
 made can perform or pay it without any further ascertainment 
 of rights and duties." ' 
 
 An award directing A. to pay to B. (both being parties to 
 the submission) a sum named, on the ground that it was the 
 value of certain shares belonging to B. in the stock of a cor- 
 poration all the property of which had been converted by A. 
 to his own use, and not directing a transfer of the shares to A., 
 is bad for want of finality.^ 
 
 Under a submission to an arbitrator to settle the affairs of a 
 partnership, an award not directing the partnership to be dis- 
 solved nor stating an account between each partner and the 
 firm, but simply ordering one partner to pay a sum of money 
 ,to the others, was held void for want of finality.^ 
 
 Only Litigation between the Parties need be prevented. — Ob- 
 
 1 Colcord V. rietcher, 50 Maine, 394 
 
 2 In re Williams, 4 Denio, 194. 
 
 •I Paine v. Paine, 15 Gray, 299. ' 
 
THE AWARD MUST BE EINAL. 387- 
 
 viously the prevention of future litigation can be effected only 
 as between the parties themselves. If the matter be settled so 
 that neither party retains a cause of action against the other 
 upon the submitted claim, it is all that the arbitrators can do 
 in the premises. They cannot affect or bind the rights of 
 strangers to the submission, or determine any matter so finally 
 that a stranger cannot exercise any right of litigation which 
 may happen to reside in him before or after the arbitration 
 takes place. Tliis is well illustrated by cases arising out of 
 partnersliip disputes ; as, for example, the following: — 
 
 All matters in difference between partners were submitted. 
 It was held that an award, settling tlie partnership, dividing 
 its assets and liabilities as between the parties, and establish- 
 ing their rights and duties as towards each other, was suffi- 
 ciently final. For an award was competent to do no more. 
 And though litigation might spring up on account of these 
 common rights and duties in respect to third persons, yet this 
 liability could by no possibility be removed by any finding or 
 order which it was in the power of the arbitrators to make. 
 " They could not appoint a i-eceiver of the partnership. They 
 reached the limit of their powers wlien they settled the riglits 
 of the parties as between themselves." ^ - 
 
 Award operating for only a Limited Time. — An award Ought 
 to be good for all time, or at least for so long a time as the 
 subject-matter of the submission can survive. If the arbitra- 
 tors, being called upon to make a general disposition of a con- 
 troversy, give orders which dispose of it only for a limited time, 
 at the close of which it may again spring into life, their award 
 will obviously not be final. 
 
 A submission was entered into between a land-owner and a 
 rnillowner, to determine the damages to be paid by the latter 
 to the former for flowing his land. The award was of a cer- 
 tain annual payment, to be made so long as the mill-owner 
 should keep up the dam, with " the understanding and agree- 
 
 1 Lamphire v. Cowan, 39 Vt. 420. 
 
388 THE AWARD MUST BE FINAL. 
 
 ment " that if he should discontinue it the land-owner should 
 " be entitled to such damages as it appears his lands sustain 
 in consequence of former flowing, until they arrive at their 
 primitive goodness." Held, that the award was neither cer- 
 tain nor final ; for that the matter submitted was left open to 
 a future controversy, on the contingency of the discontinuance 
 of the dam.i 
 
 Award leaving an Act of a Judicial Nature to be done in the 
 Future. — An award will be bad for want of finality if it leaves 
 any act of a judicial nature to be done in the future. It is 
 matter of indifference whether such act is to be done by a 
 party to the submission, by a stranger, or even by tlie arbitra- 
 tors themselves. The award must, as a decision, be complete 
 in every part and upon every point, and must be made in this 
 perfect shape once for all.^ 
 
 1. Reservation of further Judicial Duty or Authority to the Arbi- 
 trator. — An award in an old case ordered the defendant to leave 
 on certain land so many trees, by way of house-bote and hedge- 
 bote for the plaintiff, as the arbitrators, tipon advice with counsel 
 at the next assizes, should appoint. It was held void, as being 
 imperfect and reserving a future authority to the arbitrators.' ' 
 
 An award ordered A. to pay to B. certain sums, by instal- 
 ments, to execute a bond to B., and also a warrant of attorney 
 to enter judgment on the bond to secure the payment ; but fur- 
 ther directed that the warrant should be given into the hands 
 of the arbitrators, and that judgment should not be entered by 
 virtue of it without their consent. The award was held bad, by 
 reason of the reservation of further power to the arbitrators.* 
 
 An award ordered a party to cleanse, scour, and clear out a 
 stream, and provided that if the other party should not be 
 
 1 Lincoln v. The Whittenton Mills, 12 Mete. (Mass.) 31. 
 
 2 Russell on Arb., 3d ed. p. 269 ; Winch v. Saunders, 2 Rolle's Rep., 214, Cro. 
 Jac. 584 ; Palm. 145 ; Thorp v. Cole, 2 Cr. Mee. & Ros. 367 ; 4 Dowl. 457; Com. 
 Dig. Arb., B. 16 ; Selby v. Russell, 12 Mod. 139 ; Nott v. Long, 9 G. II., B. R., 
 cited in Cayhill v. Fitzgerald, 1 Wils. 28. 
 
 ' Thinne v. Rigby, Cro. Jac. 314. 
 
 * Lindsay v. Lindsay, 11 Irish C. L. Eep. 311. 
 
THE AWARD MUST BE FINAL. 389 
 
 satisfied that this had been properly done, there should be a 
 further hearing upon this point before tlte arbitrator. Held, 
 that this reservation of further authority was bad.^ 
 
 An award ordered a defendant to pay a certain sum to the 
 plaintiffs. But it provided, that in case it should afterwards 
 appear to the arbitrators that the plaintiffs had not discharged 
 the defendant from certain debts in which he was bound for 
 them, then so much of the sum aforesaid should be repaid by 
 them to him, as to the arbitrators should seem due. The 
 award was held to be bad by reason of the retention of future 
 judicial power by the arbitrators.^ 
 
 Directions for Taxation of Costs. — Tiie direction that COStS 
 shall be taxed is proper. For the taxation, made by the officer 
 of the court, is regarded as a ministerial not as a judicial act. 
 The items are controlled by a fixed tariff', and the cleric exer- 
 cises no discretion in the matter.^ But, of course, if the taxa- 
 tion be directed to be made by one not officially entitled to tax 
 costs, the reason of the rale fails and the rule falls with it.* 
 
 Directions for Deductions and Calculations. — It is not abso- 
 lutely necessary that the award should state in figures the 
 exact amount to be paid. It is sufficient if there is such 
 reference in the award to documents or other matters, that 
 nothing remains but mere arithmetical computation, to render 
 the award final and conclusive.^ 
 
 In a controversy concerning a prize drawn in a lottery, the 
 arbitrators awarded that the one party should pay to the other 
 a certain sum " after deducting the usual percentage and the 
 
 1 Manser v. Heaver, 3 Barn. & Ad. 295. 
 
 2 Winch V. Saunders; 2 Rolle's Eep. 214 ; Palm. 145. 
 
 3 Russell on Arb., 3d ed. pp. 272, 273 ; Knott v. Long, 2 Strange, 1025 ; Selby 
 V. Russell, 12 Mod. 139 ; Lingood v. Bade, 2 Atk. 501 ; Pedley v. Goddard, 7 
 Term, 73 ; Worrel v. Atworth, Sid. 358 ; Cargey v. Aitcheson, 2 Barn. & Cr. 170 ; 
 Hanson v. Liversedge, 2 Vent. 242 ; Holdsworth v. Borsham, 31 L. J. Q. B. 145, 
 and same case under name of Holdsworth v. Wilson, in 32 L. J. Q. B. See also 
 the chapter on " Certainty," where several cases to the same effect are collected. 
 
 4 Russell on Arb., Part 11., Chap. V., § 4, X. 
 
 ' Colcord V. Fletcher, 50 Maine, 398 ; stated in the chapter on Certainty. 
 
390 THE AWARD MUST BE FINAL. 
 
 amount then already paid." The court said, that it was not 
 indispensable that the award should state in words or figures 
 the precise amount to be paid. If nothing remained to be 
 done, to render the decision certain and final, but a mere minis- 
 terial act or an arithmetical calculation, it would be good. 
 As, for example, in this case the amount of percentage which 
 was directed to be deducted was fixed by law, and so far as 
 this went the award was certain and final enough. But since 
 no means were furnished of ascertaining what amount had 
 been already paid, and this, if disputed, would necessarily 
 become the source of further litigation ; therefore, the award 
 was not in this respect final, and was void.^ 
 
 In the chapter on the Formalities and Contents of the 
 Award ,^ it has been already stated that an award may be 
 made upon several items distinctly, leaving the calculation 
 to be done afterward, upon an adjustment of the controversy 
 in pursuance of the award. 
 
 Judge Gushing, in a well-considered opinion, says, " when it 
 is laid down as a principle of law that an award should be final, 
 the meaning is, not that nothing shall remain to be done to com- 
 plete the execution of the award, but that the thing to be done 
 shall have been determined and defined to a reasonable cer- 
 tainty." The division in this case was to be of certain chat- 
 tels, the property of a partnership, and the judge, in applying 
 the above view of the law, said, " It is true the arbitrators do 
 not themselves actually sever the things to be divided, whether 
 hay, grain, utensils, or logs. There is nothing in the submis- 
 sion which requires them to effect such actual sevei-ance and 
 manual distribution of these things. They adjudge and award 
 that the things shall be divided, and they decide in what pro- 
 portions. In many cases no more is possible to be done ; as of 
 an award for the division of partnership effects, which may 
 
 1 Waite V. Barry, 12 Wend. 377. To the same effect is Fletcher v. Webster, 
 fully stated in the chapter entitled " The Award must be Certain." 
 
 2 Chap. IX., ante, p. 265 ; Kendrick v. Tarhell, 26 Vt. 416. 
 
THE AWARD MUST BE FINAL. 391 
 
 happen at the time to be abroad, or otherwise not in the per- 
 sonal possession of either party, and of which the quantity or 
 value is not known ; or, as in the case of an award concerning 
 objects not in their nature presently divisible, but hereafter 
 susceptible of division, such as the yet immature crop of a 
 fruit-tree ; or, as in the case of joint interests not in their 
 nature capable at any time of a material severance, like the 
 property in a ship. All these, and many other examples which 
 readily suggest themselves, would seem to show that an award, 
 which purports to divide property between two persons, by pre- 
 scribing a rule of division, may well be final, though the prop- 
 erty in question be not actually divided, nay, though it be in- 
 capable of division. If the award give a definite and certain 
 rule for the division, there is no want of power in the laws to 
 apply the rule and enforce its application. Though possible 
 doubt may attach to the doctrine by reason of dicta in some 
 late English cases, yet on the whole it is admitted in those very 
 cases, that if the arbitrator makes ' some regulations upon 
 the matters of difference,' to use the words of Baron Parke, 
 or ' gives direction ' as to what is to be done, according to the 
 language of Lord Abinger, it is decisive in favor of the 
 award." ^ 
 
 Award reserving a Ministerial Duty or Authority. — An impor- 
 tant distinction is taken by the courts between acts of a judicial 
 and those of a ministerial nature. The latter may properly be 
 ordered by the award to be done in the future by a tliird per- 
 son, or the power to do them may be reserved by the arbitra- 
 tor to himself. Neither is it essential that these acts should 
 be completed within the time limited for the making of the 
 award.^ If the duty of the arbitrator is to value certain real 
 estate, he may declare in his award at what rate it shall be 
 
 1 Strong V. strong, 9 Cush. 560. 
 
 2 Eussell on Arb., 3d ed. p. 272 ; Winch v. Saunders, 2 Holle's Rep., 214 ; 
 Palm. 145 ; Cro. Jac. 584 ; Thorp v. Cole, 2 Cr. Mee. & Ros. 367 ; 4 Dowl. 457 ; 
 Owen V. Boerum, 23 Barb. 187. 
 
392 THE AWAED MUST BE FINAL. 
 
 estimated per acre, and order that the number of acres be 
 ascertained by measurement ; for measuring the area of a field 
 is a purely ministerial act.-'^ 
 
 The Void Order may be eliminated and the Rest of the A-ward 
 stand. — The principle of divisibility in the award may some- 
 times come in to save it from being rendered entirely void by 
 reason of an illegal reservation of a further judicial duty or 
 authority. If the clause containing this reservation can be 
 separated from the residue of the award, according to the 
 principles laid down in Chapter XVII., the elimination will be 
 performed and the residue of the decision will be upheld. Au 
 arbitrator, whose authority was to decide concerning the use of 
 a stream, decided this matter, and proceeded further to order 
 that certain cleansing, scouring, &c., should be done by the 
 defendant. Under the apprehension that future differences 
 might arise respecting the performance of these acts, he 
 reserved to himself power in such an event to determine such 
 differences, and to make a final award. But at the same time 
 he stated that his present award was final unless the plaintiflf 
 complained within the space of two months. The court held 
 that his reservation to himself of further authority was void ; 
 but since the rest of the award contained a final decision on 
 the subject-matter of the submission, it was held good pro 
 tanto, and only the bad portion was rejected.^ Russell, in com- 
 menting on the case, points out tlie important fact that the 
 reservation was of an authority over something not included in 
 the submission, and not within the scope of the arbif;rator's 
 power ; so that the entire clause regarding the erection of the 
 works was simply an excess of authority.^ 
 
 The Functions of a Valuer are judicial. — The functions of a 
 
 1 Ibid. ; Hunter v. Bennison, Hard. 43. 
 
 2 Manser v. Heaver, 3 Barn. & Ad. 295 ; Goddard v. Mansfield, 19 L. J. Q. B. 
 305 ; and see Barton v. Eanson, 3 Mee. & W. 322. See Toralin v. Mayor of Ford- 
 wich, 5 Ad. & El. 147, in which separation was refused, and the judges expressed 
 much dislike of the doctrine. 
 
 3 Russell on Arb., 3d ed. p. 270. 
 
THE AWARD MUST BE FINAL. 393 
 
 valuer are regarded as judicial. Whence doubtless it would 
 follow that directions in an award for a future valuation to be 
 made would be void. So says Russell ; but the authorities 
 which he cites do not go the full length of establishing the 
 principle.^ 
 
 A somewhat singular award was to the effect that A. should 
 pay to B. £50, and should beg B.'s pardon in such manner and 
 place as B. should appoint. The latter order was held to be 
 void, as making B. a judge in his own cause upon points which 
 ought to have been determined by the arbitrator. For though 
 time and place be but incidents or circumstances, yet in such 
 a matter they constitute the most considerable part of the act.^ 
 
 An award which requires A. to give bonds to B., with such 
 sureties as B. shall approve, is bad, because it commits the 
 judicial act of approval to B.^ 
 
 2. Reservation of further Judicial Duty or Authority to a Stran- 
 ger. — If the arbitrators award tliat the disputants shall abide 
 by the award of a third person to be named by the arbitrators, 
 the direction will be doubly void, not only for want of finality, 
 but also as being an illegal delegation of their judicial author- 
 ity in the premises.* So an order that one party shall account 
 before such auditors as the other party shall assign, and, if he 
 be found in arrears, shall pay the amount, is altogether void.^ 
 
 If on a submission to settle the terms and conditions of a 
 lease, the arbitrators direct that the premises be put into re- 
 pair to the satisfaction of a person named in the award ; or if, 
 after determining the head of water a miller might, keep, they 
 
 1 Russell on Arb., 3d ed. p. 273, citing Anderson v. Wallace, 3 CI. & Fin. 26 ; 
 Cockson V. Ogle, 1 Lutw. 550 ; in which latter case, however, the court were not 
 obliged to decide the point, and Powell, J., expressed a different opinion from 
 that of his associates. 
 
 2 Glover v. Barrie, 1 Salk. 71. 
 
 ' Com. Dig. Arb., E. 15; see post, in this chapter, the statement of the case 
 of Simmonds v. Swaine, 1 Taunt. 548. 
 
 * Russell on Arb., 3d ed. p. 270 ; Lower v. Lower, KoUe's Abr. Arb., E. 20, 
 and H. 11. 
 
 6 RoUe's Abr. Arb., I. 9. 
 
394 THE AWARD MUST BE FINAL. 
 
 order the miller to put up such durable marks for denoting the 
 height of water as a surveyor, named, should direct ; the award 
 containing such order and directions will be void, for the double 
 reason above stated. ^ 
 
 3. Reserving a Judicial Power to a Party. — Nothing more 
 irregular than the reservation of any manner of judicial power 
 to a party can well be conceived, yet instances have occurred of 
 its being done. Thus, an award ordered that the defendant 
 should pay to the plaintiff a certain sum, unless within a cet- 
 tain time the defendant should exonerate himself by affidavit 
 from certain payments and receipts, in which case a less sum 
 was directed to be paid. Lord Kenyon held the award bad" be- 
 cause a sum in dispute was left to be decided " by the person 
 who of all others was least qualified to decide " it, namely, by 
 the very party by whom it must be paid, if it were to be paid 
 at ,all.2 
 
 Directions for the Calculation of Interest. — It SeemS that if 
 interest is ordered to be estimated, it will be proper for the 
 arbitrator to lay down the rules by which the calculation is to 
 be made. For there are different rules by which interest may 
 be figured and which may lead to materially different results. 
 Yet, upon the other hand, if nothing be said as to tlie method, 
 it is the fair and rational presumption that the modes recog- 
 nized in tlie courts of justice in the country where the contract 
 was made, were intended to be followed.^ 
 
 In Massachusetts, it was objected to an award that instead 
 of ordering payment of a fixed sum, it directed the payment 
 of a certain sum at a certain time, with interest. The court 
 said : " Here is no uncertainty. The law fixes the rate of 
 interest. When, therefore, the sum is fixed, .and the time of 
 payment, the computation of interest being to be made by a 
 
 1 Johnson u. Latham, 19 L. J. Q. B. 329 ; Tomliu v. Mayor of Fordwich, 5 
 Ad. & El. 147. 
 
 2 Pedley v. Goddard, 7 Term, 73 ; and see Rous v. Lun, 1 Keb. 569. 
 
 3 M'Kinstry u. Solomons, 2 Johns. 57 ; 13 id. 27 ; and see the chapter on 
 Certainty, where other cases to the same effect are collected. 
 
THE AWARD MUST BE FINAL. 395 
 
 fixed nile, tlio result is as certain as if the computation had 
 been made and the result stated by the arbitrators in dollars 
 and cents." ^ 
 
 Directions for Correction of Errors. — A direction in the award 
 that any error in addition, or in the calculation of interest, 
 which may have occurred in the making up of the account, 
 shall be deducted or refunded, does not invalidate the award 
 for want of finality. ^ 
 
 Submission was made to arbitrators to determine the price 
 of an estate. In their award, they named the sum to be paid 
 and the number of acres which the estate was estimated to 
 contain, and added that in case any error should be detected in 
 the measurement, then an allowance at a certain rate per acre 
 should be made, either by way of addition or deduction accord- 
 ing as the measurement acted upon should be found to be less 
 or more than the correct measurement. A certain rate per 
 acre was named in case the difference should prove to be on one 
 side of a brook ; double that rate was to be allowed if the dif- 
 ference should be on the other side of the brook. The award 
 was declared to be neither final nor certain, since it failed to 
 state how much land the arbitrators conceived to lie upon 
 either side of the brook ; consequently all the necessary data 
 for determining on which side of the brook the difference was 
 were not given. But it was added that if the addition or 
 deduction had been ordered to be made at an uniform rate per 
 acre as to all the land, this difficulty would have been removed, 
 and the award would have been good, on the principle that 
 " id certum est quod certuni reddi potest." ^ 
 
 Directions for the Execution of Deeds, Releases, &c. — Direc- 
 tions that a party shall execute a deed, release, or other legal 
 instrument are of frequent occurrence in awards. The degree 
 
 1 Skeels v. Chiekering, 7 Mete. (Mass.) 316. 
 
 " M'Kinstry v. Solomons, 2 Johns. 57 ; s. c. 13 id. 27 ; but as to the calcula- 
 tion of interest, see ante, p. 394. 
 
 3 Hopcraft v. Hickman, 2 Sim. & St. 130. 
 
396 THE AWARD MUST BE FINAL." 
 
 of accuracy with which tlie nature and contents of the docu- 
 ment must be described has already been under discussion. 
 Russell says that " such a direction will sometimes avoid the 
 award, sometimes not, according as in each case it is treated 
 as a reservation of a judicial or ministerial duty." ^ There 
 seems to be no question that if the order is simply that a deed, 
 release, or other instrument be executed and delivered, the 
 task of drawing the document will be regarded as simply min- 
 isterial. The difficulty arises where the drafting is directed to 
 be done to the satisfaction, or by the advice, of some person ; 
 for this reservation of an advisory or judicial power is contrary 
 to the established principle. > 
 
 If the reservation be to the arbitrator, it is generally con- 
 strued to be judicial.^ For example, an award that the defend- 
 ant shall pay the plaintiff a sum certain, and shall execute 
 such a bond, to secure the payment, as the arbitrators shall 
 advise, has been held to be .bad.** So an award that the defend- 
 ant shall secure payment of a sum to the plaintiff in such 
 manner as the arbitrators shall advise, is invalid.* 
 
 Submission was made concerning the right to certain real 
 estate. The award ordered certain parties to execute to an- 
 other party all such conveyances, releases, and assurances as 
 might be necessary to pass their respective interests to him, 
 but it reserved to the arbitrators, in case of dispute as to the 
 manner in which the conveyance should be effected, a power to 
 appoint a counsel or solicitor to decide as to what should be 
 the proper conveyances, releases, or assurances, and what 
 clauses, provisions, and covenants these instruments should 
 contain. The award was held to be wholly void. Coleridge, 
 J., said: "It is settled that if an arbitrator does not decide 
 the matter referred to him, at the time he makes his award, 
 
 1 Russell on Arb., 3d ed. p. 273. 
 
 ■i Ibid. 
 
 8 RoUe's Abr. Arb., H. 4, p. 250. 
 
 * 19 Edw. IV., 1, cited in Hunter v. Bennison, Hardw. 43. 
 
THE AWAED MUST BE FINAL. 397 
 
 but reserves to himself a future power to act when his power 
 is gone, that it is an excess of authority, as he cannot in that way 
 keep alive his authority ; nor can he, I think, delegate it, as he 
 attempts to do here." ^ 
 
 But it has been held that if arbitrators, on a reference out 
 of chancery, leave it to tlie court, if it shall see fit, to give 
 instructions to the master to settle the form, the award will not 
 therefor be bad.^ 
 
 Where the reservation of power to advise or pass upon the 
 sufficiency of the instrument is made to any other person than 
 the arbitrator, the cases are somewhat contradictory. An order 
 for the execution of such a bond of security, or of such releases, 
 as a stranger shall advise, has been held to be bad.^ But an 
 award that one shall release to another, by the advice of J. S., 
 has been held good.* 
 
 If the direction be that one party shall execute to the other, 
 such a bond of security as his opponent's counsel shall advise, 
 or a general release, as fully and beneficially as counsel shall 
 advise, the award may be good. For it is said that the delega- 
 tion to the counsel enables him to perform only a ministerial 
 act. The arbitrators have determined the extent of the bond 
 and release ; the counserhas no judicial authority as to the 
 character of the instruments, but liis sole duty and function is 
 to make them as strong in law as he can.^ In like manner 
 where an arbitrator awarded that, for the purpose of deciding 
 the title to certain land, an action should be conceived by the 
 advice of certain designated counsel, this was held to be a ref- 
 erence to the judgment of the counsel upon the matter of form 
 merely, not of substance.^ 
 
 1 In re Tandy- & Tandy, 9 Dowl. 1044. 
 
 2 Lingood v. Eade, 2 Atk. 501. 
 
 8 EoUe's Abr. Arb., H. 6, p. 250 ; Emery v. Emery, Cro. Eliz. 726. 
 * Anon., Jenk. 3d cent, case 61, p. 129. 
 
 5 Russell on Arb., 3d ed. p. 274 ; Cater v. Startut, Eolle's Abr. Arb., H. 7, 
 p. 250 ; Sty. 217 ; Jenk. 129. 
 
 6 Brooke's Abr. Arb., 37. 
 
398 THE AWARD MUST BE FINAL. 
 
 In Massachusetts, an award ordered that the defendants 
 should have and hold certain land, upon condition that within 
 six mouths they should execute a deed of release to the plain- 
 tiff, sufficient in the opinion of the supreme judicial court, or 
 of the attorney-general, j;o bar them from any future claims to 
 certain lands and to confirm the same lands to the plaintiff. 
 The condition was held by the court to be good and operative 
 in every particular .^ 
 
 The Ruling in a Peculiar Case. — An award stating that A. has 
 a just claim for the sum awarded and for " even more, if 
 insisted on," implies tliat the claim for more was waived before 
 the arbitrator. Payment of the sum awarded is a discharge 
 of the debtor under tlie award, and the receipt of it is a waiver 
 by the claimant of any further demand.^ 
 
 Award upon Condition that an Act be done by a Party. — " An 
 award," says Russell, " leaving the result conditional on the 
 voluntary performance by one party of some particular act for 
 the benefit of the other, seems generally open to the objection 
 of not being final." ^ 
 
 " An award," says Judge Wilde, " may be conditional. But 
 if the condition be such as to give rise to a new controversy, 
 then it will be bad." * 
 
 An order that a party shall do an act upon the premises of a 
 third person is good, provided it be conditioned upon the pi-ior 
 permission of the owner of the l^nd ; though otherwise it 
 would be void, as directing a trespass.^ 
 
 A lease of certain premises was awarded to a party, with the 
 proviso that if tlie rent which he was directed to pay should 
 not be paid, then the award as to his enjoyment of the lease 
 should be void. The award was held good, for it became abso- 
 
 1 Commonwealth v. Pejepscut Proprietors, 7 Mass. 399. 
 
 2 M'Kinstry v. Solomons, 2 Johns. 57, and 13 id. 27. 
 
 s Russell on Arb., 3d ed. p. 266 ; Crofts u. Harris, Carth. 187. See the chap- 
 ter on Mutuality. 
 
 * Lincoln v. Whittenton Mills, 12 Mete. (Mass.) 31. 
 5 Turner v. Svvainston, 1 Mee. & W. 572. 
 
THK AWARD MUST BE FINAL. 399 
 
 lute if the party paid tlie rent, and if he did not, he lost the 
 benefit of enjoyment solely by his own default.' 
 • An award was that the defendants sliould have and hold cer- 
 tain land in controversy upon condition that they should 
 within six months from the date of the award execute a certain 
 deed of release to the plaintiff. The validity of tlie condition 
 was upheld in a very elaborate opinion delivered by Judge 
 Sedgwiclc. He held that it was a condition precedent and 
 that it must be performed by the defendants before they could 
 set up any claim to the land by virtue of the award.^ No fault 
 was found on the ground of want of finality. On the con- 
 trary, the judge said that either arbitrators or referees might 
 order any act to be done by a party " either absolutely or upon 
 condition, as tliey might judge riglit." ^ 
 
 But it seems that if an option is left to a party as to which 
 of two courses he will pursue, accordingly as he may regard 
 one or the other as more beneficial to himself, the award will 
 be void. The following Englisli case is the best exemplifica- 
 tion of a distinction which it is very difficult to put satisfac- 
 torily into abstract phraseology, yet which seems to be sufii- 
 ciently obvious. 
 
 A shareholder in a joint-stock company sued the directors 
 for the value of his shares at a certain period, on the ground 
 that th6y had, without his consent, engaged in speculations for- 
 eign to the company's undertaking, and for other reasons. This 
 action having been submitted, together with other matters, the 
 arbitrators awarded in respect of it that the plaintiff was en- 
 titled to recover a certain sum from the company " upon his 
 surrendering the fifty-two shares of stock held by him or trans- 
 ferring the same in favor of the said company, or of any person 
 or persons they may direct for their behoof." In liolding this 
 order bad. Lord Brougham said : " The other point on which 
 
 1 Furser v. Prowd, Cro. Jac. 423. 
 
 2 See also Lee u. Elkins, 12 Mod. 585. 
 
 ^ Commonwealth v. Pejepscut Proprietors, 7 Mass. 399. 
 
400 THE AWARD MUST BE FINAL. 
 
 I have no doubt in certain respects is, that the award is not 
 final, and that it does not direct any tiling specific or positive 
 to be done, but merely that upon one party doing something, 
 something is also to be done by the other party. If the plain- 
 tiff chooses to give up his shares, and divest himself of that 
 property, the company shall pay him so much. It is in vain to 
 argue that this direction was the same as a direction to a party 
 to do so and so, upon another party producing letters of admin- 
 istration ; or that it is like the case of a party who is directed 
 to do so and so upon a discharge being executed to him. It is 
 in vaiu to say, as has been ingeniously put in the argument at 
 the bar, that it is the same as directing a cautioner to do so and 
 so upon the assignment to him of the principal obligor's inter- 
 est. It is in vain to say that any of the three cases so put is 
 at all the same as', or at all like to the one in question in this 
 award. There was no necessary connection between the ar- 
 rangement which the arbitrator was in the course of directing 
 and the plaintiff's divesting himself of his property in ceasing to 
 be a ghareholder. The award did not direct him to give up the 
 shares ; it only said, if he chooses to get out of the situation 
 of shareholder, he can divest himself of the joint-stock prop- 
 erty and assign over or give up the shares to the company, and 
 the company shall do so and so. That is a perfectly different 
 matter, and ought to bo made the subject of a specific direction 
 binding the plaintiff obligatorily, not binding the company, in 
 the event of the plaintiff executing the directions of this award, 
 whatever they might be. I have no doubt whatever upon that 
 objection to the award." ^ 
 
 An order directed a party to pay a certain sum of money 
 " upon proof" that the other party has discharged certain 
 claims. The court did not feel called upon to pass in direct 
 terms upon the validity and effect of this order, for under the 
 circumstances of the case, they felt able either to reject it as 
 
 1 Baillie v. Edinburgh Oil Gas-Light Company, 3 CI. & Fin. 639 ; and see 
 Carnochan v. Christie, 11 Wheat. 446. 
 
THE AWARD MUST BE FINAL. 401 
 
 surplusage, or to regard it as a mere repetition of a stipulation 
 contained in the award. But it was clearly regarded as a faulty 
 order, considered per se.^ 
 
 A-ward conditioned to be void on the Happening of an Event. — 
 An award conditioned to be void upon the happening of a cer- 
 tain event, will be bad, whether that event be within the con- 
 trol of the parties or either of them, or not. " For by adding 
 the proviso, the arbitrator has prevented his decision being a 
 certain and final termination of the matters in dispute." ^ An 
 award was that one party should pay to the other a certain sum 
 of money, and that the payee should give to the payer a release, 
 provided, however, that if the one ordered to pay should be dis- 
 charged of any arrears due to soldiers, by the passage of an act 
 of indemnity, then the award should be void. The award was 
 held to be bad for want of finality.^ So, likewise, where an 
 award provided that in case either party should be dissatisfied 
 with it, and within a specified time should pay a small sum to 
 the other, then the award should be void and the parties re- 
 mitted to their original rights to proceed against each other, it 
 was held to be not final and void.* 
 
 Entry of Judgment on a Conditional Award. — If an award or 
 report which is returnable into court and upon which judgment 
 is to be entered, be made conditional, it has been held in Mas- 
 sachusetts that it is within the power of the court to enter a 
 conditional judgment, agreeable in every respect to the deter- 
 mination expressed in the award. It seems, however, that no 
 execution will be allowed to issue on such judgment ; but that 
 an action may be brought on the judgment when the condition 
 has been fulfilled ; or perhaps an attachment may then be or- 
 dered to compel a performance of the report or award. If there 
 be nothing on the record to prevent the issue of an execution, 
 and the judgment creditors wrongfully take it out, a remedy 
 
 i Miller v. De Burgh, 4 Exch. 809. 
 2 Russell on Arb., 3d ed. p. 268. 
 » Kinge v. Fines, Sid. 59 ; Vin. Abr. Arb., H. 18. 
 * Sheny v. Kichardson, Pop. 15. 
 26 
 
402 THE AWARD MUST BE FINAL. 
 
 may be had by audita querela} A later case takes the same 
 ground, though with some slight appearance of reluctance, as 
 though the earlier decisions were regarded as having gone 
 rather far.^ 
 
 Referring Questions of Laiw to the Court by Means of a Condi- 
 tion. — As has been elsewhere laid down, the arbitrator or ref- 
 eree, whose award or report is returnable into court, may decline 
 to pass upon a question of law, and may save it for the deter- 
 mination of the court.^ 
 
 An award in a pending cause finding the facts, and giving a 
 certain direction, in case it is competent in law for the arbitra- 
 tors so to direct, and leaving the question of this competency 
 to the court, is good.* 
 
 A witness offered by one party in the proceedings before the 
 arbitrators, was objected to by the other as being incompetent, 
 but was allowed to testify. The arbitrators made their report, 
 awarding a certain sum to the plaintiff " on condition that W. 
 shall be adjudged by the justices of the Supreme Judicial Court 
 to have been legally admitted to testify in the cause ; " other- 
 wise they gave the defendant his costs. The court recognized 
 the condition as referring to them the question of W.'s compe- 
 tency, and being of opinion that he was incompetent, they held 
 that the defendant was entitled to recover his costs, and judg- 
 ment was rendered accordingly.^ 
 
 An award stating facts and finding for a party in a certain 
 sum, if the court should be of opinion that two certain deposi- 
 tions should have been admitted, in a certain less sum if one of 
 these depositions should not have been admitted, and in a third 
 less sum named if the other of the two depositions should not 
 have been admitted, was upheld as final.^ 
 
 1 Skillings v. Coolidge, 14 Mass. 43 ; Commonwealth v. Pejepscut Proprie- 
 tors, 7 id. 399. 
 
 2 Day V. Laflin, 6 Mete. (Mass.) 280. 
 
 8 Brickhouse v. Hunter, 4 Hen. & Munf. 363. 
 * Waugh V. Mitchell, 1 Dev. & Bat. Eq. 510. 
 5 Fuller V. Wheelock, 10 Pick. 135. 
 ■« Scott V. Van Sandau, 6 Q. B. 237. 
 
THE AWARD MUST BE FINAL. 403 
 
 A cause and all matters in difference were referred to arbi- 
 tration. The arbitrator, in his award, set out all the facts in 
 the case, declared that the plaintiff had no cause of action 
 against the defendant, and that he determined the action in 
 favor of the defendant, gave directions as to costs, and then 
 concluded as follows : " But if the court shall be of opinion, 
 upon the facts hereinbefore stated, that the plaintiff is entitled 
 to recover in the action, then I determine thff action in favor of 
 the plaintiff, and order and award that the defendant pay 
 damages to the plaintiff to the amount of one shilling" and 
 costs. The award was sustained, though by a divided court. 
 Parke, Baron, said that the only question was of finality ; that 
 as the arbitrator " had come to a positive finding, and expressly 
 declared his own opinion," the latter part of his award, in which 
 reference was made to the court, might be rejected. ^ 
 
 Aiward conditioned on the Arbitrator's Authority. — Another 
 English case, very like that last cited, is as follows : The sub- 
 mission authorized the arbitrator to set aside certain deeds 
 and to direct what should be done. He awarded that certain 
 specific deeds should be set aside, " if and so far as the same 
 respectively are in force, and if and so far as I have jurisdiction 
 to set the same aside ; and if I have no power to set them or 
 any of them aside, I declare that the rest of my award is yet to 
 stand." The award was declared not to be final, inasmuch as 
 the arbitrator had not determined whether or not he had power 
 to set these deeds aside, a question which he was bound to 
 decide, and to act and award accordingly .^ 
 
 Award in the Alternative. — An award made in the shape of 
 alternatives is not uncommon, and is considered to be " suf- 
 ficiently certain and final." ^ 
 
 The English reports furnish several instances of awards of 
 this description which have been sustained. Thus an award 
 
 1 Barton v. Eanson, 3 Mee. & W. 322. 
 
 2 Nickels v. Hancock, 7 De Gex, Macn. & Gor. 300. 
 
 3 Kussell on Arb., 3d ed. p. 268. 
 
404 THE AWARD MUST BE FINAL. 
 
 directing payment of a certain sum upon a certain day, or in de- 
 fault of such payment, then of a certain larger sum upon anotlier 
 later day named, has been held good.^ The increase in the 
 amount was regarded as in the nature of a penalty for the non- 
 payment, which the arbitrator had a right to impose. So an 
 award ordering payment to be made in instalments upon cer- 
 tain days named, but that, upon a failure to pay the first instal- 
 ment on the day Hominated, then the whole sum should become 
 immediately due, was held a good award.^ 
 
 An award that a certain sum should be paid if a right of 
 way should not be taken away, and a certain other sum if it 
 should be taken away, was upheld.^ 
 
 Certain oxen were sold by A. to B., but were claimed by C. 
 The " whole controversy between the parties as to the owner- 
 ship of said oxen, and how much shall be paid for the same, 
 and by whom, and who shall be entitled to receive said amount," 
 was submitted. The arbitrators awarded that B. should pay 
 A. the sum of $92.25 ; and, further, "that said A. should 
 pay said C. the sum of 150.00, with the privilege on the part 
 of said A., if he shall so choose, to pay said C, in addition to 
 said $50.00, fifty dollars moi-e, and to receive a transfer of the 
 note said C. holds against L. of $100.00. But if A. wishes to 
 take the L. note of $100.00 at $50.00, he shall tender to said 
 0. said $50.00, or to S. for him, within six days." The court 
 said, " The alternative mode of payment, which C. was entitled 
 to make, if he chose, would have been the execution of the 
 award, and would have put an end to the whole controversy. 
 This mode was intended to give him a privilege, if he should so 
 regard it ; and, if he should not accept it, the award was 
 operative against him for the absolute payment of $92.25 to 
 B., and of $50.00 to C." * 
 
 > Royston v. Rydall, Eolle'a Abr. Arb., H. 8, p. 250; Com. Dig. Arb., 
 E. 15. 
 
 2 Knockill v. Witherell, 2 Keb. 838. 
 » Collet V. Podwell, 2 Keb. 670. 
 * Hanson v. Webber, 40 Maine, 194. 
 
THE AWARD MUST BE FINAL. 405 
 
 Impossibility in One of the Alternktives. — It may sometimes 
 happen that an award which is in form in the alternative may 
 not be so in fact. Tims, of two alternative acts ordered to be 
 done, one may be uncertain or impossible. In such case, if 
 the other be certain and possible, the award will be sustained, 
 and the latter act must be performed.^ 
 
 Thus an order was that a party should either cause an entry 
 of satisfaction to be made on the judgment-roll in a certain 
 cause, or should pay to the other party a certain sum of money. 
 In fact, no such cause was in existence. The award was held 
 good as an award for the payment of the sum of money 
 named.^ 
 
 An award was that either a deed must be delivered or a sum 
 of money must be paid. The deed was not in the possession 
 or control of the party, and delivery by liim was impossible. 
 He was held to be obliged by the award to pay the money .^ 
 
 Uncertainty in One of the Alternatives. — As an example of an 
 uncertainty in one alternative we find the following case. An 
 award was that the defendant should pay to the plaintiff one 
 hundred pounds by a certain day, or should furnish two sure- 
 ties to be bound with him to the plaintiff for the payment of 
 the hundred pounds in instalments of twenty pounds per 
 annum. It was held that the latter alternative was altogether 
 void, without regard to whether or not the defendant was able 
 to furnish sureties, but that the former alternative was good. 
 The award was therefore sustained as an order for the pay- 
 ment of the hundred pounds on the day named.* 
 
 An award was that the defendant should pay £500, and that 
 the same should be paid, or secured to be paid, within one 
 week from the date of the award. Mansfield, 0. J., said that 
 at first he feared this came within the same class of cases as 
 
 1 Russell on Arb., 3d ed. p. 269 ; Simmonds v. Swaine, 1 Taunt. 548. 
 
 2 Wharton v. King, 2 Barn. & Ad. 528. 
 
 3 Lee V. Elkins, 12 Mod. 585. 
 
 < Oldfield V. Wilmer, 1 Leon. 140, 304. 
 
406 THE AWAKD MUST BE FINAL. 
 
 Thynne v. Rigby,i and that it was uncertain because it did not 
 point out what security was to be given. But " who is to 
 settle what the security shall be ? Certainly the man to 
 whom the sum is to be paid. The true meaning, therefore, is 
 to say that it shall be paid within a week ; for if the security 
 offered should please the plaintiff, he would take it without 
 any directions from the arbitrator. Though much weight is 
 due to the authority of Croke, probably, if the case reported 
 there were a new case, it would be decided otherwise," by 
 reason of the more liberal construction now given to awards. 
 Heath, J., said, " If one of two matters is awarded in the dis- 
 junctive, and one alternative is impossible or uncertain, that 
 alternative must be taken which can be performed." ^ 
 
 Method of availing of "Want of Finality. — As matter of practice 
 the existence of want of finality in an award may be availed of 
 in defence or avoidance in the same manner as want of cer- 
 tainty, and the subject is discussed at the close of the chapter 
 on Certainty. 
 
 ^ Stated, ante, p. 388. 
 
 2 Simmonds v. Swaine, 1 Taunt. 549. 
 
CHAPTER XT. 
 
 THE AWARD MUST BE CERTAIN. 
 
 Signification of the phrase "certainty.'' 
 
 A certain award will he enforceable. 
 
 A less degree of certainty is sometimes required. 
 
 Effect of the existence of uncertainty. 
 
 Cases illustratire of fatal uncertainty. 
 
 Certainty created by presumption. 
 
 The favorable presumption is strengthened if the award be de et super prce- 
 missis. 
 
 Evidence concerning the existence of a dispute. 
 
 Certainty by implication from an award of costs. 
 
 A case where implication was not allowed. 
 
 An order for the payment of costs is certain. 
 
 The award must order the payment of " costs " in terms, or by a clearly equiv- 
 alent phrase. 
 
 Eailure to name party to whom costs are to be paid. 
 
 Award referring to something extrinsic. 
 
 Certainty in awards ordering payments. 
 
 Awards leaving a calculation to be made. 
 
 Awards ordering a computation of interest. 
 
 Orders for payment at the " market price." 
 
 Certainty in the description of a debt. 
 
 Certainty in a general award. 
 
 Certainty as to the time of performing an act ordered. 
 
 Certainty .as to place of payment. 
 
 Certainty as to persons. 
 
 Certainty in the description of real estate. 
 
 An award concerning the price of land. 
 
 Certainty in awards concerning boundary lines. 
 
 Certainty in an award in an action of trespass to real estate. 
 
 Orders concerning mortgages. 
 
 Awards ordering security. 
 
 Award concerning a cause. 
 
 Statute of Limitations. 
 
 Statement of results. 
 
 Duty of party to correct uncertainty. 
 
 Award ordering payments from assets. 
 
 How uncertainty may be availed of. 
 
 Explanation of uncertainty. 
 
408 THE AWARD MUST BE CERTAIN. 
 
 Signification of the Phrase " Certainty." — An essential char- 
 acteristic of an award is certainty. It is not necessary that 
 it should be written with such technical and critical nicety 
 that subtle examinations and forced constructions cannot dis- 
 cover a doubt, or a deficiency, or a double meaning in any part 
 of it. But it must have such a degree of fulness and precision 
 that no reasonable doubt as to the meaning and intention of 
 the arbitrator can be entertained by intelligent men acquainted 
 with the subject-matter. 
 
 Russell says, " An award ought to be certain, so that no 
 reasonable doubt can arise upon the face of it as to the arbi- 
 trator's meaning, or as to the nature and extent of the duties 
 imposed by it upon the parties. Certainty to a common intent 
 only is sufficient, for the award will be construed by no tech- 
 nical rules, but in a fair and liberal spirit, with a view to 
 support it as far as a sensible and reasonable interpretation will 
 allow." 1 
 
 " Certainty," says Judge Kent, " must be judged of only 
 according to a common intent, consistent with fair and prob- 
 able presumption." ^ 
 
 " Technical precision and certainty," said Judge Cowen, 
 " are never necessary in an award. If it be expressed in such 
 language that plain men acquainted with the subject-matter 
 can understand it, that is enough, no matter how short and 
 elliptical." » 
 
 If an award is sufficiently certain to uphold a contract on 
 the same subject it is good.* So also says Judge Redfield : 
 " The degree of uncertainty, to avoid an award of arbitra- 
 tors, should be such as would avoid any other contract ; such 
 
 1 Russell on Arb., 3d ed. p. 275; citing Hawkins v. Colclougli, 1 Burr. 
 275. 
 
 2 Purdy V. Delavan, 1 Caines, 304, at p. 315. So also per Livingston, J., in 
 Schuyler v. Van Dev Veer, 2 Caines, 235, at p. 238 ; and see Jackson v. Ambler, 
 14 Johns. 96. 
 
 = Butler V. Mayor, &c., of New York, 1 Hill, 489. 
 * Perkins v. Giles, 53 Barb. 342, at p. 349. 
 
THE AWARD MUST BE CERTAIN. 409 
 
 as would leave the meaning of the arbitrators wholly in 
 doubt." 1 
 
 A Certain Award will be enforceable. — An award must be SO 
 far certain as to be capable of enforcement. " It ought to ap- 
 pear," said Chief Justice Kent, " from the context of the 
 award, or from the nature of the thing awarded, or by a mani- 
 fest reference to something connected with it, what things the 
 parties are ordered to do." ^ 
 
 A less Degree of Certainty is sometimes required. — If the court 
 has power to recommit the award, it has been intimated that it 
 may be looked at with a somewhat more critical eye than in 
 cases where this power does not exist. In the absence of the 
 power, the award will be upheld if the court is " not prepared 
 to say " that it is " so indefinite and uncertain as to be inca- 
 pable of execution; and therefore absolutely void." ^ 
 
 Effect of the Ezlstence of Uncertainty. — The effect of the 
 existence of uncertainty in the award is necessarily to avoid it. 
 In fact, it renders that which purports to be an award no award 
 at all. For an award is a final and conclusive determination 
 of certain matters ; an instrument of which the force, mean- 
 ing, or operation is left uncertain, is not such a determination, 
 and therefore is not, properly speaking, an award at all. 
 
 Cases illustrative of fatal Uncertainty. — Some casCS where 
 the uncertainty is of a very obvious nature are furnished by 
 the English reports, and collected by Mr. Russell, as follows : 
 An award that one party shall pay to the other so much 
 money as is in conscience due, without settling what is due, is 
 bad.* So is an award that one shall pay so much as land is 
 worth, the value of the land remaining undetermined.^ An 
 award that one shall pay the money due for certain labor, not 
 
 1 Alcely V. Akely, 16 Vt. 450. 
 
 2 Schuyler v. Van Der Veer, 2 Caines, 235. 
 8 Strong V. Strong, 9 Cush. 560. 
 
 * Watson V. Watson, Sty. 28 ; and see Kingston v. Kincaid, 1 Wash. C. C. 
 448. 
 
 5 Titus V. Perkins, Skin. 247. 
 
410 THE AWAKD MUST BE CERTAIN. 
 
 naming the sum, is uncertain.^ So is an award that one shall 
 pay certain arrears of rent, falling due after the purchase by a 
 stranger of certain lands, but not naming the amount of such 
 arrears nor the time from which they are to be calculated,^ And 
 so is an award that a certain commodity shall be paid for at the 
 market price, without saying at what place the market price is 
 to be taken ; since the rate may well differ at different places." 
 And an order that one should pay a moiety of a debt for which 
 A. is bound, not saying in what sum, is bad.* , 
 
 To these may be added also the following, where the entire 
 absence of description of the articles refei-red to obviously 
 avoided the award, to wit: An order for the delivery of " a 
 certain obligation," ^ and an order for the delivery of " three 
 boxes arid several books," ^ without further specification or 
 identification, were both held to be void for uncertainty. 
 
 A cause, together with all matters in difference, were re- 
 ferred. In the cause a verdict was taken for a specified sum 
 in damages, but subject to the award of the referee, who was 
 authorized to order a verdict to be entered for either party, as 
 he should see fit. He ordered a verdict to be entered for the 
 plaintiff, not, however, stating for what sum ; and that the 
 defendant should pay the plaintiff a certain sum. The award 
 was declared bad for uncertainty, inasmuch as it was not clear 
 whether the arbitrator intended the verdict to stand for the 
 amount as originally taken, and the payment by the defendant 
 to be in respect of matters out of the cause, or whether he 
 intended the sum ordered to be paid by the defendant to be 
 substituted for the nominal verdict and to be the complete set- 
 tlement.'^ 
 
 1 Pope V. Brett, 2 Saund. 292. 
 
 2 Massy v. Aubrey, Sty. 365. 
 
 3 Hurst V. Bambridge, RoUe's Abr. Arb., Q. 7, p. 263 ; Com. Dig. Axb., E. 
 11. See- Waddle v. Downman, 12 Mee. & W. 562, ■post. 
 
 * Gray v. Gray, RoUe's Abr. Arb., Q. 2, p. 263 ; Com. Dig. Arb., E. 11. 
 5 Bedam v. Clerlison, 1 Ld. Raym. 123. 
 •> Coclcson V. Ogle, 1 Lutw. 550. 
 ' Mortin v. Burge, 4 Ad. & El. 973. 
 
THE AWARD MUST BE CERTAIN. 411 
 
 Certainty created by Presumption. — The rule tliat every rea- 
 sonable presumption and intendment is to be made for the pur- 
 pose of upholding the validity of an award or report, often 
 comes to the aid of an instrument which, without some such 
 assistance, would have to be condemned as uncertain. An 
 award, made in the settlement of a partnership, that A. and B. 
 pay a certain sum to their copartner C, who shall retain from 
 it a certain amount, with the balance pay all the joint debts, and 
 divide any surplus equally among the three, has been declared 
 to be upon its face sufficiently certain. " For auglit we can 
 see, or is averred," said the court, " the debts due in the case 
 before us might be quite easy of liquidation, perhaps were 
 agreed on by the parties ; and if a thing extrinsic, ordered to be 
 done by the award, may be certain, the rule now is to intend 
 that it is certain till the contrary appear by averment." ^ 
 
 An award ordered that the plaintiff and defendant should 
 pay the costs of certain actions in certain proportions respec- 
 tively ; also that the sums which they had severally expended 
 about the actions should be allowed as part of the respective 
 proportions of the costs so ordered to be borne by each. The 
 amounts thus expended were not stated. The court said that 
 if tliere were no dispute as to these amounts, the award was 
 certain and final ; but aliter, if there were such dispute. But 
 inasmuch as the fact of the existence of any such dispute had 
 not been pleaded, the court would presume that there was 
 none, and would uphold the award.^ Tliis has become a lead- 
 ing cause in England, and many subsequent adjudications have 
 been expressly based upon it. 
 
 An arbitrator ordered two persons to pay a debt in the pro- 
 portion of the shares held by them respectively in a certain 
 ship, but did not state what these shares were. Inasmuch as 
 it did " not appear that it was in dispute between the parties 
 
 1 Case V. Ferris, 2 Hill, 75. 
 
 2 Cargey v. Aitcheson, 2 Barn. & Cr. 170. 
 
412 THE AWAED MUST BE CBRTALST. 
 
 what these shares were," the court held the award to be suffi- 
 ciently certain and final. ^ 
 
 Where the affairs of two partnerships were submitted to 
 arbitration, and one person, who was a member of both firms, 
 was ordered to make a certain payment to each firm, but noth- 
 ing was said of the proportions in which division was to be 
 made between the partners in one firm, it was held that the 
 award fulfilled the condition of certainty to a common intent ; 
 for the presumption would be that the partners were equally 
 interested in the proceeds of the partnership, and were entitled 
 to share equally in the payment ordered to be made.^ 
 
 The Favorable Presumption is strengthened if the Avtrard be de 
 et super praemissis. — If an award purports to be made de et 
 super prcemissis, this fact may help to establish the element of 
 certainty, when it might otherwise be considered to be absent. 
 Thus where such an award ordered the defendant to pay to 
 the plaintiff's attorney a certain sum, as the amount of the 
 attorney's bill delivered, but did not state what the bill was 
 for, the court sustained the award. For they said they would 
 intend that the bill was respecting certain notices of appeal, 
 constituting one of the matters submitted ; since the context 
 showed that the costs of the submission and reference, which 
 were also submitted, were not included in the aforesaid sum 
 ordered to be paid. The court, it was said, " ought to intend 
 that this sum is for one of the matters submitted ; " and since it 
 was obvious that it could be for nothing else, it would be pre- 
 sumed to be for the notices of appeal.^ 
 
 A submission recited that the parties were relatives and 
 entitled to distributive shares of the estate of M., deceased intes- 
 tate ; that the estate of M. consisted of debts, farm-stock, cat- 
 tle, and other effects ; that differences of opinion had arisen as 
 
 1 Wohlenberg v. Lageman, 6 Taunt. 251. 
 
 2 Henriokson v. Reinbach, 33 111. 299. 
 
 » EusseU on Arb., 3d ed. p. 282 ; Thorp v. Cole, 2 Cr. Mee. & Eos. 367 ; 4 
 Dowl. 457. 
 
THE AWARD MUST BE CERTAIN. 413 
 
 to the value of the farm-stock, cattle, and other effects ; and 
 that the parties had agreed to submit all disputes to arbitra- 
 tion. Theaward purported to be made touching and concern- 
 ing the matters in difference. It found that the defendant had 
 moneys, farm-stock, an& cattle to a certain amount, and after 
 other directions, ordered him to pay to the several parties their 
 respective distributive shares of M.'s estate. It will be ob- 
 served that disputes were not alleged to have arisen as to the 
 value of the delts, but that they were said to have arisen as to 
 the " other effects," and that the award said nothing of the 
 " other effects." But in view of the fact that its phraseology 
 was equivalent to the allegation that it had been made de et 
 super proemissis, the court upheld it as final and certain ; for 
 they said that they would presume that there was no dispute 
 as to the amount of the debts, or of the I'espective distributive 
 shares ; and also, since the arbitrator had omitted the matter 
 of the " other effects," they would presume that there were no 
 such " other effects," save only the " moneys," which had been 
 disposed of.^ 
 
 An award ordered payment to be made of a sum of money, 
 with interest to be computed from the date of the last settle- 
 ment of accounts between the parties. What that date was 
 the arbitrator did not specify. But " it appeared distinctly in 
 proof that the date of the last settlement was certain, and was 
 not a matter in dispute between the parties, but was mutually 
 agreed on by them both." The award was upheld.^ 
 
 Evidence concerning the Existence of a Dispute. — The lan- 
 guage quoted from the foregoing case, would justify the infer- 
 ence that extrinsic evidence would be admissible to establish 
 such an undetermined date, at least provided it were not dis- 
 puted. As was said in the argument : " Suppose the award had 
 directed the party to pay interest from the death of A. B., this 
 would be capable of proof by allegation and evidence." ^ 
 
 1 Perry v. Mitchell, 2 Dowl. & Low. 452. 
 
 ' Plummer v. Lee, 2 Mee. & W. 495. s ibid. 
 
414 THE AWARD MUST BE CERTAIN. 
 
 In another case, affidavits were introduced to show whether 
 or not a sum, not specifically named by the arbitrators, was in 
 dispute, and what in fact it was. The affidavits appear to have 
 been admitted and considered, but with reluctance. Coleridge, 
 J., said that they left it in doubt whether the matter was or 
 Was not in difference; "and this shows the inconvenience of 
 looking at affidavits on such a question." ^ 
 
 Certainty by Implication from an A-ward of Costs. — An award 
 may be certain by virtue of a manifest and necessary implica- 
 tion. Thus a report of referees in a pending cause, that the 
 one party shall recover costs of the other, necessarily implies 
 a decision of the point in controversy in favor of the former.- 
 Where such a report had been returned, Chief Justice Parker 
 said that, " by necessary implication, it must be considered as 
 a determination upon the question." The arbitrators could 
 not have awarded that the defendants should recover the costs 
 of the action, " without having decided the point in contro- 
 versy in their favor ; at least the legal presumption is, that they 
 so determined." Accordingly the judgment of the court was, 
 " that the plaintiffs take nothing by their writ, and that the de- 
 fendants recover their costs." ^ And again it was said : " The 
 legal presumption is, that they could not have made this award, 
 without having decided that the plaintiff had not maintained 
 the action submitted to their determination." * 
 
 A suit having been instituted for the burning of a barn, the 
 parties afterward submitted by bonds, in which they agreed to 
 discontinue the suit and submit all questions touching the 
 destruction of tlie barn to the arbitrators. The award recited 
 these facts and that the arbitrators had examined into the case, 
 
 1 In re Marshall & Dresser, 3 Q. B. 878. 
 
 2 Inhabitants of Buckland v. Inhabitants of Conway, 16 Mass. 396 ; Stickles 
 V. Arnold, 1 Gray, 418 ; Rixford o. Nye, 20 Vt. 132 ; Hicks v. Gleason, ib. 139 ; 
 Lamphire v. Cowan, 39 id. 420 ; and see the chapter on Rules of Construction ; 
 also tlio case of Hanson v. Webber, 40 Maine, 194, fully stated in the chapter on 
 Mutuality. 
 
 8 Inhabitants of Buckland v. Inhabitants of Conway, 16 Mass. 396. 
 * Stickles V. Arnold, 1 Gray, 418. 
 
THE AWARD MUST BE CERTAIN. 415 
 
 (fee, and ordered that the said suit should be no further prose- 
 cuted, and that the plaintiif should pay to one of the defend- 
 ants a certain sum for his costs and expenses. Judge Kent, in 
 upholding the certainty of the award, said that it was a " deter- 
 mination of the merits of the cause. . . . This award could 
 not have intended merely a cessation of the suit referred to in 
 the bond and award, with liberty to institute a fresh suit on the 
 same matter. This would have rendered the award altogether 
 useless and absurd. . . . The palpable intent and meaning of 
 the award was, that the charge of the plaintiff was not sup- 
 ported, and that the same should be no further prosecuted and 
 should for ever cease." ^ 
 
 A Case -where Implication -was not allowed. — A case where it 
 might have been supposed that the court would have consid- 
 ered the award to be certain by implication, but where they 
 refused to do so, is as follows : A chancery Suit had been 
 brought to rescind an agreement. It was referred, and the 
 main question in the reference was, whether the agreement 
 should be rescinded and the suit put an end to. In his award 
 the arbitrator ordered certain things to be done, and that per- 
 formance of these should be taken to be in full satisfaction of 
 all matters in difference, and that each party should bear 
 his own costs of the suit. But the award was set aside for 
 uncertainty, because the arbitrator did not clearly determine 
 the matters of whether or not the agreement should be re- 
 scinded and the suit terminated.^ Russell, in commenting on 
 the case, considers that it was doubtful whether the award had 
 decided the question referred.^ 
 
 An Order for the Payment of Costs is certain. — The rule has 
 been laid down, and is well established in England, that an 
 award that either party shall pay the costs, in whole or in part, 
 of a (jause submitted, or apportioning the costs in a specified 
 
 1 Purdy V. Delayan, 1 Caines, 304, Lewis, C. J., dissenting. 
 
 2 In re Tribe & Upperton, 3 Ad. & El. 295. 
 
 3 Russell on Arb., 3d ed. p. 275. 
 
416 THE AWAKD MUST BE CERTAIN. 
 
 ratio betweea the parties, will be upheld as sufficiently certain. 
 For the costs " will be taxed as a matter of course by the offi- 
 cer of the court, whose peculiar duty it is to settle their amount, 
 and who in so doing is considered as acting rather in a minis- 
 terial than judicial capacity." ^ The same rule unquestionably 
 prevails and is universally acted upon in the United States. 
 But I have found it nowhere specifically stated in any judicial 
 decisions, probably for the reason that it has never been con- 
 sidered worth while to draw it into question. 
 
 The principle by which an order that the costs of a suit be 
 paid by a party, without naming the amount, is held to be good 
 is also partially considered in the 'chapter on Finality. 
 
 Costs of a Reference. — It should be observed, however, that 
 the rule is applicable only to the costs of a pending cause. If 
 an order be that the costs of the arbitration be paid by a party, 
 without specifying their amount, a different result might be 
 reached, by reason of the fact that these are not taxable, and 
 therefore not to be established in accordance with a fixed rule 
 and by a merely ministerial act. Though if there be a refer- 
 ence out of court, and the rules of the court provide for a tax- 
 ation of costs in a reference, as is the case in England, the rule 
 may again come into operation with the revival of the reason 
 for it. The following case is an authority to this effect. 
 
 If a reference entered into by agreement stipulates that it 
 may be made a rule of court, the costs of the reference may be 
 taxed by the officer of the court, and their amount need not 
 therefore be named by the arbitrators. For example, where an 
 award under such a submission ordered the defendant to pay 
 the plaintiff's attorney his costs of attending the arbitration 
 and procuring the signature of his clients and other parties to 
 the enlargement of time, it was held that these directions were 
 
 I Russell on Arb., 3d ed. p. 279 ; Pedley v. Goddard, 7 Term, 73 ; Hftnson v. 
 Liversedge,. 2 Vent. 242 ; Cargey v. Aitcheson, 2 Barn. & Cr. 170 ; Holdsworth 
 V. Borsham, 31 L. J. Q. B. 145 ; and same case in error, 32 L. J. Q. B., under 
 the name of Holdsworth v. Wilson. See also a number of cases collected in the 
 chapter on Finality. 
 
THE AWARD MUST BE CERTAIN. 417 
 
 sufficiently certain, since these costs would be taxed by the 
 Master.^ 
 
 The A-wrard must order the Payment of " Costs " in Terms or by a 
 clearly equivalent Phrase. — The order must be distinctly for the 
 payment of costs, so that it is to be construed as nieaning the 
 ordinary taxable costs of court. Otherwise it will be too in- 
 definite to come within the operation of the general principle. 
 Thus, in an old case, an order that the defendant should pay all 
 " reasonable expenses," which the plaintiff had sustained about 
 the suit, was held so uncertain as to be void.^ And so was an 
 order for the payment of all charges spent at the making of the 
 award.^ In a later case, the award ordered the defendant to 
 pay the plaintiff all such costs, charges, and expenses as the 
 plaintiff had been put to in a certain cause then depending 
 between these parties. The court construed the direction as 
 intending only such costs as the officer of the court would 
 allow and tax, and upon this basis sustained the award as sufii- 
 ciently certain and good.* 
 
 An award that one party should pay the other all such mon- 
 eys as the latter had expended about the prosecution of a cer- 
 tain suit, was held sufficiently certain ; for the reason, as it 
 was said, that the amount could be ascertained by the attor- 
 ney's bill.^ Again, where an award ordered the defendant to 
 pay the charges of a suit then depending between the plaintiff 
 and defendant, and that the plaintiff should give the defendant 
 a bill of these charges, it was heldithat the aWard was suffi- 
 ciently certain, inasmuch as the charges would be ascertained 
 by the bill delivered.^ Russell, in commenting upon these 
 cases, says that they " are strictly in accordance with the pres- 
 
 1 Russell on Arb., 3d ed. p. 280 ; Thorp v. Cole, 2 Cr. Mee. & Eos. 867 ; 4 
 Dowl. 457. 
 
 2 Bargrave v. Atkins, 3 Lev. 413. 
 
 3 Pinkny v. Bullock, cited in Bargrave v. Atkins, 3 Lev. 413. 
 
 4 Fox V. Smith, 2 WUs. 267. 
 
 6 Beale v. Beale, Cro. Car. 383. 
 s Linfield v. Eerne, 3 Lev. 18. 
 
 27 
 
418 THE AWARD MUST BE CERTAIN. 
 
 ent holding of the courts, if we may presume that they meant 
 the attorney's bill after taxation, which reduces the amount, if 
 disputed, to a certainty." ^ 
 
 Failure to name party to -whom Costs are to be Paid. — An 
 order that a party pay the costs of an action or reference is not 
 uncertain because it fails to specify to whom they are to be 
 paid. The natural intendment is that they are to be paid to 
 his adversary.^ 
 
 Award referring to Something extrinsic. — It has been stated 
 in the discussion of the matter of Entirety that the award may 
 refer to extrinsic instruments. But it is an essential proYiso 
 that if an award does thus refer to such instruments, and is 
 incomplete without them or without proof of their contents, it 
 will be void unless these instruments either accompany it, or 
 are so fully described in it as to leave no possible uncertainty 
 concerning their identification.^ Such must be regarded as the 
 general rule if the reference be to a written document. In 
 Illinois, the court said, in a general way, that if an award "can, 
 with tolerable ease, be reduced to certainty, as by reference to 
 any written document, or the inspection of any particular thing 
 (a house or land)," it will be good.* 
 
 It has been laid down, generally, in some cases, both Eng- 
 lish and American, that if any thing be referred to in an award, 
 by which any uncertainty existing upon the face of the award 
 itself can be cured, reference should be had to this external 
 source of information." . 
 
 An English case, where a reference to an extrinsic document 
 was allowed for the purpose of explaining or determining an 
 
 1 Russell on Arb., 3d ed. p. 280. See also upon this subject the case of Car- 
 gey V. Aitcheson, 2 Barn. & Cr. 170, fully stated in this chapter in the discussion 
 of the subject of Favorable Presumptions. 
 
 2 Baily v. Curling, 20 L. J. Q. B. 235. 
 
 3 HoUingsworth v. Pickering, 24 Ind. 435. 
 i Henrickson v. Reinbach, 38 111. 299. 
 
 ' Butler V. Mayor, &o., of New York, 1 Hill, 489, citing Cargey v. Aitcheson, 
 3 Dowl. & Ry. 433 ; 2 Barn. & Cr. 170 ; 2 Bing. 199 ; MXel. 367. 
 
THE AWAED MUST BE CERTAIN. 419 
 
 amount not named or ascertained in the award otherwise than 
 by reference to such document, is as follows : The award was 
 that the defendant should pay to the plaintiff's attorney a cer- 
 tain sum, which was stated to be the amount of the attorney's 
 bill delivered. The bill included charges for professional ser- 
 vices rendered to another as well as for those rendered to the 
 plaintiff. The award was held sufficiently certain, though it 
 did not determine or specify the amount of the plaintiff's share 
 of the bill. For since it was stated that the bill had been already 
 delivered, it was said that the sum due from the plaintiff upon 
 it could be at once ascertained by reference to it.^ 
 
 If so liberal a rule is to be allowed to prevail, it would cer- 
 tainly seem as though the following case was harshly, if not 
 wrongly decided. In a submission between part-owners of a 
 vessel, an award that " there is due to C. the amount collected 
 on policy of insurance held by F. for his (O.'s) sixteenth part 
 of barque S.," was held bad for uncertainty, since it did not 
 appear whether any money, or how much, had been then col- 
 lected, and therefore the door for controversy was not conclu- 
 sively closed. " The question of amount " was said to " pre- 
 sent a disputable fact, even if it is admitted that the award is 
 sufficiently clear as to the general fact of indebtedness. . . . 
 A verdict could not be found for the plaintiff on the submission 
 and award alone, as the award makes no reference to any fact 
 or document, from which a judgment could be made up." ^ But 
 this ruling of the court, if inconsistent with the old rule laid 
 down by Eolle, will probably be regarded as the sounder 
 of the two. The case is at least an intimation that a stricter 
 rule than that of Beale v. Beale will be followed in our 
 courts ; and is authority for saying that some specific docu- 
 ment must be referred to, and that a mere general possibility of 
 arriving at certainty from outside sources is insufficient. 
 
 A submission was made concerning all controversies relating 
 
 1 Thorp o. Cole, 2 Cr. Mee. & Ros. 367 ; 4 Dowl. 467. And see post, in this 
 chapter, the paragraph on Certainty in Directions concerning Costs. 
 
 ^ Colcord V. Fletcher, 50 Maine, 398 ; and see post, the cases in the paragraph 
 entitled Certainty in Awards ordering Payments. 
 
420 THE AWARD MUST BE CERTAIN. 
 
 to a certain voyage. The award ordered that one party should 
 pay his share of the expenses of the voyage, and should allow, 
 on account, his share of the loss which should happen in the 
 voyage. The award was held good, on the ground that the ex- 
 penses and losses might be ascertained with certainty.^ 
 
 But doubt was expressed by Baron Alderson, in a later case, 
 in which Beale v. Beale was relied upon as a precedent, whether 
 any action could be maintained upon such an award.^ 
 
 Certainty in Awards ordering Payments. — If an award orders 
 money to be paid, it will obviously be uncertain, and also not 
 final, unless it either names the sum or furnishes sufiicient 
 means by which the sum cau be ascertained. If the latter 
 course is pursued, it is essential that the process necessary to 
 be gone through with, in order to arrive at the sum, should be 
 clearly pointed out, and should be of such a nature that no dis- 
 pute can arise concerning it. The subject has-been already 
 partially discussed in the chapter on Finality, since in defects 
 of this kind the want of certainty and the want of finality are 
 nearly akin. If so simple an arithmetical calculation as the 
 striking a balance of determined items alone remains to be 
 done, involving only addition and subtraction . of known 
 amounts, the award will be certain.^ 
 
 A reference was entered into between the assignees of a 
 bankrupt and a banking company, concerning some bills of 
 exchange deposited with the company by way of security. 
 The arbitrator awarded that the bills and moneys secured 
 thereby were the property of the assignees ; that the bills, 
 moneys, and proceeds should be paid over to the assignees ; and 
 that if the bank had received any part of the money secured 
 
 1 Beale v. Beale, Rolle's Abr. Arb., H. 14. The same remark has been made, 
 but by way of illustration only and not as a ruling, and probably on the strength 
 of this classic English authority, in some cases in the United States. Kingston 
 V. Kincaid, 1 Wash. C. C. 448 ; Butler v. Mayor, &c., of New York, 1 Hill, 
 489. 
 
 ' Perry v. Mitchell, 2 Dowl. & Low. 452, at p. 457. 
 
 8 Waite V. Barry, 12 Wend. 377 (fully stated in the chapter on Finality) ; 
 Kendrick v. Tarbell, 26 Vt. 416 ; Butler v. Mayor, &c., of New York, 1 HUl, 489 ; 
 Higgins V. Willes, 3 M. & R. 382 ; Hoporaft v. Hickman, 2 Sim. & St. 130. 
 
THE AWARD MUST BE CERTAIN. 421 
 
 by the bills of exchange, fhis amount also should be paid over 
 to the assignees. It was held that the award was bad, by rea- 
 son of its failure to determine what amount, if any, had been 
 received by the bank in respect of the bills of exchange.^ 
 
 One of the stipulations in a submission provided that the 
 arbitrator should direct the plaintiff to pay into a bank such a 
 sum of money as would be sufficient to entitle the defendant 
 to have restored to him some documents which he had de- 
 posited with the bank as security for advances. The arbitra- 
 tor, following the submission, ordered that the plaintiff should 
 pay to the bankers such a sum of money as would entitle the 
 defendant to have his securities restored to him. The award 
 was held to be neither certain nor final, by reason of the failure 
 to ascertain and order payment of a specified sum, as being the 
 amount necessary to be paid in order to entitle the defendant 
 to a release of his securities. If the payment were not made, 
 it was said, there could be no remedy on an award so uncertain 
 as this.® 
 
 In an arbitration between W. and F., under a building con- 
 tract, the award was that to complete the house " is worth and 
 will cost 1612.50 ; " and that said W. shall be allowed that 
 sum out of the contract price, additional to the amount already 
 paid by said W. to said F., and in addition to any sum or sums 
 of money he may be obliged to pay to discha,rge any and all liens 
 on said house, and the lot on which it stands ; and also, that said 
 W. shall take the house as it now is, and shall pay to said F. the 
 excess, if any there shall be, of the contract price over the said 
 sum of $612.50, the amount of the liens and costs thereon, and 
 the sum already paid by said W. to said F. on said contract. 
 And if the sum already paid and the amount of lien, claims, 
 and costs thereon and the sum of $612.50 shall be more than 
 the contract price, said F. shall pay the difference to said W. 
 Held, that " the sum which the award requires W. to pay to 
 
 1 In re Marshall v. Dresser, 3 Q. B. 878. 
 
 2 Hewitt V. Hewitt, 1 Q. B. 110. 
 
422 THE AWARD MUST BE CERTAIN. 
 
 F. as the excess, if any, of the contract price over the sum of 
 $612.50, &c., and also the sum which the award requires P. to 
 pay W., if the sum already paid and the amount of lien, 
 claims, and costs and the aforesaid sum of 1612.50 shall he 
 more than the contract price, are both entirely uncertain, and 
 cannot be made certain by any means afforded by the award." ^ 
 
 In Pennsylvania, it was held that an award of a certain sum 
 to be paid for a tract of land, from which, however, were to be 
 deducted the amount of all legal and equitable claims against 
 the land, was bad, as being neither certain nor final, since it 
 did not specify this amount.^ 
 
 Awards leaving a Calculation to be made. — Russell lays down 
 the broad doctrine that, " If the arbitrator give the rule for 
 calculating the amount of money to be paid, without stating 
 the result of such calculation, the award is sufficiently certain, 
 according to the general rule, " id certum est quod certum reddi 
 potest." ® 
 
 Avirards ordering a Computation of Interest. — An award that 
 a certain sum be paid, " with interest," is certain.* There is 
 no occasion for the actual calculation to be made by the arbi- 
 trator. 
 
