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 t
 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 TREATISE 
 
 ON THE 
 
 W 
 
 O F 
 
 WARDS. 
 
 By STEWART KYD, Esq^ 
 
 BARRISTER at LAW, 
 OF THE MIDDLE TEMPLE. 
 
 Frontc exile negotium. — Aggreffis labor arduus. 
 
 Terence, 
 
 Multum magnorum virorum judicio credo ; aliquod et meo vindico. 
 
 Senec. 
 
 L N D N .- 
 
 PRINTED FOR S. CROWDER, P ATERNOSTE R -ROW, 
 AND 
 
 B. C. COLLINS, SALISBURY, 
 M,D C C,XC Ii
 
 T
 
 ^ TO 
 
 JOHN JOSEPH POWELL, ESQ. 
 
 BARRISTER AT LAW, OF THE MIDDLE TEMPLE, 
 
 THIS ESSAY 
 
 I s 
 
 MOST RESPECTFULLY INSCRIBED, 
 
 AS A TESTIMONY 
 
 OF THE HIGH SENSE THE AUTHOR ENTERTAINS 
 
 OF THE HONOR OF 
 HIS FRIENDSHIP AND GOOD OPINION, 
 
 AND OF 
 THE JUST ESTIMATION IN WHICH HE HOLDS 
 ^ HIS CHARACTER AS A LAWYER 
 
 AND A WRITER. 
 
 7Gi718
 
 TABLE OF CONTENTS. 
 
 FACE 
 
 tNTRODUCTION . - - ._ , 
 
 Difinitions _ - -. _ . ^ 
 
 D'ljiribiition of the Sul']c£l - - ^ « ^ 
 
 CHAP. I. 
 
 Submission. 
 
 How it fnall he «. - _ j 
 
 //y Extent - - - ^' j^ 
 
 //otc conjlrued - - - i6 
 
 CHAP. II. 
 
 The Parties. 
 
 Who may fuhmh - - - 20 
 
 Who Jhall be bound by an Award - 24 
 
 JVho may take Advatttage of an Award - 29 
 
 CHAP. III. 
 
 The Subject of Reference. 
 
 What fuhjeSls of Controverfy may be fubmitted 
 to Arbitration, and what not - - 3 r 
 
 CHAP. IV. 
 
 The Arbitrator and Umpire. 
 
 JVho may be an Arbitrator - - 41 
 
 Invejiigation of the Cafes relative to the 
 Manner and Effed of the Appointment of 
 an Umpire - - - 46 
 
 Proceedings by Arbitrators - ~ 59 
 
 How far they may rcferve an Authority to 
 
 thejnjelves - - _ _ y^ 
 
 Hoiv far they may delegate their Authority 82 
 
 CHAP.
 
 VI CONTENTS. 
 
 CHAP. V. 
 
 The Award or Umpirage. 
 
 11}e Award mujl be according to the Buhmljfioyi 91 
 It mvjl not extend beyond the Submijjion - gz 
 2^or to a Stranger to the Submijfion - 105 
 
 2lfii/i not be of Parcel only of the Things fub- 
 
 f nit ted - - - - 114 
 
 JHuJl fiot be of any Thing againfi Latv '- 122 
 iVor of a Thing impojfibU - - 123 
 
 Jt 7nujl be reafonable - - -126 
 
 ■ advantageous - - 128 
 
 ' certain - ~ - - 129 
 
 JVhen Uncertainty may be helped by Averment 1 3 8 
 Jt muJl be final -» - - 140 
 
 — mutual - - - 147 
 
 Moiu Awards JJiall be conflrued - 154 
 
 When an Award^ though void for Part^ fiall 
 
 be good for the Ref due - - 165 
 
 The Form of the Award - - - lyg 
 
 JVhat foall be Performance - - 1 80 
 
 IVhat fhall be a Breach - - - 186 
 
 CHAP. vr. 
 
 The Remedy to compel Performance, 
 WHEN the Award is properly made. 
 
 By the Ro7nan Lazu - - - 1 89 
 
 When the Submlffion is verbal - - 189 
 
 When the Submlffion is by Bond - - 192 
 
 When by Reference at Nifi Prius - 214 
 
 When by Bond according to the Statute - zi6 
 
 By Bill in Equity - _ - 219 
 
 CHAP.Vn. 
 
 The Means of procuring Relief against 
 AN Award when improperly made. 
 
 When the Objeoilon arifes on the Face of the 
 Aiuard - _ _ » - 226 
 
 When
 
 CONTENTS. VII 
 
 IPlien frojti cxtrlnfjc Circurn/Iances ~ iiS 
 
 — — By Bill in Equity - - - 227 
 
 •■ By fummary Application to the Court 254. 
 
 For what Caufes an Award may be Jet afide 236 
 CHAP. VIII. 
 
 The Effect of the Award in preclud- 
 ing THE Parties from suing on the 
 ORIGINAL Cause of Action, which was 
 THE Subject of the Reference - 242 
 
 Conclufion - - - - - 2x0
 
 TREATISE 
 
 ON THE 
 
 LAW OF AWARDS. 
 
 INTRODUCTION. 
 
 IN the progrefs of fociety, a confiderable time elapfes, after 
 the ideas of property, and of the exclufTve rights of the in- 
 dividual, have arifen in the minds of men, before a compulfory 
 fyftem of diftributive juftice can be completely eftablifhed. 
 During that unfettled period, every difpute, for the decifion of 
 which the pafTions of the difputants do not prompt them to ap- 
 peal to the chance of arms, is terminated either by a mutual 
 agreement, the conditions of which are fettled by thcmfelves, 
 or by the intervention of their friends ; or by a reference to fome 
 indifferent perfon, of whofe fuperior wifdom and equity they 
 have formed a favourable opinion. The fecurity which each 
 party has for performance by the other, in the f.rft mode of 
 fcttlement, arifes partly from the nature of the agreement, which 
 coniifts perhaps of mutual conceffions to be made at the fame 
 time, partly from the fear of mutual violence in cafe of refufal, 
 and partly from that fenfe of honour and refpevfl for the opinion 
 of others, which in every period of fociety has a confiderable 
 influence over the mind. In the other mode, by reference, be- 
 fidc thefe principle?, which are et^ualiy applicable to tliis as to 
 
 B the
 
 -i t^TKODUCTlON. 
 
 the flrft cafe, there is an additional fecurity, arifing from the opi- 
 nion which the contending parties entertain of the juftice of the 
 arbitrator. It muft foon have been found, however, that fomc- 
 thing more than all thcfe was wanting to procure a ready and 
 uniform obedience to the judge ; and it became necefTary to arm 
 him with the collccStivc power of the focicty, to enable him *^o 
 enforce the execution of his decrees. Yet after the multiplied 
 concerns, and the complicated rights of men, had rendered the 
 fcience of law a diftin6t profeflion, and courts with a regular 
 courfe of proceeding were eflabliHied, many reafons concurred, 
 in many cafes, to induce contending parties ftill to have recourfe 
 to the original mode of reference, to a domeftic judge chofen by 
 their mutual confent. 
 
 Under whatever fyftem of law regular courts for the diftri- 
 bution of juflice are crcfled, it is found neceflary, in order to 
 give certainty to their decifions, to adapt peculiar forms of ac- 
 tions, and modes of pleading, to the particular nature of the cafe, 
 and to eftablifh certain formalities in the manner of bringing the 
 parties before the court. The confideration of expence, that 
 muft neccflarily be incurred before a hearing can be obtained, 
 ?.nd a fear that a technical miftake in fome part of the proceed- 
 ings may endanger the party's fuccefs, often prevail with him, 
 though fatisfied of the juflice of hiscaufe, to refer it to the de- 
 cifion of an indifferent perfon, before whom he may explain 
 every circumflance, without the apprehenfion of failing from ig- 
 norance of form. An action, too, can feldom decide more than 
 a fmgle queflion; but the variety of tranfa6lions, which, from 
 the nature of improved focicty, muft frequently have place be- 
 tween contending parties, requires a tribunal which can com- 
 pletely invcftigate the whole, fet one claim or one injury againft 
 another, and pronounce fuch a fentence as will put an end at 
 once to all their difputcs. All courts have found it neceflary to 
 eftablini particular modes of proof, and Certain rules of evidence ; 
 and one, amongft the latter, which is founded in the firft prin- 
 ciples of juftice and public policy, " that no man fhall be per- 
 mitted to give evidence in his own caufe." But this rule, like 
 many others founded on general principles, and eilablifhed for 
 
 general
 
 INTRODUCTION. 3 
 
 general convenience, is fometimes pcodu6\\vc of particular hard- 
 fhip. From the nature of the tranfadtion itfelf, perhaps j from 
 the length of time that may have elapfed Ance it took place i 
 from the want of precaution in the parties to have their agree- 
 ment witnefled, or reduced into writing at the time ; and from 
 many other circumftances, it may frequently happen, that either 
 there is no other evidence than the teftimony of the parties them- 
 felves, or what there is without thefe may be very infufficicnt to 
 enable a public tribunal to draw a pofitive and certain conclufion. 
 In fuch a cafe, a judge, who can examine the parties to the tranf- 
 aclion, who can obfcrve their looks and demeanour, and who, 
 without being confined to the ftrid rules of evidence, is at li- 
 berty to decide from circumftances of probability, has mani- 
 feftly a fmgular advantage. A convidfion of the good policy 
 of encouraging thefe domeftic tribunals, has induced thofe who 
 have prefided over the formation of the civil code, to lend them 
 their afliftance to enforce obedience to their decrees : that af- 
 fiftance, however, is not given indifcriminately in all cafes, 
 without examining into the propriety and juftice of the award ; 
 it has been thought proper to eftabliih rules of interpretation, 
 derived from the nature of the authority conferred upon the ar- 
 bitrators, and the implied engagement under which the con- 
 tending parties bind themfelves by their fubmiffion : accordingly 
 we find, that the title Awards makes no inconfiderable figure in 
 almoft every fyftem of law with which we are acquainted. The 
 rules which have been eftablifhed with refpedl to awards, in the 
 Englifli law, in their general fpirii and fundamental principles, 
 bear fuch a refemblance to thofe which are found in the pandeft 
 and code of Juftinian (a)^ that there can be little doubt that the 
 latter are the fource from whence the former fprung. By what 
 flow gradations the greater number of them were firft received 
 into the Roman law, it is impoflible now to difcover, as they 
 are given as acknowledged and long eftablifhed rules at the time 
 when the pandedt aaid code were compiled : nor is it more eafy 
 to fay, at what precife period they were adopted here, or whether 
 they were admitted at once, or by degrees, as a component part 
 
 B 2 of 
 
 (a) Ff. 1. 4. t. 8. Cod.l. z. t. 56.
 
 4 INTRODUCTION. 
 
 of our judicial fyftem. In the moft ancient repofitories (a) of 
 the decifions of our courts, the greater part of them are men- 
 tioned as known and uncontroverted law. It is chiefly in the 
 application of them to particular cafes, and with refpe6t to the 
 manner in which efFe^l {hall be given to them, by pleading or 
 otherwifc, that they have been the fubjedt of litigation for many 
 centuries paft. 
 
 Under each head into which the fubjefl: of awards naturally 
 divides itfelf, it is propofed, not barely to lay down the law as it 
 is received at the prefent day, but as far as the determinations of 
 the courts on that fubjecSl, which have been preferved in the books 
 of reports, will permit, to trace the variations of opinion which 
 have at different periods taken place, and the grounds on which 
 every queftion has been at laft decided. In the execution of this 
 plan, it may fometimes perhaps be necefTary to detail a feries of 
 technical fubtleties, which, fome may think, might as v/eH have 
 been omitted : to thofe, however, who confider that, in every 
 fyftem, few laws owe their exiftence to legiflative wifdom, con- 
 templating the pofTible relations and general interefts of fociety, 
 and providing at once, by a pofitive edi£t, a folution for every 
 queftion to which the various tranfadlions of men with each other 
 might in a feries of ages give birth, but that by far the greateft 
 number have been eftablifhed as each particular queftion has 
 arifen ; that the paffions of the client have a tendency to influ- 
 ence the mind of the advocate, and that the advocate is often 
 ready to alTift the client in repelling the claim of his opponent, 
 by all the fubtleties with which his profcflional purfuits have 
 armed him — To fuch readers, this detail will probably appear the 
 leaft faulty part of the work. 
 
 DEFINITIONS. 
 
 That adl, by which parties refer any matter in difpute be- 
 tween them to the decifion of a third perfon, is called a fubmiffion j 
 the perfon to whom the reference is made, an arbitrator ; when 
 the reference is made to more than one, and provifion made, that 
 in cafe they fhall difagree, another ihall decide, that other is 
 
 called 
 (a) Yearbooks.
 
 THE SUBMISSION. 5 
 
 called an umpire ; the judgment pronounced by an arbitrator, or 
 arbitrators, an award ; that by an umpire, an umpirage, or, lefs 
 ^•>roperly, an award, (a) 
 
 DISTRIBUTION of the SUBJECT. 
 
 The moft natural diftribution of the fubjeil fcems to be under 
 the following heads c 
 
 I. The SubmifTion. 
 
 II. The Parties to it. 
 
 III. The Subjea of Reference. 
 
 IV. The Arbitrator and Umpire. 
 
 V. The Award, or Umpirage. 
 
 VI. The Remedy to compel Performance, when the Award 
 or Umpirage is properly made. 
 
 VII. The Means of procuring Relief againft it when impro- 
 perly made. 
 
 VIII. And laftly, its EfFed in precluding the Parties from 
 fuing on the original Caufe of Adlion, which was the Subje*5l of 
 the Reference. 
 
 C H A P. I. 
 
 The SUBMISSION. 
 
 THE SubmifTion may be purely by the a£l 
 of the parties themfelves ; or it may be How it JJ?all be. 
 by their atSl with the interpofition of a court. 
 
 In the ancient Roman law, whether the fubmiflion was made 
 in the one or the other of thefe ways, there was no complete 
 remedy for non- performance, unlefs the parties bound themfelves 
 reciprocally, either to perform what fliould be awarded, or to 
 incur the forfeiture of a fum of money, or of fome other fpecific 
 
 B 3 thing 
 
 (a) Domat. i vol. 223.
 
 6 THESUB MISSION. 
 
 thing C(i) ; except In the cafe where the parties were mutual 
 debtors, and they promifed mutually, that he who did not obey 
 the award ftiould not fue for what was due to him, which was in 
 fubftance the fame thing as a fubmiflion under a penalty, (b) 
 
 Justinian, however, in fome meafure, though very inade- 
 quately, provided for the cafe of a fubmiflion with a fimple pro- 
 •mife to Hand to the award. He enatfted, that whether fuch a 
 fubmiflion v/as verbal or in writing, then if the parties, after the 
 award made, fubfcribed that the judgment did not difplcafe them ; 
 or i^ within ten days, they did not exprefsly declare they were 
 diflatisfied with it, each fliould have a remedy againfl: the other, 
 in cafe of non-performance, (c) And where the fubmiflion was 
 accompanied by an oath to ftand to the award ; or the arbitrator, 
 by the confent of the parties, bound himfelf by an oath to end the 
 
 (a) Ex compromifTo placet excep- 
 tionem non nafci, fed poenae petitio- 
 nem. Ff". 1. 4, t. 8, f. 2. Tametfi 
 reminem praetor cogat arbitrium re- 
 cipere— — tatnen ubi femel quis in it 
 receperit arbitrium — quifquamne po- 
 teft negare aequiflimum fore praetorem 
 Jnterponere, ut oflficiiim quod in fe re- 
 cepit, impleret ? Ait praetor, " Qu^i 
 arbitrium, pecunia compromifsa rece- 
 perit." 1. 4, t. 8, f. 3, n. I, z. — Ar- 
 bitrum autem cogendum non efle fen- 
 tentiam dicere, nifi compromiflum in- 
 tervenerit. Quod ait prxtor, " Pe- 
 cuniam compromiflam :" accipereno? 
 debemus, non fi utrimque pasna num- 
 maria, fed fi et alia res vice poenae, fi 
 quis arbitri fentcntiae non fteterit, pro- 
 miffa fit. f. II, n. i, 2. 
 
 {b) Interdum reQ.e nudo paSlo 
 
 fiet compromiffum ; ut puta, fi ambo 
 debitores fuerunt, et pa61i funt " ne 
 petat quod fibi debetur, qui fenten- 
 tiae arbitri non fteterit." 11 n. 3. 
 
 (c) Si quis prefens arbitrum, fen- 
 tentiam dicere prohibuit, poena com- 
 mittetur. Sed fi ppena non fuiiTet 
 
 adjefta compromiflb, fed fimpliciter 
 " fententiae ftari" quis promiferit : 
 incerti verfus cum foret aftio, Ff. lib. 
 4, t. 8, f. 27, n. 6, 7. — Cum antea 
 fancltum fuerat in arbitris eligendis j 
 quos neque poena compromilTi valla- 
 bat, neque judex dederat, fed nulla 
 fententia prascedentc communis elec- 
 tio, " ut illoi^um fententiae ftaretur," 
 procreabat — nihil ex eo procedere prae- 
 fidii ; fancimus in eos aibitros — ut 
 eorum definitioni ftetur, fiquidem fub- 
 fcripferint, — " quod non difpliceat 
 ambabus partibus eorum fententia :" 
 non folum reo exceptionem veluti pafli 
 generari, fed etiam a6loii in faftum 
 a61ionem. Sin autem poft fententiam 
 minime quidem fubfcripferint, " lb 
 arbitri formam amplefli," fed filentio 
 earn roboraverint et non intra decern 
 dies proximos atteftatio miffa fuerit— • 
 perquam manifeftum fiat definitionem 
 non effc ampleftendam ; tunc filentio 
 partium fententiam roboratam efle, et 
 fugienti exceptionem, et agent i me- 
 moratam aftionem competere. Cod. 
 1, 2, t. 56, f. 5. 
 
 difpute
 
 T H E S U B M I S S I O N. 7 
 
 difputc with all regard t(? truth, the fame emperor enaited, that 
 both parties fhould be bound, (a J 
 
 In the law of England, where the fubmiflion is by the bare aft 
 of the parties, without the intervention of a court, it may be 
 either verbal or in writing : where it is merely verbal, it may be 
 fimply an agreement to fubmit the matters in difpute to the de- 
 cifion of the arbitrator, without an exprefs promifp to perform 
 the award ; it may be accompanied by fuch a promife, without 
 the mention of any confideration for it; or it may be with fuch 
 a promife, on a certain confideration : in all thefe cafes, however, 
 the efrect is now the fame; but the diftindlions were formerly 
 held to be material. At all times a fubmiflion, in any of the 
 forms, was held fufficient to maintain an aftion on the award, if 
 it was only for the payment of money : but if the award was of 
 any collateral act, there was no means of compelling perform- 
 ance, (b) It was however held, at a very early period, that if 
 the parties " promifed" to one another, on confideration of any 
 fum, however trifling, to perform the award, an action might be 
 maintained on fuch promile, though the award was of fomethin"- 
 elfe than the payment of money, (cj The next ftep was to Cup- 
 port an action on fuch an award, where the fubmiflion was by 
 mutual promlfes only, (dj It was fomewhat later before the 
 
 (a) Si inter aiSlorein et reum nee 
 non ipfum judicem fueiit confenfum, 
 ut cum facramenti leligione lis proce- 
 tlat, et litigatores hoc luis manibus 
 vel per publicas pcrlbnas fciipferint, 
 vel — propria voce depofuerint, quod 
 facramentis prseltitis arbiter deftus 
 ell, hoc etiain addito, " quod et ipfe 
 arbiter juramentum prxftiterit fuper 
 lite cum omni vcritate diriinenda — -." 
 vel [\ dearbitro nihil tale I'uerit com- 
 poiitum vtl fcriptum, ipfae autem par- 
 tes literis manifellaverint, quod iura- 
 menti ncxibus fe illigaverint, ut ar- 
 hitri iententire Itctur— five ab initio 
 hoc fucrit ab his fcriptum, vel prrc- 
 fato modo depofitum dum arbiter cli- 
 gebatur, five polt defir.itivam fenten- 
 tiim hoc fqiptum inveniatur, " Quod 
 
 cum facramenti religioiie ejus Eudicn- 
 tiam amplexi funt :" vel " Quod ea 
 qux ftatuta fint, adiinpicre jurave- 
 rint."— Sed et fi ipfe folus arbiter, hoc 
 litigatoribus pofcentibus— praftiterit 
 juramentxim, " Qnod cum cmr.i ve- 
 ritate liti libramenta imponat." — In 
 his omnibus cafibus liceat vel in fac- 
 tum, vel condiilioncm ex lege, vel in 
 rem utikin iiillitucre aftionirm, fe- 
 cundum quod faoti qualitas pollula- 
 verat. Cod. 1. 2, t. 56, f, 4. 
 
 {b) Per Holt, 1 L. Raymond, 248. 
 
 {c) Gouldfborough, 92, pi. 4. 
 
 (J) 1 Ld. Raymond, 1 12. Squire 
 V. Greville, 6 Mod. 35. a Ld. Ray- 
 mond, 961, 965. Vid. 6Mod. 222. 
 2 Ld. Raymond, 1039. i. Salk. 76. 
 
 B4 
 
 very
 
 8 THESUBMISSION. 
 
 very afl of fubmifiion was ccnfidered as implying a promife in 
 itfelf to abide by the determination of the perfon to whom the 
 matter was referred ; and that anaftion might in all cafes be fup- 
 ported on fuch a fubmiffion. 
 
 When the fubmiilion is in writing, it is moft commonly by 
 mutual bonds, given by the parties each to the other, in a certain 
 fum penal, on condition to be void on performance of the award ; 
 but it is not eflentjally necefliiry that they fhould be fo given ; 
 they may be given to a third perfon, or even to the arbitrator 
 himfelf : (a) and they may be given by other perfons than the 
 parties themfelves, who will incur the forfeiture if the parties do 
 not perform the award. 
 
 Nor is itneceflary that, on each of the bonds, it (hould appear 
 of how many perfons the parties to thefubmifllonconfift. Thus, 
 where (b) it appeared that there were three brothers, Richard, 
 Robert, and William ; that their father had devifed certain lands 
 to the two latter, and that feveral difputes arifing between them 
 and Richard, they had, by bond, fubmitted to arbitration ; Rich- 
 ard entering into a bond to Robert and William jointly, but they 
 giving him feparate bonds : it was held, after feveral arguments 
 on an adlion brought by Richard againft Robert, that the fub- 
 miffion was properly made. 
 
 The fubmiffion may alfo be by indenture with mutual cove- 
 nants to ftand to the award, (c) 
 
 It is ufual, in articles of copartnerfliip, to infert a provifion 
 that all difputes arifmg between the partners relative to their bu- 
 fmefs, or to any covenant in the articles, (hall be referred to ar- 
 bitration. This provifion has fo far the effedl of a fubmilTion, 
 that one of the partners cannot fue another either at law or in 
 equity for any matter within the terms or meaning of the pro- 
 vifo, without having firft had an actual reference, which has 
 proved ineffedual, or a propofal by the plaintifl' to refer, and re- 
 fufal by the defendant. 
 
 (a) Vid. 36 H. VI. 8. 7.Z Ed. 
 IV. 25 a. Owdy v. Gibbons. Comb. 
 100. 
 
 (b) Hayes v. Hayes, Cio. Car. 
 
 433. 
 
 (c) zMod, 73. 
 
 To
 
 THESUB MISSION. 9 
 
 (n) To a bill filed for difcovery and relief agair. ft frauds, the 
 defendant pleaded, that the plaiiitifFand he had, on the 15th of 
 November, 1728, executed articles of copartncrfliip, by wiiica 
 they had covenanted to become joint traders as Blackwell-hall 
 factors, for eight years, and agreed that in cafe any difference 
 IhoulJ arife relating to their bufinefs, or with rcfpefl to any co- 
 venant in the articles, it fhould be referred : and a'/erred that ail 
 matters in t!ic plaintiff's bill related only to the partnerfhip, and 
 that they had never been fubmittcd to arbitration, nor had the 
 plaintiff ever propofcd a reference, or nominated any pcrfon to be 
 an arbitrator, though the defendant had offered and was always 
 ready to fubmit all matters to arbitration. 
 
 Lord Hardwicke is reported to have difallowed the plea, net 
 becaufe he thought that an agreement of this kind could not be 
 pleaded, but becaufe there was no power in the prefent inftance 
 given to the arbitrators to examine the parties, as well as wit- 
 neffes, upon oath. 7"he bill was to obtain difcovery and relief 
 againff frauds, impofition?, and concealments, which without 
 fuch a power, the arbitrators could not examine. It the pltra 
 were to be allowed as to the relief, therefore, it could not, as to 
 the difcovery, and it was beneath the dignity of the court to ad- 
 mit a difcovery, in order to affilt the arbitrators. 
 
 But in a late cafe, (b) where a limilar plea was pleaded, the 
 Mafter of the Rolls aflerted that this opinion of Lord Hardwicke's 
 muff have been mifreoorted, becaufe the parties could not givs 
 the arbitrators fuch a power. 1 here could be no doubt, that 
 parties entering into an agreement tliat all difputes iliould be re- 
 ferred to arbitration, were bound by fuch agreement. If it had 
 been actually referred, and the arbitrators had found the exami- 
 nation of the parties infufficient, they would have declined to de- 
 termine, and then the jurifdiclion of the court would have been 
 rcllorcd ; this was an anfwcr to the objeflion that the pka ilioulJ 
 not go to the dilcovery. If it had become nccelHiry for the in- 
 formation of the arbitrators, that there fhouid be a difcovery, 
 
 (a) Wellington V. Mackmtofli. 2 Atk. 5S5 (569). 
 (h) K^nyon. UalthiJ;; v. Fencing. 1 Blown, 336. 
 
 tlie
 
 lO T H E S U B M I 9 S I O Ni 
 
 the bill ought to have ftated that fafl : the firfl: appeal mufl: he to 
 thofe judges pointed out by the articles i if" they could not deter- 
 mine the controvcrfy, they would remit it to the court. 
 
 However to render the plea valid, it muft appear clearly that 
 the fubjecl of controverly falls within the meaning of the cove- 
 nant to refer.— faj In an indenture containing feveral cove- 
 nants, there was a provifo that if any mifunderftanding or con- 
 trovcrfy fhould arife in future by reafon of any claufe, article, or 
 other agreement in the indenture contained, that then before any 
 fuit (hould be attempted, the parties fhould choofe arbitrators for 
 the determination of the difpute. A bond was alfo given for the 
 performance of covenants contained in the indenture : the de- 
 fendant being fued on this bond, pleaded this provifo, and al- 
 ledged that the difpute and controverfy, on which the ailion was 
 brought, arofe on the indenture. The court held the plea was 
 defective, becaufe it did not fpecially fhew on what particular 
 article the controverfy arofe, and enable them to judge whether 
 the matter was the proper fubjefl of reference within the mean- 
 ing of the indenture. They alfo held, that the words of this 
 provifo did not extend to bind the parties to fubmit the *■' breach" 
 of every covenant or article in the indenture, but were confined 
 to the cafe where a difpute arofe on the " conitru(^'tion" of any 
 covenant. 
 
 And parties cannot be precluded from purfuing their right in 
 the ordinary courfe, by any reftridion laid upon them by another 
 from whom they derive their title to the fubject in difpute ; C^J as 
 if a teflator direct, that whatever controverfies fhall arife on 
 the conftruflion of his will, they (hall be decided by fuch and 
 fuch arbitrators ; the legatees, or parties claiming under the will, 
 may, notwithftanding, have them decided at law, if they think 
 proper. 
 
 All the cafes of awards, reported in the books for a long fe- 
 ries of years, appear to have been made on fubmifTions, by one 
 cr other of thefe methods, by the act of the parties only ; but 
 when mercantile tranfadtions came to be frequently the fubjeft 
 
 i^c) Paimort v. Giiffina. i Leon. 37. 
 (bj Dift. peiPovvysJ. 10 Mod. '19. 
 
 of
 
 THE SUBMISSION. II 
 
 of Jifcuflion in the courts, it was foon found that a judge and 
 a jury were very unfit to unravel a long and intricate account, 
 and it therefore became a pradtice, in cafes of that kind, and 
 others which feemed to be proper for the fame tribunal, to refer 
 the matters, by confcnt of parties, under a rule of niji priuSy 
 which was afterwards made a rule of that court out of which xl\z 
 record proceeded, and performance of the award was enforced by 
 procefs of contempt. This practice docs not appear to hiive 
 begun before the reign of Charles II. for the reports of that pe- 
 riod fhew, that it was not before the latter end of that reign 
 that the courts granted their interpofitlon without relutSlance; 
 and in more inftances than one a judge is ftated to have faid, that 
 thcfc references were but newly introduced, and he never knew 
 any good to arife from them. But their utility was fo well felt a 
 (hort time afterwards, that, in the reign of William III. in imi- 
 tation of them a ftatute ^a) was made, reciting, that * It had 
 ' been found, by experience, that references, made by rule of 
 
 * court, had contributed much to the eafe of the fuhject, in de- 
 
 * tcrmining controverfics ; becaufe the parties became thereby 
 *■ obliged to fubmit to the award of the arbitrators, under the pe- 
 ' nalty of imprifonment for their contempt, in cafe they rcfufed 
 
 * fubmiflion ; and " enacting," * for promoting trade, and ren- 
 
 * dering the awards of arbitrators the more effedual in all cafes, 
 
 * for the final determination of controverfics referred to them by 
 
 * merchants and traders, or other?, concerning matters of ac- 
 
 * count or trade, or other matters,' " That it fhall and may be 
 " lawful for all merchants and traders, and others, dcfiring to 
 " end any controverfy, fuit, or quarrel, controverfics, fuits, or 
 " quarrels, for w^hich there is no other remedy but by pcrfonal 
 *' action or fuit in equity, by arbitration, to agree that their fub~ 
 *' m'tfj'ion of their fuit to the aiuard or tunpirage of any pcrfon or 
 *' pcrfoHS^ JhonlJ be made a rule of any of his Mojcfifs courts of 
 " record xvhich the parties Jhall choof\ and to ijifert fuch their 
 " agreement in their fubmiffion, or the condition of theZ-on/Zor 
 " promfcy whereby they oblige themfelves refj^edlively to fub- 
 *' mit to the award or umpirage of any perfon or perfons ; which 
 
 *' agreement 
 (a) 9 and lo W. III. c. 15, f. i.
 
 12 THE SUBMISSION*. 
 
 '' agreement being fo made and inferted in thi^'w fiihniijjion or prO' 
 " mifey or co::dithn of their rejpecilve bondsy fnall cr may, upon 
 " producing an afndavit thereof, made by the witnefTes there- 
 " unto, or any one of them, in the court of which the fame is 
 " agreed to be made a rule of court, and reading and filing the 
 '■'■ faid affidavit in court, be entered of record in fuch court, and 
 *' a rule ftiill thereupon be made by the faid court, that the par- 
 " ties Ihali fubmit to, and finally be concluded by the ai'jitration 
 " or umpirage which fliall be made concerning them, by the 
 " arbitrators or umpire, purfuant to fuch fubmilTion ; and in cafe 
 ^' of difobedience to fuch arbitration or umpirage, the party neg^ 
 " letting or refufing to perform and execute the fame, or any 
 " part thereof, fhall be fubje6l to all the penalties of contemning 
 *' a rule of court, when he is a fuitor or defendant in fuch court ; 
 " and the court, on motion, fliall ifTue procefs accordingly." 
 
 By the words of this flatute it is manifeft, that the fubmiffion, 
 and the agreement to make that iubmiflion a rule of court, may 
 be merely verbal, though the general pradlice is to fubmit by 
 bond. 
 
 When the fubmi/llon is according to the provifions of this 
 flatute, the court will compel a witnefs to it, to make an affida- 
 vit cf it, in order to enforce the award : for though the words of 
 the ilatute be not compulfory, the very nature of the thing gives 
 the court a jurifdiv?.ion over the witnefs. The a(ftof jiarliament 
 has a:->\>ointed only this v/ay bv affidavit, and a witnefs mult not 
 be permitted to evade it by his refufal : a witnefs to a bond is 
 compelled, by ?ifuhp(enriy to give evidence of the execution; and 
 every man who fubfcribes his name as a v/itncfs to an inftrumcnt, 
 undertakjes, by implication, to give evidence at a proper time, 
 and in a proper maimer : no objeftion to this arifes from the 
 iu<yo-euion that the award was unfairly made, and that the party 
 has no other means of preventing thefubmiffion from being made 
 a rule of court : the hardi'hip of a particular cafe muft not be per- 
 mitted to vary a rule founded on general principles of utility, (a) 
 
 Eur in order to found the application for a rule againft the 
 witnefs to make the affidavit, it feems to be necefiary to lay before 
 
 the 
 
 (a) Clark V. Elwlck. i Str. J,:. loMcJ, 332, 333-
 
 THE SUBMISSION'. Ij 
 
 the court fomc circumftance to fatisfy them of the probability of 
 his being a witncfs ; as an affidavit of his havin?; ackiiowledgeJ 
 that he was ; or an affidavit of the party a[ip!ying, that he really 
 is fo. 
 
 Such an application is not frequently ncccfl-'ry, and tnereforc- 
 it does not aj^pcar whether the rde granted in confe(|ucnce of it 
 may be abfolute in the firft inftance, or muft be only a rule to 
 fhew caufe. The few cafes that arc reported have been of 
 rules of the latter kind, (a) 
 
 It is not necoiriry that the agreement to make the fubmiirion 
 a rule of court fhouKl be pa-t of the condition, or that it Ihould 
 be actually figned : if it be written under the condition, and 
 the fubfcription, by affidavit, appear to have been niadc before 
 the execution of the bond, the court will take it to be part of 
 the fubmiffion, as an indorfement by way of defeafance is part of 
 a deed. (l>) . 
 
 If the application be on behalf of one of the parties, and it ap- 
 pear by the bond of the other, produced in court, that it was exe- 
 cuted by him, the motion will be granted of ccurf? ; the confciit 
 of the latter appears by the execution of tlie bond, (c) 
 
 A SUBMISSION was by bond, and in die end of the condition 
 was this claufe : " And if the obligor fnall confent that this 
 fubmifTion be made a rule of court, then, &c." A motion to 
 make this fubmiffion a rule of court was oppofed, on tlic ground 
 that thefe words do not imply his confent; but that if he ehofe 
 to forfeit his bond, he might prevent its being made a rule oi 
 court : the words, however, were confidcred by the court as a 
 fufficient indication of copient, becaufe they could h.ive been in- 
 ferted for no other purpofe, and the motion vv.l^ accordingly 
 granted, (d) 
 
 But if the agreement be only that the " award" fivAl be made 
 a rule of court, that is not fufficient, it is faid, to ground an ap- 
 plication to have the " fubmiffion" made a rule of court, (e) 
 
 (n) \'\.\. Banie.-, 58. | i Salk. 7a- Caii.yiii, 11 + . i Lord 
 
 (b) Carlei v. Manroiiilgc. Barnes, , Raym. 674. 
 
 55- 
 
 (c) RinlJ V. Coe. Barnes, 55. 
 (JJ B.uly V. Chcddy. 1 3 W. HI- 
 
 (e) z BarsiarJillon, K. B. 163. 
 Str, 1178. 
 
 If
 
 14 THE SUBMISSION. 
 
 If a caufe be referred by confent at nifi prius^ in London 
 or Middlefex, application muft be made for the order of nifi 
 priusy to the clerk of nifi prius ; if on the circuit, to the judge's 
 aflbciate, whofe bufinefs it is to draw it up : and the attornies 
 ought to fet down the names of the witnefTes propofed to be 
 examined on the reference, on a piece of paper, and deliver it to 
 the crier, who will fwear them at the bar of the court, other- 
 wife they muft attend a judge to be fvvorn. (a) 
 
 It was formerly held, that the flaying of a caufe was necef- 
 farily implied in a reference ; and even that if one of the parties 
 to a fuit faid he would refer the matter to fuch a one, the caufe 
 muft ftay of courfe ; becaufe, fiys Twifden, that man is made 
 judge, fbj But it was afterwards declared by Lord Chief Juftice 
 Holt, that all the judges of the King's Bench had made a rule, 
 that no reference whatever of any caufe depending in that court 
 fhould ftay the proceedings, uiilefs it was exprefled in the rule oi 
 reference to have been fo agreed. CcJ 
 
 The extent of the fubmifTion may be va- 
 Extejit of the rious according to the pleafure of the parties j 
 Suhmifton. it may be of one particular matter only, or 
 
 of many, or of every fubje6l of litigation be- 
 tween them ; but, what extent fliall be given to the particular 
 words of it, will be more properly difcufied in another place. 
 
 It is ufual, and even neceflary, to fix a time within which 
 the arbitrators fhall pronounce their award ; for on the one hand, 
 a delay is neceflary for inftru6ting the arbitrators, and putting the 
 queftion In a condition of being determined; and on the other the 
 time ought to be limited, becaufe it would not be juft, that it 
 fliould be in the power, either of arbitrators or of the parties, 
 to put off the final decifion for ever, (d) 
 
 The fubmifTion, being the voluntary agree- 
 SubmiJ/ion, hcnv ment of the parties, the words of it muft be 
 confrucd. fo undcrftood as to give a reafonable conftruc- 
 
 tion to their meaning, and to make their in- 
 tention prevail : therefore, where the fubmifiion was by deed, 
 
 C^; I Ccmpton, 263. Impey, 571. I ('cj 2 Lord Raym. 789. 
 (b) I Mod. ^^. \ ('0 Du'iiat. 1 vol. 224. 
 
 rehearfing
 
 THE SUBMISSION. I5 
 
 rchcarfing that each of the parties was bound to the other in a 
 fum of lool. and they, by the fame deed, granted, that " if ^-^.^ 
 of them fhould ftand to the award of A. B. then the obligation 
 of him who performed the award fliould be void, and that of him 
 who did not fhould be in full force:" and it was objected, that 
 this fubmifiion was void, becaufe it imported that each of them 
 was bound for the performance of the award by the other. This 
 conflruiftion was rcjedled as abfurd and nonfenfical, and contrary 
 to the plain meaning of the parties : and it was held, that the 
 words, " if each of them fhail fland," &c. fhould be taken in 
 the fame kwk as if the fubmifiion had been cxprefled thus, " that 
 the one was bound to the other, and the other to him, each that 
 himfelf fhould {land to the award, if not, his obligation to be in 
 full force, (a) 
 
 So, where the condition of a bond was to ftand to the award 
 of two arbitrators, wiih a provifo that it fhould be made on or 
 before the 23d of January ; but if the arbitrators fhould not agree 
 on the award, that then they fhould choofe an indifferent man, 
 and " they" fhould fland to the final end, determination and 
 judgment, which he ihould give on or before the 28th of January, 
 under his hand and feal : it was ferioudy argued, that the laft: 
 pronoun, " they," not having immediately before it any ante- 
 cedent, to which, in the grammatical order of the fentence, it 
 could be referred, it applied to the arbitrators, who were to per- 
 form the award of the umpire ; but good fenfe prevailed over this 
 objedtion, and the court held that it (hould be referred to the 
 parties themfelves. (b) 
 
 Where the fubmiflion was to the award of four men by name, 
 " fo as the fame award be made, and delivered up in writing by 
 them, or any three of them :" it was not till after fevcral folemn 
 arguments, that the court were prevailed on unanimoufly to hold, 
 that thefc words gave an authority to any three of the arbitrators 
 named to make the award, the latter words being explanatory of 
 the meaning of the parties in the former : that though in technical 
 exa£biefs the " fame" award referred to the former part of the 
 
 (a) 39H. 6. 9. b. II. a. 
 
 C/'^ Butkrv. Wigge. 2 Keb. 204. 1 Saund, 65. 
 
 fentence,
 
 l6 THESUB MISSION. 
 
 fentenc?, and might be taken to mean the award made by four, yet 
 as this coaftruvScion would render the latter words perfectly ufelefs, 
 it n)uft be reje.iied, and the obvious meaning of the parties, on 
 the whole, adopted : that the " fjme" award fhould be referred 
 to the thing, and not to the perfon ; fo that it fhould be inter- 
 preted " the fame" award of the fame things, to be made by the 
 faid arbitrator?, or any three of them, (a) 
 
 The reader, perhaps, anticipates the obfcrvation, that a mind 
 imacquainted with the hiftory of legal chicane, will hardly be 
 able to conceive that a doubt could be raifed on the fabje^l. 
 
 Where th^^re is a repugnancy in the v/ords of any part of the 
 fubmiilion, the latter iliall be rejecled, and the former ftand ; as 
 if the condition of a bond, dated the i6ch of Marcli, be to (land 
 to an award, with a provifo that it be made on or before the laft 
 day of " this in{la!it" month of " April j" here, as no month can 
 ?.nfwer to the dcl'cription of this " inftant month," but that in 
 which the words are ufcid, namely March, the words " of April'' 
 fliall be rejected; for there is nothing to determine them to the 
 next April, any more than to the April of any other year : there- 
 fore, if the award be not made till the lafl day of April, or indeed 
 at any time after the laft of March, it will be made at a time out 
 of the fubmiflion, and therefore of no eftc6l ; but had it been " on 
 or before the laft day of April," without the words, " of this 
 inftant month," in order to avoid the uncertainty, it fhould have 
 been taicen to mean, the April of the faine year, (h) 
 
 All kind of authority is in its nature re- 
 
 Sulmijpcinnay he vocable, though made irrevocable by exprefs 
 renjoked. words ; therefore, if one of the parties, before 
 
 the making of the award, or before the expi- 
 ration of the time for making it, revoke the authority of the ar- 
 bitrators, the latter cannot proc-cd ; cr if they do, the party 
 revoking is not bound to perform their award, but may plead the 
 revocation in bar of an acSlion on the av/ard itfelf ; or he may 
 
 (a) V;<J. I Rol. Rep. 375. Cio. 
 J2C. 4.00. Bricig(m:m, 01. Mo. "^9. 
 3 B\i!lir. 62. 1 BiiHtr. 122, 123. 
 BiOvv.nkw, n2. Ydv. 203. Cio. 
 
 Jac. 177. The cafes of Sallows v. 
 Girling, and Beriie V. Perrie. 
 
 (h) Shiry v. Richardfcn. Pop- 
 hain, 15, 16, 
 
 hiir.fJf
 
 THE SUBMISSION. 
 
 17 
 
 himfelf recover againft the other, in an action for the original caufe 
 of difpute j ^^7 — and, in this refpeft, our lav/ corrcfpoiids with 
 the civil law. (a) But if one on one fide, and two on the other, 
 fubmit, one of the two cannot revoke the authority of the arbi- 
 trator without the other; for being jointly given, it muft be 
 jointly taken away, (bj 
 
 If the fubmiffion be merely verbal, the revocation maybe fo 
 too ; " I difcharge you from proceeding any further," faid to 
 the arbitrators, will be fufficient. (dj But if the fubmifiion was by 
 deed, fo alfo muft the revocation be, (ej according to that gene- 
 ral principle of law, that every power, authority, or obligation, 
 muft be difcharged with the fame folemnities with which it was 
 conftituted. (f) 
 
 This principle, however, applies only to the cafe of an ex- 
 prefs revocation ; it does not extend to that which muft necef- 
 farily be implied by conftrudlion of law, from another adt of the 
 party ; for a collateral a£l may fometimes amount to a revocation 
 of the authority of the arbitrators. Thus, if a woman, while 
 fole, fubmit to arbitration, and marry before the making of the 
 award, or before the expiration of the time for making it, the 
 marriage is a revocation ; becaufe, by that, all the perfonal pro- 
 perty of the wife, and a permanent intereft in her real property, 
 which would be bound by the award, vefts in the huft;and. (g) 
 
 So, where a man brought an ejedlment againft another, to re- 
 cover a mill of which the latter was in polleflion, the defendant 
 fufFered judgment to be entered by " nildicitj" but afterwards 
 they agreed to refer the queftion, " Whoftiould have it," and other 
 matters which were in difference between them, to arbitration 
 by bond. The plaintiff, in the ejedtment, before the expiration 
 of the time limited for mal:ing the award, fued out an " habere 
 facias poireffionem" on the judgment, and had the mill delivered 
 
 (a) Ff. 1. 4, t. 8, r. 17. 
 
 (b) 5 Ed. 4.. 3. b. 8 Co. 82. a. 
 Br. Arb. 35. 21 H. 6. 30. a, 28 
 H. 6.6.b. 6H.7. 10. 28 H. 6.6. 
 Fitzh. 51. a. Br. 44. b. 
 
 (dJ Barker V. Lees, a Keb.64, 79. 
 
 (e) 43 E. 3. 9. Fitzh. 52. b. vij. 
 8 Co. 80. b. 
 
 (f) Unumquodquc ilifiolvitur eo 
 ligamine quo ligatur. 
 
 (g) Win. Jo^ues, 53*. 3 Kcb. 9. 
 
 c 
 
 to
 
 I& THE SUBMISSION. 
 
 to him ; and on an action of debt being brought on the fubmiilion 
 bond, it was held, that by taking away the fubje<5l of the arbi- 
 tration, he had taken away the poiBbility of making the award, (a) 
 
 In the year books, a diftinftion is taken between a fubmiflion 
 by obligation, and a fubmiflion without obh"gation. In the firft 
 cafe it is faid, that the obligor cannot difcharge the arbitrator, 
 becaufe he is bound to ftand to his award ; but that in the latter it 
 is otherwife. (l) Lord C. J. Coke explains this diftindtion in this 
 way ; that in both cafes the authority of the arbitrator may in- 
 deed be revoked ; but that where the fubmlflion is without obli- 
 gation, the party revoking lofes nothing ; whereas, in the other 
 cafe, he forfeits the penalty of his bond : for by countermanding 
 the authority of the arbitrators, he has not fulfilled the condition, 
 by ftanding to, and abiding by their award ; and becaufe, when 
 a man, by his own adl^, renders the condition of the bond im- 
 poflible, the bond becomes fingle, as if no condition had been 
 annexed, (c) 
 
 This difference in the effecl of a revocation in the two cafes, 
 was certainly good law at the time, when it was held, that no 
 action could be maintained on an award of a collateral thing 
 made in confequence of a parol fubmiiiion ; but now that it is 
 held, that an action may be maintained on fuch an award, it may 
 reafonably be fuppofed the courts would alfo fuftain an action on 
 the cafe for countermanding the authority of the arbitrator. A 
 cafe is reported in two books, in one of which a doubt is exprefled, 
 whether all being by parol, the plaintiff could maintain that ac- 
 tion, or have any other remedy ; but that is evidently nothing more 
 than a loofe note of the reporter, and the pleadings are there very 
 inaccurately ftated. (d) In the other book, the cafe is reported 
 at length, and the manner of the pleadings diftin(5tly given ; the 
 breach being afligned in a difcharge by the defendant of the arbi- 
 trators from making any award j and the judgment of the court, 
 without much hefitation, in favour of the plaintiff. 
 
 (a) Green v. Taylor. Sir T. 
 Jones, 134. 
 
 (b) 5 Ed. 4, 3 b. 
 
 (c) Vynior's cafe, 8 Co, 82. a, 
 Brovvnlovv 62. 2d pt. 290. * 
 
 (d) Newgate v. Degelder, 18 Car. 
 12. I Sid. 281. 
 
 (e) 2 Keb. 10, 20, 24, 
 
 The
 
 T II E S U B M I S S I K. I9 
 
 The rule of the civil law is, that when the arbitrator isdif- 
 chargcd by one of the parties, or prevented by his act from mak- 
 ing his award, then, if a penalty was added to the fubmiffion, that 
 penalty was forfeited ; but if no penalty was added to the lub- 
 miflion, the oppofite party Ihould have a remedy fn-nilar to our 
 adtion on the cafe, (a) 
 
 If one of the parties firft revoke the authority of the arbitrators, 
 and afterwards requeft them to make an award, that will not fave 
 the forfeiture. But where the fubmiflion limits no time for the 
 making of the award, that (hall be underftood to be within con- 
 venient time ; and if in fuch a cafe the party requeft them, and 
 they do not, a revocation afterwards will be no breach of the 
 fubmiflion. (h) 
 
 One party may alfo revoke with confent of the other ; but 
 confent after the revocation will not fave the penalty of the 
 bond, (c) 
 
 In the cafe too of a revocation, by the marriage of a feme fole, 
 if the hufband and wife fubmit again, the courts will not encou- 
 rage the oppofite party in fuing for the forfeiture, (d) 
 
 There may be feverai adts done by either of the parties be- 
 fore the award made, which, though they cannot properly be 
 called a revocation, yet amount to a breach of the fubmilHon. 
 Thus, where a man fubmltted to pay fuch cofts as fnould be 
 ftated by arbitrators chofen indifferently by the parties, it was 
 held to be a breach in him not to have carried in his bill to the 
 arbitrators, becaufc he was the caufe that no award was made, (e) 
 
 Whether the parties may revoke, when the fubmifHon is 
 by rule of court, by confent at nifi prius^ or in purfuance of the 
 ftatute of William, it is immaterial formally to lay down. It 
 has been feen, that, in the latter cafe, the courts have made the 
 fubmiflion a rule of court, notvvithftanding the oppofition of the 
 
 (a) Si quis liti^atorum defuerit : 
 quia per cum faflum eft, quo minus 
 aibitretur, poena committetur. Et fi 
 quis prcfens arbityum lententi.im di- 
 ccre piohibuit, poena committetur. 
 Sed fi poena non fviiffet adjefta compi o- 
 miffo, led finipliciier J'oit(?iti<T Jlari 
 
 quis promifciit : incerti adverrus euro 
 foret aaio.— Ff. 1. 4. t. 8. i. 27. 
 
 (b) 2 Kcb. 10, 20*. 
 
 (c) Noble V. Harris. 3 Kcb. 745. 
 
 (d) 3 Keb. 9. 
 
 (e) Bald\v.-iy v. OuJlon. i Vent. 
 
 C 2 parties
 
 to 
 
 THE PARTIES. 
 
 parties ; and, in both cafes, they will punifh as a contempt, any 
 acl by which the arbitrators are difturbed or hindered from making 
 their award, (a) Thus where a matter was referred by confent 
 at h//J prius to the three foremen of tlie jury ; and before the 
 award was made, one of the parties ferved the arbitrators with a 
 fubpoena out of Chancery, which hindered them proceeding to 
 make an award ; the court held this to be a breach of the rule, 
 and granted a rule to (hew caufe why an attachment fliould not 
 go againft him. (h) 
 
 In the civil law the better opinion feems to have been, that if 
 the party to a fubmi/fion, while the matter was before the arbi- 
 trator, appealed to the ordinary courts, he forfeited the pe- 
 nalty, (c) 
 
 CHAP. II. 
 
 The 
 
 R T I 
 
 S. 
 
 Who may fiihmit. 
 
 IT is a general rule, that every one who i$ 
 capable of making a difpofition of his pro- 
 perty, or a releafii of his right, may make a 
 fubmiflion to an award : but no one can, who is either under a 
 natural or civil incapacity of contracting, (d) Therefore a married 
 woman cannot be party to a fubmiflion, whatever may be the 
 fubje<fl: of difpute, whether arifmg before or after her marriage : 
 but the hufband may fubmit for himfelf and his wife, (e) 
 
 On the principle that an infant cannot bind himfelf for any 
 thing but neceflaries, it is clear he cannot be party to a fubmif- 
 
 (a) Vid. I Cromj). Pra6t. tdz. 
 
 (b) Davila v. Almanza. i Salk. 
 
 73- 
 
 (c) Si quis rem, de qua compro- 
 milTum fit, in judicium deducat : qui- 
 dam dicunt, prastorem non interve- 
 nire ad cogendum arbitnjm fententiam 
 dicere : quia jam poena non poteft efle, 
 atque fi i'olutum eft compromiflura. 
 