 The question submitted was whether one party was liable to 
 pay interest upon a certain sum to the other. The arbitrator 
 apparently only found that he was so liable. It was objected 
 that he ought to have ascertained the amount. But Bayley, J., 
 said : " If he gives you the rule by which the amount is to be 
 ascertained, the rest is mere matter of addition." ^ 
 
 The subject is further discussed in the chapter on Finality. 
 
 Orders for Payment at the "Market Price." — It would seem 
 
 1 Fletcher v. Webster, 5 Allen, 566, decided upon the authority of Waite v. 
 Barry, 12 Wend. 377, which is fully stated in the chapter on Finality. 
 
 2 Spalding v. Irish, 4 Serg. & R. 322. 
 
 ' Russell on Arb., 3d ed. p. 280 ; citing Higgins v. Willes, 8 Man. & Ry. 382 ; 
 Hopcraft v. Hickman, 2 Sim. & St. 130. 
 * Emery v. Hitchcock, 12 Wend. 156. 
 5 Higgins V. Willes, 3 Man, & Ry. 382. 
 
THE AWARD MUST BE CERTAIN. 423 
 
 from the case of Hurst v. Bambridge,i that an order for pay- 
 ment to be made for any merchantable commodity at the mar- 
 ket price thereof, at a certain place and time, is sufficiently 
 certain. Probably, however, it might be shown by extrinsic 
 evidence that no market price was established at such place 
 and time. It was submitted to an arbitrator to determine 
 whether or not the plaintiff was entitled to recover in respect of 
 some articles of iron machinery furnished to the defendant, with 
 the stipulation that if he should find in the negative he should 
 allow the plaintiff the value of them at the market price of pig- 
 iron, since the defendant still retained possession of them. The 
 award ordered the defendant to pay for them at the present 
 market price of pig-iron, and was held good and certain. For, 
 in fact, the real question submitted was, whether the articles 
 were to be paid for as machinery or as pig-iron.^ 
 
 Certainty in the Description of a Debt. — If the description of 
 a debt is sufficient to identify, with reasonable freedom from 
 doubt, the debtor, the creditor, and for what matter the debt is 
 owing, the award will not be uncertain ; e. g.,& finding that A. 
 owes a sum to B. for " the T. oxen," is good.^ 
 
 Certainty in a General Award. — An award may be certain, 
 though it does not pass upon each demand separately, but 
 combines all in one general determination and order. Thus, 
 under a general submission of all demands and controversies, 
 an award of a certain sum as due from one party to the other 
 is sufficiently certain as a full execution of the submission.* 
 Such awards made under submissions of this nature are to be 
 distinguished from the like awards made in pursuance of sub- 
 missions, which, in terms, require an award to be made as to 
 
 ' Rolle's Abr. Arb., Q. 7, p. 263, stated ante, in this chapter, in the paragraph 
 entitled Cases illustrative of Fatal Uncertainty. 
 
 2 Waddle v. Downraan, 12 Mee. & W. 562 ; Russell on Arb., 3d ed. p. 277. 
 
 » Lamphire v. Cowan, 39 Vt. 420. 
 
 < Shirley v. Shattuck, 4 Cush. 470; Strong v. Strong, 9 id. 560; Emery v. 
 Hitchcock, 12 Wend. 156 ; Gray v. Gwennap, 1 Barn. & Aid. 106 ; Karthaus v. 
 Ferrer, 1 Pet. 222. 
 
424 THE AWARD MUST BE CERTAIN. 
 
 several distinct matters, as was the case in Houston v. Pol- 
 lard ^ and Rider v. Fisher .^ 
 
 A submission concerning a building contract left to the arbi- 
 trators " to say what deduction shall be made in favor of said 
 M., and what balance shall be due." An award that a cer- 
 tain balance was due and should be paid, was held good, though 
 nothing was said on the subject of the deduction. For the 
 amount to bfe deducted was presumed to have been taken into 
 consideration in arriving at this sum of which payment was 
 ordered.^ So, again, the language was repeated in another 
 case : " the arbitrators, in finding the balance due to a party, 
 do also necessarily find what deduction, if any, should be made 
 for his claim, as certainly as if they had in express terms stated 
 the sum which they deducted." * 
 
 Certainty as to the Time of performing ah Act ordered. — On 
 the strength of the old English cases Russell lays down the 
 rule of law to be, that if the arbitrator orders one party to pay 
 money or to execute a release to the other, without mention- 
 ing any time within which it is to be done, the award is never- 
 theless sufficiently certain. For if a request to do the act be 
 necessary, it must be done within a convenient time after the 
 request shall have been made ; if no request be necessary, per- 
 formance must be within a reasonable time.^ 
 
 But a different rule is apparently established in the United 
 States, by the following decision of Chief Justice Marshall. An 
 award found that A. was entitled to a certain credit on account 
 of sales of lands to B., provided B. " shall grant or cause to be 
 granted to the said A. a clear unincumbered and satisfactory 
 title " to said lands, but omitted to limit the time within which 
 such title is to be made. The award was held to be void by 
 reason of this omission. For since no time was limited within 
 
 1 9 Mete. (Mass.) 164. 
 
 2 5 Seott, 86. 
 
 3 Bigelow V. Maynard, 4 Cush. 817. 
 
 < Strong V. Strong, 9 Cush. 560, at p. 564. 
 
 * Russell on Arb., 3d ed. p. 275 ; Freeman v. Bernard, 1 Salk. 69. 
 
THE AWARD MUST BE CERTAIN. 425 
 
 which the title was to be made, it was said that the " question 
 whether this credit was to be allowed or disallowed, was left 
 indefinitely open ; " and the court could not supply the omis- 
 sion, since to do so would be to usurp a proper function of the 
 arbitrators.^ 
 
 An award to pay a sum " on the said first day of May," no 
 such day having been previously mentioned, was once held 
 void. But it is not to be imagined that this antique specimen 
 of legal rigidity would be regarded as an authority to be fol- 
 lowed in our day, provided the year were certain .^ 
 
 It has been more reasonably and liberally declared that if 
 the award be without a date, and contain an order that a party 
 do a certain act within a certain number of days after the date 
 of the award, it will not for this deficiency be so uncertain as 
 to be invalid ; but the computation will be made as if the award 
 had borne date on the day of its delivery, for " that was one 
 sense of datus.' ' ^ 
 
 But where an award ordered that a certain sum should be 
 paid, or be secured to be paid, within a week from the date of 
 the award,' the court said that the money must be paid or else 
 security satisfactory to the payee must be given within the 
 time specified. But in fact the award was considered as a good 
 award for the payment of the money and the alternative con- 
 cerning the security, which woiild probably have been bad on 
 at least two different grounds, was regarded as practically a 
 nullity ; since, had the debtor offered the creditor such security 
 as was satisfactory to the latter, it would have been accepted 
 in the natural course of events, without any direction from the 
 arbitrator.* 
 
 Certainty as to Place of Payment. — If a payment of money 
 
 1 Carnochan v. Christie, 11 Wheat. 446. 
 
 2 Markham v. Jennings, RoUe's Abr. Arb., 254, 263 ; Com. Dig. Arb., E. 11. 
 
 3 Russell on Arb., 3d ed. p. 275 ;' Armitt v. Breame, 2 Ld. Raym. 1076 ; 1 
 Salk. 76. 
 
 * Simmons v. Swalne, 1 Taunt. 548. See the statement of this case in the 
 discussion of the subject of awards in the alternative. 
 
426 THE AWARD MUST BE CERTAIN. 
 
 be ordered to be made, there is no necessity for specifying the 
 place where it shall be done.^ 
 
 Certainty as to Persons. — An award must possess the quality 
 of certainty as regards persons as well as in other particulars. 
 By whom any act is to be done, or towards whom it is to move, 
 must be distinctly stated or clearly implied, so that there can 
 be no reasonable doubt concerning it. But it is not necessary 
 actually to specify by name. Thus an award directing money 
 to be paid " to the executors of A. B., deceased," without 
 naming them, has been held sufficiently certain, since it is 
 easy to learn who are the executors.^ And an order that a 
 party pay the costs, without saying to whom, is good, for it 
 will be intended that he is to pay to the opposite party.* 
 
 An order that a nuisance, erected on the defendant's land, 
 should be pulled down, is not uncertain by reason of its failure 
 to say by whom the pulling down shall be done. For since 
 the defendant is the owner of the soil, the intendment will be 
 that he is to do it. " Though any person, or the plaintiff, 
 might remove the nuisance, yet that shall never be intended to 
 be the design of the arbitrators, who intended to make an 
 amicable end of this difference." * 
 
 A third person became a party to an order of reference of a 
 cause and all matters in difference. By the submission the 
 arbitrator was required to settle all matters in difference be- 
 tween the plaintiff and the defendant, and also all matters in 
 difference between the defendant and the third person. In his 
 award the arbitrator failed to distinguish between the amount 
 of damages to be paid by the defendant to the third party, and 
 the amount also to be paid by him to the plaintiff; but simply 
 awarded that the defendant should pay a gross sum to the 
 plaintiff and the third person jointly. The court refused, 
 
 1 Russell on Arb., 3d ed. p. 276; Anon., 1 Keb. 92; 2 Brownl. 309. 
 
 2 Grier v. Grier, 1 Ball. 178. 
 
 8 Baily v. Curling, 20 L. J. Q. B. 235. 
 
 * Armitt v. Breame, 2 Ld. Raym. 1076 ; 1 Salk. 76 ; Com. Dig. Arb., E. 11. 
 
THE AWARD MUST BE CERTAIN. 427 
 
 upon application, to enforce the award summarily. " More 
 particularly as there is still another remedy open to the party." ^ 
 Subsequently, this other remedy having been sought in an 
 action of debt upon the award, the court stopped the counsel 
 for the plaintiff and ordered an entry of judgment for him.^ 
 
 But where claims against a person in his individual right, 
 and also in a representative capacity, are both embraced in a 
 submission, the award must distinguish between the two 
 classes. Otherwise, it is open to " solid objection." ^ 
 
 An award ordered the defendant, or his executors or admin- 
 istrators, to execute a release to the plaintiff. It was held not 
 to be void for uncertainty ; Holt, C. J., saying, that the intro- 
 duction of the executors and administrators into the award 
 was a mere cautionary proceeding, having no effect to vitiate 
 it, and, in fact, having apparently no effect at all, since these 
 personal representatives would have been equally bound by the 
 award though they had not been named.* 
 
 A submission required the arbitrator to state at what price 
 the defendants or A. B. should purchase certain land. Tol- 
 lowing this literally, the arbitrator awarded that the defend- 
 ants or A. B. should purchase it at a price named. The 
 award was held void for iincertainty, by reason of the failure 
 to determine whether the purchaser should be A. or B. 
 " Against whom," said Baron Hullock, " are you to ask for an 
 attachment ? " ^ 
 
 An award that a certain sum is due to the defendant from 
 A., B., and C, " some or one of them," and ordering that it 
 shall be paid by them, " some or one of them " is obviously 
 void for uncertainty.^ 
 
 1 Hawkins v Benton, 2 Dowl. & Low. 465. 
 
 2 Hawkins v. Benton, 15 L. J. Q. B. 139 ; 8 Q. B. 479. 
 » Lyle V. Rodgers, 5 Wiieat. 394 (per Marshall, C. J.). 
 
 * Freeman v. Barnard, 1 Ld. Kaym. 247; Bac. Abr. Arb., E. 4; Dawney v. 
 Vesey, 2 Vent. 249. 
 
 * Lawrence v. Hodgson, 1 Younge & Jer. 16. 
 
 6 Eainforth v. Hamer, 25 L. T. 247 ; Russell on Aib., 3d ed. p. 278. 
 
428 THE AWAUD MUST BE CERTAIN. 
 
 An order that payment be made to A., or to his attorney in 
 the cause, is good. The court say that it is a " very conven- 
 ient form, and saves the necessity of going through the useless 
 ceremony of a demand under a power of attorney." The de- 
 mand having been made by the attorney, " the order will be to 
 pay the money to the plaintiff on that demand. There could 
 be no judgment in the name of the attorney." ^ 
 
 Certainty in the Description of Real Estate. — The cases suffice 
 to establish no definite rule concerning what is or what is not 
 a sufficiently certain description of real estate in an award. 
 On the one hand, a precise description by metes and bounds is 
 evidently not indispensable ; whereas, upon the other hand, 
 some of the cases would seem to require a considerable degree 
 of accuracy. I see no better course to pursue in this matter 
 than to give statements of the several cases which I have 
 found. Perhaps the strictest requisitions are contained in the 
 following : — 
 
 It has been elsewhere said that an award concerning title to 
 real estate, or boundary lines, is sufficiently certain only where 
 it would enable an officer to give possession of the premises 
 and to designate the limits by metes and bounds. If it falls 
 short of this, it is " indecisive of tlie matter in issue," and 
 therefore bad.^ This remark, however, goes much further 
 than was rendered necessary by the facts of the case ; for the 
 award contained no manner of description, beyond the mention 
 of " two pieces of land " and " the said premises," and was 
 obviously not even intelligible.^ 
 
 An award of commissioners, appointed to determine the 
 rights of claimants of land under a patent, ordered that certain 
 of the parties should hold certain of the land " according to 
 their respective possessions, for ever." It was held that the 
 
 1 Hare v. Eleay, 11 C. B. 472. 
 
 2 Aldrioh v. Jessiman, 8 N. H. 516. 
 
 ' See Murray u. Bruner, 6 Serg. & R. 276 ; Schuyler v. Van Der Veer, 2 
 Caines, 235 ; Brown v. Hankerson, 3 Cow. 70. 
 
THE AWARD MUST BE CERTAIN. 429 
 
 award was, in this respect, " certain, to a common intent." 
 Tliere could be no doubt that the commissioners meant " the 
 actual possessions " of these parties. " An actual possession, 
 quasi pedis possessio, is susceptible of clear and definite proof ; 
 and no lands can be conveyed by any possible mode of expres- 
 sion, dispensing with the necessity of parol proof to locate it." 
 This description would be sufficient in a deed ; ^ and " we can- 
 not require more certainty of description in an award than 
 what the law requires in describing land conveyed by deed. 
 Nor are we to intend, for the purpose of avoiding this award, 
 that there is any uncertainty in these possessions. They may, 
 for aught we know, be included within the most definite and 
 permanent enclosures ; and, if necessary to support the award, 
 we ought to intend that to be the case." ^ 
 
 In another portion of the same award the arbitrators deter- 
 mined a location by courses and lines. It was argued that two 
 of these lines were uncertain ; but, apparently, no evidence was 
 introduced to establish this fact. Accordingly the court said : 
 " This we cannot say ; for aught that appears both lines may 
 be as well known and as perfectly certain as any lines ever 
 run. There may be marked lines at every rod's distance, or 
 the most durable monuments. It ought to have appeared 
 affirmatively that there were no such lines, or that they were 
 indefinite and vague. We are bound to notice, too, that the 
 commissioners have viewed the lands and caused a survey to 
 be made of the same, and that they have annexed to their pro- 
 ceedings a map or diagram thereof. This map, being thus 
 referred to, may be taken into consideration as part of the 
 description of the boundaries, and by way of elucidating any 
 thing obscure." In this case the map was said to render the 
 two lines objected to " perfectly and mathematically certain." 
 
 An award was that B. and L. should reconvey " all lands 
 heretofore conveyed or pledged to them by the late G. D. as a 
 
 » Vin. Abr. Grant ; Co. Litt. 4, 6. 
 
 2 Jackson v. Ambler, 14 Johns. 96, at p. 108 {per Spencer, J.). 
 
430 THE AWARD MUST BE CERTAIN. 
 
 collateral security." It appeared from the pleadings, the facts 
 stated, and even the award itself, that G. D. had given convey- 
 ances upon their face absolute which were claimed to have 
 been intended as collateral security. The award was held to be 
 uncertain for not specifically determining what lands had been 
 thus conveyed as security. " If the arbitrators had directed 
 that all lands conveyed or pledged by G. D. should be recon- 
 veyed, there would have been some difficulty in ascertaining 
 what lands had been conveyed or pledged, from the uncertaintjy 
 where deeds might have been recorded, and whether grants 
 might not have been deposited without a conveyance." But at 
 any rate, " the question whether a conveyance was absolute or 
 as a security only, was a material question," which ought to 
 have been decided by the arbitrators, and not left open to be 
 decided by the parties or some other tribunal. The non- 
 decision of it leaves the award incomplete.^ 
 
 A bill in equity set forth that the defendant had executed to 
 the complainant certain deeds, one of which, however, convey- 
 ing a fifty-acre lot, stipulated that the complainant should not 
 come into possession of the land described therein until after 
 the decease of the defendant. A subsequent controversy having 
 been submitted, the arbitrators awarded that the defendant 
 should quitclaim to the complainant " all his right and title to 
 all his lands which he had heretofore deeded or attempted to 
 deed to " the complainant. The deed of the fifty-acre lot was ob- 
 jected to as void ; and it. was said, that therefore the award was 
 uncertain, since it might or might not include this lot. Judge 
 Redfield said that the most which could be urged by way of 
 uncertainty against this award was that " if it were a plea in 
 bar, very likely it might be deficient in certainty on a general 
 demurrer. But it is as certain as if it had referred to the deed 
 of the very land, — or nearly so, xipon the testimony, — for there 
 is no other land attempted to he conveyed to which it could be 
 referred." ^ 
 
 1 Lyle V. Rodgers, 5 Wheat. 394, at pp. 408, 409. 
 
 2 Akely v. Akely, 16 Vt. 450. 
 
THE AWARD MUST BE CERTAIN. 431 
 
 But if there be no description, save to say " two acres of 
 land," or "the house," or " the farm," it is, of course, uncer- 
 tain and void.i 
 
 An award described a brewery near the village of , in 
 
 which the parties had a joint interest. It was held to be suf- 
 ficiently certain in its description, especially in the absence of 
 evidence that there was any other brewery in that neighbor- 
 hood, or that the parties were interested in more than one 
 brewery.^ 
 
 If a survey or map be annexed to the award and referred to 
 in it, it is proper to rely upon it for an explanation and eluci- 
 dation of the written findings. If by this aid the award 
 becomes intelligible, it will be sufficiently certain.^ 
 
 An Award concerning the Price of Land. — Where a submis- 
 sion, solely concerning the price of land, referred to a deed of 
 the land to identify it, and the award referred to or followed 
 the deed, it was held not to be void for uncertainty because it 
 happened that the description in the deed was not definite.* 
 
 Certainty in Aiwards concerning Boundary Lines. — If an award 
 defines a boundary line by monuments, and these monuments 
 do not in fact exist at the time the award is made, it will be 
 void for uncertainty. Also, extrinsic evidence is admissible to 
 establish the fact of the non-existence of the monuments.® 
 
 An award was that a boundary line " shall be the line estab- 
 lished by the survey of 0. R., as exhibited by him to the 
 arbitrators, and known at the hearing, as the ' R. line,' viz. ; " 
 and then followed the description of the line by metes and 
 courses. This was objected to on the ground that it was un- 
 certain without referring to a plan, not annexed to the award 
 
 1 Murray v. Bruner, 6 Serg. & R. 276 ; Schuyler v. Van Der Veer, 2 Gaines, 
 235 ; Brown v. Hankerson, 3 Cow. 70 ; Aldrich v. Jessiman, 8 N. H, 516. 
 
 2 Byers v. Van Deusen, 5 Wend. 268. 
 
 " Darge v. Horicon Mining Company, 20 Wis. 691 ; Jackson u. Ambler, 14 
 Johns. 96. 
 
 < Day V. Hooper, 51 Maine, 178. 
 5 Giddings v. Hadaway, 28 Vt. 342. 
 
432 THE AWARD MUST BE CEETAIN. 
 
 and not being a public plan or survey, and not within the con- 
 trol of the defendant. But the court held that since the line 
 was definitely described and could be run, without the aid of 
 the plan, that the award was sufiiciently certain.^ 
 
 A submission was made in an action of ejectment of a dis- 
 pute about a boundary line. Held, that an award, " in favor 
 of the plaintiff by running a line " described, was sufficient to 
 operate as awarding to the plaintiff all of the disputed land 
 which lay upon his side of this line. Of the portion thus 
 awarded to him " the plaintiff must take possession at his 
 peril. If he takes land not included in the award, the court 
 will do justice on a summary inquiry." ^ 
 
 Certainty in an A-vraxd in an Action of Trespass to Real £!state. 
 — In an action of trespass quare clausum wherein the title to 
 the locus in quo is contested by reason of a dispute concern- 
 ing the boundary line, it is not necessary that the arbitrators 
 should determine the line. If they find that the locus belonged 
 to one or the other party, and award or refrain from awarding 
 damages accordingly, it will be sufficient.^ 
 
 Orders concerning Mortgages. — An order that a mortgagee 
 shall re-assign the mortgaged lands, although it do not state 
 for what period the re-assignment is to be, is good ; for it will 
 be intended to apply to the entire estate and interest covered 
 by the mortgage.* ' 
 
 Awards ordering Security. — An award directing security to 
 be given, but not specifying the nature and amount of the se- 
 curity, and otherwise not fully describing it, is void for uncer- 
 tainty.^ But where the arbitrator ordered a sum named to be 
 paid, or that payment of it should be secured, within a certain 
 
 1 Caldwell v. Dickinson, 13 Gray, 365. 
 
 2 Massey v. Thomas, 6 Binney, 333. 
 
 s BaUard v. Mitchell, 8 Jones' Law, 153. 
 
 * Eosse V. Hodges, 1 Ld. Raym. 233. 
 
 * Jackson v. De Long, 9 Johns. 48 ; Bamet v. Gilson, 3 Serg. & K. 340; Hew- 
 itt V. Hewitt, 1 Q. B. 110 ; Tipping v. Smith, 2 Strange, 1024 ; Thinne v. Righy, 
 Cro. Jac. 814 ; and see Duport v. Wildgoose, 2 Bulstr. 260. 
 
THE AWAED MUST BE CERTAIN. 433 
 
 time, the court held that the party bidden to pay must either 
 pay or give such security as should be satisfactory to the 
 creditor.^ 
 
 An order that the defendant enter into a bond to the plain- 
 tiff, conditioned that the plaintiff and his wife should enjoy 
 certain lands, neglecting to specify the amount of the bond, is 
 Void for uncertainty. The amount can be ascertained only by 
 one or other of the parties, and the arbitrators have no right 
 to delegate such an authoi'ity, but must themselves make a 
 certain determination.^ 
 
 Award concerning a Cause. — An award concerning a cause 
 that it " shall be no further prosecuted " is both certain and 
 final. It is a good bar to a subsequent suit for the same cause 
 of action.^ 
 
 statute of Limitations. — A statute of limitations, making 
 five years a bar, was set up in defence to an action brought 
 on the 20th day of February, 1863. The referee found that 
 certain payments in dispute had been made " at sundry 
 .times between the 23d day of August, 1857, and May, 1858." 
 It was held that here was a fatal uncertainty, since it was " im- 
 possible to tell from this whether these payments had been 
 made more than five . years before this suit was brought, or 
 within that period." * 
 
 Statement of Results. — The fact that arbitrators have stated 
 only the results at which they have arrived, without giving the 
 grounds or processes of reasoning by which they arrived at 
 these results, does not render the award open to the objection 
 of uncertainty.^ 
 
 Duty of Party to correct Uncertainty. — Where the findings 
 6f fact by a referee are imperfect, it is the duty of the dissatis- 
 
 1 Simmons v. Swaine, 1 Taunt. 548; fully stated ante, p. 425. 
 
 2 Samon's Case, 5 Rep. 77 b. 
 
 ^ Purdy V. Dslavan, 1 Caines, 804. In this case Kent, J., discusses tlie Eng- 
 lish cases at length. 
 
 * Doyle V. Eeilly, 18 Iowa, 108. 
 6 Lamphire v. Cowan, 39 Vt. 420. 
 
 28 
 
434 THE AWARD MUST BE CERTAIN. 
 
 fied party to apply for more specific findings, and not to seek to 
 avail himself of the defects. If he act contrary to this duty, 
 the court will presume that the facts necessary to sustain the 
 judgment were properly found.^ 
 
 Award ordering Payment from Assets. — An award Ordering 
 an executor to make a certain payment out of the assets in his 
 hands is sufficiently certain, though it does not find whether 
 or not there are any assets in his hands.^ 
 
 How Uncertainty may be availed of. — Mere uncertainty in 
 an award forms no proper ground for the interference of a 
 court of equity to set it aside. If it is so uncertain that it 
 cannot be executed or enforced at law, it is void, and no resort 
 to a court of equity is necessary either for prevention or relief.^ 
 Prom this it follows that in a suit at law upon an award, the 
 objection of uncertainty can be set up, and will constitute a 
 valid and proper defence. I have nowhere found this fact 
 asserted in precise terms, but this is a common method of 
 availing of the alleged defect, and it is never objected to as an 
 incorrect method. Its propriety must therefore be regarded 
 as established. Though it must be acknowledged that in- 
 stances might arise when it would be a hardship to refuse to 
 a party the privilege of bringing a bill in equity to avoid an 
 award for uncertainty ; as, for example, an award void for un- 
 certainty might create a cloud upon a title to real estate, which 
 could never be removed if the opposing party should not see fit 
 to sue, and a bill in equity would not lie. 
 
 If an award is clearly void, on its face, for uncertainty, the 
 defendant in a suit upon it may demur.* 
 
 But if a state of facts, on which the award would be good, 
 can be supposed, semble that it would be the duty of the court, 
 upon demurrer, to presume the existence of such facts. It 
 
 1 Brainerd v. Dunning, 30 N. T. 211. 
 
 2 Russell on Arb., 3d ed. p. 276 ; Love v. Honeybourne, 4 Dowl, & Ry. 814. 
 ' Perkins v. Giles, 53 Barb. 342. 
 
 < Hewitt V. Furman, 16 Serg. & R. 136. 
 
THE AWARD MUST BE CERTAIN. 435 
 
 would eveu be imperative to do so after a jury had given a 
 verdict in favor of the award. ^ 
 
 If the award be returnable into court, the fact that it is 
 not certain or not iinal may be made the basis of a motion to 
 set it aside.^ 
 
 A party who has not excepted to the findings of a referee 
 cannot object to the report, nor have it reviewed on appeal. It 
 must stand as a correct and final finding of the facts.^ And if 
 exceptions are taken and filed they must be incorporated in 
 the case ; otherwise the court of law will assume that none 
 were in fact taken.* 
 
 Explanation of Uncertainty. — Arbitrators or referees are not 
 competent witnesses for the purpose of explaining any thing 
 vague or uncertain in the award or report.^ 
 
 How far extrinsic evidence is admissible to prove that what 
 might be uncertain is not so in fact, is a matter which has 
 been already discussed.^ 
 
 1 Hewitt V. Furman, 16 Serg. '&, R. 135. 
 
 2 Russell on Arb., 3d ed. pp. 668-661. 
 
 3 Sutherland v. Rose, 47 Barb. 144, at p. 149. 
 < Ibid., at p. 150. 
 
 5 Kingston v. Kincaid, 1 Wash. C. C. 448 ; Aldrich v. Jeesiman, 8 N. H 516 ; 
 Ward V. Gould, 5 Pick. 291. 
 
 6 Ante, in this chapter, in the paragraph entitled Evidence concerning the 
 Existence of a Dispute. 
 
CHAPTER XVI. 
 
 RULES OF CONSTRUCTION. 
 
 Ancient prejudice against arbitration. 
 
 Modern rule is to construe awards liberally. 
 
 The award is to be construed by the aid of the submission, &c. 
 
 Construing orders in excess of authority as merely cautionary. 
 
 An award may be good by manifest implication. 
 
 An award of costs may be good by implication. 
 
 An award in too general language may be restricted. 
 
 The degree of proof required to prevent such restriction. 
 
 Construction of awards concerning boundary lines. 
 
 Presumption in awards concerning boundary lines. 
 
 Explanation of awards concerning boundary lines. 
 
 Discrepancy between the submission and award concerning a boundary line. 
 
 Requisition that acts be done interchangeably or contemporaneously. 
 
 Every presumption and intendment will be in favor of the validity of the award. 
 
 The presumption is that the arbitrators have followed the submission. 
 
 Limit to the rule of favorable presumption. 
 
 Construction of a reservation of a question for the court. 
 
 Effect of inconsistency in an award. 
 
 Favorable construction of apparently inconsistent findings. 
 
 Explanations by the arbitrator. 
 
 Ancient Prejudice agcunst Arbitration. — In old times a con- 
 siderable degree of prejudice was often exhibited against the 
 system of adjusting disputes by voluntary arbitration in pais. 
 The established tribunals manifested jealousy of so irregular a 
 substitute as was presented by a board of arbitrators, liable 
 often to be composed either in whole or in part of laymen. It 
 was not to be presumed that justice could be so wisely, as 
 certainly it could not be so learnedly, administered by the un- 
 professional tribunal. Neither could the arbitrator issue exe- 
 cutions and send sheriffs armed with all the powers of the law 
 to enforce performance of his decree. For the sake of the dis- 
 putants themselves, it was said that they should be preserved, 
 even in their own despite, from the probable erroneousness 
 and certain non-enforceability of the rvsticum judicium. 
 
RULES OF CONSTRUCTION. 437 
 
 Modern Rule is to construe AT^rards liberally. — It is well 
 known, however, that this old-time hostility has long since dis- 
 appeared. Courts are rather glad than otherwise, in the pres- 
 ent busy age, to be relieved of any portion of those burdens of 
 litigation which, without such assistance, they would be quite 
 unable to bear. A sounder doctrine has prevailed for a cen- 
 tury past. Because the arbitrators are judges chosen by the 
 parties themselves, who, in entering into the agreement, are 
 acting rationally in their own business and without compulsion, 
 it has long since been the rule of the courts that the award 
 is to be " liberally construed." ^ Courts have now, it is said, 
 departed from the ancient strictness, " which was a reflection 
 on the administration of justice." ^ This change is one which 
 " we have no reason to regret, and awards ought to be viewed 
 indulgently." ^ " For the benefit of society critical niceties are 
 discouraged." * No sound reasons seem to exist " against so 
 benign a construction of awards as will enable us to enforce 
 them, wherever consistent with any judicial principles," the 
 purpose being " to give eflect and operation to the intention of 
 the arbitrators." ^ Technical precision and certainty are never 
 demanded. It is sufiicient if the decision be so expressed that 
 " plain men acquainted with the subject-matter can understand 
 it."^ Such is the language of the tribunals of the United 
 States. The old-fashioned rigidity had been pretty thoroughly 
 dispensed with before these courts were established, and the 
 principal traces of its existence are to be found in such state- 
 ments as these, which seem to be necessary at all only for the 
 purpose of fehowing that it is quite defunct. 
 
 1 James v. Thurston, 1 CUff. C. C. 367 ; Smith v. Smith, 4 Rand. 95 ; Purdy 
 V. Delayan, 1 Caines, 304 (per Kent, J.) ; Jackson v. Ambler, 14 Johns. 96 ; Walk- 
 er V. Merrill, 13 Maine, 173 ; Spear v. Hooper, 22 Pick. 144 (per Chief Justice 
 Shaw) ; Archer v. Williamson, 2 Har. & Gill, 62 ; Rixford v. Nye, 20 Vt. 132. 
 
 2 Schuyler v. Van Der Veer, 2 Caines, 235. 
 ^ Jackson v. Ambler, 14 Johns. 96. 
 
 * Gonsales v. Deavens, 2 Yeates, 539 (decided in 1800). 
 5 Archer v. Williamson, 2 Har. & GiU, 62. So also in SkiUings v. Goolidge, 
 14 Mass. 43. 
 
 S Butler v. Mayor, &c., of New York, 1 Hill, 48# 
 
438 RIFLES OF CONSTRUCTION. 
 
 The modern doctrine in England is to the same purport. 
 " An award," says Russell, " is to receive a liberal and sensi- 
 ble construction, and as far as possible to be governed by the 
 intent of the arbitrator." ^ And again he says that the " courts 
 of law will always construe awards, and hear motions respect- 
 ing them, with a desire to sustain the judgment of the tri- 
 bunal which the parties have selected, and 'which in so many 
 instances acts beneficially for them." ^ 
 
 But the judges in laying down these rules of liberal inter- 
 pretation frequently say that they must not be stretched too 
 far ; that an award must be certain and final. Speaking of 
 such expressions. Judge Coleridge remarks that they appear 
 " to be often used with too much strength. Awards are to be 
 construed sensibly, as all other instruments." ^ 
 
 Thus, if the arbitrator directs an act to be done, but names 
 no time within which it shall be done, a reasonable time for its 
 performance will be intended.- 
 
 If it is ordered that a division of personalty be made among 
 " lieirs-at-law," the phrase may be taken to mean " all the tes- 
 tator's children living, and the child or children of any who 
 died in his lifetime." ^ 
 
 The A-ward is to be construed by the Aid of the Submission, &o. 
 — " In giving a construction to an award, the court is fully 
 warranted in considering the surrounding circumstances, and 
 in reading it in the light they afford. And of these circum- 
 stances are the articles of submission," and likewise a bond, 
 executed pending the arbitration, whereby one of the parties 
 bound himself to hold certain of the property in dispute, and 
 either to give it up, if so ordered by the award, or, in lieu of 
 surrendering it, to pay such sum for it as should be ordered.^ 
 
 1 Russell on Arb., 3d ed. p. 495. 
 
 2 Ibid., p. 681. 
 
 3 Stonehewer v. Farrar, 9 Jur. 203. 
 * Freeman v. Bernard, 1 Salk. 69. 
 
 5 Smith V. Smith, 4 Rand. 95. 
 ' Kanftse v. Kanouse, 36 111. 439. 
 
RULES or CONSTRUCTION. 439 
 
 Construing Orders in Excess of Authority as merely cautionary. 
 — Where the arbitrator exceeds the scope of his authority in 
 directing arrangements to be made, which he has no power to 
 order, this portion of his award may sometimes be construed 
 as being not strictly imperative, but ratlier explanatory, and 
 a statement made to save possible misunderstanding. Thus, a 
 submission was made of a specific demand for money, as due 
 from S. to C, and of all other demands between the parties. 
 The referees reported that S. should pay C. a certain sum ; 
 and added that, whereas it was admitted that C. had in his 
 possession property of S. as security for advances, therefore it 
 was awarded that this property should be sold as soon as might 
 be, the proceeds to be placed to the credit of S., and any bal- 
 ance, after deducting the sum already found to be due from S. 
 to C, to be paid to S. on demand. Objection was made to the 
 report on account of want of certainty and finality in these lat- 
 ter directions. But the court said it was not necessary to con- 
 sider these provisions at all. The referees had no authority 
 to make any award, or to give any orders concerning the prop- 
 erty. " It is proper, therefore, to consider every thing stated 
 in the report touching this subject, as cautionary on the part 
 of the referees, to prevent the inference, which might have 
 been drawn from the submission of all demands, that the prop- 
 erty in the hands of C. had become his." The proviso was to 
 be regarded as for the benefit of S., to ensure against the re- 
 port standing in the way of his recovering his property after 
 he had paid his debt. It was solely to prevent disputes. It 
 was not to be construed as an attempt to settle the title in the 
 property, which must be established by other means.^ 
 
 An Award may be good by Manifest Implication. — The rule 
 is reasonable and well established that if, by manifest implica- 
 tion, that appear which, if positively expressed, would render 
 the award good, that is sufficient to support it. 
 
 A submission was entered into under a contract which stip- 
 
 1 Skillings v. Coolidge, 14 Mass. 48. 
 
440 RULES OF CONSTRUCTION. 
 
 ulated for payments by. instalments. It was " evident, that 
 the award embraced the entire contract, and directed the pay- 
 ments to be made by instalments corresponding with the con- 
 tract." But it was objected that the submission authorized 
 the arbitrators to award only as to the first instalment, and 
 since the first payment might, for aught that appeared on the 
 award, be ordered in respect of a later instalment, the award 
 was not divisible, and was void. But the court considered 
 that this was not a reasonable construction or intendment of 
 the award, and refused to vacate it on this ground.^ 
 
 C. and L., copartners, submitted all matters in difference. 
 The award found that C. owed L. 1808.49, " which sum in- 
 cludes the settlement for the T. oxen, and C. is relieved from 
 liability on account of the same, as between the parties." It 
 was objected that the award was not mutual, because it did not 
 in express terms require L. to relieve C. from the partnership 
 debt to T. But the court considered that, upon a fair con- 
 struction of the award, this requisition would be implied.^ 
 
 A submission was made to arbitrators to determine whether 
 a pew "legally belongs to the estate of M. D., to those who 
 claim under her, or to any of them, or to H.," and stipulated 
 that if the award should be that the pew did belong to the 
 estate of M. D. or to persons inheriting from her, tlKen H. 
 should execute a conveyance of his right, title, and interest 
 therein to S. The arbitrators awarded that the pew " belonged 
 to and was the property of M. D. at the time of her decease," 
 and " therefore " directed that H. should make the stipulated 
 conveyance to S. The award was objected to as not following 
 the submission nor deciding the case submitted. But the court 
 upheld it ; for, " by necessary implication " from the order 
 that H. should convey, the arbitrators found the better title to 
 be in the heirs of M. D. Further, the finding that the title 
 was in M. D. at the time of her decease was, " in effect and 
 
 1 Rixford v. Nye, 20 Vt. 132. 
 
 * Lamphire v. Cowan, 39 Vt. 420. 
 
RULES OF CONSTRUCTION. 441 
 
 by necessary implication, taken in connection with the subject- 
 matter of the controversy and tlae evidence," a finding that the 
 title remained in her heirs at the time of the award.^ 
 
 An Award of Costs may be good by Implication. — Where the 
 submission or reference is of a pending cause, it may be laid 
 down, as a general rule, that an award of costs, without more, 
 will generally be construed as a finding, by implication, of the 
 substantial issues in favor of the party to whom costs are 
 awarded. Thus it has been said in Massachusetts that if the 
 referees to whom is referred a pending cause report only that 
 a party shall recover his costs, this is construed as a find- 
 ing in favor of that party, upon the merits and the matter in 
 issue.2 
 
 If a suit in which damages are claimed, is submitted, an 
 award that one party shall " pay all the costs of the suit pend- 
 ing in the court from which the reference had its origin," is, 
 " by necessary implication, a decision that he should recover 
 no damages for his alleged cause of action." ^ 
 
 An Award in too General Language may be restricted. — It has 
 " been settled that an award, though expressed in such gen- 
 eral terms as to include all disputes, may, in its operation, be 
 restricted to the particular disputes submitted." (See post, 
 p. 465 et seq.) And unless it be expressly shown that the 
 arbitrators have investigated matters not included in the sub- 
 mission, " though their language, from a want of technical 
 precision, may be too general, the presumption is that they 
 performed nothing beyond their duty." * In the cited case, a 
 submission was entered into concerning the divisional lines of 
 certain real estate and trespasses alleged to have been com- 
 mitted thereon. The award passed specifically upon these mat- 
 ters, and contained also the general direction that " all actions, 
 
 1 Spear v. Hooper, 22 Pick. Hi. 
 
 2 Stickles V. Arnold, 1 Gray, 418 ; Buckland v. Conway, 16 Mass. 396. 
 8 Sears v. Vinqent, 8 Allen, 507. 
 
 * Joy V. Simpson, 2 N. H. 179 ; and see Ward v. Hall, 9 Dowl. 610, stated 
 post, in the chapter on the Divisibility of the Award. 
 
442 RULES OF CONSTRUCTION. 
 
 controversies, &o., between the parties, touching the premises," 
 should cease. Upon the strength of the foregoing principles 
 the force of this general language was so far curtailed that the 
 award was construed to be within the scope of the submission. 
 
 Even so early as in Rolle's Reports, we find a similar adju- 
 dication. Certain suits as to titles were submitted, and the 
 award directed all suits to cease. It was held that this order 
 in the award should be construed only of and concerning the 
 suits included in the submission.^ 
 
 P. and A., having claims against each other, reduced them 
 to writing and submitted them to arbitrators. The award was 
 that A. was indebted to P. in the sum of f 33.50, " to balance 
 claims, demands, and accounts between them, and that P. 
 recover 133.50 balance of accounts." It was objected that 
 this award appeared to give a sum to balance all claims, &c., 
 between the parties, whereas only certain specific claims had 
 been submitted. But the court said they must " take it for 
 granted " that the sum awarded was to balance only such 
 claims, &c., as had been submitted, at least until it was affirm- 
 atively shown that there were other claims between the parties 
 which had not been reduced to writing and submitted.^ It 
 will be observed that the proof was here required to extend, not 
 to the fact that other claims had been in fact considered by the 
 arbitrators, but only to the existence of such claims. But the 
 language of the court may have been lax, since the precise 
 point of whether or not the mere existence of claims would 
 suffice to overturn the award was not in issue. 
 
 The Degree of Proof required to prevent such Restriction. — 
 " The court will not intend that claims not embraced by the 
 submission were in fact considered and decided by the arbi- 
 trators merely because the terms of the award are broad 
 enough to cover such claims." The fact may, however, be 
 shown by the party seeking to impeach the award. The sub- 
 
 1 Ingraham v. Webb, 1 RoUe's Rep. 362 ; Webb v, Ingram, Cro. Jac. 663. 
 
 2 Parsons v. Aldrich, 6 N. H. 264. 
 
BULBS OF CONSTRUCTION. 443 
 
 mission related to partnership controversies, debts, and ac- 
 counts. It was objected that certain joint and several notes 
 had been improperly taken into consideration and awarded 
 upon. The Court said that it was impossible, from the mere 
 form of these notes, to say what was the relationship between 
 the parties in respect of them. They might have been notes of 
 the firm. And, further, they refused to " presume against the 
 award of the arbitrators that matters which have been laid 
 before them, and have been considered and determined by them 
 as partnership claims, are not matters included in the sub- 
 mission, merely because they are such that they may not have 
 been properly included in the award. The party who assails 
 an award must clearly go further than merely to show that 
 the referees may have erred." ^ 
 
 Construction of Aiwards concerning Boundary Lines. — Com- 
 missioners were appointed to set off a widow's dower in wood- 
 lands. Among the boundaries given was the following : " to 
 an oak-tree marked, thence, on the heirs of J. K., to another 
 oak-tree marked." It was contended upon the one hand that 
 the line between these two marked oak-trees must be straight. 
 On the other hand it was contended that the line should be 
 curved. Parol evidence was offered in the lower court to sup- 
 port the latter theory, but was rejected. This ruling was 
 held, upon appeal, to be " in all respects correct." For," when 
 a line is given in any deed or other instrument of conveyance 
 to be run from one landmark to another, it is a necessary in- 
 ference that a straight line is to be run from one of the termini 
 to the other, and without regard to the correspondence of 
 either course or distance, unless a different line is described 
 in the deed or instrument of conveyance." The parol evidence 
 which was offered in reference to old monuments was irrele- 
 vant, for the reason that these were not referred to in the 
 report. There was no latent ambiguity in the return ; it was 
 to " be ascertained by its language, and it would be a danger- 
 
 i Richardson v. Huggins, 23 N. H. 106. 
 
444 RULES OF CONSTEUCTION. 
 
 ous precedent, and in violation of a well-known rule of evi- 
 dence, to allow it to be varied, explained, or controlled by 
 parol evidence." ^ This case is explained in the later case of 
 Clark V. Burt,^ as only deciding " that where a boundary line 
 is given in a deed to be run from one given monument to 
 another, it must be deemed to be a straight line, unless a dif- 
 ferent one is described in the deed [i. e., report]. It is true 
 that, in the case cited, the description was ' by the line of the 
 heirs of A. B.' But it is quite apparent that in fact, in that 
 case, there was no such existing line as that stated in the deed 
 [report]. It was only an imaginary line, passing over the 
 land of the heirs of A. B., and, of course, could not be adopted 
 as a controlling boundary, or justify a departure from a 
 straight line between the two points given." 
 
 In this last-cited case the description in the award was " to 
 a stake and stone (described) ; thence, westerly, by land of 
 said C. to a spruce-tree in the swamp." The localities of the 
 stake and spruce-tree were not in dispute. In the lower court 
 the award was held void for uncertainty in the description of 
 this line, and this decision was sustained upon appeal. For it 
 was said that if only termini were named, the line must be a 
 straight one between them. But if monuments or other ex- 
 traneous matters were introduced into the description as part 
 of the boundary, and the line was required to conform to these, 
 then the rule of the straight line must yield ; and the phrase 
 " bounded by land of A. B.," or the like, was the introduction 
 of a controlling monument, or the equivalent thereof.^ 
 
 PTesumption in Avrards concerning Boundary Lines. — It is said 
 that where the arbitrators are to establish the boundary by ref- 
 erence to or in accordance with some original line, it will be pre- 
 sumed that they have followed this instruction in their finding.^ 
 
 1 Allen V. Kingsbury, 16 Pick. 235. 
 
 2 4 Cush. 396. 
 
 ' See a further statement of this case, post, in the chapter on Testimony of 
 the Arbitrator. 
 
 4 Eohertson v. M'Niel, 12 Wend. 578. 
 
BULES OF CONSTRUCTION. 445 
 
 Explanation of A'wards concerning Boundary Lines. — An award 
 concerning boundary lines may be explained by evidence show- 
 ing what and where are the metes and lines mentioned in the 
 award.i 
 
 Discrepancy bet^iveen the Submission and A^nrard concerning a 
 Boundary Line. — A submission to arbitrators to run a boundary 
 line, stipulated that a certain cedar post on the river's bank 
 should constitute the starting-point. The award, in describing 
 the line, began at a stake in the margin of the river. But the 
 court held that it did not appear that the arbitrators had dis- 
 regarded the cedar post, and taken an unauthorized point of 
 departure. " There is no averment that the stake is not at the 
 identical place where the cedar post stood when the bond was 
 executed. We cannot intend that the arbitrators commenced 
 running the line at a different place from the one designated. 
 If they did, it was matter of defence, and must be shown by the 
 defendant." ^ 
 
 Requisition that Acts be done interchangeably or contempora- 
 neously. — Where an award concerning real estate directs each 
 party to execute a release to the other, it will, unless otherwise 
 clearly to be inferred from the language of the award, be pre- 
 sumed that the acts were intended to be concurrent and depend- 
 ent. Neither party will have a right to demand performance 
 by the other, without performance or simultaneous tender of 
 performance on his own part. The mere order in which the 
 acts are stated in the award will be immaterial.^ 
 
 An award directed A. and B. to execute " forthwith " cer- 
 tain conveyances to C, and ordered 0. " forthwith " to execute 
 indemnities and releases to A. and B. This was construed to 
 require C. to give the indemnities and releases immediately 
 upon receiving the conveyances from A. and B., and was there- 
 
 1 Robertson u. M'Niel, 12 Wend. 578 ; but see Clark v. Burt, in the chapter 
 on Testimony of the Arbitrator. 
 
 2 Bacon v. Wilbur, 1 Cow. 117. 
 
 ' M'Neil V. Magee, 5 Mason, 244 (Story, J.). 
 
446 EULES OF CONSTRUCTION. 
 
 fore held to be good. The indemnities were to be executed so 
 soon as the parties to whom tliey were to run, should put 
 themselves in a condition to ask for them, that is to say, so 
 soon as the contemplated conveyances should be made.^ 
 
 Where one party agreed to release to the other certain land, 
 and the purchaser agreed to pay " therefor " such sum as the 
 arbitrators should determine to be the value of the same, 
 held, that the seller was not bound to tender a deed uncondi- 
 tionally and without payment, but only to be ready to give a 
 deed upon payment. The delivery of the deed and the deliv- 
 ery of the price determined upon by the arbitrators were to 
 be concurrent acts.^ 
 
 Every Presumption and Intendment •will be in Favor of the Valid- 
 ity of the Award. — Every reasonable presumption and intend- 
 ment will always be entertained in favor of the validity of the 
 award, as in the case of a judgment.^ The party seeking to im- 
 peach it will therefore have upon himself the burden of proof, 
 in order to destroy these presumptions.* 
 
 Thus where a suit for trespass to real estate was submitted, 
 the title being in dispute, and the award found that the plaiu- 
 tifiF had the better title, and the defendant had " no title which 
 would justify his acts," the court presumed, nothing to the 
 contrary appearing, that the defendant had not sought to jus- 
 tify on the strength of the title of any other person.^ 
 
 A submission was entered into between the parties of " all 
 demands between them," under a. statute declaring that only 
 
 1 Boyes v. Bluok, 13 C. B. 652. 
 
 2 Inhabitants of Portland v. Brown, 43 Maine, 223. 
 
 3 Strong 1/. Strong, 9 Cush. 560 ; Tallman v. TaUman, 5 id. 325 ; Hayes v. 
 ForskoU, 31 Maine, 112 ; Lampliire v. Cowan, 39 Vt. 420 ; Kendrick v. Tarbell, 
 26 id. 416 ; Gonsales v. Deavens, 2 Yeates, 539 ; Parsons v. Aldrich, 6 N. H. 
 264 ; Kske v. South Wilbraham Mfg. Co., 7 Allen, 476 ; Jackson v. Ambler, 14 
 Johns. 96 ; Rixford v. Nye, 20 Vt. 182 ; Henrickson v. Eeiubach, 33 111. 299 
 (in which case the principle was carried to a great length ; see full statement in 
 the chapter on Certainty) ; Case v. Ferris, 2 Hill, 75. See Robertson v. M'Niel, 
 12 Wend. 578, stated ante, pp. 444, 445. 
 
 * Ibid. 
 
 s Thoreau v. PalUes, 5 Allen, 354. 
 
RULES OF CONSTRUCTION. 447 
 
 such demands could be submitted " as might be the subject of a 
 personal action at law, or of a suit in equity." The awa^d was 
 simply that the plaintiff should recover a certain sum, and that 
 " the same should be in full of all matters referred to us." 
 The presumption being in favor of the award, it was upheld as 
 good, against the objection that it did not appear that all the 
 matters included in the decision " were the subject of personal 
 actions at law or suits in equity." ^ 
 
 An award ordered J.D. to assign to S. G. certain bonds, 
 given by M. G. to J. V. The assignment was to be to the use 
 of said S. G., and made at his " own proper risk and costs." 
 The award was objected to because it did not appear that J. 
 D. had any title or interest in or to these bonds, to which he 
 was, nominally at least, no party. But the court, refusing to 
 presume any thing against the award, said that it was sufficient, 
 if they could not actually and affirmatively collect from the 
 award itself that J. D. had in fact no claim whatever to the 
 bonds which he was directed to assign. This did not appear 
 upon the face of the instrument, and apparently no proof was 
 even offered to show it, and the award was sustained.^ 
 
 The Presumption is that the Arbitrators have followed the Sub- 
 mission. — The general presumption always is that referees 
 have decided all which they ought to have decided, and that 
 they have not considered nor included in their award any thing 
 which it was not within the scope of their authority and duty 
 to decide.^ 
 
 So also it has been declared in Massachusetts that it will 
 always be presumed in the first instance, unless the award 
 itself contradicts the presumption, that the arbitrators have 
 decided all which it was their duty to decide. A party seek- 
 ing to impeach the award on the ground that jthey have not 
 
 1 Fiske V. South Wilbraham Manufacturing Company, 7 Allen, 476. 
 
 2 Gonsales v. Deavens, 2 Yeates, 539. 
 
 ' Chapin v. Boody, 25 N. H. 285 ; Joy " Simpson, 2 id. 179 ; Parsons v. 
 Aldrich, 6 id. 264. 
 
448 RULES OF CONSTRUCTION. 
 
 done SO, will be obliged affirmatively to prove the omission oi- 
 neglect.^ 
 
 Idmit to the Rule of Favorable Presumption. — There is, of 
 course, a limit to the extent to which favorable presumptions 
 can be indulged. An award must be construed reasonably, 
 and not in contravention of its obvious meaning ; nor should 
 that meaning be forced. An award specified several debts 
 as being due by the parties jointly, and also found that " all 
 outstanding debts for cattle, if any such, are joint." " It was 
 held that it was impossible to construe the specific debts named 
 as including all the debts due for cattle ; also that it was impos- 
 sible to assume that there were no outstanding debts due for 
 cattle, simply because none had been specifically found. The 
 court, being unable to go to this length, held the award void.^ 
 
 Construction of a Reservation of a Question for the Court. — 
 If referees in their report reserve a question to be determined 
 by the court, the extent of the reservation will be narrowly 
 and precisely construed. Thus where referees awarded that, 
 if the court should be of opinion that a certain act was a fraud 
 which would avoid a sale, they found in favor of one party, 
 otherwise they found in favor of the other party ; the court 
 held that the matter referred to them was only whether or not 
 the act was per se fraudulent, i. e., whether such an act was 
 fraud as matter of law ; that if it was only evidence of fraud, 
 no matter how strong, they could not declare it to be fraudu- 
 lent.3 
 
 Effect of Inconsistency in an Award. — An award must be 
 consistent. If it be not so, it is not, strictly speaking, possible. 
 Tet the existence of contradiction or repugnancy between dif- 
 ferent parts of the instrument will not always avoid it. The 
 wish of the courts, in modern times, is to construe the award so 
 that it can stand as a determination of the matter in dispute ; 
 
 i Strong V. Strong, 9 Cush. 560 ; Tallman v. Tallman, 5 id. 325. 
 2 Pattou •,. Baird, 7 Ired. Eq. 255. 
 ' Gould V. Ward, 4 Pick. 104. 
 
RULES OF CONSTRUCTION. 449 
 
 and they will seek this consummation by any means reasonably 
 open to them in the case.^ , 
 
 Thus where several actions had been referred, the award was 
 that the actions should cease ; and also that in one of them, 
 an ejectment suit, judgment should be entered. The court 
 avoided the necessity of construing the award to be inconsist- 
 ent by reading the two directions together, and holding the 
 intention of the award to be that the suit in ejectment was to 
 cease unless the defendant gave up the premises by a certain 
 day ; but that in event of such failure upon his part, judgment 
 should be entered up and execution taken out.^ 
 
 The old rule was, that if there was a contradiction or incon- 
 sistency between two parts so that both could not stand, the 
 , former should stand and the latter be rejected. But if the lat- 
 ter was intended only as an explanation of the former, then 
 both should be sustained.^ Though how things contradic- 
 tory can be regarded as explanatory of each other, it is some- 
 what difficult to conceive ; and still more difficult to see how 
 two inconsistent orders could each be enforced. And accord- 
 ingly the English rule now is, as stated by Mr. Eussell, that 
 " where the award is manifestly inconsistent and repugnant, 
 the court will set it aside." But the rule that if the award is 
 capable of being sustained, the first part shall prevail and the 
 latter be rejected, has been also asserted in New York.* 
 
 A suit was based on an alleged fraudulent representation by 
 the defendant concerning A.'s circumstances. In his award, 
 the arbitrator found that the defendant had not given a fair 
 representation, and had omitted to state material facts ; also 
 that the defendant was not guilty of fraud in so misrepresent- 
 ing and neglecting to state all that he should have stated. 
 
 1 Russell on Arb., p. 289 ; In re Templeman i/. Reed, 9 Dowl. 962 ; Stone- 
 hewer V. Farrar, 9 Jur. 203. 
 
 2 Jones V. Powell, 6 Dowl. 483. 
 
 3 Perry v. Berry, 3 Bulstr. 62 ; and see Sherry v. Richardson, Pop. 15. 
 
 * Cox V. Jagger, 2 Cow. 638 ; stated at length, post, in the chapter on Divisi- 
 bility of the Award. 
 
 29 
 
450 EULES OF CONSTRUCTION. 
 
 Yet the arbitrator said that he felt bound by the adjudications 
 in the reports to find that knowledge of the falsehood was fraud 
 and deceit. Wherefore he awarded in favor of the plaintiff. 
 The court held that his view of the law was wrong, and 
 declared the award void. Parke, J., said: "The conclusion 
 to which the arbitrator has come in this case is quite absurd. 
 He says, ' I think he is innocent,' and then awards against 
 him."i 
 
 Favorable Construction of apparently Inconsistent Findings. — 
 Russell says : " The necessity of finding on each issue has 
 sometimes exposed the arbitrator to a charge of making an 
 inconsistent award, but the two following cases will free him 
 from any ungrounded apprehension on that score." 
 
 The cases referred to are these : Suit was brought on an 
 agreement. The defendant pleaded : 1. Denial of the agree- 
 ment ; 2. Denial of the breach ; 3. He admitted the agreement, 
 but alleged its rescission before breach ; 4. That it was varied 
 by consent. Other pleas were also set up by him. The award 
 was of a general verdict to be entered for the defendant. The 
 court regarded this as equivalent to finding for the defendant 
 on each issue, and held that such a finding in his favor, though 
 upon inconsistent pleas, did not render the award inconsistent, 
 since it was possible that had the cause been tried at Nisi 
 Prius the circumstances might have warranted such a finding.^ 
 
 In debt, where the defendant's pleas are nunquam indebitatus 
 and payment, the award may consistently be for the defendant 
 upon both, since, if at a trial of the case the plaintiff should fail 
 to prove his case and the defendant should prove payment, the 
 verdict would be entered for the defendant on both issues.^ 
 
 In suit in assumpsit on a retainer to project certain works, 
 and to examine certain bills with care, the defendant pleaded : 
 1. Nbn assumpsit; 2. No retainer; 3. Use of due care in pro- 
 
 1 Ames V. Milward, 8 Taunt. 637. 
 
 2 Cooper V. Langdon, 9 Mee. & W. 60, and 1 Dowl. n. b. 392, 
 
 3 Maloney v. Stockley, 4 Man. & Gr. 647. 
 
RULES OF CONSTRUCTION. 451 
 
 jecting ; 4. Use of due care in examining the bills. The award 
 found for the defendant on the first, second, and fourth issues, 
 and for the plaintiff on the third. This was held good and not 
 repugnant, for that the finding on the third and fourth issues 
 must be regarded as hypothetical, and made only in order to 
 determine the costs upon them.^ 
 
 Plaintiff declared in case, alleging that h? was entitled to 
 the reversion in a close, and that one H. had wrongfully and 
 injuriously erected encumbrances thereon, and that the defend- 
 ant had wrongfully and injuriously continued said encum- 
 brances. Pleas : 1. Not guilty ; 2. That H. did not erect the 
 encumbrances on the close. The award ordered a verdict for 
 the plaintiff on the first plea, and for the defendant on the sec- 
 ond. It was held not inconsistent, since the first plea put in 
 issue only the continuance of the encumbrance by the defend- 
 ant, and not its erection by H.^ 
 
 Explanations by the Arbitrator.' — The Subject of hoW far 
 statements, afiidavits, or testimony of an arbitrator may be 
 availed of to aid in the construction of the award is discussed 
 in the chapter on Testimony of the Arbitrator. 
 
 1 Duke of Beaufort v. Welch, 10 Ad. & El. 527. 
 
 2 Grenfell v. Edgcome, 7 Q. B. 661. 
 
CHAPTER XVH. 
 
 DIVISIBILITY OP THE AWARD ; AWARD GOOD IN PART, BAD IN 
 
 PART. 
 
 An award good in part and bad in part may often be separated. 
 
 Whether the good part need decide all the matters submitted. 
 
 An award may be separable in respect of matters all ordered to be done by the 
 
 same party. 
 An old English rule. 
 Cases illustratiye of the old rule. 
 The modern rule. 
 
 Cases illustrative of the modern rule. 
 
 Elimination of orders in excess of the arbitrator's authority. 
 Separation where the excess constitutes a portion of a consideration or condition 
 
 precedent. 
 Excess in awarding costs is generally separable. 
 Excess in an order concerning a specific sum. 
 Excess by establishing a condition precedent may be separable. 
 Excess in award directing a payment. 
 Excess in orders for the execution of releases. 
 Excess in directions for the future conduct of the parties. 
 Excess in awards concerning real estate and boundaries. 
 Excess by orders made in respect of strangers to the submission. 
 Excess by ordering a verdict or a judgment. 
 If the court cannot distinguish the excess, the whole award is bad. 
 Excess by not following the submission. 
 Excess by reserving further powers or duties. 
 Separation will not be allowed if the decision of the principal point in dispute 
 
 is to be rejected. 
 Award of a gross amount, covering matters not within the arbitrator's authority. 
 Separation of an award finding a gross sum may sometimes be made. 
 The presumptions will be favorable to separation. 
 The desire of the courts is to make the separation. 
 Separation in cases of an uncertainty in part of the award. 
 Separation may sometimes be effected where the party losing thereby will waive 
 
 his advantage or objection based on the bad part. 
 An award in the alternative may be separated. 
 Effect of an offer to perform an inoperative order. 
 Effect of separation on directions concerning fees. 
 The court may hold a separable award under advisement. 
 Suits instituted upon separable awards. 
 
DIVISIBILITT OF THE AWAED, ETC. 453 
 
 An A-ward good in Part and bad in Part may often be separated. 
 — Since the days of King James the First i the characteristic of 
 divisibility has been recognized as inherent in the award under 
 certain circumstances. An award may often be good in part 
 and bad in part. In such an event, if the good portion be com- 
 plete in itself, and be wholly seplirable from and independent 
 of the bad part, it may be sustained. The bad part will be 
 rejected. 2 It will not be actually stricken out, but it will be 
 simply set aside and disregarded.^ 
 
 This doctrine, however, will never be applicable if there be 
 any connection or interdependence between the good and the 
 bad parts. If any injustice would be effected by allowing a 
 portion to stand and rejecting the rest, the separation will not 
 be permitted. It should be obvious from the award, the sub- 
 mission, and the attendant circumstances, that the arbitrators 
 would not have altered their finding in the good part, had they 
 known that the remainder would be inoperative or unenforcea- 
 ble. If the good part is based upon the bad as a condition 
 precedent, or as a consideration, either in part or in whole, the 
 entire award will be void. If the nullity of the bad part de- 
 prives a party of a benefit which it was intended that he should 
 have, by way of exchange or equivalent, in full or in part, for 
 matters awarded against him in the good portion of the award, 
 then this residue, at least as against him, will not be capable 
 of enforcement, since he will not reap from the award the ad- 
 vantage which the arbitrators desired to have him take. If the 
 foundation of the good part fails even partially, the avoidance 
 
 1 Prior to that time, says Chief Justice Holt, the rule was inflexible that if 
 the award was had in any part, it was void altogether. Furlong v. Thornigold, 
 12 Mod. 533. 
 
 2 Orcutt V. Butler, 42 Maine, 83 ; Clement v. Durgin, 1 Greenl. 300 ; Nichols 
 V. Rensselaer County Mut. Ins. Co., 22 Wend. 125 ; Shearer v. Handy, 22 Pick. 
 417 ; Chase v. Strain, 15 N. H. 535 ; Parmelee v. Allen, 32 Conn. 115 ; Cohen v. 
 Habenicht' 14 Richardson, Eq. (So. Car.) 31 ; Stone v. Phillips, 4 Bing. N. C. 
 37 ; Cromwell v. Owings, 6 Har. & J. 10 ; Caton v. McTavish, 10 Gill & J. 
 193. 
 
 3 Woglam V. Burnes, 1 Binney, 109. 
 
454 DIVISIBILITY OF THE AWARD, ETC. 
 
 of the whole instrument is inevitable.^ Such is the general 
 rule, though certain exceptions to its operation in peculiar 
 cases will be noted hereafter in this chapter, especially in the 
 paragraphs entitled " Separation where the Excess constitutes 
 a Portion of a Consideration or Condition Precedent," and " Ex- 
 cess by establishing a Conditfcn Precedent " may be separable. 
 Whether the Good Part need decide all the Matters submitted. 
 — It is said by Russell, that " if, notwithstanding some por- 
 tion of the award is clearly void, the remaining part contain a 
 final and certain determination of every question submitted, 
 the valid portion may frequently be maintained as the award, 
 though the void part be rejected." ^ But it appears that the 
 conditional requisition herein embodied, viz., that " every 
 question submitted " should be determined, is operative only 
 where the submission is itself inseparable, as, for example, 
 where it contains the ita quod clause or an equivalent thereof. 
 In Stone v. Phillips, which Mr. Russell cites as his authority, 
 an action of ejectment included in the submission was not de- 
 cided ; and Chief Justice Tindal said, " I cannot say that the 
 award is good, when the condition of the submission is that the 
 arbitrator shall award on the premises referred to him." So, 
 in Auriol v. Smith,^ it was said that an award might be " good 
 in part and bad in part, where the submission was clearly capa- 
 ble of being separated." 
 
 1 Commonwealth v. Pejepscut Proprietors, 7 Mass. 399, at p. 420 ; Clement v. 
 Durgin, 31 Greenl. 800 ; Nichols v. Rensselaer County Mut. Ins. Co., 22 Wend. 
 417 ; Chase v. Strain, 15 N. H. 535 ; Parmelee v. Allen, 32 Conn. 115 ; In re 
 Tandy v. Tandy, 9 Dowl. 1044 ; Auriol v. Smith, 1 Turn. & R. 121 ; Watkins v. 
 Philpotts, M'Lel. & Y. 393 ; Nickels v. Hancock, 7 De G., M. & G. 300 ; Candler 
 V. Fuller, WUles, 62 ; Stork v. De Smeth, ib. 66 ; Bowes v. Fernie, 4 M. & C. 150 ; 
 Bacon's Abr. Arb., E. 3; Eolle's Abr. Arb., K. 8, p. 253; Com. Dig. Arb., E. 
 14 ; Winch v. Saunders, Cro. Jac. 584 ; Pope v. Brett (notes), 2 Saunders, 298 b ; 
 Thinne v. Rigby, Cro. Jac. 314 ; Barney v. Fairchild, RoUe's Abr. Arb., N. 9, 
 p. 259 ; Hawkyard v. Stocks, 2 Dowl. & Low. 936 ; Russell on Award, Part II., 
 chap. 5, § 9 (p. 321), citing the preceding authorities. Nearly all of these cases 
 will be found stated at length in the subsequent portions of this chapter. 
 
 2 Russell on Arb., 3d ed. p. 812, citing, by way of authority. Stone v. Phillips, 
 4 Bing. N. C. 37. 
 
 » 1 Turn. & E. 128. 
 
DIVISIBILITY OF THE AWARD, ETC. 455 
 
 The principle has been laid down in the above shape by the 
 court in Maine, where it has been held that if the submission, 
 either in terms or by implication, contains the ita quod clause, 
 so that the validity of the award is expressly made conditional 
 upon the decision of all the matters submitted, and the nulli- 
 fication of the bad part would prevent the award from making 
 the entire disposition intended, then the whole award must 
 fall.i 
 
 Several cases, stated in this chapter, will be noticed wherein 
 an award, good* only as to a portion of several distinct matters 
 submitted, has been upheld as valid in respect of these.^ 
 
 An AwaxA may be separable in Respect of Matters all ordered 
 to be done by the Same Party. — It is obvious that where 
 several orders are given, all to be performed by one person, and 
 of these some are good and some are bad, this person can lose 
 nothing by being relieved from performance of the bad part. 
 He cannot thereby be deprived of any equivalent or recom- 
 pense. Wherefore, the general rule has been laid down to the 
 effect that " if the same party is required to do several things, 
 and, as to some of them, the award is bad on the ground of 
 uncertainty or because the arbitrators have exceeded their 
 powers, this can furnish no good reason for holding the party 
 discharged as to those things which are well awarded." It 
 can only be " where the good and the bad relate to different 
 parties, and the void part of the award is the consideration or 
 recompense of the thing awarded on the other side," that the 
 whole award must fail.^ 
 
 An Old English Rule. — A rule to be gathered from many of 
 the old English cases, but which can no longer be considered 
 
 1 MeNear v. Bailey, 18 Maine, 251. 
 
 ^ See, for example, Nichols u. Kensselaer County Mut. Ins. Co., 22 Wend. 
 125 ; Gordon v. Tucker, 6 Maine, 247, at p. 255 ; Giddings v. Hadaway, 28 Vt. 
 342 ; Bacon v. Wilber, 1 Cow. 117. 
 
 3 Nichols V. Kensselaer County Mut. Ins. Co., 22 Wend. 125 [per Bronson, J.). 
 Language to the same purport is used in Gordon v. Tucker, 6 Maine, 247, at 
 p. 256. 
 
456 DIVISIBILITY OF THE AWARD, ETC. 
 
 to be in force, as is clearly shown by the cases stated in this 
 chapter, was substantially that awards were to be sustained, 
 whatever portions were stricken out as being bad, provided 
 that after the excision there still remained something awarded 
 upon each side, so that the technical rule of mutuality was 
 satisfied, even though the award itself was so far modified that 
 it became " a very different measure of reciprocity from that 
 which the arbitrator intended." ^ 
 
 Cases Illustrative of the Old Rule. — The following case fur- 
 nishes an example of the unjust d^eration of the old rule. 
 The arbitrator awarded that the defendant should execute a 
 bond, with two sureties, for the payment of a certain sum of 
 money to the plaintiff, and that thereupon the plaintiff should 
 execute a release. The direction concerning the sureties was 
 bad. But the Court held that it was separable ; that the de- 
 fendant should give his personal bond only, and that thereupon 
 the plaintiff would be bound to execute and deliver the re- 
 lease.^ The gross injustice of this reduction of the plaintiff's 
 security shows conclusively the unsoundness of the rule under 
 which the Court acted. 
 
 The Modern Rule. — But this doctrine has long since been 
 abandoned, in favor of a rule which is, as Russell says, " more 
 consonant to the principles of justice." The modern principle 
 is that " if, by the nullity of the award in any part, one of the 
 parties cannot have the benefit intended him as a recompense 
 or consideration for that which he is to do to the other, the 
 award will usually be treated as void in the whole." ^ 
 
 1 Kussell on Arb., 3d ed. pp. 320, 321 ; citing Joyce v. Haines, Hard. 399 ; 
 Harris v. Knipe, 1 Lev. 58 ; Bargrave v. Atldns, 8 Lev. 413 ; Lindsey v. Aston, 
 2 Bulst. 38 ; Lee v. Elkins, 12 Mod. 585 ; Osborn's Case, 10 Rep. 129 6 ; BedeU 
 u. Moore, cited 10 Rep. 131 6. 
 
 2 ThTirsby v. Helbert,.Carth. 159 ; 1 Show. 82 ; 3 Mod. 272 ; and see Norwich 
 V. Norwich, 3 Leon. 62 ; Furlong v. Thornigold, 12 Mod. 533 ; Cooke v. Thor- 
 wood, 2 Saund. 337 ; also RusseU on Arb., 3d ed. p. 321. 
 
 3 Russell on Arb., 3d ed. p. 321 ; citing Bae. Abr. Arb., E. 3 ; EoUe's Abr. 
 Arb., K. 8, p. 253 ; Com. Dig. Arb., E. 14 ; Winch v. Saunders, Cro. Jac. 584 ; 
 and see notes to Pope v. Brett, 2 Saund. 293 b. 
 
DIVISIBILITY OF THE AWAED, ETC. 457 
 
 Cases Illustrative of the Modern Rule. — A few cases may be 
 selected for the express purpose of showing the working of the 
 modern doctrine, though it will be observed that in nearly all 
 the cases stated in this chapter, in which the circumstances 
 gave room for its operation, it has been applied. An award 
 ordered one party to pay the money due for task-work, but 
 specified no sum ; directed the other party to pay twenty-five 
 pounds, and added that both should give general releases. The 
 direction concerning the task-work was void for uncertainty ; 
 and it was held that it operated to avoid the whole award, 
 since the payment for this work, as well as the general release, 
 was intended as a recompense for the payment of twenty-five 
 pounds by the other party. ^ 
 
 An award ordered a sum of money to be paid to A., upon 
 A., his wife and son executing a conveyance of an estate. The 
 wife and son were not parties tb the submission, and conse- 
 quently the award could not be enforced against them. This 
 order being void, the whole award was therefore held void, 
 since the party who was to receive the property could not en- 
 force the conveyance for which his money was to be paid.^ 
 
 An award ordered that the defendant should have certain 
 trees, and should give security to the plaintiff for payment of 
 a certain sum named. The latter direction being bad for un- 
 certainty, the whole award was held bad.^ 
 
 It was stipulated that the costs of the cause referred should 
 abide the event of the arbitration. The arbitrator, though 
 having no authority to do so, directed that a verdict should 
 be entered. The court set the award aside altogether. For 
 it was said that if the direction for the entry of the verdict 
 were stricken out, there would be left no such determination 
 of the cause in favor of the defendant as would enable him to 
 recover his costs.* 
 
 1 Pope V. Brett, 2 Saund. 293 b ; Com. Dig. Arb., E. 14. 
 
 2 Barney v. Fairchild, RoUe's Abr. Arb., N. 9, p. 259. 
 
 ' Bac. Abr. Arb,, E. 3 ; Thinne v. Rigby, Cro. Jac. 314. 
 * Hawkyard v. Stocks, 2 Dowl. & Low. 936. 
 