 Sed fi hoc obtinuerit ; futurum eft, ut 
 in poteftate ejus quem poenitet com- 
 promififlc, fit compromifliim eludere. 
 Ergo adverfus eum poena committen- 
 da eft, lite apud judicem fuo ordine 
 peragenda. Ff. I. 4, t. 8, f. 30. 
 
 (d) Com. Dig. Arbitrament. D. 2. 
 
 (e) Sti. 351. 
 
 flOH;
 
 THEPARTIES. 21 
 
 fion, whether the matter in difpute be an injury done to him, as 
 for a battery committed on him, or for a trefpafs on his land ; (dj 
 or an injury done by him to another. The laft cafe, however, 
 was not always confidered as clear law ; and it has been infifled, 
 that he might fubmit a trefpafs committed by himfelf, becaufe that 
 might be for his benefit j and if he could not, inftead of being 
 favoured by the law, he would be in a worfe condition than other 
 men : but that reafon fails j for though it may be for his benefit, 
 it may as probably be othcrwife ; for the arbitrator may award a 
 greater fatisfaition than might be given in the due courfe of law, 
 or the damages awarded may be increafed on account of things, 
 for which, by the law, the infant cannot be charged ; and the 
 rule with refpedl to an infant is, that he cannot bind himfelf to 
 any thing which, by pofTibility, may be to his difadvantagc. It 
 has alfo been faid, that the infant ought to have an election, 
 whether he will perform the award or not, and that therefore an 
 award made, in confequence of a fubmiflion by him^, is not ab- 
 folutely void, but voidable only : fcj but this is contrary to the 
 very intention of a reference to arbitrators, which is to put a 
 final period to difputes, 
 
 And as the infant himfelf cannot be bound by a fubmiflion to 
 arbitration, fo it has alfo been decided, that if another enter into 
 a bond, conditioned, that an infant fliall perform an award, this 
 is alfo void, and the obligor could not be fued upon it. l\his, 
 however, was without any argument applicable to this parti- 
 cular cafe, but only taken as an immediate conclufion, from the 
 principle that the infant himfelf could not be bound. It feems, 
 indeed, to be carrying the indulgence to an infant by much too 
 far, and to be contrary to the analogy of law in other cafes. |t 
 is in fact faying, that in all cafes, where an infant cannot bind 
 himfelf, no one clfe can be bound for him ; which cannot be pre- 
 tended to be true. The infant himfelf indeed cannot be com- 
 pelled to perform the award, neither is it in the power of his fc- 
 curity to force him ; but it is by no means a fingular thing that 
 
 ("a; 10 H. 6. 14. Fhbt. 51. a. 13 H. 4- 12. Dub. Rol. Arb. i A. i» 
 
 Rol. Alb. 2 A. 2, fays cunt. 10 H. 6. 14. 
 (c) Rudfton V. Yates. Maich in, 141 . 
 
 C 3 -ft man
 
 It T H E P A R T 1 E S. 
 
 a man fhall forfeit his bond, though it be not in his own power 
 to fave the penalty, by performing the condition. There is, in- 
 deed, an impHcd exception in the cafe of fubmiflion to an award j 
 that if the award itfelf be void, he fliall not forfeit his bond by 
 non-performance. But this exception extends only to the cafe 
 where tlie objeilion appears on the award itfelf; and, if this be 
 good, there appears not the fliadow of a rcafon why the fecurity 
 for the infant's performance fhould not forfeit his bond on the in- 
 fant's default, (a) 
 
 The fame point was again agitated in another cafe — the fame 
 argument urged in avoidance of the award : " The fubmiflion 
 on behalf of an infant is void, the award therefore is void, de- 
 pending on a void fubmiflion, and a bond for performance of a 
 void award is neceflarily void ; therefore the fecurity cannot for-r 
 feit his bond." The fame kind of anfwer was given as is fug- 
 gcftcd above; and though the opinions of the court are not 
 itafed in very decifive language, yet, on the whole, their incli- 
 nation feemcd to be, that the fecurity forfeited his bond, if the 
 infant did not perform the award. In this cafe, indeed, the ac- 
 tion was brought by the infant, and her fecurity, for non-per- 
 formance by the other party ; but as the defendant's obje6lions 
 were founded on the fuppofition that the infant was not bound 
 to perform her part, and that therefore there would be no reci- 
 procity, the general principle is the fame, whether the fecurity 
 for the infant be plaintiff or defendant, (b) 
 
 The fame queftion was again agitated, but no decifive opinion 
 given ; becaufe it appeared that the father had been bound for 
 hi?rifcIfzvA his infant fon ; and it was held, that whatever might 
 be the cafe v/ith refpe61: to the father's being bound for his Jon^ 
 yet his fubmiflion v/as good as to himfelf, and judgment was ac- 
 cordingly given for the plaintiff, (c) 
 
 B'JT it was afterwards exprefsly decided, againft the autho- 
 rity of the cafe (d) on which the doubt had at firft been raifed, 
 
 (a) Vid. Jenk. ii6. 
 
 (b) Stone V. Knight. Lntchzoy. 
 
 (c) liovvycr V. Blorkfidgp, 33. 
 
 Car. a. 3 Lev. i;. Gill v. Ruffell. 
 Hil. 1673. Frecm. 6t, 139. 
 (d) Rndfion v. Yates, ante. 
 
 that
 
 T H E P A R T I E S. 23 
 
 that the guardian may fubmit for the infant, and bind himfclf that 
 he {hall perform tlie award, (a) 
 
 Thus we have at length adopted the good fenfe of the Roman 
 law, by which it was held, that an infant himfclf could not be 
 bound by his fubmiffion ; but that if he fubmitted by a furety, 
 the latter forfeited the penalty in default of the infant. (I)) 
 
 An executor, or adminiftrator, may fubmit a matter in dif- 
 putc between another and himfelf, in right of his teftator or in- 
 teftate. Therefore, when the executor of a parfon fubmitted to 
 arbitration a difpute between the prefent incumbent and himfclf, 
 as executor of the laft, on account of fome dilapidations of the 
 parfonage, alledged to have been permitted bv the default of the 
 teftator, and in his life, no objection was made to the want of 
 power in the executor to fubmit : CcJ but if the arbitrator do not 
 give him the fame meafure of juftice as he would be entitled to 
 at law, the executor, or adminiftrator, muft account for the de- 
 ficiency to thofe who are interelted in the efteds of the teflator 
 or inteftate. f^J As, if an executor fubmit to arbitrament, and it 
 be awarded, that for 70I. he releafe an obligation given to his 
 teftator in icol. for performance of covenants which were broken 
 by the obligor, the lool. fnail be afTets, for the fubmiffion is his 
 own act : CeJ and by his fubmifTion he precludes himfelf from af- 
 terwards pleading to an action on the arbitration bond, that he had 
 fully adminiftered, and that he had no aflets of the teftator or in- 
 teftateat the time of his fubmiffion, or fmce that time, ffj 
 
 So, the affignees of a bankrupt may fubmit to arbitration, any 
 difputes between their bankrupt and others, provided they pur- 
 fue the directions of the ftatutc, which enaifts, " that the affignec, 
 " or affignees, of any bankrupt's eftate and efFecT:s, with the con- 
 " fent of the major part in value of the bankrupt's creditor?, 
 
 (a) Roberts V. Newbold, 6 W. 3. 
 Comb. 318. 
 
 (b) Si pupillus fine tutoris au6\ori- 
 tate compromirerit, non eft arl)itci- 
 cogcndus pronunciarc, quia, fi contia 
 cum pronuncietur, poena non tenelur ; 
 praterquam fi fidejuflbjem dedciit, a 
 
 quo poina pcti pofllt. Ff. 1, 4, t. 8, 
 
 !'• 35- 
 
 (cj Dyer, 216. b. 217. n. 
 
 ((ij Off. Exr. 229 cited Com. Dig. 
 Adminirtration (I. i.) 
 
 (e) R. 3 Leon. 53. 
 
 (/) Barry v. Rudi. i Term Rep. 
 
 4 " who
 
 24 THEPARTIES. 
 
 " who /hall have duly proved their debts under the commiffion, 
 " and who fhall be prefent at any meeting of the faid creditors, 
 " purfuant to notice to be for that purpofe given in the London 
 " GazettCy to fubmit any difference or difpute between fuch af-, 
 *' fignee or afTignces ; and any perfon or perfons whatfoever, 
 *' for or on account, or by reafon or means of any matter, caufc 
 *^ or thing whatfoever, relating to the bankrupt, his eftate or 
 '' effects, to the final end and determination of arbitrators to be 
 *' chofen by the faid affignee or affignees, and the major part in 
 " value of fuch creditors, and the party or parties with whom 
 " they (hall have fuch difference, and to perform the award of 
 " fich arbitrators — and the fame (hall be binding on all the cre- 
 " ditors of the bankrupt." (a) 
 
 By virtue of the authority of this ffatute, the creditors prefent 
 at a meeting cannot give a general pov/er to the affignees tp re- 
 fer matters to arbitration according to their own difcretionj there 
 muft be a particular meeting on notice for that particular pur- 
 pofe, in the London Gazette, to confidcr of each particular 
 cafe, (b) 
 
 WhoJl:all he bound ^"^ '' ^ ^^""""^^ '■"^•'' '^^* '^""^^ °"^y "^^"^ 
 
 L A J are parties to the fubmiflion fhall be bound 
 
 by an Axuara. ' 
 
 by the award. 
 
 Thus, if a man fubmit, for himfelf and partner, all matters in 
 difference between the partnerfhip and another, the partner 
 fubmitting fnall be bound to perform the award ; but the other 
 fhajl not, becaufe he is a flranger to the fubmiffion. (c) 
 
 So, if thq parfon on the one hand, and fome of the parifliioners 
 on the other, in behalf of themfelves and the reft of the inhabi- 
 tants of the parifli, but without the authority of the reft, fubmit 
 to arbitration by bond, the patilhioncrs fubmitting {hall alone 
 be aiffvverable for a breach of the award by any of the other 
 parifhioners. (d) 
 
 So, in genera!, a mar^ is bound by an award to which he fub- 
 mits for another (e) 
 
 {a) 5G. 2. c. 30. f. 34. 
 
 ("i^ Ex parte Whitchurch, i Atk. 
 
 (c) Strar.sford V. Green. 2 Mod. 
 
 228. I Put 
 
 (d) Mudy V. Of^m. 
 
 Litf. 30. 
 
 (e) Alfop V. Senior. 
 18. 
 
 2 Keb. 707,
 
 THEPARTIES. J5 
 
 But, if a man authorize another on his behalf, to refer a dif- 
 pute between the principal and another, an award made in con- 
 sequence of fuch a fubmiflion is binding on the principal alone ; 
 and it is no objection that the agent had no intereft in the fubjedl 
 of the difpute. (a) 
 
 When there are fcveral claimants on one fide, and they all 
 agree with the oppofite party to fubmit the matter in difpute to 
 arbitration, and fome only of the numerous party enter into a 
 bond to perform the award, the award fhall bind the reft. Thus, 
 where A and B, two merchants, freighters of a fliip, on one 
 fide, and C and D, part owners, and all the other part owners 
 and mariners, on the other, fubmitted to the award of J. S. of all 
 matters concerning a prize taken by way of reprifal : A and B 
 entered into a bond, and C and D into another, to perform the 
 award ; and the arbitrator awarded, that the merchants fhoulJ 
 pay to C and D, for the ufe of themfelves and the reft of the 
 part owners and mariners, loool. This was held to be a good 
 award ; for if A and B did not pay the money, the part owners 
 and mariners might have an adlion of debt againft them on the 
 award, becaufe they were all parties to the fubmiflion, though 
 only two were obligees in the bond : and if they paid the money 
 to C and D, to the ufe of them and the reft of the part owners 
 and mariners, though the proportion that each ihould have was 
 not pointed out, yet, as they had jointly fubmitted, the award 
 might be to pay them jointly j and although (the award, in fac^-, 
 being to pay to C and D, for their own ufe, and that of others) 
 it was on that account objeded, that the refidue of the part 
 owners and mariners had no remedy to have their fhare but by 
 adion, yet, notwithftanding that, it was held they were bound 
 by the award : and this cafe was aflimilated to that of an award 
 that one party fhould enter into a bond to pay a fum of money 
 to the other at a future day, which was good, though it was only 
 a thing in aiftion ; and the reft of the part owners might have 
 their remedy, at leaft, in Chancery, againft C and D, as truf- 
 tees for them, if not, at common law. And now that the libera- 
 
 ^a) Dyer, zi6. b. aij. 
 
 lity
 
 X6 THEPARTIES. 
 
 lity of the courts of" common law has fo greatly favoured the 
 adlion for money had and received, there is no doubt, but that 
 if a certain proportion of prize-money had been agreed on for 
 each individual, before the adventure or their refpedive rights 
 could be afcertained, each individual of the remaining number 
 might maintain an a61:ion againlc C and D for fo much money 
 had and received to his ufe. (a) 
 
 Where there are two on one fide, though they will not be 
 bound the one for the other, yet if the award be general that they 
 fhall do one entire thing, not pointing out diftin6l parts to be 
 done by each, both lliall be bound to performance of the whole, 
 and an acSlion may be fuftained againft either for non-perform- 
 ance. 
 
 Thus, where there was a controverfy concerning certain 
 lands between A, B, and C ; and A on the one part, and B and C 
 on the other, fubinitted to the award of J. S. A becoming bound 
 in an obligation to B and C in the fum of loool. to perform the 
 award on his part; but .K and C, unwilling to be bound the one 
 for the other, entering into feveral bonds of locol. each to A, 
 with feveral conditions : the arbitrator awarded, that A fhould 
 releafe all his right in the land to B and C ; and that, in confi- 
 deration of this, B and C fhould pay 300I. to A. On an atSlion 
 of debt brought by A agai;ift B, on this bond, for nonr perform- 
 ance of the award, and a breach afligned, that neither B nor C 
 had paid the 300I. at the time limited by the award, it was held, 
 that each was bound to the performance of the whole award ; for 
 they had jointly fubmitted, though by feveral obligations, (bj 
 
 But, in fuch a cafe, if the award had been feveral, certainly 
 the one could not have been fued for non- performance on the 
 part of the- other. 
 
 If an attorney, without the exprcfs authority of his principal, 
 enter into a bond to a third perfon, under a condition to be void 
 
 (a) Wood et al. v. Thorr.fon et 
 Clements. M. 24Car. B.R. Rol. 
 Arb. F. n. 
 
 (b) Hayes V. Hayes. H. 11 Car. 
 B. R. Rol. Alb. E. 9. Cro. Car. 
 434. 
 
 on
 
 THEPARTrES. 27 
 
 on performance of the award by the prinelpal, otherwife to be in 
 full force, this (hall bind the attorney, and not the principal, (a) 
 
 Yet, it is the common underltanding, that the aflt:nt of the 
 attorney in a caufe, to a reference by a rule of tiif: prius^ will 
 bind the client : and the reafon of the difference fecms to be this, 
 that in the firft cafe the general character of attorney doss not 
 imply a commiflion from the principal to do any thing fo much 
 out of the ordinary courfe of the bufmefs of a general attorney, 
 as to refer a matter to arbitration; but the employment as at-' 
 torney in a particular fuit, implies the client's aflcnt that he may 
 do every thing which the court may approve in the progrefs of 
 the caufe. 
 
 But it has been held in Chancery, that the afTent of a folici- 
 tor to a reference by a rule of court does not bind the client ; 
 though in the very fame cafe it is admitted, that in the courts of 
 law that of the attorney does ; and that if the decree be made to 
 perform the award, and there appear in the decree only the afTent 
 of the folicitor, it is not incumbent on the plaintiff, in a bill of 
 review for the reverfal of the decree, to (hew the want of nflent 
 in the principal ; and that even the attendance of the folicitor, 
 with counfel, before the arbitrator, on behalf of his client, will 
 not bind the latter without his adlual afTent. (b) 
 
 It may well be doubted, however, how far the authority of 
 this cafe would be recognized at prefent : the chara<5ler of folici- 
 tor is equally known to the law as that of an attorney : their 
 duty and their privileges are the fame — the confidence repofcd 
 in them the fame : they only differ in name, and praclife in dif- 
 ferent courts. 
 
 If the huToand fabmit to arbitration any thing of which he 
 might difpofj in right of his wife, the wife fhall, after his death, 
 be bound by the award. As if the hufband and wife be pofTefTed 
 of a term in the right of the wife, as executrix of her former 
 hufband ; and the prefent hufband, and a flranger, who claims 
 title to it, fubmit the intcrefl and title of the leafe to the award 
 
 (a) Bacon v. Dubany. i Lord 
 Ray m. 246. 12 Mod. 1:9. Comb. 
 439- 1 Sa!k. 70. 
 
 (b) CoKvcll V. Child. I Rep. Ch. 
 10+. 1 Cj. Ch. S6. 
 
 of
 
 28 THEPARTIE*. 
 
 of certain perfons, who award one part to the pretender, and the 
 other to the hufband and wife, the latter, after the death of the 
 hufband, fhall be bound by this award, (a) 
 ■ So, under a fubmiffion of all matters between a married man 
 and another, the arbitrator may comprehend in his av/ard a mat- 
 ter in difpute in the right of the wife. As if a woman be in- 
 debted to J. S. in a fum of money, as adminiftratrix to J. D. and 
 then marry ; if the hulband and J. S. fubmit all matters betv/een 
 them, an award, comprehending the debt due by the hufband 
 and wife, though in the right of the wife and as adminiftratrix, 
 fliall bind the hufband, if the wife had aflets j for in that cafe he 
 is chargeable by the marriage, fbj 
 
 Under a fimilar fubmiffion, an award, comprehending a debt 
 due to the wife as executrix, will bind the wife after her hufband's 
 death, as it will the hufband himfelf during his life, (c) 
 
 But where a fubmiffion by the hufband refpe6ls any property 
 of the wife, which the hufband by his own a6l cannot alien, an 
 award which gives that property to another, it would feem, 
 would not be confidered as binding on the wife : as if the huf- 
 band, among other things, fubmit the right of a manor, and the 
 arbitrators award that the hufband fhall give up to the other party 
 a deed, by which an annuity is fecured to the wife out of the 
 manor j this award cannot be enforced, becaufc the right of the 
 hufband extends only to the accruing arrears of the annuity, and 
 not to the annuity itfelf. But if the fubmiffion were jointly by 
 the hufband and wife, it feems not to be queftioned in the book in 
 which this cafe is reported, that both the hufband and wife would 
 be bound by this award : fiJj yet fome doubt might be raifed, 
 from the confideration, that the only mpde by which the freehold 
 jnterefl of the wife can be transferred, is by the folemnity of a 
 fine. The affignees of a bankrupt, fucceeding only to the right 
 
 (a) Dia. 2 El. Rol. Arb. D. i. 
 with a quere. 
 
 (b) Lumley v. Hutton. M. 15. 
 Jac. B. R. M. 13. Jac.B.R. S. C. 
 1 Rcl. Rep. 268. Rol. Alb. D, 2. 
 
 Cro. Jac. 447. Morfe v. Surrj', i pt. 
 Ca. Law antlEq. 212. 
 
 (c) 21 H. 7. 29. 6. cited Bridg. 
 91, Rol. Arb. D. 3. 
 
 (d) Vid. 21 H.6, 19. and i Rol. 
 Rep. 269. 
 
 of
 
 THE PARTIES. 
 
 «9 
 
 of the bankrupt, muH:, it is evident, be bound by an award made 
 before the bankruptcy, in confequcnce of a fubmifTion by him. 
 
 It was formerly thought, that an adHon of debt could not be 
 maintained againft an adminiftrator on m\ award made between 
 the plaintiff and the inteftate, even though the award was in 
 writing ; but the reafon given, though often in the ancient books 
 ufed as an argument to impeach an award, feems to be altogether 
 inapplicable : it is no other than tiiis, that the inteftate might 
 have waged his law ; or, in other words, by the intervention of 
 certain ceremonies, fworn that he did not owe the money 
 awarded, (a J 
 
 But this opinion has been fmce over-ruled ; and it has been 
 held, that an award creates a duty, which furvives to the exe- 
 cutor or adminiftrator, and that they Ihall be compelled to per- 
 form the thing awarded to be done on the part of their teftator 
 or inteftate. fbj 
 
 "Whether, by the Roman law, the reprefentative of the de- 
 ceafed was bound by an award made in the life-time of his prede - 
 ceflbr, does not appear very clearly, though die faireft interpre- 
 tation of the law is, that he was, fcj 
 
 It may fafely be laid down as a general 
 rule, that all thofe who would be bound by 
 an award may take advantage of it, if made 
 in their favour, or in the favour of thofe 
 in whofe right they would be bound. 
 
 Therefore the affignees of a bankrupt may take advantage 
 of an award made in favour of the bankrupt before his bank- 
 ruptcy. 
 
 And for the fame reafon executors or adminiftrators may take 
 advantage of an award made in favour of their teftator or intef- 
 tate before his death. 
 
 PF^o may take ad^ 
 'VOiitagc cf an AiMarJ. 
 
 (a) Bowyerv. Garland. Cr. El. 
 600. 
 
 (b) 2 W and M. Davvney v. Vc- 
 fey. 2 Ventr. 2+9. Vid. i L. Ravm. 
 Z48. 
 
 (c) Nee utimur Labeonis fcntentia, 
 
 qui exiftimavit, fi arbiter aliquem, pe- 
 cuniart dare julTerit, et is deceflerit 
 antequam daret, poenani committi, 
 licet heres ejus paratus fit ofFcrre. Ft. 
 1. +, t. 8, h 27, 
 
 CHAP.
 
 ja THE SUBJECT OF REFERENCE. 
 
 C H A P. III. 
 
 The subject of REFERENCE. 
 
 THOUGH at all times the courts have manifefted a general 
 difpofition to give efficacy to awards, yet there are feme 
 cafes in v/hich they have refufed them their proteiSlion ; becaufe 
 the fubje6ls, on w^hich they v^ere made, were not the proper ob- 
 jects of a reference to a domeilic tribunal. 
 
 It is therefore effential, diftinc^Hy to point out what fubje^ls 
 of controverfy the law permits to be referred, and to what others 
 it refufes that privilege. The general anfwer to this queflion 
 will be befl obtained, by adverting to the great principle on 
 which every reference is made, and the obligation impofed on 
 the arbitrator, by implication, from the nature of his duty. That 
 anfwer, indeed, will not exadlly apply to all the cafes that may 
 occur : fome of them can only be explained by the affiflance of 
 technical reafons. 
 
 The only motive which can influence a man to refer any fub- 
 je61: of difpute to the decifion of an arbitrary judge, is to have 
 an amicable and eafy fettlement of fomething which in its nature 
 is uncertain. It would be contrary to the duty of an arbitrator 
 to do any thing that were unjuft between the parties ; and if the 
 demand of the one upon the other were either certain in its ori- 
 ginal creation, or fubfequently afcertained by any other means, 
 an arbitrator would do manifeft injuftice were he to order, either 
 that more fhould be given, or that lefs fhould be received in fa- 
 tisfadion. It would therefore be nugatory to refer that to the 
 
 dccifion
 
 -THE SUBJECT OF REFERENCK. 3 1 
 
 decifion of an arbitrator, in which the law, following the dictates 
 of juflicc, will not permit him to make any change. 
 
 On thefe principles an award is of no avail, when made of 
 debt on a bond for the payment of a fum certain, whether it be 
 fingle, or with a condition to be void on the payment of a lefs 
 fum, or of debt for arrears of rent afcertained by a leafe, nor of 
 covenant to pay a certain fum of money ; (a) nor of debt on the 
 arrears of an account taken before auditors, whether affigned by 
 the mafter of the accountant, or by the court, in an a>5lion of 
 account, (bj Nor of damages recovered by a judgment ; (cj 
 for in all thefe cafes the demand is afcertained. 
 
 It feems to be on the fame principles that afubmlflion cannot 
 be made of a queftion relative to the detention of the title deeds 
 of an eftate, nor of the demand of annuity ; for, in the firft cafe, 
 the writings only are to be recovered ; and, in the other, the 
 annuity itfelf and the arrears. In fonie of the old books, how- 
 ever, reafons more technical, but lefs fatisfadlory, are affigned 
 for thefe cafes : that in the adlion of detinue of charters, neither 
 the wager of law, nor outlawry, lies ; and that it concerns land, 
 and comprehends a warranty in itfelf, which is an inheritance ; 
 and that a writ of annuity is an aftion mixt with the realty, (d) 
 
 But an aSiion of account maybe fubmitted; for, till the ac- 
 count be taken, the fum remains uncertain, (ej So alfo a tref- 
 pafs for taking away the charters of an eflate j for there uncertain 
 damages are to be recovered for the injury of taking them away. 
 
 (a) 10 H. 7. 4.. 4 H. 6. 17. Rol. 
 Arb. R. 2. 5. Blake's cafe, 6 Co. 
 
 43.44. 
 
 (b) 4 H. 6. 17. 6 H. 4. 6. a. 
 
 Fitzh. Abr. 51. a. b. Rol. Arb. R. 
 y. 6. f. I. 1 Lev. 292. 
 
 At common law, before either the 
 ftatutc of Marlebiidge or Weftminfter 
 die fccond, there were two methods 
 of proceeding againft an accountant -. 
 one by which the party to whom he 
 was accountable, called, in the lan- 
 guage of thofe times, his marter, 
 might, by the content of the account- 
 ant, eiiher take tlie account himlelf, 
 
 or aflign an auditor or auditors to take 
 it, and then have his aflion of debt 
 for the arrears. Or he might, in the 
 firft inftance, have a writ of account, 
 on which, after judgment quod com- 
 putcti auditors were aftlgned hy the 
 court, and final judgment pronounced 
 on their report. The report of the 
 auditors, in both cafes, was confidered 
 as matttr of record. 
 
 (c) GouldH). 91, 92. 
 
 (d) 9 H. 6. 60. Fitzh. 51. a. 
 Rol. Arb. V. I. A. 6. V. 3. 
 
 (e) Rol. Arb. R. 4- 
 
 though
 
 52 THE SUBJECT OF REFERENCE. 
 
 though in detinue the recovery is only of the charters them-* 
 felves. 
 