458 DIVISIBILITY OF THE AWAED, ETC. 
 
 It appeared concerning the subject-matter of the submission 
 that the titles to certain lands had been passed to a party as 
 collateral security for a loan made by him. The award pro- 
 vided for repayment of the loan and a reconveyance of the 
 land. So far as related to the reconveyance of the land, it 
 was void for uncertainty. It was held that there was such a 
 connection between the two parts that there could be no separa- 
 tion of the one from the other. " The arbitrators never could 
 have designed that [the lender] shoxild get his money and re- 
 tain his deposits." ^ 
 
 A dispute concerning a boundary line led to a personal con- 
 flict. A submission was entered into " of all disputes and 
 quarrels or differences that now exist respecting the establish- 
 ing the line or partition fence," and of all other disputes. A 
 verbal award was made. The portion of it relating to the title 
 to the real estate was therefore null, and the court held that 
 the portion relating to the personal injury could not be sepa- 
 rated and sustained, " because one or the other of the parties 
 might be more or less in the wrong, according to the decision 
 which should be made respecting the title to the real estate." ^ 
 
 EliiQination of Orders in Excess of the Arbitrator's Authority. — 
 Perhaps the most numerous class of cases in which the doc- 
 trine of divisibility is allowed to operate, is furnished by 
 awards wherein the arbitrator has exceeded the scope of his 
 authority. If the matter in excess be properly separable', 
 according to the general principle hereinbefore laid down, 
 it will be lopped off, and the remainder of the award will be 
 upheld. Such an excess, if it form no basis, consideration, 
 recompense, or equivalent for any of the orders of the award 
 made in respect of matters within the arbitrator's authority, 
 will be mere surplusage.^ If, however, the contrary be the 
 
 1 Lyle V. Rodgers, 6 Wheat. 394. See Giddings v. Hadaway, 28 Vt. 342, post, 
 pp. 466, 467. 
 
 2 Philbrick v. Preble, 18 Maine, 255. 
 
 3 GUmore v. Hubbard, 12 Gush. 220 ; Griffin v. Hadley, 8 Jones, Law, 82 ; 
 
DIVISIBILITY or THE AWARD, ETC. 459 
 
 case, and if there be any interdependence or connection be- 
 tween the portion of tlie award which is within, and that which 
 is without, the arbitrator's authority, so that it appears that 
 his determination in the good part has been at all affected 
 by his determination in the bad part, then, of course, the 
 separation becomes impossible, and the whole award will 
 fall.i 
 
 Thus it was said by Judge Bigelow : " It is now the well- 
 settled rule, that if the thing awarded to be done, which is bad 
 as being beyond the submission, forms no part of the consid- 
 eration for or element in the performance of that part which 
 is good as being within the submission, but is wholly dis- 
 tinct and independent thereof, then the award can be separ 
 rated, and the bad part rejected, and that which is good held 
 valid and binding iipon the parties." The facts to which this 
 doctrine was applied were as follows : The arbitrators were 
 to award concerning the claims of each partner upon the firm, 
 of each of them upon the other, and of the firm upon each of 
 them. In " full settlement and adjustment " of those mat- 
 ters the arbitrators ordered certain sums to be paid by the 
 partners between themselves. But in another clause they 
 also provided for the manner of paying outstanding partnership 
 debts and collecting outstanding partnership dues. This 
 latter clause, clearly bad as being in excess of authority, 
 was set aside because it was " a separate, independent mat- 
 ter, which could not affect the accounts of the partners be- 
 tween themselves, or between them and the firm ; nor could 
 it properly enter into and form part of the consideration 
 upon which the award of the sums due [between the 
 partner's] was based. ... In these particulars the award, 
 
 Tracy v. Herrick, 25 N. H. 381 ; Chase v. Strain, 15 id. 535 ; Smith u. Sweeny, 
 35 N. Y. 291 ; Martin v. Williams, 13 Johns. 264 ; Jackson v. Ambler, 14 id. 96 ; 
 McBride v. Hagan, 1 Wend. 326 ; Harrison v. Lay, C. P., 12 Feb. 1863, N. R. 
 437 ; also cases cited in the further discussion of this subject. 
 
 1 Sawyer v. Ereeman," 35 Maine, 542 ; Marshall v. Dresser, 3 Q. B. 878 ; Rus- 
 sell on Arb., 3d ed. p. 322. 
 
460 DIVISIBILITT OF THE AWARD, ETC. 
 
 primd facie, would have been the same whether the out- 
 standing debts due to and from the firm were taken into 
 consideration or not." ^ 
 
 A submission was made of all demands and conti-oversies 
 between the parties ; and a bond was executed binding B. to 
 abide by the decision, and to pay to 0. all sums of money that 
 should be awarded against him. The award found that 0. 
 should recover from B. a certain sum, should have the priv- 
 ilege of taking certarin crops from B.'s land, and should pay 
 the costs of reference ; and concluded by providing that " the 
 conveyance heretofore made by said 0. to S. W. is to be valid, 
 the consideration for the same having been allowed to said B." 
 This provision was objected to as vague and indefinite ; but the 
 action being only of debt on the bond, to recover the sum 
 found in O.'s favor, the court held that the validity or inva- 
 lidity of this final clause was immaterial, since the amount 
 allowed in damages did not relate to the W. conveyance, and 
 was obviously separated from it.^ 
 
 Three persons, copartners, entered into a contract with a 
 corporation to do certain work for it. When the work was 
 finished, a dispute arose between the partners as to the terms 
 of division and settlement between themselves. These they 
 agreed to submit to arbitrators. The award apportioned the 
 money, which was to come from the corporation, giving a cer- 
 tain specified sum to each of the three disputants, and further 
 awarded that a certain one of them " being more familiar with 
 the liabilities of the firm, should draw the balance due from 
 the corporation and pay the same to the partners." The court 
 held that even if this final direction were in excess of the arbi- 
 trators' authority (which they did not think it was), neverthe- 
 less it was separable, and could be rejected without vitiating 
 the rest of the award.^ 
 
 Arbitrators awarded, among other things, that an action 
 
 ' Barrows v. Capen, 11 Cush. 37. 
 2 Orcutt V. Butler, 42 Maine, 83. 
 ' Tracy v. Herrick, 25 N. H. 381, at p. 401. 
 
DIVISIBILITY OF THE AWARD, ETC. 461 
 
 should cease ; that the defendant should pay the plaintiff 
 fifty pounds towards the costs incurred in the cause and refer- 
 ence ; that the plaintiff should pay his own costs of the cause 
 and reference, and should also pay to the defendant the costs 
 of the defendant in the cause and reference, the said costs to 
 be taxed as between attorney and client. This latter direction, 
 viz., that the costs should be taxed as between attorney and 
 client, was in excess of the arbitrator's authority and void. 
 The court held that they could not separate it from the rest of 
 the award ; that it was so connected with the benefit which it 
 was intended that the defendant should derive from the award 
 that an elimination could not properly be made.^ 
 
 An arbitrator ordered that the plaintiff should pay to the 
 defendant a certain sum of money, as the balance of the gen- 
 eral account ; and also a certain other sum, which was stated by 
 the award to be due to the defendant on account of an illegal 
 insurance partnership transaction between him and the plain- 
 tiff. The latter order was held bad, but the remainder of the 
 award was sustained.'^ 
 
 If a submission be of certain particular causes pending, and 
 there be also other suits in litigation between the same parties, 
 an award ordering all suits between them to cease will be held 
 good and operative as to those within the submission, and void 
 as to those not within it.^ 
 
 Separation -where the Excess constitutes a Portion of a Consid- 
 eration or Condition Precedent. — If the part of the award which 
 is in excess of the authority of the arbitrator forms a portion 
 only of certain acts ordered to be done by a party, upon the 
 performance of all which the other party is to do some speci- 
 fied act, the separation may sometimes be made where equity 
 will allow. In such case the last-named party will be obliged 
 to fulfil the requirements placed upon him after the other has 
 
 1 Seokham v. Babb, 8 Dowl. 167 ; 6 Mee. & W. 129. 
 
 2 Aubert v. Maze, 2 Bos. & Pul. 371. 
 
 2 Webb V. Ingram, Cro. Jac. 663 ; and see Joy v. Simpson, 2 N. H. 179, stated 
 in the chapter on Bules of Construction, ante, p. 441. 
 
462 DIVISIBILITY OF THE AWARD, ETC. 
 
 performed such of the orders of the- award as are held binding. 
 The following cases will show under what circumstances this 
 principle has been allowed to operate. 
 
 Where the performance of a specified act, as, for example, 
 the execution of mutual releases, is awarded only conditionally 
 upon the prior payment of certain sums of money and certain 
 costs, and the award, so far as respects the payment of costs, 
 is bad, the separation will nevertheless be carried to the point 
 of eliminating the bad part and requiring the releases to be 
 given after the payment only of the sums of money has been 
 made.^ 
 
 This precedent was also followed where the arbitrator had 
 ordered that a release should be executed after payment of a 
 certain sum named for the debt due and a certain other sum 
 named as the amount of the plaintiff's costs. The costs were, 
 in effect, to abide the event, and it was objected that the arbi- 
 trator had exceeded his power in ascertaining their amount. 
 But Coleridge, J., said that the principle of divisibility must 
 be allowed to intervene, and the defendant would probably 
 entitle himself to demand the release by paying the amount of 
 the debt and of the costs regularly taxed.^ 
 
 But as cases are easily conceivable where a separation of this 
 description would deprive the party who was to execute the 
 release or discharge of a material portion of the compensation 
 therefor, which he had not only under the award but also 
 upon the merits of the case a right to expect, so it is obvious 
 that the division would not be made except where the circum- 
 stances rendered it equitable, and robbed neither party of any 
 just advantage. Thus the case of Thursby v. Helbert,° where 
 the separation was allowed under the old English rule, has 
 been already said to be no longer properly an authority. 
 
 Excess in awarding Costs is generally separable. — Instances in 
 
 1 Aitcheson v. Cargey, 2 Bing. 199. 
 s Kendrick v. Davies, 5 Dowl. 693. 
 
 ' Carth. 159 ; 1 Show. 82 ; 8 Mod. 272. See this case stated ante, p. 456, and 
 the comments made thereon in that and the following paragraphs. 
 
DIVISIBILITY OF THE AWARD, ETC. 463 
 
 which arbitrators have gone beyond their authority in ordering 
 payment of costs by a party are of very frequent occurrence. 
 A multitude of cases satisfactorily establish the general rule 
 to be, that if arbitrators, not authorized to award concerning 
 costs, nevertheless undertake to do so, this portion of the 
 award may be rejected and the remainder sustained.^ So, if 
 the portion of their award concerning costs is void for uncer- 
 tainty, it may be rejected and the rest sustained, if the party 
 in whose favor the uncertain order for costs would operate is 
 desirous of having the award accepted in spite of the uncer- 
 tainty. The judgment on such an award will be without costs, 
 unless \ipon motion the award be recommitted for amendment 
 in the matter of costs alone.^ If the amount of costs is spe- 
 cifically stated, or directions are given by which it can be ascer- 
 tained, it will be rejected. If it is specifically stated, and is 
 also included in the gross sum, it will be deducted from that 
 sum.^ 
 
 If the submission specifically embodies provisions for the 
 payment of costs, and the arbitrators nevertheless award con- 
 cerning them, this portion of their award will be set aside as 
 surplusage, and will not invalidate the remainder.* 
 
 It may, however, sometimes happen that the direction that 
 the costs shall be borne by one or the other party will be made 
 in such shape that it is evidently not separable. An instance 
 
 1 Eussell on Arb., Sd ed. p. 312 ; Gordon v. Tucker, 6 Greenl. 247 ; Walker 
 V. Merrill, 13 Maine, 173 ; Tyler v. Dyer, ib. 41 ; Day u. Hooper, 81 id. 178 ; 
 Hanson i^. Webber, 40 Id. 194 ; Shirley v. Shattuck, 4 Gush. 470 ; Maynard v. 
 Frederick, 7 Gush. 247 ; Caldwell u. Dickinson, 13 Gray, 365 ; Rixford v. Nye, 
 20 Vt. 132 ; Doke v. James, 4 Comst. 567 ; Hiibbell v. Bissell, 2 Allen, 196 ; Can- 
 dler V. Fuller, Willes, 62 ; Aitcheson v. Cargey, 2 Bing. 199 ; Whitehead v. Firth, 
 12 East, 166 ; Strutt v. Rogers, 7 Taunt. 212 ; Boodle v. Davies, 3 Ad, & El. 200 ; 
 Barker v. Tibson, 2 W. Bl. 953 ; Cockburn v. Newton, 9 Dowl. 676 ; Marder v. 
 Cox, Cow. 127 ; Firth v. Robinson, 1 Barn. & Cr. 277 ; Eees v. Waters, 16 Mee. 
 & W. 263. 
 
 3 Inhabitants of Leominster v. Wprcester R.R. Co., 7 Allen, 38. 
 
 3 Shirley v. Shattuck, 4 Gush. 470. 
 
 * Cox V. Jagger, 2 Cow. 638. 
 
464 DIVISIBILITY OF THE AWARD, ETC. 
 
 of this kind is furnished by the case of Seckham v. Babb,^ 
 stated ante, pp. 460, 461. 
 
 Excess in an Order concerning a Specific Sum. — Where the 
 arbitrator has considered a special matter which is beyond his 
 authority, and has awarded in respect of it distinctly, as by 
 naming a payment to be made in consideration of it, by itself, 
 the award must generally be divisible. An award found a spe- 
 cific sum as being the value of the labor of a party, another 
 specific sum as interest thereon, a third specific sum as costs. 
 In the two last matters, the arbitrator exceeded the scope of 
 his authority. The award in these respects was set aside, and 
 the remaining direction was sustained.^ 
 
 Excess by establishing a Condition Precedent may be separable. 
 — If the arbitrators have no authority to establish a condition 
 precedent, but nevertheless order a payment to be made only 
 upon a condition, the condition will be void, and the sum recov- 
 erable without its performance.^ This cause was twice after- 
 ward heard, upon appeals ; * but I do not find that this ruling 
 was either repeated or reversed. It can hardly take the place 
 of a general principle, at least upon its intrinsic merits ; for it 
 would often work obvious injustice. 
 
 Excess in Award directing a Payment. — If an arbitrator, ap- 
 pointed to determine the purchase-money to be paid for an 
 estate, in addition to naming the price exceeds his authority 
 by also naming a day future for its payment, no separation can 
 be made so as to uphold the award as being good in the matter 
 of the price, and rejecting the item of time. For it is impos- 
 sible to say that the arbitrator, in naming the amount, was 
 not influenced by his intention of making it payable in the 
 future.^ 
 
 1 8 Dowl. 167 ; 6 Mee. & W. 129. 
 
 2 Chase v. Strain, 15 N. H. 535. A Uke case is that of Banks v. Adams, 23 
 Maine, 259. 
 
 s Mayor, &g., of New York v. Butler, 1 Barb. 325. 
 
 * 1 Hill, 489 ; 7 Hill, 329. 
 
 ' Emery v. Wase, 8 Ves. Jr. 504 a. 
 
DIVISIBILITY OF THE AWARD, ETC. 465 
 
 Excess in Orders for the Execution of Releases. — In England 
 it has frequently occurred that where the power of the arbitra- 
 tors was confined to certain specified matters, they have nev- 
 ertheless awarded that general releases of all claims should 
 be executed and exchanged between the parties. So, having 
 power only over controversies up to the date of the submission, 
 they have sometimes ordered releases of all matters up to the 
 date of the award. In such cases the controlling current of 
 authority seems to be in favor of holding the award good so 
 far as to compel the parties to execute releases as to the par- 
 ticular matters, or the matters arising up to the date of the 
 submission, and in reference to which the arbitrators had power 
 to make such an order, but void for the purpose of requiring 
 any more general release. ^ 
 
 Cases of this description have been rare in the United States ; 
 but in New York it has been held that if the submission is to 
 be construed as relating only to a single matter, an award 
 which calls, in general terms, for " a release," will be consid- 
 ered to require a release only in the matter submitted.^ 
 
 Excess in Directions for the Future Conduct of the Parties. — 
 Where an arbitrator, after having decided the substantial mat- 
 ters in controversy, proceeds, beyond the scope of his authority, 
 to give orders or directions concerning matters to be done in 
 the future, this excess will, in most cases, be of a separable 
 nature. An arbitrator was authorized to decide upon the 
 method to be adopted for draining certain lands. Embodied 
 in his decision was an order for the erection of certain works, 
 and he proceeded to give directions concerning future repairs 
 of these works. The matter of repairs being beyond the 
 
 1 Doe d. Williams v. Richardson, 8 Taunt. 697 ; Lee v. Elkins, 12 Mod. 585 ; 
 Squire v. Grevett, 2 Ld. Raym. 961 ; Hill v. Thorn, 2 Mod. 309 ; Abrahat v. 
 Brandon, 10 id. 201 ; Anon. 12 id. 8 ; Hooper v. Pierce, ib. 116 ; Russell on 
 Arb., Part II., chap. 5, § 9. But see, to the contrary effect, Vanlore v. Tribb, 
 Rolle's Abr. Arb., N. 1, p. 258 ; s. c. 1 RoUe's Rep. 437 ; Pickering v. Watson, 
 2 W. Bl. 1118. 
 
 2 Munro v. Alaire, 2 Gaines, 320. 
 
 30 
 
466 DIVISIBILITY OP THE AWAED, ETC. 
 
 scope of his authority, but his orders in that respect being 
 clearly separable, the rest of the award was sustained.^ 
 
 An arbitrator was empowered to regulate the use of a stream 
 of water flowing through certain ponds. This he did satisfac- 
 torily, but added a provision which was to take effect in 
 the event of the ponds at any time being filled up. The court 
 were inclined to regard this provisional order as being in 
 excess of his authority, but refused to allow it to vitiate the 
 award, inasmuch as it was obviously separable.^ 
 
 I!2:cess in Awards concerning Real Estate and Boundaries. — Ar- 
 bitrators were authorized to run boundary lines, and settle title 
 to lands included in a certain patent. It was held that if they 
 ran lines and undertook to settle titles in respect of land not 
 within this patent, such portion of their award would be prop- 
 erly separable, and would not affect the validity of the residue.*^ 
 
 An action of trespass quare clausum f regit was submitted by 
 agreement before any pleadings had been filed. The award 
 was of " the lands in dispute in favor of the defendant, and 
 the division as it now stands to be the established line." Held, 
 that this award could have no effect upon the title or the boun- 
 daries of the land, but might operate as conclusive that the 
 plaintiff had no cause of action. The matters of title and of 
 boundaries were not within the scope of the submission or of 
 the arbitrators' authority.* 
 
 An award, undertaking to settle a disputed boundary line 
 and a claim of damages for trespass on the same land, may be 
 void for uncertainty as to the boundary, and yet hold good as 
 to the damages, and this, too, although the locus of the tres- 
 pass was the very land over which the boundary ran, and 
 consequently the title of which was in dispute. The court 
 were of opinion that the suit for damages had " no neces- 
 sary connection with settling the disputed boundary." The 
 
 1 Johnston v. Cheape, 5 Dow (Pari. Ca.), 247. 
 
 2 Winter v. Lethbridge, 13 Price, 533. 
 
 8 Jackson v. Ambler, 14 Johns, 96, at p. 108. 
 * Richter v. ChamherUn, 6 Binney, 84. 
 
DIVISIBILITY OF THE AWARD, ET"C. 467 
 
 arbitrators must have decided the line, to determine the plain- 
 tiff's right to sue. But they may have decided it, and cor- 
 rectly. " The defect in the award, in regard to the line, is, 
 not that the arbitrators may not have decided where the line 
 was between the parties, and that correctly ; but the defect 
 ... is, that they have not correctly defined the boundary. 
 There is no want of finality shown in the decision, but a want 
 of certainty in the award." ^ So if the award direct payment 
 of costs and delivery of possession, in addition to finding the 
 boundary, it will be good as to the boundary, though these 
 other matters be without the extent of the submission.^ 
 
 Excess by Orders made in Respect of Strangers to the Sub- 
 mission. — If an award gives directions concerning persons or 
 the property of persons who are strangers to the submission, 
 these, if independent of the rest of the award, may be rejected, 
 and the remainder of the award, operating between those per- 
 sons only who are within the arbitrator's jurisdiction, may be 
 sustained. Thus, if an award orders the defendant to pay a 
 sum of money to the plaintiff and another sum to a stranger, 
 or to execute a lease for life to the plaintiff with remainder in 
 fee to a stranger, the defendant may be compelled to comply 
 with the instructions given for the benefit of the plaintiff, 
 though not with those given for the benefit of the stranger.^ 
 So also, if one party be directed to make a payment to the 
 other out of funds in his hands, but belonging to one who is 
 no party to the arbitration, this order will be void ; but if inde- 
 pendent and separable, it may be rejected by itself, and the other 
 and unobjectionable orders of the award will be enforced.* 
 
 1 Giddings v. Hadaway, 28 Vt. 342. See Lyle v. Eodgers, 5 Wheat. 394, ante, 
 p. 458. 
 
 2 Bacon v. Wilber, 1 Cow. 117. In this case the bonds were more extensive 
 than the submission, and iacluded in their condition the payment of costs and 
 delivery of possession. 
 
 8 Bretton v. Pratt, Cro. Eliz. 758 ; Bac. Abr. Arb., E. 1 ; Com. Dig. Arb., E. 
 14 ; cited in Kussell on Arb., 3d ed. p. 313. See also Barney v. Eairchild, EoUe's 
 Abr. Arb., N. 9, p. 259, stated ante, p. 457. 
 
 * Ingram v. MUnes, 8 Bastj 444. 
 
468 DIVISIBILITY OF THE AWARD, ETC. 
 
 The assessment of damages for removing dirt and stones 
 from a certain lot of land was submitted between A. and B., 
 on the presumption that B. was the owner of the land. The 
 referees found the amount of damages, but also found that 
 the title to the land was in B.'s wife, and, though she was a 
 stranger to the submission, ordered that upon payment of 
 the sum named she should join with her husband in a dis- 
 charge of A. The court were able to decide the case and 
 sustain the award upon other grounds, but they intimated the 
 opinion that even though the direction should be void so far 
 as regarded the wife, yet this might be rejected and the re- 
 mainder of the award sustained, since the rights of A. could 
 not be thereby injuriously affected.^ 
 
 A submission was entered into between A. and B. The 
 award ordered a certain sum of money to be paid to A. by B. 
 or C. or D. It was obviously inoperative and bad as regarded 
 C. and D., strangers to the submission. But this portion was 
 said by the court to be separable, and the residue stood as a 
 valid order for payment to be made by B.^ 
 
 Szcess by ordering a Verdict or a Judgment. — If, upon the 
 reference or submission of a cause, the referee or arbitrator 
 finds upon all the substantial points at issue in a satisfactory 
 manner, and, having thereby executed the full measure of his 
 authority, nevertheless proceeds to order an entry of a verdict 
 or of a judgment, it will generally be the case that this latter 
 order may be rejected with prejudice to either party, and the 
 finding upon the merits be sustained as valid. ^ 
 
 An arbitrator, whose power did not extend to directing an 
 entry of judgment, awarded in an action of ejectment that 
 '-'judgment for the plaintiff be entered in the said action, with 
 one shilling damages, and that the plaintiff do recover under 
 the said judgment a plot or parcel of land," which the award 
 
 1 Smith V. Sweeny, 38 N. Y. 291, at p. 295. 
 
 2 Cox V. Jagger, 2 Cow. 638, at p. 651. 
 8 Howett V. Clements, 1 C. B. 128. 
 
DIVISIBILITY OF THE AWARD, ETC. 469 
 
 proceeded to describe. The court struck out the portion of 
 the award ordering an entry of judgment, regarding it as sur- 
 plusage ; but they sustained the award as a finding in the 
 plaintiff's favor, since there was a sufficiently obvious deter- 
 mination to this effect, though all mention of the judgment 
 were removed, and this construction would not alter the in- 
 tention of the award as to the matters within the arbitrator's 
 jurisdiction.^ 
 
 So where it is stipulated that the costs of the action shall 
 abide the event of the arbitration, if the arbitrator, after find- 
 ing on all the issues, direct a stet processus, the direction will 
 be in excess of his authority and void ; but, being also clearly 
 separable, it will be rejected, and the rest of the award sus- 
 tained.2 
 
 An arbitrator, though having no authority to direct entry 
 of a verdict, yet awarded as follows : " I award and direct that 
 a verdict in this cause be finally entered for the plaintiff, with 
 £284 12s." damages. The court said that if this faulty order 
 for the entry of a verdict had stood by itself in a distinct para- 
 graph, it might have been separated and rejected, and the rest 
 of the award sustained. But since the whole was comprised 
 in one sentence they refused to make the excision, and the 
 whole award was consequently held void.^ Another instance 
 where the separation was not allowed to be made, but for a 
 more satisfactory reason than the mere form of expression of 
 the award, is furnished by the case of Hawkyard v. Stocks, 
 already stated in this chapter.* 
 
 If the Court cannot distinguish the Excess, the -whole Award is 
 bad. — If the arbitrator in his decision mingles matters within 
 and matters not within the submission, and awards upon them 
 collectively, so that the court cannot clearly and surely dis- 
 
 1 Doe d. Body v. Cox, 4 Dowl. & Low. 75. 
 
 2 Ward V. Hall, 9 Dowl. 610. 
 
 » Jackson v. Clarke, M'Lel. & Y. 200. 
 < 2 Dowl. & Low. 936 ; ante, p. 457. 
 
470 DIVISIBILITY OF THE AWAED, ETC. 
 
 tinguish how much of the adjudication relates to each class 
 respectively, then the award will necessarily be bad in toto?- 
 
 If the arbitrator's authority to give interest does not extend 
 beyond the date of the submission, and he nevertheless allows 
 interest to a day subsequent to that date, and embodies both 
 principal and interest in one gross sum named, the court, 
 unless it can separate the amount given for interest beyond 
 the date of the submission, will set aside the whole award.^ 
 
 A submission was made to arbitrators concerning the dam- 
 age sustained- or which should afterward be sustained by C. 
 by reason of the flowage of his land caused by the erection of 
 a dam by D. The arbitrators named a sum in damages, and 
 also awarded that the dam be not " raised hereafter more than 
 three feet above the present height." This last order, being 
 in excess of their authority, was held not only to be void, but 
 to be inseparable and to avoid the whole award. "For," said 
 the court, " what influence the privilege of raising the dam to 
 a height not exceeding three feet, awarded to the respondent, 
 might have had in the estimate of damages, we have no means 
 of ascertaining. But as a privilege valuable and important to 
 the one, and calculated to occasion further injury to the other, 
 it must be presumed to have had an influence ; and being 
 unauthorized' and necessarily interwoven with the damages 
 awarded, the whole proceedings are thereby vitiated."^ 
 
 Excess by not folio-wing the Submission. — It was agreed that 
 a lease of a colliery should be granted for sixty-three years, 
 which were to begin to run from May 1, 1801 ; the lessees 
 being allowed three years for winning the colliery rent free. 
 Submission was made to an arbitrator " to give such directions 
 as to a lease, according to the agreement, as he should think 
 fit." Among other things he ordered that the lease should 
 
 1 Kussell on Arb., 3d ed. p. 318. See also Bonner v. Liddell, 1 Ball & B. 80, 
 stated in the paragraph entitled Excess by not following the Submission, below. 
 
 2 Watkins v. Phillpotts, M'Lel. & Y. 393. 
 ' Clement v. Durgin, 1 Greenl. 300. 
 
DIVISIBILITY OF THE AWARD, ETC. 471 
 
 be executed to run for sixty-three years from May 1, 1804 ; 
 therein not following the agreement and exceeding his au- 
 thority. The court refused to divide the award, and set it 
 aside altogether.^ 
 
 A dispute arose concerning a purchase of cotton made by 
 the defendants for the plaintiffs. Submission was made to 
 arbitrators to determine whether the purchase was warranted 
 by the plaintiffs' instructions ; and, if not, then what damage, 
 if any, the plaintiffs had suffered thereby. The arbitrators 
 decided that the purchase was not warranted by the instruc- 
 tions ; that the cotton should be taken to account of the de- 
 fendants, and that the plaintiffs had suffered no damage, since, 
 by placing the cotton to the account of the defendants, the latter 
 would bear any damage or loss arising therefrom. The award 
 was in excess of authority in undertaking to dispose of the 
 title and ownership in the cotton, and it was held that this 
 portion was not separable, for if it were stricken out nothing 
 would be left decided in favor of the plaintiffs. It vpould 
 appear that the purchase had not been made in accordance 
 with their instructions, yet that they had suffered no damage 
 thereby. This was not apparently the intent of the award, 
 which was accordingly wholly rejected.^ 
 
 Excess by reserving Further Powers or Duties. — It is a rule 
 that if the arbitrator reserves further powers or duties of a 
 judicial nature, whether to be performed by himself or by 
 somebody else, he thereby breaks the principle which requires 
 the award to be final and conclusive of the matter submitted. 
 Eeservations of this kind may sometimes be rejected as sur- 
 plusage. But such rejection must of necessity be a very delicate 
 matter. It can never be properly made unless the remainder 
 of the award will contain a full, complete, and final disposi- 
 tion of the controversy. If such a thorough and satisfactory 
 decision has been made, and the reservation is a mere inde- 
 
 1 Bonner v. Liddell, 1 Ball & B. 80. 
 
 2 McJBride v. Hagan, 1 Wend. 326, at p. 340. 
 
472 DIVISIBILITY OF THE AWARD, ETC. 
 
 pendent adjunct thereto, and has reference to further antici- 
 pated disputes which the arbitrator fears may arise in the 
 course of the effort to perform the award by tlie parties, there 
 is authority for saying that tlie separation may be made. It 
 would be upon the broad principle of a simple excess of au- 
 thority in a matter independent and not connected with the 
 good part of the award. Tlie controversy submitted would 
 have been fully and independently decided. But beyond this 
 an effort would have been made to exercise a power or give 
 directions in respect of a matter not included in the scope of 
 the submission. But if the reservation should be in respect 
 of the very matter which is itself in dispute and constitutes 
 the subject of the submission, it is diificult to see how, in the 
 nature of things, a reservation of a further power in reference 
 to it could be construed as entirely independent of and uncon- 
 nected with the decision already made, which may be only 
 partial, and which certainly is made in the contemplation of 
 possible future change by virtue of this very clause which it is 
 desired to throw out altogether.^ 
 
 If the reservation is of a part of the controversy which the 
 arbitrator is bound to determine and dispose of by his award, 
 then it will not be separable ; or if separable, yet no advan- 
 tage will accrue from the severing, since, after it has been made, 
 the remainder of the award will be bad for want of finality, or 
 as not being coextensive with the submission.^ 
 
 In a very old case an award ordered payment to be made of 
 a certain siim, with the proviso that if the party directed to 
 pay could, before a certain day, disprove the receipt of the 
 goods or furnish better proof of certain alleged payments, the 
 sum to be paid by him should be proportionately reduced. One 
 report of the case states that the reservation was held void, 
 but that the remainder of the report was sustained as good, 
 
 1 See the discussion of this subject, and the cases (which fully bear out the 
 above principle) in Chapter XIV., on Finality, the paragraph entitled Award 
 leaving an Act of a Judicial Nature to be done in the Future, et seq. 
 
 2 In re Tandy v. Tandy, 9 Dowl. 1044. 
 
DIVISIBILITY OF THE AWARD, ETC. 473 
 
 on the ground that the arbitrator's authority was exhausted 
 by finding the sum to be paid, and the further directions were 
 surplusage.^ Another report simply says that the court took 
 time to consider whether or not the separation should be per- 
 mitted.2 
 
 An action respecting a water-course, and all matters in dif- 
 ference, were referred to an arbitrator. After ordering a verdict, 
 and that certain works should be done by the defendant, he 
 proceeded to provide that if disputes should arise as to the 
 manner in which these works should be done, within a certain 
 time specified, the matter should be brought before him again 
 for final adjustment in these particulars. It was held that the 
 award was a complete and final decision of the matters in con- 
 troversy, taken without this clause of reservation; that this 
 objectionable part, since it related exclusively to prospective 
 difficulties, was independent and separable, and should be 
 rejected.^ 
 
 An award provided that if, before a certain day, the defend- 
 ant could prove that he had delivered certain currants to the 
 plaintiff, then the arbitrators or an umpire would make a fur- 
 ther award ; but if he could not prove it, then that the plain- 
 tiff should be free from any claim. It was further ordered 
 that the defendant should pay a certain sum to the plaintiff, 
 unless the arbitrators or an umpire made a further award 
 concerning the currants within a certain time. No further 
 award was in fact made within the time limited. But the 
 court held the award to be altogether void ; for they consid- 
 ered tliat the clause which ordered the defendant to pay, had 
 dependence upon the prior clause, which contemplated the 
 making of a further award, and which was obviously void, as 
 being a reservation of authority of a judicial nature.* 
 
 1 Beckwith v. Warley, EoUe's Abr. Arb., H. 9, p. 250. 
 
 2 Warley v. Beckwith, Hob. 218 ; and see Russell on Arb., 3d ed. p. 315. 
 
 3 Manser v. Heaver, 3 Barn. & Ad. 295. 
 
 * Brown v Dalton, EoUe's Abr. Arb., H. 10, p. 250; Russell on Arb., 3d ed. 
 p. 320. 
 
474 DIVISIBILITY OF THE AWARD, ETC. 
 
 Where, in an arbitration concerning a lease, the arbitrator 
 ordered the premises to be put in repair to the satisfaction of a 
 third party, this clause, which was fatal to the finality of the 
 award, was held to be inseparable from the remainder, and to 
 operate to avoid the award altogether.^ 
 
 Separation will not be allowed, if the Decision of the Principal 
 Point in Dispute is to be rejected. — Thovigh the award be in its 
 nature articulate and separable, yet if the result of the separa- 
 tion would be to eliminate the principal part as bad, and to 
 leave the award to operate only as a disposition of secondary 
 matters, or adjuncts of the main question in controversy, the 
 severance will not be made ; but the whole award will be 
 treated as void. To this effect is the following English case : 
 Certain farmers, considering that they were overrated to the 
 poor-rate in proportion to other parishioners, entered into a 
 submission with the church-wardens and overseers, by which 
 three several matters were left to be determined by the arbitra- 
 tors; to wit, the validity of the rate, the payment of the costs 
 of preparing for an appeal to the sessions respecting it, and the 
 costs of the reference. The arbitrators awarded upon each of 
 these points separately. The Court of Exchequer held that the 
 principal subject-matter of the submission, viz., the validity of 
 the rate, could not lawfully be submitted to arbitration. As to 
 this, therefore, the award was void ; and though this was a 
 distinct and independent article of the award, still, since it was 
 the main point in controversy, it should not be eliminated, but 
 the whole award should be declared void.^ 
 
 Aw^ard of a Gross Amount, covering Matters not within the 
 Arbitrator's Authority. — It is obvious that if the arbitrators 
 exceed their authority, and consider and determine matters 
 not submitted to them, their award of a gross amount must as 
 a general rule be bad ; ^ for generally no sufficient and satis- 
 
 1 Tomlin v. Mayor of Eordwich, 5 Ad. & El. 147. 
 
 2 Thorp V. Cole, 4 Dowl. 457. 
 
 ' Thrasher v. Haynes, 2 N. H. 429 ; Chase v. Strain, 15 id. 535 ; De Groot ». 
 
DIVISIBILITY OF THE AWARD, ETC. 475 
 
 factory means will exist for apportioning such a finding be- 
 tween the good and the bad considerations which have been 
 brought together in order to make it up. 
 
 A gross sum was allowed for land, machines, appliances, 
 and personal property. The subject-matter of the arbitrator's 
 authority did not embrace the land. It was held that since it 
 was impossible to tell what proportion of the whole sum was 
 allowed on account of this item, no separation could be effected, 
 and the whole award must fall.^ 
 
 A submission was entered into between the joint owners of a 
 vessel " concerning her earnings and expenses." An award 
 was made ordering payments of certain gross amounts to be 
 made between the parties, v^ith no specification of items. It 
 was shown that the arbitrators had included in their estimate 
 the cost of insurance. This was held to be in excess of their 
 authority, and since there were no means by which the amount 
 of this erroneous allowance could be ascertained or accurately 
 estimated, the award was necessarily indivisible and altogether 
 void.2 
 
 A submission authorized the arbitrators to find damages 
 for past misconduct only on the part of the defendant in the 
 use of a water-power. They awarded certain sums of money 
 to be paid "in full satisfaction of all past and future damages." 
 No means being afforded for a separation, the whole award was 
 held to be void.^ 
 
 An award was for a gross sum to be paid by one party to the 
 other. It appeared, upon a trial of this' specific issue, that in 
 this was included a note which the payee under the award did 
 not receive until after the date of the submission, and which, 
 therefore, was not within its scope. It was held that there 
 
 United States, 5 Wall. 419 ; Watkine v. Phillpotts, M'Lel. & Y. 393 ; Nichols v. 
 Kensselaer County Mut. Ins. Co., 22 Wend. 125; Gordon v. Tucker, 6 Maine, 
 247. 
 
 1 De Groot v. United States, 5 Wall. 419, at p. 431. 
 
 2 Sawyer v. Freeman, 35 Maine, 542. 
 
 3 Boynton v. Frye, 33 Maine, 216. 
 
476 DIVISIBILITY OF THE AWARD, ETC. 
 
 could be no separation, and that the whole award was void.^ It 
 was so held also in another case, where a stale note had been 
 wrongfully included in an award of a gross sum, upon the 
 ground that the amount which the arbitrators had " awarded 
 on account of the note did not appear on the face of their 
 award." 2 
 
 A case in equity was referred to an arbitrator. By the terms 
 of the submission, he was expressly precluded from disallow- 
 ing a particular sum which the defendants admitted to be due 
 from them. Nevertheless, after finding the general balance 
 due from them, he stated in his award that he had not charged 
 them with this sum. The award was declared to be bad by 
 reason of this disallowance. The defendants offered to allow 
 the amount in account against themselves. But the Master of 
 the Rolls held that the error could not be thus cured, and set 
 aside the whole award.^ 
 
 A reference was made, among other things, concerning the 
 defendant's bill of costs, as an attorney ; the arbitrator was to 
 ascertain the balance between the parties, but no question of 
 liability was to be raised. The court held that the arbitrator 
 ought not to have made any deductions from the defendant's 
 bill by reason of his not having been admitted an attorney of 
 one of the superior courts of Westminster ; and, it having been 
 shown by affidavits that he, in fact, had made such deductions, 
 the whole award was set aside.* 
 
 Separation of an Award finding a G-ross Sum may sometimes be 
 made. — It will be observed that the preceding cases, in which 
 separation in an award of a gross sum has been refused, have 
 proceeded upon the basis of the non-existence of any sufficient 
 standard for effecting the elimination accurately. It cannot be 
 told with certainty, it is said, how much the arbitrators have 
 
 1 Thrasher v. Haynes, 2 N. H. 429. 
 
 2 Adams v. Adams, 8 N. H. 82, at p. 92. 
 ' Skipworth v. Skipworth, 9 Beav. 135. 
 
 * Harries v. Thomas, 2 Mee. & W. 32 ; Russell on Arb., 3d ed. p. 319. 
 
DIVISIBILITY OF THE AWARD, ETC. 477 
 
 allowed on account of the matters wrongfully considered and 
 included by them. If the reason of the rule fails, however, 
 the rule itself may fail. It is not an arbitrary dogma. Ac- 
 cordingly it has been said by the court in Vermont, that the 
 fact that the statement of the award is in the aggregate does 
 not always or necessarily render it indivisible. If, from facts 
 appearing on its face, it has evidently been made up from dis- 
 tinct items, and so made up that these items are capable of 
 being accurately severed, then the separation may be made for 
 the purpose of avoiding a portion and sustaining a portion. ^ 
 
 It will be observed that this adjudication says that the sep- 
 arability of the items must be apparent on the face of the 
 award. It is impossible to go outside of the instruments 
 before the court, and by evidence dehors to show to the court 
 the means by which the arbitrators have arrived at the sum 
 named by them. In Sawyer v. Preeman,^ it is probable that 
 the evidence offered to show that the arbitrators had included 
 insurance might have been extended by the other party to 
 show how much they had allowed for it ; but no intimation 
 appears that this would have been allowed. In Thrasher v. 
 Haynes,^ the error lay in the allowance of the amount of a 
 note ; a sum which it is natural to suppose could have been 
 ascertained had the court been willing to do so. In Skipworth 
 V. Skipworth,* the erroneous allowance was of a specific sum, 
 stated in the award, yet no separation was made. This case, 
 it must be admitted, goes directly against the general prin- 
 ciple enunciated in this paragraph. 
 
 An award was published verbally to the parties, to the effect 
 that damages were found for one in a certain sum. The arbi- 
 trators at the same time stated to the parties the several items 
 which they had allowed. Afterward, at the request of a party, 
 
 1 Dalrymple v. Town of Whitingham, 26 Vt. 345. 
 
 2 35 Maine, 542, ante, p. 475. 
 
 3 2 N. H. 429, ante, pp. 475, 476. 
 * 9 Beav. 135, ante, p. 476. 
 
478 DIVISIBILITY or THE AWARD, ETC. 
 
 they made a statement of their finding in writing, in which 
 they set forth only the gross sum found by them. Two of the 
 items, verbally declared by them, were for matters which were 
 beyond the scope of their authority. These the court allowed 
 to be deducted in a suit brought for the gross sum, and a 
 judgment to be rendered for the balance.^ 
 
 A submission under a building contract authorized the ar- 
 bitrators to award only concerning the cost which might be 
 caused by certain alterations made from the original design. 
 But, exceeding this scope, allowance was made for workman- 
 ship and materials, alleged to be defective, in parts of the 
 building not altered from the original plan. The award was 
 for a gross sum. It was proposed to separate the good part of 
 the award from the bad by the aid of an account kept by a 
 clerk at the meetings of the arbitrators, from which, it was 
 said, the amount of the items properly allowable could be as- 
 certained. But the court refused, on the ground that there 
 " had not been any formal adjudication as to the amount prop- 
 erly allowable under those items. The account contained a 
 mere estimate. Neither party could make use of it by way of 
 charge or. discharge. It was not conclusive evidence of the 
 amount due." ^ 
 
 The Presumptions vrill be favorable to Separation. — Though 
 it is not allowed to go outside of the award to establish the 
 propriety of separation, yet, in construing the award itself, it 
 appears that the doctrine of favorable intendment in support of 
 the award will be carried so far that, if an award be bad in 
 part and good in part, it will be presumed that there is no con- 
 nection between these parts unless the contrary is to be afifirm- 
 atively gathered from the face of the award. • 
 
 A submission was entered into between an insurance com- 
 pany and the assured, in respect of the amount of money to be 
 paid in compensation for a loss. The arbitrators named the 
 
 1 Dalrymple v. Whitingham, 26 Vt. 345. 
 
 '' Mayor, &c., of New York, 1 Barb. 325, at p. 336. 
 
DIVISIBILITY OF THE AWARD, ETC. 479 
 
 sum, and then ordered that the assured should assign to the 
 company his claims against another company in respect of 
 the same loss. The court said : " We cannot, on the face of the 
 award, see any necessary connection or dependence between 
 the part which requires the defendants to pay and that which 
 directs the plaintiff to assign. The assignment is not made a 
 condition to the payment, nor does it appear that the arbitra- 
 tors intended that one act should be performed as the consider- 
 ation, either in whole or in part, for the performance of the 
 other. Looking at the award alone, we are not authorized to 
 say that the arbitrators would not have directed the payment 
 of the money unless there was to be an assignment of the claim 
 against the S. company, nor that a greater sum was awarded 
 to the plaintiffs in consequence of awarding an assignment." 
 The doctrine of favorable presumption was then invoked as 
 conclusive in favor of the divisibility.^ 
 
 Parties submitted to arbitration " all matters of controversy 
 subsisting between them, whether debt, damages, costs, title 
 to lands, or any other matter whatsoever." The arbitrators 
 in their award established certain boundary lines, saying with 
 regard to one, " where said P. has slightly encroached on said 
 A., which we take into account in the assessment of damages 
 between the parties." They further said that, " on examining 
 and assessing the sums respectively due to each other for 
 damages, costs, &c.," and striking a balance, they found a 
 certain sum due from A. to P. The submission was not 
 framed with the necessary formalities for enabling the arbi- 
 trators to award upon questions of title to real estate. It was 
 insisted, against the award, that the indefinite finding for 
 "damages, costs, &c.," included an estimate for A.'s land, 
 found by the arbitrators to be on P.'s side of the fence. The 
 court, however, fell back upon the doctrine of favorable pre- 
 sumption ; said that " it could not be inferred necessarily nor 
 even probably that the arbitrators estimated any damages ex- 
 
 1 Nichols V. Rensselaer County Mut. Ins. Co., 22 Wend. 125. 
 
480 DIVISIBILITY OF THE AWARD, ETC. 
 
 cept for the trespass by encroachment ; " and sustained this 
 portion of the award. ^ 
 
 A submission gave to the arbitrators certain powers con- 
 cerning claims arising prior to a certain date ; in their award 
 the arbitrators exercised these powers also as to claims (if any 
 such there were, which did not appear) arising subsequent to 
 the stipulated date. The court refused to presume, merely for 
 the purpose of invalidating the award, that if any claims had 
 arisen subsequent to the date, they would not be of such a 
 nature as to be easily distinguishable and separable from the 
 rest, so that thereby the residue of the award might be 
 sustained.^ 
 
 The Desire of the Courts is to make the Separation. — As has 
 been stated in the chapter upon Rules of Construction, the 
 purpose of the courts is always to construe an award liberally, 
 and to uphold it if possible. The same principle comes into 
 play in connection with this matter of divisibility. It is always 
 considered desirable to make a separation where it is possible 
 to do so without prejudice to the interests of either disputant, 
 and where doing so will have a materially good effect in 
 quieting controversies.^ 
 
 But it is obvious that such a severance is matter of great 
 delicacy. It can only proceed upon the theory that the portion 
 retained has been in no manner affected by the consideration 
 in the minds of the arbitrators of the part rejected. It is 
 therefore, in niost instances, little short of an effort to trace 
 the workings of another man's mind simply upon an exami- 
 nation of the results at which he has arrived. The process is 
 obviously full of danger ; yet in the interests of quiet and the 
 settlement of disputes it must often be undertaken. Its dif- 
 ficulty has been observed and commented upon by jurists ; and 
 Lord Denman, 0. J., once said, in a case where he was asked 
 
 1 Parmelee v. Allen, 32 Conn. 115. 
 
 " Richardson v. Huggins, 23 N. H. 106, at p. 113. 
 
 8 Butler V. Mayor, &c., of New York, 1 Hill, 489. 
 
DIVISIBILITY OF THE AWARD, ETC. 481 
 
 to make such a separation, that he " always found a diffi- 
 culty in separating the good part of an award from the bad. 
 The arbitrator probably frames one part with a view to the 
 other, and each may be varied by the view which he takes of 
 the whole." ^ 
 
 Russell considers that " this observation is worthy of atten- 
 tion, since it seems to embody the principle on which the 
 courts will act at the present day, when they are called upon 
 to decide whether an award, clearly bad in part, can be sepa- 
 rated as to the remainder. For it must often happen that a 
 direction, perfectly separable as far as the grammatical con- 
 struction of the award is concerned, is the ground on which 
 the arbitrator has proceeded in making some equivalent pro- 
 vision affecting the other party." ^ 
 
 Separation in Cases of an Uncertainty in Part of the Award. — 
 Uncertainty in a portion of the award may or may not neces- 
 sarily avoid the whole award, according as the uncertain 
 portion is or is not inseparably connected with the rest. Thus 
 if an award be so uncertain in part that one party, A., cannot 
 enforce fulfilment by the other party, B., then it is not divisible 
 for the benefit of B., so that he may enforce the things enjoined 
 to be done by A. in his favor.^ But where an arbitrator, 
 having power over costs, gave directions concerning them 
 which were void for uncertainty, it was held that the remainder 
 of his award, embracing his decision concerning the debt or 
 damages due from one party to the other, should be sustained.^ 
 
 A dispute arose between two parties under a contract to 
 build a house. The award ordered one to pay to the other a 
 
 1 Tomlin v. Mayor of Eordwich, 5 Ad. & El. 147. 
 
 2 Kussell on Arb., 3d ed. p. 320. 
 
 3 Schuyler v. Van Der Veer, 2 Gaines, 235. 
 
 1 Morgan v. Smith, 1 Dowl. n. s. 617 ; England v. Davison, 9 id. 1052 ; Addi- 
 son V. Gray, 2 Wils. 293 ; Bargrave v. Atkins, 3 Lev. 413 ; Pinkny v. Bullock, 
 cited 3 Lev. 413 ; Addison v. Spittle, 18 L. J. Q. B. 151. See also Bae. Abr. 
 Arb., E. 3 ; Thinne v. Eigby, Cro. Jac. 314 ; Pope v. Brett, 2 Saund. 293 5 ; 
 Orcutt V. Butler, 42 Maine, 83. 
 
 31 
 
482 DIVISIBILITY OF THE AWARD, ETC. 
 
 certain sum, and ordered the latter to finish the house. The 
 order concerning the finishing the house was so uncertain as 
 to be incapable of enforcement and void. It was held that it 
 could not be separated and rejected, but that the whole award 
 must fail.^ 
 
 Separation may sometimes be effected -where the Party losing 
 thereby -will -waive his Advantage or Objection based on the Bad 
 Part. — It is noticeable in the case of Inhabitants of Leominster 
 V. Worcester Eailroad Company,^ that the party moving to 
 have the award confirmed was the party in whose favor the 
 uncertain order in respect of costs was made. The loss, by 
 reason of the separation and rejection of the bad part, fell upon 
 the party who sought to have the award sustained. It was a 
 loss which he was willing to suffer rather than have the entire 
 award set aside and the controversy reopened. Had the po- 
 sition of the parties been reversed, a different decision might 
 not improbably have been rendered. Thus says also Mr. 
 Eussell. After stating several cases, already cited in this chap- 
 ter, he adds : " It may be observed, with regard to the class of 
 cases above cited, that although the courts have refused to 
 allow the party who is ordered to do certain acts to object that 
 the award is wholly void, because the arbitrator has awarded 
 something within his power, and also something beyond, yet 
 it by no means follows that in many of them the award would 
 not have been set aside in toto, had the complaint come from 
 the other party that he could not, by reason of the badness of 
 the award in one particular, receive all the benefit the arbitra- 
 tor contemplated to give him." ^ 
 
 So, likewise, in cases where the arbitrator has power to 
 award concernifig the costs, if he orders the defendant to pay 
 to the plaintiS" a certain sum by way of debt or damages, and 
 
 ^ Schuyler v. Van Der Veer, 2 Caines, 235. 
 2 7 Allen, 38, stated ante, p. 463. 
 
 ' Russell on Arb., 8d ed. pp. 315, 316; Taylor v. Shuttleworth, 8 Dowl. 
 281. 
 
DIVISIBILITY OF THE AWARD, ETC. 483 
 
 also to pay the costs of the action ; and if this order as to costs 
 be bad for uncertainty for any reason (as if the action be 
 pending in an inferior court where no taxation of costs can be 
 made, and it was therefore the arbitrator's duty to ascertain 
 their amount), or if he was specially directed by the submis- 
 sion to ascertain the amount, the court will nevertheless sepa- 
 rate the order for payment of costs, and allow the plaintiff, if 
 he be content to forego this part of the award, to enforce the 
 remainder which ascertains and orders payment of his debt or 
 damages.^ 
 
 An Ainrard in the Alternative may be separated. — If an award 
 be made in the alternative, and one alternative be bad, im- 
 possible, or uncertain, the other will stand absolutely as the 
 award .2 
 
 Effect of an Offer to perform an Inoperative Order. — It is said 
 that where the good part of the award is connected with and 
 dependent upon the bad part, so that they must fall together, 
 an offer to perform the bad part made by the party intended 
 to be bound thereby would perhaps remove the objection, and 
 enable him to enforce performance of the good portion by the 
 other party .^ 
 
 Effect of Separation on Directions concerning Fees. — Where a 
 part of the award is void and a part sustained, the directions 
 concerning the payment of fees will not be interfered with, if 
 it so happens that the labors of the arbitrators were not appar- 
 ently increased by the consideration of the" questions which 
 they have decided wrongly ; i.e., where, substantially, the 
 same investigation has covered both the rightly and the wrongly 
 determined points.* 
 
 1 Morgan v. Smith, 1 Dowl. n. s. 617 ; England o. Davison, 9 Dowl. 1052 ; 
 Addison o. Gray, 2 Wils. 293 ; Bargrave v. Atkins, 3 Lev. 413 ; Pinkny v. Bul- 
 lock, cited 3 Lev. 413 ; Addison v. Spittle, 18 L. J. Q. B. 151. 
 
 2 Simmons v. Swaine, 1 Taunt. 548 ; "Wharton v. King, 2 B. & Ad. 528 ; Lee 
 V. Elkins, 12 Mod. 585 ; Oldfield v. Wilmer, 1 Leon. 140, 304. 
 
 2 Nichols V. Rensselaer County Mut. Ins. Co., 22 Wend. 125. But see Skip- 
 worth V. Skipworth, 9 Eeav. 135, which is rather at variance with this rule. 
 * Giddings «. Hadaway, 28 Vt. 342. 
 
484 DIVISIBILITY OF THE AWARD, ETC. 
 
 The Court may hold a Separable Award under Advisement. — 
 If an award appears to be in part good and in part bad, it has 
 been declared that the court may hold it for a time under 
 advisement, to await the production of evidence which there 
 is an expectation of producing, and which may sustain it in 
 whole.i 
 
 Suits instituted upon Separable Awards. — In a Suit based 
 upon a separable award, if the suit be brought only to en- 
 force that part of the award which is good, it is said that 
 the court will allow the plaintiff to prevail.^ Whence it ap- 
 pears that there is no necessity for any preliminary or dis- 
 tinct proceedings to be had with a view to establishing the 
 fact of divisibility or actually effecting the separation. Indeed, 
 all the cases show, though none of them pass upon the spe- 
 cific point, that the good portion of a separable award may 
 be availed of, by itself, either as a cause of action, or by 
 way of defence or bar, precisely as an entirely good award 
 might be availed of for the same purposes. The separation 
 may be said to be an incidental matter, and will be made 
 by the court whenever an objection founded upon the bad 
 part is presented and urged by a party as an objection to the 
 whole. 
 
 If the award is of a gross sum, and some of the items upon 
 which it is founded ought not to have been considered or in- 
 cluded by the arbitrators, the plaintiff may declare in assumpsit 
 for the aggregate ahiount, and the items as to which the award 
 is bad may be disallowed by the court, and judgment rendered 
 for the balance. Though it is said that if the form of action 
 were in debt on the bond, it would be more proper to set up 
 merely so much of the award as is valid, and assign a breach 
 of that, since non-performance of that part only would be a 
 breach of the bond.^ 
 
 1 Dennis v. Barber, 4 Binney, 484. 
 
 2 Orcutt V. Butler, 42 Maine, 83. 
 
 8 Dalrymple v. Town of Whitingham, 26 Vt. 345. 
 
DIVISIBILITY OS" THE AWARD, ETC. 485 
 
 So likewise it would seem that any article in an award, 
 which article is in itself wholly good, may be singled out and 
 made the independent basis of a suit, as a complete cause of 
 action.^ 
 
 1 See Lamphire v. Cowan, 39 Vt. 420 ; Schuyler v. Van Der Veer, 2 Caines, 
 236. 
 
CHAPTER XYIII. 
 
 EFFECT AND OPERATION OF THE AWARD. 
 
 An award is final and conclusive. 
 
 An award in evidence is conclusive. 
 
 Impeaching by evidence an award put in evidence. 
 
 An award is equivalent to a decree in equity. 
 
 An award on illegal matters is void. 
 
 Effect of a colorable award. 
 
 Legal character of an award under seal. 
 
 An award constitutes a merger and bar of the original claim. 
 
 A case where the merger is not effected. 
 
 A void award effects no bar or merger. 
 
 Extent of the operation of the award in respect of the matters submitted. 
 
 English cases sustaining the rule of conclusiveness as to all matters submitted. 
 
 An award ordering general releases is final as to all matters submitted. 
 
 The English rule in equity is doubtful. 
 
 The English rule in equity concerning unintentionally omitted matters. 
 
 The English rule seems intrinsically just. 
 
 The rule of conclusiveness as to matters omitted, in New York. 
 
 The rule in New York where the scope of the submission is doubtful. 
 
 The rule in Connecticut. 
 
 The rule in Vermont. 
 
 The rule in Maine. 
 
 The rule in New Hampshire. 
 
 The rule in Massachusetts. 
 
 Effect on the rule of a deliberate refusal to present a claim. 
 
 An award not deciding the controversy is no bar. 
 
 Award under a submission of matters " in difference." 
 
 The award bars only the precise matter submitted. 
 
 Pleading an award in bar to a matter not disposed of by it. 
 
 The burden of proof where an award is pleaded in bar. 
 
 Whether a party not having performed his part of an award can plead it in bar. 
 
 A condition precedent must be performed before an award is a bar. 
 
 An award is pleadable in bar to a bill in equity. 
 
 Pleading an award in set-off. 
 
 Operation of an award to vest the title to personalty. 
 
 An award as to chattels of the wife is a reduction into possession. 
 
 Operation of an award upon the title to real estate. 
 
 An award of commissioners under a statute may pass title. 
 
 An award finding title to realty will sustain an action in ejectment. 
 
 Operation of awards determining boundary lines. 
 
 An award finding title or setthng a boundary line is a defence in trespass. 
 
EFFECT AND OPERATION OE THE AWARD. 487 
 
 An award finding title, not under seal, will operate by way of estoppel. 
 
 Operation of an oral award concerning a boundary line. 
 
 An oral award under an oral submission concerning a boundary line is competent 
 
 evidence. 
 Estoppel by an award need not always be pleaded. 
 Operation of an award simply finding title. 
 Operation of an apparently inadequate award. 
 An award is inoperative as to strangers. 
 An award is inadmissible in evidence against a stranger. 
 An award may sometimes be competent evidence for a stranger. 
 A stranger may by his own act bring himself within the operation of an award. 
 A stranger cognizant of the submission may be within the operation of the 
 
 award. 
 Parties are bound though the award concerns the rights of a stranger. 
 Operation as to sureties of an award extending time for a principal debtor. 
 The rights of a party under an award may pass to a stranger by assignment. 
 An award is not evidence in a criminal prosecution. 
 Operation of an award in a lis pendens. 
 
 Operation of an award in a Us pendens, including extrinsic matters. 
 Effect of the bankruptcy of a party on the operation of an award. 
 An award creates a debt provable in bankruptcy. 
 Recitals in an award as evidence. 
 A valid award needs no ratification. 
 
 But voidable awards may»be rendered operative by ratification. 
 A void award cannot be ratified. 
 Ratification by an agent. 
 An award repudiated by both parties cannot be revived. 
 
 An Award is final and conclusive. — A valid award Operates as 
 a final and conclusive judgment, as between the parties to the 
 submission or within the jurisdiction of the arbitrators, respect- 
 ing all matters determined and disposed of by it.i It stands 
 good for all time,^ unless the award itself (in which event it 
 may probably not be final), the submission, or the statute 
 under which the arbitration is had, specifically limit its effect 
 to some shorter period.^ 
 
 1 Coleman v. Wade, 2 Seld. (N. Y.) 44; Girdler v. Carter, 47 N. H. 305; 
 Bannel v. Pinto, 2 Conn. 431 ; Wheeler v. Van Houten, 12 Johns. 311 ; Eidler 
 V. Cooper, 19 Wend. 285 ; Curley v. Dean, 4 Conn. 259 ; Varney v. Brewster, 
 14 N. H. 49 ; Russell on Arb., 3d ed. p. 476 ; Sybray v. White, 1 Mee. & W. 435 ; 
 Whitehead v. Tattersall, 1 Ad. & El. 491 ; Bailey v. Lechmere, 1 Esp. 375. 
 
 2 Day V. Bonnin, 3 Bing. N. C. 219; Bird v. Cooper, 4 Dowl. 148; Bacon 
 Abr. Arb., E. ; Stonehewer v. Farrar, 9 Jur. 203 ; Dudgeon v. Martin, 1 McQueen 
 H. of L. 714. 
 
 3 See Russell on Arb., 3d ed. p. 476. 
 
488 EFFECT AND OPERATION OF THE AWAED. 
 
 An Award in Evidence is conclusive. — A valid award, pro- 
 duced in evidence, is conclusive between the parties. So long 
 as it remains unimpeached, it cannot be contradicted by other 
 evidence. 1 
 
 The rules of practice at common law allow an award to be 
 given in evidence under the general issue of non assumpsit? 
 
 Generally, it is not evidence as an account stated,^ though 
 there are instances of its having been admitted as such.* 
 
 In an action of assumpsit against an executor, in which the 
 defendant pleads plene administravit, an award finding a sum- 
 due from the testator's estate, but not directing payment, can- 
 not be offered in evidence by the plaintiff as constituting an ad- 
 mission of assets, and so defeating the plea." But if the award 
 contain an order for payment by the executor, it seems that it 
 is then conclusive evidence of assets.^ 
 
 An award between the same parties, determining the title to 
 land, is conclusive evidence of the right in a subsequent action 
 of ejectment.^ 
 
 Impeaching by Evidence an Avs-ard put in Evidence. — The 
 doctrine is laid down by Russell that when an award is 
 tendered in evidence, the opposite party may offer evidence 
 in reply to impeach its validity. Its binding effect having 
 been thus done away with, evidence becomes admissible as to 
 the matters professedly determined by it.^- 
 
 1 Russell on Arb., 3d ed. p. 536 ; Sybray v. White, 1 Mee. & W. 435; White- 
 head V. Tattersall, 1 Ad. & El. 491 ; Bailey v. Lechtnere, 1 Esp. 375 ; and see ante, 
 the first paragraph in this chapter. 
 
 " Russell, vbi supra; Allen v. Milner, 2 Cr. & Jer. 47-; Kingston v. Phelps, 
 1 Peake, N. P. 299. 
 
 s Bates v. Townley, 2 Exeh. 152. 
 
 * Keen v. Batshore, 1 Esp. 194 (per Lord EUenborough) ; Salmon v. Watson, 
 4 Moore, 73. 
 
 ' Pearson v. Henry, 5 Term, 6. 
 
 6 Worthington v. Barlow, 7 Term, 453 ; this subject has been already dis- 
 cussed in Chapter I. p. 19 et seq. 
 
 1 Doe d. Madkins u. Horner, 8 Ad. & El. 235 ; Doe d. Morris v. Eosser, 3 
 East, 15 ; and seepos( in this chapter, the paragraph " An Award finding Title to 
 Realty will sustain an Action in Ejectment." 
 
 8 Russell on Arb., 3d ed. pp. 540, 541 ; Whitehead v. Tattersall, 1 Ad. & El. 491. 
 
EFFECT AND OPERATION OF THE AWAED. 489 
 
 If an award made pursuant to a submission of all matters 
 in difference is offered in evidence by the one party, the other 
 may prove that some of the matters embraced in the submis- 
 sion have not been determined or disposed of by the award.^ 
 
 Mistake or misconduct of the arbitrator cannot be given in 
 evidence to impeach an award which is put in evidence.^ 
 
 An Award is equivalent to a Decree in Equity. — In equity, an 
 award rendered in pursuance of a submission by order of the 
 court is regarded as a decree, and as equally if not more con- 
 clusive.^ 
 
 Yet a court of chancery will not always suffer an award to 
 be made binding upon its own officers. Thus, where accounts 
 were directed to be taken by a master, and by consent liberty 
 was given to the parties to submit to arbitration any question 
 of account, the court allowed the master to accept and adopt 
 the conclusions of the arbitrator, but refused, even by consent, 
 to make it compulsory upon him so to do.* 
 
 An Award on Illegal Matters is void. -^ If the Subject-matter 
 of the submission consists of transactions clearly illegal, or 
 such as cannot properly be referred or submitted, the award 
 will be inoperative and unenforceable.^ 
 
 Effect of a Colorable Award. — A somewhat singular custom 
 is mentioned by Russell as having at one time been prevalent 
 in Scotland. Though nowhere else in the law-books does any 
 trace of such a proceeding appear, yet, as it is one which might 
 at any time happen to be conceived and resorted to by an 
 ingenious counsel, it seems worth mentioning here. It seems 
 that parties who had had matters in dispute between them, 
 concerning which they had succeeded in coming to an agree- 
 
 1 Ingram v. Milnes, 8 East, 444. 
 
 2 See Chapter XIX, ; Swinford v. Burn, Gow N. P. 5 ; Johnson v. Durant, 2 
 Bam. & Ad. 925. 
 
 3 Russell on Arb., 3d ed. p. 477 ; Travers v. Lord StaflTord, 2 Ves. Sen. 19 ; 
 Pitcher «. Rigby, 9 Price, 79. 
 
 * Russell on Arb., 3d ed. p. 477; Scale v. Fothergill, 8 Beav. 361. 
 
 * Russell on Arb., 3d ed. p. 481 ; Steers v. Lashley, 6 Term, 61 ; Thorp v. 
 Cole, 4 Dowl. 457 ; 2 Cr. Mee. & Eos. 367 ; 1 Mee. & W. 531. 
 
490 EFTECT AND OPERATION OF THE AWARD. 
 
 ment, were wont to throw that agreement into the form of a 
 submission and a " decreet arbitral," with the purpose of 
 giving it a binding force. The opinion, says Russell, was 
 entertained by some of the most eminent men at the Scotch 
 bar that a decreet arbitral might properly be used to carry an 
 agreement into execution, and might have the technical effect 
 and validity of such a legal instrument, though used in this 
 peculiar way. But the question having been finally brought 
 before the House of Lords, it was decided in the contrary way, 
 to the effect that an agreement carried out under color of a sub- 
 mission and decreet arbitral could not be regarded as a valid 
 submission or a valid decreet arbitral. ^ 
 
 Legal Character of an Award under Seal. — An award under 
 seal is not a deed, unless it be delivered to take effect as such ; 
 ordinarily it is merely an instrument under hand and seal.^ 
 
 An Award constitutes^ a Merger and Bar of the Original Claim. — 
 Like a judgment the award operates to merge and bar the 
 original claim. After the award has been rendered, the suit must 
 be upon it, or upon the covenants of the submission or bond. 
 The subjeclrmatter of the arbitration no longer subsists as an 
 independent cause of action. As such it has been completely 
 disposed of.^ 
 
 Thus if the subject of the submission is a contract existing 
 between the parties, the legal operation of the award will be to 
 extinguish such contract.* 
 
 A Case where the Merger is not effected. — The following case, 
 though decided in Arkansas, must be acknowledged to contain 
 a sound and sensible ruling on the law of merger by an award 
 made. The controversy submitted was concerning a lease ; the 
 
 1 Russell on Arb., 3d ed. pp. 477, 478; Maule v. Maule, 4 Dow, 363 ; Rout- 
 ledge V. Carruthers, 4 Dow, 392. 
 
 2 Russell on Arb., 3d ed. pp. 241, 477, 516 ; Brown v. Vawser, 4 East, 684 ; 
 Blundell v. Brettargh, 17 Ves. Jr. 232; Dod v. Herbert, Sty. 459; Perry v. 
 Nicholson, 1 Bur. 278 ; Hodsden v. Harridge, 2 Saund. 64 I. 
 
 " Duren v. Getohell, 55 Maine, 241 ; Girdler v. Carter, 47 N. H. 305 ; Arm- 
 strong V. Masten, 11 Johns. 189. 
 
 * Varney v. Brewster, 14 N. H. 49 ; Curley v. Dean, 4 Conn. 259. 
 
EFFECT AND OPERATION OF THE AWARD. 491 
 
 award directed that the lessee should continue to pay rent to 
 the amount and in tlie manner directed in the lease. It was 
 held that an action could thereafter be brought on the original 
 covenants of the lease ; for that such an award did not operate 
 to merge and destroy the right of action on the original instru- 
 ment.^ The general principle derivable from this, that an 
 award simply affirming the provisions of an existing document 
 does not so far supersede that document that any subsequent 
 action can be only on the award, seems to be eminently just 
 and reasonable. Mr. Russell, in discussing the matter of plead- 
 ing an award, has a remark of similar import ; to the effect that 
 an award directing a payment cannot be pleaded in bar to an 
 action for the original debt without an allegation of perform- 
 ance. " For the money, until paid, is due in respect of the 
 original debt ; as, for instance, if the claim be for tolls, the sum 
 awarded is due for tolls still." ^ 
 
 A Void Award effects no Bar or Merger. — Where the award is 
 void, resort may be had to the original cause of action, which 
 will not be treated as having been barred or merged or in any 
 other way destroyed. ^ 
 
 E^ent of the Operation of the Award in Respect of the Matter 
 submitted. — The most interesting and important question which 
 arises in the discussion of the operation and effect of an award 
 concerns its extent. Does an award operate as a final deter- 
 mination, disposition, or bar in respect of all matters embraced 
 and included within the scope of the submission ; or does it so 
 operate only in respect of those matters which are, in fact, 
 mentioned by, or by the necessary implication of its language are 
 included within, the instrument itself? The English cases, col- 
 lected by Mr. Russell with his usual care and thoroughness,* 
 are substantially unanimous in support of the former principle. 
 
 1 Keeler v. Harding, 23 Ark. 697. 
 
 2 RusseU on Arb., 3d ed. p. 524. 
 
 ' Mayor of New York v. Butler, 1 Barb. 325 ; Haggart v. Morgan, 5 N. T. 
 422 ; Hart v. Lauman, 29 Barb. 410 ; Morton v. Cameron, 3 Robertson, 189. 
 * Russell on Arb., 3d ed. pp. 478-480, incluslTe. 
 
492 EPEECT AND OPERATION OF THE AWARD. 
 
 The cases decided in the courts of the United States are less 
 uniform ; but the majority of them incline rather towards the 
 latter doctrine. Beginning with the foreign adjudications, we 
 find them as follows : — 
 
 English Cases sustaining the Rule of Conclusiveness as to all 
 Matters submitted. — It is said that after an award has been 
 made, no action can be maintained based upon any dispute, 
 demand, or any cause of action whatsoever, which was within 
 the scope of the submission, even though the same was not in 
 fact presented or urged before the arbitrators, or decided by 
 them.i 
 
 A railway company took lands of the plaintiff, and retained 
 possession of them for several years, without, however, being 
 entitled thereto. The plaintiff then instituted a suit in eject- 
 ment. On the trial the cause and all matters in difference 
 were referred, and it was ordered that the arbitrator should 
 determine what sum should be paid to the plaintiff by way of 
 price or compensation for the land taken. The plaintiff upon 
 his part undertook to execute or procure to be executed such 
 conveyances as the arbitrator might direct. The award was, 
 that the verdict for the plaintiff should stand, that a certain sum 
 should be paid to the plaintiff by the defendant corporation as 
 a price and compensation for the land taken, that there were no 
 other matters in difference between the parties, and that the 
 payment should be taken to be in full satisfaction of all matters 
 in difference. The court held that the plaintiff could not main- 
 tain a subsequent action to recover the mesne profits of the land 
 taken ; that the order that the verdict for the plaintiff should 
 stand intended merely that he was entitled to the land at the 
 time, of the institution of his suit ; that by virtue of the refer- 
 ence of all matters in difference, the arbitrator was bound to 
 consider as a matter in difference all claims for mesne profits, 
 
 1 Dunn V. Murray, 9 Barn. & Or. 780 ; Dicas v. Jay, 6 Bing. 519 ; Smith «. 
 Johnson, 15 East, 213 ; Collins v. Powell, 2 Term, 756 ; Clegg v. Dearden, 12 
 Q. B. 576. 
 
EFFECT AND OPERATION OF THE AWARD. 493 
 
 both before and after the order of reference ; that though the 
 award was apparently defective, by reason of not containing any 
 directions for conveyances, yet it might possibly be sustained 
 upon the presumption that the railway company had acquired 
 title to the land in the interval between the making the order 
 of reference and the rendition of the award. ^ 
 
 Arbitrators omitted from their consideration and award a 
 •certain demand which was clearly within the submission, but 
 which they erroneously regarded as rembved from the scope of 
 the arbitration by reason of the fact that it was admitted by 
 the opposite party to be correct and valid. Discussing the 
 propriety of setting aside the award altogether by reason of 
 this defect, the court intimated the opinion that should they 
 refuse to do so, and allow the award to stand, it would be 
 a matter of great difficulty (though they did not here say that 
 it would be impossible) to recover this ' omitted indebtedness 
 by any subsequent proceeding.^ 
 
 An A'ward ordering G-eneral Releases is final as to all Matters 
 submitted. — If an award directs mutual general releases to be 
 exchanged between the parties, it thereby closes all demands 
 between the parties existing up to the date of the submission. 
 If, therefore, a subsequent submission be entered into between 
 them, the arbitrator acting thereunder cannot go behind the 
 date of the earlier submission. That forms an absolute bound- 
 ary, beyond which he cannot trespass for any cause. If he 
 does so, and considers a matter in dispute existing prior to that 
 date, which therefore was properly embraced in the previous 
 submission, and might have been disposed of by the previous 
 award, he will exceed his authority, although as matter of fact 
 this specific controversy was not considered or determined at 
 the foregoing arbitration.^ 
 
 1 Smalley v. Blackburn Railway Company, 2 Hurl. & Nor. 158 ; 27 L. J. Exoh. 
 65 ; Russell on Arb., 3d ed. p. 483. 
 
 2 In re Robson & Railston, 1 Barn. & Ad. 728 ; but see Raree v. Farmer, 4 
 Term, 146 ; and Golightly v. Jellicoe, ib. 147 n. ; stated post, under this same 
 heading. 
 
 3 Trimingham v. Trimingham, 4 Ner. & Man. 786. 
 
494 EFFECT AND OPERATION OF THE AWARD. 
 
 The English Rule in Equity is doubtful. — " How far a suit will 
 lie in equity," says Russell, " in respect of a matter neglected 
 to be brought forward, is not quite clear." ^ 
 
 The English Rule in Equity concerning unintentionally omitted 
 Matters. — In a case arising in a court of equity in Ireland, it 
 was said that an awai-d would indeed be a bar in respect of any 
 claim or demand which was intentionally held back by the 
 claimant at the proceedings before the arbitrators. But if the . 
 omission to present it were purely accidental, or if the arbitra- 
 tors had refused to consider it when offered, on the ground 
 of its not being within the scope of the submission, the rule 
 would be otherwise, and the award would not be a bar.^ 
 
 A submission of all matters in diiference was entered into 
 for the purpose of winding up the affairs of a partnership and 
 dividing the capital. By an accidental omission, an item in 
 the account of good debts owing to the partnership was not 
 included. The award ordered one of the partners to receive 
 all the good debts, and the settlement directed to be made 
 between the partners was based upon the estimated amount of 
 these good debts. A court of equity, in order to prevent the 
 inequality which must otherwise result from the omission, 
 made an order directing the receiving partner to account for 
 what he had received from the good debts in excess of the 
 amount at which they were estimated in the award.^ 
 
 The English Rule seems intrinsically just. — It is difficult to 
 find any fault with the intrinsic justice of the English rule, 
 especially as relaxed by the decisions in equity, opening the 
 door to redress in cases of honest and pardonable oversight. 
 In cases not falling within the benefit of this exception, the 
 principle constitutes simply a strict holding of each party to 
 his duty. If either has a demand which he is bound by his 
 undertaking of submission to present before the arbitrators, 
 
 1 Russell on Arb., 3d ed. p. 479 ; Jones v. Bennett, 1 Bro. P. C. 528. 
 
 2 Brophy v. Holmes, 2 Molloy, 1. See post, Robinson v. Morse, 26 Vt. 392, 
 where the same exception for cases of accidental omission is recognized. 
 
 2 Spencer v. Spencer, 2 Younge & Jer. 249. 
 
EFFECT AND OPERATION OF THE AWARD. 495 
 
 and to have forever quieted by them, he must fulfil this obliga- 
 tion of presentment, or else forfeit his future right to revive the 
 same claim. There is no reason why this should not be so. 
 If, after he has presented the demand, the arbitrators refuse to 
 hear or neglect to determine it, he can have the award vacated 
 by reason of their omission. 
 
 The Rule of Conclusiveness as to Matters omitted, in Nevr 
 York. — The courts of the State of New York show a decided 
 inclination to adopt the English rule. Accordingly we find 
 it declared by them that under a general submission of all 
 demands which either party has against the other, " neither 
 party is at liberty to withhold a demand from the cognizance 
 of the arbitrators, and then to sue for it." As to any demand 
 so withheld, the award is a bar.^ And again, it was said : " An 
 award is conclusive as to all matters to which the submission 
 extends, whether any particular matter included in the sub- 
 mission was laid before the arbitrators or not." ^ Thus, if a 
 submission be made by two persons as party of the one part, 
 of all demands pending between them and the party of the 
 other part, the award will be a bar as to both their joint and 
 their individual claims against him, whether both these classes 
 of demands have or have not been presented before the arbitra- 
 tors and awarded upon.^ 
 
 And again : " An award made under a general submission 
 is final as to matters within the submission, although not 
 brought to the notice of the arbitrator nor embraced in his 
 award. The parties are bound to claim before the arbitrator 
 all demands coming within the scope of the submission ; and 
 if they fail to do so, they will be concluded from ever after 
 asserting such demands." * 
 
 Though in a case in which there was no occasion for going 
 
 1 Wheeler v. Van Houten, 12 Johns. 311. 
 
 2 Fidler v. Cooper, 19 Wend. 285. 
 » Ibid. 
 
 4 Ott V. Schroeppel, 1 Seld. 482 {per Paige, J., at p. 486), in the Court of 
 Appeals, 1861. 
 
496 EFFECT AND OPERATION OF THE AWARD. 
 
 SO far, the court contented itself with remarking only that an 
 award operates as a bar to a suit upon any cause of action 
 determined and disposed of by the award.^ 
 
 The Rule in New York where the Scope of the Submission is 
 doubtful. — And a very sensible relaxation of the extreme 
 strictness of the doctrine is presented by the following ruling : 
 that where it is open to doubt whether or not a certain demand 
 was properly included in a submission, if it is shown that it 
 was not placed before the arbitrators by either party, and 
 therefore, of course, was not included in the award, the pre- 
 sumption will be that it was not within the scope of the sub- 
 mission. The case was presented by a submission entered into 
 between three partners to settle the terms of dissolution of the 
 partnership. A note given by two of the partners to the third 
 during the partnership was not presented to the arbitrators or 
 awarded upon. It might or it might not have been a transac- 
 tion in the course of the partnership business. There was no 
 evidence going to show that it was such a transaction, and the 
 court applied the foregoing rule of favorable intendment.^ 
 
 The Rule in Connecticut. — The reports of Connecticut present 
 us only with the following case, which hardly reaches the point 
 of fully sustaining the English rule as an abstract proposition of 
 universal application, though applying it in the special instance. 
 A submission of all " accounts " had been made, and an award 
 had been rendered. The plaintiff in this suit had exhibited to 
 the arbitrators a part of his books to be adjusted ; but he now 
 sued to recover for certain charges contained in the books, but 
 not actually laid before the arbitrators and awarded upon. 
 The court held that he was precluded from doing so. The 
 word " accounts " included these book accounts, and the award 
 therefore operated as a settlement of them all. Otherwise it 
 would be necessary to try not only the question of the validity 
 of these items, but also the further issue, viz., whether or not 
 
 1 Coleman v. Wade, 2 Seld. 44. 
 ^ Harris v. Wilson, 1 Wend. 511. 
 
EFFECT AND OPERATION OF THE AWARD. 497 
 
 they had been considered by the arbitrators in coming to their 
 conclusion. " Tliis would be to make arbitrations an instru- 
 ment not to diminish but to increase litigation." ^ 
 
 The Rule in Vermont. — In Vermont an award following . a 
 submission by deed is held to operate as a bar as to every 
 matter included in the submission, but intentionally withheld 
 from presentation before the arbitrators.^ Though it is inti- 
 mated, in the case cited, that if the non-presentment arose 
 from mistake, forgetfulness, or accident, these facts might in 
 some circumstances create an exception to the general rule. 
 Whether or not the principle enunciated in this decision would 
 apply in cases where the submission is by parol, the court does 
 not decide ; saying only that it was so applied by the court in 
 New York, ^ but that, on the other hand, the judges had re- 
 fused to apply it in an early decision in Yermont. Therein 
 they expressed some doubts as to the propriety of applying the 
 rule at all, for it was to be presumed that if a disputant omitted 
 to present a demand, he did so from forgetfulness or mistake, 
 and not from design, and he should not be held to suffer so 
 severely for such a blunder. Coming down to the precise facts 
 under consideration, it was added that " there is some danger 
 from this doctrine as applied to parol submissions. Parol 
 testimony of a submission and award may bar a claim that is 
 just, and ought not to be barred, and this through a misappre- 
 hension or forgetfulness of the exact expressions used in the 
 parol submission. They might say all demands when they 
 intended all then exhibited and no others. Awards upon 
 parol submissions of all demands are. in some degree parallel 
 with general receipts in full of all demands. Both are very 
 frequently effected without the aid of counsel and without suffi- 
 cient knowledge of consequences to excite a prudent caution 
 before all is closed. We are not at present inclined to open 
 
 1 Bunnell v. Pinto, 4 Conn. 431. 
 
 2 Eobinson v. Morse, 26 Vt. 392. 
 
 I Wheeler v. Van Houten, 12 Johns. 311, ante, p. 495. 
 32 
 
498 EFFECT AND OPERATION OF THE AWARD. 
 
 the door to go back of written submissions and references that 
 are general, and the awards general ; but we admit the inquiry, 
 whether adjudicated or not, in cases of submissions not in 
 writing." ^ 
 
 In another case arising in Yermont in 1850, Judge Eedfield 
 said: "An award will ordinarily have no greater effect than a 
 judgment. It will only bar what is adjudged, — unless per- 
 haps, if part of one entire transaction is submitted and adjudi- 
 cated, it will bar other portions of the same transaction not 
 presented before the court or arbitrators. Possibly, too, if a 
 submission be general, of all demands, and under seal, and an 
 award follow, it might be esteemed equal to a release under 
 seal, or a covenant not to bring subsequent suits." The sub- 
 mission in this case was of disagreements as to the manage- 
 ment of a farm during the year past; and the adjudication and 
 opinion substantially assert that if a certain class of accounts 
 or items are submitted, the award will bar all, though only a 
 portion are actually submitted and awarded upon ; unless, 
 indeed, it could be shown that the omitted items had been 
 removed out of the scope of the arbitration by the joint con- 
 sent of parties. 2 
 
 Another Vermont case declares that an award, like a judg- 
 ment, ordinarily operates as a bar concerning, and only con- 
 cerning, the matters actually presented and disposed of by the 
 adjudication. But if an account between the parties, consist- 
 ing of several items, be submitted and passed upon, the award 
 operates as a bar in respect of each individual item, although 
 the presentation of some of them before the arbitrators has not 
 been made. For the account must be regarded as an entirety.^ 
 
 The Rule in Maine. — In Maine it has been held that if, under 
 a general submission of all demands, there be some outstand- 
 ing claim to which neither party attracts the attention of the 
 
 1 Buck V. Buck, 2 Vt. 417. 
 
 2 Briggs V. Brewster, 23 Vt. 100. 
 
 3 Ibid. 
 
EFFECT AND OPERATION OF THE AWARD, 499 
 
 arbitrators, and which accordingly they do not pass upon, suit 
 may afterwards be brought upon it, and the award will not be 
 pleadable in bar or estoppel.^ The court in Maine went so far 
 as to say that there was no question about this rule ; an asser- 
 tion showing considerable ignorance or contempt for the adjudi- 
 cations of many respectable tribunals. So held also if the arbi- 
 trators be requested to pass upon the claim, but refuse to do so.^ 
 
 The Rule in New Hampshire. — In New Hampshire the court 
 say that if an agreement be altogether broken by a neglect or 
 refusal to submit any thing, no presumptions, arise in bar of the 
 demands ; but an action lies on the agreement for such damage 
 as may have been sustained by the breach. If the agreement 
 be broken only in part, that is to say, by a neglect or refusal to 
 submit or present a portion of the demands included within the 
 scope of the submission, the same principle is said to prevail. 
 The award would not operate as a bar in a subsequent suit con- 
 cerning these omitted matters ; but the party against whom 
 they existed would have his right of action for damages suf- 
 fered by him by reason of his adversary's partial breach of the 
 contract of submission.^ 
 
 The Rule in Massachusetts. — The tribunals of Massachusetts 
 have departed most widely from the strict English rule. So 
 early as 1809 the following cause arose : A. and B. entered 
 into a statutory submission of " all demands " between them. 
 An award was returned, and judgment entered thereon. After- 
 ward A. was sued by C, the holder, under a blank indorsement, 
 of a promissory note made by A., payable to the order of B. 
 A. pleaded in bar the award and judgment. C. then offered to 
 prove that the note was not presented before the arbitrators or 
 included in the award. Chief Justice Parsons delivered the 
 opinion of the court. He said that either party might prove 
 what demands actually existed at the time of making the 
 
 1 Inhab. of N. Yarmouth «. Inhab. of Cumberland, 6 Greenl. 21. 
 
 2 Bixby V. Whitney, 5' Greenl. 192. 
 
 8 Whittemore v. Whittemore, 2 N. H. 26. 
 
500 EFFECT AND OPERATION OF THE AWARD. 
 
 agreement. " That a promissory note is a demand for certain 
 purposes, cannot be denied, because a release of all demands 
 would be a bar to an action upon it. Yet it may well be ques- 
 tioned whether a submission of all demands to arbitrators 
 includes an acknowledged debt not in controversy, and con- 
 cerning which tliere is no difference or dispute. If it is a fair 
 construction of such a submission, that it includes all matters 
 in difference, then either party may prove that a particular 
 demand was not laid before the arbitrators, and so was not a 
 matter in difference between the parties. But as either party 
 might exhibit to the arbitrators, on the submission of all matters 
 in difference, any personal demand he had on the other party, 
 the presumption is that all demands were in fact submitted. 
 But this presumption may be encountered by clear evidence 
 that any particular demand was not laid before the referees. 
 . . . But without deciding that an agreement to refer all 
 demands is subject to the same construction as a submission of 
 all matters in difference, it is manifest that an agreement to 
 refer may not be executed ; for the arbitrator may decline to 
 take on himself the trust of arbitrating, or a party, where the 
 rule is not ex parte, may refuse to appear before the referees. 
 So a party may execute the agreement but in part, by omitting 
 through accident or mistake to bring a particular demand, not 
 in fact disputed, before the referees.^ And although, when 
 referees report upon all the demands submitted, the presump- 
 tion is that all existing demands were submitted, yet evidence 
 that a particular demand was not before the referees does not 
 deny the agreement to refer all demands, but only proves the 
 non-execution of that agreement in part. We are therefore 
 satisfied that the testimony of D., that the note was not laid 
 
 1 It should be observed that it cannot be gathered from the report or opinion 
 that any refusal of an arbitrator or party, or any accident or mistake, was even 
 asserted to have taken place. The inference is clear that no such allegation was 
 advanced, or the court would obviously have rested its decision upon so satis- 
 factory a basis. It seems that there was a simple, unexcused, and unexplained 
 omission or neglect. 
 
EFFECT AND OPERATION OF THE AWARD. 501 
 
 before the referees, nor by them taken into consideration, was 
 properly received and submitted to the jury. ... In the case 
 before lis a sum of money is reported in full of all demands, 
 which must necessarily be confined to all demands that were 
 submitted to the referees under the agreement to submit. For 
 a report on demands not submitted would be void, as without 
 the authority of the referees. Whether the demand on this 
 note was or was not submitted, is therefore a question of fact 
 to be settled, in order to decide on the legal operation of the 
 judgment. . . . The presumption is that the demand on this 
 note was submitted, because it was within the agreement of the 
 parties to submit it, and we ought to presume that the parties 
 have executed their agreement. By the evidence in the case 
 this presumption is encountered ; for it appears that as to this 
 note the agreement was not executed, and that the note was not 
 brought before the arbitrators, who of course did not take it into 
 their consideration. The report therefore does not include an 
 award on the note, and the judgment cannot bind the parties 
 beyond the award. . . . The justice of the case is unquestion- 
 ably with the indorsee, and the law has wisely provided that 
 the maker of the note shall not in this case intrench himself 
 behind its forms against an act of substantial justice." ^ 
 
 I have given the reasoning of the court in this cause in full 
 because it seemed to me to be important to note the steps by 
 which the court arrived at a conclusion at variance with that 
 of the general force of adjudications in this country and in 
 England. It may be noted that specific circumstances, such 
 as that the matter was not in difference, or refusals to act, 
 accident, and the like, which other courts regard as presenting 
 good grounds for establishing exceptions to the operation of 
 the general rule, are here presented as arguments against the 
 establishment of that rule at all. And though the case actually 
 before the court could not fairly be brought within the protection 
 of any of these equitable conditions, it nevertheless received the 
 
 1 Webster v. Lee, 5 Mass. 334. 
 
502 EFFECT AND OPERATION OF THE AWARD. 
 
 full benefit of them by the resolute refusal to recognize the strict 
 rule. 
 
 The result of this decision would manifestly be to allow a 
 party to break his agreement of submission as to any claim 
 which he secretly wished not to urge before the board of arbi- 
 trators without losing his right subsequently to enforce it. The 
 only remedy of his opponent in such a case, provided at least 
 that he could not show that the holding back was with deliber- 
 ately malicious or fraudulent intent, as to which this opinion is 
 silent, would be by an action for damages for breach of the con- 
 tract of submission, a suit in which he could not often expect 
 to recover back his actual outlay in prosecuting it, much less 
 any adequate compensation for his vexation and trouble. 
 
 Accordingly, in a later case we find the court deliberately 
 occupying precisely this inevitable position. A certain specified 
 demand " and all other demands whatsoever " were submitted. 
 A note of prior date to the agreement was shown by the award 
 not to be included within it. The defendant offered to show 
 that it was intended that the agreement should include the 
 note, and that the plaintiff designedly withheld it. The evi- 
 dence was excluded, and upon exceptions taken the Supreme 
 Court held that it was rightly so excluded. For since the note 
 was not in fact presented, the award " left the plaintiff's claim 
 to payment of the note wholly unaffected by the submission and 
 the proceedings under it. The defendant's remedy, if he has 
 any, is by action against the plaintiff for breach of his agree- 
 ment contained in the submission.^ If the defendant had ob- 
 jected to the validity of the award, on the ground that the 
 arbitrators had not passed upon all the matters submitted to 
 them, perhaps the award might have been set aside. But that 
 objection is not now open to him." ^ 
 
 1 Citing Webster v. Lee, 5 Mass. 334 ; King v. Savory, 8 Cush. 312 ; Bixby 
 V. Whitney, 5 Greenl. 196, stated ante, -p. 499, and which does not go the length of 
 sustaining the general rule ; Whittemore v. Whittemore, 2 N. H. 26, 
 
 2 Edwards v. Stevens, 1 Allen, 315 (1861). 
 
EFFECT AND OPERATION OF THE AWARD. 503 
 
 But even the privilege of objecting to the award on such a 
 ground seems to have been refused in the following case : 
 Suit was brought on a promissory note. The defendant 
 filed an account in set-off. The rule of court referred the said 
 action and all demands. The award was that the plaintiff had 
 not supported the demand made by him, and that the defend- 
 ant should recover the costs of the reference, but not of the 
 action. The court said, " Non constat that the defendant's 
 account was ever laid before the referees. If it was not, they 
 could not arbitrate upon it. The agreement of the parties, 
 evidenced by the rule of the court, was then so far not executed ; 
 and notwithstanding the general report of the referees, the 
 defendant, if not otherwise precluded, may yet have his action 
 upon the account filed by him, but on which the referees have 
 not awarded." ^ 
 
 A. and B. entered into a submission of all demands. The 
 award was rendered in favor of B. At the time of the sub- 
 mission A. was prosecuting certain actions against other per- 
 sons, the subject-matter of which was not presented before the 
 arbitrators nor considered by them. After rendition of the 
 award the defendants in those actions prevailed by the aid of 
 B.'s evidence to the purport that he was the party liable for 
 the debts in suit. Thereupon A. sued B. for these demands, 
 and B. pleaded the award. The court said that the question 
 was, whether the award barred all causes of action between 
 the parties, " irrespective of their peculiar circumstances, and 
 where it can be shown by uncontroverted evidence that the 
 claim was not submitted to the arbitrators and not acted upon 
 by them. It is quite obvious from a recurrence to adjudicated 
 cases that this is one of those mooted points where much may 
 be found on both sides. Our own cases have shown a strong 
 disposition not to give such effect to a general submission as 
 would bar an honest demand not submitted to the arbitrators, 
 where the omission to present the same was consistent with 
 1 Hodges V. Hodges, 9 Mass. 320. 
 
504 EFFECT AND OPERATION OF THE AWARD. 
 
 good faith, and not with a design to further litigation, or to 
 change tlie forum for the trial of the same." After considering 
 various irreconcilable rulings of different courts, the judge 
 continues : " In this contrariety of views we, of course, give 
 the preference to our own decisions as guides in this matter. 
 With the qualification that the present case furnishes, of entire 
 good faith in the plaintiff in omitting to present this claim to 
 the arbitrators, and with the facts proved as to the proceedings 
 in the suits pending against other parties, and with the furtlier 
 fact that the defendants did not, at the hearing before the 
 referees, request any action on this matter, we are of opinion 
 that it was competent to show " that the demand was not pre- 
 sented or acted upon at the arbitration, and it being further 
 shown that the defendant was indebted to the plaintiff, as 
 claimed, that the latter was entitled to a verdict.^ 
 
 Effect on the Rule of a Deliberate Refusal to present a Claim. — 
 If, however, a party is requested by his adversary to present a 
 claim which is actually embraced in the submission, but he 
 refuses to do so, even the courts in Massachusetts will hold 
 this demand to be forever after barred by the award and judg- 
 ment rendered thereon.^ 
 
 An ATward not deciding the Controversy is no Bar. — If the 
 award does not determine the matter submitted, it may prop- 
 erly be considered that there is in fact no award at all, and 
 there can, of course, be no bar. Thus an award declaring 
 that the arbitrators " do not agree," and that each party pay a 
 certain sum, by way of fees, to his own arbitrator, is no bar to 
 a subsequent suit upon the cause of action, constituting the 
 subject-matter of the submission.^ 
 
 ATvard under a Submission of Matters " in Difference." — A Sub- 
 mission of all matters in difference does not include a claim or 
 demand, though then subsisting and matured, which is not the 
 
 1 King V. Savory, 8 Gush. 309. 
 
 2 Warfield v. Holbrook, 20 Pick. 531. 
 
 3 Smith V. Holcomb, 99 Mass. 552. 
 
EFFECT AND OPERATION OF THE AWARD. 505 
 
 subject of any dispute or controversy between the parties. 
 Consequently an award made under such a submission does 
 not operate as a bar in respect of such an existing but uncon- 
 troverted claim. ^ 
 
 The defendant, owing the plaintiff a sum of money for 
 arrears of an annuity, gave him a cognovit for the same. He, 
 however, disputed the plaintiff's claim to other sums claimed 
 to be due on a partnership account between them. Upon the 
 same day on which the cognovit was given, a submission was 
 entered into between the parties of these matters of account 
 and of all matters in dispute. No question concerning the 
 arrears was raised before the arbitrators. The court held that 
 the claim on the cognovit was not a matter in dispute at the 
 time of the submission, and that the plaintiff was not pre- 
 cluded, either by the award in his favor or by his release in 
 general terms of all demands executed in compliance with the 
 orders of the award, from proceeding to enforce the cognovit.^ 
 
 The Aiward bars only the Precise Matter submitted. — The 
 award can operate as a bar in respect of no other questions 
 save precisely those which are submitted.^ For example, if 
 the reference be of the amount of a demand, the award does 
 not prevent the subsequent denial of the legality of the de- 
 mand.* So where a verdict is found for the plaintiff, sub- 
 ject to a point of law, and leave is reserved to the defendant 
 to move to enter a nonsuit, an award made pursuant to an 
 agreement to submit to arbitration the question of the amount 
 of damages, does not waive the matter of legal liability unless 
 the defendant expressly consents to abandon it.^ 
 
 Pleading an Award in Bar to a Matter not disposed of by it. — 
 
 1 Eavee v. Farmer, 4 Term, 146; Golightly v. Jelliooe, ib. 147, n. ; and see 
 Wheeler v. Van Houten, 12 Johns. 311 ; Fidler v. Cooper, 19 Wend. 285 ; Web- 
 ster V. Lee, 5 Mass. 334 ; King v. Savory, 8 Cush. 309 ; all previously stated at 
 length in this chapter. 
 
 2 Upton V. Upton, 1 Dowl. 400. 
 » Russell on Arb., 3d ed. p. 480. 
 * Steers v. Lashley, 1 Esp. 166. 
 
 5 Oxenhan v. Lemon, 2 Dowl. & Ey. 461. 
 
506 BFrECT AND OPERATION OF THE AWARD. 
 
 If a party seeks to avail himself of an award as a vbar to a 
 demand not disposed of by it, it behooves him specifically to 
 aver in his pleadings that the demand was included in the sub- 
 mission, and that it might have been settled in the award of 
 the arbitrators had the demandant presented it before them for 
 that purpose.^ 
 
 The Burden of Proof -where an A-ward is pleaded in Bar. — A 
 suit was brought by the holder of a note indorsed in blank 
 against the maker. The maker pleaded in bar an award made 
 pursuant to a submission of all demands entered into between 
 himself and ' the payee. Upon this evidence he proposed to 
 rest his defence, contending that it was incumbent upon the 
 plaintiff to show that he had purchased it from the payee prior 
 to the date of the agreement of submission. But the court 
 ruled otherwise, being of opinion that the defendant must 
 prove that the agreement was made before the indorsement.^ 
 
 ■Whether a Party, not having performed his Part of the Avrard, 
 can plead it in Bar. — In New York the law has been laid down 
 as follows : With regard to the matter of pleading an award 
 in bar, a distinction formerly existed between the cases of 
 verbal submission and of submission by bond. In the latter 
 case the award was a bar before performance of his duties 
 under it by the party seeking to avail himself of it in this 
 manner; because the other party had his remedy to enforce 
 such performance. Before it was settled that assumpsit would 
 lie upon mutual promises if the submission was not by deed, 
 it was necessary for the party who undertook to plead an award 
 in bar to allege performance of the matters required of him 
 by the award. But since the abandonment of these old dis- 
 tinctions, it is said that " there is scarcely .a case that can 
 arise " where performance must be pleaded.^ Cases in other 
 
 ' Robinson v. Morse, 26 Vt. 392, at p. 395. 
 
 2 Webster v. Lee, 5 Mass. 334. 
 
 5 Armstrong v. Hasten, 11 Johns. 189, citing the English cases, Parsloe v. 
 Bailey, 1 Salk. 76 ; Allen v. Harris, 1 Ld. Raym. 122 ; Case v. Barber, T. Eaym. 
 450. 
 
EFFECT AND OPERATION OF THE AWARD. 507 
 
 States also declare that a tender of performance need not be 
 averred except in cases where the award is made conditional 
 upon the performance of certain acts by the party claiming the 
 benefit of it.^ 
 
 A Condition Precedent must be performed before an A'ward is 
 a Bar. — If an award embodies a finding in favor of a certain 
 party, subject, however, to an express requirement, in the 
 nature of a condition precedent, that he shall first do a certain 
 specified act, he can avail himself of the award as a bar only 
 after he has performed that act. 
 
 An award gave certain lands to the defendants upon condi- 
 tion that they should within six months execute certain releases 
 to the Commonwealth. In an information for intrusion upon 
 said lands, brought by the Attorney-General on behalf of the 
 Commonwealth, the defendants pleaded the award in bar. The 
 replication alleged that the six months had elapsed, and the 
 releases had not been executed. The court held that the plea 
 in bar was bad ; the requirement for the execution of the 
 releases was in the nature of a consideration ; and, having failed 
 to perform it, the defendants could not reap the benefit which 
 they were entitled to only by virtue of such performance.^ 
 
 An A'ward is pleadable in Bar to a Bill in Equity. — The award 
 itself may be pleaded in bar to a bill in equity brought to set 
 aside the award and open the account. ° A plea of an award 
 is good not only as to the merits of the case, but also as to the 
 discovery sought by the bill. For the respondent is not obliged 
 to set out the whole account between himself and the complain- 
 ant after an award has been rendered in his favor concerning 
 that very account. The award must be treated as conclusive 
 upon all parties .till an error is shown in taking the account, or 
 partiality or misconduct on the part of the arbitrator.* 
 
 1 Duren v. Getoliell, 55 Me. 241; Girdler „. Carter, 47 N, H. 305; Varney 
 V, Brewster, 14 id. 49 ; Curlew v. Dean, 4 Conn. 259. 
 
 2 Commonwealth v. Pejepscut Proprietors, 7 Mass. 399. 
 
 ' Pusey V. Desbouvrie, 3 P. Wms. 315 ; Farringdon v. Chute, 1 Vern. 72. 
 * Russell on Arb., 3d ed. pp. 552, 553 ; Titteuson v. Peat, 3 Atk. 529. 
 
508 EFFECT AND OPERATION OF THE AWARD. 
 
 Russell further says that where, after the bill has been filed, 
 an agreement to refer the subject-matter thereof to arbitration 
 is entered into, it is not fully decided whether the award made 
 pursuant to this agreement can be set up in bar to the bill 
 itself by plea put in, in the nature of a puis darrein continuance 
 at law.^ In Rowe v. Wood,^ Lord Eldon, after much consider- 
 ation of the question, seems to incline towards the negative, 
 and to be of opinion that the award ought not to be allowed to 
 be thus availed of; especially inasmuch as the purpose might 
 be much more effectually obtained by a motion to stay proceed- 
 ings in the cause. Later, in Dryden v. Robinson,^ the same ques- 
 tion was again raised. The marginal note gives it as the ruling 
 of the court that the award may be pleaded ; though no authority 
 for such a statement is furnished by the published report of the 
 cause. After the bill was filed, an agreement to refer the 
 subject-matter of the suit had been entered into between some 
 of the parties, and an award was made. But inasmuch as 
 all the parties to the suit were not parties to the agreement 
 to refer, although the plaintiff in the bill was such party ; 
 and, further, inasmuch as a part of the prayer of the bill was 
 for the execution of the trusts of a deed under which some 
 persons, parties to the suit but not to the submission, were 
 interested, therefore the court ordered that the plea of the 
 award should stand for an answer, with liberty to except. 
 This latter case is therefore not regarded as an authority 
 counter to that of Rowe v. Wood. Though, adds Mr. Russell, 
 it should be observed that in Rowe v. Wood there was only an 
 agreement pleaded, some of the terms of which were to be 
 settled by arbitration ; but the making of an award was not 
 averred. 
 
 Pleading an Award in Set-off. — Like any other matured and 
 liquidated demand, an unconditional award ordering the pay- 
 
 1 Russell on Arb., 3d ed. p. 553.. See the statement, post, in this chapter, of 
 the case of Elliot v. Heath, 14 N. H. 131. 
 
 2 1 Jao. & Walk. 315 ; 2 Bligh P. C. 595. 
 
 3 2 Sim. & St. 529. 
 
EFFECT AND OPERATION OF THE AWARD. 509 
 
 ment of a sum of money may be availed of by the creditor by 
 way of set-off in a suit brought against him by the debtor. 
 But an award cannot be availed of in set-off if it has been made 
 subsequently to the inception of the suit, even although the 
 demand allowed by it was in existence prior to the date of the 
 suit. This is on the principle that the original claim is merged 
 in the award, which becomes a new and distinct cause of action, 
 and was not subsisting in such shape that an action could have 
 been sustained upon it at the time when the suit was begun. ^ 
 
 Operation of an Avrard to vest the Title to Personalty. — 
 Where the ownership of personal property is in dispute, or 
 where the arbitrators have power to determine or dispose of 
 the ownership, the operation of the award to vest title will 
 depend in a great measure upon the language used. If the 
 award simply declares, in substance, that the party who is in 
 present possession under a claim of right is the lawful owner, 
 and shall continue to hold and possess the same, no difficulty 
 can arise. The award is a sufficient confirmation of title in 
 the gaining party, at least so far as concerns the other parties 
 to the submission. But the difficulty, such as there is, arises 
 when the award undertakes to change either title or possession. 
 It seems that if the award purports in direct terms to give to a 
 party a certain thing on a day certain, the title will vest in such 
 party on such day, trithout any action upon the part of himself 
 or of the party in possession. But if the award orders that 
 on a certain day, or upon performance of a certain act, delivery 
 of a chattel shall be made to one party by the other, the deliv- 
 ery is an essential preliminary, without which title does not 
 vest. And even though performance of the act required to be 
 done in the nature of a condition precedent or consideration 
 be prevented by the active or passive refusal of the party to 
 whose benefit it looks, still the title cannot for this reason vest 
 without the delivery. 
 
 An award was that " M. is to have the cow and calf on the 
 1 Varney v. Brewster, 14 N. H. 49. 
 
510 EFFECT AND OPERATION OF THE AWARD. 
 
 first of April." The court distinguished this case from Hunter 
 V. Rice,^ because in that case a delivery was ordered to be made 
 upon receipt of a certain payment. But in this instance " the 
 award purports to give the title to the cow and calf to the land- 
 lord without any act remaining to be done by the tenant, and 
 we are of the opinion that the award must be regarded as conclu- 
 sive evidence of title in the landlord." ^ Further, commenting 
 on Hunter v. Rice, the court said that there, if the party to 
 deliver the chattel had received the money, his receipt would 
 have constituted an assent, and the title to the chattel would 
 have passed. " It would seem, however, to be well established, 
 that the effect of an award does not depend upon a subsequent 
 assent, but upon the contract of submission ; and that after 
 the award is made it is too late to revoke the submission or to 
 repudiate the award. Since the decision in Rice v. Hunter, 
 the law upon this subject has undergone considerable change, 
 and it is not certain that the views there adopted would not be 
 modified." 
 
 The case of Hunter v. Rice,^ mentioned in the last paragraph, 
 is a leading English case. An award ordered that a tenant 
 should, upon a certain day, deliver up to his landlord a stack 
 of hay, upon being paid or allowed a certain sum in satisfac- 
 tion. It was held that the title in the hay did not pass, by 
 virtue of the award, to the landlord, oil his tender of the 
 money, the tenant refusing to assent or to accept the money 
 and deliver up the hay ; and that therefore the landlord could 
 not bring trover for it, but that his only remedy was by suit 
 upon the award. Though it was said that an acceptance of 
 the money by the tenant would have been operative as a ratifi- 
 cation of the award and an assent to the transfer of the prop- 
 erty. 
 
 An Award as to Chattels of the 'Wife is a Reduction into Pos- 
 
 1 15 East, 100. 
 
 ■■i Girdler v. Carter, 47 N. H. 305 (1867). 
 
 » 15 East, 100. 
 
EFFECT AND OPERATION OF THE AWARD. 511 
 
 session. — If a husband enters into a submission in respect 
 of chattels, real or personal, claimed in right of his wife, the 
 award will operate as a sort of judgment, and will constitute a 
 reduction of them into possession on his part.^ 
 
 Operation of an Award upon the Title to Real Estate. — The 
 rule has long been established, both in the United States and 
 in England, that an award is inoperative for the purpose of 
 actually passing the title to land.^ Even if the object be only 
 to effect a partition between tenants in common, no title will 
 pass unless conveyances be exchanged.^ Such effect as the 
 award has, it has solely by way of estoppel. It is good only as 
 between the parties to the submission. Even as between them 
 it does not transfer title ; but the party who loses under the 
 decision is simply estopped afterward to deny the superiority 
 of his adversary's title to his own.* 
 
 The award is not in itself afiirmative " evidence of title," 
 but is available to prevent the losing party from setting up 
 title.5 
 
 In an old case it was said that if a dispute be between two 
 respecting the title to a lease of land for years, and they sub- 
 mit the controversy to arbitration, and the arbitrator awards 
 that one shall have the land, or shall have the term, this is a 
 good gift of the interest in the term. But if the award be that 
 one shall permit the other to enjoy the term, this is no good 
 
 1 Russell on Arb., 8d ed. pp. 18, 481 ; citing Williams on Executors, pp. 538, 
 687 ; RoUe's Abr. Arb., 245, D. ; Roper on Husband and Wife, 2d ed. vol. i. pp. 
 185, 219 ; Hunter v. Rice, 15 East, 100 ; Oglander v. Baston, 1 Vern. 396. 
 
 2 LeUick v. Addams, 15 Johns. 197 ; Cox v. Jagger, 2 Cow. 638, at p. 650 ; 
 Jackson v. Gager, 5 Cow. 383 ; Sbelton v. Alcox, 11 Conn. 240 ; Shepherd v. 
 Ryers, 15 Johns. 497 ; Girdler v. Carter, 47 N. H. 305 ; Gray v. Berry, 9 N. H. 
 473 ; Page v. Foster, 7 N. H. 392 ; Goodridge v. Dustin, 5 Mete. (Mass.) 363, over- 
 ruUng, so far as necessary, the case of Whitney v. Holmes, 15 Mass. 152 ; Cal- 
 houn's Lessee u. Dunning, 4 Dall. 120 ; Russell on Arb., 3d ed. p. 481 ; Rolle 
 Abr. Arb., A. ; Marks v. Marriott, 1 Ld. Raym. 114 ; Smalley v. Blackburn 
 Railway Company, 2 Hurl. & Nor. 158 ; 27 L. J. Exch. 66 ; Henry v. Kirwan, 
 9 It. C. L. 459 ; Doe d. Morris v. Rosser, 3 East, 15, stated post. 
 
 ' Johnson v. Wilson, Willes, 248. 
 * See the cases cited in note 2, ante. 
 5 Jackson v. Gager, 5 Cow. 383. 
 
512 EFBECT AND OPERATION OF THE AWARD. 
 
 gift of the interest in it.^ In commenting upon this case, 
 Russell says that it seems in effect only to show that the 
 award is conclusive as between the parties on a question of 
 disputed title, not that it has power to transfer the right from 
 one to the other. 
 
 An action between the owner of land, and a party holding 
 the same by his permission, but claiming to hold as bailiff and 
 not as tenant, was submitted to an arbitrator, to determine 
 what should be done by the parties concerning the land. His 
 award was that the party in possession held as a tenant ; that 
 the tenancy should cease upon the delivery of the award ; and 
 that one month afterward possession of the land should be 
 delivered up to the owner. On an issue between the landlord 
 and an execution creditor of the tenant, whether the crops 
 growing on the land were or were not the property of the 
 tenant, the crops having been seized by the creditor after 
 delivery of the award, but before the expiration of the month, 
 it was held that the award had not the effect of transferring to 
 the landlord the property in tlie land, or in the growing crops 
 which would liave passed with the land.^ 
 
 An A'ward of Commissioners under a Statute may pass Title. — 
 It has been held in England, in some cases, that an award of 
 arbitrators or commissioners, made in pursuance of acts of 
 Parliament or public statutes, may have the effect of trans- 
 ferring title, even to real estate.^ As a general rule the title 
 does not pass before the award has been actually made.* But 
 in some instances special provisos have the effect of trans- 
 ferring it at earlier stages in the proceedings.^ 
 
 1 Trusloe v. Yewre, Cro. Eliz. 223 ; 2 Leon. 104. 
 
 2 Thorpe v. Eyre, 1 Ad. & El. 926. 
 
 3 RuaseU on Arb., 3d ed. pp. 484, 485 ; Earrer v. Billing, 2 Barn. & Aid. 171 ; 
 Greathead v. Morley, 3 Man. & Gr. 139 ; EUis v. Arnison, 6 Barn. & Aid. 47 ; 
 Johnson v. Hodgson, 8 East, 38. 
 
 * See the cases cited in the last note ; also Cator u. The Croydon Canal 
 Company, 4 Younge & Coll. 405. 
 
 5 Doe d. Harris v. Saunder, 5 Ad. & El. 664 ; Kingsley v. Toung, 17 Ves. Jr. 
 468; 18 id. 207 ; Doe d. Duke of Beaufort v. Neeld, 3 Man. & Gr. 271. 
 
EXPECT AND OPERATION OF THE AWAED. 513 
 
 An Award finding Title to Realty -will sustain an Action in 
 Bjeotmeat. — A valid award of arbitrators settling the title to 
 real estate is a sufficient basis for the prevailing party therein 
 to sustain an action of ejectment against his adversary.^ 
 
 In an actiorf of ejectment an award was rendered, determin- 
 ing the right and ordering the land to be delivered up to the 
 lessor of the plaintiff. In a second action of ejectment between 
 the same parties, this award was held to be conclusive in favor 
 of the plaintiff's claim. In the opinion it was said, in expla- 
 nation of the effect of the award, that it could not operate to 
 convey the land ; but that there was no reason why the de- 
 fendant might not conclude himself by agreement from disput- 
 ing the title of the lessor in ejectment ; and that as the parties 
 had consented that the award should be conclusive as to the 
 right to the land, that was sufficient to bind them in the action 
 of ejectment.^ Patterson, J., commenting upon this case, in 
 Thorpe v. Byre,^ said that the effect of the award in Doe d. 
 Morris v. Rosser was, that the land had always been the prop- 
 erty of the claimant ; but that in the case before him the award 
 declared the property in the land, so far as the possession 
 during the term was concerned, to be in the tenant. And he 
 asked : " Is there any instance in which an award has been 
 held to transfer property ? " 
 
 Operation of Awards determining Boundary Lines. — It is 
 obvious that an award which undertakes to settle a disputed 
 boundary line between two adjoining estates must in some 
 degree constitute a decision upon a question of title. Accord- 
 ingly, we find it sometimes treated like any other award pass- 
 ing upon the title to real estate ; and the rules already laid 
 down are in such instances adopted. Thus, in New York 
 and Vermont, it is held that the operation of an award 
 
 1 Lellick V. Addams, 15 Johns. 197 ; Jackson ex dem. Stanton v. De iJong, 
 9 Johns. 43 ; and see Cox v. Jagger, 2 Cow. 638, at p. 650 ; and see ante, In this 
 chapter, the paragraph An Award in Evidence is conclusive. 
 
 2 Doe d. Morris v. Kosser, 3 East, 15. 
 
 3 1 Ad. & El. 926. 
 
514 EFFECT AND OPEKATION OP THE AWAKD. 
 
 determining a boundary line, is to estop the parties from after- 
 wards denying tliat tills is in fact the line of division between 
 them.^ 
 
 An action of trespass quare clausum fregit was referred by 
 rule of court, wherein it was stipulated that the rtferees should 
 " settle the division line between the locus in quo and the land 
 of the defendant." The award, in which the boundary line 
 was determined, was accepted, and judgment rendered thereon 
 by the court. In a subsequent action between the same parties, 
 the demandant set up and relied upon this award; but this 
 was objected to on the ground that it could not operate as a con- 
 veyance of land. But the objection was overruled. The court 
 said that the award, thus accepted and recorded, was equally 
 valid and conclusive with a verdict founded on the same facts 
 distinctly put in issue between tlie parties ; and a judgment on 
 an award made and recorded is a good bar to another action 
 founded on the same fact or title. The following interesting 
 reasoning was added : " Without intending to controvert the 
 position that land cannot be conveyed by the mere determina- 
 tion of arbitrators, and that estates can only be passed by deed, 
 yet we think a just distinction may be made between questions 
 of title and those of boundary, though the one may occasionally 
 be involved in the other. In the matter of boundary the ques- 
 tion is, which is the true line of division between adjoining es- 
 tates, and the removing of the uncertainty attending the settling 
 of the line can as well be done by an arbitration and award as 
 by deed ; and the effect of such a judgment is not to change 
 the titles to a portion of the respective estates, but to confirm 
 each in his own estate ; and by such award the parties shall 
 be concluded as to their boundaries." Further on in the 
 opinion the court say that an award, though not competent to 
 convey land, yet concludes the parties from disputing the title 
 or boundary, and operates by way of estoppel.^ 
 
 1 Stewart v. Cass. 16 Vt. 663 ; Eobertson v. McNiel, 12 Wend. 578. 
 
 2 Goodiidge v. Dustin, 5 Mete. (Mass.) 363. 
 
EFFECT AND OPERATION OF THE AWAED. 515 
 
 In the later case of Searle v. Abbe,^ a similar doctrine was 
 enunciated under similar circumstances. The court said that 
 land could not be "transferred by an award and judgment 
 thereon, but that the parties to the submission were thereby 
 estopped to dispute the title or boundary which is distinctly 
 settled by the award. The arbitrators, in this case, did not 
 make new boundaries, nor change old ones ; they merely found 
 where the pre-existing boundaries were. As was said by 
 James Otis, arguendo, and af&rmed by the decision of the 
 Superior Court of Judicature of the Province of Massachusetts 
 Bay, almost one hundred years ago, in a case ^ in which arbi- 
 trators had determined a boundary line, without ordering a 
 release of the land on either side, ' I grant the award to be 
 void if the arbitrators have determined the freehold. But here 
 they have not ; they have only determined the line ; the settling 
 that does not affect the freehold.' " 
 
 Similar language was used in an action in ejectment by the 
 court in New York concerning a submission of a dispute in 
 relation to boundary lines. The object of the submission was 
 said to be to ascertain and settle the true location of a par- 
 ticular lot. " It was then an agreement that the arbitrators 
 named should determine the boundaries of the common lot, 
 according to the description in the partition deed of the patent 
 under which both parties derived their title. The title to the 
 common lot was not in question." Upon the strength of this 
 reasoning a parol submission, and an award pursuant thereto 
 determining a boundary, were held to be valid and binding 
 upon the parties.^ 
 
 An ATxrard finding Title or settling a Boundary Line is a Defence 
 in Trespass. — There being a dispute between A. and B., owners 
 of adjoining land, as to the boundary line between them, they 
 submitted the matter, and an award was made. A. entered and 
 
 1 13 Gray, 409. 
 
 2 Rogers v. Eenwrick, Quincy, 63, 64. 
 
 3 Jackson v. Gager, 6 Cow. 883. 
 
516 EFFECT AND OPERATION OF THE AWAED. 
 
 cut timber upon his side of the line thus established. B. sued 
 him in trespass quare clausum fregit. Held, that the award 
 furnished a sufficient defence for A.^ 
 
 So, also, it has been held in Connecticut, that a valid award, 
 finding the title to realty, is a good and available defence in an 
 action of trespass quare clausum brought by one party to the 
 submission against an assignee of the other party .^ 
 
 An ATvard finding Title not under Seal, -will operate by Way of 
 Estoppel. — In a case in Connecticut a submission and award 
 finding title to realty were both in writing, but neither of them 
 was under seal. It was objected that there was no estoppel, 
 since that could be efiected only by an instrument under seal. 
 But the court overruled the objection, saying that an estoppel 
 might arise out of acts in pais. Here the parties had agreed 
 to be bound by the final decision of the arbitrators, pursuant 
 to which agreement the arbitrators had met and awarded. The 
 estoppel was complete.^ 
 
 Operation of an Oral A^vard concerning a Boundary Line. — As 
 a general rule every submission and award concerning the title 
 to real estate or a boundary line ought to be put in writing.* 
 As concerns the title to real estate this principle is imperative 
 and without exception. As concerns the matter of boundary 
 lines it has been less rigidly enforced, and oral awards have 
 been upheld after they have been accepted and acted upon by 
 the parties. Thus in New Hampshire a number of decisions 
 have declared that after the award concerning a boundary line 
 has once been made, and the line has actually been run, it 
 makes no difierence whether the submission and award, either 
 or both, were in writing or oral. The award will be final and 
 conclusive in either case.^ 
 
 1 Lellick V. Addams, 15 Johns. 197. 
 
 2 Shelton v. Alcox, 11 Conn. 240. 
 8 Ibid. 
 
 4 Ante, pp. 51, 257, 258. 
 
 5 Jones V. Dewey, 17 N. H. 596; Sawyer «. Fellows, 6 id. 107 ; Orr v. Hadley, 
 36 id. 575; Eaton v. Elce, 8 id. 378 ; Furber v. Chamberlain, 29 id. 405; and see 
 Gray v. Berry, 9 N. H. 478. 
 
EFFECT AND OPERATION OF THE AWARD. 517 
 
 So, likewise, in an old case in New York it was held that if 
 the parties, without any writing between them, employed a 
 surveyor to run their boundary line, and accepted his line after 
 he had run it, as being satisfactory, they would thereafter be 
 bound by it. Though the parol agreement could at any time 
 before execution be annulled, waived, or altered by parol.^ 
 
 In Maine it is said that an oral award concerning a boundary 
 line is inoperative, for the reason that " the title to real estate 
 cannot be affected by any agreement or award not in writing." ^ 
 Though after long acquiescence in such an award by the parties 
 it will thereafter be regarded as final and conclusive.^ But 
 precisely the contrary doctrine has been asserted in New York, 
 where a parol submission and award concerning a boundary 
 line were upheld on the ground that the title to the land was 
 not in dispute.* 
 
 An Oral A'ward under an Oral Submission concerning a Bound- 
 ary Line is Competent Evidence. — The action was in tort in the 
 nature of trespass quare claicsum /regit, and was referred to an 
 arbitrator under a rule of court. The case turned upon the 
 title, which depended upon a question of boundary. The 
 defendant offered evidence of a previous oral submission of 
 the disputed boundary and of an oral award made pursuant 
 thereto. The arbitrator admitted the evidence, against the 
 objection of the plaintiff. The court, after a careful review of 
 the cases, held that the admission was proper. " An agree- 
 ment of the parties, verbal or written, though not effective as 
 a conveyance, is evidence of the true location of lines or monu- 
 ments. And there seems to be no good reason why a fact 
 which parties can lawfully agree on for themselves, may not, 
 by their consent, be determined for them by arbitrators, with 
 the same effect as if they had agreed to it without such assist- 
 
 1 Jackson ex dem. Nellis v. Dysling, 2 Gaines, 198. 
 
 2 Philbrick v. Preble, 18 Maine, 255. 
 " Gove V. Richardson, 4 Greenl. 327. 
 
 * Jackson v. Gager, 6 Cow. 383, stated ante, p. 515. 
 
518 EFFECT AND OPERATION OF THE AWARD. 
 
 ance. When the award is made, the agreement is executed, 
 and becomes operative.^ 
 
 Estoppel by an Award need not always be pleaded. — A. sued 
 B. in trespass. B. justified by asserting title under C. At 
 the trial he offered to show that by a submission and award 
 between A. and C. wherein the finding was in favor of C. 
 the plaintiff was estopped to deny C.'s title. The court said 
 that estoppel could not be availed of unless it had been 
 pleaded, provided that the party had had opportunity to plead 
 it ; but if he had not had such opportunity, he could show the 
 fact in evidence. In this case they considered that no such 
 opportunity had been properly afforded, and the award was 
 allowed to be introduced in evidence.^ 
 
 Operation of an Award simply finding Title. — If the arbitra- 
 tors wish to pass title from one party to the other, since the 
 award will not per se effect this, they should order that a deed 
 be executed and delivered. The order for a deed must be 
 specific ; for the simple finding that one of the parties is en- 
 titled to certain land held or claimed by the other, does not 
 constitute a sufficient basis foi; demanding and compelling a 
 deed.^ , 
 
 Operation of an apparently Inadequate Award. — That arbitra- 
 tors appear not to have provided sufficient means, though 
 intending to do so, for giving effect to some portion of their 
 award, seems to furnish no cause for avoiding it. The error is 
 one of discretion, and is not regarded as constituting a proper 
 subject for revision by the courts. The award will remain as 
 a good and valid award, operative so far as its provisions will 
 permit, and of course no farther. 
 
 Thus where arbitrators awarded that a certain sum of money 
 should be paid, and undertook to provide security for such pay- 
 ment, the inadequacy of the security, or the existence of legal 
 
 1 Byam v. Robbins, 6 Allen, 63. 
 
 2 Shelton v. AIcox, 11 Conn. 240. 
 
 3 Loring V. Whittemore, 13 Gray, 228. 
 
EFFECT AND OPERATION OF THE AWARD. 519 
 
 obstacles in the way of enforcing it, was held not to invalidate 
 the award. It remained good and enforceable as an award for 
 the payment of the sum named and for the giving of the 
 security designated.^ 
 
 An Award is inoperative as to Strangers. — As a general rule 
 an award can, of course, be enforced neither by nor against 
 one wlio is a stranger to the submission.^ Neither can a 
 stranger avail himself of it as a defence.^ 
 
 An AwEird is inadmissible in Evidence against a Stranger. — By 
 parity of reasoning an award must, as a general rule, be inad- 
 missible in evidence against one who is no party to the submis- 
 sion and not within the jurisdiction of the arbitrator. The rule 
 is " laid down as universal," says Russell, that an award has 
 no force in evidence as against strangers to the submission.* 
 
 Where A. and B., owners of adjoining lots of land, agreed 
 to submit a question concerning the boundary line, and be- 
 fore the decision of the referees A. conveyed his parcel to C. 
 without notice of the agreement, it was held that the award 
 was not competent as evidence in a suit between C. and B. 
 C. had not assented in any way to the doings of the referees, 
 and had not even been notified thereof." Though the mere 
 fact of J notice, without assent, could not supposably have been 
 of any avail. 
 
 Efforts have sometimes been made to introduce awards as evi- 
 dence against persons not parties to the submission, under the 
 guise of evidence of general reputation. But no instance is 
 recorded in which the attempt has been successful.^ 
 
 1 Cox V. Jagger, 2 Cow. 638. 
 
 2 Thompson v. Noel, 1 Atk. 60. 
 
 ■* Davis V. Rea, Gas. temp. Finch, 441. 
 
 * Russell on Arb., 3d ed. p. 537 ; Evans v. Rees, 10 Ad. & El. 151 ; Doe d. 
 Smith V. Webber, 1 id. 119 ; Lady Wenman u. Mackenzie, 5 El. & Bl. 447 ; 25 
 L. J. Q. B. 44. 
 
 5 Emery v. Fowler, 38 Maine, 99. 
 
 6 Rex V. Cotton, 3 Camp. 444 ; Lady Wenman v. Mackenzie, 5 El. & Bl. 447 ; 
 25 L. J. Q. B. 44; Evans v. Bees, 10 Ad. & El. 151 ; Brett v. Beales, 1 Moo. & 
 M. 416. 
 
520 EFFECT AND OPERATION OF THE AWAED. 
 
 An Aiward may sometimes be Competent Evidence for a Stranger. 
 — Though the rule is so rigid that an award can never be . 
 availed of in evidence against a person who is a stranger to 
 the submission and without the jurisdiction of the arbitrators, 
 yet it occasionally happens that such a person may be allowed 
 
 to introduce an award as evidence in his own behalf.^ 
 
 ■ 
 
 An action was instituted against a servant of the Bast India 
 Company to recover damages for false imprisonment. The 
 defendant was allowed to introduce, in mitigation of damages, 
 under the general issue, a release given by the plaintiff to the 
 company in fulfilment of an award made pursuant to a sub- 
 mission between the plaintiff and the company, by which award 
 there was given to the plaintiff a large sum in compensation 
 for injuries done him by servants of the company and espe- 
 cially by the defendant ; the matters submitted in terms com- 
 prehended the claim which was the basis of this action.^ 
 
 If a chattel, the right to possession of which is in dispute, 
 be deposited with the arbitrator, an award finding that it is the 
 property of one party will prevent the other from maintaining 
 trover against the arbitrator for refusing to deliver it to him ; 
 since the award is evidence that the withholding is no illegal 
 conversion.^ 
 
 An award which has been acted upon may sometimes be 
 available in evidence for a stranger to the submission.* 
 
 An award was made between two parties, both claiming 
 certain land by rights paramount to a lease which had been 
 made thereof, and the award was notified to tenant of the land. 
 He subsequently attorned and paid rent to the party in whose 
 favor the award was made. Held, upon proof of these facts, 
 that he became tenant to that party from year to year.^ 
 
 On an issue as to the title to some growing crops seized by a 
 
 1 Russell on Arb., 3d ed. p. 539. 
 
 2 Shelling v. Farmer, 1 Strange, 646. 
 ' Gunton v. Nurse, 6 Moore, 259. 
 
 < Russell on Arb., 3d ed. p. 539 ; Downs v. Cooper, 2 Q. B. 256. 
 " Doe d.Chawner v. Boulter, 6 Ad. & El. 675. 
 
EFFECT AND OPERATION OF THE AWAED. 521 
 
 creditor of the tenant of the land, an award between the land- 
 lord and tenant, ordering that the tenancy should cease and the 
 tenant deliver up possession, was held admissible in evidence, 
 though impotent of itself to transfer to the landlord the property 
 in the crops.^ 
 
 A stranger may by his own Act bring himself within the Opera- 
 tion of an Award. — An exception to the general rule has been 
 allowed to obtain where a stranger has made himself practically 
 a party to the award by accepting from others the performance 
 of acts required by the award to be done by them for his bene- 
 fit, and by himself performing acts which he is required by the 
 award to do. Thereafter he will be bound by it, and will be 
 estopped from making any averment against it except upon 
 discovery of manifest mistake or fraud. 
 
 It was proposed among the heirs of a deceased person to 
 settle and distribute his estate according to an award of arbi- 
 trators. The agreement to this effect was signed by all the 
 heirs except one. An award was rendered, and distribution 
 was made according to it, and this heir accepted and received 
 the amount awarded to him. The court held that he thereby 
 brought himself within the operation of the award, and became 
 bound by it, and was estopped to aver any thing against it, 
 unless upon the discovery of manifest mistake or fraud. ^ 
 
 A stranger cognizant of the Submission may be within the Opera- 
 tion of the Award. — A case in which a stranger to the submis- 
 sion in the technical sense of not being a party to it was yet held 
 bound by the award, occurs in the New York reports. He was 
 about to enter into possession of a house as tenant. G. and 
 R. disputed as to which had the right to let it to him, and to 
 receive the rent. In his presence they agreed to submit the 
 matter. After the award the successful party sued H. for rent. 
 H. defended on the ground of want of notice of the award. The 
 court said that the question of notice to him did not arise ; " he 
 
 1 Thorpe v. Eyre, 1 Ad. & El. 926. 
 ' George v. Johnson, 45 N. H. 456. 
 
522 EFFECT AND OPERATION OF THE AWAED. 
 
 was bound to take notice of the award at his peril, for he was 
 present when it was submitted to the arbitrators to determine 
 to whom he should pay the rent, and it was in proof that he 
 was privy to the submission, and the conclusion is irresistible 
 that it was so referred with his approbation. The parties claim- 
 ing respectively the right to let interpleaded, as it were, in his 
 presence, and agreed to refer the question to the arbitrators ; 
 and he catered into possession with the knowledge of that inter- 
 pleader and submission at the time it took place." ^ 
 
 Parties are bound though the A'ward concerns the Rights of a 
 Stranger. — The parties to a suit at law submitted the subject- 
 matter thereof, and included also in their submission another 
 distinct matter which affected the rights of a third person, not 
 a party to the suit or submission, and in no way within the 
 jurisdiction of the arbitrators. It was held that so far as 
 the rights of the parties were determined and disposed of by the 
 award, it was conclusive between them, whatever effect it 
 might have, or whether any at all, on the rights of the stranger. 
 The award having been rendered in favor of the defendant, it 
 operated as a bar to the further prosecution of the action.^ 
 
 Operation as to Sureties of an A'ward e^stentling Time for a Prin- 
 cipal Debtor. — An award extending the time of payment be- 
 tween a principal debtor and his creditor operates to discharge 
 the debtor's sureties who are not parties to the arbitration. 
 
 A lessee furnished sureties upon his lease for the prompt pay- 
 ment of the rent. Afterward the lessor and lessee entered into 
 a submission, in pursuance of which an award was made, order- 
 ing that the lessee should, on or before the tenth day of Novem- 
 ber next, pay a certain sum to the lessor in full of all rent to 
 the first day of August past, and of all damages to the time of 
 the submission. In suit against the sureties they were held to 
 be discharged by reason of this award. The court said : " The 
 difference between a judgment and an arbitrament_and award, 
 
 1 Humphreys v. Gardner, 11 Johns. 61. 
 
 2 Sears v. Vincent, 8 Allen, 507. 
 
EFFECT AND OPERATION OF THE AWARD. 523 
 
 SO far as the rights of a surety are concerned, is great. If the 
 surety pays the debt after a judgment is recovered, his right of 
 subrogation gives him the judgment, and thereby the means 
 of enforcing payment at once from the property of the original 
 debtor. But if he pays after the award, his right of subrogation 
 gives him only the legal remedies for the enforcement of it ; 
 whereas by his contract he would be entitled to all the remedies 
 the law gives on the lease. The effect, therefore, of the sub- 
 mission and award is to change the character of the rights and 
 remedies to which the party is entitled on payment of the debt. 
 When that is done by the creditor, without the assent of the 
 surety, it is well settled that the latter is discharged." ^ 
 
 The Rights of a Party under an A-ward may pass to a Stranger by 
 Assignment — P. was in possession of an estate, claiming title. 
 S. also claimed title to it. They submitted the dispute to an 
 arbitrator, agreeing to abide by and perform his award. He 
 awarded against the claim of S., and directed that he should 
 execute a release to P. S. refused to do so ; and affairs stand- 
 ing thus, P. died. P.'s administrator sold the estate to H., 
 who brought a bill in equity to obtain a specific performance by 
 S. of the order for a release. The administrator joined with 
 H. in the bill. Chief Justice Shaw, delivering the opinion of 
 the court, said : " In equity, an agreement to perform an award 
 upon a matter of title, or of boundary (which is substantially 
 the same thing), and an award made directing a release to be 
 executed, constitute an agreement to execute a release ; and 
 this, in equity, passes with the land, because it is beneficial 
 only to the holder of the land. The privity, therefore, is a 
 privity of estate in equity, arising from the situation in which 
 the parties are placed. As to the objection that the adminis- 
 trator upon the sale . . . did not in terms assign to the 
 purchaser the benefit of this agreement and award, if the ad- 
 ministrator himself had not come in arid prayed that the defend- 
 ant (S.) might be decreed to execute the release, it might have 
 I Coleman v. Wade, 2 Seld. 44. 
 
524 EFFECT AND OPERATION OF THE AWARD, 
 
 been necessary to examine the conveyance more particularly, 
 to see if such an assignment was not made by implication. It 
 may perhaps hare been optional with the administrator, whether 
 he would sue on the agreement at law and recover damages, 
 which, when recovered, would enure to the use of the creditors 
 and heirs, or sell the estate. . . . But by becoming a plaintiff 
 the administrator in effect affirms this assignment to the pur- 
 chaser, so that we are to consider that, as far as the adminis- 
 trator could, he intended to assign and did assign this award to 
 the purchaser, as one of the muniments of title incident to the 
 land itself." The power of the administrator to make such an 
 assignment was further discussed and affirmed.^ 
 
 If an award be made under a submission between A. and B., 
 finding the title to be in B., and he subsequently sells to C, in 
 an action of trespass quare clausum brought by A. against C, 
 the defendant may avail himself of the award by way of 
 estoppel.^ 
 
 If, pending a reference, a party thereto assigns over his con- 
 tingent right under the award, and, after an award has been 
 rendered in his favor, receives from his adversary the sum 
 awarded, the assignee of his right may maintain against him 
 an action for money had and received. If the assignor pays 
 the arbitrator's charge, on taking up the award, and receives 
 from the losing party under the award not only the amount 
 awarded, but also that amount of the costs of the award for 
 which the latter is made liable, the amount of costs so paid 
 over, as well as the sum awarded, may be recovered by the 
 assignee in the same action.^ 
 
 An Award is not Evidence in a Criminal Prosecution. — An 
 award made pursuant to a submission, entered into between 
 two private disputants, is not admissible in evidence in a 
 criminal prosecution against one of them. An indictment 
 
 1 Hodges V. Saunders, 17 Pick. 470. 
 
 2 Shelton v. Alcox, 11 Conn. 240. 
 
 3 Smith V. Jones, 1 Dowl. n. a. 526. 
 
EFFECT AND OPERATION OF THE AWARD. 525 
 
 for perjury was brought against a plaintiff, charging him with 
 having committed the crime in an action which he had insti- 
 tuted against the person who was also the prosecutor in this 
 criminal process. The award of the arbitrator, rendered in 
 that action against the plaintiff therein, was held inadmissible 
 evidence in the criminal action, since it was merely the opinion 
 of the arbitrator.^ 
 
 Operation of an Award in a Lis pendens. — The operation of 
 an award rendered in a pending cause, both iipon the cause 
 itself and upon the rights and demands of the parties, has been 
 already discussed. Only one or two rulings remain to be 
 mentioned here. 
 
 After a submission had been entered into in a cause, the 
 plaintiff proceeded with the case in court and obtained a 
 verdict. The court refused to set aside the verdict, and left 
 the defendant to seek his remedy by an action on the bond 
 of submission. 2 
 
 Pending a cause the parties submitted the matter to arbitra- 
 tion. When it came on for trial the defendant offered to prove 
 the award. But the court refused to receive the evidence, say- 
 ing that it was merely the opinion of the arbitrators and of no 
 binding effect in the cause.^ It is not very easy to understand 
 upon what principle this ruling was made. It is not, at least 
 so far as any language of the judge would show, based upon 
 the doctrine that an award made under a submission, where 
 the whole proceeding by way of arbitration is had after the 
 suit has been instituted and before the trial is had, cannot be 
 pleaded in bar in that action. This is an intelligible and 
 possibly a sound principle,* but whether or not it is supported 
 by this cause is left a matter purely of inference or suspicion. 
 
 The defendant in a suit had been arrested. A reference of 
 
 » Rex V. Fontainemoreau, 11 Q. B. 1028. 
 
 2 Potter V. Day, Pract. Reg. C. B. 47 ; cited in Russell on Arb., 3d ed. p. 486 
 
 8 Elliot V. Heath, 14 N. H. 131. 
 
 * See ante, in this chapter, the paragraph entitled An Award is pleadable in 
 Bar to a Bill in Equity. But see Sears v. Vincent, 8 Allen, 507, stated ante 
 p. 522. 
 
526 EFFECT AND OPERATION OF THE AWARD. 
 
 the cause was subsequently made at the trial, a juror having 
 been withdrawn by consent. It was held that even after the 
 award had been made, the defendant was not entitled to be 
 discharged out of custody at the plaintiff's suit. For, inas- 
 much as neither the rule of court nor the award contained 
 any provision for the discharge, it appeared to be the intention 
 of the arbitrators that he should remain under arrest until the 
 award should be performed.^ 
 
 Operation of an Aw^ard in a Lis pendens, including Extrinsic 
 Matters. — If the parties to a suit after it has been referred by 
 a rule of court, undertake by arrangement between themselves 
 to include matters in dispute between them, but not in issue 
 in the pending cause, the award, embracing the decision of 
 such matters, cannot be made the basis of a judgment. Such 
 a case having arisen in Massachusetts, Chief Justice Shaw 
 said : " The court are of opinion that this award cannot be 
 accepted. The referees have not proceeded nor professed to 
 proceed upon the authority vested in them by the rules of this 
 court, nor to consider the matters thereby referred ; but they 
 have considered only the matters embraced in the agreement 
 in pais made and signed by the parties, and under the author- 
 ity given them by that agreement. It stands upon the same 
 footing as if no rule of court had been entered into. ... If 
 the parties have any remedy upon it, we think it must be by 
 action or by a bill for specific performance ; on which question, 
 however, we give no opinion." It was further declared to be 
 now too late to make the agreement in pais a rule of court, and 
 so to receive and accept the award and render judgment thereon. 
 Though such was the English practice, yet it had never obtained 
 in Massachusetts, and in England it was based upon the Statute 
 9 & 10 Will. III. c. 15.2 
 
 But an award rendered relative to the subject-matter of a 
 pending cause, and upon which no judgment can be entered 
 
 1 Apsley V. Crosley, Barnes, 54. 
 
 2 Shearer v. Mooers, 19 Pick. 308. 
 
EFFECT AND OPERATION OF THE AWARD. 527 
 
 without the consent of the losing party, which he refuses to 
 give, will stand as a valid and operative award, and may be 
 sued upon in the ordinary manner for enforcing an award in 
 pais} 
 
 Effect of the Bankruptcy of a Party on the Operation of the 
 Award. — The effect of the bankruptcy of a party to the sub- 
 mission upon the operation of the award has been discussed 
 in several cases in England. These have been collected by 
 Mr. Russell in his work on Arbitration,^ and are substantially 
 as follows : — 
 
 The validity of the award is not necessarily affected by the 
 fact that, after having entered into the submission, a party 
 thereto becomes bankrupt before the execution of the award.^ 
 But the award may nevertheless often be enforced by action,- 
 by attachment (according to the English practice),^ or by en- 
 tering judgment and issuing execution in the cause referred.^ 
 Were it otherwise, it is obvious that an act of bankruptcy 
 committed by a party, especially if he were the party against 
 whom the claim or demand was preferred, would operate as 
 a revocation of the submission. Strong arguments have been 
 adduced to induce the courts to make this ruling ; ' but they 
 have been without effect. It has indeed been held that the 
 bankruptcy of a party furnished sufficient justification for a 
 revocation, by his opponent.^ But Russell says that " there 
 is no case in which the decision necessarily proceeds on the 
 principle that bankruptcy amounts in itself to a revocation." ^ 
 And upon the other hand the courts, though they have some- 
 
 1 Carpenter v. Edwards, 10 Mete. (Mass.) 200. • 
 
 2 Russell on Arb., 3d ed. pp. 487, 488. 
 
 3 Ibid., pp. 153-155. 
 
 « Taylor v. Marling, 2 Man. & Gr. 55. 
 
 5 Hemsworth v. Brian, 1 C. B. 131. 
 
 6 Andrews «. Palmer, 4 Barn. & Aid. 250. 
 ' See Marsh v. Wood, 9 Barn. & Cr. 659. 
 
 8 Marsh v. Wood, 9 Bam. & Cr. 659 ; and see Gaflhey v. Killen, 12 Ir. C. L. 
 Rep. App. XXV. 
 
 8 Russell on Arb., 3d ed. p. 154. 
 
528 EFFECT AND OPERATION OE THE AWAED. 
 
 times shunned a decision of the general question where it could 
 be avoided,! have yet in some cases directly declared that 
 bankruptcy is not a revocation in law.^ In the case of 
 Hemsworth v. Brian, already cited, the attachment issued 
 notwithstanding the fact that the bankrupt made affidavit that 
 his bankruptcy had rendered it an impossibility to perform 
 the award, because it had deprived him of the property which 
 the award ordered him to deliver up. 
 
 If the question referred be only whether or not the party 
 is liable to pay a certain debt, or what is the actual amount 
 of a debt acknowledged to be owing by him, and if after enter- 
 ing into the reference, but before rendition of the award, he 
 goes into bankruptcy, obtains his certificate, and is discharged 
 under the Insolvent Debtors' Act, the fact that the arbitrator 
 has awarded against him, does not operate to preclude him from 
 claiming the benefit of the Statutes of Bankruptcy and Insol- 
 vency, in order to relieve himself of liability in respect of all 
 debts from which, had there been no reference, these statutes 
 would have protected him. In such case it has been held that 
 the award should be set aside.' Or, if the bankrupt has been 
 taken on an attachment before he has obtained his certificate, 
 he will, after obtaining it, be entitled to be discharged out of 
 custody.* 
 
 But if the award, besides ordering payment of a debt from 
 which the bankrupt is relieved by the discharge and certificate, 
 also orders him to pay costs from which he is not thus pro- 
 tected, the award will be enforced against him as to the 
 costs.^ 
 
 An Award creates a Debt provable in Bankruptcy. — An award 
 
 1 Taylor v. Shuttleworth, 8 Dowl. 281 ; Taylor v. Marling, 2 Man. & Gr. 
 65. 
 
 2 Andrews v. Palmer, 4 Barn. & Aid. 250 ; Hemsworth v. Brian, 1 C. B. 131 ; 
 Snook V. Hellyer, 2 Ciiitt. 43. 
 
 ' Eex V. Bingham, 2 Tyrw. 46 ; Eussell on Arb., 3d ed. p. 487. 
 
 * Eex V. Davis, 9 East, 317 ; Baker's Case, 2 Strange, 1152. 
 
 5 Eex V. Davis, 9 East, 317 ; Haswell v. Thorogood, 7 Barn. & Cr. 706. 
 
EFFECT AND OPEEATION OF THE AWARD. 529 
 
 of a sum certain creates a debt proyable against the estate 
 in bankruptcy of the losing party.^ 
 
 Under a reference entered into in an action for the balance 
 of an account, an award was rendered for the plaintiff. Before 
 judgment had been entered on the verdict taken subject to the 
 reference, the defendant committed an act of bankruptcy by 
 filing a declaration of insolvency of which he gave immediate 
 notice to the plaintiff. The court allowed the plaintiff to prove 
 as a creditor for the amount found by the award, with interest 
 and costs.^ 
 
 When a party fails to perform an award, and thereby forfeits 
 his arbitration bond, the penalty becomes a debt which, until 
 the award is actually set aside, is sufficient to support a com- 
 mission of bankruptcy. The simple filing of a bill in chancery 
 to impeach the award will not suspend its effect or make the 
 debt insufiicient for this purpose.^ 
 
 Recitals in the Award as Evidence. — The recitals contained 
 in the award, of acts done in the course of the proceedings 
 in the arbitration, are not always evidence of the performance 
 of those acts. Thus, the statement ,in the award that two 
 arbitrators appointed a third to sit with them is not evidence 
 of the fact of such appointment. Neither is proof that this 
 third arbitrator did sit with the other two, and signed the 
 award, evidence of his appointment by them, for both these 
 matters might have taken place without any such appoint- 
 ment.* Such, also, is the rule in the United States.^ The 
 court, in the cited case, said, generally, that the award can 
 be evidence only of those matters in respect of which the- 
 parties or the court, from whom it derives its validity and 
 effect, have made it evidence. 
 