 And, in general, where the party complaining could recover 
 by aiSlion only uncertain damages, the fubjedl of complaint may 
 be the objeft of a reference to arbitration : as any demand not 
 afcertained by the agreement or contradl of the parties, though 
 the claimant demands a fum certain j as a claim of 5I. for differ- 
 ent expences in the fervice of the other party, (a) 
 
 So, debt arifmgona fimple contract ; (b) a demand of rent for 
 ufe and occupation ; (c) a complaint of flander j (d) trefpafs of 
 every kind, whether perfonal or to the land ; (e) and, in general, 
 all kinds of perfonal wrong, where, by the policy of the ftate, 
 the injury done to the individual is not confidered as merged in 
 the public crime, or where it does not include an offence againft 
 the public manners, (f) 
 
 There is alfo a diftinclion with refped to demands arifing 
 on a deed. Where the demand is wholly afcertained by the 
 deed at the time of making it, as it is by covenant, bill or bond, 
 to pay a fum of money ; there this certain demand cannot be 
 avoided, but by matter of as high a nature, and therefore cannot 
 be fubmitted to arbitration, as has been before mentioned : but 
 when no certain duty accrues by the deed alone, but the demand 
 arifes from a wrong or default fubfequent, together with the deed, 
 as in the cafe of a bond to perform covenants, or covenant to 
 repair a houfe, there the demand being for damages for a breach 
 may be fubmitted. (g) 
 
 On the fame principle, an acSlion on the old ftatutes, for enti- 
 cing away the Plaintiff's fervant, might have been anfwered by 
 a fubmiflion of that injury, and an award in confequence of it ; 
 becaufe the acElion was not grounded merely on the ftatute, but 
 alfo on the departure of the fervant, which was matter of fadt. (hj 
 
 C^J Sowerv. Bradfield. Cio.El. 
 4.22. 
 
 (h) 45 Ed. 3. 16. a. b. 
 
 Cf;4H. 6. i7.b. Rol.Arb.V.8. 
 
 (d) iKcb. 848. 
 
 (e) 13 R. 2. 
 
 (f) Vid. infra. 
 
 (g) Blake's cafe. 6 Co. 43, 44. 
 do. Jac. 99. Rol. Alb. T. i, 2, 3, 
 
 (k) Rol. Arb. S. 2. Vid. ftatnte 
 of labourers, 23 Ed. 3. ft. i, and the 
 other old ilatutes on that fubjeft. 
 
 Most
 
 THE SUBJECT OF REFERENCE. 33' 
 
 Most of thofe cafes too, which cannot be fubmitted by them- 
 felves, may, when joined with other things of an uncertain na- 
 ture ; becaufc then there is an uncertainty in the whole of the 
 difputes ; (a J as debt on a bond, whether fingle or with condi- 
 tion ; Cl^) debt for arcars of rent afccrtained by a leafe for 
 years ; (c) damages recovered by verdicSl and judgment, (dj 
 
 But it was determined, in very early times, that the arrears 
 of an account taken before auditors, aifigned by the mafter of 
 the accountant, cannot be referred even amongrt: other things ; 
 becaufe, fay all the juftlccs, an award is not of fo high a nature, 
 as debt found before auditors, the latter being matter of record ; 
 Ce) and they certainly would have faid the fame thing, had the 
 cafe been that of debt found before auditors afiigned by the court. 
 
 The fame reafon, however, applies, even in a fuperior de- 
 gree, to the cafe of damages recovered by verdidl and judgment ; 
 for thefe are furely matter of record, and of as high a nature as 
 arrears found before auditors : and, perhaps, had the latter cafe 
 remained to be decided in more modern times, it would have 
 received a different determination. 
 
 However, in all cafes where the demand arifes on a deed, it 
 would feem the fubmiflion muft alfo be by deed j becaufe a fpe- 
 cialty cannot be anfwered but by a fpeclalty. (fJ 
 
 Therefore, where A was indebted to B in 20I. by a fingle 
 bond, and they fubmitted all matters between them, by parol, 
 and it was awarded, that A fhould pay to B a lefs fum in fatis- 
 faction ; it was determined, that though he had paid this fmaller 
 fum, according to the award, yet this was' no difcharge of the 
 bond. But it was alfo held, that if the fubmiflion had been by 
 bond, by which each bound himfelf to perform the award, A 
 would have been obliged to pay the money awarded, otherwife 
 
 (a) Fhbt. 51. b. 6H.4. 6. a.b. 
 Rol. Arb. R. 3. Tr. zz Car. Faver 
 V. Bates. S. C. Al. 4. Monis v. 
 Creech, z Keb. 623, 659. 
 
 (b) Lumlcy v. Hutton. M. 13 
 Jac. B. R. H. 15 Jac. B. R. Rol. 
 Arb, B, 8. Coxal v. Sharp. 1 Ktb. 
 
 0-7. 
 
 (c) 10H.7. 4. Rol. Arb. R. 5. 
 
 (d) Goulilflj. 91, 92. 
 
 (e) 6 H. 4. 6, a. 4 H. 6. 17, 18. 
 Flibt. 51. a. b. Rol. Aib. R. i. 6. 
 S. 1 . vid. 1 Lev. 292. 
 
 (f) 3H,+. I. Brcoke, 4.4. a. 
 
 D he
 
 4^ THE SUBJECT OF REFERENCE. 
 
 he muft have forfeited his bond of fubmiflion; and if he had paid! 
 it, or tendered payment, B would alfo have forfeited bis bond of 
 fubmiflion, by bringing an aftion on the fingle bond. CaJ 
 
 Much doubt and uncertainty feem anciently to have prevailed 
 on the queflion, " How far a difpute concerning land could be 
 referred to the decifion of an arbitrator ; and how far, on an 
 a6tual reference, the parties were bound by his award." 
 
 Thus, we are told, in one book, (b) that " it v/as faid by 
 " Grevill and Pollard, that land in variance, on the title, right, 
 " and pofleflion fubmitted to arbitration, without other debates, 
 *' and variances of other things perfonal, are not arbitrable, nor 
 *' have the arbitrators authority to meddle with the title of real 
 " land only, but fuch award is void ; and fo a bond, with con- 
 " dition to obey fuch award, is void." The reporter, however, 
 adds a qucrc, for that " others think clearly the contrary, if there 
 " be fuch words as fubmit title and poffeiTion : alfo they think," 
 continues he, " that if I and another fubmit to an award of all 
 " demands^ without more, in the word demands are implied all 
 " matters between us concerning the lands of both parties, which 
 " are in variance between us." 
 
 In other places, we are told, that " arbitrators cannot make 
 *' an award of freehold, and therefore cannot award the freehold 
 " of one to another." This was faid by Culpepper, " which 
 *' nobody denied but Skrene, who faid, that an arbitrator cannot 
 " award frank-tenement without deed ; but that if parties fub- 
 '■'■ mitted themfelves to arbitration by deed indented, then the 
 " award was good, and a man might plead it in bar, to which 
 -' no anfwer was given." (c) 
 
 Again^ " a man cannot have a remedy to enforce an award 
 " of frank-tenement, unlefs he has a bond for performance." (d) 
 '-' The right of freehold cannot be the fubje(5l of a reference; but 
 " the arbitrator may award, that the one party fhall infeoff the 
 
 (a) Lumley v. Hiitton, H. 15 (I') Keilway, 99. b. 
 
 ]r.c. B. K.M. i3jac. B.R. Rul. 
 Arb. B. 8. Coxal v. Sliaipe. i Keb, 
 
 (c) 14 H. 4.. 18, 19, Brooke, 44. 
 b. 
 
 (d) 9 E. 6, 26. Brooke, 53. 
 
 " other
 
 THE SUBJECT OF REFERENCE. 35 
 
 " Other In fatisfadlion." (a) " An award that one fliall infeofF 
 *' another in an acre of land, and immediately after deliver up 
 " the charters, is good." (bj But Rolle fays, " that arbitrators 
 " cannot make an award of freehold, though the fubmiflion be 
 *' by deed, or even by deed indented j" but his authorities (c) 
 do not go fo far. 
 
 So, he fays, " that an arbitrator cannot make an award of a 
 " leafe for years, as to adjudge the land of one to another, by 
 ** which the intercft and eftatc of one fhall be transferred to the 
 " other, becaufe," fays he, " it is a chattel real :" from whence 
 it might be concluded that his opinion was, that any thing in the 
 realty could not, by any mode, be referred to arbitration. But 
 he cites no authority, nor does he make any diftin<Slion, whether 
 the arbitrator cannot do this at all, or only that he cannot do it 
 unlcfs it be within the fubmifTion. 
 
 He alfo lays it down for law, (d) " that there cannot be par- 
 " tition by an award ;" but his reafon feemsonly to extend to the 
 manner in which the award of partition is exprefl'ed : it is, " that 
 *' freehold does not pafs but by livery," which was true, before 
 the introdudion of the modern forms of conveyancing j and 
 therefore an award, in fuch words as thefc, " The one fliall have 
 " one moiety of the lands in queftion, and the otiier the other 
 *' moiety," would not have been cffecSlual. 
 
 But it appears, by a number of cafes, adjudged even while 
 thefe doubts were conftantly exprefled, that the real difficulty was 
 how to enforce an award made on a reference of a difpute con- 
 cerning land ; for whenever the fubmifTion was by bond, it was 
 almoft univerfally held, that the party who did not perform the 
 award forfeited the bond. 
 
 Thus, it is faid, " if two, by bond, fubmit the title of cer- 
 " tain land to the arbitrament of a third perfon, who awards, that 
 " the one fhall levy a fine to the other of tliat land, he muft do 
 " it, othcrwife he will forfeit his bond." (e) 
 
 (a) Dift. per Moyle, cont. per 
 Littleten. M. 9 E. 4. 44. 
 
 {b) iSEa. 4. 21, cited Rol. Aib. 
 E. II. 2. 
 
 D 
 
 (c-J 9 E. 4.44. 14 H. 4. 19. 
 (d) I Rol. 24;. 1. 1 6-. cites P. 
 I J ic. B. Horton v. Horton. 
 (t) Kc;!\v2y, 4;. a. b.45. b. 
 
 ;0,
 
 {6 THE SUBJECT OF REFERENCE. 
 
 So, " Vv'here two bound themfelvcs in mutual obligations to 
 " Hand to the award of certain perfons, on the right, title, and 
 *' pofleffion of 20 acres of land j and the award was, that one of 
 " them fliould enter and have pofTefllon of ro acres to him and 
 " his heirs, and that the other fhould have the remaining 10 acres 
 " for life:" though an objection was taken to this award, as 
 being only of parcel of the things fubmitted, yet that was over- 
 ruled, and no obje£tion taken to the fubmilTion, as being of free- 
 hold, nor to the award on any other account, (a) 
 
 In another place, (b) it is faid, " that if the condition of a 
 *' bond be that the parties fhall ftand to the award of J. S. con- 
 " cerning the title of certain land, and the arbitrator award, that 
 *' the one {hall give a -releafe to the other of his right, and that 
 *' the latter fliall give to the former 20I. In lieu of it ; this is a 
 *' good av/ard." And RoUe, (cj citing the fame cafe, fays that 
 *' though _///<:/; an award be void to determine the right, and to 
 " change the eftate, becaufe it is real, yet being within the fub- 
 " ml/Tion, the party is bound to perform it." 
 
 So, where there was a fubmiffion of the title of copyhold land, 
 and an award that one of the parties, in confideration of mo- 
 ney paid him by the other, fhould releafe to the latter all his 
 right in the copyhold, at a certain day ; and three years after- 
 wards make further afilirance ; no objcdlion was made to the 
 Juhje^ of the award, though feveral were made to the award 
 itfclf. (d) 
 
 Yet, the idea of there being fomething in the nature of real 
 property, which rendered it an improper fubjeftof reference, 
 continued long to be entertained ; " If an award be made, fays 
 " Coke, of a real thing, although that be no bar in an a£i:ion for 
 ** the thing, yet if this be performed, the bond is forfeited ',^'(e) 
 by which, I fuppofe, he means, ' the bond of the party, who, 
 ' notwithftanding the award, and j)crformance by the other, fues 
 * on the original caufe of a6lion, is forfeited by his fo fuing j 
 ' unlefs, it muft be fuppofed that the word " not " is omitted 
 
 (a) 19 H. 6. 6. b. 
 (h) 9 E. 4. 44. 
 (c) Rol. Aib. B. 14. 
 
 ('i/^ Markham V. Jennings. H.4. 
 Jac. B.R. Rol. Aib.K. 15. 
 (e) I, Rol. Rep. 270, 
 
 * before
 
 THE SUBJECT OF REFERENCE, 37 
 
 * before the word " performed," and then the meaning will be, 
 
 * that the party not performing the award will forfeit his bond.' 
 
 And fo late as the time of William the third, it is obfcrved, 
 by one of the judgcs^faj " that it is a queftion, whether the 
 " title to land is fubmiflible, fince it is in the realty ;" and he 
 is anfwercd by the Chief Juftice, (^Z*^ "that things in the realty 
 *' may be fubmltted, as well as things in the pcrloualty} but 
 " that they could not be recovered on the award, fcj 
 
 There feems to be fomething fuigulariy abfurd in the man- 
 ner in which, in many cafes, this opinion of the inarbitrable 
 nature of real property is exprefled : " any thing concerning the 
 ** realty," it is faid, " cannot be referred; an arbitrator can 
 *' make no award of it ; he cannot award the freehold of one 
 " man to another j" and yet, in the next fentencc, it is fre- 
 quently added, " but, if there be a bond to ftand to the award, 
 " the party who does not perform it forfeits the penalty j" 
 which is contrary to the principle which univerfally governs 
 every other cafe on this fubjefl; for in all other cafes it is held, 
 that if the award be void, the bond is not forfeited by non-r 
 performance. CdJ 
 
 In none of the books, which I have had an opportunity of 
 confulting, is there any reafon given for this opinion ; perhaps 
 the principles on which it was founded had ceafed to operate 
 before any regifler was kept of the proceedings of the courts ; 
 it probably had its rife from the feudal reftraints on the alier.a- 
 tion of real property : at a time when the lord had an intereft i-i 
 the perfon of his vafTal, who could not be changed without his 
 confent; when the vaflal had a reciprocal reitrainton the change 
 of his lord ; and when the anceftor could not difmhcrit his heir; 
 it was perfetSlly confonant to reafon, that the pofiinbr of land 
 fhould not be permitted, by a reference to an arbitrary tribunal, 
 to infringe on thcfc collateral rights ; and when, by the removal 
 of the rcftraints on alicnatioji, the principle on which the 
 
 f^) Powell. 
 
 (h) Trcby. 
 
 (<:) Marks v. Manlot. 1 Lc;J 
 Raym. 115. 
 
 00 2zH.6.46. 
 
 D 3 opinion
 
 jiS THE SUBJECT OF REFERENCE. 
 
 opinion was founc^d no longer exifted, and was forgotten, the 
 opinion itfelf ftill continued to be favoured. 
 
 In the Roman law, there is no queftion but that real pro- 
 perty might be referred, and the parties bound by an award con- 
 cerning it ; (a J and indeed there appears to be nothing in the 
 nature of real property itfelf which makes it an unfit fubjedl of 
 arbitration, where no adventitious reafon prevails to render 
 itfo. 
 
 It may therefore fafely be confidered as law, that where the 
 parties might, by their own adt, transfer real property, or ex- 
 ercife any a6l of ownerihip with refpe6l to it ; they may refer 
 any difpute concerning it to the decifion of a third perfon, who. 
 may order the fame a6ls to be done which the parties themfelves 
 might do by their own agreement : therefore, when we are told 
 that an arbitrator cannot make an award of freehold, that he 
 cannot award the freehold of one man to another, or that parti- 
 tion cannot be by an award ; we are to underftand thefe expref- 
 ftons to mean no more, than that land cannot be transferred, or 
 a divifion made of it, by the mere magic of the words of the 
 award ; but that it is neceflary that the award fhould order fuch 
 adls to be done as would, if done by the voluntary agreement of 
 the parties, amount to a proper transfer or partition at law. 
 
 Thus, where it appeared by the recital of an award, that the 
 parties to the fubmifl^on were joint tenants of certain land, and 
 the award ordered that they fhould make partition by mutual 
 conveyances, no objection was taken to the power of the ar- 
 bitrator to order partition to be made ; but to the uncertainty of 
 the manner in which it was ordered, it not being pointed out 
 what moiety or part the one fhould have, and what the other : 
 but even this objeflion was over-ruled, and it was refolved, that, 
 
 (a) Inter Caftellianum et Seium, 
 controverfiadefinibusortaeftjet arbiter 
 ele6tus eft, ut arbitratu ejus res ter- 
 tninetur ; ipfe fententiam dixit, prae- 
 
 fcDtibus partibus, et terminos poluit : 1 poenam commifi'am. Ff. 1. 4. t 
 qusefitum eft, an, fi ex parti Cartel Hani j f. 44 
 
 arbitro paritum non effet, poena ex 
 compromiffo commifia ert ? Rdpondi 
 fi arbitro paritum non eflet in eo, 
 quod utroquc preiente arbitratus eflct. 
 
 whereas
 
 THE SUBJECT OF REFERENCE. 39 
 
 Vfhereas they were joint-tenants before, they would now become 
 tenants in common, (a) 
 
 And where the law did not require any particular folcmni- 
 ties, to transfer the pofleliion from one to another, the words of 
 the award alone have been held fufficicnt for that purpofe ; as 
 where a controvcrfy arofe between two, concerning a leafc of 
 lands, and they fubmitted to the award of a third perfon, who 
 awarded, that one of them (Iiould have the lands j this was held 
 in evidence before a jury, to be a good gift of the intereft oi the 
 term; but it was likewife held, that, had it been, that the one 
 fhould permit the other to enjoy the term j this would not 
 have given an intereft in it. (b) And in another book, (cj where 
 the fame cafe is cited, and the diftin£tion here taken recog- 
 nized, it is faid, that if the arbitrators award, that the poffeffor 
 Jholl hold the term^ it feems, that this would not bind the right 
 of the other ; for that the award does not extinguifh the right 
 there, as it does to pafs the poflefTion in the other cafe. — 
 I confefs I do not fee any thing material in thefe diftinc- 
 tions ; and I apprehend, that fmce the ftatute of frauds, fd) 
 fuch an award would not be fufHcient to bind the parties, but 
 that it muft order a transfer of the poflefTion, or a releafe of the 
 right, by a written inftrument. 
 
 As real property cannot be transferred by the parties them- 
 felves, without deed, it fcems to be a neceflliry confequence that, 
 where that makes a part of the difpute, the fubmiflion, as well 
 as the award, where the fubmiflion is by the adl of the parties, 
 muft alfo be by deed. 
 
 It has been faid, that all kinds of perfonal wrong may be fub- 
 mitted to arbitration, where, by the policy of the ftate, the in- 
 jury done to the individual, is not confidered as merged in the 
 public crime, or where it does not include an offence againft the 
 public manners. 
 
 This exception was not dictated by any thing which appears 
 in Qiir books ; it arofc from that principle appearing in the civil 
 
 (a) Knight v. Buiton. 3 Anne. 
 6 Mod. 231. 
 
 (b) TiuUoe V. Afcwre. Cro. El. 
 
 D 4 law 
 
 (c) Dy. 183, in marg. 
 
 (d) 79 Car. z, c. 3. i" >
 
 40 THE SUBJECT OF REFERENCE. 
 
 law ; but as it is founded in rcafon and good fenfe, there can be 
 no doubt that, if the qucftion had ever occurred in our courts, 
 it would have received a fiinilar determination. 
 
 As arbitrators, fay the writers on the civil law, (a) have no 
 power, but that which the parties can give them, we cannot 
 fubmit to arbitration certain caufes which the laws and good 
 manners do not fuftcr to be expofed to any other event, but that 
 which the natural authority of juftice gives them, and which 
 cannot be brought before other judges than thofe who are 
 cloathed with public authority. Thus we cannot fubmit accu- 
 fations of crimes, fuch as murder, robbery, facrilege, adultery, 
 forgery, and others of the like nature -, for on the one fide the pub- 
 lic intereft is concerned, to have thefe crimes puniHied in a 
 public manner ; and on the other, the party accufed can neither 
 defend his honour nor his innocence but in public, and before 
 the judges who exercife the miniftry of juftice ; and it would be 
 contrary to good manners, and ufelefs for the accufed, to fubmit 
 voluntarily to juftify his innocence before arbitrators, who hav- 
 ing no fhare in the adminiftration of juftice, could neither juftify 
 nor condemn him. (b) 
 
 Neither can we, according to the fame writers, fubmit 
 caufes which relate to the ftate of perfons ; as if the queftion 
 were to know, whether a man were legitimate or a baftard — 
 whether a gentleman or a plebeian. Nor can fuch caufes be 
 fubmitted to arbitration, the confequence of which may intereft 
 our honour or dignity in fuch a way, that good manners do not 
 allow us to fubmit the event of them, or to choofe judges for 
 deciding them, (c) 
 
 (a) Dotnat. i vol. 225. 
 
 (b) Julianus indiftiiicle fcribit ; fi 
 per errorcm de famofo delifto ad aibi- 
 trium itum elt, vel de ea le de qua 
 publicum judicium fit conftitutum, 
 veluti de adulteriis, ficariis et fimili- 
 bus ; vetare debet praetor, fentcntiam 
 dicere, nee dare diftae executionem. 
 rf. 1. 4. t. 8. f. 3Z, w. 6. 
 
 {c) Domat. i vol. 225. Dcliberali 
 caul'a compromiffb fa6lo, re£le non 
 conipelletur arbiter lententiam dicere ; 
 quia favor liberlatis eft, ut majores 
 judices habere debeat j eadem diccnda 
 funt, ffve de ingenuitate, five do 11- 
 bertinitate quosftio fit : et fi ex fidei- 
 commilTi caufa, libertas deberi dica- 
 tur. Idem dicendum eft in populari 
 p.aione. Ff. 1. +. t. 8. f. 32. n. 7. 
 
 CHAP.
 
 THE APIilTP.ATOR AND UMPIRE. 
 
 4> 
 
 C M A P. 
 
 IV. 
 
 The ARBITRATO.R and U MI' I RE. 
 
 EVER.Y one whom the hiw fiippofes capable Who may he 
 of judging, v/hiitevef may be his chara.5ler for an Arbitrator. 
 integrity or wifdom, may be an arbitrator or 
 umpire ; becaufe he is appointed by the choice of the parties 
 themfelves, and It is their folly to choofe an improper perfon;(^^^ 
 but a perfon cannot be an arbitrator, who, by nature or acci- 
 dent, has not difcretion ; as one of non-fane memory, or one 
 who is deaf and dumb, bccaule being deprived of theufe of thofe 
 fcnfes, which are more peculiarly the medium through which 
 knowledge is conveyed to the mind, he cannot be fuppofed ca- 
 pable of judging ; nor an infant, nor a perfon who is under the 
 controul of anotlicr ; as a married woman, a flave among the 
 Romans, or a villein in the times of villeinage ; neither can 
 a man attainted of treafon or felony, (h) But with us an un- 
 married woman may be an arbitratrix, (c) though by the civil 
 law fhe could not, it being contrary to the proper character of 
 the fex, according to the ideas of Juflinian, to intermeddle with 
 the office of a judge, (d) 
 
 (a) Com. Dig. Arbitrament. B. 
 — parvi rcjcit, ingcnuus qiiis, an li- 
 bertinus fit ; integrae farax quis lit 
 arbiter, an ignominiol'us. Ff. 1. 4. 
 t. 8. r. 7. 
 
 (b) Com. Dig. Arb. C. — In ferviim 
 Labco comproniitti non portc I'cribit ; 
 ct eft verum. Ft". 1. 4. t. 8. f. 7. 
 Sed iicqucin pupillum, ncque in tii- 
 riol'iim, aiit lunlum aut mutum com- 
 promittct-.ir, 1". 9. — Cimi lege Juiia 
 cautuni fit, tie Minor I'it^i/iti ntntis 
 juJicare cogtUur, ncmini licerc mino- 
 rtni viginli anius compromiiTariiim 
 jiiclicem eligrre : ideoque pa;na ex 
 Jententia ejus nullo mono committitiir. 
 Major! tamjn viginti anni:;, fi minor 
 
 viginti quinqiie fit, ex Iiac caufa (wc- 
 ciuremlum, (\ temere auditorium rc- 
 ceperit, multi uixerunt— 1". 41. 
 
 fcj Vid. the Duchefs of SulToIk's 
 cafe. 8E. 4. I. Br, 57. 
 
 (d) Sancimus, mulieres, fua: pudi- 
 citiaj mcmores ct cptrum quje eis 
 natura pcnnifit, ct a quibus cas iuffit 
 abltinere, iicct lummx atque opitimx 
 opinionis conlUtutx, in i"e aibitrium 
 rnlceperint, vd fi fucrint patroni-, 
 eiiaiidi inter libertos, fuam interpo- 
 lucrint audientiam, ab omni jndiciali 
 agmine leparari, ut ex em um cleftione 
 nulla poena, nulla padi exceptioad- 
 verfus jullos earnm coniemptorcs 
 habeatur. Cod. 1.2. t, 56. f. 6. 
 
 It
 
 4* THE ARBITRATOR AND UMPIRE. 
 
 It is a general rule of law, founded on the firft principles of 
 natural jufticc, that a man cannot be judge in his own caufe ; 
 and on this foundation the Roman law has exprcfsly provided, 
 that if a man be conftituted arbitrator in a difpute to which he 
 is himfelf a party, he cannot pronounce an award j adding this 
 ratisfa>Sl:ory reafon, that he mufl, from the nature of the thing, 
 either order himfelf to do fomething, or prohibit himfelf from af- 
 ferting fome claim ; and that no man can either impofe a com- 
 mand or a prohibition on himfelf. (a) There are, however, one 
 or two cafes mentioned in our books of reports, which feem to 
 ir.fringe on this principle, but which probably may admit of fuch 
 a modification as to be reconcileable to it. 
 
 Serjeant Hards took a horfe as a deodand from the bailiiF 
 of the archbifliop of Canterbury, for which the archbifhop brought 
 his action, and that coming to a trial at the aflizes in Kent, the 
 Serjeant offered to refer the matter to the archbifhop himfelf^ 
 which was accordingly done by rule of court; and the Serjeant 
 afterwards applied to the court to have the award fet afide, on the 
 principle mentioned above ; but the court thought the objeftion 
 of no force ; probably becaufe the reference to the archbifhop was 
 by the Serjeant's own propofal, by which they thought he ought 
 to be bound : perhaps, too, they thought, that the principle in 
 queflion applies only to the cafe where a man takes on himfelf 
 to judge in his own caufe, without the confent of the oppofite 
 party. However this may be, it is certain, that on the authority 
 of this cafe, cited from rccolledion by one of the judges, (b) and 
 reported by him to have been approved of by Lord Chief Juflice 
 Hale, a fubfequent cafe received a fimilar dccifion, though the 
 circumftances are not mentioned, (c) 
 
 Another cafe is reported (d) of a fubmi/Tion by two on each 
 fide, to feverai arbitrators, of whom one of the two on one fide 
 
 (a) Si de re fua quis arbiter fac- 
 tus fit, fententiam dicere non poteft : 
 quia fe lacere jubcat, aut petere pro- 
 hibeatj ntque autem imptrari fibi ne- 
 que fe piohibere quifquani poteft. Ff . 
 1.4. t. 8. f. 51. 
 
 (h) DolbenJ. 
 
 (c) Matthew V. Ollcrton. 5 W. 
 andM. B.R. Comb. 218. 4 Mod. 
 zz6. 
 
 (d) Hunter v. Bennifon, Hardr. 
 43- 
 
 was
 
 THE ARBITRATOR AND UMPIRE. 4J 
 
 was one, and an objeflion taken to the award on that account 
 by his partner, when made defendant to an adlion on the bond 
 of fubmiflion ; and the objection was fupportcd by another ob- 
 fcrvationj " I'hat it was a principal challenge to a juror, that he 
 had been an arbitrator between the parties in thecaufe :" but it 
 does not appear that the court gave any attention to this obfer- 
 vation; probably becaufc they thought it inapplicable to the cafe 
 in qucftion. The circumrcance of having been an arbitrator be- 
 tween the parties in the fame caufe is an objedlion to the juror, 
 becaufe he may be already prejudiced in the difpute j artd the ob- 
 ligation under which the party was bound to fland to his award 
 is at an end, before the caufe can again be brought to trial by a 
 jury, and dees not cftop him from objecting to the juror on ac- 
 count of a prejudice fo naturally implied; but, by fubmitting to 
 have his partner in the difpute one of the arbitrators, he had 
 waved all fubfcquent objecliion, on that account, to his award. 
 
 The Roman law recognizes two kinds of arbitrators, thofe 
 who are appointed by a formal fubmiflion, and a.'!^ in the capa- 
 city of a judge, and thofe to whom it is fimply referred to fet a 
 price on any thing which is the fubje^l of fale ; to ellimate the 
 value of a rent, to decide on the quality of a piece of work- 
 manlhip, to fettle the fhares of gain and lofs between partners, 
 or to determine any queftion of a nature fimilar to thefe. (a) 
 Arbitrators of the firft kind had an uncontroulablc authority, from 
 v/hich there was no appeal, where they kept within its limits, 
 whether their award was an equitable decifion between the parties 
 or not, and therefore the party could never be inverted with that 
 authority : but in the latter cafe it was confidered to be the 
 meaning and intention of the litigants, that the matter in difpute 
 fliould be referred to the judgment of perfons of probity and flcill 
 in the particular fubjedt, who were not permitted to exceed the 
 bounds of reafon and equity ; and if they did, their decifion was 
 
 (a) Arbitronim genera funt duo : 
 unuiTi ejul'modi, ut five sequum fit, 
 {ivc iniquum, pareredtbeamus ; quod 
 obfervatur, cum ex compromijfo ad ar- 
 hitrum ituni eft ; akerum ejiifmodi, 
 ut ad boni viri arbitiium rediji de- 
 
 beat, et fi nominatim fit compi-ehenfa 
 perfona, ciijus arbitr?tu fiat ; veluti 
 cum lege locationis comprehenfum eft, 
 ut opus arbitiio locatoris fiat. Ff. 
 1. 17. t. 2. f. 76, 77. 
 
 void :
 
 44 
 
 THE ARBITRATOR AND UMPIRE. 
 
 void : (ij) in this cafe, tlierefore, there was no inconvenience in 
 permitting one of the parties, by the confent of the other, to be 
 an arbitrator of the difputej and accordingly fuch a reference 
 was frequently made, (b) 
 
 The cafe of Serjeant Hards, and others of the fame kind, 
 would, in the Roman law, have been confidered as more pro- 
 perly belonging to the latter clafs. 
 
 It appears, however, to be no objection to an arbitrator, that 
 he is related to one of the parties, or connected with him in any 
 other way, which might raile a prefumption of an inclination in 
 his favour ; for by confenting to the nomination of fuch a perfon, 
 the other party has fhewn his opinion, that fuch an inclination 
 will not afFedl the juftice of his determination, (c) 
 
 When a fubmiflion is made to the award of two 
 
 Umpire, or more, it is frequently thought prudent, in order 
 to provide a remedy for the cafe of their finally dif- 
 fering, or not making an award at all, to infert a claufe of agree- 
 
 fa) Ea mens eft perfonam arbitrio 
 fiibftitiientium, ut quia fperent eum 
 rcSle arbitratuium id faciant, non quia 
 vel immodice obligari velint. Domat. 
 I vol. 44. Si in lege locationis com- 
 prehenium fit, ut arbitratu domhn 
 opus adprobetur, peiindc habetur, ac 
 fi viri boni aibitri\im compiehenfum 
 fuifTtt : idemCjUe lervatur, fi alteiius 
 cujujlihet arbitiiurn compiehenfum f:t, 
 nam fides bona exigit, ut arbitiiurn 
 tale prx-ftetur quale viro bono conve- 
 rit. Ff. 1. 19. t, 2. f. 24. 
 
 (b) Si focietatem mecnm coieris, 
 ea conditione, ut partes fccietatis con- 
 Jiitueres, ad boni viri arbitrium ea res 
 ledigenda elt : et conveniens eft viri 
 boni arbitrio, ut non utique ex sequis 
 partibiis focii fimns, vehiti fi alter plus 
 operae, induftriie, pecuniae in focieta- 
 tem ccllaturus fit. Ff. 1. 17. t. 2. f. 6. 
 Societatem mecum coifti, ta conditi- 
 one ut Ner'va amicus cojnviunis partes 
 focietatis conjWtucret : Nerva conftituit, 
 at tu ex trknte Joch'.s ej}<:s, ego ex bejj'c : 
 
 q\i3eris, utrum, ratum id jure focleta- 
 tis fit, an nihilominus ex a-quis par- 
 tibus focii fimus ? exiftimo autem me- 
 lius te quaefituriim fuifle, utrum ejj 
 his partibus focii eftemus, quasis con- 
 ftitulfl"el, an ex his, quas virum bo- 
 num conftituerc oportuifllt : — arbitri- 
 um boni viri exiliimo fequendum efi'e : 
 eo magis, quod judicium pro focio, 
 bonje fidei eft. Unde fi Ncrvae arbi- 
 trium ita pravum eft ut manifefta ini- 
 quitas ejus appareat corrigi potcft per 
 judicium bonae fidei. Quid enim fi 
 Nerva conftituifiet, ut alter ex mille- 
 fima parte, alter ex duabus millefimis 
 focius efiet : illud pottft conveniens 
 efle viri boni arbitrio, ut non utique 
 ex asquis partibus focii fimus, veluti li 
 alter plus opeiae, induftrlse, gratia;, 
 pecuniae, in focietatem collaturus erat. 
 Ff. 1. 17. t, 2. r. 76, 78, 79, 80. 
 
 (c) Qu^inctiam de re patris dicitur 
 filium famillas arbitrum efle : nam ct 
 judicem euin eife pofTeplerifque placet^ 
 Ff. 1.4. t. 8. f. 6. 
 
 meat.
 
 THE ARBITRATOR AND UMPIRE. 45 
 
 mcntj that in fuch cafe the qucftion fhall be referred to the de- 
 cifion of a third perfon, who is called an umpire. 
 
 The nomination of this perfon is frequently made by the par- 
 ties themfclves at the time of the fubmifiion, and frequently left 
 to the difcretion of the arbitrators. In the latter cafe, the Englifh 
 law differs clTcntially from that which was conceived to be law 
 by the opinion moH: prevalent among the Roman lawyers; for 
 though they acknowledge it to have been a common practice to 
 refer any thing to the decifion of tivo arbitrators, yet they fay, 
 that " a fubmiffion to tvv-o, with a provifion, that, in cafe of 
 difference in opinion, they Ihall nominate a third," is not valid, 
 becaufe they may alfo differ in the objedl of their nomination : 
 but lit the fame time they admit, that in cafe of a fubmiflion to 
 two without fuch provifion, the prseror, when they can not agree 
 in an award, ought to compel them to nominate a third perfon 
 to decide between them, (a) 
 
 The Engliih law expreflcs no fuch anxiety for the poiuble 
 difference of opinion in the choice of an umpire; and, in fatfi:, it 
 is more ufual to appoint two arbitrators with the power of this 
 nomination, than any greater number : but it provides, that the 
 choice fhall be fair and impartial, and that it fhall not even be 
 left to chance; therefore, where two arbitrators, having fuch 
 power by the fubmiffion, did not maice an award within the time 
 limited, and could not agree in the choice of an umpire, but 
 threw c7-ofs znd pyle which of their nominees fhould prevail, this 
 was thought by the Mafter of the Rolls afuHicient reafon for fetting 
 afide the umpirage made by the fuccefsful nominee ; becaufe an 
 ele*i1ion, he faid, was an aft of the will and underflanding, but 
 the arbitrators in this cafe had followed neither, but had truftcJ 
 the matter to chance. C^J 
 
 (n) Si in duos fuerit fie compro- 
 millum, utjl diffsntirent, tertiim ad- 
 fumnnt, puto tak- compromiflum non 
 valerc, nam in adhimtndo poniint dif- 
 fentire. Sed f\ ita lit, ut cis tertiiis 
 adfnmeretur Sempronius, valet com- 
 proniiirum : q\ioniam irt adiumfndo 
 tiiirentire non pcfTunt. S.'d ulitatum 
 
 eft, etiam in duos compromitti, et 
 debet pi;ttor cogerc arhitios, fi non 
 conlcntiant, teriiain certain eligeiei>cr- 
 fonam, cujus auiSloritati pareatur. Ff". 
 1. 4. t. 8. f. 17, n. 5,6. 
 
 (h) Harris v. Mitchell. 2 Vein. 
 485. 
 
 There
 
 46 THE ARBITRATOR AND UMPIRE. 
 
 There is no part of the law relative to awards, in which Co 
 much uncertainty and confufion appear in the reported cafes, or 
 on which fo many contradi6lory judgments have been given, as 
 on this rcfpefting the umpire. The time when the power of 
 the arbitrators ceafes, and that of the umpire begins ; the time 
 when the umpire may be nominated, and the effe£l of his nomi- 
 nation, have, each in its turn, proved to be queftions of fufficient 
 magnitude to exercife and diftraft the genius of Weftminfter- 
 Hall. The befl: way to difcover fome glimmering of light through 
 this chaos of opinion will be, to confider minutely the different 
 forms of fubmifilon by which the appointment of an umpire is 
 regulated. It has already been obferved, that he is either ap- 
 pointed by the exprefs nomination of the parties at the time of 
 the fubmiffion, or that the nomination is left to the difcretion of 
 the arbitrators. Thefe are the leading forms, of which each has 
 its fubordinate diftinctions. In each, the time limited for the 
 umpire to make his umpirage has fometimes been the fame with 
 that limited for the arbitrators to make their award : in each, it 
 is mod ufual, and feems moft corredl, to prolong the time be- 
 yond that period. 
 
 In the cafe of a prolongation of time, when the umpire has 
 been either a;?pointed by the parties, or nominated by the arbi- 
 trators, in confequence of a pov.'er given them for that purpofe 
 in the fubmiffion, the authority of the latter is determined, and 
 that of the former immediately begins on the expiration of the 
 time allowed to the latter. Thus, if the fubminion be to certain 
 arbitrators, and if they canr.ot agree, or be not ready to deliver 
 the award, in writing, before the nrft of May, it be provided, 
 that then J. S. fhall be umpire, and make his umpirage by a cer- 
 tain day after ; though the arbitrators never /peak of the matter, 
 fo that there can be no difagreement between them, yet, if they 
 make no award before the firft of May, the umpire has authority, 
 by this fubmifllon, to make his umpirage ; for the words, " if 
 they cannot agree," are not to be taken literally, but in the fame 
 fenfeas " if they ^<7 not agree," or " if they make no award." (aj 
 
 C<?^ Lumley V. Hutton, on Demurrer. H. jfJ^c.B. R. Rol. Arb. P. i. 
 
 But
 
 THE ARBITRATOR AND UMPIRE. 47 
 
 ^UT the point on which, in all the forms of fubmiflion, the 
 greatefl difficulty has been felt, his been, to decide whether any 
 condu(5t of the arbitrators, before the expiration of the time limited 
 for their making their award, can authorife the umpire to make 
 his umpirage before the expiration of that time. 
 
 The condition of a bond was, to (land to the award of J. S. 
 and J. D. foas the award were made and delivered on the next 
 day J and if they could not then agree, then to ftand to the um- 
 pirage of J. N. fo that he made and delivered his umpirage on the 
 next day, or the day after that. On the argument of this cafe, 
 we are told,!^^?^' that RoUeheld, and delivered, that if it had been 
 alledgcd, that the arbitrators, before the expiration of the next 
 day, had refufed to determine, and had deferted their power, that 
 would have enabled the umpire to make his umpirage on the next 
 day, the time limited for the arbitrators. But the judge, who 
 cites this opinion, does it v/ith difapprobation ; and obferves, that 
 Rolle muft himfelf have altered his opinion, becaufe he reports 
 his own judgment otherwife; which he certainly does, for he 
 fays, " that in fuch a cafe, though it be alledged that the arbi- 
 trators could not agree on any award, and that they had alto- 
 gether refufed and neglefled to make any award, yet the umpire 
 cannot make his umpirage the next day ; for that though the 
 arbitrators could not agree at any time of the day, and neglefted 
 and refufed to make an award, yet at any time after, during the 
 day, they might have made an award ; becaufe the words, " if they 
 cannot then agree," imply, that they have to the laft moment of 
 the day, and it is a condition preced-jnt to the power of the um- 
 pire extending to the whole day, and no act of the arbitrators can 
 haftcn it beyond the power ; and if both the arbitrator and the 
 umpire had power at the fame time, both might make awards, 
 and it could not be decided which Hiould prevail, (h) 
 
 AccoRDiKG to this opinion, if in fuch a cafe no further time 
 had been given to the umpire, his appointment v;ould have been 
 void. And accordingly, where the fubmiflion was " to the 
 
 (a) Pr. Twifiien. 1 Mocl. 275. 
 
 (b) B.:inard v. King, 011 deiuurjer. Rol. Arb. P. 6. 
 
 awaxd
 
 48 THE ARBITRATOR AND UMPIRE. 
 
 award of certain arbitrators, and if they d'lfagree^ then to the 
 umpirage of J. S. fo that the award or umpirage were made 
 before the firlt of A'lay;" in this cafe it was held, that the um- 
 pire could make no award, 'till a final difagreement between the 
 arbitrators, and that, as they had time to make their award, 'till 
 any time before the day, there was no time given to the umpire, 
 who therefore could make no award. (^^^ 
 
 From thefe cafes and others (^/^^ under fimilar circumftances, 
 decided on the authority of thefe, it appears evidently to have 
 been the opinion of the courts in thofe times that, where the 
 umpire was named in the fubmiffion, if no further time was 
 given to him than to the arbitrator?, his nomination was a mere 
 nullity, and he could, under no circumftances, malcc an award ; 
 and that, where there was a prolongation of time, he could not 
 interfere before the expiration of that allowed to the arbitrators. 
 — It was not long, however, before this opinion began to be 
 doubted j a fubmiiTion was to arbitrators, with a provifo, " that 
 their award fhould be made on or before the 29th of July ; other- 
 wife to an umpire, provided he fhould make his umpirage 
 before the 2d of Auguft." The arbitrators refufmg to make an 
 award, the umj^ire made his umpirage on the 29th of July ; and 
 though the court held that, in this cafe, the umpire could not make 
 an award on that day, becaufe 'till the expiration of it the autho- 
 rity of the arbitrators dill fubfifted ; yet Chief Juftice Keeling 
 faid, hypothetically, that had the fubmiffion been to A, " provided 
 he made his award on before the firft of May; but if he declined 
 it, then to B, as umpire, provided he fhould make his umpirage 
 thtfame day ;" an umpirage made on that day weuld have been 
 good, on an averment of refufal by the arbitrator, (c) 
 
 And in that report of one ©f the former cafes, (dj which 
 feems to be the fulleft and mofl; accurate, the judgment of 
 the majority of the court is faid to have proceeded rather on the 
 
 (a) Barber V. Giles. Rul. Aib. 
 P. 2. .S.P, aVern. ico. 
 
 (b) Copping V. Hurnard. i Sid. 
 428,454.: Sr. T. RAym. 187. zKeb. 
 462, 619. 2 Saund, 132, 
 
 fcj Lufli V. Crabbe. 19 and 20. 
 Car. 2, 2 Keb. 263, 332. 
 
 (dj Copping V. Herauld, or Hur- 
 nard. 2 Saund. 129. 
 
 defedlive
 
 THE ARRITRATOP.S AND UMPIRE. 49 
 
 dcre(5live manner of pleading, than on any decided opinion of 
 the umpire, having a<Sled witliout authority. — The fubmifTion 
 was to the award of two, provided it fhould be made before 
 Michaehnas, and if they could not agree then to the umpirage of 
 a third, who fliould decide within the fame time. The plaintiff 
 declared, that the arbitrators made no award, but that the um- 
 pire had made an umpirage, which was fet forth ; but becaufe 
 it appeared to have been made within the time appointed by the 
 arbitrators, judgment was given for the defendant, after a con- 
 fideration of two or three terms ; and the principal reafon was, 
 that the averment in the declaration, " that the arbitrators did not, 
 nor could make any award," was not iUflicient, and that, tho* 
 the arbitrators had not at the time of the umpirage made any 
 award, yet they might have done It afterwards ; and therefore 
 the umpire had atSlcd before it came to his turn j that the aver- 
 ment, that the arbitrators could not make any award, was idle, 
 for nothing ajipeared to the court againft the poffibility of their 
 making an award, if they had been willing ; but that, had any 
 fact been laid before the court, from which it muft neceflarily 
 have appeared that the arbitrators could make no award, as if it 
 had been fhewn that one of them was dead, it might have been 
 otherwife; and the whole court, except Twifden, were of opi- 
 nion, that, if it had been averred that the aibitrators had difagreed 
 as to the terms of their award, and had declared they would in- 
 termeddle no further with the fubjecl, the umpire might have 
 proceeded within the time. 
 
 And in a fubfequent cafe, (a) the opinion was totally over- 
 ruled, and thofe cafes which proceeded on it denied to be law ; 
 the reafon on which it was founded being confidered as unfatis- 
 fadfory : for it was faid, if the arbitrators did in fa»5t make an 
 award within the time allowed to them, that fliould be confidered 
 as the real award ; and if they made none, then the umpirage 
 Ihould take place : and there was no confufion as to the con- 
 currence of authority with refpedt to the time. The umpire 
 had no concurrerice abfolutely, but only conditionally if the ar- 
 
 a) Cliaftf V. Dare. P. 33. Cnr. 1. Sir T. Jones 168. 
 
 K bitrators
 
 5© THE Af.EITRATORS AND UMPIRE. 
 
 bitrr.tors made no award within their time. — This was meant to 
 apply equ'ally to the cafe where the umpire was confined to th& 
 fame time with the arbitrators, and to that where a further time 
 was given to him. 
 
 Where the nomination of the umpire Is left to the arbitra- 
 tor?, it feems fa) anciently to have been the prevailing opinion, 
 that they could not proceed to this nomination before the laft 
 moment of the day when their own authority expired. While 
 that opinion prevailed, unqucftionably the power given them 
 in the fubmilHon, to nominate an umpire, when the latter was 
 exprefbly limited to the fame time, muft have been a mere nul- 
 lity ; and where further time was given him, an award could not 
 pofTibly be made by him before the expiration of the time al- 
 lowed the arbitrators, and therefore no queftion could be raifed 
 on the fubjefl. — This opinion however was relinquiflicd about 
 the time of James the hrii ; and a nomination of an umpire be- 
 fore the expiration of the time allowed to the arbitrators, was 
 firfl fupported in favour of thofe fubmifTions where no additional 
 time was given to the umpire; therefore v.'here the fubmiilion 
 was to tvi'o, with this claufe, " Neverthelefs if they do not end 
 It within ten days, they (hall nominate another, who fhall end it 
 .within the ten days," it was held, that if they thought they 
 could not agree within the ten days, they might appoint another, 
 who might make an umpirage within the ten days, fljj 
 
 The fame indulgence v/as afterwards extended to the cafe, 
 where further time was given to the um.pire, as to the power of 
 the arbitrators to noaiinatc him before the expiration of their 
 own time : thus, where A and B fubraittcd to the award of J. S. 
 provided his award fnould be made on or before the laft day of 
 May next enfuing ; and if he made no award on or before that 
 day, then they fliould ftand to the award of fuch perfon as 
 fhould be nominated by J. S. to be made before the tenth of 
 June after : the arbitrator, on the laft day of May, nominated an 
 umpire, who made an award before the tenth of June, and this 
 
 {aj Vid. thecail'S cited infra. 
 bj Fynll V. Vaiier. M. ii. Jac. 
 B. GoUbglt. 241 Rol. Arb. P. 3.- 
 
 S. P. Twifleton v, Travers. i Lev. 
 174. cited I lA. K:".}m. 67: , iz Mod. 
 512. 
 
 was
 
 THE ARBITRATORS AND UMPIRE. ?! 
 
 was held to be good ; though it was objeaed, that the arbitra- 
 tor had the whole of the firft day of May to make his award 
 ill ; (a) but the reafon given for the determination in thefc cafes 
 is, that by the nomination of an umpire, the authority of the 
 arbitrators is at an end, and that the reafon which induced them 
 to make the nomination, might be, that they felt themfelves un- 
 able to make an award within the time.— The judgment in this 
 cafe has been fmce confirmed by fimilar refolutions; but the rea- 
 fon is fomcthing dilFerent, being merely, that the arbitrators 
 having made no award within the time, the umpirage (hall be 
 gooi.fbj 
 
 Sometime before this laft cafe, occurred that of Jennings 
 and Vandeput, of which the circumftances were thefe -.(cj The 
 fubmiffion was to the award of four merchants, provided it 
 fhould be made and delivered in writing, before the twentieth 
 of July following ; and if they could not agree, then to the 
 award of fuch an umpire as they fhould name, provided he made 
 his umpirage in writing before the twenty-fifth of July follow- 
 ing. The arbitrators made no award, on or before the 20th of 
 July ; but three of them, on the 18th, by their writing dated on 
 that day, nominated an umpire, who took the charge upon him, 
 and the fourth agreed to this nomination on the 21 ft. — The 
 umpire made his umpirage before the 25th, according to the 
 provifo in the fubmiflion: an action being brought on the 
 award, and a verdicl given for the plaintiff, it was moved in ar- 
 reft of judgment, that the nomination of the umpire, before the 
 20th of July, was void ; for that the arbitrators had the whole 
 20th day in which to make their award, and that they could not 
 nominate an umpire till afterwards ; but the objection was over- 
 ruled, becaufe there was no com pleat nomination until the agree- 
 ment of the fourth arbitrator with the other three, and the writing 
 was not to have efteil till that time. But it was alfo obferved, 
 that if the nomination of the umpire had been compleat, be- 
 
 faj Watfon v. Clement. M. z-v 
 Car. B. R. Rol. Alb. P. 5. 
 
 fl'J Elliot V. Cheval. Lutw. 54X» 
 544. Tr.. II W. 3. 
 {cJ Cro. Car. 263. T. 8. Car. 
 
 £ 2 fore
 
 5« THE ARBITRATORS ANB UMPIRE. 
 
 fore the expiration of the time for making their award, yet it 
 would have been good, a^ no award was made by them within 
 the time. 
 
 On the authority of this latter obfervation, Twifden J. held (a J 
 that where the arbitrators have authority to nominate an um- 
 pire, they may do it before th^e expiration of the time for mak- 
 ing their award, and that fuch nomination does not extinguifli 
 their authority. But, at the fame time, he feems to have confi- 
 dered it as a neceffary confequence of the continuance of their 
 authority, that the umpire has no power to inferfere, notwith- 
 ftanding any refufal of the arbitrators to decide the queftion, til!- 
 the time allowed to them be expired : and he went fo far as to 
 afTert, that if fuch a power were given to the umpire by the fuh- 
 miflion, it was void in its conftrutflion, for the fame reafon as 
 had been given in fome of the preceding cafes, " that two could 
 not have a feveral jurifdi6lion at the fame time ; and that the 
 arbitrators, though they had once declined their office, might' 
 refume it whenever they pleafed within their time." 
 
 In the cafe before the court, the condition of a bond was 
 to ftand to the award of two, who were to make their award on 
 or before the nineteenth of February, with a provifo in thefe 
 words, " and if they do not make an award before the nineteenth 
 of February', then I impower them to ehoofe an umpire ; and by 
 thefe prefents bind myfelf to perform his au^rd." The umpire 
 chofen accordmg to this power made his umpirage on the nine- 
 teenth of February, and the other judges then prefe-nt fb) afTcnt- 
 ing to the principles laid down by Twifden, concurred with him 
 in deciding, that the umpirage was void. 
 