 A Valid Award needs no Ratification. — A valid award creates- 
 
 1 Antram v. Chace, 15 East, 208. 
 
 2 Ex parte Harding, 5 De Gex, M. & G. 367. 
 
 ' Ex parte Lingood, 1 Atk. 240 ; Bussell on Arb., 3d ed. p. 488. 
 * Still V. Halford, 4 Camp. 17. 
 5 Houghton V. Burroughs, 18 N. H. 499. 
 34 
 
530 EFFECT AKD OPERATION OF THE AWARD. 
 
 a complete obligation, which has its inception from the time 
 when the award is made. No further act is necessary to give 
 it an operative force. It needs no ratification by the parties 
 or either of them.^ 
 
 But Voidable Awards may be rendered operative by Ratification. 
 — But where, as often occurs, an award is voidable, it is per- 
 fectly capable of being ratified, and so rendered binding and 
 operative. As has been already stated, the arbitrators are 
 properly considered to be agents of the parties, and as such 
 their acts are properly the subjects of ratification according 
 to the established principles of the law of agency in this respect. 
 Such ratification may be either express or implied ; it may be 
 made by a written or verbal assent or acceptance, or it may 
 arise from acts done by a party of such a nature as to raise 
 a presumption of assent or acceptance which he will thereafter- 
 ward be conclusively estopped to deny. 
 
 Upon the basis of this principle it has been held that if, in 
 making up their award, the arbitrators exceed their authority, 
 the party against whom this excess operates will ratify the 
 entire action of the arbitrators by accepting from the other 
 party performance of the acts nominated in the award to be 
 done by such other party. The court said, " The award, hav- 
 ing no validity in itself, derives all its force from the accept- 
 ance of the parties. It presented to them proposals for their 
 adoption or rejection. It proposed to the one party to transfer 
 certain property, and perform certain other things ; and to 
 the other party, to pay certain sums of money, and do certain 
 other things. These terms were mutual and dependent, each 
 forming the consideration of the other. The parties manifested 
 their acceptance of the proposals by the part performance of 
 them. [J. e., the first party transferred the property, and the 
 other accepted it.] The award thus adopted possesses all 
 
 1 Sears v. Vincent, 8 Allen, 507 ; and Bee the cases cited ante, in this chapter, 
 in the paragraph entitled Operation of an Oral Award concerning a Boundary 
 Line. 
 
EFFECT AND OPERATION OF THE AWARD. 531 
 
 the ingredients of a contract. It was fairly made, under cir- 
 cumstances which preclude a rescission of it by either party 
 without consent of the other. It must be enforced." ^ 
 
 But if this ratification be made by the losing party in igno- 
 rance of the facts, or in misapprehension of his rights, he is 
 bound, so soon as the ignorance or misapprehension is removed, 
 ^t once to give notice to the other of his intention to rescind 
 his ratification and to reject the award. If he does not 
 promptly take this action, his neglect so to do will finally con- 
 clude his right of rescission or rejection.^ Whether or not, if 
 he be unable to place the other party, who has performed the 
 requirements of the award, in statu quo, he can nevertheless 
 rescind, may be regarded as extremely doubtful. The court in. 
 Massachusetts, discussing, but not deciding the point, expressed 
 a strong bias against the existence of tlie right under such cir- 
 cumstances, especially if the misapprehension was of the law 
 and of legal rights or liabilities, the facts being fully known. 
 Their language was: " If the plaintiff cannot be placed in statu 
 quo, it would be more reasonable and equitable to hold the de- 
 fendant to an agreement which he may have incautiously or 
 ignorantly made, than that the plaintiff", who has been guilty of 
 no negligence or mistake, should be subjected to loss or injury. 
 Let him who has committed the error bear the consequence of 
 his own rashness or ignorance." ^ 
 
 Where a submission of the interests of an infant was made 
 without due authority, but he, after coming of age, received 
 from his guardian the sum awarded, and took no action for 
 two years to avoid the award, it was held that he had ratified 
 and confirmed it. Had he refused to receive the money, he 
 might have sued on the original claim. But he could not do 
 both. Having exercised his right of choice, he was debarred 
 from having recourse to the rejected alternative.* 
 
 1 Culrer v. Ashley, 19 Pick. 300. 
 
 2 Ibid. 
 8 Ibid. 
 
 * Jones V. PhoBnix Bank, 4 Seld. 228. 
 
532 EFFECT AND OPEEATIQN OF THE AWARD. 
 
 The settlement of an estate by arbitration, in lieu of a formal 
 administration, will be considered final after the heirs have 
 acted upon the finding of the arbitrators, and will not be per- 
 mitted to be defeated bj the subsequent taking out of admin- 
 istration by one of them.^ 
 
 But a decision based upon a theory not quite in accordance 
 with this was rendered in an early case in Connecticut,^ 
 wherein the court apparently proceeded upon the ground that 
 as there is a statute regulation for the distribution of estates, 
 it must be strictly pursued.' 
 
 A Void Award cannot be ratified. — An award which is, under 
 a statute, not voidable only, but absolutely void, is incapable 
 of receiving validity from any act of ratification.* 
 
 Ratification by an Agent. — Batification may of course be 
 made by an agent on behalf of a party, provided the agent be 
 thereto duly authorized, or his acts be subsequently adopted 
 by his principal. But it has been held that an agent author- 
 ized to enter into a submission has not therefore any implied 
 or resulting power to ratify the award.^ 
 
 An Award repudiated by both Parties cannot be revived. — If 
 both parties refuse to be bound by an award, it is thereby ren- 
 dered for ever null and inoperative. After such a mutual 
 repudiation it is too late for one of the parties to undertake to 
 set it up and rely upon it against the other. It has no resur- 
 rection.^ 
 
 1 George v. Johnson, 45 N. H. 456. 
 
 2 Munson v. Munson, 3 Day, 260. 
 
 ' Shelton v. Alcox, 11 Conn. 240, at p. 245. 
 
 4 Wiles V. Peck, 26 N. Y. 42. 
 
 6 Bullitt V. Musgrove, 3 Gill, 31. 
 
 6 MarshaU v. Piles, 3 Bush, {Ky.) 249. 
 
CHAPTER XIX. 
 
 MISCONDUCT AND FEAUD. 
 
 Acts of an arbitrator indicative of partiality constitute misconduct. 
 
 Receiving ex parte communications constitutes misconduct. 
 
 Hearing a statement before agreeing to act as arbitrator is proper. 
 
 Relying wholly on statement of a party is misconduct. 
 
 Misconduct in refusing to receive evidence. 
 
 Misconduct in the manner of taking evidence. 
 
 Misconduct in refusing to allow time. 
 
 Sundry other acts constituting misconduct. 
 
 Misconduct of one of several joint arbitrators. 
 
 Irregularity in conducting tlie proceedings may constitute misconduct. 
 
 Awards made on Sunday. 
 
 A mistake may be treated as misconduct. 
 
 Fraud and corruption may be inferred from excess or injustice in the award. 
 
 What constitutes fraud of a party in procuring an award. 
 
 Concealment of a material fact by a party. 
 
 The question of fraud or misconduct is one of fact for the jury. 
 
 Manner of setting up fraud or misconduct. 
 
 Force of the phrase " undue means." 
 
 Method of availing of fraud, corruption, or misconduct. 
 
 An award cannot be impeached by evidence of misconduct. 
 
 Answering allegations of fraud or misconduct 
 
 The subject of misconduct and irregularity on the part of 
 an arbitrator, both in respect of what constitutes such miscon- 
 duct or irregularity, and in respect of the effect thereof, has 
 already been discussed in a great measure in the second part 
 of this book. A few points, however, which did not seem to 
 find an appropriate place in those chapters, remain to be 
 mentioned here. 
 
 Acts of an Arbitrator indicative of Partiality coastitnte Mis- 
 conduct. — The most ordinary and simple description of mis- 
 conduct arises out of some act or demonstration on the part 
 of the arbitrator indicative of bias, prejudice, or partiality. 
 We have already seen that the first and most essential requi- 
 
534 MISCONDUCT AND FRAUD. 
 
 site in a competent arbitrator is a perfect evenness and impar- 
 tiality. But it is not always enough that this intellectual 
 condition of impartiality actually exists ; for if an arbitrator 
 possesses it, yet, if he does any act which is only apparently 
 inconsistent with it, that act will, in nearly all cases, constitute 
 such misconduct that the award will be vacated. It is not 
 alone the fact, but the aspect, of perfect fairness which must 
 be preserved, and an arbitrator cannot be too careful as to his 
 conduct, holding this end in view. It is not his own conscious- 
 ness of rigid justice that can support his determination of the 
 controversy. It is not his conscientious intent to be honest, 
 nor his conviction in his own mind that he is so, that can suf- 
 fice. It is his external actions that will be subjected to scru- 
 tiny ; and if these do not satisfactorily bear the test, the award 
 will fall. His own testimony will be of no avail against these 
 apparent proofs of a contrary nature.^ To the same effect 
 is the remark of Mr. Russell, that " there may be ample mis- 
 conduct in a legal sense to make the court set aside an award, 
 even where there is no ground for imputing the slightest 
 improper motives to the arbitrator." ^ 
 
 Receiving ex parte Commumcatious constitutes Misconduct. — 
 An arbitrator ought not even to talk with a party concerning 
 the subject-matter of the submission while the award is still 
 not made up. It is not in terms decided that any such conver- 
 sation would actually vacate the award. It would probably 
 depend upon the nature of the remarks made and all the cir- 
 cumstances of the particular case. But if it should amount 
 to receiving an ex parte communication, there can be no doubt 
 that it would constitute such misconduct as to vacate the 
 award. Thus if, after the parties have filed written statements 
 of their respective claims, the arbitrators accept a further state- 
 ment containing new matter from one of the parties without 
 
 I Strong V. strong, 9 Cush. 560. 
 Russell on Arb., 3d ed. p. 654, 655 ; Phipps v. Ingram, S Dowl. 669. 
 
MISCONDUCT AND FRAUD. 535 
 
 notice to the other, it is such misconduct and partiality as will 
 vacate their award.^ 
 
 After the hearing had been closed, a written statement of 
 new items was presented by a party to the arbitrators, at the 
 request of one of them. Notwithstanding that they were will- 
 ing to swear that this instrument had not influenced their 
 decision, and though fraud or corruption were not charged, yet 
 upon principle it was considered that such misconduct could 
 have only one effect ; the award must be set aside, and a suit 
 at law upon it enjoined.^ 
 
 Hearing a. Statement before agreeing to act as Arbitrator is 
 proper. — But it is not misconduct on the part of a person to 
 whom application is made to act as arbitrator, and who afterward 
 consents to do so, if at the time of the request he inquires of 
 the party preferring it as to the general nature of the contro- 
 versy in relation to which his services are wanted. This is 
 only what usually and perfectly properly occurs in such cases. 
 A person cannot be expected to accept such an office with no 
 idea as to the character of the duties which it will involve, or 
 as to whether it may be within the scope of his powers or 
 knowledge to fulfil them.^ 
 
 But it is obviously not permissible for an arbitrator to 
 examine into the matter beforehand on behalf of one of the 
 parties, and to allow that party to know substantially what con- 
 clusion he has come to. Misconduct of this description, 
 though occurring before the official character has actually ac- 
 crued, is an unquestionable cause for vacating the award.* 
 
 Relying -wholly on Statement of a Party is Misconduct. — To 
 rely wholly on the statement of one party, unsustained by any 
 manner of proof, would be such partiality as to vacate the 
 award. But after the evidence is all in it is not improper for 
 
 1 Sisk V. Garey, 27 Md. 401. 
 
 2 Cleland v. Hedly, 5 E. I. 163. 
 
 ' Campbell v. Western, 3 Paige, 124 (per Walworth, Chanc.) 
 * Conrad v. Massasoit Insurance Company, 4 Allen, 20. 
 
636 MISCONDUCT AND FEAITD. 
 
 the arbitrators to summon both parties before them and ques- 
 tion one, especially if the other does not then and there object.^ 
 
 Misconduct in refusing to receive Evidence. — If an arbitrator 
 unreasonably refuses to hear a competent witness, it is such 
 gross misconduct as to vacate the award. For such a refusal 
 is against " natural justice."^ 
 
 If the whole cause be referred back to him by the court, his 
 refusal to admit additional evidence is fatal.' But aliter if the 
 reference back be only to enable him to make some specific 
 amendment.* 
 
 Misconduct in the Manner of taking Evidence. — Refusal by 
 the arbitrators to take the evidence, in writing is not such 
 proof of partiality as to vacate the award." 
 
 But if, contrary to express directions, the arbitrator receives 
 affidavits instead of oral testimony, it is misconduct which will 
 invalidate his decision.^ 
 
 Misconduct in refusing to allow Time. — If one party unex- 
 pectedly appears by counsel, it is partiality in the arbitrator to 
 refuse to make a reasonable postponement to enable the other 
 party also to obtain counsel.'^ 
 
 Sundry other Acts constituting Misconduct. — Taking money 
 in payment for services, from one party only, before award,* 
 or buying up a claim included in the submission,^ are acts 
 which will be conclusively presumed to destroy the arbitrator's 
 impartiality. So, also, a private agreement of the arbitrator 
 with either party, concerning the subject-matter in dispute, 
 though not affecting the arbitrator's own interests.^" 
 
 1 Hartshorne v. Guttrell, 1 Green's Ch. 297. 
 
 2 Van Cortlandt v. Underbill, 17 Johns. 405 ; Morgan v. Mather, 2 Ves. Jr. 
 15 ; Phipps V. Ingram, 3 Dowl. 669 ; Pepper v. Gorham, 4 Moore, 148. 
 
 « Nickalls v. "Warren, 6 Q. B. 615. 
 
 4 Howett V. Clements, 1 C. B. 128. 
 
 ' E wing's Adm'rs v. Beauchamp, 2 Bibb, 456. 
 
 ^ Banks v. Banks, 1 Gale, 46. 
 
 ' Whatley v. Morland, 2 Dowl. 249. 
 
 ' Shephard v. Brand, Cases temp. Hardwicke, 53 ; 2 Barnardiston, 463. 
 
 9 Blennerhassett v. Day, 2 Ball & Beat. 104. 
 
 ^0 Chichester v. M'lntire, 1 Dowl. N. s. 460. 
 
MISCONDUCT AND FRAUD. 537 
 
 Misconduct of one of several Joint Arbitrators. — Where there 
 are several arbitrators, misconduct on the part of any one of 
 them will suffice to avoid the award of all. If one privately 
 takes the advice of counsel upon an incorrect statement of 
 facts and acts upon the same, knowingly, the award will be 
 void ; though not so, if the statement of the case be correct.^ 
 
 Irregularity in conducting the Proceedings may constitute Mis- 
 conduct. — In addition to the foregoing specific cases, it may 
 be laid down as a general rule that if an arbitrator neglects to 
 do any act which it is his duty to do, or does any act which he 
 ought not to do, or allows a party to do so, in the course of 
 the proceedings, and the error is not subsequently waived by 
 the parties, the irregularity will be a cause for vacating the 
 award, unless, perhaps, it be so insignificant and so void of 
 any possible mischievous effects that the courts would regard 
 an objection based upon it as frivolous. Most of these matters 
 of irregularity, what constitutes them and what effect they have, 
 have been already discussed in considering the subject of the 
 powers and duties of the arbitrator and of proceedings before 
 him. A few rulings, however, may be added. 
 
 If the irregularity be in a wholly immaterial matter, or 
 if it is perfectly clear, by the same proof that establishes the 
 fact, that it could have worked no possible prejudice to either 
 party, or at least to the party complaining, it may not be 
 regarded as a sufficient cause for vacating the award. 
 
 The admission of evidence, incompetent because relating to 
 matters not submitted, is not a cause for annulling the award, 
 provided the award does not undertake to determine such 
 foreign matters.^ 
 
 An omission to swear the witnesses before the arbitrator is 
 not necessarily fatal to the validity of the award.* 
 
 An award or report, if properly signed by the arbitrators or 
 
 1 In re Hare, 6 Bing. N. C. 158. 
 
 2 Oflfut t). Proctor, 4 Bibb, 252. 
 
 t Dater v. Wellington, 1 Hill, 319 ; Emmet v. Hoyt, 17 "Wend. 410. 
 
538 MISCONDUCT AND PEAXJD. 
 
 referees, is not vitiated becaxise the signatures of other parties 
 not named in the submission or order of reference are also 
 appended thereto.^ Such signatures are meaningless, or at 
 the worst are surplusage; and in whichever light they are 
 regarded, they will be simply rejected. 
 
 If the clerk reverses the names of the referees, so that the 
 one named first no longer appears as such, and does not there- 
 fore act as chairman, it is an irregularity which might be the 
 ground of an objection, provided that it be taken before the 
 hearing, but aliter if taken after the hearing.^ 
 
 Such misconduct of the arbitrators as may be described as 
 merely permissive, aSj for example, if they cannot preserve 
 proper order and decorum in the proceedings before them, will 
 not constitute a cause for vacating their award. But if they 
 go so far in their weakness as to suffer a party to withhold 
 his books and papers from inspection by the other, whereby he 
 procures the allowance of an unfounded claim, which fact 
 would have been disclosed by an examination of the books, the 
 award must be set aside by a court of equity.^ 
 
 Awards made on Sunday. — The arbitrators have no right to 
 act upon Sunday. If they make their award upon Sunday, it 
 will be a totally void instrument.* 
 
 But where the sitting began on Saturday, was continued 
 after midnight, and, the parties remaining together, the award 
 was published between one and three o'clock on Sunday morn- 
 ing, it was held to be valid.^ 
 
 An award is not avoided by the fact that the day on which 
 the arbitrator directs payment to be made happens to fall on 
 Sunday.^ 
 
 A Mistake may be treated as Misconduct. — The theory that a 
 
 1 Carter v. Sams, 4 Dev. & Bat. 182. 
 
 2 Billington v. Sprague, 22 Me. 34. 
 » Cutter V. Carter, 29 Vt. 72. 
 
 < Strong V. Elliot, 8 Cow. 27. 
 
 5 Sargeant v. Butts, 21 Vt. 99. 
 
 6 Hobdell V. Miller, 6 Bing. N. C. 292. 
 
MISCONDUCT AND FRAUD. 539 
 
 mistake committed by the arbitrator in malcing up his award 
 may be regarded as legally constituting misconduct, is sus- 
 tained in England by the case of In re Hall & Hinds.^ Therein 
 the contention before the arbitrators was merely whether A. 
 was entitled to both or to only one of two sums claimed by him 
 from B. The arbitrators intended to give both sums to A. ; 
 but by a singular series of blunders they deducted the smaller 
 from the greater, and in disposing of the result thus obtained, 
 they ordered A. to pay it to B. The court said that such gross 
 mistake and negligence constituted misconduct, in a judicial 
 sense of the term, on the part of the arbitrators ; and upon 
 this ground the award was set aside. This cause, and the 
 subsequent judicial discussions upon the soundness of its doc- 
 trine, have already been given at length, ante, p. 323 et neq. 
 
 Fraud and Corruption may be inferred from Excess or Injustice 
 in the Award. — Fraud or corruption upon the part of an arbi- 
 trator, whenever discovered, will furnish a sufficient cause for 
 vacating the award. These may be of two kinds, either posi- 
 tive, as by some act that can be proved ; or inferential, where 
 the circumstances so strongly point to dishonesty that the 
 court will consider the presumption of its existence, thus 
 raised, to be conclusive. A common case of inferential fraud 
 or corruption is where the award is obviously and extremely 
 unjust. An erroneous or excessive award is not, for that sole 
 reason, necessarily to be set aside. Yet, if the error or excess 
 be gross and palpate, and if the injustice be great and irremedi- 
 able, these facts, either alone or taken in connection with other 
 corroborative circumstances, may amount to virtual proof of 
 dishonesty. In such an event the court will imperatively pre- 
 sume the corruption or misconduct of the arbitrators, and will 
 vacate their award, upon proceedings in equity instituted for 
 that purpose.2 The same causes may be a sufficient ground 
 
 1 2 Man. & Gr. 847; and see Ashton v. Pointer, 2 Dowl. 651. 
 3 Tracy v. Herrick, 26 N. H. 381; Band v. Eeddington, 13 id. 72; Van Cort- 
 landt V. Underbill, 17 Johns. 405; In re Hall & Hinds, 2 M. & G. 847 ; Ashton 
 
540 MISCONDUCT AND FEAUD. 
 
 for a court of law to vacate the award, provided the award was 
 required by law to be returned into the court.^ 
 
 What constitutes Fraud of a Party in procuring an Award. — 
 Fraud of either of the parties in procuring the award consti- 
 tutes a sufficient ground in equity for setting it aside.^ But 
 offering and prevailing upon a groundless claim, or one which 
 the offering party believes to be groundless, is not such fraud. 
 The offerer must, either " by suggestion of falsehood or suppres- 
 sion of truth, have presented to the arbitrators a state of facts 
 in regard to the merits of the claim which were fictitious," 
 and believed by him at the time to be so. " And it is ques- 
 tionable even how far such a case will justify a court of equity 
 in setting aside the award." ^ 
 
 Concealment of a Material Fact by a Party. — A vessel having 
 been lost, the owners and their insurers submitted to arbitra- 
 tors the question " whether all or what proportion of the freight 
 was due from the company or from the freighters." Pending 
 the arbitration the owners had in their hands a portion of the 
 freight money which they had collected from the freighters. 
 The award was that the company should pay the whole of the 
 money, and the owners accordingly paid back the sum in their 
 hands to the freighters, and received the whole amount from 
 the insurers. The insurers afterward, discovering the transac- 
 tion between the owners and freighters, sought to have the 
 award set aside, and to recover back their payment in whole or 
 in part. The court refused, saying that t\m concealment was 
 not of a material matter, and did not operate as a fraud against 
 the company. The determination of the arbitrators " was 
 equally true and just whether money was or was not in the 
 
 V. Pointer, 2 Dowl. 651; Baker's Heirs v. Crockett, Hardin, (Ky.) 383; Bumpass 
 V. Webb, 4 Porter, 65. 
 
 1 Tracy v. Herrick, 25 N. H. 881. 
 
 2 South Sea Co. ... Bumstead, 2 Eq. Ca. Abr. 80 ; Mitchell «. Harris, 2 Ves. 
 Jr. 129 a ; Metcalfe v. Ives, 1 Atk. 63 ; Gartside v. Gartside, 3 Anst. 735 ; and 
 American cases cited below. 
 
 3 Emerson v. Udall, 18 Vt. 477 {per Redfield, J.) ; Baker's Heirs v. Crockett, 
 Hardin, (Ky.) 388; but see Cutter v. Carter, 29 Vt. 72, stated ante, p. 538. 
 
MISCONDUCT AND FEAUD. 541 
 
 hands of the [owners], which, in case of another determination 
 of the arbitrators, might have been retained in part payment of 
 the freight. And it is inconceivable that a knowledge by the 
 arbitrators of the fact not disclosed, should have made a differ- 
 ence in the award." . . . The declaration of the arbitrators 
 " is equally true whether the [owners] had or had not any 
 money of [the freighters] in their hands, or whether they had 
 or had not any means of obtaining satisfaction from them." It 
 should be observed that the plaintiffs did not charge actual fraud 
 in tlijs case, but only a wrongful concealment of a fact which 
 ought to have been made known to the arbitrators.^ 
 
 The Question of Fraud or IMisconduct is one of Fact for the 
 Jury. — Whether or not an award is void by reason of fraud 
 committed by a party, or by reason of corruption or partiality 
 of an arbitrator, is a question not of law, but of fact for a 
 jury. It cannot be brought before the court upon a demurrer 
 to a plea, on the ground that the fraud, corruption, or partiality 
 can be gathered from the papers filed in the cause.^ Where it 
 is said that the law presumes fraud from certain acts, the pre- 
 sumption is nevertheless based upon the facts, as admitted, 
 appearing on the face of the record or proved.^ 
 
 Manner of setting up Fraud or Misconduct. — Where corrup- 
 tion, partiality, or gross misbehavior are relied upon as causes 
 for vacating an award, they must take the form of " charges of 
 a personal nature " against the arbitrator ; e.g., that he was 
 corrupt or partial, or that he grossly misbehaved in that, <fec. 
 The allegation in the pleadings that the award is corrupt or 
 partial in certain particulars is not sufficient.* 
 
 Force of the Phrase " Undue Means." — The Statute 9 & 10 
 Will. III. c. 15, provided that awards " procured by corruption 
 or undue means," returnable into court, might be set aside 
 
 1 Newburyport Marine Ins. Co. w. Oliver, 8 Mass, 402. 
 
 2 Duren w. Getchell, 55 Me. 241 ; Wakeman v. DaUey, 44 Barb. 498. 
 ' Wakeman v. Dalley, 44 Barb. 498. 
 
 * Perkins v. Giles, 63 Barb. 342. 
 
54:2 MISCONDUCT AND FRAUD. 
 
 upon motion. The addition of the phrase " undue means 
 was held considerably to extend the range of causes for which 
 an award might be set aside beyond mere corruption or in- 
 stances in which improper motives could be attributed to the 
 arbitrator. Thus, it was said they could be set aside for any 
 thing which had occurred in the course of the proceedings 
 inconsistent with natural justice, as for example, for not allow- 
 ing a party a proper opportunity to discuss his case.^ Even 
 the latitude allowed by this act has been much stretched by the 
 courts.^ 
 
 The grand principle is, that in a suit at law on an award, or 
 
 if an award be relied on in bar, no matter dehors the award 
 
 ,can be given in evidence to invalidate it.^ Misconduct, fraud, 
 
 or corruption cannot be shown save by the aid of such evidence, 
 
 consequently it is not competent to show them at all. 
 
 Method of availing of Fraud, Corruption, or Misconduct. — In 
 an action of debt on the arbitration bond, for non-performance 
 of the award, or in an action on the award itself, the defendant 
 cannot, at common law, plead misconduct, or set up facts 
 establishing or amounting to misconduct, on the part of an 
 arbitrator. If he does so, his plea will be bad oi> demurrer.* 
 For example, a plea that the arbitrator refused to grant to the 
 defendant a reasonable time to produce material witnesses, has 
 been held bad on demurrer, as imputing misconduct.^ So, 
 
 1 Russell on Arb., 3d ed. p. 665 ; Spettigue v. Carpenter, 3 P. Wms. 361 ; Vin. 
 Abr. Supp. Arb., p. 301. 
 
 2 Russell, ubi supra. 
 
 3 Todd V. Barlow, 2 Johns. Chy. 651 ; s. c. 3 Johns. 367 ; Newland v. Doug- 
 lass, 2 Johns. 62 ; De Long v. Stanton, 9 id. 38 ; Finley v. Pinley, 11 Mis. 624 ; 
 Sisk V. Garey, 27 Md. 401 ; Emery v. Hitchcock, 12 Wend. 156. These cases 
 serve only by way of example; the number of adjudications in which this 
 familiar, but old and now much modified, doctrine has been asserted is infinite. 
 
 * Fletcher v. Hubbard, 43 N. H. 58 ; Sherron v. "Wood, 5 Halst. 7 ; Russell 
 on Arb., 3d ed. pp. 529-531 ; Whitmore v. Smith, 31 L. J. Exch. 107 ; 7 Hurl. 
 & Nor. 509 ; Wills u. Maccarmick, 2 Wils. 148 ; Brazier u. Bryant, 10 Moore, 
 587 ; Chicot v. Lequesne, 2 Ves. Sr. 315 ; Veale v. Warner, 1 Saund. 327 a, n. 
 3 ; contra, Duren v. Getchell, 55 Maine, 241. 
 
 5 Grazebrook v. Davis, 5 Barn. & Cress. 534 ; Braddick v. Thompson, 8 East, 
 844. 
 
MISCONDUCT AND FRAUD. 543 
 
 again, where an award directed an executrix to pay a certain 
 sum of money, her plea that there was no admission or evidence 
 before tlie arbitrator of the fact of her having assets, was held 
 ill on a general demurrer. For it imputed misconduct to the 
 arbitrator, who could not rightly direct a personal representa- 
 tive, having no assets of the deceased, to pay his debts.^ 
 
 The remedy is only by a bill in equity seeking to have the 
 award declared null and void, or to have the further prosecu- 
 tion of the suit instituted upon it enjoined.^ In England this 
 condition of things has been in a great degree modified by the 
 passage of the Statute 9 & 10 Will. III. c. 15. But the old 
 rule still prevails in cases not falling within the operation of 
 that statute, or of the Common Law Procedure Act of 1854.* 
 
 But if the award be returnable into court so that it must be 
 accepted by the judges, the English practice is stated by Mr. 
 Russell to be that " in every court of law or equity the award 
 will be set aside on motion, if it be proved that the arbitrator 
 is corrupt or partial, or that he is secretly interested in the 
 subject referred."* So likewise is the rule in the United 
 States.^ The law upon this subject is fully stated in Chap- 
 ter XXII., in the paragraph entitled Vacating an Award by 
 Motion, quod vide. 
 
 Misconduct of the arbitrator cannot be alleged in bar to an 
 application for an attachment,® on the ground that it is an 
 extrinsic objection not apparent on the face of the award itself.'^ 
 And it has even been held that reference cannot be made to 
 the pleadings in the cause referred for the purpose of showing 
 
 1 Riddell v. Sutton, 5 Bing, 200 ; 2 M. & P. 345. 
 
 2 Sisk V. Garey, 27 Md. 401 ; Sherron v. "Wood, 5 Halst. 7. 
 
 ' Russell on Arb., 3d ed. p. 642 ; Veale v. Warner, 1 Saund. 327 c, notes. 
 
 * Russell on Arb., 3d ed. p. 654 ; Tittenson v. Peat, 3 Atk. 529 ; Morgan v. 
 Mather, 2 Ves. Jr. 15 ; Earle v. Stocker, 2 Vern. 251. 
 
 6 Pletcher v. Hubbard, 43 N. H. 58. 
 
 ^ Russell on Arb., 3d ed. p. 600 ; Brazier v. Bryant, 10 Moore, 587 ; Anon. 
 Andr. 299 ; Manley v. Bray, 11 Jur. 521. 
 
 ' Butler V. Masters, 13 Q. B. 341 ; MacArthur v. Campbell, 2 Ad. & El. 52 ; 
 PauU V. Paull, 2 Cr. & M. 235. 
 
544 MISCONDUCT AND FEATTD. 
 
 the award to be defective on its face, even though these plead- 
 ings be brought before the court by an af&davit identifying 
 them.^ 
 
 Fraud, committed by a party in procuring the award, consti- 
 tutes a sufficient defence in an action at law upon the award .^ 
 
 An A-ward cannot be iznpeaclied by Evidence of Misconduct — 
 Upon the same principles already enunciated the doctrine is 
 declared to be that where an award is offered in evidence, it 
 cannot be impeached by testimony going to show misconduct 
 on the part of the arbitrator.^ 
 
 Ans-wering Allegations of Fraud or Misconduct. — If a bill in 
 equity brought to set aside an award alleges fraud or corrup- 
 tion on the part of either an arbitrator or a party, these alle- 
 gations must be denied both by averments in the plea, and by 
 an answer in support of it.* 
 
 If arbitrators are made parties defendant to a bill in equity 
 to set aside their award, on the ground that they have been 
 corrupt or partial, they cannot plead their own award in bar, 
 but must support their plea by an answer showing themselves 
 to be incorrupt and impartial.^ 
 
 1 Davies v. Pratt, 25 L. J. C. P. 71 ; 16 C. B. 58C ; Eowe v. Sawyer, 7 Dowl. 
 691. 
 
 2 Emerson v. Udall, 13 Vt. 477. 
 
 5 Kussell on Arb., 3d ed. p. 541 ; Wills v. Maocarmick, 2 Wils. 148. 
 * Russell on Arb., 3d ed. p. 554. 
 
 ■i Russell on Arb., 3d ed. p. 466 ; Lingood v. Croucher, 2 Atk. 395 ; Rybott 
 V. BarreU, 2 Eden C. C. 131. 
 
CHAPTER XX. 
 
 PEEFOBMANCE OP THE AWARD. 
 
 Time of performance. 
 
 A colorable performance is bad. 
 
 Performance according to the intent of the award is sufficient. 
 
 Performance to a reasonable intent. 
 
 Performance of awards ordering payment. 
 
 Non-performance of awards ordering payment of rent. 
 
 Performance of awards putting an end to suits. 
 
 Performance under an award calling for a deed. 
 
 By which party an instrument of conveyance is to be prepared. 
 
 Whether a request for a conveyance ordered is necessary. 
 
 A request for performance must comply with the terms of the award. 
 
 The request may be made by an agent. 
 
 Release may be executed to a stranger. 
 
 A tender creates the obUgatiou of performance. 
 
 Performance to and by representatives of a deceased party. 
 
 Performance where the award is in excess of authority. 
 
 Performance of awards ordering indemnity. 
 
 Performance of awards ordering acquittance or that suits should cease. 
 
 A party may sometimes sue before he has performed his part under the award. 
 
 The plaintiff must perform, if performance be made dependent, concurrent, or a 
 
 condition precedent. 
 Performance of impossible orders. 
 
 Where the impossibility grows out of a wrongful act of the party. 
 Performance of an award in the alternative. 
 An informal award may be made good by performance. 
 The effect of performing an unenforceable order. 
 The arbitrators need not perform the award. 
 The award itself after performance. 
 Security for performance of the award. 
 
 Time of Performance. — So soon as a valid award has been 
 made and published, the duty of obedience to its mandates 
 accrues. Neither party is bound to notify the other of the 
 making of the award as a preliminary to rendering this obliga- 
 tion of performance complete and instantly binding, according 
 to the terms or construction of the award. Each is supposed to 
 
546 PEEFOEMANCB OF THE AWARD. 
 
 have an equal knowledge of the fact that the award has come 
 into existence as a perfect and effective instrument.^ Though 
 it is said that if any thing has been deposited in the hands of 
 a third person, not a party to the submission, with the stipula- 
 tion that it shall be disposed of according to the directions of 
 the arbitrators, such third person is not constructively affected 
 with notice of the award, but should hold the article until 
 actual notice is given to him.^ 
 
 If no time for performance is named in the award, it has 
 been already said that the English rule is that a sensible con- 
 struction will be given to the award, and a reasonable time for 
 performance will be allowed in view of the nature of the thing 
 ordered to be done, and the circumstances.^ 
 
 But in the United States an award naming no time for per- 
 formance has been said to be void for uncertainty.* 
 
 A Colorable Performance is bad. — Performance must be bona 
 fide. A technical or colorable performance, practically fraudu- 
 lent, or having the substantial result of avoiding the real 
 intent and force of the award, will furnish no defence in pro- 
 ceedings for enforcement. In a suit brought in the name of a 
 husband and wife, concerning the wife's right to an annuity, 
 the husband was made a party against his will. An award 
 was rendered ordering that the arrears of the annuity should 
 be paid to the wife. In proceedings to compel payment to her 
 by an attachment, it was held to be no answer that the husband 
 had previously demanded the arrears, and that they had been 
 paid to him ; inasmuch as it appeared that such payment to 
 him had been collusive, and had been made by the paying 
 party with a knowledge that it had been intended by all con- 
 
 1 Russell on Arb., 3d ed. p. 496 ; Child v. Horden, 2 Bulst. 143 ; Gable v. 
 Moss, 1 id. 44; Bell v. Twentyman, 1 Q. B. 766. 
 
 2 Russell, ubi supra ; "Wilkinson v. Godefroy, 9 Ad. & El. 536 ; and see ante, 
 p. 290. 
 
 3 Ante, pp. 424, 425 ; Russell on Arb., 3d ed. pp. 275, 495 ; Bac. Abr. Arb., F; 
 Ereeman v. Bernard, 1 Salk. 69. 
 
 * Carnrochan u. Christie, 11 Wheat. 446 ; stated ante, pp. 424, 425. 
 
PERFORMANCE OF THE AWARD. 547 
 
 cerned that the wife should enjoy the fruits of the action if 
 the result should be in her favor.^ 
 
 Performance according to the Intent of the A'nrard is sufScient. 
 — Performance need extend only to the intent of the arbitra- 
 tors. Their award will be construed with due regard to the 
 circumstances existing at the time of its rendition. If these 
 be changed afterward, the obligation will not be increased 
 beyond their obvious understanding of the instrument.^ 
 
 An award of commissioners ordered that the owners of land 
 over which a drain passed should cleanse the drain, and keep 
 it sufficiently wide and deep to carry off the water " intended 
 to run down the same." Subsequently to the making of this 
 award, the owner of land by which this drain passed, and 
 which was drained by it, in order to drain his lands more 
 thoroughly, opened into it a new " sough " or under-drain. It 
 was held that, inasmuch as at the time of making their award 
 the commissioners did not contemplate this proceeding, the 
 obligation in the award concerning the width and depth of the 
 drain did not require that it should be kept of sufficient capa- 
 city to carry off the additional water passed in by the sough.^ 
 
 Performance to a Reasonable Intent. — Lessees of Some lands 
 and coal-mines, found and expected to be found, covenanted to 
 sink for coal as far as could and ought to be accomplished by per- 
 sons acquainted with the business, and as was in siich cases usual 
 and customary ; also immediately to erect such fire-engines as 
 should be necessary. An award ascertained the damages 
 occasioned by their default, and further directed that they 
 should sink to and through the coal-mines demised, and should 
 erect fire-engines thereon ready and complete for working the 
 mines and getting out the coal, according to the terms of the 
 lease, before a certain day. The lessees having showed that 
 they had sunk for coal as far as they could and ought in the 
 
 1 Wynne v. Wynne, 4 Man. & Gr. 253 ; 1 Dowl. N. s. 723. 
 
 2 Preston v. Whitcomb, 11 Vt. 47, at p. 56. 
 5 Sharpe v. Hancock, 7 Man. & Gr. 354. 
 
548 PERFORMANCE OF THE AWARD. 
 
 judgment of persons of competent skill in such matters, and 
 as far as was usual and customary, and that no coal-bed had 
 been found which was worth working, it was held that they 
 had sufficiently performed the award.^ 
 
 Performance of Awards ordering Payment. — Where an award 
 directs a sum of money to be paid, the money is payable with- 
 out demand, and the party by whom it is to be paid must seek 
 out the payee.^ 
 
 So if money is ordered to be paid at a particular time and 
 place, the party by whom payment is to be made ought to be 
 present at the time and place to make a tender of the money, 
 even though the party to receive it is not there.^ 
 
 If the defendant be directed to pay to the plaintiff, on a 
 specified day, his costs of suit, to be taxed by the proper offi- 
 cer, the defendant must have them taxed so as to be prepared 
 to make the payment on the day named.* 
 
 Non-performance of Awards ordering Payment of Rent. — If 
 arbitrators award that the defendant shall " enjoy a house, 
 paying rent to the plaintiff," the failure of the defendant to 
 pay the rent is a forfeiture of the arbitration bond. The stipu- 
 lation for the payhaent is not a mere condition of the enjoy- 
 ment, upon non-performance of which the defendant's estate is 
 to cease.° But if the award direct one to make a lease to the 
 other, rendering certain rent to the lessor, the construction 
 will be different. If, after the lease has been made, the rent 
 be not paid, the non-payment does not constitute a breach of 
 the arbitration bond. Distress or an action of debt for the 
 rent are the proper remedies. Though, if the award should 
 in terms order the lessee to pay the rent, then, as in the former 
 case, a non-payment would work a forfeiture of the bond.^ 
 
 ' Hanson v. Boothman, 13 East, 21. 
 
 2 Furser v. Prowd, Cro. Jac. 423. 
 
 3 Doyley v. Burton, 1 Ld. Raym. 533. 
 * Candler v. Fuller, Willes, 62. 
 
 ^ Parsons v. Parsons, Cro. Eliz. 211. 
 6 Anon. F. Moore, 3 pi. 8. 
 
PERrOEMANCE OF THE AWARD. 549 
 
 Performance of Awards putting an End to Suitff. — An award 
 ordering that all suits between A. and B. shall cease is not 
 broken by the prosecution by A. of suits in which B. is a 
 defendant jointly with others.^ 
 
 An award directing that the plaintiff should not prosecute 
 nor proceed in a certain action in the same term, has been 
 held not to be broken by his continuing the action from term 
 to term, since otherwise he could never afterward have pro- 
 ceed.ed with it.^ But where the award forbids the plaintiff to 
 continue the action, it is said that his continuance of it by his 
 attorney is a breach ; but that there is no breach if the attorney 
 continue the action without the privity of his client.^ 
 
 Performance under an Award calling for a Deed. — An award 
 simply directing the execution of a deed, or of a good deed, or 
 the like phrase, has been held to be satisfied by the execution 
 of a deed legally sufficient to pass the title in the premises. 
 The ground taken is, that the award has nothing to do with 
 the title or possession of the party directed to make the deed. 
 His title may be good or bad, he may be seised or disseised of 
 the premises ; these facts, so far as the award is concerned, are 
 matters of indifference. Execution of a deed only having been 
 ordered, the execution of a deed per se. good and intrinsically 
 capable of effecting the transfer is sufficient, though extrinsic 
 circumstances may make the instrument practically useless ; 
 and semhle that a quitclaim deed will satisfy the requirement.* 
 
 The subject of the character of the instrument, called for by 
 an award, is discussed ante, pp. 399-402, inclusive. 
 
 By \vhicb Party an Instrument of Conveyance is to be prepared. 
 — Where an award orders conveyances of any description to be 
 
 1 Barnardiston v. Fowler, 10 Mod. 204. 
 
 2 Gray v. Gray, Cro. Jae. 525. 
 
 3 Ibid. 
 
 * Preston v. Whitcomb, 11 Vt. 47 ; Eedfield, J., dissenting, on the ground 
 that the offer made in this case to show an adverse possession was admissible, 
 since that fact, if proved, would show that the deed was not a good one, but 
 wholly inoperative. See also Tinney v. Ashley, 15 Pick. 546; and the cases 
 cited by the court in Preston v. Whitcomb. 
 
550 PERFORMANCE OE THE AWARD. 
 
 executed or delivered, the question which party is entitled or 
 obliged, to prepare the instrument constitutes a natural and 
 frequent subject of dispute, if it has not been disposed of by the 
 arbitrators. In an old case it was said that if the award order 
 one person to convey an estate to another by such a time, the 
 former is to procure the conveyances to be made. So if the 
 order be that one shall convey to another by such conveyances 
 as shall be approved by a certain counsel named, then the party 
 named as grantor is bound to have the deeds prepared and pro- 
 cure the approval of the counsel. ^ 
 
 In a later case the award ordered the lessor of the plaintiff 
 to pay the defendant a certain sum for a piece of copyhold 
 land, and that the defendant should, at the plaintiff's charge, 
 surrender the land to his use, the payment to be contemporane- 
 ous with the surrender. The court held that the defendant was 
 bound to prepare and execute the surrender, or at least to give 
 notice that she would attend to make it. It was proved that 
 the defendant was requested to make the surrender, that pay- 
 ment of the price and of the costs of the surrender was offered 
 to be made upon the surrender being effected ; and thereupon 
 the court granted an attachment against the defendant.^ 
 
 An arbitrator, to whom it had been referred to determine 
 whether or not a contract subsisted for the purchase of certain 
 land, awarded that the contract Was in force, that the defend- 
 ant (the intended grantee) should perform it and pay a certain 
 sum upon the conveyance of the land being made to him by the 
 plaintiff. The court held tliat in order to bring the defendant 
 into contempt for non-performance, the plaintiff should have 
 executed a conveyance, and tendered the same to him, and 
 demanded the price awarded.^ 
 
 Mr. Eussell, commenting on the two above-stated cases of 
 Doe d. Clarke v. Stillwell and Standley v. Hemmington, says 
 
 1 Candler v. Fuller, Willes, 62. 
 
 2 Doe d. Clarke v. Stillwell, 8 Ad. & El. 645. 
 ' Standley v. Hemmington, 6 Taunt. 561. 
 
PERrORMANCE OF THE AWARD. 551 
 
 that they were both decided upon what was supposed to be the 
 general rule respecting the duty of a vendee of real estate 
 under a contract of sale, to wit, that he should " prepare and 
 tender the conveyance for the execution of the vendor." But it 
 seems from the last edition of Sir Edward Sugden's work on 
 Vendors and Purchasers, that the rule, which never was sanc- 
 tioned by the practice of conveyances, has ceased to be law. 
 The effect of what is there stated may be thus abridged : 
 When the contract for sale of lands is silent respecting the 
 preparation and costs of the conveyance, it seems now to be 
 settled law, notwithstanding the ancient cases, and many dicta 
 to the contrary, that it is the duty of the purchaser, at his own 
 expense, to prepare and tender the conveyance to the vendor 
 for execution. If the agreement expressly require the pur- 
 chaser to prepare and bear the expense of the conveyance, it 
 was always clear that the vendor need not tender a convey- 
 ance. But when the conveyance is to be prepared at the 
 expense of the vendor, and there is nothing in the agreement 
 to show who is to prepare it, it has been decided that the duty 
 of preparing, as well as paying for, the instruments, falls on 
 the vendor.^ 
 
 In Massachusetts, in construing a contract wherein the 
 defendants agreed to sell land to the plaintiff, and to execute 
 and deliver to him a deed thereof, the court said, " As to the 
 othei; part of the objection, that it was incumbent on the plain- 
 tiff to prepare a deed for the defendants to execute, we think it 
 clearly was not. The defendants contracted to execute and 
 deliver a good and sufficient deed, and it is incumbent on them 
 to do whatever was necessary to the performance of their con- 
 tract. If the law in England is otherwise, it must be founded 
 on custom and practice, and not on any legal principle inde- 
 pendently of practice." 2 
 
 1 Russell on Arb., 3d ed. pp. 500, 501 ; Sudgen on Vendors & Purchasers, 
 11th English ed., vol. i. p. 262. 
 
 2 Tinney v. Ashley, 15 Pick. 546, at p. 552. 
 
552 PERFOEMANCE OP THE AWARD. 
 
 Whether a Request for a Conveyance ordered is necessary. — 
 The following is the only English authority which I find con- 
 cerning the point of whether or not the party to receive the 
 conveyance is under an obligation of requesting the same from 
 the grantor. An arbitrator directed that on payment of the 
 mortgage debt, the mortgagee should re-assign the mortgaged 
 land. The court held that the duty of making the re-assign- 
 ment was complete and in force without any prior request from 
 the mortgagor. No request was necessary, because the act could 
 be performed without the presence of both parties ; but it would 
 have been otherwise had the order been to re-infeotf, because 
 in such case the feoffee must have been present to receive the 
 livery.i 
 
 In Massachusetts, where A. agreed to pay B. such price for 
 certain land as arbitrators named should award, and B. agreed 
 to accept such price and convey the land to A., it was held that 
 A. must demand the conveyance from B. before he could main- 
 tain a suit against him for breach of his agreement."^ But the 
 language of the agreement of parties in this case was so specific 
 that perhaps the decision ought not to be taken as establishing 
 a general rule requiring demand. 
 
 A Request for Performance must comply -with Terms of the 
 Award. — If the award orders a conveyance of any kind to be 
 executed upon request, it seems obvious that the request should 
 be for an instrument precisely such as is ordered, n|med, 
 or described in the award to be given. Otherwise a refusal to 
 comply with the request might constitute no breach of the 
 obligations of the submission and award.^ 
 
 An award ordered the defendant to assign, according to law, 
 a certain interest to one D., upon request. An assignment was 
 tendered to the defendant, which he was requested to execute, 
 but which ran to D., his executors, administrators, and assigns. 
 
 1 Eosse V. Hodges, 1 Ld. Raym. 233. 
 
 2 Pomroy v. Gold, 2 Mete. (Mass.) 500. 
 
 3 Russell on Arb., 3d ed. p. 501. 
 
PERFORMANCE OE THE AWARD. 553 
 
 This was objected to, as being in excess of what was called for 
 by the award. Lord BUenborough was inclined to think that 
 the direction might intend only a personal assignment to D. 
 himself. But the point was not finally ruled upon, because the 
 cause was compromised by the parties.^ 
 
 The Request may be made by an Agent. — The courts regard a 
 demand for the execution of a deed under an award as being 
 very different from a demand for the payment of money. A 
 demand of the former description may be sufficiently made "by 
 any person authorized to do so on behalf of the party, though 
 the authority be not in the shape of an actual power of attorney.^ 
 
 Release may be executed to a Stranger. — An old case holds 
 that if the defendant, being ordered to execute a release to the 
 plaintiff, deliver a properly executed release to a stranger, to 
 the use of the plaintiff, which the plaintiff refuses to accept, 
 such tender and refusal may be pleaded as a good performance 
 of the award, if no particular place be mentioned for the de- 
 livery.^ 
 
 A Tender creates the Obligation of Performance. — If the award 
 directs one party to pay a sum of money, and the other party, 
 upon receipt thereof, to execute a conveyance, the latter cannot 
 free himself from his obligation of performance by refusing to 
 accept the money when properly tendered. The tender brings 
 into full and perfect force and operation the requisition for the 
 conveyance.* 
 
 Performance to and by Personal Representatives of a Deceased 
 Party. — If the award order payment to be made to a party or 
 his assigns within a time named, and that thereupon each party 
 should give to the other a release, if the party who is to receive 
 the money dies before the time has expired, the payment must 
 
 1 Russell V. Headington, 1 Stark. 13. 
 
 2 Kenyon v. Grayson, 2 Smith, 61. 
 
 3 Alford V. Lea, 2 Leon. 110 ; Cro. Eliz. 54 ; Freeman v. Drew, ih. 181. 
 
 * Russell on Arb., 3d ed. p. 501 ; Squire v. Grevett, 2 Ld. Raym. 961 ; Lum- 
 ley V. Hutton, Cro. Jac. 447 ; Simon v. Gavil, 1 Salk. 74 ; Linnen v. WUliamson, 
 Rolle Abr. Arb., K. 16, p. 254. 
 
554 PERFOEMANCE OF THE AWARD. 
 
 be made to his personal representatives, though they are not 
 named in the award, and they must execute and deliver the 
 release of all demands such as was ordered to be given by the 
 deceased.^ 
 
 Performance Twliere the Aiward is in Ez:cess of Authority. — If 
 an arbitrator, being authorized to order a release of all demands 
 up to the date of the submission, exceeds his authority by 
 ordering such a release up to the time of the award, sufficient 
 performance may be made by executing a release, such as he 
 was empowered to order, up to the time of the submission.^ 
 
 Performance of A-ward ordering Indemnity. — If the arbitrator 
 direct a party to execute a bond or covenant of indemnity to 
 another against certain costs, and the party performs the award 
 by executing such bond or covenant, the remedy on the arbi- 
 tration bond is gone. If there be a failure to save harmless 
 the party intended to be protected by the indemnity, the remedy 
 will be only on the indemnity bond or covenant.* 
 
 Performance of Awaids ordering Acquittance or that Suits 
 should cease. — An award that A. "shall acquit" B. of a' 
 certain debt or suit, is not sufficiently performed by saving B. 
 harmless from the debt or suit. An actual discharge ought to 
 be procured.* 
 
 An award was that a suit in chancery should " cease," and 
 that the defendant should " stand acquitted of it." In an action 
 of debt on the arbitration bond for uon-performance of the 
 award, it was said to be a sufficient plea that the plaintiff did 
 not prosecute the suit, and that the defendant staret inde quietus. 
 For the award ordered no act to be done by the one party, but 
 said that by virtue of the award the other should stand acquit- 
 ted. The mere filing a fresh bill in chancery for the same matter 
 constituted no breach of the award ; for until a subpoena should 
 
 1 Dawney v. Yeaey, 2 Vent. 249. 
 
 ^ Stevens v. Matthews, 1 Ld. Raym. 116 ; Marks v. Marriot, ib. 114. ' 
 
 ' Phillips V. Knightley, 1 Barnard. 463. 
 
 ' Freeman v. Sheen, Cro. Jac. 339 ; 2 Bulst. 93 ; Bac. Abr. Arb., F. ; Russell 
 on Arb., 3d ed. pp. 502, 508. 
 
PEEFOEMANCB OF THE AWARD. 555 
 
 have been issued on the bill, the party had not been damnified. 
 But if one, being bound to save another harmless, obtain a 
 process against him, this is a clear breach of the award.i 
 
 A Party may sometimes sue before he has performed his Part 
 under the Award. — The neglect or refusal of one of the parties 
 to a submission to perform his part of the award, does not 
 vacate the award, or deprive him of his right to enforce the 
 orders made therein in his own favor, unless performance by him 
 is specifically, or by legal construction of the instrument, made 
 a condition precedent to performance by the other party ; or 
 unless the performance is to be contemporaneous, the one with 
 the other. The commands laid upon each party, if indepen- 
 dent, may be enforced by either against the other, even though 
 the plaintiff be himself a delinquent. The remedy against such 
 delinquent is by another suit to be instituted against him. 
 
 Thus, it was said in New Hampshire that " Where by an 
 award acts -are to be performed by both parties, and those acts 
 are distinct and independent, the one not a condition precedent 
 to the other, either party is guilty of a breach of the award 
 who does not perform all that he is appointed to do, although 
 the opposite party may have entirely neglected to obey the 
 award on his side. And in such case, in a suit for not per- 
 forming the award, it is not necessary for the plaintiff to aver 
 performance or a readiness to perform his part of the award." - 
 
 And in Massachusetts the court disposed of the objection of 
 non-performance by the plaintiff, by saying, " Each party had 
 the separate bond of the other for the due performance of the 
 award by each, and might enforce such performance."^ To 
 the same effect is another New Hampshire case.* 
 
 A submission was entered into between one S. and the town 
 of Bloomfield, concerning a roadway laid out by the town over 
 
 1 Freeman v. Sheen, Cro. Jao. 839 ; 2 Bulst. 93 ; 1 RoUe'e Rep. 7 ; Russell on 
 Arb., 3d ed. p. 502. 
 
 2 Girdler v. Carter, 47 N. H. 305. 
 
 ' Loring v. Whittemore, 13 Gray, 228. 
 * Pickering v. Pickering, 19 N. H. 389. 
 
556 PEEFOKMANCE OF THE AWARD. 
 
 land of S. In a suit by S. against tlie town to recover the 
 amount of damages awarded to liim, the defendants set up tliat 
 S. still maintained his fences across the land laid out as a 
 roadway, and that he was therefore in possession thereof and 
 entitled to recover no damages. The defence was regarded 
 as of no effect ; for, said Judge Redfield, " if the plaintiff, after 
 the award, still persisted in keeping up his fences across the 
 road, this would not avoid the award, but leave the town to 
 their remedy under the general laws." ^ 
 
 Where, under an award, a party is required to give to 
 another upon a certain day a deed of certain land, and also to 
 deliver to him possession of the land, if, upon his tendering the 
 deed, the grantee refuses to receive it, this is a renunciation of 
 all rights incident to and growing out of the deed. The gran- 
 tor has gone sufficiently far in his endeavor to perform the 
 award, and is excused from making an effort to deliver pos- 
 session.^ 
 
 See also, ante, Chapter XVIII., the paragraphs entitled 
 " Whether a Party, not having performed his Part of an Award, 
 can plead it in Bar," and " A Condition Precedent must be 
 performed before an Award is a Bar." 
 
 The Plaintiff must perforin, if Performance be made dependent, 
 concurrent, or a Condition Precedent. — But if the acts Ordered 
 to be done are dependent, or are to be done concurrently, or 
 if performance by the plaintiff has been made a condition pre- 
 cedent to performance by the defendant, then either perform- 
 ance or a readiness to perform must be averred and shown.^ 
 
 In a dispute between a mother and son, who had lived 
 together on a farm, as to their accounts, the award was that 
 the property should be equally divided, that the debts, by 
 whomsoever owed, should be discharged by them in equal 
 
 1 Schofif V. Bloomfield, 8 Vt. 472. 
 
 2 Preston v. Whitcomb, 11 Vt. 47. 
 
 3 The general rule is well laid down in Tinney v. Ashley, 15 Pick. 546, 
 though the case did not arise under an arbitration. 
 
PERFORMANCE OF THE AWARD. 557 
 
 shares, and that the mother should pay to the son |250. The 
 court held that the things to be done were dependent, that the 
 son must pay half the debts before he would be entitled to 
 demand half the property and the 1250.^ 
 
 A. and B. agreed to submit to arbitrators the value of cer- 
 tain land, and that upon their report of the price A. would 
 pay the amount thereof to B., and B. would convey the estate 
 to A. In a suit by A., he alleged a readiness to pay for the 
 land, but the court held that this was insufficient; that he 
 should have averred an actual tender or offer of payment ; and 
 that he was not excused from doing so though B. had stated 
 immediately upon hearing the award, in the presence of the 
 arbitrators and of A., that he would never let the land go for 
 that price.^ 
 
 An award was that A. should pay to B. a certain sum of 
 money, and should execute to him a release ; and that upon 
 receiving the money and the release B. should deliver a 
 release to A. Suit was brought by B. for the money. Judge 
 Curtis said : " I am of opinion that a readiness by the plaintiff 
 to release, and notice to the defendant of such readiness, were 
 necessary to be averred. . . . The acts of the parties were to 
 be concurrent, and an action cannot be sustained hy either 
 without averring and proving a readiness on his part to per- 
 form and notice thereof, or something suflScient to dispense 
 therewith." ^ It would seem beyond a doubt that had the suit 
 been brought by A. for non-performance by B., or to compel 
 performance, his own performance or readiness to perform 
 must have been alleged and shown. 
 
 Arbitrators, under a submission concerning a loss occurring 
 under a policy of insurance, ordered that the insurance com- 
 pany should pay to the insured a certain sum, and that the 
 insured should assign to the company his claim under a certain 
 
 1 Shearer v. Handy, 22 Pick. 417. 
 
 2 Pomroy K. Gold, 2 Mete. (Mass.) 500. 
 
 " Matthews v. Matthews, 2 Curtis C. C. 105. 
 
558 PERFORMANCE OF THE AWARD. 
 
 other policy held by him. The award did not in terms make 
 these acts dependent, the one upon the other. The court held 
 that they were not so, and that in suit by the assured against 
 the company he need not aver or prove his performance or 
 readiness to perform the offer of assignment. He could re- 
 cover without establishing this fact, and if he refused to 
 comply with the order, the company could compel him to assign 
 (provided the order were valid) in a suit instituted for that 
 purpose.^ 
 
 Whether or not the arbitrators have made performance by 
 one party a condition precedent to performance by the other, 
 is a question to be determined upon an examination of the 
 entire award. Thus an award ordered A., on or before a day 
 certain, to execute a deed of certain land, and to deliver pos- 
 session of it to B. ; and ordered B. to pay to A. a certain sum, 
 likewise on or before the same day. Seld, that it was not 
 necessary to say whether or not performance by A. was made 
 a condition precedent to performance by B. ; " perhaps it is 
 not, but the acts of the parties are clearly concurrent, as they 
 are to be performed upon the same day, and applying the rule 
 applicable to concurrent covenants which are analogous, the 
 party suing must show performance, or an offer to perform on 
 his part, to entitle himself to a recovery." ^ 
 
 Though it has been said that where an obligation is so 
 thrown upon one party as to be but a portion of the considera- 
 tion of the award in his favor against the other party, the per- 
 formance of that obligation, if not provided for by the award, 
 may be properly treated as a condition precedent to his re- 
 covery on the award. ^ 
 
 Performance of Impossible Orders. — The subject of possibility 
 in the orders of the award has been discussed, ante, pp. 375, 
 376. It may be further remarked that a party ordered to do 
 
 1 Nichols V. Rensselaer County Mutual Insurance Company, 22 Wend. 125. 
 
 2 Hay V. Brown, 12 Wend. 591. 
 
 3 Lamphire v. Cowan, 39 Vt. 420. 
 
PERFOEMANCE OF THE AWARD. 559 
 
 any act can defend or excuse his non-performance on the 
 ground of impossibility, only if he has used his best en- 
 deavors to perform either in full or so far as the possibility 
 may extend. But actual or legal impossibility, fairly demon- 
 strated, is of course a defence. Thus, when a party was 
 ordered to prostrate some fish-weirs of which he was sole pro- 
 prietor, and another weir in respect of which he was only part 
 proprietor, the award expressly professing to extend only so 
 far as the party had any right or interest, it was held that the 
 party was bound to perform to the extent that he was able, and 
 that, having done so, if he could not remove the portion of the 
 last-named weir which belonged to him without rendering him- 
 self liable to an action of trespass, this fact would be an answer 
 to so much of the orders of the award. ^ That portion of an 
 award which orders a person to do that which he cannot law- 
 fully do, as, for example, to commit a trespass, obviously need 
 not be performed, since it is not valid. 
 
 ■Where the Impossibility grows out of a 'Wrongful Act of the 
 Party. — Where a party, by reason of his own wrongful act, 
 finds himself in a position in which it is impossible for him to 
 perform the award exactly without violating the law, it seems 
 that he must conform to the law, and yet comply with the 
 award as nearly as possible. Something like the doctrine of 
 cy pres in charities has apparently been introduced into causes 
 of this description. Thus, where a party had wrongfully pulled 
 down certain premises, the award ordered him to reinstate 
 them. To restore them exactly as they were before would 
 have been a breach of the provisions of a public statute which 
 had been passed subsequently to their original erection. It 
 was held that the party was bound to rebuild in accordance with 
 the regulations of the statute, and though it put him to an 
 increased expense, yet this, being the result of his own wrongful 
 act, furnished no cause for excusing him from performance.^ 
 
 1 Russell on Arb., 3d ed. pp. 496, 497 ; Doddington v. Bailward, 7 Dowl. 640. 
 ^ Doddington ;;. Hudson, 1 Bing. 410. 
 
560 PERFORMANCE OF THE AWARD. 
 
 Performance of an Award in the Alternative. — If an award be 
 made in the alternative, giving to a party his option as to 
 which of two courses he will select, his performance of either 
 is a sufficient performance of the award.^ 
 
 But if one of the alternatives be impossible, performance of 
 the other becomes imperative.^ So, also, if one of the alterna- 
 tives be uncertain, the other must be performed.^ 
 
 An Informal Aiward may be made good by Performance. — See 
 ante, p. 258, the paragraph entitled " Award concerning 
 Boundary Lines " ; also Chapter XYIIL, the paragraph entitled 
 " Operation of an Oral Award concerning a Boundary Line." 
 
 The Effect of performing an Unenforceable Order has been 
 already thoroughly discussed. See Chapter VI., the paragraph 
 entitled " Effect of Performance of such Non-enforceable 
 Orders " ; Chapter XVII., the paragraph entitled " Efifect of an 
 Offer to perform an Inoperative Order." 
 
 The Arbitrators need not perform the Avrard. — This subject 
 is discussed ante, pp. 394, 395. 
 
 A submission concerning the height of a dam provided that , 
 the arbitrators might determine how much, if at all, it should 
 be cut down, and " whatever they decide shall be done under 
 their direction." The award fixed the height at which the 
 dam should be maintained below the present height. It was 
 objected that the arbitrators were bound to superintend the 
 process of cutting down. The court held otherwise, and said 
 that if they had " given general directions, which can be exe- 
 cuted by any person skilled in such matters, then they have 
 conformed to the terms of the submission. The parties can 
 hardly have intended that the referees should execute the 
 award." The part of the dam above the line established by 
 
 1 Hanson v. Webber, 40 Maine, 194, stated ante, p. 408. 
 
 2 Russell on Arb., 3d ed. p. 269 ; Simmonds v. Swaine, 1 Taunt. 548 ; Whar- 
 ton V. King, 2 Barn. & Ad. 528 ; Lee v. Elkins, 12 Mod. 585. See statements of 
 these cases, ante, p. 409. 
 
 3 Oldfield V. Wilmer, 1 Leon. 140, 304; Simmonds v. Swaine, 1 Taunt. 548 ; 
 ante, pp. 409, 410. 
 
PBRTORMANCE OP THE AWARD. 561 
 
 the referees became a nuisance, and could be abated by the 
 sheriff in the usual manner.^ 
 
 The Award itself after Performance. — The court has no power 
 over the award whereby it can order the same to be delivered 
 up for cancellation after performance.^ 
 
 Security for Performance of Award. — A note of a third party 
 having been placed in the hands of an arbitrator as security 
 for the performance of the award by one of the parties to the 
 submission, the court said that delivery of the note could be 
 made only after a valid award had been made with which this 
 party had refused to comply. The delivery of the note under 
 other circumstances would be fraudulent ; and was so held in 
 this case, and the note declared to be invalid, inasmuch as the 
 party secured had only neglected to comply with a certain 
 memorandum or proposition to the parties appended by the 
 arbitrator to the award, and agreed to by the parties, but, 
 nevertheless, not in fact constituting a part of the award 
 itself.3 
 
 1 Berkshire Woollen Company v. Day, 12 Cush. 128. 
 
 2 Russell on Arb., 3d ed. p. 499 ; Symonds v. Mills, 8 Taunt. 526. 
 ' Moore v. Cookcroft, 4 Duer, 133. 
 
 36 
 
CHAPTER XXI. 
 
 TESTIMONY OP THE ARBITRATOR, 
 
 The award cannot be altered or explained by testimony or statements of the 
 
 arbitrator. 
 Effect of letters written by the arbitrator. 
 Explanatory paper written by agreement of parties. 
 The arbitrator's testimony concerning extrinsic facts. 
 Testimony of referee as to facts and grounds of decision. 
 The arbitrator's testimony as to admissions by a party. 
 An arbitrator cannot testify to his non-concurrence in the award. 
 The arbitrator cannot be compelled to state the grounds of his decision. 
 In England a barrister never gives explanations. 
 Testimony of the arbitrator to show a mistake in the award. 
 JCestimony that the award does not express the arbitrator's intention. 
 An arbitrator can and must testify as to the proceedings before him. 
 
 The A'ward cannot be altered or explained by Testimony or 
 Statements of the Arbitrator. — The award of arbitrators, once 
 made, is a complete and finislied instrument. It must be con- 
 strued, SO far as regards its legal force and signification, with- 
 out external assistance. Neither affidavits nor testimony of 
 the arbitrator or referee can be received to alter, correct, or 
 even explain its meaning.^ 
 
 Since even the deliberate and formal testimony given in 
 court by the arbitrators cannot be thus received, it follows as 
 a rule a fortiori, that mere informal verbal declarations, ex- 
 planatory of the intended purport and effect of the award, 
 though made by the chairman of the arbitrators to the parties 
 at the time of publishing and reading the report to them, do 
 not operate to alter the construction of the instrument as 
 actually written and executed.^ 
 
 1 Aldrich v. Jessiman, 8 N. H. 516 ; Kingston v. Kincaid, 1 Wash. C. C. 448 ; 
 Ward V. Gould, 5 Pick. 291 ; ante, p. 226 ; Patterson v. Baird, 7 Ired. Eq. 255 ; 
 Gordon v. Mitchell, 3 Moore, 241 ; Eussell on Arb., 3d ed. pp. 471, 472. 
 
 ' Caldwell v. Dickinson, 1,3 Gray, 365, stated ante, p. 287. 
 
TESTIMONY OF THE AEBITEATOR. 563 
 
 An award described a boundary line as running " to a stake 
 and stones (described), thence westerly by land of said 0. to 
 a spruce tree in the swamp." The termini were undisputed ; 
 but it was questioned whether or not the line was to be run 
 straight. It was held that the oral declaration of the chair- 
 man of the arbitrators made at the time of the publication of 
 the award, to the effect that the line in question was a straight 
 line, was inadmissible to explain or control the purport of the 
 written award.^ 
 
 The statements of an arbitrator, made by him three days 
 after the making and publication of the award, as to the grounds 
 upon which he had formed his opinion, offered to be proVed by 
 testimony of another, are mere hearsay and inadmissible. 
 The arbitrator himself must testify to any material fact like 
 any other witness.^ 
 
 Effect of Letters ■wrritten by the Arbitrators. — In LeggO V. 
 Young,^ the umpire wrote a letter to one of the parties, ex- 
 pressing his regret that he could not have given him costs. 
 In refusing to grant a motion based upon this letter. Judge 
 Maule said : " I do not think this is a sort of thing that should 
 be taken notice of, or permitted to operate against the delib- 
 erate decision to which the umpire has come. We are rather 
 more scrupulous now than the courts formerly were as to these 
 explanatory papers given out by arbitrators. One can easily 
 conceive that 'an arbitrator might write to one of the parties 
 and express his regret that he cannot award him costs, with- 
 out holding him to be pledging himself that he would have 
 decided otherwise than he did, if he thought the authority 
 under which he acted permitted him to do so." And so also 
 said Chief Justice Jervis : "As for the arbitrator's letter, I do 
 not think we can take that into consideration at all. It would 
 
 1 Clark V. Burt, 4 Gush. 396. 
 
 2 Hubbell V. Bissell, 2 Allen, 196. 
 s 16 C. B. 626. 
 
564 TESTIMONY OF THE AEBITEATOR. 
 
 be a very unsafe thing to place reliance upon such a communi- 
 cation for the purpose of contradicting or explaining the award, 
 or the grounds upon which it is made." 
 
 It was so held also in- another case, where the letter was not 
 a " paper delivered contemporaneously with the award," but 
 an ordinary letter of " advice given by the master in order that 
 the parties may not waste their time and money in future liti- 
 gation ; " and " merely written for the purpose of conciliation, 
 the master, from a kind motive, thinking that he could assist 
 the parties in coming to a settlement of their differences." ^ 
 
 Explanatory Paper -written by Agreement of Parties. — The fore- 
 going rules forbidding explanation by an arbitrator are of such 
 a nature that they may be dispensed with by the parties, if 
 they mutually agree so to do. The rules are established only 
 for the protection of the disputants, to save either of them from 
 protracted litigation at the sole will of the other. But this pro- 
 tection may be abandoned if both are agreed in doing so. 
 Thus it has been held that where there was consent of the 
 parties that the referees should execute an explanatory paper 
 in order to make clear a certain doubtful matter in their award, 
 and the parties further expressed their satisfaction after the 
 document had been executed, this supplementary document 
 constituted a pai't of the determination, and " the whole was 
 to be taken together as making one award." ^ 
 
 The Arbitrator's Testimony concerning Extrinsic Pacts. — But 
 though an arbitrator cannot be heard to explain the meaning 
 which he intended that his language should bear, or to declare 
 what he meant to say, yet, since extrinsic facts alluded to in 
 an award must often be established in order to render it intel- 
 ligible, he may be allowed to state these. Thus if an award 
 relates to a boundary line, and a monument is mentioned, the 
 testimony of the arbitrator would be properly admissible for 
 
 1 Holgate V. Killiok, 7 Hurl. & Nor. 418. 
 
 2 Eveleth v. Chase, 17 Mass. 458. 
 
TESTIMONY OF THE ARBITRATOE. 565 
 
 the purpose of showing the situation of that monument, if it 
 was not described in the award. 
 
 A submission left it to the arbitrators to run a contested 
 boundary line, but stipulated that they should be " governed 
 by the original tier line from the south side of the town lots, 
 at the north corner of Nos. 7 and 16 of the town lots, to the 
 line of C.'s patent; and that the corner of said lots Nos. 11 
 and 12 be established accordingly by said arbitrators." The 
 award simply described a boundary line " beginning at a stake," 
 &c., describing its location and giving the courses and distances. 
 It was objected that the arbitrators were in fact limited in their 
 power to determining where the " original tier line ran," and 
 that the award did not show that they had done otherwise 
 than simply run a line. It was apparently the view of the 
 counsel of the impeaching party that he ought to be allowed 
 to show that the line described in the award and the original 
 tier line were not coincident. At the trial one of the arbitra- 
 tors, who was a surveyor, was allowed to testify as to the man- 
 ner in which the line was run : that the arbitrators ran it 
 according to the original tier line as they ascertained it to their 
 satisfaction, to the north line of C.'s patent ; that they had no 
 difficulty in satisfying themselves as to the true tier line ; that 
 they found all the possessions corresponding with it, until they 
 arrived at the premises in dispute ; that they established the 
 line thus run, and set up a corner, between lots Nos. 11 and 12 
 on the north line of C.'s patent, both parties being present and 
 neither objecting ; that there was a certain quantity of land on 
 one side of the line, and a certain other quantity on the other, 
 of which the defendant was in possession. The court said that 
 this parol testimony of the arbitrator " in explanation of the 
 award was not objected to, and it was clearly competent for 
 the purpose of showing its actual location and operation." ^ 
 
 Testimony of Referee as to Facts and Grounds of Decision. — 
 "Formerly," said Chief Justice Shaw, in 1844, "it is believed 
 1 Robertson v. M'Niel, 12 Wend. 578. 
 