 However, notwithftanding this cafe of Twifdcn's, the idea 
 ftill continued for a confiderable time, that by eleding an um- 
 pire, before the expiration of their own time, the arbitrators 
 gave up their authority to make an award.— The following 
 cafe occured late in- the reign of William the third : fcj A iuh- 
 
 (a) Tn Delavgl v. Mafchall. 29 
 Car. 2. I Mod. 274. Si-. T. Raym. 
 205. 1 Lev. 285. there calkd Deno- 
 van V, Mafcall, 
 
 fh) Rainsford and Morton. 
 
 fc) Mitchel V. Harris. 13 W. 3. 
 I Salk. 71. 1 Ld. Raym. 671. 12 
 Mod. 512. 
 
 miflion
 
 THE ARBITRATORS AND UMPIRE. 53 
 
 mlfllon was "to ftand to the award of two, provided it fliould 
 be made on or before the tweiity-Jiinth of June, and if they 
 made no award, then to the umpirage of fuch perfon as they 
 fhould choofe," without limiting any time for the umpirage. 
 Tlie arbitrators chofe an umpire on the 29th of June, who 
 then made his award: it was objected, in the terms of former 
 cafe?, that the arbitrators had chofen the umpire too foon, be- 
 caufe they had chofen him before the determination of their own 
 authority, they having the whole of the day, in v/hich they might 
 make their award j and that, notwithltanding their having chofen 
 an umpire, they might ftill make an av/ard, before the expira- 
 tion of the time allowed to them. 
 
 But it was anfwered and refolved, by the Chief Juftice, with 
 the concurrence of the reft of the court, that by the fubmiflion, 
 the arbitrators had an ele<flion to make an award, or to choofe 
 an umpire by fuch a day, and that by doing the latter they 
 had determined their election, ?,'Ad, together with that, their 
 authority. But he diftinguilhed betv/een this cafe, and that 
 where the umpire is named in the fubmifiion ; for that, in the 
 latter, the umpire could not make an award before the expira- 
 tion of the time allowed to the arbitrators. 
 
 And it is faid to have been fettled in the Common Pleas, fo 
 late as the eighth of George the fecond, that arbitrators cannot 
 proceed on a reference, after they have once named an umpire, 
 for that then their authority ceafcs, though the time for making 
 their aw.ird be not expired. CaJ 
 
 It is now hov/cver finally determined, that arbitrators may 
 nominate an um;)ire before they proceed to confider the fubjcct 
 referred to them ; and that this is fo far from putting an "end to 
 their authority, that it is the faireft way of choofmg an um- 
 pire, {"bj And it Is in faiSt not unufual for the parties to make it 
 a condition in the fubmilTion that the umpire fljall be chol'en by 
 the arbitrators, before they do any other act. 
 
 ,'/? ' Rep. Praa. in C. B. ij6. Palcli. 8 G. 2, Danes v. Monfay cited 
 Vni. Abr. Arbit. P. 18. 
 /iv i Term Rcji. 645. 
 
 E 3 They
 
 54' THE ARBITRATORS AND UMPIRE. 
 
 They may alfo, when a further day is given to the umpire, 
 and the choice left to them in general terms, choofe him at any 
 time after the expiration of their own time, provided it be be- 
 fore the lime limited for him. (a) 
 
 Considering the intention of the parties, as the proper 
 criterion on this fubjecl, independently of decided cafes, there 
 does not appear the femblance of a reafon, why, in the cafe where 
 no further time is given to the umpire than to the arbitrators, 
 an umpirage made before the expiration of that time, fliould 
 not be fupported, whether the umpire be named in the fubmif- 
 fion, or the choice of him be left to the arbitrators : it feems to 
 be ailing againft the very policy of the law, in recognizing 
 thefe domcftic jurifdidlions, to confidcr that as nugatory which 
 the parties have manifcftly fhewn to be their intention, unlefs 
 that intention be contrary to fomc eftablifhed maxim of law 
 plainly applicable to the fubjedl:, or repugnant to common fenfe : 
 what maxim of law is contradidled by a wifh in the parties to 
 have a difpute decided within a certain limited time, either by 
 two, or by a third, in cafe of a failure by the two, it is difficult 
 to difcover ; and that fuch a thing is repugnant to common fcnfe 
 it will hardly be afierted. 
 
 The conclufion from the whole of the cafes taken together, 
 feems to be in favour of fuch a fubmiffion, and of an umpirage 
 made according to it. 
 
 While the opinion prevailed that, by nominating an um- 
 pire the arbitrators renounced their office, and could not after- 
 wards make an award, there was fome foundation for a diftinc- 
 tion between the cafe of an umpire exprefsly named in the fub- 
 miffion, and that where his nomination was left to the arbitra- 
 tors, when a further time was given to the former beyond that 
 which was limited to the latter. — In the fccond cafe there could 
 be no apprehenfion from that concurrence of authority fo much 
 dreaded in the firft, and no inconvenience could arife from fup- 
 porting an umpirage made before the expiration of the time al- 
 lowed to the arbitrators j but now that that opinion is exploded, 
 
 (a) Burdet v. Haiiis. 3. Keb. 387. Freem. 378. Adams v. Adams. 
 » Mod. 163. 
 
 the
 
 THE ARBITRATORS AKD UMPIRE. 55 
 
 the diftinction which was founJcd on it neccllariiy fails ; that 
 which is law in the one cafe mud be confidcred as law in the 
 other. It has been {qcDj that in the cafe where the umpire is 
 cxprefsly named in the fubmiflion, the old opinion, that the um- 
 pire could not make an umpirage before the expiration of the 
 time allowed the arbitrators, was over-ruled, by the cafe of 
 Chafe and Dare : that cafe, though not always attended to in 
 the fubfequent cafos, has not been directly contradictv^d j but the 
 general current of dccifions, fmce that time, has rata.;r tended to 
 confirm it. There docs not appear any direct authority that, 
 where the nomination of an umpire is left to the arbitrators, and 
 a further time given him, he may, when nominated before the 
 expiration of that time, make his umpirage within it. But there 
 is a cafe which fhew-s, that, had that queftion been decided, it 
 would probably have been decided that he might. 
 
 The plaintiff and defendant had, in the beginning of Decem- 
 ber, entered into bonds of arbitration, with a provifo, that the 
 arbitrators fliould make their award by the 17th of January fol- 
 lowing ; and if they fhould not, then the parties bound them- 
 felves to ftand to the umpirage of fuch perfon as the arbitrators 
 fhould indifferently choofe, provided it fhould be ma\le by the 
 firft of February. They chofe an umpire on the 24th of De- 
 cember, who made his umpirage on the 14th of January. The 
 counfel for the defendant, v/ho impeached the umpirage, con- 
 feffed, that a cafe between Ogel and Cogdcl, v/hich in circum- 
 ftances exaclly refembled this, had been lately decided in the 
 Common Pleas, and that the court had fhewn an inclination to 
 confider the umpirage as binding ; but he faid, that the judgment 
 of the court had proceeded on another point. Not depending 
 much on this circumftance, however, he took an exception to 
 the form of the affidavit on whicli the application was founded 
 for enforcing the award : the court thought the exception fatal, 
 and therefore faid they did not think it ncceffary to declare any 
 final opinion on the point of law j yet, they faid, they had not 
 jnuch doubt but the umpirage miglit be maintaiiicd. (n) 
 
 ia) Covvel v. Waller, Trin. 5 Geo, 2. z BarnarJ. K. B. ic^. 
 
 E 4 Upo.v
 
 56 THE ARBITRATORS AND UMPIRE. 
 
 Upon the whole, there feems to be little rcafon to doubt, that 
 in all cafes where an umpire is introduced into the fab million, 
 whether he be there exprefsly named, or his nomination be left 
 to the arbitrators ; whether the time allowed to him be the fame 
 with that allowed to them, or extend beyond it, he may, unlefs 
 in the latter cafe reftrained by exprefs words, or by plain impli- 
 cation, make his umpirage before the expiration of the time al- 
 lowed to the arbitrators. 
 
 The only remaining queftion on this point is, whether, in arj 
 a6i:ion, or on a fummary application to enforce this umpirage, it 
 niuft not be fhewn exprefsly to the court, that the arbitrators, 
 before the umpire adually undertook thebufmefs, negledted, or 
 refufed to proceed, or exprefsly renounced their authority ; un- 
 lefs this was in fa6l the cafe, it is manifeft the umpire could not 
 take upon himfelf to decide, the meaning of the parties being 
 clearly to have recourfe to an umpire, only in cafe of default in 
 the arbitrators. But it would feem, that the very circumftance 
 of no award having been made by the arbitrators within their 
 time, is a foundation for prefumption, that they had actually de- 
 clined making a dccifion on the fubjeft, and that therefore an al- 
 legation, that they had in fadl made no award, is fufficient. And 
 this opinion is apparently juftified by the terms in which the 
 judgment of the court is given, in the cafe of Chafe and Dare, 
 the leading cafe on this point. 
 
 From the opinion, that the arbitrators, having once elected an 
 umi)ire, had executed their authority, it has been thought to fol- 
 low as a neceflary confequence, that if they elected one who re- 
 fufed to undertake the bufinefs, they could not eledl: another. In 
 the cafe of Trippet and ILyre^CaJ which occurred in the Com- 
 mon Pleas, in the firft of William and Mary, this opinion was 
 ftrenuoufly maintained by the Chief ]ui\'ice,CbJ in oppofition to 
 the reft of the court, who fupported the contrary pofitjon. The 
 reafons on which he founded his opinion were thefe : firft, he 
 faid, the nature of an authority was fuch, that, when once exe- 
 cuted, it was determined, and the parties to whom it was given 
 
 f fij Tripriet V. Eyre, j W, and M. in C. J>. 3 Lev. 263. zVcnt.ii3, 
 (h) Pullexfcn. 
 
 'had
 
 THE ARBITRATORS AND UMPIRE. 57 
 
 had no further power : the arbitrators, therefore, having once 
 iianicd an umpire, could not name another, though the firft re- 
 fufed ; becaufc, fecondly, the perfon fud named, though he had 
 rcfufed, might ftill have proceeded if he had pleafcd ; for no cafe 
 could be nut of a man, vefted with a bare authority, being con- 
 cluded, by his refiifal, from afterwards executing it ; and there- 
 fore, if the fecond were to be confidered as well nominated, there 
 would be a concurrence of authority in feveral perfons to make 
 an award, which, on the authority of the old cafes of Barnard 
 and King, and Barber and Giles, he faid the law would not per- 
 mit. 
 
 These arguments were anfwered by the other three judges in 
 this manner : that they were to confider the penning of the con- 
 dition of the bond, which wa<^, " to ftand to the award of fuch 
 umpire as the arbitrators fhould nominate," which could not be 
 confined to the circumftance of barely naming a man, but muft 
 be taken to be an effectual nomination, by the perfon named ac- 
 cepting of the office; and his refufal made it amount to no more 
 than a bare propofal to him, which did not conclude the arbitra- 
 tors from naming another. It was true, that an authority, once 
 fully executed, was determined, and could not be executed again ; 
 but the condition to iiand to the award of fuch perfon as the ar- 
 bitrators fhould name, could not, they faid, be with propriety 
 called an authority J the terms imported rather a defcription or 
 qualification of the perfon who was to make the award, than an 
 authority conferred on the arbitrators ; yet, admitting the con- 
 dition to amount to an authority, there was here no complete exe- 
 cution ; and if the perfon authorifed make a void, or incfF'eilual 
 execution of his authority, he may execute it again. If a letter 
 of attorney were to deliver feifm, and the attorney delivered it 
 within the view, which was not a good execution of his autho- 
 rity, that would not conclude him from delivering fcifin after- 
 wards upon the land : a v/rit of poll'effion was executed by the 
 flierifFin delivering pofielTion of a houfe, and afterwards it was 
 difcovercd, that a perfon was hidden in a room of the houfe, on 
 which he was turned out, and the fherift" delivered poflcifion 
 
 again,
 
 58 THE ARBITRATORS AND UlilPIRE. 
 
 again, which was refolvcd to be well, (a) It could never be the 
 meaning of the parties, that if the arbitrators named a man who 
 refufed to take upon him the office of umpire, they fhould be 
 concluded from naming anotlier. 
 
 With refpe6l to the opinion, that the perfonfirft named might 
 afterwards have taken upon him the umpirage, notwithftanding 
 his refufal, it might be anfwered, that admitting that to have 
 been the cafe, if he had done it before the effetStual nomination 
 of another, yet it was clear he could not have accepted the office 
 of umpire, after fuch cfFe£lual nomination : a fecond nomination 
 took away the efFeil of the firft ; and if, before they had named 
 another, the firft had taken on himfelf the office, that would have 
 prevented them from proceeding to a fecond nomination, and 
 therefore there could be no concurrence of authority. As to the 
 cafes cited by the Chief Juftice, relative to this latter point, thefe 
 were cafes, in which the umpire was named in the fubmiffion, 
 and therefore could not apply to the prefent ; and had, befides, 
 been exprefsly over-ruled by that of Chafe and Dare. But, 
 where the nomination v/as left to the arbitrators, without further 
 time given to the umpire, it had been decided, according to the 
 beft report of the cafe, f/^j that, on an allegation that the arbi- 
 trators refufed to make any award, the umpirage v/ould have been 
 good— On thefe grounds judgment was given for the plaintiff— 
 Yet, notvvithftanding the good fenfe apparent in the reafoning of 
 the three jufticcs. Lord Chief Juftice Holt held, not long after, 
 that having once chofen an umpire, the arbitrators had executed 
 their authority, and therefore could not choofe another, though 
 the firft refufed, unlcfs the nomination was under a condition 
 that he fliould accept, for then he was no umpire 'till the con- 
 dition v/as fulfilled : but Juftice Rokeby doubted the foundnefs 
 of this diftincvlon ; bccaufe, he faid, every election implied a 
 condition that the office fliould be accepted, (c) Is it necefiary 
 to add, that good fenfe, on the prefent queftion, is at variance 
 
 (a) Palm. 2S9. 
 
 (h) Copping '/. Horner. 2 Saur/J. 
 
 (c) Reynolds v. Giay. 9 Will. 3. 
 1 Salk. 70. 1 Ld. Kaym. 222. la 
 Mod. 120. 
 
 with
 
 THE ARBlTRATOilS AN'D UMPIRE. 59 
 
 with the opinion of the two Chief Juftlces ? That the rclfi^hncfs 
 of parties, and their dclire to defer the payment of a juft demand, 
 fnould prompt them to bring fucii a queftion before a court, is 
 not furprifing ; the wonder is, that grave and learned judges 
 (hould be able to perfuade thcmfclves tiiat there was any ground 
 for raifing it. 
 
 • When the pcrfon to whom the parties have 
 agreed to refer the matters^ in difpute between Proceedings ly 
 them has confented to undertaice the ofuce, he Arbitrators. 
 ought to appoint a time and place for examining 
 the matter, and to give notice of fuch appointment to the parties, 
 or to their attornics : if the fubmi.Tion be by rule of reference at 
 nif, pr'ius^ the refpciStive attornies fhould fet down the names of 
 the witnefTes propofcd to be examined before the arbitrator on a 
 piece of paper, and deliver it to the crier, who will fwear them 
 at the bar of the court : the parties alfo, if that be part of the 
 rule, muft be likewife fworn ; but if this precaution be neglected, 
 both witnefles and parties muft: be fworn before a judge. It is 
 ufiial for the plaintiff's attorney to obtain the order of reference 
 from the allbciate or clerk at jufi prlus^ and attend the reference 
 to have an appointment; and that being obtained, to fubfcribc 
 it to a copy of the order of reference, and ferve it on the defend- 
 ant or his attorney : but if he fail in thcfe refpefls, the defend- 
 ant's attorney may take the fame fteps which he ought to have 
 done : and this frequently becomes necciTary, when the plaintifF, 
 by the circumftances appearing at the trial, begins to apprehend 
 that the matter may go againft him. 
 
 The parties mufl attend according to the appointment, either 
 in perfon or by attorney, with fjch witnefies, and fuch docu- 
 ments, as they may think necefT^.ry to fubilantiate their refpec- 
 tive claims. The arbitrator is ti)en to examine thofe witnelFes 
 and documents, as far as he may find fuch examination necefl'ary 
 or proper, to enable him to form a decided opinion on the merits 
 of the cafe: he may alfo cx.in-iine the parties themfeive«, or 
 either of them, if he fee good reafcn for fo doing; or he may- 
 call for any other information he may judge necei7ary. 
 
 If the mr.ttcr be long or intilc.ite, or if he cannot fatisfy hlm- 
 
 fclf
 
 6o THE ARBITRATORS AND UMPIRE. 
 
 felf with refj)e(Sl to the decifion he ought to give, he may ad- 
 journ the matter from time to time, giving notice, as at firft, of 
 the time and place of every fubfequent meeting \(a) provided, 
 that when a time is limited in the fubmiflion, he make his award 
 within that time. — Where no time is limited, he may, by the 
 Engliih law, take what time he pleafes, unlefs either of the par- 
 ties fpecially requefl: him to make an awar<i within a reafonabJe 
 time, an<3, in cafe of refufal, revoke his fubmillion ; for the par- 
 ties will not be bound by an award, after fuch revocation, (h) 
 Where a time is limited, he cannot make an award after that 
 time, unlefs it be prolonged. When the fubmiffion is by tlie 
 zdi of the parties, without the intervention of a court, that pro- 
 longation can only be by their mutual confent. If the fubmif- 
 flon was by bond, conditioned to be m.ade a rule of court, ac- 
 cording to the flatute, or by reference at mfi prius ; the fub- 
 miffion, or the rule of reference, muft firft be made a rule of 
 court; and then, if the parties confent to have the time en- 
 larged, the court will grant leave for the enlargement, as of 
 courfc : when it is not fufpedled by the party who undertakes to 
 make the application, that there will be any oppofition from the 
 other, it is fuflicient to give notice to him of his intention j and, 
 on an affidavit of that notice, the court will grant the rule ; at 
 leaft, if the other party confent by counfel, as is ufually the 
 cafe.— But if any oppofition be apprehended, the beft way of 
 proceeding for the party who wi(hes to enlarge the time, will be 
 to apply, on an affidavit, Hating the circumflances on v/hich he 
 conceives the time ought to be enlarged, for a rule on the other 
 party, calling on him to fliew caufe why it fhould not : if the 
 rule be ultimately granted, the party, on v/hofe motion it was, 
 mufl: have it drawn up with the proper officer, and ferve a copy 
 of it on the arbitrator ; and, on procuring from him an appoint- 
 ment of another time for hearing the parties, ferve the rule, vi'ith 
 a copy of the appointment on it, en the oppofite fide. 
 
 In the Roman law, it was not unufual, for a claufe to be in- 
 
 (a) Diem proferre vel 'picfens, vel per nuucium, vel per epiftolam poteft. 
 Ft. 1.4- t. 8. ]■. 7.7. 
 
 (b) Vid, ante page 19. 
 
 ferted
 
 THE ARBITRATORS AN'D UrwTPIRir. 
 
 6t 
 
 fert^d in the fubmiflion, giving the arbitrator a power, in cafe of 
 neceflity, to prolong the time ; and then he might do it with- 
 out a new authority from the parties ; but where no fuch claufe 
 was inferted he could not do it without their confent. (a) The 
 provifions of that law however were fuch, that it was not in. 
 the power of the arbitrator, from negligence or defign, to deprive 
 the parties of the benefit intended by their fubmiflion, by an un- 
 neceflary and unreafonable delay ; for every man who took upon 
 himfelf the office of arbitrator, might in general be coinpclkd 
 by the prxtor to decide between the parties within a reafonable 
 time; unlefs he W2S fome fuperior magiitrate actually in office^ 
 or unlefs he could fhew fome fatisfactory reafon why he ought 
 not to be compelled : as if he would fwear that he had not yet 
 been able to form a decilive opinion on the fubjecl ; that he had 
 been defamed by the parties ; or that a mortal enmity had arifen 
 between himfelf and them, or one of them ; or that he was pre- 
 vented by the infirmities of age ; or by ill health fince he had 
 undertaken the office ; or that he war. prevented by the prefiure 
 of his own affairs, 'or his necefTary attendarKre on the duties of 
 fome public employment : if no time was limited by the fub- 
 miiilon, he might at any time be compelled to fix a day, by the 
 confent of the parties, for taking the matter into confideration. 
 — If he excufcd himfelf on account of attendance on public duty, 
 his excufe would have been admitted, if there was no claufe in 
 the fiibmifnon empowering him to prolong the time ; but if there 
 was, then he might be compelled to prolong it. And even if 
 
 (a) Si arbiter, cum in compromifl'o 
 cautum efll't — ut poflet ciiem proftiie, 
 diem piotulit, Labeo ait, valcie pio- 
 lationem. — Hrec autem claulula, diem 
 compromijfi projerre millam aliani dat 
 arbitio taculiatem, q;iam diem pioro- 
 gantli: et idco conditioncm pnmi 
 compromiffi neque minueie, neque 
 immutare pottlt. Ff. 1. 4. t. 8. f. 25. 
 — ArlMtcritafumptus excompromilFo, 
 ut et diem projerre fojfity hoc qvi idem 
 taccre potelt : refcnc autem contra- 
 dicemibus litigatoribus non potelt. 
 S. 33.--Arbiterexcompiomiiry I'unip- 
 
 tus, cum ante cum diem, qui confti- 
 tutiis comprnmiflTo erat, It-ntentiain 
 dicere non polTct, diem compromilll 
 proferri jiifl'eiat ; alter e:: litigatori- 
 bus difto aud'er.s non fucrat : con- 
 iulebatur, pofictae ab eo pecunia ex 
 compromilTio peti ? Rcl'pondi non 
 polle: ideo quod non tlTet arbi'ro 
 compromifUnn, ut id bc:berc'. 8.50. 
 — Arbiter niliil extra compromifTiim 
 facere potell et iJeo receflarium til 
 adjici de die compromifTi proiercnda. 
 Citerum im^'une jubenti non parebi- 
 tur. 31. n-ii. 
 
 there
 
 62 
 
 THE ARBITRATORS AND UMPIRE. 
 
 there was no chufe of that kind, yet if the time limited was 
 nearly expired, 2nd the parties agreed to continue their fubmif- 
 fion to him, he could not otherwifc be excufed, on account of 
 a public office, than by confenting to decide under a frefh fub- 
 miilion. — If the. time was expired, without any award made, 
 atid the parties again agreed to refer the matter to the fame per- 
 fon, then, if he could not fl^ievv, that it was not owing to any 
 default of hip, that the matter was not decided, he was obliged 
 to undertake it anew ; if he could, he was of courfe excufed. C^^J 
 The EngliQi law has made no fnnilar prcvifions againft the 
 neglect of duty in the arbitrator ; but it has fecured each of the 
 parties againfl: the voluntary procr::ftination of the other, by 
 permitting the arbitrator, on due notice givcn> to proceed with- 
 
 (a) Et qxiidem aibitnim ctijufciin- 
 que dignitatis, Piactor cogct cffitioj 
 quod fufceptrit, perfungi : etiaiiif: fit 
 confularis : nifi forte fit in aliquo 
 magiftratu pofitus, vel poteftate, Con- 
 ful forte vel prastor : quoni^^m in lioc 
 imperium non habet. Ff. 1. 4. t. 8. 
 f. I. n. 3. — Nam magiftratus fiipe- 
 riore, aut pari Imperio, nullo iriodo 
 poffunt cogi : nee intereft ante, an ipfo 
 magiftratu arbitriiim fiifceperint. In- 
 fcriores pofiunt cogi . S. 4. — Proinde fi 
 forte urgeatur a Praelore ad fentcntiam 
 dicendam : aequiilimuin erit, i\'\\\YCtfibi 
 de caufa nondum liqucre, fpacium ei ad 
 pronunciandum dari. S.13. n. 4. — 
 Licet Prajtor diftrifte td\czx, fenten- 
 tiamfe arhilrum d'lcerc ccrMurtur., at- 
 tamen interdum rationem ejus habere 
 debet, et excufationeni recipe.re caufa 
 cognita : utputa fi fuerit infainatus a 
 litigatoribus ; aut fi inimicitise capi- 
 tales inter eum et litig.itcics, aut al- 
 tenim ex litigaioribus inlcrceflTerir.t; 
 aut fi aetas, aut valetudo, quae pcftea 
 ccntigit, id ei rr.unus remitlat, aut 
 occupatio negctiorum propriorum, vel 
 profeftio urgens, aut r.iunus aliquod 
 reipublicse. S. 15. — Et f.quaalir. in- 
 commoditas ei polt arbitrium fufccp- 
 
 tum incidat. S. t6. — Si compromifTum 
 fine die confe£lum eft : ncceffe ell 
 arbitro omnimodo dies ftatuere, parti- 
 bus fciiicet confentientibus, et ita cau- 
 fam difceptari. Qu^od fi hoc prseter- 
 mifcrit, omni tempore cogendus eft 
 fententiam dicere. S. 14.— Arbiter ju- 
 dicii fui nomine, quod publicum aut 
 privatum habet excufatus efie debet a 
 compromifib : utique fi dies compro- 
 mifTi profeni non poteft. quod fi po- 
 teft : quare non cogat eum, cum po- 
 teft, profcrrc, quod line uUa diftrifl ione 
 ipfius interdum luturum eft? fi tamen 
 uterque velit eum fententiam dicere, 
 quamvis cautum non fit de die pro- 
 terenda, non alias impetret, quia ju- 
 dicium habcat, ne cogatur, quam li 
 confentiit denuo in fe compromitti : 
 Hac, fciiicet, fi dies exitura elt. S. 16. 
 — Si, cum dies compromifTi finiretur, 
 prolato die, litigatorcs denuo in eum 
 compromiferint, nee fecundi ccmpro- 
 mifli arbitrium recenerit : non efTe 
 cogendum recipere, fi ijife in mora non 
 fuerit, quo minus partibus fuis fun- 
 gercVur. Qu^od fi per eum faftum eft 
 cequifTimum effe, cogi eum a praetore 
 fequens recipere, S. 21. n. 5. 
 
 out
 
 THE ARBITRATORS AND UMPIRE. 63 
 
 out his attendance ; (a) and if the arbitrator, from the nature of 
 the cafe, Taould find that inconvenient, it enables the willing 
 party, in the cafe of a reference by rule of niji priusy or by rule 
 of court according to the ftatute, to prefs his opponent by an 
 application to the court for a rule to fliew caufe why he fliould 
 not attend the arbitrator, or why the latter fhould not be directed 
 to make his award, without fuch attendance. Thus, whereon 
 a trial at kIJ: prlus it appeared, that the demand of the plaintiff 
 arofe on a long and intricate account, which in almofl: every ar- 
 ticle was impeached by the defendant, who alfo fet up a coun- 
 ter demand of the fame nature by v/ay of fet-ofF; it was referred 
 by confent, and, the plaintitF neglecting to carry in his vouchers 
 to die arbitrator, before the time limited for making the award, 
 the time was feveral tinies enlarged, till at length the defendant, 
 after upwards of fix months delay on the part of the plaintiff, 
 made an application to the court, on an affidavit, Hating thefe 
 circumftances, for a rule to (hew caufe why the plaintiff fhould 
 not carry in his vouchers within a certain day, and why the time 
 fhould not be further enlarged, or why, on the plaintiff's further 
 default, the arbitrator fhould not be directed to proceed on hear- 
 ing the defendant alone ; the rule was granted without heutation, 
 and the plaintiff, inflead of (hewing caufe againft it, peremptorily 
 undertook to deliver in his vouchers within the time fpe- 
 cified. {bj 
 
 In this refpeiEi the Roman law is fomcthing fimilar to our?, for 
 the party by not atending, and thereby preventing the arbitrator 
 from making his award, foifoitcd the penalty of his fubmif- 
 lion. (c) 
 
 Where an umpire is appointed, and he has occafion to in- 
 terfere, his duty is the fame as that of the arbitrators, and there- 
 fore it has been held, that he cannot proceed on their report, 
 but muft hear the whole matter from the parties thcmfelvc?, or 
 at leaff, by proper notice, give them an opportunity of being 
 
 (n) Waller V. King. Ca. in Law 
 ■aikl Eq. a pt. 63. 
 
 (b) Hctlcy V. HctlcT, in the F.x- 
 chequer. M. 1-89. 
 
 (() Siq^iis litigatonim dcfiicnt; 
 quia per eum faiftum e(t, quo mlnub 
 aibiuetur, poena commiuctur. Ff. 
 1.4. t. 8. r. :7. u. +. 
 
 heard.
 
 64 THE ARBITRATORS AND UMPIRI?. 
 
 heard, in the fame manner, as if the arbitrators iiad never ex3-«f 
 rained the matter, or as if he himfelf had been originally ap~ 
 pointed fole arbitrator, (a) And if the fubmifTion be in the 
 common form, the arbitrators cannot decide on one part of the 
 cafe and leave the reft to the umpire j for he has the whole au- 
 thority which they had : (b) thus, where the arbitrators deter- 
 mined the whole of the matters referred to them, except one 
 iingle point, which related to an account of intereft ; and, in 
 order to fettle that, nominated an umpire, according to the 
 power given them by the fubmiffion. The umpire took the 
 fails to be as the arbitrators reported them, and made his um- 
 pirage on the intereft account only ; and on both thefe accounts, 
 the court fet the umpirage afide. (c) 
 
 The authority of this cafe, however, from the characler of 
 the reporter, as well as fi-om the circumftance of its appearing to 
 have been decided in the abfence of the Chief Juftice, and one 
 of the other judges, is not much to be relied on j and the rea- 
 fons given for the decifion arc not very fatisfaclory. Where the 
 Tirbitrators have agreed on the fadls, and only differ on a fmgle 
 point, either with refpecl to the law arifing on thofc fails, or the 
 extent of the recompehce to be made by one party to the other ; 
 or even where they agree on feme fadts, but differ with refpefl to 
 others, unconnected with the firft, there feems to be no good reafon, 
 why the umpire, if he think proper, may not take thofe points 
 on which the arbitrators agree, to be as they report them. The 
 nature of his duty is only to make a final determination on the 
 whole fubjecl of difpute, where the arbitrators cannot do it ; and 
 by adopting their opinion, as far as they agree, and incorporating 
 it with his ov/n on the other points, he effecfually makes that 
 final determination ; in facl, it is not uncommon for an umpire 
 to zdi in this manner. 
 
 Let this pradlice, hov/ever, be right or wrong, yet, as the 
 whole authority, both of the arbitrators and umpire, is regulated 
 by the fubmifTion, and depends entirely upon it; if. that be of 
 
 (a) 39 H. 6, o. Rol. Alb. P. 7. 
 (h) 39 H. 6. II. b. perPrifot.- 
 Rol. Alb. P. 8. 
 
 (c) Tafl'.er v. Kcary. 2 Barnard, 
 
 feveral
 
 THE ARBITRATORS AND UMPIRE. 65 
 
 il'veral diftinfl matters, with a provifo, that if the arbitrators 
 fliould, by the time limited, make no award of the whole, or of 
 fome parcel, then that the umpire fhall have power, in the re- 
 fpedive cafes, to make an award of the whole, or of the remain- 
 der. On fuch a fubmiflion, it has been faid, that if the arbitra- 
 tors make an award of part, and not of the refc, then the umpire 
 may make an award of the reft ; the whole put together (hall be 
 confidered as one award, and good, if not inconfillent in its fe- 
 veral parts, or at leaft (hall have the fame effect as if the whole 
 had been made by one ; becaufe it was made according to the 
 authority given by the fubmiflion. (a) 
 
 Though the words in the fubmiflion, which regulate the ap- 
 pointment of an umpire, be not perfectly correal, but might, 
 from the grammatical order in which they ftand, feem to imply, 
 that thofe named as arbitrators, and he who is named as umpire, 
 fhould all join together to make an award, yet an award made by 
 the firft, without the participation of the latter, will be confi- 
 dered as fatisfying the terms of the fubmiflion. 
 
 The condition of an obligation was, to ftand to the agree- 
 ment of A and B, " being arbitrators chofen for that purpofe, 
 to end a controverfy between the obligor and obligee, and J. S. 
 being umpire for both parties." In this cafe it was held, (») that 
 an award made by A and B, without J. S. was valid ; for though 
 the words appeared at firft Tight uncertain, yet, as it was the 
 common practice, it was faid, to appoint an umpire to make an 
 end of the matter, if the arbitrators could not agree, this fliould 
 be fo taken, and the words " J. S. being umpire," fhould be 
 •taken as an aflirmative nomination of him as umpire. 
 
 The condition of a bond was, to perform the award which 
 ibur, named as arbitrators, with the umpirage of a fifth, fhould 
 make, concerning the title of certain lands. The four named, 
 as arbitrators, together with the fifth, as umpire, made an award 
 concerning the premifes : an objection was taken to the condi- 
 tion, that it was repugnant in itfelfi that an umpire was a judge 
 
 (a) 39 H. 6. II b. per Piifot. I RoyJon, on a writ of eiroi- on fucli 
 
 J^ol. Arb. P. 8. 
 
 (b) M. li Cur. B.R. orboinv. 
 
 jiulij-ntnt in the court ot Kingfton 
 uponTliumcs. Rol. Arb. P. 6. 
 
 by
 
 66 
 
 THE ARBITRATORS AND UMPIRE. 
 
 by himfelf, and could not be joined with the arbitrators, their 
 authority being diftindl. Whether this objeilion was confidered 
 as having any weight does not appear j for we have only the 
 report of the argument of the defendant's counfel, without anfwer 
 or judgment from the court. It may be obferved, however, 
 that it is perfectly immaterial, whether the parties formed an ac- 
 curate idea of the diftindl offices of an arbitrator and an umpire, 
 their meaning having been clearly, that the firft four, with the 
 affiftance and approbation of the fifth, fliould make an award, 
 and that, being made by all five, fatisfies their intention, (a J 
 
 It has indeed been adjudged, that " if the fubmiffion be to the 
 award of four, and if they cannot agree, then to the umpirage of 
 9. fifth," the five cannot join to make one award ; though it was, 
 at the fame time, admitted, that " if the fubmiflion be to four, 
 and the umpirage of a fifth," an award made jointly by the five 
 will be good, fbj But this cafe has fince been held to be abfurd, 
 and that the joining of the arbitrators with the umpire is but 
 furplufage ; their approbation, which is fhewn by joining with 
 him, does not render the inftrument, purporting to be his um- 
 pirage, in any degree lefs the a6l of his judgment. CcJ 
 
 By the Roman law, where there was an unequal number of 
 arbitrators, it was not neceflary that all fliould concur in the 
 award ; the judgment of a majority was fufficient to fatisfy the 
 terms of fubmiflion, though no exprefs provifion was made to 
 guard againft a difference of opinion. That precaution was fel- 
 dom taken, but in the cafe of a fubmiffion to two, and then it 
 was not unufual to exprefs it in the alternative, to ftand to the 
 award of the one or the other : but it was held, that, in the com- 
 mon cafe of a fubmiffion to three, two could not make an award 
 in the abfence of the third ; becaufe the latter, had he been pre- 
 fcnt, might have drawn over the others to his opinion. CdJ 
 
 (a) Hunter v. Bennifoni Hardr. 
 
 (b) iBulft. 134.. 
 
 (c) Soulfby V. Hodgfon, i Bl. 
 Bep. 463. Eaft, 4G. 3. K. B. 
 
 ^d) Jn imparl numeio idcirco 
 
 compromiflum admittitur, non quo^ 
 niam confentire omnes facile eft, fed 
 quia etfi diffentiant, invenitur pars 
 major, ciijus arbitrio ftabitur. Ff. 
 1. 4.. t. 8. f. 17. n. 6, Si, in tres 
 fuerit compromiflum, fufficere quidem 
 duoiiiiQ
 
 THE ARBITRATORS AND UMPIRE. 
 
 ^1 
 
 In this refpedl the law of England is fomewhat different ; for 
 unlefs it be exprefsly provided in the fubmiflion, that a lefs num- 
 ber than all the arbitrators named may make the award, the con- 
 currence of all is neceflary ; and where fuch a provifo is made, 
 all muft be prefent, unlefs the reft having notice do not attend. 
 
 Matters in difference were, by confent of parties, referred 
 to three, with a provifo that they, or any two of them, fhould 
 make an award before a certain time : an award being made by 
 two in favour of the plaintiff, the defendant moved to have it fet 
 afide ; objeding, that two had not a jurifdiction without the 
 third. On ftiewing caufc againft this motion, it appeared, that 
 the third arbitrator had fufHcient notice of the meetings of the 
 other two, and might have attended if he would. The court 
 obferved, that it was agreed by both fides, that if the third had 
 attended, two might have made an award : two had a jurifdic- 
 tion, but their meetings ought to be according to the rules of 
 law. If the third had been prefent, his reafons might have al- 
 tered the opinion of the other two; he was not therefore to be 
 excluded by fraud ; nor were the two to a<ft without the third's 
 having an opportunity to be prefent ; but where the third had 
 fuflicient notice, as in the prefent cafe, and would not attend, 
 the meeting of the two was regular, and their authority fuifi- 
 cient. (a) 
 
 It was once a queftion of great difficulty, whether, when the 
 fubmiffion was by bond, without providing that the award fliould 
 be delivered or notified to the parties, it was incumbent on the 
 arbitrator to give notice, or whether the parties did not forfeit 
 their bonds by not taking notice of it at their peril. In the reign 
 
 Quorum confenfum, fi prefers fuerit 
 et tertius : alioquin, abfente eo, licet 
 duo confentiant, arbitrium non va- 
 lere ; quia in plures fuit compromif- 
 fum, et potuit pi-xlentia ejus trahere 
 eos in ejus fententiam, n. 7. Sed fi ita 
 fit compromifTum, arhitratu Titii aut 
 Seii fieri : Pomponius fcriliit et nos 
 putamus, compromiiTum valere, n. 4. 
 Si plures arbitri fuerint, et divcilas 
 fententias dixerint : licebit fententis 
 
 eorum non ftari, fed f\ major pars con- 
 fentiat, ea rtabirur, alioquin poena com- 
 mittetur : indc quaeritur, fi ex ti ibus 
 arbitrii unus quindecim, alius decern, 
 tertius quinque condemnent cui fcn- 
 tentiae ftctur ? et Julianus fcribit quin- 
 que debere prxilari ; quia in banc 
 lummuni onuies conlcnrcrunt, f. 27. 
 n. 3. 
 
 (a) Dalling v. Matchett. Bamcs 
 57- 
 
 F 2 of
 
 6i THE ARBITRATORS AND UMPIRK. 
 
 of Edward the fourth this queftion was agitated, in a cafe reniark-i 
 able for nothing elfe than the many laboured arguments on one 
 fide and on the other ; and for its having been argued three times 
 by all the judges in the Exchequer chamber, without their being 
 able to come to any decided opinion. It may not, perhaps, be 
 thought improper to ftate the circumftanccs of the cufe, and give 
 a fummary of the arguments, that it may appear with what diffi- 
 culty many points have been eftabliftied, which afterwards ap- 
 pear fo plain, that we are at a lofs to conceive how the mind 
 could ever have entertained a doubt upon the fubjeil. 
 
 The dutchefs of Suftblk brought an adion of debt on bond, to 
 which the defendant pleaded, that the condition of the bond was, 
 that if he, the defendant, ftiouM ftand to the award of the dutchefs 
 concerning all matters in difference between him and one B. H, 
 then the obligation fhould be void, provided that the award were 
 made before the feaft of All Saints, and written and fealed with 
 the feal of the dutchefs, and delivered to the parties demanding it; 
 that, in fa6f, on the fifth of January the dutchefs awarded, that 
 the defendant fliould pay to B, on the fourth of March then fol- 
 lowing, twenty pounds, and in April another fum, and feveral 
 other things : that on the loth of April next after the fourth of 
 March before mentioned, the defendant hearing of the award 
 having been made, went to the dutchefs, and demanded it in 
 writing, and had it ; and that he had performed it in all things 
 except the payment of the fum which ought to have been paid 
 on the fourth of March, and infifted that he ought to be excufed 
 of that, becaufe he had not notice. Againft the plea, it was ar- 
 gued, that it would be againft reafon that the arbitrators fhould 
 be driven to give notice to the parties, becaufe they had no ad- 
 vantage, but only a trouble; that it was the bufmefs of the par- 
 ties to be conftantly attendant on the arbitrators, and to know 
 when the award vi^as made ; that if it was a hardfhip, the de- 
 fendant fhould forfeit his obligation, by not performing that 
 which he did not knows it was his folly to bind himfelf in that 
 manner : that a man might be bound by his own deed to take 
 potice, at his peril, of many things to v/hich reafon and the law 
 V/ould not compel him ; that if a man were bound by obligation 
 
 tq
 
 tHE ARBITRATORS AND UMPIRE. 69 
 
 to make amends to another for all trefpaflcs committed by him, it 
 was not neccirary for that other to give him notice of them, he 
 mull take notice of them at his peril : that if one man bound 
 himfelf to attend another every time the other came to a certain 
 manor, it was not requifite that the other fhould give him no- 
 tice every time he went to the manor, he muft take notice of it 
 at his peril : that if a man were bound by recognizance to ap- 
 pear on a particular day before the King himfelf, wherever he 
 fhould be in England, which means to appear in the King's 
 Bench, which is ambulatory, and attendant on the King, he 
 muft be on that day wherever the court fhall be, without notice 
 from any body : that if I take a houfe for a term of years, I am 
 only bound to repair it ; and if it fall down, from the weakncfs 
 of the timber, I am not bound to rebuild it ; yet, if I had bound 
 myfelf to leave the houfe in as good a condition as I found it, I 
 muft rebuild it : that if I command my fervant to buy certain 
 goods for me, or conftitute a man my fador for that purpofe, in 
 fuch a cafe I fhall be charged for whatever goods they buy, though 
 they never come to my hands, and though I have no notice of 
 th^ purchafe : that if I make a man my bailiff of my manor, and 
 give him power to let the lands of it, in that cafe, if he let an 
 acre, and do not give me notice of it, if I enter into that acre, 
 and trample down the grafs, the lefTec fhall have an atflion of 
 trefpafs againft me, though I had no notice that it was let : fo, 
 if a man were bound to pay a certain fum to another after the 
 death of his father, and the father fhould die in a defert, without 
 the knowledge of the fon, yet the latter muft take notice of it, 
 and pay the money, otherwife the bond will be forfeited : fo, it 
 was faid, if a man were arrefted, and found bail to the fheriiF for 
 his appearance on the day of the return of the writ, in that cafe, 
 if the defendant became fick, fo that they could not have him at 
 the day, yet they fhould not be excufed to the fherift*. 
 
 Beside thefe arguments, from the analogy of other cafes it 
 was urged, that an award was, by common intendment, a mat- 
 ter of notoriety, of which the party mull, at his peril, take notice ; 
 and if that were not fo, then any one, when he perceived that 
 
 r ? the
 
 70 THE ARBITRATORS AND UMPIRE. 
 
 the award was likely to go againft him, might conceal himfelf, 
 in order to avoid notice. 
 
 In favour of the plea it was argued, that an award was in the 
 nature of a judgment, which could not be given but in the pre- 
 fence of the parties ; it was therefore the duty of an arbitrator, 
 like a good and upright judge, to give notice to the parties when 
 he was to make his award ; and that, if one of them avoided that 
 notice, it might on the other fide be fhewn that he abfented him- 
 felf for the purpofe : and with refpecSl to the afTertion, that he 
 was bound by his own a6i: to take notice of the award, and that 
 it was his folly if he fubmitted to the arbitration of one who would 
 not give him notice ; all the cafes cited on the other fide differed 
 materially from this. — The man who was bound to make amends 
 to another for trefpafles committed by him, cannot infifl on 
 notice of any trefpafs, bccaufe they muft neceflarily be within 
 his own knowledge. — He who was bound to attend another 
 every day he fhould come to a certain manor, was bound to 
 take notice of the day, which it was in his power to do, becaufe 
 it was a matter that muft be notorious ; but, in the prefent cafe, 
 the arbitrator might make his award, and put it in his pocket. 
 
 As to the recognizance in the King's Bench, every man might 
 eafily know a thing fo notorious as the place to which the court 
 moved; and, by general intendment of law, every man was 
 bound to know it. The cafe of the houfe falling down had no 
 analogy to this, for it could not poffibly fall down without the 
 tenant's knowledge. Thofe of the fervant, the fadlor, and the 
 bailiff, admitted of one anfwer : he who acts by another ads by 
 himfelf, and therefore he muft be fuppofed to know what the 
 other has done. The cafe of the man who was bound to pay a 
 fum of money at the death of his father could not be compared to 
 this ; there was nobody who was bound to give him notice, or 
 could do it ; he muft take notice of it himfelf, becaufe every 
 man's deed was to be conftrued moft ftrongly againft himfelf : 
 but, in the prefent cafe, the obligation could not be forfeited be- 
 fore the award was made ; and, as to him, it was as if not made, 
 till he had notice of it. In anfwer to the cafe of bail to the 
 fheriff, it was faid, that if the defendant were Tick, they were 
 
 excufed,
 
 THE ARBITRATORS AND UMPIRE. yt 
 
 excufed, for that his di-ath before the return was clearly a dif- 
 charge of the bond : it was, however, denied on the other fide, 
 that the cafe of ficknefs was like that of death. It might, how- 
 ever, have been faid, that they might flill have brought him into 
 court, notwithftanding he was Tick ; and now that it Is under- 
 ftood, that nothing but entering bail above will fatisfy the bond 
 for appearance, they may enter an appearance though the de- 
 fendant be Tick. 
 
 Beside anfwering thefe cafes, feveral were infifled on as be- 
 ing more analogous to the prefent queftion, which all tended to 
 fliew, that a man fhall not be bound by any thing of which he 
 had not notice, nor to do a thing impoffible j and it was 
 ftrongly urged, that it was impoflible for a man to pay money 
 at a day which had elapfed before he had notice of the award ; 
 and this was compared to the cafe of an award of money to be 
 paid on a day before the fubmiffion, which it was confefled was 
 void. That cafe, however, is clearly diftinguifhable from the 
 prefent ; for there the thing is impoflible from the beginning, 
 but here it becomes impoffible only from the want of notice at 
 the time of making the award : and indeed the whole queftion 
 leems to depend more on principles of general reafoning, than on 
 any analogy it may bear to cafes cited on the one fide or on the 
 other. 
 
 The impoflibility of performance for want of notice feems al- 
 together out of the queftion, for the defendant, by a conftant ap- 
 plication to the arbitrator, might have known when the award 
 was made, if the latter had been willing to inform him j and if, 
 in fadl, fhe had made her award, but either faid that it was not 
 made, or refufed to deliver it till the day of performance was paft, 
 that would clearly have excufed him. But the true criterion is, 
 whether, from the nature of his duty, the arbitrator be bound to 
 give notice of the award to the parties, without any condition of 
 that kind exprefTed in the fubmilfion ; or whether the parties 
 themfclves muft, at all events, take notice of the time when he 
 makes the award : and, confidering the fubjeift in this light, thefe 
 obfervations feem to have weight. 
 
 The duty of the arbitrator, we have fcen, is to give notice to 
 
 r 4 the
 
 ■JZ THE ARBITRATORS AND UMPIRE. 
 
 the parties at what time and place he will fit to hear their com-» 
 plaints, and that it is their duty to attend him on fuch notice j 
 but it is abfurd to fuppofe that they are to go of their own ac-* 
 cord every day to know when he will be attended, or whether 
 he has yet made his award. When, indeed, the day appointed 
 in the fubmiflxon is come, it may be reafonable that they (hould 
 call upon him, becaufe that day is within their own knowledge; 
 and if the award be not then made, his power is at an end. The 
 true diftindion, therefore, feems to be this, that if the award be 
 made before the day limited in the fubmiflion, the party ftiall not 
 be bound by any thing awarded to be done before that day, un- 
 lefs he has notice, but that he muft take notice, at his peril, of 
 any thing ordered at the day. (aj And there is an aflertion of 
 counfel, to which the court afient, that though the arbitrator 
 make his award before the day, yet, if he give no notice of it to 
 the party, it is void, (bj This was faid, in a cafe of debt, on a 
 bond for the performance of an award, provided it were made 
 before a certain feaft, without any provifo that it fhould be no- 
 tified to the parties ; but it had not its efte£t, becaufe the want 
 of notice was not properly pleaded, the defendant h;iving, in his 
 plea, denied that any award was made before the day appointed ; 
 and, on an award made before that day being fet forth in the re- 
 plication, having rejoined that he had no notice of the award be- 
 fore that day, which the court held to be a departure from his 
 plea. 
 
 It Is true, that in the eighteenth of Edward the fourth, it is 
 faid by three juflices, " that where an award is made, the parties 
 mufl take notice of it at their peril, and that this had been before 
 adjudged in the King's Bench in the fame King's reign." (cj It 
 is true, that in the firft of Henry the feventh, to an adlion on a 
 bond, the defendant fhewing the condition to have been to ftand 
 to an award, provided it were made before a certain day, pleaded 
 that the arbitrators gave him no notice of any award made before 
 that day, and that the court held clearly " that this was not a good 
 plea, becaufe having bound himfelf to perforin the award, he was 
 
 (a) 8 E. 4- I- Br. 37. | (c) Brian, Vavifoi', and Catefby. 
 
 (b) Keilway, 175. j 18 Ed. 4. 18. a. 
 
 bound
 
 THE ARBITRATORS AND UMPIRE. 73 
 
 bound to ta!:c notice of it," and that they ciiftinguifned between this 
 cafe and that where a provilb was added to the condition of the 
 bond, that the award fhould be made ; for " that then fuch a 
 plea would have been good." (a) 
 
 It is alfo true, that Lord Coke adds the authority of his name 
 to thofe cafes, and fays, " that fo is the law without queftion j" 
 but he is clearly miftaken when he fays, " that this is againfi: a 
 fudden opinion in the eighth of Edward the fourth :" (b) no de- 
 cided opinion was in fadt given at that ti:nc, notwithltanding the 
 number of times the cafe was argued, and the variety and extent 
 of the arguments. 
 
 'J'he lame doctrine is alfo confidcred as eftablifhed law in 
 many other books ji^tv' but that may v/ell be admitted without 
 impeaching the foundnefs of the diftinclion before made. The 
 cafes in which the point is decided feem, from t!ie manner of 
 pleading, to have related to a breach of the award in fomething 
 awarded to be done after the day appointed for making it ; and 
 the other book?, in which the doiStrine is recognized, only men- 
 tion it as eftablifhed law, without reference to any particular cafe. 
 
 The Roman law did not impofe fuch a hardfhip on the parties, 
 for the arbitrators were not only obliged to give them notice of 
 the time when they intended to make their av/ard, but to pro- 
 nounce it in their prefence ; and, if on notice given for that pur- 
 pofe, either of the parties did not attend, he forfeited the penalty 
 of the fubmifTion, but no award could be made, f^rt'y' unlefs it had 
 been fpecially expreffcd in the iubmillion, that fentencc might be 
 pronounced in the abfcnce of one or of both the parties. 
 
 Where the fubmifilon is not by bond, there can be no qucf- 
 tion but the arbitrators mull: give notice of their award, otherwifc 
 the parties are not bound to performance ; and indeed this feems. 
 
 (a) 1H.7. 5- 
 
 (b) 8 Co. 92. b. 
 
 (O Viil. Cro. El. 97. Cio. Car. 
 