566 TESTIMONY OF THE AEBITRATOR. 
 
 that it was not infrequent to call upon referees to testify to the 
 facts and grounds upon which they had given their judgment, 
 with the purpose of enabling the court to judge of the correct- 
 ness of their inferences of fact and conclusions of law, with a 
 view to prevent the acceptance of their report. But we think 
 it contrary to the principle on which such references proceed, 
 and opposed by the most recent and satisfactory decisions." ^ 
 Again, in 1853, the same judge said : " Formerly, but within 
 the recollection of several of us, it was the practice in cases of 
 controverted awards to call before the court one or more of the 
 referees, and inquire of them as to the grounds of their award, 
 as well in matters of law as of fact. This practice has long 
 been set aside." ^ 
 
 In another case, arising in the same State, the testimony of 
 arbitrators as to their proceedings and the grounds on which 
 they made their award, was held to be inadmissible, so far as 
 it tended to impeach the award. Though what was the nature 
 of the facts which the arbitrators were in this instance expected 
 to prove is not stated in the meagre report of the cause, which 
 is therefore deprived of much of its value as an authority.^ 
 
 In an old case where the award was general, and purported 
 to decide all the matters in difference, the court refused to 
 allow the arbitrator to be called to prove that he had awarded 
 no compensation in respect of a certain claim presented by one 
 of the parties.* But a recent Massachusetts case seems to be 
 to a quite contrary effect. The arbitrator was allowed to 
 testify that a certain demand, in suit, had not been included 
 in his award.^ 
 
 The Arbitrator's Testimony as to Admissions by a Party. — 
 Admissions made by a party in the course of the proceed- 
 ings, provided they be not concessions made merely for the 
 
 1 Ward V. Amerioan Bank, 7 Mete. (Mass.) 486. 
 
 2 Fairchild v. Adams, 11 Gush. 549. 
 
 3 Bigelow V. Maynard, 4 Gush. 317. 
 * Shelling v. Farmer, 1 Strange, 646. 
 
 6 Hale V. Huse, 10 Gray, 99. And see post, pp. 569, 571. 
 
TESTIMONY OF THE ARBITRATOR. 567 
 
 purpose of peace, may be proved by the testimony of the arbi- 
 trator. For the arbitration is neither confidential nor in the 
 nature of a compromise, but is as hostile and adverse a method 
 of procedure as is a suit in the courts.^ 
 
 An interesting decision was rendered by Lord Kenyon on 
 this subject, as follows : A master sued his servant for money 
 had and received. When the action came on for trial the ser- 
 vant offered to suffer a verdict to be taken against himself, 
 provided that his master would produce his books before an 
 arbitrator, and that it should not then be made to appear by 
 the master's checks and entries that the servant had fully 
 accounted. A verdict against the servant was accordingly 
 taken by consent, and the cause was referred, with power to 
 the arbitrator to examine the parties upon oath and to compel 
 a production of the books. The arbitrator, after examining 
 the parties under oath, and the books, awarded in favor of the 
 servant. Afterward the servant brought a suit against his 
 master for maliciously holding him to bail in the aforesaid 
 cause. At the trial the servant's counsel called for the books, 
 and proposed to examine the arbitrator to prove his case. Lord 
 Kenyon, however, refused to permit such examination, saying : 
 " It seems to me the arbitrator ought not to be permitted to 
 depose here as to what transpired before him, either upon the 
 examination of the parties themselves, or on an inspection of 
 the books, upon the principle that the parties themselves could 
 not have been examined in the former cause, nor could the 
 plaintiff have been compelled by a judge at Nisi Prius to pro- 
 duce his books, and it would be a dangerous thing if such 
 evidence were admitted to prove the arrest in that cause to be 
 malicious, as the arbitrator might have proceeded to cut the 
 knot rather than to unloose it according to the strict rules 
 
 1 Slack V. Buchanan, 1 Peake, N. P. C. 7 ; Doe d. Lloyd v. Evans, 3 C. & P. 
 219 ; Westtake v. CoUard, Bull. N. P. 7th ed. 236 6 ; Gregory v. Howard, 3 Esp. 
 113 ; Russell on Arb., 3d ed. p. 469. 
 
568 TESTIMONY OP THE ARBITRATOR. 
 
 of law, from a wish to do complete justice between the par- 
 ties." 1 
 
 An Arbitrator cannot testify to his Non-concurrence in the 
 Award. — It is an imperative rule that an arbitrator who signs 
 a report or award concurs therein. He cannot afterward be 
 heard to say that he did not agree with his fellow-arbitrators, 
 with the object of showing by this testimony that the award 
 was not unanimous, and therefore not valid.^ He is absolutely 
 concluded by his signature from afterward denying his assent 
 and agreement. 
 
 Where one of three arbitrators was called, and his testimony 
 was to the effect that he had signed the award without reading 
 it, but upon the representation of the chairman that it was all 
 right, whereas in fact it differed materially from the award as 
 agreed upon, it was held upon appeal that this testimony should 
 not have been admitted, for that the award could not be affected 
 by these facts. It was said that it would be necessary for the 
 party seeking to impeach the award to show not only all these 
 circumstances, but also that this arbitrator had been induced, 
 by misrepresentation, fraud, or misconduct, to sign a different 
 award from that which he intended to sign.^ 
 
 Testimony of one of two arbitrators was offered to show that 
 in making up the computations preparatory to arriving at the 
 amount of the award, certain items had been omitted, which 
 he intended should be included, and that the omission had 
 escaped his notice until after publication. The evidence was 
 held inadmissible, botli upon principle and upon authority.* 
 
 The Arbitrator cannot be compelled to state the Grounds of his 
 
 ' Habershon v. Troby, 3 Esp. 38 ; but see Thomson v. Austen, 2 Dowl. & 
 Ry. 358. 
 
 2 Campbell v. Western, 3 Paige, 124; Bigelow v. Maynard, 4 Cush. 317. 
 
 ' Withington v. Warren, 10 Meto. 431 ; see full statement of this case in the 
 chapter on Mistake in the Award. 
 
 * Leavitt v. Comer, 5 Cush. 129, citing as the authorities Withington w. War- 
 ren, 10 Mete. (Mass.) 431; Boston Water Power Company v. Gray, 6 id. 131. 
 Phillips V. Brans, 12 Mee. & W. 309. 
 
TESTIMONY OF THE ARBITRATOR. 569 
 
 Decision. — Though it might in any specific case be permissible 
 and effective for the arbitrator to state the grounds of his deci- 
 sion, nevertheless it seems that he cannot be summoned by a 
 party as a witness and compelled to do so against his will. He 
 is privileged to refuse to answer interrogatories of this nature, 
 whether preferred in or out of court, anii, if such be his choice, 
 the court will protect him in his privilege.^ 
 
 Though the language used in a case arising in the Court of 
 Chancery in Ireland would tend to show that sometimes the 
 court will itself examine an arbitrator, and perhaps compel 
 him to answer. A bill in equity was filed complaining that 
 no allowance had been made in the award to the plaintiff in 
 respect of a certain guaranty. The court said that the plaintiff 
 might have examined each one of the arbitrators upon the 
 point of whether they had abstained from considering the guar- 
 anty on the supposition that it was not within the scope of 
 their jurisdiction, or for any other cause ; or whether they had 
 in fact included it in their consideration in making up their 
 award. Lord Chancellor Hart added that, had the case origi- 
 nally come before him, he should have directed a short inquiry 
 to examine the arbitrators upon this single matter. ^ 
 
 In England a Barrister never gives Explanations. — In England 
 it seems that a certain etiquette prevents a barrister, employed 
 as an arbitrator, from making afiidavits in respect of the trans- 
 actions before him, or in which he personally takes part.^ 
 Though the propriety of this custom has not gone unques- 
 tioned.* And even where the arbitrator had expressed his 
 unwillingness to testify voluntarily in explanation of his action, 
 as not being a proper proceeding, but his anxiety to be called 
 
 1 Kingston v. Kincaid, 1 Wash. C. C. 448 ; Ellis v. Saltan, 4 C. & P. 327, note ; 
 Johnson v. Durant, ibid, {per Mansfield, C. J.) 
 
 2 Brophy v. Holmes, 2 Molloy, 1. See ante, p. 566. 
 
 3 Russell on Arb., 3d ed. pp. 472, 473 ; Dobson v. Groves, 6 Q. B. 637 ; In re 
 Keene & Atkinson, Exch. Ap. 16, 1847. 
 
 * Russell on Arb., 3d ed. p. 473. 
 
570 TESTIMONY OP THE ARBITRATOE. 
 
 upon by the court to testify, and was present in court for that 
 purpose, Lord Denman, C. J., refused to call upon him.i 
 
 The notes of the arbitrator cannot be read in court, upon the 
 same principle, apparently, which excludes his affidavit.^ 
 
 Testimony of the Arbitrator to show a Mistake in the Award. — 
 The admissibility of the testimony of an arbitrator to show the 
 existence of a mistake in the award has been already discussed.^ 
 But it should be remembered that testimony of this description, 
 when competent at all, is admitted not for the purpose of explain- 
 ing, correcting, or altering the award, but with the view to inval- 
 idating it altogether. 
 
 The court in Illinois allow an arbitrator to give evidence to 
 impeach his award if there be fraud or mistake. But where 
 three arbitrators testified differently, two saying that they 
 thought a certain item had been inadvertently and uninten- 
 tionally left out, and the third saying he thought it had been 
 admitted and considered and overcome by other items on the 
 contrary side of the account, it was held that in such a case of 
 doubt, no case was made out for setting aside the award. The 
 arbitrators should all concur in the statement of the existence 
 of the error.* 
 
 Testimony that the Award does not express the Arbitrator's 
 Intention. — In some cases, in England, the arbitrator has been 
 allowed to state that the award, though good at law, does not 
 express or carry out his intentions, and, thereupon, it has been 
 sent back to him for amendment.^ 
 
 An Arbitrator can and must testify as to the Proceedings before 
 him. — The privilege of answering or refusing to answer at his 
 option, pertains to the arbitrator only in respect of the basis, 
 
 1 Dobson V. Groves, 6 Q. B. 637; RusseU on Arb., Sd ed. pp. 473, 474. 
 
 2 Boe d. Haxby v. Preston, 3 Dowl. & Low. 768 ; RusseU on Arb., 3d ed. p. 473. 
 
 3 Ante, pp. 318, 322, 324, 825, 329, 336-338. And see Leavltt v. Comer, 5 
 Cush. 129, ante, p. 568. 
 
 * PuUiara v. Pensonoau, 8 111. 875. 
 
 5 Shaw V. Pitt, W. R. 616, June 14, 1856, cited in Russell on Arb., 3d ed. p. 
 448 ; Mills v. Bowyers' Society, 8 Kay & J. 66 ; Walton v. Swanage Pier Com- 
 pany, 10 W. R. 629 ; Lockwood v. Smith, ib. 628. 
 
TESTIMONY OF THE AKBITEATOR. 571 
 
 grounds, or reasons on which he has arrived at his decision, 
 and made up his award. 
 
 Whether he be a professional man or a layman, he has no 
 privilege of secrecy in respect of the proceedings before him, 
 but is frequently oalled upon to testify as to what took place at 
 the hearings, what matters were or were not presented, and other 
 facts of the like description.^ 
 
 In making good a defence on the ground of the want of au- 
 thority in the arbitrator to make a certain award, the defend- 
 ant may call the arbitrator as a witness, to testify as to the 
 time when, and the circumstances under which, the award was 
 made.^ 
 
 They may be examined as to what matters were presented 
 before -them, and as to what evidence was adduced.^ And in 
 suit upon a claim which the defendant insists is barred by an 
 award, they are competent witnesses to the question of whether 
 or not the claim was included in their award.* 
 
 Russell says that " a narration of mere facts concerning the 
 proceedings in the reference, stands on a very different footing 
 from an explanation of the mode in which the arbitrator has 
 performed his judicial functions ; and when no ground of 
 etiquette interposes, there seems no reason why an arbitrator 
 should not depose to them as well as anybody else. Accord- 
 ingly we find on motions for setting aside awards, or in show- 
 ing cause against such motions, affidavits of arbitrators are 
 constantly used in the courts of law and equity to explain 
 alleged irregularities, to answer charges of misconduct, to 
 show under what circumstances particular meetings were held, 
 and in what manner the award was executed." ^ 
 
 1 Valle V. North Missouri R. E. Co., 37 Mis. 445; In re Williams, 4 Denio, 
 194. 
 
 2 Woodbury v. Northy, 3 Greenl. 85. 
 
 3 Spurck V. Crook, 19 III. 415. 
 
 * Hale V. Huse, 10 Gray, 99 ; see also Walker v. Walker, 1 Wins. (N. Car.) No. 
 1, 259; York & Cumberland E. E. Co. v. Myers, 18 How. (U. S.) 246. 
 
 6 Eussell on Arb., 3d ed. p. 472; Price v. Williams, 1 Ves. Jr. 365; In re 
 
572 TESTIMONY OF THE ARBITRATOR. 
 
 The evidence of an arbitrator is competent to prove the 
 making of a parol submission, and to state facts concerning 
 the conduct of a party, and sliowing his assent to be bound by 
 the award.i 
 
 Also, the arbitrator may testify as to what matters were in 
 difference in the reference ; ^ and whether a specific claim was 
 presented before him by a party .^ 
 
 For the subject of testimony of the arbitrator given to show 
 that the award is not co-extensive with the submission, see 
 ante, p. 361. For the subject of testimony of the arbitrator 
 oifered to correct or explain an uncertainty in the award, see 
 ante, p. 435. 
 
 Hare, 6 Bing. N. C. 158 ; 8 Dowl. 71 ; Kingwell v. Elliott, 7 Dowl. 42§ ; Blun- 
 dell V. Brettargh, 17 Ves. Jr. 232 ; Cleesly v. Peese, 8 Moore, 524; Stalworth o. 
 Inns, 13 Mee. & W. 466. 
 
 1 Adams v. Bankhart, 1 Cr. Mee. & Eos. 681. 
 
 2 Ravee «. Farmer, 4 Term, 146 ; Golightly v. Jelliooe, ibid, note ; Triming- 
 ham V. Trimingham, 4 Nev. & Man. 786. 
 
 3 Martin v. Thornton, 4 Esp. 180. 
 
CHAPTER XXII. 
 
 PLEADING AND PRACTICE. 
 
 Methods of enforcing an award. 
 
 An award may be enforced in part only. 
 
 Time of instituting suit. 
 
 Actions to recover costs. 
 
 Eecovery of costs by assumpsit. 
 
 Assumpsit will lie upon an award. 
 
 Assumpsit by assignees of an original party. 
 
 Debt will lie upon an award of money. 
 
 Action of debt on the arbitration bond. 
 
 Action oh the bond after an enlargement of time. 
 
 An action of covenant on a submission by deed. 
 
 Action on the case under an award. 
 
 Interest on a sum awarded. 
 
 Averments in pleading an award. 
 
 Setting forth the award in the plaintiff's declaration. 
 
 Pleading on a parol award. 
 
 No prqfert of the award need be made. 
 
 Averment of notice. 
 
 Averment of a demand before suit brought. 
 
 Averment of a request of performance. 
 
 The pleadings in an action of debt on an arbitration bond. 
 
 Availing of an award by way of defence : extinction of the original claim : plea 
 in bar. 
 
 Plea of " no award." 
 
 Pleading that all matters are not decided. 
 
 Pleading misconduct, fraud, or mistake of the arbitrator. 
 
 Pleading illegality in the matter submitted. 
 
 Pleading performance of the award. 
 
 Pleading the Statute of Limitations. 
 
 Pleading revocation of the submission. 
 
 Pleading foreign attachment. 
 
 Pleading an oral waiver. 
 
 Plea that award was not ready in time. 
 
 Plea that the cause of action was not submitted. 
 
 Defence in suit on a promissory note. 
 
 Demurrer in suit on an award. 
 
 Execution of the submission must be proved. 
 
 Proving the existence and contents of a lost submission. 
 
 Part performance of award is evidence of submission. 
 
574 PLEADING AND PRACTICE. 
 
 Statements of a party as evidence. 
 
 Evidence of fraud. 
 
 Enforcing specific performance of an award by proceedings in equity. 
 
 Acquiescence as a preliminary to a decree for specific performance. 
 
 A penalty does not take tlie place of performance. 
 
 Kight to specific performance as afiected by lapse of time. 
 
 No specific performance of illegal matters. • 
 
 Enforcement of unreasonable orders. 
 
 Enforcement of specific performance by and against strangers. 
 
 Demurrer to a bill for specific performance. 
 
 Sustaining an award by injunction. 
 
 Pleading an award in bar to a bill in equity. 
 
 Vacating an award by motion. 
 
 Discovery of new matter as a ground of a motion to set aside an award. 
 
 The element of time in connection with new evidence. 
 
 Bfiect of vacating a report in a lis pendens. 
 
 The English rule as to setting aside an award by proceedings in equity. 
 
 The American rule as to setting aside an award by proceedings in equity. 
 
 Charges in the bill. 
 
 Demurrer to the bill. 
 
 Making an arbitrator a defendant. 
 
 [Note. — The cases which have arisen in the United States upon points of 
 pleading and practice are comparatively few, and such as are encountered are 
 very far from being valuable or consistent. The practice in most of our tribu- 
 nals has been very lax, and even when an effort to apply strict rules has been 
 made, it has too often not assumed a very intelligible shape. Hence itfoUows 
 that most of the material of this chapter is furnished by the English reports ; 
 and I should again acknowledge my obligation to Mr. Russell, the most satisfac- 
 tory portion of whose work treats of the subjects herein to be discussed.] 
 
 Methods of enforcing an Award. — A valid award is an instru- 
 ment both of offence and of defence. It may serve as the basis 
 of a suit, or as an answer to an action. It constitutes a right 
 of action equally whether the submission be by parol, by writ 
 ing not under seal,^ by bpnd,^ or by deed.^ 
 
 It will generally be the case, that if the submission be made 
 by rule of court, or if by statute or otherwise it be made return- 
 able to court, or if in any other way whatsoever it is brought 
 within the scope of the jurisdiction of the public tribunals, some 
 means will be provided for enforcing it through the customary 
 channels of the law, by judgment and execution or attachment. 
 
 1 Hodsden v. Harridge, 2 Saund. 62 6, n. 
 
 2 Winter v. White, 3 Moore, 674 ; Eerrer v. Oven, 7 Bam. & Cress. 427. 
 ' Tomlin v. Mayor of Fordwich, 6 Nev. & Man. 594. 
 
PLEADING AND PRACTICE. 575 
 
 Yet it would seem, from some of the English cases, that even 
 if an award be thus returnable to court and enforceable by the 
 ordinary machinery of the law, yet these methods may be 
 neglected at the option of the successful party, and it may be 
 made the foundation of an action, precisely like an award 
 rendered in pais under a submission in pais. Such has been 
 distinctly declared to be the law in the United States. 
 
 In a cause in Indiana the question was raised, whether, 
 when a suit is pending, and the parties submit to arbitration 
 according to statutory provisions, the successful party can sue 
 on the award ? It was contended that in such case the award 
 could be enforced only by having it made a judgment of court 
 in accordance with the statute. The court said : " This doc- 
 trine is not tenable. The legislature has not limited the party 
 to this statutory proceeding. He has the same right now that 
 he ever had to maintain an action on the arbitration bond, and 
 on the award. The Statute 9 & 10 Will. III. authorized the 
 parties in an arbitration bond to insert an agreement that their 
 submission should be made a rule of court ; but it has never 
 been considered that the statute, by that provision, prevented 
 the parties to such an agreement from proceeding at common 
 law for the non-performance of an award, by an action on the 
 bond or on the award. The same may be said with regard to 
 our statute. If the arbitration bond authorize it, the party may 
 have the agreement to submit made a rule of court, and may 
 have the award made a judgment of the court. But that is 
 not his only remedy for a non-compliance with the award. If 
 he prefer it, the successful party may still resort to the remedy 
 at common law, and sue on the award or on the bond." ^ 
 
 Where a submission provides that judgment may be entered 
 on the award, the successful party may nevertheless sue upon 
 the award, if he chooses, without having procured an entry 
 of judgment thereon.^ 
 
 1 Dickerson v. Tyner, 4 Blaokf. 253 ; to the same effect is the language of the 
 court in Burnside v. Whitney, 26 Barb. 632. 
 
 2 Burnside v. Whitney, 24 Barb. 682. 
 
576 PLEADING AND PEACTICE. 
 
 So where the submission provides that judgment on the 
 award may be entered by a certain court of law, it does not 
 preclude a party from resorting instead to the more ample 
 powers of a court of equity, if he deems them more competent 
 to secure and protect his rights.^ The decision, however, in 
 this cause was in part based upon the provisions of the statute 
 under which the arbitration was entered into, to the effect that 
 its provisions should not be construed to impair, diminish, or 
 in any way affect the power and authority of the Court of 
 Chancery over arbitrators, awards, or parties ; nor to impair 
 or affect any action upon any award, or upon any bond or 
 other engagement to abide by an award. 
 
 If the submission and award be in pais, and not statutory, 
 and sometimes, also, when they are statutory, the only remedy 
 or means of enforcement will be by a proceeding, either at law 
 or equity, instituted upon them as upon any other private con- 
 tract.^ 
 
 It is not necessary that the award itself should provide any 
 remedy or method of enforcement.^ So, also, said Lord Hard- 
 wicke : " To lay it down as a general rule that arbitrators must 
 particularly point out the method in which their award shall 
 be carried into execution would be too nice, and such a rule 
 would overturn a great number of awards." * 
 
 Where, under a submission intended to be statutory, the 
 award is void as a statutory award by reason of certain matters 
 being included in it which the statute does not allow to be 
 thus submitted, but both the submission and award would be 
 good in pais, suit may still be maintained upon an independent 
 agreement, appended to the original submission, by which the 
 parties bind themselves to perform the award.^ 
 
 1 Burnside v. Whitney, 21 N. Y. 148. 
 
 ' Kingsley v. Bill, 9 Mass. 197 ; Eaton v. Arnold, ib. 519 ; Shearer v. Mooer», 
 19 Pick. 308. 
 
 3 Lamphire v. Cowan, 39 Vt. 420. 
 * Lingood v. Eade, 2 Atk. 501. 
 5 Hubbell V Bissell, 16 Gray, 561. 
 
PLEADING AND PRACTICE. 577 
 
 An Award may be enforced in Part only. — In suit upon an 
 award any one out of several articles in it may be singled out 
 for separate enforcement, provided that the article thus se- 
 lected is so far complete in itself, and so independent of the 
 rest of the award, that this course will work no injustice ; but 
 not otherwise.! 
 
 Time of instituting Suit. — An award becomes a cause of ac- 
 tion only from the date of its publication. Any action begun 
 prior to that time will' be premature.^ 
 
 Actions to recover Costs. — If the award gives the costs of 
 the reference to a party without taxing the amount, it is not 
 necessary to have them taxed before instituting an action to 
 recover them, though it seems that they ought to be taxed 
 before the trial.' 
 
 The necessity of having costs taxed is, however, said to be 
 apparently unnecessary, when the costs of the award paid to 
 the arbitrator are alone sought to be recovered, and it is not 
 suggested that his charges are excessive.* 
 
 If parties agree to submit to an arbitrator, and there be no 
 arrangement in the submission and no order in the award con- 
 cerning his charges, it is generally understood that they are 
 to be borne equally. Whence it follows that if one party pays 
 a sum to the arbitrator in discharge of his bill in order to 
 obtain the award, he may recover from the other party one- 
 half of the amount so paid.^ 
 
 In Vermont it has been held that if the award is of the 
 " taxable costs," the taxation must be made, and notice of the 
 
 ' Lamphire «. Cowan, 39 Vt. 420 ; Schuyler v. Van Der Veer, 2 Caines, 235; 
 and see post, in this chapter, the paragraph entitled Setting forth the Award in 
 the Plaintiff's Declaration ; also post, p. 580, at bottom. 
 
 '^ Varney v. Brewster, 14 N. H. 49. 
 
 ' Holdsworth v. Wilson, 32 L. J. Q. B., reversing Holdsworth v. Barsham, 31 
 L. J. Q. B. 145; see Bates v. Townley, 2 Exch. 152; stated on p. 578. 
 
 * Threlfall v. Fanshawe, 19 L. 3. Q. B. 834 ; Russell on Arb., 3d ed. p. 505. 
 
 ' Marsack v. Webber, 6 Hurl. & Nor. 498 ; and see Bates v. Townley, 2 Ezch. 
 152, stated post in this chapter, p. 578. 
 
 37 
 
578 PLEADING AND PRACTICE. 
 
 amount thereof given to the party who is to pay the same, 
 before suit can be brought to recover the sum.^ 
 
 Recovery of Costs by Assumpsit. — By an agreement of ref- 
 erence which might be made a rule of court, the costs of the 
 reference and award, including the reasonable fees of the arbi- 
 trators, were left to the discretion of the arbitrators. They 
 awarded that each party should pay half of the above-named 
 costs. The plaintiff brought assumpsit, for money paid for the 
 defendant's use, to recover a moiety of the sum which he had 
 paid to the arbitrator upon taking the award. The court held 
 that if the plaintiff and defendant were jointly liable to the arbi- 
 trators for the sum paid by the plaintifT, and that if the award 
 directed that the defendant sliould pay a definite portion, then 
 the plaintiff, having paid the whole, might recover from the 
 defendant his contributory share ; but that the action could 
 not lie here, because the costs of the reference had not been 
 taxed, so that it was uncertain how much the defendant ought 
 to pay to the plaintiff, or whether he ought to pay any thing.^ 
 
 Assumpsit •will lie upon an Aiward. — "Anciently," says 
 Russell, " it was considered that no action could be maintained 
 on a submission not under seal, where the award directed the 
 performance of some collateral act, and not the payment of a sum 
 of money, as, for instance, the executing a release. But even 
 previous to the time of Holt, C. J., the law was laid down as it 
 holds at present, that as every such submission implies mutual 
 promises to perform the award, an action of assumpsit may be 
 maintained for the breach of those promises, in case of non- 
 performance, whether the award be to pay money or to do any 
 other act." ^ The English doctrine has been fully asserted in 
 
 1 Wright V. Smith, 19 Vt. 110. 
 
 ' Bates V. Townley, 2 Exch. 152. 
 
 3 Russell on Arb., Sd ed. p. 506; Hodsden v. Harridge, 2 Saund. 62 b, h. ; 
 Purslow «/. Baily, 2 Ld. Raym. 1039; Tilford v. French, 1 Sid. 160; Squire v. 
 Grevell, 6 Mod. 34 ; 2 Ld. Raym. 961 ; Lupart v. Welson, 11 Mod. 171 ; Blan- 
 chard v. Murray, 15 Vt. 548 ; Woodbury v. Nortliy, 3 Greenl. 85 ; North Yar- 
 mouth V. Cumberland, 6 Greenl. 21. 
 
PLEADING AND PRACTICE. 679 
 
 Pennsylvania.^ The same principle of an implied promise has 
 been asserted also by the court in New York, though not for 
 the express purpose of upholding an action in assumpsit? 
 
 The parties to a parol submission agreed to abide by the 
 award. It ordered that one should recover of the other a cer- 
 tain sum. The court said that they did not perceive any 
 objection to a recovery by the plaintiff upon a count in indebi- 
 tatus assumpsit. " But if this were more questionable, it 
 would seem that a judgment might well be taken on the count 
 on insimul eomputassent? 
 
 If the award directs that money be paid in certain instal- 
 ments, assumpsit will lie for each sum as it falls due ; though 
 debt will not lie until the last instalment has become payable. 
 If the submission be by bond, the penalty will be forfeited 
 upon the first neglect in payment of an instalment.* 
 
 Where two persons of the one part undertake jointly and 
 severally to perform an award, ^nd the arbitrators order one of 
 the two to pay one certain sum, and the other to pay another 
 certain sum, to the other party to the submission, it has been 
 held that an action of assumpsit will lie against both jointly, 
 inasmuch as both are jointly liable for the payment of each of 
 the sums respectively ordered to be paid.^ 
 
 Pending a reference by an order in equity one of the parties 
 died. The arbitrator ordered that payment should be made 
 by his executors out of his assets. It was held that assumpsit 
 would lie against the executors.® 
 
 The defendant in an action of assumpsit, founded on a sub- 
 
 1 M'Manus v. M'Culloch, 6 "Watts, 357. 
 
 2 Efner v. Shaw, 2 Wend. 567 ; Valentine v. Valentine, 2 Barb. Chy. 430. 
 
 ' Bates V. Curtis, 21 Pick. 247 ; the court, in the last statement, rely upon 
 1 Tidd's Pract. 756 ; Lawes's Pleading in Assumpsit, 348 ; Keen v. Batshore, 1 
 Esp. 194. 
 
 « Cooke V. Whorwood, 2 Saund. 336 e ; Rudder v. Price, 1 H. Bl. 547. 
 
 5 Mansell u. Burredge, 7 Term, 352 ; and see Genne v. Tinker, 3 Lev. 24 ; 
 Johnson v. Wilson, Willes, 248 ; Duke of Northumberland v. Errington, 5 Term, 
 522. 
 
 " Dowse V. Coxe, 3 Bing. 20. 
 
580 PLEADING AND PRACTICE. 
 
 mission and award, may contest the fact of the submission, of 
 the award, and of notice thereof prior to the institution of the 
 suit ; since all these facts are necessary to create the alleged 
 obligation upon his part.^ 
 
 Assumpsit by Assignees of an Original Party. — If pending an 
 arbitration a party thereto assigns to a third person his contin- 
 gent interest under the award, suit cannot be instituted by the 
 assignee in his own name, but must be brought in the name of 
 the original party .^ 
 
 Debts owing to a firm were by deed assigned to a person 
 upon certain trusts, and a power of attorney was executed to 
 him to receive and compound for the same. As attorney for the 
 firm he entered into a submission with one of its debtors con- 
 cerning matters in difiference between this debtor and the firm. 
 It was held that he might enforce the award by an action of 
 assumpsit brought in his own name ; also that he need not 
 make profert of the deed of -assignment in his declaration, 
 since it was pleaded merely by way of inducement.^ 
 
 Debt will lie upon an Award of Money. — If an award orders 
 one party to pay to the other a sum of money, it creates a debt ; 
 and an action of debt, says Russell, might therefore always 
 have been maintained in favor of the payee, although the sub- 
 mission were oral or by writing not under seal.* And at the 
 present day an action of debt will lie on an award ordering 
 a payment of money rendered upon a submission by rule of 
 court, or by deed, or by writing without deed, or by parol.^ 
 
 And though the award contain other orders also, for the 
 performance of other collateral acts besides the payment of 
 money, yet the order for payment may be singled out for 
 separate enforcement by an action of debt.^ 
 
 1 Woodbury v. Northy, 3 Greenl. 86. 
 
 2 Day V. Smith, 1 Dowl. 460. 
 
 3 BanfiU V. Leigh, 8 Term, 671. 
 
 * KuBsell on Arb., 8d ed. p. 507 ; Purslow v. Baily, 2 Ld. Eaym. 1039 ; Wright 
 V. Smith, 19 Vt. 110. 
 
 ' Ibid. ; Hodsden v. Harridge, 2 Saund. 62 b, u. 
 
 « Russell, 3d ed.'pp. 507, 608 ; citing 2 Chitty Plead., 6th ed. p. 258. 
 
PLEADING AND PRACTICE. 581 
 
 M. and B. submitted their differences to arbitrators, who 
 were authorized to determine the amount to be paid, and upon 
 what terms, as to time and security, payment should be made. 
 The arbitrators awarded that M. should pay to B. a certain 
 sum on the 28th July, 1858 ; a second sum on the 20th Janu- 
 ary, 1859 ; and a third sum on the 20th January, 1860 ; and 
 that to secure the payment of the sums he should give B. a 
 bond with penalty and surety. No bond was given, and B. on 
 the 28th January, 1858, that is, before ariy of the sums awarded 
 to be paid had fallen due, sued M. in an action of debt. The 
 question was whether this action could be maintained : held 
 that it could. " On principle and authority, B. had a right to 
 sue when M. refused to perform any material part of the 
 award." The arbitrators having, in accordance with their 
 authority conferred by the parties, directed the kind of security 
 to be given, M., upon his failure to give that security, was 
 in default, and a cause of action accrued. " The right of 
 action was perfect on M.'s refusal to give the penal bond, as it 
 would have been after the credit allowed by the award had 
 expired." ^ 
 
 Six partners entered into two bonds of submission. In one 
 bond three bound themselves jointly and severally to the other 
 three to perform the award which should be rendered respect- 
 ing all differences between the parties or any of them. The 
 second bond was a counterpart of the first in form, and in it 
 the three last-named partners bound themselves to the three 
 first named. The award ordered one of the three obligors in 
 the former bond to pay to one of his co-obligors a certain sum. 
 It was held that the payee could maintain an action of 
 debt upon the award against the one thus ordered to pay, 
 though no action upon the bond would lie between the two 
 co-obligors therein.^ 
 
 Under the old common law of England an action of debt 
 
 1 Bayne v. Morris, 1 Wall. (U. S.) 97. 
 
 2 Winter v. White, 3 Moore, 674 ; 1 Ball & Bjeat. 350. 
 
582 PLEADING AND PRACTICE. 
 
 would not lie against an executor or administrator upon an 
 award rendered under a submission not under seal, entered 
 into by the deceased, since it was said tliat the deceased might 
 have waged his law, and his personal representative could not.^ 
 But this has since been changed by statute.** And where the 
 executor or administrator was himself the party to the sub- 
 mission, the law has always allowed an action of debt to be 
 maintained against him.^ 
 
 Action of Debt on the Arbitration Bond. — If the submission 
 be by bond, an action of debt will lie for the penalty, so soon 
 as it is forfeited by non-performance of the award. Russell 
 remarks that this " is in some respects preferable to an action 
 of debt on the award, since it throws upon the defendant the 
 task of discharging himself from the penalty by showing per- 
 formance of the condition, and relieves the plaintiff from the 
 burden of proving a mutual submission, which he must allege 
 and prove if traversed, in order to support the latter form of 
 action." * 
 
 Action on the Bond after an Enlargement of Tinxe. — Where 
 the original submission is by bond, an action thereon may 
 still be maintained in the event of non-performance of tlie 
 award, though the time has been subsequently enlarged by 
 deed ; for altering the condition does not have the effect of 
 defeating the bond.^ 
 
 But if the enlargement of the time for the rendition of the 
 award be extended by an agreement not under seal, and 
 the award be accordingly made after the original time has 
 elapsed and within the substituted time, no action will lie 
 
 1 Eussell on Arb., 3d ed. p. 508 ; Hampton v. Boyer, Cro. Eliz. 557 ; Bowyer 
 V. Garland, lb. 600 ; Freeman a. Bernard, 1 Ld. Rayra. 247 ; Riddell v. Sutton, 
 5 Bing. 200 ; 2 Moore & Pay. 345. 
 
 2 3 & 4 Will. IV. i;. 42, §§ 13, 14. 
 
 3 Riddell v. Sutton, 5 Bing. 200. 
 
 * Russell on Arb., 3d ed. pp. 508, 509 ; Ferrer v. Oven, 7 Barn. & Cress. 
 427. 
 
 5 Greig v. Talbot, 2 Bam. & Cress. 179. 
 
PLEADING AND PRACTICE. 583 
 
 upon the bond. The remedy must be sought by a suit in 
 assumpsit based upon the new submission by enlargement. ^ 
 
 Where no time is named in the bond for the making of the 
 award, but by a subsequent agreement such time is specified, 
 and the award is published before its expiration, suit may 
 still be brought upon the bond for the penalty thereof.^ 
 
 Where submission is made by bond, and the time named 
 therein for making the award is afterward extended by era- 
 sure and interlineation in the bond, without altering the origi- 
 nal date of the bond, the proper effect is to destroy the bond 
 as a pre-existing obligation, and to render it a new bond from 
 the time of the alteration. But in declaring upon it, the 
 plaintiff may allege it as of its old date only, or as dated 
 upon that day, but taking efifect afterward, at his option.^ 
 
 Au Action of Coveuant on a Submission by Deed. — If the 
 submission has been entered into by deed, an action of cove- 
 nant will lie for the breach or non-performance of any part of 
 the award.* 
 
 Where the defendant has revoked the submission, and an 
 award has nevertheless been made, it is said that there seems 
 to be no objection, in an action of assumpsit or of covenant on 
 the submission, to joining a count for the revocation with a count 
 on the award ; and the judge at Nisi Prius will not compel the 
 plaintiff to elect upon which count he will rely at the trial. If 
 the defendant prove the revocation in order to defeat the count 
 on the award, then the plaintifif may recover damages on the 
 latter count.^ 
 
 Action on, the Case under an Award. — Where a drain runs 
 across tlie lands of several different proprietors who are ordered 
 
 1 Brown v. Goodman, 3 Term, 592, notes. 
 
 2 Nichols V. Rensselaer County Mut. Ins. Co., 22 Wend. 125. 
 '■> Tompkins v. Corwin, 9 Cow. 255. 
 
 * Tomlin v. Mayor of Fordwich, 6 Nev. & Man. 594 ; Charnley v. Winstanleyt 
 5 East, 266 ; Marsh v. Bulteel, 5 Barn. & Aid. 507 ; Russell on Arb., 3d ed. pp 
 509, 510. 
 
 5 Russell on Arb., 3d ed. p. 510 ; Brown a. Tanner, 1 Carr. & Pay. 651 ; 
 M'Lel. & Y. 464 ; Marsh v. %lteel, 5 Bam. & Aid. 507. 
 
584 PLEADING AND PRACTICE. 
 
 by commissioners to keep their respective proportions of it 
 cleansed, and in a fit state to conduct off the water, if one of 
 them neglects to do so, an action on the case seems to be the 
 proper remedy to be availed of by any other owner, who has 
 been injured by the default, against the delinquent.^ 
 
 Interest on a Sum awarded. — If an award order a sum of 
 money, due on a balance of account, to be paid at a certain 
 time and place, if the amount be duly demanded by the payee 
 at« that time and place, he may afterward recover ' interest 
 thereon in his subsequent action brought on the award to 
 recover the principal.^ 
 
 If no time of payment be specified, interest will begin to run 
 from the time of demand.^ 
 
 The English rule of practice will allow interest to be re- 
 covered only in an action,* and not on a motion for an attacli- 
 ment ; ^ nor on an execution issued on a judgment entered up 
 pursuant to the award ; ^ nor on an execution issued under 
 Statute 1 & 2 Vict. c. 110. ? 
 
 Averments in pleading an Award. — The fact that a mutual 
 submission has been entered into must be averred in pleading 
 an award either in a declaration or by way of defence. But 
 the submission need not be set out at length, provided the 
 substance and legal effect of it are given.^ Though, if it so 
 binds the parties that they incur peculiar liabilities under it, 
 the better course is to set it forth in terms or to recite its 
 substance very fully.^ But it must sufficiently appear that 
 the agreement to submit was valid and binding in law, or the 
 
 1 Sharpe v. Hancock, 7 Man. & Gr. 354. 
 
 2 Pinhorn v. Tuckington, 3 Camp. 468. 
 
 ' Johnson v. Durant, 4 Carr. & Pay. 327. 
 ^ Russell on Arb., 3d ed. p. 512. 
 
 Churoher v. Stringer, 2 Barn. & Ad. 777. 
 " Lee V. Llngard, 1 East, 400. 
 ^ Doe d. Moody v. Squire, 2 Dowl. n. s. 327. 
 
 8 Russell on Arb., 3d ed. p. 513 ; Hodsden v. Harridge, 2 Saund. 61 m, notes, 
 61 n. 
 
 9 Mansell v. Burredge, 7 Term, 352. 
 
PLEADING AND PRACTICE. 585 
 
 award rendered in pursuance of it cannot be supported, and 
 the pleading will be bad on demurrer .1 
 
 Though the submission has been made by an order of court, 
 it is not necessary to aver this fact.^ 
 
 It is not sufficient to allege the award to have been duly 
 made in pursuance of the submission. Recitals in the plead- 
 ings must show that all formal requisites, such as writing, seal- 
 ing, and the like, have been complied with.^ Also that all orders 
 made in the award are within the scope of the submission.* 
 
 So also it must be stated to have been made within the 
 time limited.^ Where the submission stipulates for a readi- 
 ness to deliver, this fact is customarily averred.^ But an 
 averment that the award was made, will generally be enough, 
 for this implies a readiness to deliver.'' 
 
 If the award was not ready, it is said that the defendant 
 might probably show the fact in evidence under a plea of no 
 award .^ 
 
 If two arbitrators are empowered to appoint a third by 
 writing indorsed upon the submission, it must be specifically 
 averred that they made their appointment by writing so in- 
 dorsed, or the pleading will be held insufficient and bad upon 
 a general demurrer.* * 
 
 1 Russell on Arb., 3d ed. p. 513 ; Biddell v. Dowse, 6 Barn. & Cress. 255. 
 3 Roper V. Levi, 21 L. J. Exch. 28. 
 
 * Russell on Arb., 3d ed. p. 614 ; Everard v. Paterson, 2 Marsh. 304 ; Hen- 
 derson V. Williamson, 1 Strange, 116 ; Hinton u. Cray, 3 Keb. 512 ; Wilson v. 
 Constable, 1 Lutw. 536. 
 
 * Pascoe V. Pascoe, 3 Bing. N. C. 898 ; Russell on Arb., p. 515. 
 
 5 Russell, ubi supra ; Skinner v. Andrews, 1 Saund. 169 ; 1 Lev. 245 ; % Keb. 
 361, 388 ; 1 ^id. 370 ; Bissex v. Bissex, 3 Bur. 1730 ; Bac. Abr. Arb., G. 
 
 ^ Russell, ubi supra. 
 
 1 Rowsby V. Manning, 3 Mod. 331; Carth. 158; 1 Show. 98, 242; Doyley v. 
 Burton, 1 Ld. Raym. 533 ; Anon. 2 id. 989 ; Busfield v. Busfield, Cro. Jac. 577 ; 
 Freeman v. Bernard, 1 Ld. Raym. 247 ; Bradsey v. Olyston, Cro. Car. 541 ; 
 Robison v. Calwood, 6 Mod. 82; Marks v. Marriot, 1 Ld. Raym. 114; Gates v. 
 Bromhill, 6 Mod. 176; 1 Salk. 75; Jenkinson v. AUisson, 1 Freem. 415; contra, 
 the same case, 3 Keb. 513. 
 
 8 Dresser v. Stansfield, 14 Mee. & W. 822. 
 
 9 Bates V. Townley, 1 Exch. 572. 
 
586 PLEADING AND PRACTICE. 
 
 In declaring in an action in assumpsit wliere tlie submission 
 is not by a sealed instrument, mutual promises to perform the 
 award must be averred.' Though, as has been already stated, 
 such promises are implied from the fact of submission .^ But 
 the rule is precisely the contrary in declaring in an action of 
 debt, iu which case it is not only needless, but erroneous, to 
 aver mutual promises ; for to do so would be to make the 
 action one of debt to perform tlie award when made, not of 
 debt on the award itself.^ 
 
 If the submission stipulates that the award shall be ready 
 for delivery at a certain time and place, averment of a delivery 
 actually made to the parties within the time at another place 
 is sufficient.* 
 
 It is well to aver the award to have been made " of and con- 
 cerning the premises ; " for the court will then intend that 
 the arbitrator has decided all the matters submitted until the 
 contrary be made to appear.^ 
 
 In declaring upon an award averments may be made to show 
 the nature of the controversies submitted, and to explain 
 what does not sufficiently appear upon the face of the submis- 
 sion, so as to enable the court to ascertain the true object of 
 the submission.^ 
 
 When invalidity of the award can be pleaded at all, it must 
 be pleaded with explicitness and accuracy. Thus, a plea that 
 an award is invalid for want of certainty, finality, mutuality, 
 or other essential requisite, but not setting forth fully and dis- 
 tinctly wherein and how this fault exists, is bad for generality.'^ 
 An exception " to each and every one of the decisions and 
 
 1 Lupart V. Welson, 11 Mod. 171. 
 ' Ibid. ; ante, pp. 578, 579. 
 
 3 Sutcliffe V. Brooke, 15 L. J. Exoh. 118 ; 3 Dowl. & Low. 302. , 
 
 * Elborough v. Gates, 2 Ley. 68. 
 
 ' Craren v. Craren, 7 Taunt. 642; Doyley v. Burton, 1 Ld. Raym. 533. 
 6 Garr v. Gomez, 9 Wend. 649. 
 
 T Williams v. Paschall's Heirs, 3 Yeates, 564; Hartshorne v. Cuttrell, 1 
 Green's Ch. 297 ; Bean v. Farnam, 6 Pick. 269. 
 
PLEADING AND PEACTICE. 587 
 
 rulings of the referee against tlie plaintiff, on the trial of the 
 action, severally, separately, and distinctively," was designated 
 by the court as " useless verbiage." ' " As much certainty is 
 necessary," said Judge Bristol, " in remonstrances against the 
 award of auditors as in pleading." ^ 
 
 In suit on an award an allegatiouj generally, that the award 
 was based upon false and corrupt testimony, procured and laid 
 before the arbitrators, in the absence of any allegation of fraud, 
 corruption, misconduct, or even mistake, on the part of the 
 arbitrators tlaemselves, is bad. For to try the issue presented 
 by it would be to inquire whether the arbitrators arrived at 
 just conclusions upon the testimony. The question whether 
 any portion of it was false is involved in those passed upon 
 and settled by the arbitrators, and to determine it now would 
 be to try the case over again. It was added that the proper 
 exception to be taken, if any, was on the ground of newly dis- 
 covered evidence.^ 
 
 Setting forth the Avraid in the Plaintiff's Declaration. — Russell 
 says that in an action on the award no more of the award need 
 be set forth in the declaration tlian is necessary in order to 
 support the plaintiff's claim in the action. It may be stated 
 that the arbitrator, " among other things, awarded," &c. 
 Then if the award be defective on its face, or contain any thing 
 by way of condition precedent to performance by the defend- 
 ant, the defendant must set it forth in his plea. But if the 
 action be upon the arbitration bond, the plaintiff must, in his 
 declaration or replication, set forth the whole award, or at 
 least so much of it as is good and valid, or there will be a fatal 
 variance in the proof.* 
 
 1 Newell V. Doty, 33 N. Y. 83. 
 
 2 Maples V. Avery, 6 Conn. 20. 
 
 3 Pickering v. Pickering, 19 N. H. 389. 
 
 4 Russell on Arb., 3d ed. pp. 516, 519 ; Perry v. Nicholson, 1 Burr. 278 ; Leake 
 V. Butler, Litt. 312; Smith v. Kirfoot, 1 Leon. 72; Wood v. Wilson, 2 Cr., Mee. 
 & Ros. 241; Tilford v. French, 1 Sid. 160; Foreland v. Marygold, 1 Salk. 72; 
 Furlong v. Thornigold, 12 Mod. 533 ; per Ld. Denman, C. J., in Tomlin v. Mayor 
 of Fordwich, 6 Nev. & Man. 594. 
 
588 PLEADING AND PRACTICE. 
 
 In declaring on an award the whole need not be set forth, 
 but that part only upon which the party relies. The averment 
 may be that " among other things " the arbitrators awarded, 
 
 &C.1 
 
 Pleading on a Parol Award. — A parol award need not be 
 pleaded iu the exact language of the arbitrators, but is suffi- 
 ciently stated if the effect and substance only be given. ^ 
 
 No Profert of the Award need be made. — An award, though 
 indented and under the hand and seal of the arbitrator, is no 
 deed or specialty, but only a writing under seal, unless, indeed, 
 it has been delivered by the arbitrator as a deed. Whence it 
 follows that no profert need be made of it in pleading.^ 
 
 Averment of Notice. — No averment of notice need be made, 
 for unless the submission contain a specific stipulation requir- 
 ing it to be given, both parties alike will be bound to take 
 notice of the fact of the making of the award.* 
 
 But those courts of the United States in which this question 
 has arisen seem to be divided as to the necessity of notice. It 
 has been held in Maine that before suit can be brought upon 
 an award it should be notified to the party to be sued.* Where 
 this doctrine prevails, it is probable that notice should be 
 averred. In New Hampshire the English doctrine prevails, 
 and notice is said to be unnecessary as preliminary to the 
 right of action.® 
 
 Averment of a Demand before Suit brought. — A demand is 
 necessary to sustain an action on an award only where the 
 award is for the payment of money " on request" or is other- 
 
 1 Blanchard v. Murray, 15 Vt. 548 ; Finley v. Finley, 11 Mis. 624. 
 
 ^ Hanso:\ v. Livereedge, 2 Vent. 242; Thomlinson v. Arriskin, 1 Com. R. 329. 
 
 5 Dod V. Herbert, Sty. 459; Perry v. Nicholson, 1 Burr. 278; Hodsden u. 
 Harridge, 2 Saund. 62 b, n. ; Russell on Arb., 3d ed. p. 516. 
 
 * Russell on Arb., 3d ed. pp. 516, 517; Fraunce's Case, 8 Rep. 92 6; Hods- 
 den 0. Harridge, 2 Saund. 62, n. 4 ; Child v. Horden, 2 Bulstr. 144 ; Gable v. 
 Moss, 1 id. 44 ; Juxon v. Thornhill, Cro. Car. 132 ; and see Brooke v. Mitcliell, 
 6 Mee. & W. 473. 
 
 5 Woodbury v. Northy, 3 Greenl. 85 ; and see Wright v. Smith, 19 Vt. 110. 
 
 ' Houghton V. Burroughs, 18 N. H. 499. 
 
PLEADING AND PRACTICE, 589 
 
 • 
 wise made in some shape conditional.^ Wiiere the demand is 
 
 necessary, it should of course be averred ; but otherwise if it 
 
 be not necessary. 
 
 If the action be upon the bond, and the condition be simply 
 to pay such sum as shall be awarded, no demand is necessary 
 as preliminary to the institution of a suit where the award 
 directs payment of an amount named.^ 
 
 Averment of a Request for Performance. — Generally a request 
 for performance, unless the award direct the act to be done 
 " upon request," is needless, and of course need not be averred.^ 
 So, also, though a time and place of performance be named ; 
 for readiness to perform then and there is only a matter of 
 defence.* Though, if the plaintiff is required to do a concur- 
 rent act, then he must aver his presence at the nominated 
 time and place and his readiness to perform on his part.^ 
 
 The Pleadings in an Action of Debt on an Arbitration Bond. — 
 It has been already said that in an action of debt on the 
 arbitration bond the plaintiff must, in his declaration or 
 replication, set forth the whole, or at least all the valid portion, 
 of the award.^ 
 
 If the award be not set out in the declaration, and the 
 defendant plead no award made, it is incumbent upon the 
 plaintiff, in his replication, not only to set out the award, 
 but also to assign a breach thereof.' Though this breach, 
 when assigned, is not issuable, nor traversable, nor can the 
 
 1 Parsons v. Aldrich, 6 N. H. 264; Plummer v. Morrill, 48 Maine, 184; 
 Thompson v. Mitchell, 35 id. 281. 
 
 2 Nichols V. Rensselaer County Mut. Ins. Co., 22 Wend. 125. 
 
 ' Russell on Arb., 3d ed. p. 517 ; Waters v. Bridge, Cro. Jae. 639. 
 
 * Russell, ubi supra ; Rowe v. Young, 2 Ball & Beatty, 165, per Bailey, J., 233 ; 
 Lambard v. Kingsford, Lutw. 558 ; Rodham v. Stroher, 3 Keb. 830. 
 
 s Rowe V. Young, 2 Ball & Beatty, 165, per Bailey J., 234; Phillips v. 
 Knightly, 1 Barn. 84; Fitzg. 63. 
 
 « Ante, p. 587. 
 
 ' Meredith v. AUeyn, 1 Salk. 138 ; Hayman v. Jerrard, 1 Saund. 102 ; Com. 
 Dig. Pleader, F. 14; Shelley v. Wright, Willes, 9; Barret u. Fletcher, Yelv. 152; 
 Lee V. Ellfins, 12 Mod. 585; Ormelade v. Coke, Cro. Jac. 354; Russell on Arb., 
 3d ed. p. 520. 
 
590 PLEADING AND PRACTICE. 
 
 defendant give any answer to it.^ Nevertheless the want of 
 assignhig a breach is matter of substance and bad on general 
 demurrer.^ So also if the plaintiff assign a bad breach ; nor 
 will this be aided after verdict.^ 
 
 If the defendant plead in effect traversing the submission, 
 or any other collateral matter, tlie plaintiff may join issue 
 thereon without assigning a breach.* So if the defendant 
 show an award, and plead performance of part only, and the 
 plaintifiF takes issue thereon.^ If the defendant plead any 
 plea admitting the award and excusing non-performance, it 
 is sufficient for the plaintiff to answer the special matter thus 
 alleged, without assigning a breach.^ 
 
 If the defendant pleads no award, and the plaintiff in his 
 replica,tion sets out an award, semble that the replication 
 should conclude with a" verification.' Though if the defend- 
 ant set out part only of the award, and aver performance, and 
 the award as set out be bad, and the plaintiff in his replica- 
 tion set out the rest of the award, it is a question whether the 
 conclusion should be by a verification or to the country .^ 
 
 Availing of an Avf ard by Way of Defence : Extinction of the 
 Original Claim : Plea in Bar. — According to the old rule in 
 England, before it had been interfered with by legislative 
 enactments, an award might generally have been given in 
 evidence under the general issue, in an action on the original 
 demand. The rule established by the old cases was that 
 
 1 Heard v. BaskerTiUe, Hob. 232 ; Brickhead v. Archbishop of York, Hob. 
 197. 
 
 2 Barret v. Pletcher, Cro. Jac. 220 ; Yelv. 152 ; Heard v. Baskerville, Hob. 
 232; Brickhead v. Archbishop of York, Hob. 197. 
 
 ' Pit V. Wardal, Godbold, 164. 
 
 i Com. Dig. Plead., f. 15 ; Bac. Abr. Arb., G. ; Kind v. Carter, 1 Sid. 290 ; 
 Strike v. Benstey, 1 Lutw. 525. 
 
 5 Genne v. Tinker, 3 Lev. 24; Com. Dig. Plead., F. 16. 
 
 6 Jeffrey v. Guy, Yelv. 78. 
 
 ' Russell on Arb., 3d ed. p. 251 ; Fisher v. Pimbley, 11 East, 188 ; Veale v. 
 Warner, 1 Saund. 326 b, n. 1 h. 
 
 8 Russell on Arb., 3d ed. pp. 521, 522 ; Veale v. Warner, ubi supra ; and see 
 Seal V. Crowe, 3 Lev. 164. 
 
PLEADING AND PRACTICE. 591 
 
 " whenever the award gives a new duty in lieu of the former, 
 or awards any collateral matter in satisfaction of the debt or 
 grievance, it may be pleaded in bar, without any averment of 
 performance." ^ For the other party, if any thing be awarded 
 in his favor in the award, has his independent remedy, by 
 himself instituting another suit on the award.^ The modern 
 doctrine is very well laid down by Mr. Russell in the follow- 
 ing language, which I cannot do better than quote at length : 
 " If an action be brought for a debt, whether the form be debt 
 or assumpsit, an award respecting the claim, ascertaining the 
 amount of the debt, and directing payment, cannot be pleaded 
 in bar to the action without alleging performance; for the 
 money, until paid, is due in respect of the original debt : as 
 for instance, if the claim be for tolls, the sura awarded is due 
 for tolls still.^ But if tlie claim be of a different nature, 
 as, for example, to have goods delivered, and the award direct 
 payment of money in satisfaction of the demand, the right to 
 have the goods seems to be gone, and the only right remaining 
 is the substituted right to have the money awarded. So, if 
 the demand be for a debt, and the award direct not payment 
 in money, but payment in a collateral way, as by delivery of 
 goods or performance of work, it seems the right to have 
 payment in money is extinguished. In like manner, if the 
 claim be for unliquidated damages, an award of a sum certain 
 in satisfaction is, it is apprehended, a good bar without alleging 
 performance. " * The original claim is either not extinguished 
 at all, or is extinguished altogether. 
 
 1 Russell on Arb., 3d ed. pp. 522, 523 ; Gascoyne v. Edwards, 1 Tounge & 
 Jer. 19 ; Crofts v. Harris, Carth. 187 ; Freeman v. Bernard, 1 Salk. 69 ; 1 Ld. 
 Raym. 247 ; Purslow v. Bailey, 1 Salk. 76 ; 6 Mod. 221 ; 2 Ld. Raym. 1039 ; 
 Allen V. Harris, 1 id. 122. 
 
 2 See ante, p. 556 ; Loring v. "Whittemore, 15 Gray, 228. 
 
 ' See, to tlie same substantial effect, Keeler v. Harding, 23 Ark. 697, stated 
 in Chap. XVIII., in the paragraph entitled A Case where the Merger Is not 
 effected, ante, pp. 490, 491. 
 
 * Russell on Arb., 3d ed. p. 524. 
 
592 PLEADING AND PRACTICE. 
 
 In all actions where an accord and satisfaction is a good 
 defence, an award may be pleaded in bar.^ 
 
 If, after issue joined, a cause be referred, and the plaintiff 
 still proceeds with the action, and, after an award in the 
 plaintiff's favor, brings it in for trial, the award may be 
 pleaded as a plea to the further maintenance of the action ; 
 formerly it was by way of plea puis darrein continuance. It 
 seems that such an award is, at common law, inadmissible in 
 evidence, and that, therefore, the defendant must plead it or 
 lose the benefit of it.^ 
 
 Plea of " no Award." — Russell says that the old rule in 
 England construed a plea of no award made as meaning 
 strictly that no award at all had been made. Wherefore, if 
 the defendant pleaded thus, and the plaintiff replied by setting 
 out an award and assigning a breach, and the defendant re- 
 joined matter, showing that though there was an award in 
 fact it was void in law, he committed a departure. His 
 proper course would have been in the first instance to plead 
 the award, and then to aver the matter rendering it void. 
 The only allowable rejoinder in the aforesaid pleadings would 
 be a denial that the arbitrator made any such award.^ 
 
 But in a later case this doctrine has been overruled. The 
 action was in debt on an arbitration bond. The defendant, 
 after craving oyer of the bond and condition, by which it 
 appeared that the bond was conditioned to abide an award on 
 all causes of action, controversies, and demands between the 
 plaintiff and defendant, pleaded no award made. The plaintiff 
 replied that an award was duly made ordering the defendant 
 
 1 Bussell on Arb., 3d ed. p. 525 ; Blake's Case, 6 Kep. 43 b ; Com. Dig. 
 Accord., D. 1 ; Bac. Abr. Arb., G. 
 
 2 Russell, p. 625; Lowes v. Eermode, 8 Taunt. 146; Storey v. Bloxham, 2 
 Bsp. 503. 
 
 3 Russell on Arb., 8d ed. pp. 526, 527 ; House v. Launder, 1 Lev. 86 ; Hard- 
 ing V. Holmes, 1 Wils. 122; Morgan v. Man, 1 Lev. 127 ; T. Raym. 94; Roberts 
 V. Marriot, 2 Saund. 183 ; 1 Lev. 300 ; Skinner v. Andrews, 1 Lev. 245 ; Roberts 
 V. Eberhardt, 27 L. J. C. P. 70, reversed in error, 2 id. 74. 
 
PLEADING AND PRACTICE. 593 
 
 to pay to him a certain sum " for all the coal gotten by him 
 as thereinbefore mentioned." The defendant rejoined and set 
 out the whole award verbatim, by which it appeared the sub- 
 mission was of matters in difference between the plaintiff and 
 defendant, and the award found damages for the plaintiff in 
 respect of coal belonging to the plaintiff, or to the plaintiff and 
 others with him. The plaintiff demurred. The court held the 
 rejoinder to be no departure from the plea, for that the plea 
 meant that no legal and valid award according to the sub- 
 mission had been made, and the rejoinder, showing the award 
 to be invalid, merely maintained that plea. Bailey, J., ex- 
 pressed the opinion that the defendant could not have defended 
 himself by taking issue on the replication ; for there was such 
 an award as the plaintiff therein set up, though there was not 
 an award conformable to the submission, and therefore no good 
 award. The court further held that, had the award been truly 
 set out in the replication, the. defendant ought then to have 
 demurred to it ; but as the replication set it out only partially, 
 the defendant was therefore entitled to set it out truly in his 
 rejoinder, and on demurrer to object to its validity .^ 
 
 In an action of debt on an arbitration bond the defendant 
 pleaded no award. The plaintiff replied, setting forth an award. 
 The defendant rejoined that the award was not final. The 
 plaintiff demurred. The court held the rejoinder to be a 
 departure.^ 
 
 In an action of debt on the arbitration bond, the defendant 
 pleaded the condition of the bond, set forth the award, and 
 averred that a question included in the submission and noti- 
 fied to the arbitrators had not been awarded upon. The 
 plaintiff demurred, and the court held the plea good.^ 
 
 If a bond is conditioned to abide an award of arbitrators, 
 
 1 Fisher v. Plmbley, 11 East, 188 ; see Hickes v. Cracknel!, 3 Mee. & W. 72; 
 Spooner v. Payne, 16 L. J. C. P. 225. 
 
 2 Barlow v. Todd, 3 Johns. 367. 
 
 s Mitchell v. Staveley, 16 East, 58. 
 
 38 
 
594 PLEADING AND PEACTICB. 
 
 and, if not made within a certain time, then of an umpire, the 
 plea of no award should allege that none was made either by 
 the arbitrators or by the umpire.^ 
 
 After a plea of no award and a replication setting out an 
 award ordering a payment of money and averring non-payment, 
 a rejoinder of payment is a departure.^ 
 
 If it is intended to dispute the validity of an award on the 
 ground of its non-conformity with the submission, a plea that 
 no award was made according to the terms of the submission 
 is bad. For it neither denies the award declared, nor does it 
 confess and avoid. Even if it could be regarded as confessing, 
 yet it avoids, if at all, only argumentatively.' 
 
 Russell says * that according to the later cases, if an issue 
 is joined on a traverse to a plea of no award, the defendant 
 may show either that no award at all has been made, or that 
 the arbitrators did not execute the award together,' or that 
 the award was not made, within the limit of time set forth 
 in the declaration, or that a matter submitted and notified 
 to the arbitrator was not determined by him.^ Special pleas 
 setting forth the latter objections have been held bad on special 
 demurrer, as being argumentative pleas of no award.'^ 
 
 But a defendant in an action on an award cannot support a 
 plea of no award, by showing that though an award has been 
 made pursuant to the submission, yet this award is in fact bad 
 or void,^ For example, he will fail on such an issue if he rely 
 on the fact that an award, made in accordance with the sub- 
 
 ' Hinton v. Cray, 3 Keb. 512. 
 
 2 Ibid. 
 
 ' Bean v. Farnam, 6 Pick. 269. 
 
 4 Russell on Arb., 3d ed. p. 529. 
 
 5 Wade V. Dowling, 4 El. & Bl. 4i. 
 
 6 Harrison v. Creswick, 13 C. B. 399 ; Roberts v. Eberhardt, 27 L. J. C. P. 
 70 ; 3 C. B. N. s. 482; King v. Bowen, 8 Mee. & "W. 625 ; Elsom u. Eolfe, 2 
 Smith, 469. 
 
 ^ Dresser v. Stansfield, 14 Mee. & W. 822 ; Armitage v. Coates, 4 Exch. 641 ; 
 Linsey v. Ashton, Godbold, 255. 
 8 Russell on Arb., 8d ed. p. 529. 
 
PLEADING AND PRACTICE. 595 
 
 mission, is bad, because it shows on its face that the arbitrator 
 has exceeded tlie scope of his authority ,i or that the arbitra- 
 tors made up the award without exercising their own judg- 
 ment, but by the opinion of a third person by which they had 
 agreed beforehand to be bound.^ Neither upon such an issue 
 is it permissible to the defendant to show that the award has 
 been set aside ; for this fact ought to be pleaded.^ 
 
 Pleading that all Matters are not decided. — An objection tO 
 the award that it does not determine all the matters submitted, 
 and to which the attention of the arbitrators was called, can 
 always be pleaded as a defence in a suit at law upon the 
 award.* 
 
 Pleading Misconduct, Fraud, or Mistake of the Arbitrators. — 
 The method of availing of the misconduct, fraud, or mistake 
 of the arbitrators has been already in some measure discussed 
 in Chapter XIX. The general rule is that sjich matters cannot 
 be pleaded in defence to a suit at law on the award. They are 
 matters dehors the award, and, by a familiar principle, evidence 
 of them cannot be adduced in an action in which the award is 
 pleaded and relied upon.^ They, however, constitute a proper 
 cause for a bill in equity, which may pray that the award be 
 declared void, and also that the further prosecution of any 
 action begun upon it may be enjoined.* 
 
 In an action of debt on an arbitration bond the defendant 
 pleaded, among other things, misconduct and mistake on the 
 part of the arbitrator. To these pleas the plaintiff demurred, 
 
 1 Adcock a. Wood, 6 Exch. 814. 
 
 2 Whitmore v. Smith, in error, 7 Hurl. & Nor. 509 ; 31 L. J. Exch. 107, re- 
 versing the judgment of the Court of Exchequer, reported in 5 Hurl. & Nor. 824 ; 
 29 L. J. Exch. 402. 
 
 ' Eoper V. Levi, 21 L. J. Exch. 28. 
 
 ♦ Mickles v. Thayer, 14 AUen, 114 ; Bean v. Earnam, 6 Pick. 269 ; Inhabitants 
 of North Yarmouth v. Inhabitants of Cumberland, 6 Maine, 21 ; Sharp v. Wood- 
 bury, 18 Iowa, 195. 
 
 5 Eletcher v. Hubbard, 43 N. H. 58 ; see also post, in this chapter. Evidence 
 of Fraud. 
 
 6 Sisk V. Garey, 27 Md. 401. 
 
596 PLEADING AND PEACTICE. 
 
 and his demurrer was held good, on the ground that miscon- 
 duct and mistake could not be thus availed of, but that relief 
 must be sought in equity. The rule was said to be too firmly 
 settled to leave room for entertaining any question as to how 
 far it might be judicious.^ 
 
 The following case decided in the supreme court of the State 
 of Maine constitutes an exception to the foregoing rules, which, 
 but for it, would, I believe, be of universal operation. A de- 
 fendant set up in defence a submission and award ; the plain- 
 tiff sought to avoid the effect thereof on the ground of 
 misconduct, partiality, or fraud in procuring or making it, by a 
 party or by the referees. The plaintiff accordingly demiirred, 
 professing to believe that evidence sufficient to show the fraud, 
 partiality, or collusion could be obtained from a critical exam- 
 ination of the papers in the case. But it was said that the 
 proper course would have been to reply the fraud and bring that 
 question to an issue to be decided in the light of evidence to 
 be offered by both parties. " Whether an award is void by 
 reason of fraud in the parties, or corruption, gross partiality, 
 or prejudice on the part of the arbitrators, is not a question of 
 law to be determined upon a demurrer to a plea, but a ques- 
 tion of fact, to be submitted, if the parties desire it, to a jury, 
 with an opportunity to the party whose award is impeached to 
 explain by testimony any circumstances on the face of the 
 proceedings that might tend to excite suspicion of unfair 
 practices." ^ 
 
 Pleading Illegality iil the Matter submitted. — If the award 
 of arbitrators is not impeached on the ground of their partial- 
 ity or corruption, or of fraud practised by the prevailing party, 
 parol evidence is inadmissible to show that they considered 
 a matter which furnished no legal basis for a claim for 
 damages.^ Such a defence, if it is to be relied upon on at 
 
 1 Sherron v. Wood, 5 Halst. 7 {per Ewing, C. J.). 
 
 2 Duren v. Getchell, 55 Maine, 241. 
 » Eundell v. La Fleur, 6 Allen, 480. 
 
PLEADING AND PEACTICE. 597 
 
 all, must be set up before the arbitrators. Thus, in an arbitra- 
 tion concerning a lottery prize, the illegality of the lottery 
 must be urged before the arbitrators, and cannot be set up in 
 an action on the award.^ 
 
 Pleading Performance of the Award. — In an action of debt 
 on the arbitration bond, for non-performance of the award, the 
 defendant cannot plead generally that he has performed, but 
 must set forth the award and show how he has performed it.^ 
 
 Performance of every part of the award for which the de- 
 fendant is liable must be shown. If he and others are ordered 
 respectively to do separate acts, and he is liable for perform- 
 ance by the others, it is not enough for him to set up that he 
 has done the specific act allotted to him.^ 
 
 If an award order a party to pay the rent named in an in. 
 denture, the indenture need not be set forth at length. But 
 if the order be to pay the rent according to the terms of the 
 indenture, then it must be set out at length. And so, also, 
 if the order be for the payment of a legacy.* 
 
 Parol evidence of events subsequent to the award, showing 
 how far each party has performed or fallen short of the duties 
 enjoined upon him, and also operating to render intelligible the 
 otherwise obscure and uncertain bond and award, is admissible 
 in an action of debt on the bond.^ 
 
 Pleading' the Statute of Iiimitations. — By the old common 
 law, since changed in England by statute,^ in an action of debt 
 on an award executed under the hand and seal of the arbitra- 
 tors, the defendant could not plead that the cause of action did 
 not accrue within six years, since the Statute of Limitations 
 certainly did not apply to awards thus executed, which were 
 
 1 Waite V. Barry, 12 Wend. 377. 
 
 2 Russell on Arb., 3d ed. p. 531 ; Anon., P. Moore, 3 pi. 9. 
 
 8 Russell, ubi supra; Genne v. Tinker, 3 Lev. 24; Veale v. Warner, 1 Saund. 
 324 a., 1, 3. 
 
 * Russell, ubi supra; Anon., 1 Vent. 87; Hagh v. Chadwick, 2 Keb. 667. 
 5 Galvin v. Thompson, 13 Maine, 367. 
 e 3 & 4 Will. IV. 0. 42, § 3. 
 
598 PLEADING AND PRACTICE. 
 
 said to be quasi specialties, and probably did not apply to any 
 awards at all.^ 
 
 It is no defence to a note given for a sum awarded against 
 the maker, that the arbitrators allowed claims barred by the 
 Statute of Limitations. The ruling in this case is not based 
 on the fact that the arbitrators had a right to allow these de- 
 mands, but on the principle that such allowance does not prove 
 the note to be without consideration.^ 
 
 Pleading Revocation of the Submission. — Revocation of the 
 authoHty of the arbitrator before award made is a good answer, 
 and may be pleaded by the defendant ; excepting, in England, 
 in those cases where the submission can be made a rule of 
 court.^ 
 
 Marriage of a feme sole, a party to the submission, pending 
 the arbitration, may be pleaded as a revocation.^ 
 
 Pleading Foreign Attachment. — A plea of a foreign attach- 
 ment is good, provided such attachment was issued early 
 enough, which must be before the penalty on the bond has 
 been incurred. If it was not issued till the day after the award 
 was made, it is too late, for the penalty was due when the money 
 was not paid by the day." 
 
 Pleading an Oral 'Waiver. — In an action on a bond of Submis- 
 sion to arbitration, the defendant cannot plead an agreement 
 not under seal to waive and abandon the award. His only 
 remedy is by a cross action against the plaintiff for damage, 
 for suing on the bond in breach of his agreement not to do so.** 
 
 But where the deed of submission was only inducement, and 
 the action was upon the award, it was held that a subsequent 
 
 1 Russell on Arb., 3d ed. p. 532; Hodsden i^. Harridge, 2 Saund. 61 m ; 2 
 Keb. 462. 
 
 2 Boynton v. Butterfield, 6 Allen, 67. 
 
 » Russell on Arb., 3d ed. p. 532 ; Marsh v. Bulteel, 5 Barn. & Aid. 507. 
 * Charnley v. Winstauley, 5 East, 266. 
 
 5 Russell on Arb., 3d ed. pp. 532, 533 ; Ingram v. Bernard, 1 Ld. Raym. 636 ; 
 see Robbins v. Standard, Sid. 327 ; Coppell v. Smith, 4 Term, 812. 
 
 6 RusseU on Arb., 3d ed. p. 533 ; Braddick v. Thompson, 8 East, 344. 
 
PLEADING AND PRACTICE. 599 
 
 alteration by parol, amounting to an accord and satisfaction, 
 could be pleaded by the defendant.^ 
 
 Plea that Award was not ready in Time. — Russell says that a 
 plea that the award was not ready for delivery within the stipu- 
 lated time, is said to be a good plea ; though probably in most 
 cases it would now be considered open to special demurrer as 
 amounting to an argumentative plea of no award.^ 
 
 If no time be limited for mailing the award, a plea that it was 
 not made within a reasonable time is bad.^ 
 
 Plea that the cause of Action w^as not submitted. — The defend- 
 ant pleaded an award. The plaintiff replied that the matter 
 constituting his cause of action was not included in the refer- 
 ence. He was allowed to show that this was the fact, although 
 the submission was of all matters in difference, and this cause 
 of action was in existence at the date of the submission.* 
 
 If an award, made pursuant to an oral submission, is pleaded 
 in bar, the plaintiff is a competent witness to testify that the 
 cause of action was not included in the submission entered 
 into by him.^ 
 
 Defence in Suit on a Promissory Note. — Where a note of a 
 party is left with the arbitrators to be indorsed down to the 
 sum which they shall find to be due, and then given to the 
 gaining party, it seems that in an action on the note by 
 the promisee, the same defences will be admissible which 
 would be so in an action upon the original agreement of 
 submission and award.^ 
 
 Demurrer in Suit on an Award. — If the plaintiff set OUt an 
 
 award bad on its face, as stated in the pleadings, the defendant 
 should demur.'' 
 
 1 Russell, ubi supra ; Smith v. Trowsdale, 3 El. & Bl. 83. 
 
 2 Russell on Arb., 3d ed. pp. 529, 533. 
 ' Curtis V. Potts, 3 Maule & Sel. 145. 
 
 * Russell on Arb., 3d ed. pp. 533, 534 ; Ravee v. Farmer, 4 Term, 146. 
 6 Cook V. Jaques, 15 Gray, 59. 
 
 6 Page V. Pendergast, 2 N. H. 233. 
 
 7 Russell on Arb., 3d ed. p. 534 ; Gisborne v. Hart, 5 Mee. & W. 50 ; Curgpy 
 V. Aitcheson, 2 Bam. & Cress. 170; Fisher v. Pimbley, 11 East, 188. 
 
600 PLEADING AND PRACTICE. 
 
 Where the defendant expects to succeed by showing miscon- 
 duct or partiality of the arbitrators, or fraud of the arbitrators 
 or a party, he cannot demur to the plaintiff's declaration, 
 though he thinks that the misconduct, partiality, or fraud can 
 be discovered from the face of the papers by a careful examinar 
 tion thereof.^ 
 
 Where the objection to the award is on the ground of its non- 
 conformity with the submission, this is properly availed of in a 
 suit on the award by a demurrer.^ 
 
 E:secution of the Submission must be proved. — The execution 
 of the submission by all the parties to it, if traversed, must be 
 proved by the party setting up and relying upon the award. The 
 proof must be made in the usual manner ; by the testimony of 
 the attesting witness, if there be one ; or if he be absent, his 
 absence must be accounted for.^ 
 
 A written and attested submission is not sufficiently proved 
 by evidence of a rule making it a rule of court under a statute. 
 Since the contract derives its force from the consent of the par- 
 ties, and not from the rule, it must be proved like any other 
 contract.* But a submission by a judge's order is properly 
 evidenced by the rule of court ; for the order is itself a judicial 
 act, and by being made a rule is altered only in form, not in 
 character ; and the submission becomes a submission by rule 
 of court, just as much as if it had originally been so without 
 a judge's order.^ 
 
 Where a submission is made by rule of court, the production 
 of the rule of court and award, accompanied with proof of the 
 execution of the latter instrument, constitutes ^nma/acie evi- 
 dence on behalf of the plaintiff in an action of assumpsit on the 
 
 ' Duren o. Getchell, 55 Maine, 241 ; ante, p. 596. Wakeman v. Dalley, 44 
 Barb. 498, stated in Chap. XIX., ante, p. 541. 
 
 2 Bean v. Farnam, 6 Pick. 269. 
 
 ' Russell on Arb., 8d ed. p. 584; Ferrer v. Oven, 7 Barn. & Cress. 427; 
 Brazier v. Jones, 8 id. 124 ; Antram v. Chace, 15 East, 208 ; Kingston v. Phelps, 
 1 Peake, N. P. 299 ; Spooner v. Payne, 4 C. B. 328 ; 16 L. J. C. P. 225, 
 Berney v. Read, 7 Q. B. 79. 
 
 5 Ibid. ; Still v. Halford, 4 Camp. 17 ; Russell on Arb., 3d ed. p. 534. 
 
PLEADING AND PRACTICE. 601 
 
 award, and sustains his declaration, unless the validity of the 
 award be impeached by evidence dehors adduced by the defend- 
 ant.i 
 
 Proving the E^steuce and Contents of a Lost Submission. — 
 The averment and proof of the making of an agreement of 
 submission and its contents, constitute necessarily the first 
 step, towards enforcing the award. The validity of the award 
 is primarily and essentially dependent upon the undertaking 
 of the parties. Ordinarily this will be easily proved by a pro- 
 duction of the paper. But if no submission be produced, and 
 there be no evidence of it, the mere fact of the existence of 
 an instrument purporting to be an award, though ancient, will 
 not be allowed to have any effect. The instrument will not be 
 treated as having the force of an award.^ 
 
 If, under a submission by counter bonds, the defendant with- 
 holds his, its contents may be proved by the one in the plain- 
 tiff's hands, supplemented by oral evidence.^ 
 
 A submission was in the shape of a rule of reference entered 
 into, according to statutory provisions, before a justice of the 
 peace, and certified by him. Upon this the jurisdiction of the 
 court was, of course, based. At the trial it was not forthcom- 
 ing, but satisfactory proof of its loss was offered at the trial 
 for the purpose of laying a basis for the introduction of proof 
 of its contents, and of the fact that it was laid before the ref- 
 erees and acted upon by them. The court held that thit evi- 
 dence was admissible, remarking, however, as one consideration 
 which favored the application of the doctrine of secondary evi- 
 dence of the contents of lost papers to a case of this description, 
 that " the paper was an ofiicial document, not in the custody of 
 the party interested to preserve it safely, but officially in the 
 custody of the arbitrators." * 
 
 1 EuBsell, p. 535 ; Gisborne v. Hart, 5 Mee. & Wei. 50. 
 
 2 Burghardt v. Turner, 12 Pick. 534. 
 
 3 Loring v. Whittemore, 13 Gray, 228. 
 « Eaton V. Hall, 5 Mete. (Mass.) 287. 
 
602 PLEADING AND PEACTICE. 
 
 In a suit where the submission. was ruled out, evidence that 
 an arbitrator had presented the award to the defendant, who 
 had thereupon promised to pay the amount, was admitted and 
 treated as sufficient evidence of a submission to support tlie 
 award. 1 
 
 Part Performance of Avrard is Evidence of Submission. — If a 
 party has in part conformed to an award by complying with 
 any of its orders, such conduct upon his part is competent, 
 and sometimes, at least, is sufficient, evidence of his having 
 entered into the submission. Thus where an award directed 
 the defendant to sign a memorandum, to the effect that he 
 would not pirate the plaintiff's inventions, proof that the de- 
 fendant had in fact signed such a memorandum as was called 
 for by the award was held to constitute sufficient evidence of 
 his having entered into the submission.^ 
 
 Statement of a Party as Evidence. — The statement of a party 
 that he has submitted to arbitration, and that the award has 
 been rendered against him, is competent evidence against him 
 as well of the submission as of the award.^ 
 
 Evidence of Fraud. — According to the old rule in England, 
 if the submission had been procured by fraud, the defendant 
 might plead no submission, and then show in evidence the 
 fraud, which would entitle him to treat it as no submission. 
 Or he might plead no award, and sustain it by the same 
 proofi* But it seems that he could not, under any plea, give 
 evidence showing the award was made as it was in conse- 
 quence of fraudulent conduct on the part of the parties 
 interested.^ 
 
 Enforcing Specific Performance of an A'ward by Proceedings in 
 Equity. — The general principle concerning the enforcement, in 
 
 ' Williams v. Williams, 11 Sm. & M. 393 ; and see Green v. Ford, 17 Ark. 586. 
 2 Stuart V. Nicholson, 3 Bing. N. C. 113. 
 ° Murray v Gregory, 5 Exch. 486. 
 
 * Kussell on Arb., 3d ed. p. 542 ; Sackett v. Owen, 2 Chitty's Eep. 39. 
 ' Eussell, ubi supra; Dyer i>. Dawson, cited in Heming v. Swinertou, 1 Coop. 
 C. C. 420, notes. 
 
PLEADING AND PRACTICE. 603 
 
 equity, of specific performance of an award is very clearly 
 laid down by Russell in the following language, upon which it 
 would be difficult to improve : " A bill in equity," he says, 
 " will lie to enforce specific performance of an award, when 
 the thing ordered by the award to be done is such as a court 
 of equity would specifically enforce, if it had been agreed upon 
 by the parties themselves. For as by the submission the 
 parties have contracted to do what the arbitrator shall direct, 
 when the latter has made his decision, the award is considered 
 in equity as amounting to an agreement by the parties on the 
 terms pointed out by him, and will be enforced against a party 
 as the party's own agreement." ^ 
 
 But equity will not interfere to enforce specific performance 
 where there is an adequate remedy at common law ; as, for 
 example, where the award simply directs the payment of a 
 sum of money .^ 
 
 The same principles prevail also in the United States, and it 
 is the universally acknowledged law that courts of chancery 
 have power to compel specific performance of awards, provided 
 that no adequate remedy exists at law. Thus, if the award 
 call for a conveyance of lands, a bill for specific performance 
 will lie.^ But if the award be only for the payment of a sum 
 of money, or the delivery of chattels or the like, the relief at 
 law, by suit upon the award, is ample, and equity will not 
 
 ^ Russell on Arb., 3d ed. p. 545; Walters v. Morgan, 2 Cox, 369; Wood v. 
 Griffith, 1 Wils. C. C. 34 ; 1 Swanst. 43 ; Gervaie „. Edwards, 2 Dm. & War. 
 80. See a careful discussion of the English cases by Chief Justice Parker, in 
 ^hich he arrives at the same conclusion as to the English doctrine in cases re- 
 lating to the conveyance of real estate, in Jones v. The Boston Mill Corporation, 
 4 Pick. 507. 
 
 2 Russell, ubi supra; Walters v. Morgan, 2 Cox, 369; Hall v. Hardy, 3 P. 
 Wms. 187. 
 
 ' McNeil u. Magee, 5 Mason, 244 ; Jones v. Boston Mill Corporation, 4 Pick. 
 507; Page v. Foster, 7 N. H. 392; Penniman v. Rodman, 13 Mete. (Mass.) 382; 
 Caldwell v. Dickinson, 13 Gray, 365; Smith v. Smith, 4 Rand. 95; Hodges v. 
 Saunders, 17 Pick. 470 ; McNear v. Bailey, 18 Maine, 251 ; Bouck v. Wilber, 
 4 Johns. 405 (in which case the court even corrected an obvious blunder in the 
 award before entering the decree). 
 
604 PLEADING AND PRACTICE. 
 
 interfere.! The ground upon which this jurisdiction is enter- 
 tained by courts of equity is said, by Judge Story, to be, that 
 " it is but an execution of the agreement of the parties, ascer- 
 tained and fixed by the arbitrators." ^ So, also, Chief Justice 
 Parker, in Jones i>. Boston Mill Corporation,^ says that the 
 subject, upon its " true footing," is " the specific performance 
 of a contract in writing ; for the submission is the agreement. 
 It is virtually a contract to do what shall be awarded ; and 
 there does not seem to be any reason why it is not as much 
 the subject of equity power, as if the contract were complete 
 without the interference of an arbitrator." ^ 
 
 An arbitration bond in a controversy concerning a boundary 
 line was conditioned that the parties should " give deeds ac- 
 cording to the award of the referees." The losing party 
 refused to do so, and the court held that the other party had 
 not a plain, adequate, and complete remedy at the common 
 law, for the breach of the condition; and that he was there- 
 fore entitled to maintain his bill in equity for specific per- 
 formance.* 
 
 But the bill seeking specific performance is addressed to 
 the discretion of the court. The rights of the respondent 
 under the bill will be carefully guarded by a conditional 
 decree, jf such be necessary, or even by a direct order to the 
 plaintiS" to comply with the award upon his own part. And 
 in proper cases the prayer of the bill will be altogether dis- 
 allowed, where to grant it would be to work practical injustice ; 
 e.g., where the complainant has been guilty of injurious 
 delay, voluntary and unjustifiable upon his part, especially if 
 during such delay circumstances have materially changed so 
 that a decree of specific performance would place the defendant 
 in a worse position than that in which the award would have 
 
 ^ Jones V. Boston Mill Corporation, 4 Pick. 507. 
 
 " McNeil V. Magee, 5 Mason, 244. 
 
 ' 4 Piclc. 507 ; so also in Penniman t>. Rodman, 13 Mete. (Mass.) 382. 
 
 * Caldwell v. Dickinson, 13 Gray, 365. 
 
PLEADING AND PRACTICE. 605 
 
 placed him, or than he ought in justice and good conscience to 
 occupy.^ 
 
 The nature of the submission, whether in pais, by rule of 
 court, or under a statute, is regarded in England as having no 
 eifect upon the right to seek specific performance by a bill in 
 equity. If the fact that it is by rule or under a statute furnishes a 
 means of summary enforcement by a process of the common law, 
 as, for example, by execution or attachment, the two remedies are 
 co-existent and collateral. If the award be intrinsically fit to be 
 enforced specifically by a decree in equity, the bill will lie.^ 
 
 If the award order the performance of a specific act, it will 
 generally be within the scope of the jurisdiction of a court of 
 equity to enforce specific performance. Especially will this be 
 the case if the order concerns real estate, directing execution 
 of a deed or release or other act whatsoever.^ 
 
 Acqmescence as a Preliminary to a Decree for Specific Ferform- 
 ance. — The old English rule, requiring acquiescence by the 
 parties in the award, or performance of his part by one of 
 them, as a necessary preliminary to entertaining a bill for 
 specific performance,* has been long since done away with.* 
 But if the award be such that to enforce specific performance 
 by the one party, where there has been no performance, neither 
 is any readiness to perform shown, would work injustice, a 
 court of equity, being entitled to use its discretion in the 
 matter, may refuse the prayer of the bill altogether, or enter 
 only a conditional decree.® 
 
 1 McNeil V. Magee, 5 Mason, 244. 
 
 2 Eussell on Arb., 3d ed. pp. 544, 545 ; Nickels v. Hancock, 7 De Gex, M. & 
 G. 300; Wood v. Griffith, 1 Wils. C. C. 34; 1 Swanst. 43; Walters v. Morgan, 
 2 Cox, 369 ; Auriol v. Smith, 1 Turn. & By. 121 ; Hawksworth v. Brammall, 5 
 Mylne & C. 281. 
 
 ' Russell, ubi supra ; Walters v. Morgan, 2 Cox, 369 ; Hall v. Hardy, 3 P. 
 Wms. 187 ; Henry v. Kirwan, 9 Ir. C. L. 459 ; The Regent's Canal Co. v. Ware, 
 26 L. J. Chy. 566 ; 23 Beav. 575 ; Mason v. The Stokes Bay Railway Company, 
 32 L. J. Chy. 110. 
 
 * See Bishop v. Bishop, 1 Rep. in Chy. 75, 141 ; Thompson v. Noel, 1 Atk. 60 ; 
 Eyre v. Good, 2 Rep. in Chy. 18, 34 ; Bishop v. Webster, 1 Ca. in Eg. Ab. 51, pi. 9. 
 
 ' Russell on Arb., 3d ed. p. 546. 
 
 6 Per Story, J. in McNeil v. Magee, 5 Mason, 244, at pp. 256, 257. 
 
606 PLEADING AND PRACTICE. 
 
 So also it has been said in Massachusetts, in the case of a 
 bill praying specific performance of a valid award ordering 
 a conveyance of real estate, that the award was subject to the 
 equity jurisdiction of the court " without any subsequent 
 assent, express or implied." ^ 
 
 But ever since the days of Charles 11. the courts have not 
 hesitated to enforce specific performance where there has been 
 performance either in part or in whole by the complainant in 
 the bill.^ And where there had been assent and part perform- 
 ance there is an instance where the court enforced specific 
 performance even of an award not good in strictness of law.^ 
 
 A Penalty does not take the Place of Performance. — If the 
 agreement to abide by and perform the award be secured by 
 a penalty, the court of equity will not compel the party to 
 receive the penalty in lieu of performance, but will compel 
 specific performance.* 
 
 Right to Specific Performance as affected by Lapse of Time. — 
 It has been said that the right to enforce in equity the specific 
 performance of an award is not lost or waived by mere lapse 
 of time.^ For example, in the case cited, twelve years had 
 elapsed, and still performance was decreed. But it seems that 
 this rule is to be construed sensibly, and that the party must 
 seek to compel the performance within such time as the nature 
 of the case will permit or render reasonable. Thus, it having 
 been referred to arbitrators to settle the terms on which the 
 
 1 Jones V. The Boston Mill Corporation, 4 Pick. 507 ; per Parker, C. J., at 
 p. 615. 
 
 2 Russell on Arb., 3d ed. p. 546; Norton v. Mascall, 2 Rep. in Chy. 304; 
 Poole V. Pipe, 3 id. 11, 20; Church v. Roper, 1 id. 75, 141; Hall v. Hardy, 
 3 P. Wms. 187 ; but see Nickels v. Hancock, 7 De 6ex, M. & G. 300, where 
 some preliminary steps towards performance, which appeared to have misled 
 nobody, were said not to constitute a sufficient basis for enforcing a specific 
 performance. 
 
 ' Norton v. Mascall, 2 Vern. 24; and see Scott </. Wray, 1 Rep. in Chy. 45, 
 85 ; Ewes v. Blackwall, Cas. Temp. Finch, 22. 
 
 * Belchier v. Reynolds, 2 Ld. Kenyon, Part II. 87. See also Caldwell v. 
 Dickinson, 13 Gray, 365, stated ante, p. 604. 
 
 5 Russell on Arb., 8d ed. p. 548; Sweet v. Hole, Cas. Temp. Finch, 384; 
 Fade v. WiUiams, 24 L. J. Chy. 531. 
 
PLEADING AND PRACTICE. 607 
 
 defendant shonld take the lease of a mine of which he had 
 entered into occupation, they rendered their award in April. 
 The defendant remained in possession till December, and then 
 finally abandoned the mine. Three years and a half elapsed 
 before the filing of the bill in equity for specific performance. 
 Lord Cranworth held that this delay was a bar to the relief 
 sought.^ 
 
 No Specific Performance of Illegal Matters. — Any order 
 embraced in the award. of an illegal nature, or unauthorized 
 by the form of the submission, cannot be enforced. For ex- 
 ample, if an order be such that it could, under the Statute of 
 Frauds, be based only on a written submission, it will not be 
 enforced -if the submission was oral ; ^ neither will an order 
 creating a perpetuity be enforced. ^ 
 
 Enforcement of Unreasonable Orders. — Russell says that " the 
 court will not enforce an award, when the submission and 
 award together constitute an unwise and unreasonable agree- 
 ment, or one which is incapable of being worked out consist- 
 ently with the terms of the submission ; and it is very doubtful 
 whether it will enforce part of an award when it cannot enforce 
 the whole." * What degree of discretion a court would feel 
 itself authorized to exercise in determining what is " wise 
 and reasonable" in an award is left in doubt. But un- 
 questionably, by analogy and the whole spirit of the law in 
 relation to awards, a great reluctance would be manifested 
 to refuse enforcement upon this ground, and a very gross 
 case of unreasonableness would be required to be clearly 
 made out. Indeed, Russell himself, on a subsequent page, 
 says that " though equity will not compel the specific per- 
 
 1 Eads V. Wmiams, 24 L. J. Chy. 531. 
 
 2 Walters v. Morgan, 2 Cox, 369. 
 
 ' Bishop V. Bishop, 1 Rep. in Chy. 75, 141. 
 
 * Eussell on Arb., 3d ed. p. 546 ; Nickels u. Hancock, 7 De Gex, M. & G. 
 
 300; Cavendish v. , 1 Cas. in Chy. 279; 1 Eg. Ca. Abr. 50; Evans v. 
 
 Cogan, 2 P. Wms. 450 ; but see Bishop of Bath and Wells v. Hippesley, cited 
 in Harvey v. Ashley, 3 Atk. 607, also stated in Russell at p. 550; and see 
 McNeil V. Magee, 5 Mason, 244, stated ante, p. 604, 605. 
 
608 PLEADING AND PRACTICE. 
 
 formance of an agreement it deems unreasonable, it will 
 nevertheless enforce an award, although it may consider it 
 unreasonable ; for the parties give to the act of an arbitrator 
 an authority which cannot be given to their own acts." ^ This 
 certainly seems a far more probable and sound enunciation of 
 the law. Yet in some cases, where a strong case of injustice 
 has been made out, a decree of specific performance has been 
 refused.* Of course if the injustice take the form of a defect 
 in the award, as if it arise out of or constitute a want of 
 mutuality, specific performance would be refused, but on the 
 ground of the invalidity, not the unreasonableness or injustice 
 of the award. 
 
 Enforcement of Specjfic Performance by and against Strangers. 
 — A stranger to a submission cannot have a decree for specific 
 performance of the award.^ 
 
 But where a stranger to the submission assents to the award ,^ 
 or where, knowing of the pendency of the arbitration and hav- 
 ing a claim likely to be affected by it, he lies by without pre- 
 senting his claim,^ he may sometimes put himself in such a 
 position that a court of equity will decree specific performance 
 against him. 
 
 Demurrer to a Bill for Specific Performance. — Demurrer will 
 lie to a bill seeking specific performance of an award, if the 
 award as set forth appears bad upon its face.^ So also if there 
 be an illegal direction in the award, demurrer will lie to so 
 much of the bill as prays for the performance of that part of 
 the award which is vitiated by this defect.^ 
 
 Sustaining an A-ward by Injunction. — An award will some- 
 
 1 Russell, p. 549 ; "Wood v. Griffith, 1 Wils. 34 ; 1 Swanst. 43. 
 
 2 Emery v. Wase, 5 Ves. Jr. 846, and on an appeal 8 id. 505 ; Berry v. Wade, 
 Cas. Temp. Finch, 180. 
 
 3 Thompson v. Noel, 1 Atk. 60. 
 
 < Erans v. Cogan, 2 P. Wms. 450. 
 '> Govett V. Richmond, 7 Sim. 1. 
 « Hoperaft v. Hickman, 2 Sim, & St. 130. 
 T Bishop V. Bishop, 1 Rep. in Chys 75. 
 
PLEADING AND PRACTICE. 609 
 
 times be enforced by an injunction, restraining a party from 
 acting in contravention of it. For example, it was the duty of 
 an arbitrator, among other things, to set out a road for a party 
 from a certain bridge. After the award setting out the road 
 had been made, the other party proposed to remove the bridge. 
 The court, on the ground that such a proceeding would be in 
 fraud of the reference, issued an injunction forbidding it to be 
 done.^ 
 
 An award gave damages for injury to a market-garden by 
 neighboring gas-works. The evil was continued, and the court 
 granted a perpetual injunction to restrain the gas company ; 
 and this, too, although the arbitrator had been authorized to 
 say what should be done, and had given no directions.^ 
 
 If a suit at law has been instituted, application may also, in 
 a proper case (as, if there be fraud, partiality, misconduct, 
 or mistake, or other objection not available in defence in the 
 action), be made to a court of equity to enjoin further prose- 
 cution of the suit.^ 
 
 Pleading an AvraxA in Bax to a Bill in Equity. — An award may 
 
 be pleaded in bar to a bill to set aside the award and open the 
 account.* 
 
 A plea of an award is not only good to the merits of the 
 case, but to the discovery sought by the bill. For a defendant 
 is not obliged to set out the full account after an award has 
 been made in respect of that very account, which award remains 
 conclusive as to all parties until some error be shown in taking 
 the account, or partiality or other misconduct on the part of 
 the arbitrator.^, 
 
 1 Wood V. The North Staffordshire Railway Company, 13 Jur. 466. 
 
 2 Broadbent v. The Imperial Gas Company, 7 De Gex, M. & G. 436; 26 
 L. J. Chy. 276; affirmed, 6 H. of L. Cas. 600; 29 L. J. Chy. 377. 
 
 ' Sisk V. Garey, 27 Md. 401 ; Cleland v. Hedly, 5 R. 1. 163. 
 * Russell on Arb., 3d ed. p. 552; Pusey v. Desbouvrie, 3 P. Wms. 815, per 
 Lord Talbot, Chano. ; Parringdon v. Chute, 1 Vern. 72. 
 6 Russell, ubi supra; Tittenson v. Peat, 8 Atk. 529. 
 
610 PLEADING AND PEACTICE. 
 
 But an answer supporting the plea should specifically deny 
 the charges in the bill impeaching the award.^ 
 
 If the bill to set aside the award alleges fraud, corruption, or 
 mistake of the arbitrator or of a party, these allegations must 
 be denied by averments in the plea, and by an answer in sup- 
 port of the plea. So every matter averred in the bill against 
 the award must be denied in the same manner. Simply plead- 
 ing the award is insufficient.^ 
 
 Some doubt has been thrown by the Court of Exchequer upon 
 the propriety of putting into the plea averments denying the 
 matter charged in the bill.^ But Lord Chancellor Bldon sub- 
 sequently disapproved of the ruling in these cases, saying that 
 it was not easy to support them, and that there was " hardly 
 one point of equitable proceedings with regard to pleas, which 
 it was not extremely difficult to reconcile to them." * Where- 
 fore, says Eussell, " it is apprehended that the doctrine pre- 
 viously laid down, as cited from Lord Redesdale, of the 
 necessity of such averments, is the law at the present day." ^ 
 
 If the defendant swear that the accounts taken by the arbi- 
 trators are true accounts, but do not answer to particular 
 matters of impeachment alleged in the bill, the coiirt will 
 overrule the plea.^ 
 
 A bill to set aside an award charged collusion and want 
 of notice to the plaintiff. The plea averred the arbitration, full 
 notice to the plaintiff, presence of the plaintiff's agent, and a 
 full discussion before the award was made ; an answer further 
 averred the fairness of the transaction. Lord Kenyon, M. R., 
 held the plea good.^ 
 
 1 Russell, p. 655. 
 
 2 Russell on Arb., p. 554 ; Evans v. Harris, 2 Ves. & B. 861, 364 ; Butcher v. 
 Cole, cited in Edmundson v. Hartley, 1 Anst. 99 ; Gartside v. Gartside, 3 id. 735. 
 
 3 Pope V. Bish, 1 Anst. 59 ; Edmundson v. Hartley, ib. 97. 
 
 4 Bayley v. Adams, 6 Ves, Jr. 586, at p. 598. 
 9 Russell on Arb., 3d ed. p. 555. 
 
 » South Sea Company v. Bumstead, 2 Eq. Ca. Abr. 80 ; 3 Vin. Abr. Arb. 
 140, pi. 39. 
 
 ' Butcher v. Cole, cited in Edmundson v. Hartley, 1 Anst. 99. 
 
PLEADING AND PRACTICE. 611 
 
 A bill to set aside an award suggested fraud on the part of 
 the arbitrator. The defendant pleaded the award, and insisted 
 that it was fair. The answer was very loose, and the submis- 
 sion provided for amending errors of the arbitrators. The 
 court directed the plea to stand for an answer, with liberty to 
 except.^ 
 
 So, again, a bill sought to open an account for fraud. The 
 defendant pleaded an award and release, and his plea was 
 ordered to stand for an answer, with liberty to except.^ 
 
 The subject of pleading an award in bar, when made under 
 an agreement entered into after the bill has been filed, has 
 been already discussed.' 
 
 Vacating an Award by Motion. — It will often happen that a 
 .party to a submission is dissatisfied with an award, and wishes 
 to have it affirmatively declared void by a competent authority, 
 without waiting to avail himself of his objection to its validity 
 in any suit which may at any time be brought upon it. In 
 such case, if the award be brought within the jurisdiction of a 
 court, either because it is made pursuant to a rule of court, or 
 where it has been made under a statute which makes it return- 
 able into court and it has actually been returned into court, 
 the objecting party can usually avail himself of his objection 
 either by advancing it in opposition to any motion of his oppo- 
 nent to have the award accepted, or by making it the ground 
 of an independent and original motion upon his own part to 
 have the award rejected or declared void. The rule at com- 
 mon law, which may, of course, be varied by statute, allows 
 any matter which could be alleged by way of defence in a suit 
 at law upon the award, to be made the basis of a motion to set 
 it aside. 
 
 So, likewise, it has been held that when the parties have 
 agreed in their written submission that judgment shall be en- 
 
 1 Kampshire v. Young, 2 Atk. 154. 
 
 2 Burton v. Ellington, 3 Bro. C. C. 196. 
 8 Ante, Chapter XVIII. 
 
612 PLEADING AND PRACTICE. 
 
 tered on the award, the court may upon motion vacate the 
 award, on the ground that the arbitrators exceeded their 
 powers,^ or imperfectly executed them, or made an award 
 whicli was not mutual, or not final, or not definite.^ At the 
 hearing upon such a motion the court may go behind the sub- 
 mission and award, and admit testimony concerning the pro- 
 ceedings before the arbitrators.^ 
 
 At common law the misconduct of the arbitrator, not being 
 an available defence in a suit on the award, ought not properly 
 to be made the ground of a motion, though in England it can 
 now be thus availed of by virtue of the Statute 9 & 10 Will. 
 III. c. 15, or of the Common Law Procedure Act of 1854.* And 
 so also it was held in New Hampshire that an award, where the 
 submission is made a rule of court, may be set aside on motion, 
 upon the grounds of misconduct, corruption, or mistake on the 
 part of the arbitrators.^ And acceptance of a report of referees 
 may be opposed for fraud or partiality, on the part of the referees.® 
 
 In the Supreme Court of New York, Chief Justice Savage 
 said that the court had power to vacate an award, upon mo- 
 tion : " 1. If procured by corruption, fraud, or other undue 
 means ; 2. If there was corruption in the arbitrators or either 
 of them ; 3. If the arbitrators were guilty of misconduct, in 
 refusing to postpone the hearing for good cause, or in refus- 
 ing proper evidence, or in other misbehavior affecting the rights 
 
 1 Adams v. Adams, 8 N. H. 82 ; In re Williams, 4 Denio, 194, 2 K. S. 542, 
 § 10; Kussell on Arb., 3d ed. p. 661 ; Tandy v. Tandy, 9 Dowl. 1044; Boodle 
 u. Da-ries, 3 Ad. & EI. 200 ; Price v. Popkin, 10 id. 139 ; Inhabitants of North 
 Yarmouth v. Inhabitants of Cumberland, 6 Greenl. 21. 
 
 2 In re Williams, 4 Denio, 194; Warfield v. Holbrook, 20 Pick. 531 ; Russell 
 on Arb., 3d ed. p. 660 ; In re Tribe & Upperton, 3 Ad. & El. 295 ; Martin v. 
 Burge, 4 Ad. & El. 973 ; In re Marshall & Dresser, 3 Q. B. 878 ; Winter v. Mun- 
 ton, 2 Moore, 723 ; Samuel v. Cooper, 2 Ad. & El. 752 ; Rees v. Waters, 16 Mee. 
 & W. 263. 
 
 3 In re WilUams, 4 Denio, 194; Butler v. Mayor, &c. of New York, 7 Hill, 329 
 (Court of Errors). 
 
 ' Russell on Arb., 3d ed. p. 642; Veale v. Warner, 1 Saund. 327 c, notes. 
 
 6 Elkins t). Page, 45 N. H. 310; Fletcher v. Hubbard, 43 id. 58. 
 
 6 Inhabitants of North Yarmouth v. Inhabitants of Cumberland, 6 Greenl. 21. 
 
PLEAD JNG AND PRACTICE. 613 
 
 of either party ; 4. If the arbitrators exceeded their powers, or 
 the award is not final." ^ 
 
 Some English cases also hold that corruption or partiality of 
 the arbitrator,^ or his secret interest in the subject-matter of 
 the arbitration,^ constitute proper grounds for a motion to set 
 aside his award. 
 
 So, also, if either party has fraudulently concealed any mat- 
 ter which he was bound to disclose, or has wilfully misled or 
 deceived the arbitrator.* 
 
 In Maryland it was held in 1802 that " every ground of relief 
 in equity against an award is equally open " in a court of law 
 " upon motion in a summary way." ^ 
 
 In Vermont it has been held that when the court hs^s power 
 to accept or reject a report of referees, any thing may be alleged 
 against it which would be a good ground for relief against an 
 award of arbitrators at law or in equity, or would be sufficient, 
 according to the English practice, to set aside an award, when 
 the submission is made a rule of court.^ 
 
 But a report will not be vacated for matters curable by amend- 
 ment.^ 
 
 If the award be so altogether void that it must be considered 
 to be a nullity, as, for example, if it has been made after the au- 
 thority of the arbitrator has been revoked ; and if no advantage 
 can be taken of it, except by means of a suit upon it, which, of 
 course, must fail, the court will not usually interfere to set it 
 aside .^ But it is otherwise if the award can be availed of in 
 any other manner than by suit upon it.^ 
 
 1 Smith V. Cutler, 10 Wend. 589. 
 
 2 Tittenson v. Peat, 3 Atk. 629 ; Morgan v. Mather, 2 Ves. Jr. 15. 
 ' Earie v. Stocker, 2 Vera. 251. 
 
 * Russell on Arb., 3d ed. p. 662; South Sea Company v. Eumstead, 2 Eq. 
 Cas. Abr. 80 ; Mitchell v. Harris, 2 Ves. Jr. 129 a ; Metcalfe v. Ives, 1 Atk. 63 ; 
 Gartside v. Gartside, 3 Anst. 735. 
 
 5 Goldsmith's Adm'r v. Tilly, 1 Harris & J. 361. 
 
 6 Johns V. Stevens, 3 Vt. 308. 
 ' Ladd V. Lord, 36 Vt. 194. 
 
 8 Russell on Arb., 3d ed. p. 657. 
 
 ' Ibid. ; Doe d. TurnbuU v. Brown, 5 Barn. & Cress. 384 ; Hobbs o. Ferrars, 
 8 Dowl. 779; WorraU v. Deane, 2 id. 263. 
 
614 PLEADING AND PRACTICE. 
 
 It is said that the courts will not set aside an award on motion, 
 iinless it be clearly void upon the grounds alleged against it; 
 because then it is at an end altogether. Whereas, if a suit be 
 brought upon it, the question of validity may usually be more 
 formally raised, and taken to a court of error. ^ 
 
 The motion must be made in open court. A judge at cham- 
 bers is incompetent to entertain such a request. Though in 
 vacation a judge may grant a stay of all proceedings under the 
 award until the next term, in order to allow an opportunity for 
 making the motion for avoidance in open court.^ 
 
 Discovery of Ne'w Matter as a Ground of a Motion to set aside 
 an Award. — " How far," says Russell, " when there has been no 
 fraud or concealment, the mere discovery of new material matter 
 will be a ground for setting aside the award, does not seem 
 clear." ^ 
 
 In an Irish court of equity it has been said that the acci- 
 dental omission to present a claim within the scope of the 
 reference furnishes a fair case for relief in equity.* Upon the 
 other hand it has been considered in England by the Court of 
 Exchequer to be very doubtful whether the fact that the plain- 
 tiff was ignorant of a material part of his case until after the 
 award had been made, would constitute a sufficient cause for 
 letting in further inquiry.^ 
 
 Lord Chancellor Hai'dwicke once said : " I will not say that 
 in no case whatever new matter discovered after the award 
 will affect it. But I do not know any case where it has been 
 allowed. An award differs from a decree in this respect. A 
 decree is compulsory ; the parties cannot bring on their cause 
 or delay it before the court. But an award is a judgment of 
 judges of the parties' own choosing, and they need not submit 
 until fully approved of the merits of their case ; and if they do, 
 
 1 Russell on Arb., 3d ed. p. 681 ; Cock v. Gent, 13 Mee. & W. 364 ; Stalworth 
 V. Inns, 13 id. 466. 
 
 2 Russell on Arb., 3d ed. p. 642 ; Cromer v. Churt, 15 Mee. & W. 310. 
 
 3 Russell on Arb., 3d ed. p. 662. 
 
 * Brophy v. Holmes, 2 MoUoy, 1. 
 ' Gartside v. Gartside, 3 Anst. 735. 
 
PLEADING AND PRACTICE. 615 
 
 it is their own fault. But justice in courts must be done in its 
 course, and neither party can prevent it. It seems, therefore, of 
 dangerous consequence to say that new matter discovered will 
 affect an award, as it will do a decree upon a bill of review." ^ 
 
 In a case at common law it was said that the naked allegation 
 of the discovery of new evidence after the making of the award 
 was certainly not sufficient ground for a motion to set it aside. 
 The affidavit should explicitly show what the new evidence is, 
 that it could not have been previously obtained by reasonable 
 diligence, and that there is some surprise.^ 
 
 The setting up of an unexpected case by one's opponent, be- 
 lieved to be false, is no ground for setting aside an award on 
 motion, unless application was made to the arbitrator at the 
 hearing to give time for inquiry.^ 
 
 Where the parties had been examined before the arbitrators 
 by consent, after the award had been made one party dis- 
 covered that his opponent was a convicted felon, and, therefore, 
 incompetent to testify, and on this ground he moved the court 
 to set aside the award. The court refused the motion, laying 
 some stress, however, upon the fact that the arbitrator stated 
 that his judgment was made up wholly independently of the 
 testimony of the objectionable party.* 
 
 The allegation that a witness had wilfully given corrupt and 
 false testimony before the arbitrator, was once refused to be 
 treated as a sufficient basis for a motion to set aside the award. 
 For, it was said, the witness might be proceeded against for per- 
 jury, and it would be setting a mischievous example to interfere 
 at that time.^ 
 
 It has been declared in Connecticut, in an old case, that the 
 discovery of new evidence, or the fact that the case might be 
 
 1 Russell, 3d ed. p. 663, citing Ld. Montgomery v. Buckley, Joddrell's MSS., 
 cited in Heming v. Swinnerton, 1 Coop. C. C. 418. 
 
 2 Eardley v. Ofley, 2 Chitt. 42; Reynolds v. Askew, 5 Dowl. 682. 
 Solomon v. Solomon, 28 L. J. Excli. 129. 
 
 ♦ Smith V. Sainsbury, 9 Bing. 31. 
 
 5 Scales V. East London Water-works, 1 Hodges, 91. 
 
616 PLEADING AND PRACTICE. 
 
 put on a different footing by new evidence, are no grounds for 
 an application to a court of chancery to set aside an award. ^ 
 
 And in New York the court said that an award would not be 
 set aside by reason of the discovery of new evidence, except in 
 cases where the excuse for prior non-discovery is very strong 
 indeed. The mere existence of an error in the award, as mani- 
 fested by such new evidence, is not a sufficient ground.^ In this 
 instance the discovery was of a receipt, and the court refused 
 to open the controversy afresh, " without something more than 
 the mere simple allegation of a discovery and production of a 
 receipt." The applicant rested on this assertion " without any 
 proof of loss, search, or discovery, except what arose from the 
 non-production of the paper before the arbitrators, and of its 
 production " at this tinje. 
 
 Not only the alleged new facts, but also the evidence already 
 presented, should be brought before the court on an application 
 for a new trial, on the ground of newly discovered evidence. 
 For the court must be enabled to see that the matter alleged to 
 be new is really substantially so, and likewise that, if admitted, 
 in connection with that before in the case, a different result 
 would have been produced.^ 
 
 The Element of Time in Connection ■with New Evidence. — De- 
 lay of four years, not satisfactorily accounted for, occurring 
 after the discovery of new evidence and before application 
 made to set aside an award on the ground of such discovery, 
 is such laches that the application cannot be granted. The 
 exact period within which the petition for relief should be 
 preferred is said not to be "limited or defined by any 
 positive rule of law ; but it must certainly be done within a 
 reasonable time." And the court, by analogy to certain stat- 
 utory provisions in the matter of limitations, name the period 
 of " one year after such discovery has been made " as a time 
 
 1 Allen V. Eanney, 1 Conn. 569. 
 
 2 Todd V. Barlow, 2 Johns. Ch. 551. 
 
 ' Brann v. Vassalboro', 50 Maine, 64. 
 
PLEADING AND PEACTICE. 617 
 
 within which the application based upon such discovery should 
 be made. " This gives the petitioner ample time to make 
 all requisite preparation for action on his part; and a fair 
 regard for the rights of the adverse party requires that it 
 should not be extended to any greater length." ^ 
 
 In the third term after an award had been made the plaintiff 
 moved to set it aside, supporting the motion by the affidavit 
 of a witness to the effect that he had sworn before the arbitra- 
 tor that he had supplied certain goods to the defendant, whereas 
 in fact, by an arrangement between them, he had not delivered 
 the goods ; also the plaintiff swore that he had only in this 
 current term obtained knowledge of this fact. The court 
 refused the application, partly by reason of the lapse of time, 
 but partly also on the ground that the witness might have 
 been cross-examined before the arbitrator, and that to allow 
 such an affidavit to suffice to set aside an award, would be to 
 open the door to innumerable frauds.^ 
 
 Where the objection applied to a decision in respect of a 
 claim of only £2 2s. the court refused a rule to set aside the 
 award, on the ground that de minimis non curat lex? 
 
 Effect of vacating a Report in a Lis pendens. — If a report of 
 referees rendered in a pending cause is set aside by reason 
 of some defect which affects its validity, and neither party 
 asks for a recommitment, the cause will stand for trial in the 
 court in which it is pending.* 
 
 When judgment on the repoi't of a referee is reversed by the 
 court, and no reasons are given, it will be presumed that the 
 reversal was based on an error in a matter of law. His finding 
 of facts will be assumed to be correct.^ 
 
 The English Rule as to setting aside an A^vard by Proceedings 
 
 1 Inhabitants of Plymouth v. The Russell Mills, 7 Allen, 438. 
 
 2 Pilmore v. Hood, 8 Dowl. 21. 
 
 3 Brown v. Hellerby, 1 Hurl. & Nor. 729 ; 26 L. J. Exch. 217. 
 
 4 James v. Thurston, 1 CUff. C. C. 367. 
 
 6 Marco v. Liyerpool & London F. & L. Ins. Co., 85 N. Y. 664. 
 
618 PLEADING AND PRACTICE. 
 
 in Equity. — The English rule concerning the jurisdiction which 
 will be assumed by a court of equity for the purpose of vacating 
 an award is said by Russell to be that the court will entertain 
 the bill equally whether the award be made pursuant to a sub- 
 mission in pais, or under a statute, or by rule of court. If 
 the award be returnable into court, the remedy by bill in equity 
 is collateral to the remedy by a motion to set aside, and is 
 more extensive since it will lie for all causes whatsoever, 
 whereas it has been already seen that a motion cannot always 
 be availed of.^ 
 
 Some of the cases in which relief may be had in equity, but 
 cannot be otherwise obtained, may be here noted. The Court 
 of Common Pleas, refusing to set aside or refer back an award 
 or to alter the order of reference on the ground of a serious 
 clerical mistake in copying an account forming part of the 
 award, nevertheless suggested that relief might be had in 
 equity.^ 
 
 In an old case it was said that on a bill seeking to set aside 
 an award and nothing more, a court of chancery would allow 
 the complainant to go into no legal objections, save only par- 
 tiality and corruption. But if the bill were for an account, and 
 sought to set aside the award in order to let in the account, 
 then it was open to the complainant to show legal objections.^ 
 Lord Chancellor Hardwicke says that when a bill is filed to 
 set aside an award and for an account, since the plaintiff is 
 entitled to an account unless the award be a bar, the court 
 will enter into all the legal objections to the award which a 
 court of law would entertain, it being insisted on by the plea 
 to prevent a general account.* 
 
 A bill in equity was filed to set aside an award of an arbi- 
 trator in a matter of account, on the ground that he had re- 
 
 1 Russell on Arb., 3d ed. pp. 689, 695, 696. 
 ■' Winn V. Nicholson, 7 C. B. 819. 
 " Champion v. Wenham, Arab. 245. 
 * Lingood v. Eade, 2 Atk. 501. 
 
PLEADING AND PRACTICE. 619 
 
 ceived in evidence and acted upon a certain account as an 
 account stated, without sufficient evidence of its possessing 
 tliat character, refusing to call for books containing prior 
 transactions ; and that he had refused to give credit for sums 
 paid in those prior transactions and not included in the said ac- 
 count. Fraud in tlie other party and misconduct of the arbitrator 
 were also alleged, but were not supported by proof. Lord Chan- 
 cellor Cottenham held that the arbitrator had power to decide 
 whether or not the account was an account stated, and that 
 the plaintiff in equity had failed to prove the credits claimed. 
 He also said that he disposed of the case on the facts, since in 
 the existing state of the authorities as to the extent of the 
 jurisdiction of chancery, disposing of it on the point of law 
 would hardly be satisfactory. But, he added, " what is there 
 to give a court of equity any peculiar jurisdiction in case of a 
 judgment founded upon such an award, which it would not 
 have had, if it had been founded upon a verdict ? " " That 
 failure at law from the errors of the judge or the jury, or in 
 the conduct of the cause, will not per se give this court juris- 
 diction, is certain. Does a different rule prevail where the 
 failure is attributable to any conduct in the arbitrator ?" ^ 
 
 Though a bill will not lie to set aside an award on a ques- 
 tion of fact determined by the arbitrators, yet evidence of the 
 merits will be let in so far as it throws light on their con- 
 duct.2 
 
 The execution of mutual releases after the rendition of the 
 award does not necessarily preclude inquiry into its validity.^ 
 But after the lapse of several years a party, who has received 
 the sum awarded under a submission of all matters in differ- 
 ence and given a general release, will not be allowed to main- 
 tain a bill against the other party for a general account on the 
 
 1 Chuck V. Cremer, 2 PhiU. 477; 17 L. J. Chy. 287. 
 
 ^ Goodman u. Sayers, 2 Jac. & W. 249, 259 ; and see Attorney- General v, 
 Jackson, 5 Hare, 355. 
 
 3 Morgan v. Pindar, 3 Eep. in Chy. 76. 
 
620 PLEADING AND PEACTICE. 
 
 ground that only one specific matter was in fact disposed of 
 by the arbitrators.^ 
 
 A court of equity will sometimes refuse to interfere where 
 the rule of a common-law court, under which an award is 
 made, contains a clause empowering the court to refer the 
 award back.^ 
 
 The American Rule as to setting aside an A-ward by Proceedings 
 in Equity. — It would appear that some, at least, of the courts 
 in the United States are not inclined to adopt the English rule 
 concerning the jurisdiction of courts of equity to set aside an 
 award. It has been held that if the objections to the award 
 are of such a character as to be open to the party seeking to 
 avail of them by way of defence to an action at law upon the 
 award, then a court of equity will not interfere.^ 
 
 Charges in the Bill. — A bill to set aside an award ought to 
 state fully both the ground on which the impeachment is based 
 and all the circumstances thereof.* 
 
 Demurrer to the Bill. — If the bill impeaches the validity of 
 the award upon grounds which the court cannot entertain, e.g. 
 the erroneous judgment of the arbitrator, a demurrer to the 
 bill is the proper mode of raising the question of the sufBciency 
 of the objections.^ 
 
 Making an Arbitrator a Defendant. — An arbitrator may be 
 made a defendant to a bill to set aside an award, wherein his 
 corruption or gross misconduct is charged; the object being 
 to fasten upon him the payment of costs.® 
 
 1 Jones V. Bennett, 1 Bro. P. C. 528. 
 
 ' Londonderry & Enniskillen Eailway Company v. Leishman, 12 Beav. 423. 
 
 2 Mickles v. Thayer, 14 Allen, 114 ; Eerson v. Drew, 19 Wise. 225 ; Meloy v. 
 Dougherty, 16 id. 269. 
 
 * Russell on Arb., 3d ed. p. 699 ; Tittenson v. Peat, 3 Atk. 529 ; Routh b. 
 Peach, 2 Anst. 519 ; 3 id. 637. 
 
 5 Russell on Arb., 3d ed. p. 700 ; Pitcher v. Rigby, 9 Price, 79. 
 
 5 Russell on Arb., 3d ed. pp. 465, 466, 701 ; Scott v. The Liverpool Corpora- 
 tion, 25 L. J. Chy. 227 j Chicot «. Lequesne, 2 Ves. Sr. 315 ; Ward v. Periam, 
 cited in the last case ; Lord Lonsdale v. Littledale, 2 Ves. Jr. 451 ; Steward v. 
 East India Company, 2 Vern. 380. 
 
PLEADING AND PRACTICE. 621 
 
 If an arbitrator be properly made a party, on a suggestion 
 of his misbehavior, it is said by Lord Chancellor Northington 
 to be a notorious fixed rule, that the plaintiff may read his 
 answer against his co-defendant who is interested in the award 
 and seeks to uphold it.^ 
 
 ' Kussell, ubi supra, citing Rybott v. Barrell, 2 Eden, 131, 1 Coop. C. C. 
 
CHAPTER XXIII. 
 
 COSTS. 
 
 I. — English Cases. 
 
 Different kinds of costs. 
 
 Power of the arbitrator where the submission is silent as to costs. 
 
 Power over costs expressly conferred by the submission. 
 
 Apportionment of costs by the arbitrator. 
 
 The arbitrator's action in respect of his own fees. 
 
 Stipulation that costs shall abide the event. 
 
 II. — The American Cases. 
 
 Distinction between different kinds of costs. 
 
 The power of arbitrators over the costs of the arbitration. 
 
 The power of arbitrators over the costs of suit. 
 
 An eccentric decision. 
 
 Omission to find costs in the award. 
 
 Stipulation that costs shall abide the event. 
 
 Form of an award of costs. 
 
 An award merely of costs. 
 
 I. — English Cases. 
 
 Different Kinds of Costs. — It is matter of some difficulty, 
 especially in the United States, to assert with accuracy what is 
 the power of arbitrators in the matter of costs. This difficulty 
 arises in part from inconsistent decisions, in part from laxity 
 of phraseology in the language of the adjudications, often re- 
 sulting in the confusion of certain distinctions which ought to 
 be carefully preserved. In England the subject has been more 
 philosophically treated, but even in England it is not wholly 
 free from confusion. In that country the word costs includes 
 three several classes of charges : to wit, costs of the cause ; 
 costs of the reference ; costs of the award. The costs of the 
 cause exist only where a lis pendens forms the whole or a part 
 
COSTS. 623 
 
 of the subject-matter of the submission, or where the submis- 
 sion is made a rule of court. Russell says : " When an 
 award, and not merely a certificate, is to be made, the costs of 
 the cause comprise the costs incurred in the cause up to the 
 time of the submission, the costs of the order of reference, 
 and of making it a rule of court, and the costs of ulterior pro- 
 ceedings in the cause, if any, after the award." Apparently 
 also they include the costs of witnesses actually summoned for 
 the trial, present and ready to testify, before the submission is 
 made. Concerning costs of reference the same writer says : 
 " Ordinarily the expense incurred by the parties of the whole 
 inquiry before the arbitrator, whether with respect to the mat- 
 ters in the cause or the matters out of it, are costs of the 
 reference. They are taxed usually as between party and 
 party. They include the costs of witnesses and the cost of a 
 brief in the cause referred, prepared after the reference for the 
 purposes of the arbitration." " The costs of the award are 
 the amount of the arbitrator's charges, which are usually paid 
 to him when the award is taken up." ^ 
 
 Power of the Arbitrator -where the Submission is silent as to 
 Costs. — Pursuing these distinctions, the English rule is that 
 " When a cause alone or a cause and all matters in difference 
 are referred, and nothing is said in the submission respecting 
 costs, the arbitrator has an implied authority to adjudicate 
 concerning the costs of the cause, but not of the reference or 
 award ; ^ and each party must bear his own expenses of the 
 reference, and is liable to half the costs of the award." ^ 
 
 As a corollary to the foregoing we have the rule that, if the 
 award be silent on the question of costs, the costs of the cause 
 
 1 Russell on Arb., Sded. pp. 355-357. 
 
 ^ Ibid., citing Mrth v. Kobinson, 1 B. & C. 277 ; Taylor v. Lady Gordon, 9 
 Bing. 570 ; Strutt a. Rogers, 7 Taunt. 214 ; Stratton v. Green, 8 Bing. 437 ; 
 Candler v. Fuller, Willes, 62; Roe d. Wood u. Doe, 2 Term, 644; Bracher v. 
 Cotton, Barnes, 123 ; Hartneli v. HIU, Forrest, 73. 
 
 » Russell on Arb., 3d ed. p. 358, citing Taylor v. Lady Gordon, 9 Bing. 
 570; Grove v. Cox, 1 Taunt. 165; Bell v. Benson, 2 Chitty, 157. 
 
624 COSTS. 
 
 follow the decision of the cause, even though other matters in- 
 cluded in the submission be determined in favor of the party 
 against whom the cause is decided.^ 
 
 Power over Costs expressly conferred by the Submission. — 
 " On reference of a cause and all matters in difference, if there 
 be an express clause giving the arbitrator power over costs, 
 and there appear nothing in the context to limit the generality 
 of the power, the costs of the reference and award, as well as 
 of the cause, seem to be submitted to his award." ^ 
 
 It is said that he is not obliged, unless he please, to give 
 any direction concerning the costs, although power to do so is 
 expressly conferred. Yet silence as to costs is not always safe 
 in such cases, for, says Russell, " in many cases it is probable 
 that the courts may say the award is not final unless the arbi- 
 trator decides something respecting them." ^ 
 
 In this connection the language of the submission must be 
 carefully noted. If it be imperative in form, it will be positively 
 incumbent upon the arbitrator to exercise the power which it 
 confers upon him. Thus, if the submission specially stipulates 
 that the arbitrator " shall ascertain " the costs, he must specify 
 the amount in the award.* So also where it is provided that the 
 costs shall be in the discretion of the arbitrator, and " shall be 
 defrayed as he shall direct." ^ 
 
 If the power be given to the arbitrator, " his discretion is 
 subject to few limitations." ^ 
 
 If the arbitrator has unlimited discretion to award concern- 
 ing costs, he may name a gross sum to be paid by a party, and 
 
 1 Eussell on Arb., 3d ed. p. 360 ; Young v. Qye, 10 Moore, 198 ; Mackin- 
 tosh V. Blyth, 1 Bing. 269. 
 
 2 Eussell on Arb., 3d ed. p. 359; citing Strutt v. Rogers, 7 Taunt. 214; 
 Wood V. O'KeUy, 9 East, 436. 
 
 3 Russell, pp. 360, 361. 
 
 * Morgan v. Smith, 1 Dowl. N. 8. 617 ; 9 Mee. & W. 427 ; Angus v. Red- 
 ford, 2 Dowl. N. B. 735 ; 11 Mee. & W. 69 ; Grenfell v. Edgcome, 7 Q. B. 
 661. 
 
 ^ Richardson v. Worsley, 5 Exch. 613. 
 
 « Russell, p. 361. 
 
COSTS. 625 
 
 unless the amount be so excessive as to be evidence of par- 
 tiality, it will not be interfered with by the court.^ 
 
 He may generally direct the costs to be taxed by an officer 
 of the court ;^ or may simply give costs without saying by 
 whom they shall be taxed ; in which case the regular officer 
 will tax them.^ 
 
 But if the costs are left to the discretion of the arbitrator, 
 " who shall ascertain the same" he must determine the amount 
 himself.* 
 
 Apportionment of Costs by the Arbitrator. — The arbitrator 
 may apportion the costs between the parties as he shall see fit.* 
 
 If he has power over the costs of the cause and of the 
 reference, he may direct that one of the parties shall bear the 
 charge of preparing such legal instruments as may be required 
 by the award to be executed.^ 
 
 The Arbitrator's Action in Respect of his ovrn Pees. — Russell 
 states that it is the custom in England, and probably the same 
 habit prevails universally in the United States, for the arbitrator 
 to withhold his award until his own fees have been paid to 
 him. Whether or not he ought to specify their amount, and 
 embody orders concerning their payment in the award itself, 
 seems to be a matter somewhat in dispute. Eussell re- 
 gards the practice as very reprehensible, but apparently as not 
 wholly illegal.'^ He certainly cannot direct a certain specified 
 sum to be paid into his hands, including in it an indefinite 
 
 1 Turner v. Rose, 1 Ld. Kenyon, 393 ; Shephard v. Brand, Ca. Temp. Hard- 
 wioke, 53 ; 2 Barnard. 463 ; Anon., 1 Chitty R. 88. 
 
 2 Pratt V. Salt, Ca. Temp. Hardw. 161; Winter v. Garlick, 6 Mod. 195; 1 
 Salk. 75 ; Pedley v. Goddard, 7 Term, 73. 
 
 3 Browne v. Marsden, 1 H. Bl. 223 ; Stokes v. Lewis, 2 Smith, 12 ; Dudley 
 V. Nettlefold, 2 Stra. 737 ; Thorpe v. Cole, 4 Dowl. 457 ; Stephenson v. Brown- 
 lug, Barnes, 56. 
 
 * Morgan v. Smith, 1 Dowl. s. s. 617. 
 
 s Cargey v. Aitcheson, 2 Barn. & Cress. 170; Young u. Bulman, 13 C. B. 
 623. 
 
 « Boyes v. Black, 13 C. B. 652, 669. 
 
 "> Russell on Arb., 3d ed. p. 634 ; Seceombe v. Babb, 6 Mee. & W. 129 ; 
 Daubuz V. Rlckman, 4 Dowl. 129 ; Kendrick v. Davies, 5 id. 693. 
 
 40 
 
626 COSTS. 
 
 amount to be retained for himself.^ The courts will not set 
 aside or refer back an award because the arbitrator has stated 
 in it his own fees, except upon an affidavit that the amount is 
 excessive.^ But if this portion of the award be objected to 
 for excess or upon other good and sufficient reasons, it will, 
 where the court has jurisdiction, be singled out and set aside. 
 For it is said that the arbitrator ought not to be a judge in his 
 own cause, and should not make an order naming any definite 
 sum for his fees to constitute a part of his award.^ How far 
 the courts will go towards enforcing by attachment an order of 
 this nature is left in some doubt. In one case the attachment 
 was granted ; * but a later case took a contrary ground.^ 
 
 stipulation that Costs shall abide the Event. — It is the English 
 rule that if the submission provides that the " costs " are to 
 abide the event of the award, the subject of costs is taken en- 
 tirely out of the control of the arbitrator, and the costs both 
 of the reference and the award will follow the event of the 
 award.^ 
 
 II. — The American Cases. 
 
 Distinction between Different E:inds of Costs. — The adjudica- 
 tions of the courts of the United States can hardly be said to 
 have given to the rules concerning costs any very great degree 
 of clearness or consistency. A distinction is generally taken 
 between the costs of the reference or arbitration and the costs 
 
 1 Eobinson v. Henderson, 6 M. & S. 276. 
 
 " Rose V. Redfern, 10 W. B. 91. 
 
 3 Russell on Arb., 3d ed. p. 365; George v. Lousley, 8 East, 12; Miller v. 
 Robe, 3 Taunt. 461 ; Fitzgerald v. Graves, 5 id. 341 ; Barrett v. Parry, 4 Id. 657 ; 
 Brazier v. Bryant, 2 Dowl. 600; Moore v. Darley, 1 0. B. 445; In re Coombs, 
 4 Exch. 839. 
 
 1 ThrelfaU v. Fanshawe, 19 L. J. Q. B. 334 ; see Fernley v. Branson, 20 L. J. 
 Q. B. 178. 
 
 5 Parkinson v. Smith, 30 L. J. Q. B. 178. 
 
 8 RusseU on Arb., 3d ed. p. 368 et seq. ; Wood v. O'Kelly, 9 East, 436 ; Ken- 
 drick V. Davies, 5 Dowl. 693 ; Hemsworth v. Brian, 1 C. B. 131 ; TJnsted v. Kidd, 
 1 Chitty R. 526 ; Cockburn v. Newton, 9 Dowl. 676 ; Clarke u. Owen, 2 Hurl. 
 & Nor. 324. 
 
COSTS. 627 
 
 of a pending cause submitted or referred. But further than 
 this it h^s not generally been thought worth while to draw 
 lines of separation.^ But greater difficulty is experienced by 
 reason of the inconsistency of the decisions of the various tri- 
 bunals than by reason of any failure to establish nice distinc- 
 tions. 
 
 The PoTwer of Arbitrators over the Costs of the Arbitration. — 
 Chief Justice Shaw, in 1847, laid it down as "judicially settled 
 in this Commonwealth that without special authority arbitra- 
 tors under an agreement in pais, where no cause is pending, 
 have no power to award costs of arbitration." ^ 
 
 But it has been held in Massachusetts that under a statutory 
 submission of all demands, entered into before a justice, the 
 arbitrators may order the losing party to pay the costs of court 
 and of the arbitration. ^ 
 
 The decisions of some other States are to the same effect, 
 denying to arbitrators any power over costs.* Though it should 
 be borne in mind that if they exceed their authority by insert- 
 ing orders respecting costs, such orders may probably be sep- 
 arable, leaving the rest of the award good.^ 
 
 But a considerable number of authorities take the opposite 
 ground ; and hold that the power to award the costs of the 
 arbitration is incident to the authority of the arbitrators, and 
 that it is not essential to its existence that it should be con- 
 ferred in terms by the submission.® In older cases, as it has 
 
 1 Vose V. How, 13 Mete. (Mass.) 243. 
 
 ^ Vose V. How, 13 Mete. 243. To the same effect are the following Massachu- 
 setts cases : Maynard v. Frederick, 7 Cush. 247 ; Shirley v. Shattuck, 4 id. 470 ; 
 Peters v. Pierce, 8 Mass. 398 ; Harrington v. Brown, 9 Allen, 579. 
 
 ' Harden v. Harden, 11 Gray, 435; and see Jones v. Carter, 8 AUen, 
 431. 
 
 4 Gordon v. Tucker, 6 Greenl. 247 ; Walker v. Merrill, 13 Maine, 173 ; Day 
 V. Hooper, 51 id. 178 ; Hanson v. Webber, 40 id. 194 ; Porter v. Buckfield Branch 
 Railroad, 32 id. 539 ; Dundon v. Starin, 19 Wise. 261. 
 
 5 Porter v. Buckfield Branch Railroad, 32 Maine, 539. 
 
 ^ Nichols V. Rensselaer County Mut. Ins. Co., 22 Wend. 125; Cox v. Jagger, 
 2 Cow. 383 ; Chase v. Strain, 15 N. H. 535 ; Joy v. Simpson, 2 N. H. 179 ; Spof- 
 
628 COSTS. 
 
 been explained, the rule was held to be otherwise, on the 
 ground that the costs were a matter arising subsequent to the 
 submission, and so were not included in it, unless otherwise 
 expressed. But the theory and the rule are said to be now 
 alike abandoned.^ 
 
 In Hawley v. Hodges, it was said to be an unquestionable 
 incident to the arbitrator's authority to award concerning the 
 costs of arbitration, though the submission was silent upon 
 the subject.^ 
 
 Judge Eedfield says that the power to award costs, and 
 especially the costs of the arbitrator, is " quite too important 
 a power to be implied as a mere incident of the submis- 
 sion." ^ 
 
 The Po-wer of the Arbitrator over the Costs of Suit. — If a sub- 
 mission or reference be entered into, in or of a pending cause, 
 there seems to be no doubt that the arbitrator or referee has 
 power to award concerning the costs of the suit, whatever may 
 be thought concerning his power to award as to the costs of the 
 arbitration or reference.* He may even order the party in 
 whose favor he determines the controversy to bear the costs ; 
 for this may sometimes be equitable, and is within his discre- 
 tion.^ 
 
 So in an action of ejectment an award finding for the plain- 
 tiff with costs, but without damages, is good.^ 
 
 ford V. Spofford, 10 id. 251 ; Chapin v. Boody, 25 id. 285 ; Brown v. Mathes, 
 5 id. 229 ; Andrews u. Foster, 42 id. 376. The rule may obviously be regarded 
 as well established in New York and New Hampshire. So also it has been held 
 in an old case in Connecticut ; Ailing v. Munson, 2 Conn. 691. 
 
 1 Strang v. Ferguson, 14 Johns. 161. 
 
 " Hawley v. Hodges, 7 Vt. 237, cited and followed in Bowman v. Downer, 
 28 Vt. 532. 
 
 3 Morrison w. Buchanan, 32 Vt. 288. 
 
 * Vose V. How, 13 Meto. (Mass.) 243 ; Nelson v. Andrews, 2 Mass. 164 ; Bacon 
 V. Crandon, 15 Pick. 79; Brown v. Mathes, 5 N. H. 229; Joy v. Simpson, 2 id. 
 79 ; School District v. Aldrich, 13 id. 140 ; Chapin v. Boody, 26 id. 285. 
 
 5 Bacon v. Crandon, 15 Pick. 79. 
 
 c Austin V. Snow's Lessee, 2 Dall. 157. 
 
COSTS; 629 
 
 In a Massachusetts case, Bigelow, C. J., delivering the opin- 
 ion, goes into the matter more at length, substantially as 
 follows : — 
 
 Arbitrators under rule of court can award the " necessary 
 costs of the cause," such as their own fees, charges for the 
 place of meeting, and cost of stationery and the like, and such 
 as are " expressly authorized by law to be taxed as legal costs," 
 including herein fees for attendance of witnesses before the 
 arbitrators, and other similar charges. But they cannot award 
 to either party costs in the way of attorneys' fees or other items 
 of charge not expressly authorized by law.^ It may be observed 
 that many charges which would seem to be more properly de- 
 scribed, at least according to the nicety of the English distinc- 
 tion, as costs of reference than as costs of the cause are 
 included in the foregoing enumeration, and satisfactory clear- 
 ness and consistency seems still to be as far off as ever. 
 
 An Eccentric Decision. — In Chasc V. Strain, in New Hamp- 
 shire, submission in a pending suit was made, concerning the 
 " value of the work, . . . the subject of a suit now pending," &c. 
 The court held that the arbitrators had incidental power to 
 award the costs of the arbitration, but had not power to award 
 the costs of suit, since these were " a substantial and distinct 
 matter, in no way involved in the question of the value of the 
 work done." ^ This decision, despite the apparent nicety of 
 its distinctions, is certainly contrary to what must be regarded 
 as the current of authority as regards one at least of the two 
 points concerning costs upon which it adjudicates. 
 
 Omission to find Costs in the Award. — In New Hampshire, as 
 it is held to be within the power, so also it is held to be there- 
 fore within the duty of the arbitrator to award costs ; and if 
 he has not done so in specific terms, it is nevertheless presumed 
 that he considered thein in coming to his determination and 
 making up his award. Wherefore though the award be silent 
 
 1 Jones V. Carter, 8 Allen, 431 ; and see Harden v. Harden, 11 Gray, 435. 
 
 2 Chase v. Strain, 15 N. H. 535, 
 
630 COSTS. 
 
 on the subject of costs, yet they will not be allowed to the win- 
 ning party. ^ 
 
 Even if it be the duty of the arbitrators to tax the costs, and 
 they neglect to do so, yet this will not necessarily avoid the 
 award. If the party entitled to receive the costs consents to 
 waive his claim to them, the remainder of the award may stand 
 good.^ 
 
 If a pending cause is the subject-matter of a reference, and 
 the award is silent on the subject of costs, it has been held in 
 Pennsylvania that they will be given to the successful party, 
 by the court, in confirming the award, as being consequential 
 thereupon .3 
 
 A pending cause was referred to arbitrators under a rule of 
 court. They returned an award in which they made no men- 
 tion of the subject of costs. The court held that the successful 
 party was entitled to recover the taxable costs of the action and 
 reference. For the costs of the suit were incidents of the action, 
 and not separate and independent grounds of claim. It was to 
 be inferred from the fact of silence that the referees gave their 
 attention only to the merits of the claim in controversy ; and it 
 would not be a necessary or logical interpretation, after they 
 had found' in favor of the plaintiff, to say that he should bear 
 the expenses of the litigation.* 
 
 An omission to state in the report or award the amount of 
 the costs of the reference or arbitration is not a sufficient 
 ground for rejecting the report or award at the request of the 
 losing party .^ 
 
 stipulation that Costs shall abide the Event. — Two persons had 
 brought divers actions against each other, all which they finally 
 submitted to arbitration, providing that" costs shall be awarded 
 to the parties who may succeed in said action, meaning to include 
 
 1 Chapin v. Boody, 25 N. H. 285 ; Brown v. Mathes, 5 id. 229. 
 
 2 Rixford v. Nye, 20 Vt. 132. 
 
 ' Harvey v. Snow, 1 Yeates, 156. 
 
 * Woolson V. Boston & Worcester Railroad Corporation, 103 Mass. 580. 
 
 ' Billington v. Sprague, 22 Maine, 34. 
 
COSTS. 631 
 
 all manner of action and actions, cause or causes of action," &c. 
 Held, that since some actions were found in favor of one party, 
 and other actions in favor of the other party, the costs as well 
 as the fees of the arbitrators must be divided between the parties 
 by apportioning to each suit the amount properly to be borne 
 by it.i 
 
 Form of an Award of Costs. — Authority given to the arbitrators 
 to " award as to costs," enables them to decree that one party 
 shall pay to the other a gross sum as costs. The items need 
 not be given.^ 
 
 If there be a suit pending, the award of costs, without naming 
 any sum, will be good. It is not uncertain, since they may be 
 taxed in the regular manner.^ If there be no suit pending, a 
 simple award of " costs " would be bad for uncertainty ; but an 
 award of a specific sum by way of costs, or by reference to a 
 schedule prepared by the arbitrators, is not open to the same 
 objection, and is good.* 
 
 ^n uncertainty in the award upon the subject of costs will 
 sometimes be curable, as in the following case, by the aid of an 
 obvious presumption. A rule of reference was entered into 
 between A. and D., — D. being administrator of the estates of 
 B.-and C, deceased, copartners, of whom C. was survivor. 
 A.'s demand was against the partnership. The award was for 
 payment from the estate of C, and that D. should pay the costs 
 of reference. D. had three different funds in his hands. It 
 was held that since the award did not say from which fund the 
 costs should be paid, they must follow the damages awarded. 
 These were expressly reported to be a charge on the partner- 
 ship fund, and the costs should accordingly be paid from the 
 same.^ 
 
 1 Morrison v. Buchanan, 32 Vt. 288. 
 
 2 Tallman v. Tallman, 5 Cush. 325 ; Thoreau v. Pallies, 5 Allen, 354. 
 ' Hewitt V. Furman, 16 Serg. & R. 1'35. 
 
 4 Ibid. 
 
 6 Whitney v. Cook, 5 Mass. 139. 
 
632 COSTS. 
 
 An Award merely of Costs. — The legal implication from an 
 award, merely directing the payment of costs, without speci- 
 fically disposing of the matter in controversy, has been already 
 considered.^ 
 
 1 Ante, pp. 418 et seq. To the cases cited in notes 3 & 4 on p. 418, may be 
 added, as illustratiye of the same doctrine, the case of Sears v. Vincent, 8 Alien, 
 507. 
 
INDEX. 
 
 ABATEMENT. See Pleading ; Practice. 
 ADJOURNMENT, 
 
 within arbitrator's discretion, 147. 
 
 beyond time limited for award, 147. 
 
 statutory provisions concerning, 148. 
 
 applications for, in a cause before a referee, 148. 
 
 death of witness during an, 149. 
 
 record of, 150. 
 
 by reason of surprise of party, 150. 
 absence of witness, 150. 
 
 for procuring further testimony, 151. 
 
 unreasonable refusal to grant, 151, 536. 
 
 in absence of some of the arbitrators or referees, 151. 
 ADMISSIONS, 
 
 by party, effect of, 128. 
 AGENT, 
 
 formality of instrument creating, 10. 
 
 general, cannot submit, 11. 
 
 to collect, cannot submit, 11. 
 
 to " settle," cannot submit, 11. 
 
 to sue for sums due, cannot submit, 11. 
 
 to compromise, can sometimes, not always, submit, 11, 12. 
 
 to sue for and compound, can submit, 12. 
 
 to underwrite and settle losses, can submit, 12. 
 
 to prosecute or defend a suit, can submit, 12. 
 
 with power of substitution, can submit, 13. 
 
 submission by unauthorized, may be ratified, 13. 
 (See Ratification.) 
 
 submission by unauthorized, invalidates award, 380. 
 
 may bind himself personally, 14, 32, 380, 381. 
 
 instances of agent binding himself personally, 14, 15. 
 
 to submit, cannot ratify award, 15, 532. 
 
 duly authorized, may ratify award, 532. 
 
 may consent to irregularities in proceedings, 15. 
 
 arbitrator is, of both parties, 106. 
 
 (See Akbitratob.) 
 
634 INDEX. 
 
 AGENT, — continued. 
 
 power of, to revoke submission, 238. 
 may request performance, 653. 
 AGREEMENT, 
 
 to submit, no bar to suit, 79, 90. 
 
 no specific performance of, 89, 90, 91. 
 
 penalty for breaking, 90. 
 
 damages for breaking, 96, 96. 
 
 effect of, when embodied in other contracts, 91 et seq. 
 
 when proceedings are begun, 91. 
 as condition precedent to right of action, 93 et seq. 
 in pleading, 95. 
 
 to party interested, is void, 95. 
 for entry of judgment on award, 80. 
 to abide by award, 87. 
 ALTERATION, 
 
 of submission, see Submission. 
 
 power of arbitrator to make, in award, see Arbitrator. 
 cannot be made by court to correct error, 330, 333, and see 328. 
 upon recommitment, see Recommitment. 
 AMENDMENTS, 
 
 power of arbitrator to allow, 207, 208. 
 
 cannot effect introduction of new substantive matter or cause of 
 
 action, 208, 209. 
 what, may be allowed to defendant, 209. 
 motions for, are addressed to arbitrator's discretion, 210. 
 practice in allowing, 210. 
 
 of award, see Award; Mistake; Recommitment. 
 APPEAL, 
 
 effect of stipulating for no, 19, 86, 87. 
 APPRAISALS, 
 
 how far, are operative as award, 39 et seq. 
 ARBITRATION, 
 
 pendency of, at time of suit brought does not divest court of its 
 
 jurisdiction, 79. 
 pendency of, must be availed of by plea in abatement, 79. 
 losing power to avail of, 79. 
 
 by arbitrators' refusal to act, 80. 
 ancient prejudice against, 437. 
 is now favored, 437. 
 ARBITRATOR, 
 
 who may be, 99. 
 
 person interested in result cannot be, 100, 104. 
 
 a debtor or creditor of a party may often be, 100. 
 
 a relation of a party cannot be, 101. 
 
 person having preconceived opinion cannot be, 101, 102, 108. 
 
 but objectionable person may be, by consent of parties, 102. 
 
INDEX. 635 
 
 AEBITRATOK., — continued. 
 
 objection to, must be taken promptly, 104, 105. 
 
 a party may be also an, 105. 
 
 judge may be, 105, 106, 
 
 are agents of both parties, 106. 
 
 must be impartial agent of both, 106 et seq. 
 
 expression of opinion by, 108. 
 
 commissioners, and other officials, acting as, 109. 
 
 such are sometimes amenable to the court, 109. 
 absence of, 110. 
 swearing, 110. 
 
 (See Oath.) 
 controls conduct of the proceedings, 115. 
 must name time and place of hearing, 116. 
 may revoke appointment of such time and place, 120. 
 power of, to proceed ex parte, on non-attendance of party, 121 
 
 et seq. 
 power of, to procure explanation from party, 126, 128. 
 
 to take evidence of sick person, 127. 
 
 to interrogate a party, 127. 
 
 to inquire abroad, 127. 
 
 to consider private admissions of party, 128. 
 
 to exclude party from hearings, 128. 
 
 to call in experts, 168, 169. 
 
 to call in counsel, 131. 
 
 to consult counsel, 170. 
 
 to employ counsel to frame award, 170, 275. 
 but not counsel of party, 275. 
 
 to swear witnesses, 131. 
 
 (See Oath.) 
 
 to summon witnesses, 184. 
 
 to protect witnesses, 134. 
 
 in respect of admitting evidence, 134 et seq. 
 
 result of error in the admission or rejection, 135 
 et seq. 
 
 (See Evidence.) 
 
 to refuse to hear evidence, 142 et seq., 536. 
 
 to limit number of witnesses, 144. 
 
 to re-open case, 145. 
 
 to admit evidence de bene esse, 146, 147. 
 
 in respect of adjournments, see Adjournment. 
 
 to refuse to hear counsel, 130, 131. 
 cannot receive ex parte communications, 534, 635. 
 may hear statement when asked to act, 585. 
 all must act together during proceedings, 151 et seq. 
 60 also if third arbitrator is called in, 168, 159. 
 whether all need meet to execute award, 163, 154. 
 
636 INDEX. 
 
 ARBITRATOR, — continued. 
 
 all must unite in award, 162, 163. 
 majority may be authorized to award, 162. 
 such authority may be inferred, 163. 
 cannot dissent from award after executing it, 164. 
 all need not agree on each question, 164. 
 process of coming to agreement by, 165. 
 must exercise a judicial discretion, 165, 167. 
 cannot adopt a mean sum, 166. 
 cannot delegate authority, 166. 
 
 (See Award, under division concerning finality.) 
 nor accept opinion of another, 167. 
 but may rely on opinion of another, 167, 168. 
 can delegate performance of ministerial matters, 169. 
 waiver of irregularities in proceedings before, 171. 
 
 (See Waiver.) 
 misconduct of, see Misconduct. 
 fraud or corruption of, see Fraud. 
 source and extent of authority of, 117. 
 excess of authority by, 178. 
 
 does not always avoid award, 178. 
 presumption is against an excess, 179. 
 effect of, practice, &c. See Excess. 
 cannot bind a man's liberty, 180. 
 
 or his right to real property, 180. 
 power to award chattels, 180. 
 order marriage, 181. 
 
 a criminal or illegal act, 181. 
 cannot exceed the submission in order to do equity, 181, 183, 184. 
 
 depart from or modify the submission, 182. 
 may name time and place of payment, 184. 
 direct manner of payment, 185. 
 allow interest, 185. 
 power in disputes between partners, 186 et seq. 
 to order dissolution, 186. 
 to arrange terms of dissolution, 187 et seq. 
 should find amounts due, 189. 
 has no power over creditors, 189. 
 duty to take accounts of credits and debits, 189, 
 
 190. 
 division of assets by, 190, 191. 
 cannot appoint receiver, 192. 
 personal liability of, 193. 
 power of, to order execution of release, 192, 193. 
 
 to order conveyance of real estate, 193 et seq. 
 
 (See Conveyance.) 
 in cases of land damages, 196. 
 
INDEX. 637 
 
 ARBITRATOR, — continued. 
 
 power of, to go behind receipt in full, 196, 197. 
 
 to give reasonable incidental orders, 197. 
 
 orders as to future action of parties, 198, 199. 
 power of, to give orders as to future action of parties is to be sought 
 
 in submission, 198, 199. 
 power of, to give orders as to future action of parties may be inferred, 
 
 200. 
 orders of, as to future action of parties, when valid, are absolutely 
 
 conclusive, 201. 
 power of, to give orders as to future action of parties wiU be sus- 
 tained, if possible, 201. 
 limitation of power of, in respect of past matters, 202. 
 has no authority in respect of strangers to the submission, 202. 
 
 (See Stuanger.) 
 power of, in reference of cross-actions, 205. 
 
 (See Testimony.) 
 has no power to name substitute, 205. 
 
 unless specially conferred, 206. 
 in lis pendens may award more than ad damnum, 206. 
 power of, to allow amendments in submission of lis pendens, 207 et 
 seq. 
 
 (See Amendment.) 
 to admit claim in offset, 207. 
 
 decision of, is conclusive both in law and fact, 293-296. 
 under general submission, is final judge of law and fact, 296, 297. 
 for whole matter as to conclusiveness of decision of, see Mistake. 
 no difference between professional and non-professional, 315. 
 an expert chosen as, 143, 144. 
 testimony of, to show mistake, see Mistake. 
 
 to show award not coextensive with submission, 361. 
 is final judge of law and fact, 214. 
 
 by what principles, should seek to be governed, 215-220. 
 may disregard strict legal principles, 217 et seq. 
 equitable powers of, 218, 219. 
 
 may consider defences inadmissible in court of law, 221. 
 may find facts and leave law to court, 220, 221. 
 may reform erroneous instrument, 221. 
 may disregard rules of practice, 222. 
 authority of, ceases at time limited, 223. 
 exception to this rule, 223. 
 may be extended by agreement or act of parties, 224. 
 
 court, 224. 
 exhausted by making award or report, 226 et seq. 
 not revived, if award be vacated, 228. 
 power of, to explain or alter report or award, 227 et seq. 
 to explain or alter by letters, 664. 
 
638 INDEX. 
 
 ARBITRATOR, — continued. 
 
 power of, to alter, &c., by agreement of parties, 664. 
 
 allowed to correct a miscalculation, 228. 
 
 cannot be required to state grounds of decision, 569. 
 
 (See Testimony.) 
 must testify as to facts occurring during proceedings, 570, 571. 
 cannot refuse to deliver award, 228. 
 revocation of authority of, see Revocation. 
 withdrawal, or refusal to act, 164 et seq. 
 revokes submission, 236. 
 must be distinct and final, 157. 
 need not be formal, 157. 
 by act, 158. 
 
 before proceedings are begun, 159. 
 after recommitment, 159, 160. 
 difference between third, and umpire, 241. 
 character and duty of third, 241, 242. 
 as defendant in bill to set aside award, 620, 621. 
 fees of, see Fbbs. 
 ASSIGNEES IN BANKRUPTCY, 
 power of, to submit, 30. 
 whether submission by, admits assets, 30. 
 ASSIGNMENT, 
 
 to stranger of rights under award, 623, 524. 
 ASSUMPSIT, 
 
 will lie for costs, 578. 
 
 upon an award, 678, 679. 
 based on implied promise in award, 579. 
 for an instalment, 579. 
 against joint promisors to perform, 679. 
 executors of party, 679. 
 defences in, 579, 580. 
 
 maintainable by assignee, in hame of party, 580. 
 in his own name, 680. 
 averments in action of, 586. 
 AWARD, 
 
 Miscellaneoiis. 
 
 as to real estate of religious corporation, 4. 
 
 whether, will be enforced in equity against infant, 4. 
 
 execution of, may render it conclusive on a partner not bound by 
 
 it, 9. 
 may be against one of two partners, being together the party of the 
 
 one part, 9. 
 effect of, following submission by executor, &c., 19, 20. 
 how far measurements and estimates are operative as, 38, 39. 
 how far appraisals are operative as, 39 et seq. 
 a finding of damages under stipulation of a bond is, 42. 
 
INDEX. 639 
 
 AWARD, — continued. 
 
 a finding of costs under a confession of judgment is, 42. 
 
 oral, as to boundary line, 61, 258. 
 
 agreement for entry of judgment on, 80 et seq. 
 
 suit upon, after alteration of submission, 85. 
 
 agreement to abide by, 87. 
 
 need not recite that all arbitrators acted together, 161. 
 
 unless required by statute, 162. 
 all arbitrators must unite in, 162. 
 by majority, 162, 163. 
 process of determining upon, 165, 266. 
 
 need not be set forth, 433. 
 waiver of stipulations as to form of, 174. 
 performance of, effects waiver of all precedent defects, 174, 
 
 175. 
 in part non-enforceable, 204. 
 
 effect of performance of non-enforceable part of, 205. 
 alteration of, by arbitrator, see Arbitrator ; Testimony. 
 correction of one of two duplicates, 227. 
 vacating, does not revive arbitrator's authority, 228. 
 delivery of, cannot be refused, 228. 
 annulling, by revocation, 231. 
 no especial form of, 251, 252. 
 need only contain decision, 252, 266. 
 need not declare decision in set terms, 253. 
 may contain it by implication, 253. 
 oral, validity of, 256. 
 stipulations for a written, 257. 
 disposing of real estate must be in writing, 257. 
 .concerning boundary-lines may be oral, 51, 258. 
 need not be attested, unless required by submission, 259, 262. 
 nor under seal, unless required by submission, 259, 261. 
 must conform to formalities required by the submission, 259 et 
 
 seq. 
 under hand of arbitrators, 260, 261. 
 must be made within time named, 261. 
 conditions precedent to validity of, 263. 
 under statute, must comply with statute, 263. 
 
 but otherwise may sometimes be upheld, 264. 
 power of parties to waive strict compliance, 264. 
 may be only of a sum in gross, 265. 
 or may be of each item, separately, 265. 
 need not always order release, 267. 
 when need order discontinuance, 267, 268, 269. 
 effect of, ordering a nonsuit, 269. 
 by aid of promissory notes of parties, 269 et seq. 
 (See Note.) 
 
640 INDEX. ~ 
 
 AWARD, — continued. 
 
 if stipulated to be in form of note, is ii^valid in any other form, 
 
 274. 
 may be drafted by aid of counsel, 170, 275. 
 
 but not by aid of counsel of a party, 275. 
 need not recite submission or proceedings, 275-277. 
 nor extension of time, 276. 
 nor performance of condition precedent, 277. 
 inaccurate recital in, is generally immaterial, 277, 278. 
 possession of, as evidence, 289. 
 
 wrongfully obtained, 289, 290. 
 after performance, 561. 
 neither party bound to notify, to other, 290. 
 conclusiveness of and mistake in, for this whole department of the 
 
 subject, see Mistake. 
 cannot be impeached, as being against evidence, 826. 
 variance in duplicate, 330, 381. 
 recommitment of, see Recommitment. 
 
 Delivery. 
 stipulations for delivery of, 278 et seq. 
 
 how construed and satisfied, 279, 280. 
 delivery must be of original, 280. 
 may be of duplicate, 280. 
 waiver of actual, 281. 
 properly made to prevailing party, 282. 
 demand of, is necessary, 282. 
 what constitutes, 283. 
 may be made of an oral, 283. 
 averring, 283, 284. 
 availing of non-, 284, 286. 
 proof of non-, 285. 
 possession as evidence of, 289. 
 Publication. 
 publication of, when necessary, 285, 286. 
 what constitutes, 285-289. 
 to parties, 288, 289. 
 must be to each person interested, 289. 
 Co-extensive with Submission. 
 required to be co-extensive with submission, 340 et seq. 
 by ila quod clause, 840, 341. 
 
 modern rules of construction, 341. 
 manifest intent of parlies, 342, 343. 
 nature of subject-matter submitted, 344. 
 is bad, if not thus co-extensive, 345, 359, 360. 
 effect of a special exception in the award, 845, 368. 
 but mention of omitted matter is needless, 359, 360. 
 cause of defect is immaterial, 346. 
 
INDEX. 641 
 
 AWARD, — continued. 
 
 not co-extensive with submission, is not final, 346, 347. 
 
 may be co-extensive by implication, 351. 
 
 method of availing of objection that award is not co-extensive, 361. 
 
 parol evidence admissible to this point, 361. 
 
 and evidence of arbitrator, 361. 
 not prima, facie co-extensive, 367. 
 
 presumption that award is co-extensive, see Presumption. 
 that matters remain as they are, 347. 
 that nothing is due at date of submission, 348. 
 of a sum of money, under a general submission, 348, 360, 355. 
 need not mention each separate matter, 348, 349. 
 
 unless required to, by submission, 349. 
 may be of a balance in favor of one party, 354, 366. 
 of particular thing under a general submission, 360. 
 on different pleas in an action, 361. 
 not co-extensive, by reason of doing general equity, 352. 
 must decide respecting all the parties, 352, 353. 
 need not embrace incidental matters, 353, 354. 
 nor matters not brought to arbitrator's notice, 366 et seq. 
 
 whether recitals in submission constitute notice, 357-359. 
 
 notice shown by recitals in award; 359. 
 cannot be avoided by party not injured by omission, 360. 
 
 Mutuality. 
 must be mutual, 377. 
 old theory of mutuality, 377. 
 modern relaxation of rule, 377. 
 what now constitutes mutuality, 378, 379. 
 ordering releases to be exchanged is mutual, 379. 
 but not if release runs to wrong party, 381. 
 ordering payment, whether is mutual, 379. 
 word "for" in, creates mutuality, 379, 380. 
 not mutual, where submission is by unauthorized agent, 380. 
 
 where not binding on a party, 381. 
 may be, without ordering release by each party, 382. 
 not mutual, because not ordering conveyance, 382. 
 mutual by implication, 382, 383, 440. 
 ordering payment to stranger may be mutual, 383. 
 
 Finality. 
 must be final, 383. 
 
 signification of this requirement, 383, 384, 390, 391. 
 to be final, must end litigation, 385. 
 
 but only as between the parties, 386, 387. 
 not co-extensive with submission is not final, 346, 347. 
 
 (See this division of the topic, supra.) 
 finding gross sum is, 360. 
 
 (See Offset.) 
 41 
 
642 INDEX. 
 
 AWARD, — continued. 
 
 seeking to do general equity often is not final, 352. 
 embracing all matters notified to arbitrator is final, 356. 
 word "for" in, creates finality, 380. 
 
 not directing transfer of property paid for is not final, 386. 
 not arranging dissolution of partnership, 386. 
 operating for limited time, not final, 387. 
 leaving a judicial act to be done, not final, 388, 393. 
 reserving judicial power to arbitrator, not final, 388, 389, 396, 473. 
 third person, not final, 393, 397. 
 a party, not final, 394. 
 ordering costs to be taxed, is final, 889. 
 leaving calculations to be made, may be final, 389-391, 392. 
 directing calculation of interest, whether final, 394. 
 directing errors of calculation, &c., to be corrected, may be final, 395. 
 leaving ministerial act to be done, is final, 391. 
 directing legal instruments to be drawn, whether final, 395-398. 
 part of, defective in finality, may be separated, 392. 
 conditional, whether final, 398. 
 
 stating condition precedent may be final, 399. 
 leaving to option of party, is not final, 397, 400. 
 conditioned upon future proof, is not final, 400. 
 
 to be void on happening of event, not final, 
 401. 
 conditional judgment may be entered upon conditional, 401. 
 conditioned upon finding of law by Court, is final, 402, 403. 
 
 arbitrator's authority, is not final, 403. 
 in the alternative, is final, 403, 404. 
 availing of want of finality, 406. 
 
 Entirety and Possibility. 
 must be " entire," 369. 
 force of this phrase, 369. 
 can be only one, 370. 
 
 except in cross-actions, 370. 
 one instrument may contain several, 371. 
 several instruments may contain one, 371-373. 
 may embody extrinsic documents, by reference, 374. 
 but must refer to accessible documents and with certainty, 418-420. 
 must be complete in itself, to sustain rendition of judgment, 374. 
 effect of marginal notes upon, 375. 
 special authority to make several, 375. 
 if not possible, is bad, 375, 376. 
 
 nature of possibility required, 376. 
 performance of impossible, 658, 569. . 
 
 (See Pbrfoemahce.) 
 
 Certainty. 
 must be certain, 408. 
 
INDEX. 643 
 
 AWARD, — 'continued. 
 
 signification of this requirement, 408. 
 
 uncertainty in an alternative, 405. 
 
 if certain, will be intrinsically enforceable, 409. 
 
 degree of certainty required in, varies, 409. 
 
 if uncertain, is void, 409. 
 
 cases illustrating fatal uncertainty in, 409, 410. 
 
 may be certain by favorable presumption, 4H. 
 
 especially if the award be de et super praimissis, 413. 
 
 certain in referring to a fact not in dispute, 413. 
 
 extrinsic proof of such fact, 413. 
 only of costs is generally certain by implication, 414, 415, 441, 631. 
 ordering payment of costs, is certain, if there be lis pendens, 415, 
 416. 
 
 but not always, 415. 
 otherwise is uncertain, 416. 
 
 but must order payment of" costs" specifically, 417. 
 need not specify to whom payable, 418. 
 referring to extrinsic documents, whether certain, 418-420. 
 certain in naming sum to be paid, 420-422. 
 in leaving it to be calculated, 422. 
 
 interest to be computed, 422. 
 designating " market price," 423. 
 certain in describing debt, 423. 
 general, embracing several matters, is certain, 423. 
 awarding balance due, is certain, 424. 
 not naming time, whether certain, 424, 425. 
 
 place of payment, is certain, 425, 426. 
 persons by whom act is to be done, how far certain, 
 426-428. 
 how far, need describe real estate by metes and bounds, 428-431. 
 following deed, is certain, 431. 
 requisite certainty in, defining boundary line, 431, 432. 
 
 in trespass to realty, 432. 
 ordering reassignment of mortgaged lands, is certain, 432. 
 payment from assets, is certain, 434. 
 security, must describe nature and amount, 432, 483. 
 that cause be no further prosecuted, 433. 
 introducing Statute of Limitations must give date, 434. 
 uncertainty in, should be corrected by party, 433, 434. 
 
 furnishes no ground for bill in equity, 434. 
 as ground for demurrer, 434. 
 as basis for motion, 435. 
 time of objecting for, 435. 
 testimony to explain, 436. 
 uncertain as to costs, curable, 631. 
 
 conditional, see under Finality, supra, 642. 
 
644 INDEX. 
 
 AWAED, — continued. 
 
 in the alternative, see under Finality, supra. 
 where one alternative is bad, 405. 
 or impossible, 405. 
 
 Eules of Construction. 
 to be liberally construed, 437, 438. 
 to be construed in connection with submission, 438. 
 orders of, in excess of authority, treated as explanatory, 439. 
 aided by manifest implication, 439. 
 of costs, is good by implication, 441. 
 in too general language, may be restricted, 441, 442. See 554. 
 
 when restriction cannot be made, 442, 443. 
 ordering concurrent or dependent acts, 445, 446. 
 concerning boundary lines, rules of construction of, 443-445. 
 reserving que or C ourt, narrowly construed, 448. 
 construction of an inconsistent, 448 et seq. 
 
 (See Pkesumption.) 
 construction of, ordering payment of rent, 548. 
 
 as creating condition precedent, 558. 
 Separahilily . 
 separation may be made between good and bad parts of, 463. 
 when cannot be made, 453. 
 whether good part need cover all matters submitted, 
 
 454, 455. 
 may be of reservation of judicial function, 392, 471- 
 
 474. 
 may be of matters all to be done by same party, 455. 
 whether may be where something remains awarded on each side, 
 
 455-458. 
 whether may be of immaterial orders, 459,460. 
 
 order as to costs, 462-464, 627. 
 cannot be of matter constituting a consideration or condition prece- 
 dent, 461, 462. 
 separability of orders for releases, 462, 465. 
 
 payment of a specific sum, 464. 
 establishing a condition precedent, 464. 
 as to future conduct of parties, 465, 466. 
 separability of findings concerning title, 466, 467. 
 uncertain findings, 466. 
 
 findings, void as being in respect of strangers, 467, 
 . 468. 
 an invalid order for a verdict or judgment, 468, 
 
 469. 
 orders as to arbitrator's fees, 626. 
 whether separation may be of orders in, in excess of authority, 
 
 468-461, 470-471. 
 no separation unless excess is clearly distinguishable, 469, 470. 
 
INDEX. 645 
 
 AWARD, — continued. 
 
 whether separation may be of reservation of further functions, 392, 
 
 471-474. 
 separation cannot be made, if chief dispute is left undecided, 474. 
 for gross amount, generally inseparable, 474-476, 478. 
 
 but not always so, 476-478. 
 separability of, is favored by presumption, 478-480. 
 Courts seek to uphold, by separation, 480-481. 
 separability of uncertain part of, 481, 482. 
 
 separation of, allowed upon waiver of provisions of bad part, 482. 
 in alternative, is separable, 483. 
 performance of bad part of, 483. 
 separable, may be held under advisement, 484. 
 rules of pleading and practice in suits upon separable, 484, 485. 
 
 Operation and Effect. 
 when, takes effect, 545. 
 is a final and conclusive judgment, 487. 
 is good for all time, 487. 
 in evidence, if valid, is unimpeachable, 488. 
 is competent evidence under general issue, 488. 
 not evidence as an account stated, 488. 
 not proof of assets in hands of executor, 488. 
 as evidence of title in ejectment, 488. 
 
 in evidence, impeachable on proof of non-validity, 488, 489. 
 equivalent to a decree in equity, 489. 
 effect of, circumscribed in Chancery, 489. 
 on illegal matters, is void, 489. 
 effect of colorable, 489, 490. 
 under seal, legal character of, 490. 
 merges and bars the original claim, 490. 
 
 exception to principle of merger, 490, 491. 
 void, effects no bar or merger, 491. 
 not deciding controversy, effects no bar or merger, 504. 
 whether, effects bar or merger as to matters submitted but not 
 nominated in award, 491 et seq. 
 
 English rule of conclusiveness in respect of such matters, 491, 
 
 492. 
 English rule in equity, is doubtful, 494. 
 
 as to accidental omissions, 494. 
 ordering general releases, is conclusive, 493. 
 rule of conclusiveness, in New York, 495. 
 
 where submission is uncertain, 496. 
 in Connecticut, 496. 
 Vermont, 497, 498. 
 Maine, 499. 
 New Hampshire, 499. 
 Massachusetts, 499-504. 
 
646 INDEX. 
 
 AWARD, — continued. 
 
 bars or merges a claim which party refuses to present, 604. 
 
 no bar or merger of claim not matured at date of submission, 604, 
 
 505. 
 bars or merges only precise matter submitted, 505. 
 pleading, in bar to matter not nominated, 605, 506. 
 burden of proof under plea of, in bar, 506. 
 whether, can be pleaded in bar by party not having performed, 506, 
 
 556, 556. 
 cannot be pleaded in bar before performance of condition precedent, 
 
 507, see 666-658. 
 pleadable in bar to bill in equity, 607, 609. 
 
 whether thus pleadable, if submission is subsequent to 
 filing of bill, 608. 
 when may be availed of in set-off, 508, 509. 
 when will vest title in personalty, 609, 610. 
 reduces chattels of wife into possession, 610, 611. 
 does not vest title to realty, 511, 612. 
 of commissioners may vest title to realty, 612. 
 finding title to realty will sustain action in ejectment, 613. 
 legal operation of, determining boundary lines, 513-515. 
 finding title or settling boundary, is defence in trespass, 515, 516. 
 finding title, not under seal, operates in estoppel, 516. 
 oral, as to boundary line, 516, 517. 
 
 under oral submission, 517. 
 simply finding title does not imply order for deed, 618. 
 apparently inadequate, operation of, 518. 
 inoperative for or against strangers, 203, 519. 
 incompetent evidence against strangers, 519. 
 sometimes competent evidence for a stranger, 620. 
 made operative as against stranger, by his own act, 621. 
 
 cognizance of submission, 
 521. 
 concerning rights of stranger, is operative as to parties, 522. 
 extending time of principal debtor, releases sureties, 522. 
 not evidence in criminal prosecution, 524, 526. 
 operation of, in lis pendens, 625. 
 
 including extrinsic matters, 626. 
 creates a debt provable in bankruptcy, 628, 629. 
 becomes cause of action from date of publication, 577. 
 recitals in, as evidence, 529. 
 
 Ratification. 
 if valid, needs no ratification, 529. 
 if voidable, may be ratified, 530, 532. 
 
 knowledge required to make ratification valid, 631. 
 if void, cannot be ratified, 632. 
 ratification of, by agent, 682. 
 
INDEX. 647 
 
 AWARD, — continued. 
 
 repudiated, cannot be revived, 632. 
 ratified by performance, 560. 
 
 effect of misconduct and fraud upon, see Misconduct ; Fraud. 
 possession or cancellation of, after performance, 561. 
 (See Pekformance.) 
 
 BANKRUPT, 
 
 submission by, is void as to estate, 30. 
 but may bind himself, 30, 
 BANKRUPTCY, 
 
 of party, effect of on operation of award, 527, 528. 
 effect of discharge in, on award, 528. 
 award creates a debt provable in, 528, 529. 
 BAR, 
 
 operation of award to effect, see Awabd, under division Operation 
 
 and Effect. 
 allegations in pleading award in, 589-592. 
 
 requisites to a good plea of an award in, 591. 
 pleading award in, to bill in equity, 609. 
 
 rules concerning such pleading, 609, 610, 611. 
 BOND, 
 
 of submission, breach of condition to refer or submit, 96. 
 action of debt, for penalty of, 582. 
 action on, after enlargement of time, 582. 
 
 by parol, 582. 
 
 interlineation, 583. 
 pleadings in action on, 589, 590. 
 BOUNDARIES, 
 
 questions concerning, may be submitted, 55. 
 
 agreement for survey of, is not submission, 38. 
 
 oral award as to, 51. 
 
 award concerning, need not order release by both parties, 381, 
 
 382. 
 what is sufficient certainty in award determining, 431, 432. 
 rules for construing awards concerning, 443, 444. 
 
 how far explainable by evidence, 445. 
 presumption in discrepancy between submission 
 and award, 445. 
 legal operation of awards concerning, 513-515. 
 
 oral award concerning, 516, 517. 
 
 under oral submission, 517. 
 
 CASE, 
 
 closing too hastily, 145. 
 re-opening for new evidence, 145. 
 
648 INDEX. 
 
 CASE, — continued. 
 
 action of, when appropriate, on award, 683, 584. 
 CERTAINTY, 
 
 in award, see Award, under division Certainty. 
 
 instances of, by implication, 253-256. 
 COMMISSIONERS, 
 
 acting as arbitrators, 109. 
 
 when amenable to court, 109. 
 CONCEALMENT. See Fraud. 
 CONCLUSIVENESS, 
 
 of award, see Mistake ; Award ; Akbitratok. 
 CONDITION, 
 
 precedent to validity of award, 263. 
 
 by the ita quod clause, 340 et seq. 
 
 (See Ita Quod Clause.) 
 
 in award, effect of on validity of award, see Award, under division 
 Finality. 
 
 effect of on operation of award, see Award, under division Operation 
 and Effect ; Performance. 
 
 (See Bond.) 
 CONSTRUCTION, 
 
 of award, see Award. 
 CONVEYANCE OF REALTY. 
 
 may be ordered by arbitrator, 193. 
 
 form of instrument of, should be specified, 194. 
 
 order for "good and sufficient deed," 195. 
 
 expense of, 195. 
 
 when stipulated for in submission, 196. 
 
 when award not ordering, is bad, 382. 
 
 directions concerning form of, 396, 397. 
 CORPORATION, 
 
 may be party to submission, 5. 
 
 in what manner may become bound by submission, 5. 
 
 may submit by agents or officers, 5, 6. 
 
 presumption is in favor of authority of agent or officer, 6. 
 
 may be bound by counsel's submission in a cause, 19. 
 COSTS, 
 
 may be ordered to be taxed, 389. 
 
 force of award only of, 414, 416, 441, 631. 
 
 order for payment of, 416, 416, 
 ' in reference, 416. 
 
 proper form of order for payment of, 417. 
 
 distinction between different kinds of, 622, 623, 626, 627 . 
 
 of a cause, 623. 
 reference, 623. 
 
 implied power of arbitrator concerning, 623. 
 in a cause, 623, 624. 
 
INDEX. 649 
 
 COSTS, — continued. 
 
 power concerning, conferred in the submission, 624. 
 arbitrator need give no order concerning, 624. 
 
 unless directed by the submission, 624, 625. 
 arbitrator's discretion concerning, 624, 625. 
 may be apportioned, 625. 
 
 (See Fees.) 
 rules in United States as to power of arbitrator concerning, of ar- 
 bitration, 627, 628. 
 rules in United States as to power of arbitrator concerning, of 
 
 suit, 628. 
 what are, of cause, 629. 
 rule as to, in New Hampshire, 629. 
 to whom allowed, when not given in award, 629, 630. 
 stipulated to abide the event, 626, 630. 
 in what shape, may be awarded, 631. 
 uncertainty as to, may be cured, 631. 
 may be sued for before taxation, 577. 
 must be taxed before trial, 577. 
 when, need not be taxed, 577. 
 one half of, recoverable by party paying, 577. 
 notice of taxation of required, 577, 578. 
 may be recovered by assumpsit, 678. 
 COUNSEL. 
 
 submission entered into by, 5. 
 employed in cause, may submit, 15, 17. 
 whether may submit before suit brought, 16, 17. 
 cannot submit title to realty, 16. 
 
 whether may include matters not involved in suit, 16, 17. 
 objection to unauthorized submission by, must be promptly made, 
 ■ 17, 18. 
 
 courts seek to uphold submission by, in lis pendens, 18. 
 formalities requisite to submission by, 18. 
 may stipulate in submission for no exception or appeal, 19, 87. 
 may bind a corporation client in a cause, 19. 
 may enlarge time, 19. 
 inference from appearance of, 19. 
 notice of intent to employ at hearing, 130. 
 arbitrator may refuse to hear, 130. 
 
 call in, 131. 
 
 consult, 170. 
 
 employ, in framing award, 170, 275. 
 
 but not, of a party, 276. 
 COVENANT, 
 
 action of, will lie if submission be by deed, 583. 
 
650 INDEX. 
 
 DAMAGES, 
 
 for refusal to fulfil agreement to submit, 95, 96. 
 claimable for revoking submission, 238, 239. 
 measure of, 239. 
 DATE, 
 
 omission of, in award, 425. 
 DEATH, 
 
 of a party, see Party. 
 of an arbitrator, revokes submission, 234. 
 DEBT, 
 
 action of, will lie for award of money, 580. 
 
 if other things be included, 680, 581. 
 will lie against executor, 580. 
 for penalty of bond, 582. 
 
 (See Bond.) 
 averments in action of, 686. 
 
 pleadings in action of, on arbitration bond, 689, 590. 
 DEFENCES. See Pleading. 
 
 in suit on promissory note left with arbitrators, 599. 
 DELEGATION, 
 
 of authority by arbitrator, see Arbitrator. 
 
 (See Award, under division Finality.') 
 DELIVERY, 
 
 of award, see Award, heading Delivery. 
 averring, 686. 
 DEMURRER. See PLEADDsa. 
 DISCONTINUANCE, 
 
 whether effected by submission of a pending cause, 73 et seq. 
 where submission stipulates for withdrawal of action, 75, 76. 
 
 discontinuance of appeal, 76. 
 proceeding after submission has effected a, 76. 
 when need be ordered by award, 267, 268. 
 is a proper order in an award, 269. 
 
 (See Submission, 667.) 
 
 EJECTMENT, 
 
 action in, sustainable by award finding title to realty, 513. 
 ENFORCEMENT, 
 
 of award, by suit, 574. 
 
 way of defence, 574, see Bab ; Estoppel. 
 judgment, attachment or execution, 574. 
 of award returnable to Court, by suit, 575, 576. 
 of void statutory award, by suit, 576. 
 of award in pais must be by suit, 576. 
 
 by suit on an independent agreement to perform an award made pur- 
 suant to a void submission, 576. 
 method of, need not be named in award, 576. 
 
INDEX. 65 1 
 
 ENFORCEMENT, — continued. 
 
 may be of part of award only, 577. 
 
 by bill in equity, for specific performance, 603, 604. 
 
 not where there is remedy at law, 603, 604. 
 
 in equi y is addressed to discretion of Court, 604. 
 not granted, against justice, 606. 
 
 demurrer to bill for, 608. 
 
 acquiescence not a necessary preliminary to an order for specific 
 performance, 605, 606. 
 
 but is basis for such order, 606. 
 
 penalty is not substitute for specific performance, 606. 
 
 right to specific performanci lost by time, 606. 
 
 no specific performance of illegal orders, 607. 
 
 unreasonable orders, 607, 608. 
 
 no specific performance against strangers, 608. 
 
 sustaining award by injunction, 608, 609. 
 ENTIRETY, 
 
 of award, see Award, heading Entirety. 
 EQUITY, COURT OF 
 
 interference by, on ground of mistake, 321, 323, 329, 332. 
 to avoid award for uncertainty, 434. - 
 
 fraud and misconduct are ground for bill of, 543. 
 
 whether will enforce award against infant, 4. 
 
 bill in, for specific performance, see Enforcement. 
 
 setting award aside by proceedings in, 618-620. 
 (See Pleading ; Practice.) 
 ERRORS, 
 
 clerical, in submission, 85. 
 
 in award, see Award. 
 ESTOPPEL, 
 
 operation of award by way of, in matters concerning title to realty, 
 see Realty ; Award, under division of Operation and Effect. 
 
 need not always be pleaded, 618. 
 EVIDENCE, 
 
 power of arbitrator in respect of, see Arbitrator. 
 
 to prove illegal cl^im is inadmissible, 137. 
 
 test of admissibility of, 137. 
 
 as to matters not submitted, 138. 
 
 rejection of, under mistake, 138. 
 
 admission of incompetent, by referee, 138 et seq. 
 
 question of admissibility of, may be left by referee to Court, 140. 
 
 reserving right of objecting to admission of, 141. 
 
 need not be reported, 141. 
 
 arbitrator may refuse to hear, 142 et seq., 636. 
 
 but incurs danger in so refusing, 143 et seq. 
 
 re-opening case to admit new, 146, 146. 
 
 admission of, de bene esse, 146, 147. 
 
652 INDEX. 
 
 EVIDENCE, — continued. 
 
 of appointment of umpire, 246. 
 
 an award as, see Award, under division of Operation and Effect. 
 
 oral award as to boundary line as, 517. 
 
 in criminal prosecution award is not, 524. 
 
 to establish an extrinsic fact, 413. 
 
 to explain uncertainty, 435. 
 
 recitals in award as, 529. 
 
 erroneous manner of taking, 536. 
 
 need not be taken in writing, 536. 
 
 award may be given in, in suit on original demand, 590, 591. 
 
 admission of party as, 602. 
 
 (See TBSTiMONy.) 
 discovery of new, as ground for vacating award on motion, 614-616, 
 element of time in this connection, 616, 617. 
 (See Motion.) 
 EXCESS, 
 
 of authority by arhitrator, see Arbitrator. 
 
 only party injured can object to, 210. 
 method of availing of this objection, 211-213. 
 parol evidence of, admissible, 213. 
 arbitrators' testimony as to, 214. 
 may be ratified, 630. 
 reduction of, 654, see 441, 442. 
 EXECUTORS AND ADMINISTRATORS, 
 may submit on behalf of the estate, 19. 
 
 otherwise, however, in Louisiana, 20. 
 whether submission by, is an admission of assets, 20 et seq. 
 personal liability of, entering into submission, 20 et seq. 
 
 by way of deoastavit, 22, 23. 
 proper form and contents of submission by, 23. 
 cannot submit with widow, 24. 
 
 of different estates submitting claims of same party against each, 24. 
 submission by executor of matters in which he is personally inter- 
 ested, 24. 
 administrator cannot submit as to realty, 25. 
 EX PARTE, 
 
 Proceedings, see Arbitrator ; Hbaring. 
 
 Oommunieations, receipt of is misconduct, 534, 535. 
 
 hearing statement when asked to act is not such receipt of, 535. 
 
 FEES, 
 
 of arbitrators, how affected by separating the award, 483. 
 when to be paid equally by parties, 577. 
 customarily paid before delivery of award, 625. 
 whether should be named in award, 625, 626. 
 order concerning, may be separated, 626. 
 
INDEX. 653 
 
 FEES, — continued. 
 
 order concerning how far enforceable, 626. 
 FINALITY, 
 
 of award, see Award. 
 FRAUD, 
 
 of arbitrator, fatal to award, 539. 
 
 how far erroneous or excessive award is evidence of, 539. 
 
 of party, in procuring award, is fatal, 540. 
 what constitutes, of party, 640. 
 whether concealment is, 540, 541. 
 
 question of, is of fact for jury, 641. 
 
 how may be brought before Court, 641, 642. 
 
 nature of presumption of, 641. 
 
 how must be pleaded, 641, 542. 
 
 remedy for, is by bill in equity, 543. 
 
 answering allegations of, 544. 
 
 is not defence in suit at law, 542. 
 
 of party, is defence in suit at law, 644. 
 
 averring, 687. 
 
 pleading, 595, 696. 
 
 in procuring submission, pleading and proving, 602. 
 
 GUARDIAN, 
 
 of infant, may submit for ward, 26. 
 
 may bind himself personally, 25. 
 
 if also parent, may combine his own claims in demand for 
 damages for injury to child, 26. 
 
 ad litem, cannot submit, 26. 
 of lunatic, may submit, 26. 
 limitation on power of, to submit, 26. 
 submission concerning realty, 57. 
 
 HEARING, 
 
 proceedings at, controlled by arbitrator, 115. 
 time and place of, appointed by arbitrator, 116. 
 appointment revocable by arbitrator, 120. 
 parties entitled to be present at, 117. 
 notice of, must be served on party, 117. 
 
 by whom must be served, 117, 118. 
 
 in what cases necessary, 118, 119, 123, 125. 
 
 not given to surety, 119. 
 
 to attorney is sufficient, 119. 
 
 what is sufficient, 120. 
 
 time of giving, 120. 
 
 may be waived, 121. 
 
 what constitutes waiver of, 121. 
 
654 INDEX. 
 
 HEARING, — continued. 
 
 notice of, availing of insufficient, 121. 
 
 whether need be averred, 124. 
 ■will be presumed, 124. 
 non-attendance of party at, 121. 
 
 ex parte, in case of non-attendance of party, 121 et seq. 
 generally objectionable, 126. 
 not excused by motives of arbitrator, 126. 
 
 nor by irregularity of other party, 127. 
 excusable instances of, 127. 
 assent of party to, 128. 
 duty of party objecting to, 129. 
 curing objection on ground of, 129. 
 exclusion of party from, 128. 
 attendance of counsel at, 129-131. 
 
 (See Counsel.) 
 
 IMPLICATION. See Award; Cbetainty. 
 
 award may be co-extensive with submission by, 351. 
 mutual by, 382, 383, 440. 
 
 allowed in construing award, 439-441. 
 
 arising from award of costs only, 414, 415, 441. 
 INFANT, 
 
 submission by, is void or voidable, 4. 
 
 whether award will be enforced in equity against, 4. 
 
 ratification of voidable award as to, 531. 
 (See Guardian.) 
 INJUNCTION, 
 
 award sustained by, 608, 609. 
 INTEREST, 
 
 recoverable in suit on award, 584. 
 
 begins to run from demand, 584. 
 
 recoverable only in an action, 584. 
 ITA QUOD Ci^AUSE, 
 
 requires award to be co-extensive with submission, 340. 
 
 still retains its old force, 341. 
 
 in a measure superseded by modern rules of construction, 341. 
 (See Award.) 
 JUDGMENT, 
 
 separability of invalid order for, 468-469. 
 
 enforcing award by, 674. 
 
 MARRIAGE, 
 
 of feme sole revokes submission, 235. 
 MARRIED WOMAN, 
 
 how far may bind herse'f by submission, 26. 
 
 be bound by husband's submission, 27. 
 
INDEX. 655 
 
 MAERIED WOMA'N,— continued. 
 
 may submit as to her separate property, 27. 
 should be joined by husband in submission as to realty, 27, 28. 
 may submit in some oases under the old English law, 28. 
 submission by husband of, may be affected by award, 28, 29. 
 presumptions and burden of proof in submission by, 29. 
 MERGER, 
 
 effected by award, see Award, under division of Operation and 
 Effect. 
 MISCONDUCT, 
 
 of arbitrator, see Aebitkator, passim. 
 
 demonstration of partiality is, 532. 
 
 appearance of partiality is, 633. 
 
 receiving ex parte communications is, 534, 535. 
 
 relying wholly on statement of party is, 535. 
 
 unreasonable refusal of evidence is, 536. 
 
 refusing to take evidence in writing is not, 636. 
 
 receiving evidence in wrong form may be, 636. 
 
 refusing postponement may be, 636. 
 
 taking money is, 536. 
 
 buying claim is, 636. 
 
 private agreement with party is, 536. 
 
 of one of several arbitrators is fatal, 537. 
 
 what irregularity in conducting proceedings is, 637, 538. 
 
 permissive, 538. 
 
 in acting upon Sunday, 538. 
 
 mistake treated as, S23, 638, 639. 
 
 (See Mistake.) 
 question of, is one of fact for jury, 541. 
 how may be availed of, 541-544. 
 
 (See Pleading, Practice.) 
 answering allegations of, 544. 
 pleading, 696, 596. 
 MISTAKE, 
 
 in award, power of arbitrator to correct, 228, 229. 
 by arbitrator, inconsistency of decisions as to effect of, 292. 
 two classes of decisions, 292, 293. 
 doctrine that award is conclusive in spite of, 293-296, 
 
 297. 
 cases concerning, in matter of law, 297-299. 
 exception to general rule in matters of law, 299, 300. 
 
 cases covered by, 300. 
 general rule affected by stipulations in the submission, 
 where award is required to accord with law, 300-303. 
 construction of such stipulations, 301. 
 power given by award to Court to interfere for, 303 
 et seq. 
 
656 INDEX. 
 
 MISTAKE,— continued. 
 
 how such power may be given, 804 et seq. 
 
 by statement of intent to be governed by 
 
 law, 305, 306. 
 by stating grounds of decision, 307-310. 
 statement must be embodied in award, 
 
 309, 312, 313. 
 rule in England, 310. 
 suggestion of a distinction, concerning 
 
 effect of stating grounds, 311. 
 not, by statement of facts, 311, 312. 
 question is of arbitrator's in- 
 tent, 313, 314. 
 under submission of question of pure law, immaterial, 314. 
 whether by professional or non-professional arbitrator, immaterial, 315. 
 in matter of fact, effect of, 316 et seq. 
 
 where, prevents fair exercise of judgment, 316-320. 
 by arbitrator concerning contents of award, 320. 
 in law or fact, held in some cases a ground for vacating the award, 
 320 et seq. 
 
 character of tribunals asserting this doctrine, 321. 
 interference of equity, 321. 
 acknowledged by arbitrator, 323, 324, 325, 329. 
 construed as misconduct, 324. 
 acknowledged by referee, 329. 
 by arbitrator, on his own principles, 326. 
 in the nature of clerical errors, miscalculations, &c., 326-330. 
 must appear on face of award, 329. 
 or be acknowledged, 329. 
 corrected by recommitment, 333. 
 cannot be corrected by Court, 330, see 328. 
 by variance in duplicate awards, 330, 331. 
 whether available in defence in suit at law, 331, 332. 
 on motion to set aside award, 332. 
 by recommitment, 333. 
 
 (See Kecommitment.) 
 evidence of, not apparent on face of award, 336 etseq. 
 testimony of arbitrator to show, 336, 337. 
 promise to correct, 338. 
 pleading, 695, 696. 
 MOTION, 
 
 vacating award by, 611 et seq. 
 
 when proper, 611 et seq. 
 proceedings upon, 612. 
 
 on ground of misconduct, fraud, or partiality, 612, 613'. 
 not allowable if award be wholly void, 613, 614. 
 must be in open court, 614. 
 
INDEX. 657 
 
 MOTION, — confirmed. 
 
 discovery of new matter may be ground of, 614-616. 
 but is not always so, 614, 615. 
 affidavits as to such discovery, 615. 
 MUTUALITY, 
 
 is wanting where infant is party, 5. 
 
 (See AwAED, under division Mutuality.) 
 
 NONSUIT, 
 
 effect of an award ordering, 269. 
 NOTE, 
 
 award by promissory, of party, 269 et seq. 
 character of such a, 270, 271. 
 generally valid, 272. 
 but invalid if award be void, 272, 273. 
 recovery back after payment of invalid, 273. 
 defences to such a, 599. 
 NOTICE, 
 
 of hearing, see Hearing. 
 
 pleading concerning, 124. 
 presumption concerning, 124. 
 availing of want of, 124, 125. 
 of intent to employ counsel at hearing, 129, 130. 
 of revocation, 231. 
 of award is needless, 290. 
 
 when should be averred, 688. 
 
 OATH, 
 
 by arbitrator unnecessary, at common law, 100. 
 
 required by statute, 110, 111. 
 
 omission of, 111, 112. 
 
 form of, 112. 
 
 dispensed with by parties, 112. 
 
 presumption as to, 112. 
 
 need not be averred, 113. 
 
 whether omission of, can be shown collaterally, 113. 
 of umpire, 113. 
 
 of witnesses, power of arbitrator to administer, 131. 
 referee to administer, 131. 
 
 administered by magistrate, 132. 
 
 when imperatively required, 132. 
 
 unauthorized administration of, 132. 
 
 waiver of, by parties, 133. 
 
 form of, 134. 
 OFFSET, 
 
 power of arbitrator to admit matters in, 209. ■ 
 award must specify amount of, 351. 
 42 
 
658 INDEX. 
 
 OFFSET, — continued. 
 
 when award may be pleaded in, 508, 509. 
 OVERSEERS OF THE POOR, 
 
 power of, to submit claims of pauper, 7. 
 
 PARTNERS, 
 
 generally held not to be able to bind each other by submission, 7. 
 
 but may be authorized to do so, either directly or inferentially, 8, 12. 
 
 one, may bind only himself, 8, 9. 
 
 one not bound by submission or award may yet be concluded by 
 execution of the award, 9. 
 
 whether one authorized to sue, can therefore submit, 9, 10. 
 
 power of arbitrator in disputes between, 186 et seq. 
 (See Akbitkator.) 
 
 death of one, 233. 
 
 award not arranging dissolution between, 386. 
 
 what constitutes sufficient arrangement of dissolution between, 887. 
 PARTNERSHIP. See Partners. 
 
 certainty in award settling, 411. 
 PARTY, 
 
 who may be, to submission, 3, 4. 
 
 really in interest must be joined in submission, 29. 
 
 each, of record, must join in submission of suit, 33. 
 
 under duress cannot submit, 33. 
 
 (See Submission.) 
 
 generally entitled to notice of hearing, 117. 
 (See Hearing.) 
 when not entitled, 123, 125. 
 
 non-attendance by, 121 et seq. 
 
 entitled to time to examine evidence, 123, 124. 
 
 effect of admissions by, 128. 
 
 is competent witness, 141. 
 
 death of a, revokes submission, 233. 
 after award made, 234. 
 
 lunacy of a, revokes submission, 236. 
 
 reservation of judicial power to, avoids award, 394. 
 
 performance by representatives of deceased, 553. 
 PERFORMANCE. 
 
 of award, is waiver of precedent defects, 174, 175. 
 
 of inoperative orders in award, 483. 
 
 as preliminary to right to plead award in bar, 606, 590-692. 
 
 of condition precedent before pleading award in bar, 607. 
 
 when duty of, accrues, 645, 646. 
 
 colorable, is bad, 546. 
 
 according to intent, is sufficient, 547. 
 
 reasonable intent, is sufficient, 647. 
 
 how made of award ordering payment, 548. 
 
PERFORMAlSrCE, — continued. 
 
 of award ordering payment of rent, 548. 
 suit to cease, 549, 554. 
 party not to prosecute, 649. 
 execution of deed, 649. 
 by whom deed must be prepared, 649-551. 
 whether request for, is necessary, 552. 
 request for, if made, must follow award, 662. 
 
 may be made by agent, 553. 
 obligation of, created by tender, 663. 
 to a stranger, 653. 
 
 to and by representatives of deceased party, 663. 
 of award in excess of authority, 554, see 441, 442, 
 ordering indemnity, 564. 
 acquittance, 554. 
 not always necessary as preliminary to suit, 665, 666. 
 necessary, before suit brought, of dependent or concurrent orders or 
 
 of conditions precedent, 507, 556-558. 
 when made condition precedent, 658, 
 of impossible orders, not required, 559. 
 
 where impossibility results from act of party, 
 669. 
 of award in alternative, 660. 
 of unenforceable orders, 560. 
 need not be by arbitrators in person, 660. 
 status of the award after, 561. 
 delivery of security for, 561. 
 pleading, in defence, 697. 
 specific, see EiSTPokcbmbnt. 
 PLEADING, 
 
 pendency of arbitration at time of suit brought should be pleaded in 
 
 abatement, 79. 
 concerning oath of arbitrator, 113. 
 notice of hearing, 124. 
 excess of authority, 211-213. 
 revocation, 239. 
 concerning delivery of award, 283, 284, 285. 
 
 uncertainty in award, 434, 435. 
 where separation of the good part of the award from the bad part is 
 
 sought, 484. 
 award in bar to matter not nominated in it, 505, 606. 
 
 (See AwAKD, under division of Operation and Effect.') 
 estoppel by award need not always be pleaded, 518. 
 fraud or misconduct is not subject of demurrer, 541. 
 are personal charges, 641. 
 cannot be pleaded in defence, 542. 
 are ground for bill in equity, 543. 
 
660 INDEX. 
 
 PLEADING, — continued. 
 
 in answer to allegations of fraud or misconduct, 544. 
 fraud of party is defence in suit at law, 544. 
 count for revocation may be joined with count on award, 583. 
 what averments are necessary in pleading an award, 584-587. 
 in setting out the submission, 584. 
 
 nature of controversy, 586. 
 in averring order of court, 585, 
 
 readiness in time, 585, 586. 
 appointment of third arbitrator, 685. 
 delivery, 586. 
 invalijdity, 686. 
 request of performance, 689. 
 fraud or misconduct, 687. 
 notice, 688. 
 demand, 688, 589. 
 what averments are needed in setting forth the award, 587. 
 part only of the award, 588. 
 parol award, 689. 
 noprofert of award is needed, 588. 
 plea of " no award," 592-595. 
 
 that all matters are not decided, 596. 
 of fraud, misconduct or mistake, 595, 596. 
 illegality in the matter submitted, 696, 697. 
 performance, 697. 
 statute of limitations, 697, 598. 
 revocation of submission, 598. 
 marriage ot feme sole, 698. 
 oral waiver, 598. 
 oral alteration, 598. 
 plea that award was not ready, 699. 
 
 cause of action was not submitted, 699. 
 when a demurrer is proper, 599, 600. 
 demurrer to bill for specific performance, 608. 
 contents of bill to set aside award,, 620. 
 demurrer to such bill, 620. 
 making an arbitrator a defendant in such bill, 620, 621. 
 (See Assumpsit ; Debt ; Case ; Covenant, &c.) 
 PRACTICE, 
 
 how to avail of want of notice of hearing, 124, 125. 
 availing of objection that all arbitrators did not act together, 154. 
 discharging rule of reference on withdrawal of a referee, 160. 
 method of availing of objection of excess of authority, 211-213. 
 
 non-delivery of award, 284, 285. 
 that award is not co-extensive 
 
 with submission, 361. 
 want of finality, 406. 
 
INDEX. 661 
 
 PRACTICE, —continued. 
 
 ■ method of availing of want of certainty, 434, 435. 
 where the good and bad parts of the award are to be separated, 484, 
 
 485. 
 burden of proof under plea of award in bar, 506. 
 execution of the submission if denied must be proved, 600. 
 what is sufficient proof of, 600. 
 if submission be lost, 601. 
 
 ruled out, 602. 
 by evidence of part performance, 502. 
 admission of party, 502. 
 pleading and proving fraud in procuring submission, 602- 
 setting aside award on motion, see Motion. 
 
 (See Assumpsit ; Debt ; Casb ; Covenant, &c.) 
 PRESUMPTION, 
 
 is in favor of authority of agent making a submission, 6. 
 regularity of statutory submissions, 48, 49, 
 that all claims submitted have been presented, 79. 
 that oath was administered to arbitrator, 112. 
 that notice of hearing was given, 124. 
 that all the arbitrators acted together, 161. 
 that arbitrator has not exceeded his authority, 179. 
 to sustain award as to future action of parties, 201. 
 of arbitrator's performance of condition precedent, 277. 
 of readiness of award for delivery, 279, 283, 284. 
 as to award of particular thing under general submission, 350. 
 that award is co-extensive with submission, 348, 350, 362. 
 
 where award purports to be de et super pramissis, 362. 
 is not conclusive, 363. 
 
 but shifts burden of proof on impeaching party, 363. 
 cases showing rule of favorable, 363 et seq. 
 in doubtful cases, 365. 
 favorable, not always admitted, 365. 
 always in favor of validity of award, 446, 447. 
 that arbitrators have performed their duty accurately, 447. 
 limitations upon the rule of favorable, 448. 
 that award does not decide matters not submitted, 367. 
 arising out of award of general releases, 367, 368. 
 of the existence of facts establishing certainty in an award, 411, 412. 
 strengthened, if award be de et super prcemissis, 412. 
 in award concerning boundaries, 444. 
 
 where award and submission differ, 445. 
 favorable will be made to aid separability of award, 478-480. 
 of fraud, 539, 540, 541. 
 to aid award uncertain as to costs, 631. 
 PUBLICATION, 
 
 of award, see Awabd. 
 
662 INDEX. 
 
 EATIFICATIOlSr, 
 
 of submission made oy unauthorized agent, 13. 
 is made by acting on the award, 13. 
 
 allowing proceedings to continue, 14. 
 cannot be made by agent to submit, 15. 
 of award, 529-532. 
 
 (See AwAKD, under division Battfieation.} 
 REALTY, 
 
 questions concerning title to, may be submitted, 54, 65. 
 
 but not in New York, by statute, 55. 
 award concerning, of religious corporation, 4. 
 submission of value of, taken by railroad company, 5. 
 submission as to, does not bind vendee without notice, 14. 
 title to, cannot be submitted by counsel, 16. 
 
 administrator, 25. 
 submissions concerning title to, are nicely construed, 55 et seq. 
 conveyance of, may be ordered by arbitrator, 193, 1&4. 
 
 (See Conveyance.) 
 award disposing of interest in, must be in writing, 257, 258. 
 with what degree of certainty award must describe, 428-431. 
 title to, not vested by award, 511, 512. 
 award confirming title of, does not require deed, 518. 
 by whom deed of, is to be prepared, 549, 551. 
 specific performance of awards concerning,. 603, 604. 
 RECOMMITMENT, 
 
 extending referee's authority by, 224. 
 to correct acknowledged error, 329. 
 
 clerical error, 333. 
 for substantial alteration, 333. 
 formal alteration, 334. 
 ascertaining costs, 334. 
 functions of arbitrator after, 334, 336. 
 granting,, is in discretion of Court, 335. 
 must generally be of whole ease, 335, 336. 
 REFEREE, 
 
 substitution of new, 84. 
 
 judge cannot appoint himself, 105. 
 
 action of, in admitting or rejecting evidence, see Evidence. 
 
 applications to, {(X adjournment, 148. 
 
 (See Adjournment.) 
 mandamus to compel, to proceed, 160. 
 majority of, may report, 164. 
 
 authority of, extended as to time by a recommitment, 224. 
 need not report evidence, 278. 
 
 (See Arbitkator, passimJ) 
 REFERENCE, in Us pendens. 
 
 wherein different from submission, 49. 
 
INDEX. 663 
 
 REFERENCE, — continued. 
 
 confusion between the two, 49. 
 
 construed to be, by phraseology, 69. 
 
 general submission cannot be made a, without consent, 49. 
 
 will not discharge bail, 81. 
 
 may be changed into submission by acts of parties, 68. 
 
 of matters not properly referrible, 68, 69. 
 
 in cross actions, 81. 
 
 power of arbitrator in, 205. 
 
 substitution of new referee in, 84. 
 
 enlargement of rule of, 8,5. 
 
 by rule of Court, irrevocable, 232. 
 
 (See Arbitration; Award; Submission, pamm.) 
 REFUSAL, 
 
 to act, see Arbitrator. 
 
 to perform preliminary acts, 236, 237. 
 RELEASE, 
 
 may be ordered by arbitrator, 192. 
 
 too extensive, may be cut down, 192. 
 
 bad orders for, 193. 
 
 form and time need not be designated, 193. 
 
 when need not be ordered in award, 267. 
 
 effect on construction of award of ordering general, 367, 368. 
 conclusiveness of award, of ordering general, 493. 
 
 order for exchange of, makes award mutual, 379. 
 but not if release runs wrongly, 381. 
 
 construction of orders concerning, in the matter of separability, 
 462, 465. 
 
 may be executed to a stranger, 653. 
 
 execution of mutual, does not preclude inquiry into validity of 
 award, 619. 
 REPORT, 
 
 time for returning, 225. 
 
 effect of setting aside, 338. 
 
 vacating in Us pendens, 619. 
 RESTRICTION, 
 
 of language of award, 441, 442. 
 
 when not allowed, 442, 443. 
 REVOCATION, 
 
 of time set for hearing, 120. 
 
 by reason of delay of arbitrator, 226. 
 
 in fact and in law, 229. 
 
 time of making, 230. 
 
 stipulation that submission shall be irrevocable, 230. 
 
 by one of several who jointly constitute one party, 230. 
 
 by consent of all concerned, 231. 
 
 must be notified to arbitrators, 231 . 
 
664 INDEX. 
 
 REVOCATION, — continued. 
 
 when cannot be lawfully made, 231, 232. 
 none, of reference by rule of Court, 232. 
 formality requisite to valid, 232, 233. 
 by death of party, 233, 234. 
 
 one of several persons constituting one party, 234. 
 arbitrator, 234, 235. 
 by marriage of feme sole, 235. 
 lunacy of a party, 235. 
 arbitrator's refusal to act, 236. 
 institution of suit, 236. 
 
 neglect to perform necessary preliminaries, 236, 237. 
 a stranger, 238. 
 Congress, 238. 
 agent, 238. 
 damages may be claimed for, 238, 239. 
 pleading, 239. 
 pro tanto, by withdrawal of some matters, 843. 
 
 what constitutes such withdrawal, 343. 
 count for, may be joined with count on award, 583. 
 pleading, 598. 
 RULE OF COURT. See Submission ; Rbfbkencb. 
 
 SEAL. See Submission. 
 
 not needed on award, 259. 
 
 unless required by submission, 261. 
 SECURITY, 
 
 must be certainly described in award ordering it, 432, 433. 
 separability of order for, 457, 458. 
 for performance of award, 561. 
 SELECTMEN. 
 
 power of, to submit for town, 6. 
 SEPARABILITY, 
 
 of award, see Award. 
 SET-OFE. See Offset. 
 
 SETTING ASIDE. See Motion ; Practice ; Pleading ; Equity. 
 SPECIFIC PERFORMANCE. See Enforcement. 
 STATUTES, 
 
 concerning arbitrations do not abrogate common law right of sub- 
 mission, 43. 
 
 but otherwise in New York, 43. 
 submissions defective under, may sometimes be upheld as good at 
 common law, 44. 
 
 but not always, 48. 
 construction of certain requirements of, as material or immaterial, 
 
 44 et seq. 
 presumption is in favor of conformity with requirements of, 48, 49. 
 
INDEX. 665 
 
 STATUTES, — continued. 
 
 specifying subject-matter of submission, liberally construed, 57-59. 
 award under, see Awaed. 
 STRANGER, 
 
 to submission, is beyond arbitrator's authority, 202 ef seq. 
 orders for advantage of, may be good, 203. 
 order that act be done by, is generally void, 203. 
 
 but not always, 203, 204. 
 requiring party to procure acts to be done by, 204. 
 award ordering payment to, may be mutual, 883. 
 reservation of judicial power to, avoids award, 393, 397. 
 operation of award in respect of, 519-522. 
 
 (See Award, under division Operation and Effeet.") 
 may acquire rights under award by assignment, 523, 524. 
 no specific performance by, 608. 
 SUBMISSION, 
 
 is a contract, 3, 36. 
 
 definition of, 36. 
 
 parties to, must be competent to contract, 3. 
 
 must have power over subject-matter, 3, 4. 
 by an infant is void, or voidable, 4. 
 corporation may be party to, 6. 
 
 manner in which corporation may become party to, 5, 6. 
 by counsel, see Counsel. 
 selectmen, 6, 
 overseers of the poor, 7. 
 partners, 7 et seq. 
 
 (See Partners.) 
 by agent, 10 et seq. 
 
 (See Agent.) 
 by owner of realty does not bind his vendee without notice, 14. 
 executors and administrators, 19 et seq. 
 
 (See E. and A.) 
 guardian, 25 et seq. 
 
 (See Guardian.) 
 married woman, see Married Woman. 
 husband, see Married Woman. 
 United States District Attorney, 80. 
 assignees in bankruptcy, 30. 
 bankrupt, 80. 
 by persons having joint interests, 31. 
 parties really in interest should be joined with the nominal parties 
 
 in a, 29. 
 all parties to the record must join in, of suit, 33. 
 by divers persons of the one part, construed severally, 31. 
 may bind some and not others of persons engaging severally, 31, 32. 
 several bonds may create but one, 32. 
 
666 INDEX. 
 
 SVBMISSIO'R,— continued. 
 
 may bind those who sign, though some named do not sign, 32, 33. 
 by party under duress is invalid, 33. 
 what furnishes sufficient basis for, 36. 
 
 only matters inherently doubtful can be subject of, 36 et seq. 
 not making up accounts, 37. 
 
 or estimating work, 37, 38. 
 
 or surveying boundary lines, 38. 
 reference " to see whether" work is done, is not, 39. 
 how far agreements for appraisals are, 39 et seq. 
 
 certain distinctions, 41. 
 appeal to recollection is not, 43. 
 may be at common law or statutory, 43. 
 the two forms are collateral, 43. 
 defective statutory, may be good at common law, 44. 
 
 but not if defect be substantial, 46. 
 
 and some Courts" refuse to do this, 48. 
 
 what defects are or are not substantial, 44-47. 
 degree of particularity in statutory, 47. 
 effect of superfluous formality in statutory, 47. 
 courts seek to uphold statutory, according to apparent intent, -47. 
 presumption is in favor of validity of statutory, 48, 49. 
 statutory may contain stipulations in addition to statute, 72. 
 by order of Court, see Referbnce. 
 may be oral, written, and under seal or not, 50. 
 oral, are generally valid, 50, 52. 
 
 but not if contract as to subject-matter must be in writing, 50. 
 when must be in writing, 50, 51. 
 when seal is needed upon, 51. 
 verbal, of claim for dower, is good, 52; 
 no formalities required in, 52. 
 implies agreement to abide by award, 62. 
 must be certain, 63. 
 but if uncertain may be cured by award, 63. 
 
 deficiency will be supplied, if possible, 61-63. 
 bad in itself may be cured by conduct of parties, 63. 
 may be by indenture, 53. 
 
 or by bond, 53. 
 all civil matters are a subject of, 53. 
 criminal or illegal matters not generally a subject of, 63. 
 dower is subject of, 54. 
 divorce suit is subject of, 29. 
 owelty of partition is subject of, 64. 
 ejectment suib is subject of, 64. 
 single item may be subject of, 64. 
 
 whether actions on penal statutes may be subject of, 54. 
 questions of pure law may be subject of, 64. 
 
INDEX. 667 
 
 SUBMISSION, —coni!mMei. 
 
 future rights may be subject of, 54. 
 
 questions concerning real estate may be subject of, 54. 
 
 statute to the contrary in New York, 56. 
 boundary b'nes may be subject of, 55. 
 concerning title to realty, nicely construed, 65-57. 
 construction of statutes concerning, see Statute. 
 will be comprehensively construed, 69, 60. 
 but will not be stretched by forced construction, 64. 
 of " a claim," 60. 
 
 documents to be considered in construing, 61. 
 requiring act to be done under direction of arbitrator, 60. 
 in writing, invariable by parol evidence, 63. 
 supersedes prior agreement, 63. 
 priority in a duplex agreement of, 65. 
 extent of a general, 65-67. 
 
 general, does not include old and settled disputes, 66. 
 substantial fulfilment of conditional, 67. 
 effect of fulfilling condition of, 67. 
 construed as conditional, 67. 
 of a cause, 69. 
 
 extent of, 70. 
 
 includes all possible amendments, 70. 
 
 involving examination of account, 71. 
 
 operation on previous errors, &c., 71. 
 
 may be extended to alien matters, 72. 
 
 so extended, does not relate back, 72. 
 
 effect on jurisdiction of Court, 72, 73 et seq. 
 
 in separate actions, 72, 73. 
 
 whether works discontinuance, 73 et seq. 
 
 (See Discontinuance.) 
 interrupts the power of the court, pro tempore, 76, 77. 
 takes away power of court as to costs, 77. 
 when takes away right to appeal, 78. 
 when supersedes power of court, 78. 
 irregularity prior to, 78. 
 effect of, on right of action, 79. 
 making, a rule of court, 80. 
 alteration of, SI. 
 
 oral, 81. 
 alteration of written, 82. 
 
 by specialty, 82, 83. 
 
 by extending time named, 83, 84. 
 
 (See Time.) 
 withdrawal of some matters, 343. 
 
 (See Revocation.) 
 by substituting new arbitrator, 85. 
 
668 
 
 INDEX. 
 
 SUBMISSION,— continued. 
 
 suit upon, after alteration, 85. 
 
 clerical errors in, 85. 
 
 how long remains in force, 86. 
 
 not binding a party, fails also as to others, 86. 
 
 containing stipulation not to appeal, 86, 87. 
 revoke, 230. 
 to abide by award, 87. 
 
 scope of, in certain cases, 181-184. 
 
 ceasing to bind a party, 240. 
 
 reservation in, requiring award to be according to law, 300-303. 
 
 containing ita quod clause, 340, 341. 
 
 proving execution of, 600. 
 
 (See Peacticb.) 
 SUBSTITUTE, 
 
 appearing and proceeding before, 172. 
 
 arbitrator's power to name, 205, 206. 
 SUIT, 
 
 on award, performance as preliminary to, see Pbrfobmance. 
 
 award as basis of, 574. 
 
 (See Enforcement.) 
 
 may be brought immediately after publication, 577. 
 for costs before taxation, 577. 
 (See Costs.) 
 SUNDAY, 
 
 award made on, is void, 638. 
 
 order for payment on, is good, 538. 
 SURETY, 
 
 not entitled to notice of hearing, 119. 
 
 released by award extending time, 622. 
 
 TENDER, 
 
 under award, creates duty of performance in return, 553. 
 TESTIMONY, 
 
 Of Arbitrator. 
 to show mistake in award, 336, 337, 570. 
 
 award not co-extensive with submission, 361. 
 correct uncertainty, 435. 
 inadmissible to alter, correct, or explain award, 662, 663. 
 as to extrinsic facts, admissible, 564, 565. 
 
 grounds of decision, inadmissible, 565, 566. 
 
 cannot be compelled, 569. 
 admissions by a party, 566, 567. 
 incompetent to show non-oonourrenoe in award, 668. 
 incompetent to show misunderstanding of contents of award 668 
 admissible in case of fraud, 670. 
 
 as to proceedings, 670, 571. 
 
INDEX 669 
 
 TESTIMONY, — continued. 
 
 admissible as to what was presented, 571. 
 
 in difference, 572. 
 making of parol submission, 572. 
 of party, as to what was submitted, 599. See Evidencb. 
 TIME, 
 
 enlargement of by counsel, 19. 
 
 presumed from appearance of counsel, 19. 
 extension of, named, 83, 84. 
 
 by acts of parties, 84, 224. 
 by recommitment, 224. 
 acknowledgment of submission after, 84. 
 of hearing, see Hearing. 
 waiver of stipulations as to, 173. 
 construction of language concerning, 225. 
 reasonable, allowed where none is named, 225. 
 award invalid unless made within named, 261. 
 effect of not naming, of performance, in award, 424, 425. 
 in respect of concurrent or interchangeable acts, 445. 
 "^n connection with discovery of new evidence, 616, 617. 
 
 TITLE^T". 
 
 to personAlt-^_effect of award to vest, 509, 510. 
 to wife's chattels', eBtat of award to vest, 510, 511. 
 to realty, effect of award to vest, 511, 512. 
 
 by award of commissioners, 512. ^-■ 
 (See Realty.) .^•'* 
 TRESPASS, 
 
 award Cnding.tille or settling boirj^f&ry is defence in, 515, 616. 
 
 UMPIRE, X. -"' 
 
 differs from a third arbitrator, 241. 
 
 power to choose, 242. 
 
 unauthorized choice of, 242. 
 
 how to be appointed, 242, 243. 
 
 at what time may be chosen, 243, 244. 
 
 appointment of, does not conclude arbitrator's authority, 244, 245. 
 
 source of power to appoint an, 245. 
 
 nomination of substitute, 245. 
 
 appointment of, by parol, 245. 
 
 evidence of appointment of, 246. 
 
 duty of, to re-hear case, 246 et seq. 
 
 submission to " two and their," 248. 
 
 _v;aluation, 
 
 making, is a judicial act, 392. 
 VERDICT, 
 
 seperability of an invalid order for, 468, 469. 
 
670 INDEX. 
 
 WAIVER, 
 
 of previous errors, &c., in a cause, by submission, 71. 
 
 of right of appeal or exception, 86, 87. 
 
 of objections to competency of arbitrator, 102, 103. 
 
 by reason of attorney's knowledge, 104. 
 of notice, 121. 
 
 what constitutes, 121. 
 of objection to ex parte examination, 129. 
 of oath of witness, 133. 
 
 of irregularities in proceedings before arbitrator, 171. 
 must be accompanied by knowledge, 171. 
 by appearing and proceeding, 171 et seq. 
 not always thus effected, 173 et seq. 
 by silence, 172. 
 of defective execution of bond of submission, 172. 
 of stipulations as to time, 173, 224. 
 is a question of intention, 173. 
 of stipulations as to form of award, 174. 
 of all precedent defects, by performance of award, 174. 
 of a departure from the scope of the submission, 175. 
 of unauthorized choice of umpire, 242. 
 of strict compliance with statutes as to award, 26£, 
 of actual delivery of award, 281. i«»..ji-'**~""' 
 of beneficial provisions in bad part of award, 482. 
 pleading oral, v-f submission, 698. 
 WITNESS, 
 
 oath of, see Oath. 
 
 forcing attendance of, 134. . 
 
 when protected, like a witness 'n lis pen'^sr.s, 134. 
 
 extent of such protection, l.'^i. 
 party, or person interested, may be, 141. 
 admission of an incompetent, 142. 
 number of, may be limited by arbitrator, 144. 
 
 (See Arbitrator.) 
 death of, during adjournment, 149. 
 not needed upon award, 259. 
 
 unless required by submission, 261. 
 
 Cambridge : Press of John Wilson & Son.