 (d) Si quis lifigatorum ilefucrit ; 
 qviia pet- euin fat'lum clV, quo iniiuis 
 arbitretur, po-na ccmmittctur. Pro 
 inde I'tntentia qviidtni liida non coniai 
 
 litigatoribiis non vakbit : nifi in com- 
 piomiHii hoc Ipecialiter exprefi'uni fit, 
 lit vel uno, vel utroque ablente, fen- 
 rentia promatur : pcenam aiitem i-' 
 qui defviit, commlttit, quia per eum 
 failum elt, quo minus arbitretur. Ft. 
 1. 4., t. 8. 1". 27. 11. 4. 
 
 by
 
 74 THE ARBITRATORS AND UMPIRE. 
 
 by the whole tenor of the arguments in the cafe of a fubmifTion 
 by bond, to be taken for granted : and where the fubmilfion h 
 by bond, it has long been the pra(Stice to guard againft the con- 
 fequcnces of want of notice, by inferting a provifo in the con- 
 dition, not only that the award fhall be made, but that it (hall 
 be delivered to the parties by a certain day ; and then the bond 
 will not be forfeited by non performance, unlefs the party not 
 performing had notice : and if fuch a fubmiflion be made by the 
 plaintiff on one fide, and two defendants on the other ; if the 
 award be made before the day, and delivered to the plaintiff and 
 one of the defendants, but not to the other, this will not be fuf- 
 ficient : {o, neither it is faid, will ic be fufficient, where there are 
 two perfons on one fide, and two on the other, and where the 
 provifo is, that the award be delivered to each of the parties, if 
 it be delivered to one on one fide, and one on the other, for 
 *' that the word pa-rty is to be intended of the whole party." faj 
 
 But it has been adjudged, that " a provifo that the award 
 Ihould be delivered by a certain day is fatisfied by the pronoun- 
 cing of a parol award, unlefs it was alfo provided, that it (hould 
 be in writing. Thu?, in Dyer, fbj a cafe is reported where the 
 fubmiflion was in thcfe words, " fo that the award be made and 
 6V//'y^r<;r/ before a certain day :" to an aiSlion on the bond, the 
 defendant protefting that no award was made, pleaded that the 
 arbitrators did Hot deliver in writing zny award; but judgment 
 was given againft him, bccaufe he had not denied that a parol 
 award was pronounced s for the court held, that a parol delivery 
 v/as fufficient. 
 
 But whether a provifo, in thefe words, " fo that the award 
 be made and ready to be delivered," can be fatisfied by a parol 
 award, has been thought a queftion of more difficulty. 
 
 An action was brought on a bond for performance of an award, 
 in the condition of which it was provided, that it {hould be made 
 and ready to be delivered to the parties, or fuch of them as fhould 
 be ready to receive it : the defendant pleaded that no award was 
 
 (a) Hiingate's cafe. 5 Co. 103. 
 Cro. £1. 885. Mo. 642. pi. 285. 
 
 The record of this cafe is faid to be in 
 ihe new book, of entries, tit. Delt. pi. 
 
 (A; 2i8. b, Pafch. 3 El. Rot. 927. ^ 10. fol. 126. 
 
 madei
 
 THE ARBITRATORS AND UMPIRE, 75 
 
 made •, the plaintiff replied, and fet forth a parol award, averring, 
 that it was ready to be delivered according to the terms of the 
 condition : to this the defendant demurred, infifting, that the 
 words " ready to be deUvered," necefllirily imported that the 
 award was to have been in writing; and, in fupport of this, his 
 counfel cited a cafe which he faid had been lately decided in the 
 Common Pleas, and was direftly in point, r^; and infifted much 
 on Hungate's cafe before mentioned from Coke. On the other 
 fide it was urged, that the word " delivery" was to be under- 
 ftood according to the fubje^l to which it was applied ; that ia 
 common language a mefiage was faid to be delivered, and a matt 
 was faid to deliver himfelf well, when he exprefTed his thoughts 
 with elegance and grace ; that if the provifo had been, that the 
 award fhould be made in writing, the delivery muft have been 
 manual ; but no fuch reftraint being impofcd in the prefent cafe, 
 an oral delivery was fufficient, and in fupport of this was cited 
 the cafe in Dyer, which, it was faid, was full in point. 
 
 It may be obferved, however, that that cafe is not fo dire'Slly 
 in point as was here allcdged, the provifo there being, that the 
 award fliould be delivered^ not that it fiiould be ready to be de- 
 livered. The court, at firft, feemed inclined to think, that a 
 parol award could not properly be theobjeiSl of delivery, but that 
 the words muft be underftood of a delivery in writing : after- 
 wards, however. Lord Chief Juflice Holt, having looked into 
 the cafe in Dyer, and the record of it in Coke's Entries, faid 
 they were very ftrong authorities for the plaintiff"; that the award 
 might have been made in the abfence of the parties, and deli- 
 vered, or pronounced over again in their prefence ; and if fo, 
 what may be delivered, may be ready to be delivered. Powel J. 
 however, faid, that if the words had been only, " fo as it be 
 made and delivered," he would have taken the delivery to be 
 notice of the award given to the parties ; but that ready to be 
 delivered muft be taken to mean a delivery in writing : and he 
 afked, if ifliie had been taken on the readinefs of delivery, how 
 it ftiould have been tried ? Holt agreed that he (hould have been 
 
 (a) Wood V. Aidill. Tr. \ Ann.
 
 76 
 
 THE ARBITRATORS AND UMPIRE, 
 
 of the fame opinion with Powell, if the queftion had been new j 
 but faid, that finding fo clear an authority, and fome rcafon for 
 that authority, he could not depart from it ; fo faid Gould ; but 
 they all faid they would be well informed of the cafe in the Com- 
 mon Fleas, and no judgment was given, (a) 
 
 Whether an arbitrator could change an order he had once 
 made, was a queftion much agitated among the Roman lawyers ; 
 and it ended in this diftinclion, that where the fentence pronoun- 
 ced, from the nature of it, and the terms in which it was con- 
 ceived, amounted to an abfolute determination of the whole fub- 
 je£l of difpute, he could not alter it, though he afterwards found 
 reafon to believe he had erred, becaufe, by pronouncing fuch a 
 fentence, he had executed his office, and ceafed to be arbitrator ; 
 but if it comprehended only fome interlocutory matter, he might 
 alter it, becaufe his authoriiy ilill continued, (b) 
 
 And where the fubmiiuon comprehended difl-erent fubje<9:s of 
 controverfy, diilincl and independent of one another, his power 
 to change a fentence pronounced with refpe£l to one of them, 
 without having yet decided on the others, was held to depend 
 on the form of the fubmifTion j if by that it was provided, that he 
 fiiould pronounce fentence on all the fubjetShs together, then he 
 might change his opinion given only on one, becaufe he had not, 
 in fact, yet decided the whole queftion fubmitted to him; but if 
 it was provided that he fiiould give his opinion feparately, then 
 
 (a) Gates v. Bromell. 6 Mod. 
 
 (u) D'lcerf fententiam exiilimamus 
 euin, qui ea mente quid pronunciat, 
 ut Iccundum id dii'cedere eos a tcta 
 contioverfia velit. Sed fi de pluii- 
 bvis rsbus fit arbitrium receptum : 
 n'.fi cmncs ccintioveifius finicrit, non 
 vidttur difta lenient ia 5 fed adhuc 
 erit a prastcre cogendus. Unde vi- 
 dendum ciit, an mutaie ler.tentiam 
 poffit ? et alias quidem elt agita- 
 tum, fi arbiter juffit dari, mox ve- 
 tuit : utium eo, qucd julfir, an eo 
 
 quod vetuit, ftari debeat ? et Sabinua 
 quidem putavit, pofle. Caffius fen- 
 tenti:iin Magiitii lui bene excufat : ct 
 ait, Sabinum non de ea fentiffe fenten- 
 tia quaj arbitrium finiat, fed de prs- 
 paratione caulie ; ut puta fi jufTit liti- 
 gatores Calendis adtffe, mox Idibus 
 jubeat, nam mutare eum diem pofie ; 
 cseterum, fi condcmnavit, vel ablbl- 
 vit, dum arbiter eiTe defierlt, mutare 
 fententiam non pofle. Quia arbiter, 
 etfi erraverit in fententia dicenda, cor- 
 rigere earn non poteft, Ff. 1. 4- t. 8. 
 f. 19, io. 
 
 he
 
 THE ARBITRATORS AND UMPIRE. 77 
 
 he could not change it, becaufe this was the (amc thing as if 
 there had been fevcral fubmilTions. (a) 
 
 Something fimilar to this qucftion appears in our books, 
 though it be not ftated cxadlly in the fame form. — If two fub- 
 mit to the award of feveral, concerning all manner of debt?, 
 trcfpaflcs, demands, and difputes, provided that it be made by a 
 certain day, and the arbitrators make their av/ard on one day 
 with refpcul to the debts, on another with refpect to the tref- 
 pafles, and on a third with refpect to the other things ; the 
 parties are not bound to perform any part but the firir, fay all 
 the juftices but Moyle, and not even that, fays Prif jt. (b) And 
 Rolle, in abridging the cafe, adopts the latter opinion, (c) But 
 it is admitted, that the arbitrators may confult together, on one 
 day, on one point, and make up their minds upon it, and fo of 
 another point, another day, and fo of a third, on a third, provided 
 they do not make their award of aiiy part before the reft, (d) 
 
 Unless, however, it muft be underftood, that, in the former 
 cafe, the parties are ordered to perform the things feparately 
 awarded, before the whole award be made, this feems to be 
 a diftintStion unfupportcd by any efTential difference ; for if the 
 arbitrators have in fa6t made up their minds on one point, one 
 day, and on another, another day, it is in effeil the fame thing as 
 if they had reduced their opinion into the form of an award on 
 the feveral points, on the feveral days, and the whole award mufl 
 be taken to have effect only from the time when the whole 
 award is linifticd. The only good rcafoji that can be alledged 
 againft their making one part at one time, and another, at ano- 
 ther time, is, that on hearing the v/holc, they may fee reafon to 
 alter their opinion on fonae of the parts. If in faiSt they fee 
 
 (a) Qu^idtamcn fi dcpluribus con- 1 nondum enim dixit fententiaiTi, c^uoJ 
 Iroverfiis luinptus elt niliil fihi com- I fi tt feparatim, quafi pUiia luiit com- 
 uiunibus, et de una fcntentiam dixit, I promifia: et ideo, quap.tum ad i'llam 
 de aliis nondum ? nonquid defiit efle controveifiam pertinet, arhitcr die 
 arbiter; videanuis igitur an in prinia dtlicrat. Ff. 1. 4. t. S. 1'. ;i. 
 CjOntroverfia poflit, mutare fenten- j (b) 39H. 6.ia 
 tiam de qua jam dixerat? et multum 
 intcrcft, de omnibus fimul ut dicat 
 fentcntiam, compromiflum eft, an non. 
 Nam h de omnibus, poterit mutare : 
 
 ic) Rol. Arb. H. 1.2. 
 (d) 39 H. 6. 12.Bro.Arb.pl. 
 Rol. Arb. H. 3. 
 
 fuch
 
 78 
 
 THE ARBITRATORS AND UMPIRE. 
 
 fuch reafon, they may change their award on the particular 
 parts ; and if they make no alteration, it is a proof they are fa- 
 tisfied with their firft determination on each particular point. 
 
 But that which bears the neareft re- 
 
 Refer-vatton cf their femblance to this queftion in the Roman 
 Authority, law, is the doiitrine relative to the refer- 
 
 vation of authority. The objecSl of every 
 reference Is the attainment of a final and certain determination 
 of the controverfies referred ; a refervation of any point for the 
 future decifion of the arbitrator is inconfiftent with that objeft; 
 and therefore it is eftablifhed as a general rule, that fuch a re- 
 fervation is void ; (a) as if the arbitrators order that one of the 
 parties fliall give fecurity to the other for the payment of a 
 fum of money, but referve to themfelves the power of confider- 
 ing the propriety of that fecurity ; or if they referve to them- 
 felves the power of explaining any doubt that may arife on the 
 meaning of any part of the award, (b) So, it has been refolved, 
 though not till after many arguments, that, if they referve to 
 themfelves the power of altering the whole, or part of the 
 award, this is clearly void, (c) 
 
 It was av/arded, that one of the parties fhould pay fo much 
 money to the other, and that if more fliould appear to be due to 
 the latter, and due proof made of it within a month, then he 
 fliould alfo pay that. The fubmiffion contained a provifo, that 
 the award fhould be made before a certain day, which was before 
 the end of the month. Rolle, in his abridgment of this cafe, 
 fays, that this feems a void award, becaufe it is not final. But 
 he adds a doubt, " the iflue being, that the arbitrators made no 
 award, and that found in favour of the plaintiff; that the judg- 
 ment in the Common Pleas was confirmed " on the words of 
 the fubmiffion, admitting that part to be void, becaufe it was 
 not averred, that there was any doubt about it before the fub- 
 miflion." What was the judgment of the Common Pleas does 
 not very diftin6tly appear by this account, nor what is meant by 
 
 (a) 19 P". 4.. I. Rol. 
 
 Arb. H. 
 
 (h) 2 Rol. Rep. 214., 215. 
 
 4. vid. Selby v. Ruffel. 
 
 12 Mod. 
 
 (c) 2 Rol. Rep. 189, 214 
 
 139. 
 
 
 mtr no, 146, 
 
 Pal- 
 
 *' admitting
 
 THE ARBITRATORS AND UMPIRE. 
 
 79 
 
 *' admitting that part of the award be void :" hut it is mofl pro- 
 bably meant to be cxiircflcd, that the judgment of the Common 
 Pleas was in favour of the plaintifF, and that that part only 
 which related to the payment of a further fum on due proof was 
 void, the reft of the award being valid, (a) 
 
 A SUBMISSION rcfpe(fled the privilege of cutting down trees 
 in a certain wood, and it was awarded, as to part, that the de- 
 fendant fliould leave fo many of the trees to the plaintifF for 
 houfebote and hedgebote, as the arbitrators, on advice with 
 council at the aiTizes, fliould appoint; it was held, that this was 
 a refervation of authority, and therefore void, (b) 
 
 But an award, " that one of the parties faall pay to the other 
 105I. on a certain day; and if he do not pay it then, that he 
 fliall pay at a future day i lol. is faid to be good ; becaufe it is 
 not a refervation of a future authority, but a penalty to enforce 
 payment at the day, which is within the power of the arbi- 
 trators, (c) 
 
 A submission to an award contained a provifo, that it fliould 
 be made before Michaelmas, and the arbitrators awarded, that 
 the one fhould pay 5I. to the other for ten loads of hay, and fe- 
 veral other fums for other things ; and further awarded, that if 
 he who was to pay fhould difprove the receipt of the commo- 
 dities, or fhould give better proof of the payment of fome fums 
 of money, before the arbitrators, or one them, before the faid 
 feaft of Michaelmas ; then fo much as fhould be fo proved, fhould 
 not be paid at that feaft. (d) In two reports, both apparently 
 of this cafe, it is agreed, that this is a refervation of authority ; 
 but they do not agree in flating the effect of it on the whole 
 award. Rolle fays, that the refervation is void, " but that the 
 former part of the award being good, fhall ftand, becaufe the 
 authority of the arbitrators was determined." But Hobart fays, 
 that the court took time to advife, " whether this refervation 
 
 (a) Rol. Arb. H. 13. 
 
 (b) Tliinne v. Rigby, Cro. Jac. 
 
 (<-; Rovfton V. Ryall. 2 Jac. Rol. 
 Alb. H. 8. 
 
 /' j; Bcckwith V. Wailcy. 16 Jac. 
 Rol. Arb. H. 9. Wailcy v. ilcck- 
 with. Hob. ziS. 
 
 fiiould
 
 80 THE ARBITRATORS AKD UMPIRE. 
 
 ihould fruftrate all reaching to the award, or whether the award 
 {hould ftand, and the refervation be void." 
 
 If it be a rule in the conftru6tion of awards, that they fhall 
 be certain and definite, it would feem in this cafe, that the re- 
 fervation rendered the whole award void, becaufe it renders it 
 altogether uncertain ; and this is confonant to what is laid down 
 in another book, CaJ as a general diftinclion, " that where the 
 arbitrator referves a power over any thing fubmitted, the award 
 is not final, and therefore it is void ; but where the thing over 
 which he referves the power is not within the fubmiffion, the 
 power is void, and the award, as far as that extends, void alfo ; 
 but in the thing fubmitted, tlie award is final and peremptory." 
 
 The following feems an example of the application of the 
 firft part of this diftincSlion : a queftion, relative to certain cur- 
 rants, was fubmitted, and an award was made in thefe terms } 
 that if the defendant could make it appear, before the 20th of 
 December, that the currants were delivered to the plaintiff, then 
 the arbitrators would make a further award within fourteen days 
 after, if they could agree; otherwife, that J. S. as umpire, 
 ftiouid conclude it in feven days after ; that the plaintiff and de- 
 fendant fhould ftand to the award of the arbitrators, if they made 
 one, and if they made none, to the determination of the umpire. 
 But if the defendant, before the 20th of December, fliould ftiew 
 no fuch proof, it was, in that cafe, av/arded, that the plaintiff 
 fhould not pay for the currants, but fhould be free from any 
 further claim on that account ; and it was further awarded, that 
 the defendant (hould pay to the plaintiff igl. jzs. before the firft 
 day of January after, if no award fhould be made before that 
 time for the currants. — This award was held to be altogether 
 void, for that the firft part was vojd, being partly a referva- 
 tion, and partly a delegation of authority ; and if an award ha4 
 been made, according to the power referved or delegated, it was 
 not intended that the defendant fhould pay to the plaintiff the 
 191. i2s. and the latter claufc depending on the firft, which was 
 void, muft alfo be void. CbJ 
 
 (a) Palmer, no, 146. 
 
 (b) Bruvvn v. Dalton. M. 9 Car, B. R. Rul. Aib. H. 10. 
 
 A DIS-
 
 THE ARBITRATORS AND UMPIRE. 8l 
 
 A DISTINCTION is alfo made between the refervatlon of a 
 further nunijlcrial acl, and of a judicial one ; the former, it is 
 faid, may be rcfcrved, the latter cannot ; all the judicial autho- 
 rity of the arbitrators determines with tlie time li.nitcd for them 
 to make their award; but they may refcrve a further minijlerial 
 act to be done ct;her by themfelves or by a ftranger, at any fub- 
 Jequent period.— However well founded this diftinaion may be, 
 it is not always very fuccefsfully exemplified by the cafes in the 
 books. It is faid, if one of the parties affcrt, that he has a re- 
 ceipt for a certain debt claimed by the other, the arbitrator may 
 award, " that if he produce the receipt before fuch a day, after 
 the time limited for making the award, then he fhall be dif- 
 charged of that debt ; but if he cannot produce it by that day, 
 then he (hall pay the money ;" for that this is only the referva- 
 tion of a minifterial act. But, with deference to the authority 
 of the bonk, it is neither the refervation of a minilkrial nor of 
 a judicial acl, but an award, of which the final determination 
 depends on a future contingency, and therefore the queftion, 
 \v'hcther it be good or bad, depends on another principle, which 
 requires, that all awards fhould be final and certain.— On the 
 fame diflindion, it is endeavoured to fupport the authority cf a 
 cafe, cited from the year books, ^^^ but which is not to be 
 found there. This was the cafe of a fubmiflion of a difpute 
 concerning a horfe ; one of the parties infifted, before the arbi- 
 trator, that the horfe was worth 20I. the other that he was only 
 worth lol. The arbitrator awarded, that if J. D. fhould fay 
 that the horfe was worth 20I. then the one fliould pay to the 
 other 20!. if lol. then only lol. and this, it is faid, was held to 
 be a good award, as being only the refervation of a minifterial 
 3(51; had there been other fubjecls of difpute, and the arbitrator, 
 in ordvr to fatisfy his own mind about the amount of damages 
 to be given, had referred to J. Y). to fet a value on the horfe, 
 this might have been confidered only as a minifterial acfl ; but as 
 tlie cafe is here ftated, the only qucllion referred to his decifion 
 appears to have been, to fettle the value (n the liorf.-, and by re- 
 
 G fcrring 
 
 (a; 30 H. 6, tit. Arbit.
 
 S2 THE ARBITRATORS AND UMPIRE. 
 
 ftrring it to the judgment of J.D. he delegated his whole au- 
 thority, which he had not power to do. (a) 
 
 Neither have the court been always unanimous in their 
 opinion of what fliould be confidered as a judicial, and what as 
 a minifterial a»5l. — An umpire ordered that the defendant fhould 
 deliver to the plaintiff certain goods particularly fpecified ; and 
 that the plaintiff fhould deliver to the defendant certain other 
 goods alfo by name : but that if any of the goods, on either faid 
 awarded to be delivered up, fhould be loft or miflaid, then the 
 party, on v/hofe fide the deficiency fhould be found, fhould pay 
 to the other the value of them, according to the appraifement of 
 the umpire and the arbitrators. It was difputed, whether this 
 fhould be confidered as a judicial or a minifterial aft. Trevor, 
 Chief Juftice, and Blcncow, Juftice, were of opinion, that it 
 was the former ; Powell, Juftice, that it was the latter, (bj If 
 the valuation of the horfe, in the laft cafe^ could be confidered 
 as a minifterial a£l, furely this appraifement ought to have been 
 fo too. 
 
 A SUBMISSION was, of difputes concerning certain land, and 
 it was awarded, that one of the parties fhould pay a certain fum of 
 money to the other for every acre, to be meafured by an able 
 meafurer in the prefence of the arbitrators, at the rate of fo many 
 yards to the pole. This was held clearly to be only a minifterial 
 act, to afccrtain the quantity of the land, (c) 
 
 The fubmiftion by the litigating parties, to the 
 T>clegafion of dccifion of an individual, arifes from the confi- 
 their Authority, dcnce v/hich they repofe in his integrity and (liill,, 
 and is merely perfonal to him j it is therefore in- 
 confiftentwith the implied intention of the fubmifTion, that the ar- 
 bitrators or umpire fhould delegate any part of their authority 
 to another, or refer to him the decifion of any point on which 
 they find any difficulty to decide themfelves. On this principle 
 It is eftabliftied as a general rule, both in the civil and the Englifh 
 
 (a) Vid. for thefe two cafes, a 
 Rol. Rep. 189. 214.. 
 
 (h) Cockfon V. Oe^Ir. 13 W. 3. 
 C. B. Lutw, 5 ;;o 
 (c) Hiinier v.i>eiinifon. IIai\tr.4;. 
 
 law.
 
 THE ARBITRATORS AND UMPIRE. 85 
 
 law, that a delegation of authority is void, (a) Therefore, if 
 inftead of deciding the matters fubmittcd to him, the arbitrator 
 dired that the parties fhall Hand to the award of a third perfon, 
 this is void, (b) So, if he award, that the defendant fliall ac- 
 count before fuch auditors as the plaiiuiff fliall afTign, and that 
 if he be found in arrears, he fhall pay the fum found, and that 
 each {hall then go quit againll the other, (c) And the fame 
 rule prevails where the delegation is necefTarily implied, as where 
 it is exprcflcd ; and therefore if the arbitrators leave the matter 
 incomplete, the defeat cannot be fupplied ; as if they award, 
 that one of the parties fliall give a bond to the other without 
 mentioning in what fum, the award is nugatory, becaufe neither 
 the plaintifF nor the defendant can determine the fum. (d) 
 
 So, where it was awarded, as to part, that the defendant, at 
 fuch a time and place as the plaintiff fliould appoint, fliouldmake 
 a public confeffion of his offence for the battery of the [)Iain- 
 tiff : this was held to be void, becaufe the arbitrator ought to 
 have determined the time and place, and not to have left their 
 appointment to another, more efpecialiy to the plaintiff, who, 
 thereby became judge in his own caufe ; for though in general, 
 time and place are but circumftances, yet in fuch a fatisfa^liion as 
 this, they make the moff confidcrable part, (c) 
 
 But where arbitrators award the fubftance of the thing, and 
 leave only the form to be fettled by another, or the amount of 
 a fum to be calculated, this is not fuch a delegation of their 
 authority as to vitiate the award j for the fame diftindlion be- 
 
 (a) Piito veie non committi, fi 
 ilicnt ndjudicemJe hoc eundum, "jelfi' 
 I'll a!:um ; in fe i-cl in aliu)/: ccrr.pro- 
 miltenJum. Nam et Julianus impinic 
 non pareri, fi jiibeat ad aliitm arbitrum 
 ire, ne finis non fit — ne propagentur 
 aibitiia, aiit in alios interdum ini- 
 micos acintivim tiansferantur, f;ia 
 fentcntii fincm controverfiae imponcre 
 eum oportet: non aiiteni finiri con- 
 trovciTiam, cum aut diffcratur aibi- 
 triiim ;uit in aliiim transferatur ; — 
 idque (ielegari non poHe nifi ad hoc 
 compromifllim fit, \it arbiter llatueret, 
 
 cuius aibitratu fatifdaretur. Ff. 1. 4., 
 t. 8. f. 32. n. 16. In compromiflls 
 arbitiium perionaeinfertum, perfonam 
 non egicilitur. S. 45. 
 
 (b) M. 8Ed.+. 27 Ed. 3. 20 
 Brooke 44. b. Jenk. 129 H. 37 El. 
 inter Lower et Lower Rol. Arb. B. 
 20H.T1. 
 
 (c) 30 II. 6. Fhbt. 52. b. Rol. 
 Arb. I. 9. 
 
 (d) Samon's cafe. Cio. EI. 431. 
 560. 73. 
 
 (c) Glover v. Bnirie. 10 W. 3. 
 C. B. Lutvr. 1597. I Silk. 71. 
 
 G 2 twecn
 
 94- THE ARBITRATORS AND UMPIRE!. 
 
 tween a judicial and a.minifterial a6l prevails with refpefl to thtr 
 delegation as the refervation of authority. — Thus, an award, 
 *' that one fhall pay lol. to the other, and, for fecurity of pay- 
 ment, fliall be bound in an obligation, by the advice of coun- 
 fel," is good, for ii is incident to the award, that counfel fhould 
 make the payment fure. ftij So, if it be awarded, that on pay- 
 ment of lol. by the one, the other fhall give a general releafe, 
 as fully and beneficially as counfel fhall advife, this is good ; for 
 it gives no power to the counfel to do a judicial ail ; their autho- 
 rity is only minillerial. The arbitrator has direited the extent of 
 the releafe, by ordering it to be general, and the counfel is only 
 to fee that it be fo drawn as to have that efFe£l. ClfJ So, if in or- 
 der to decide the title to certain land between the parties, the 
 arbitrators award, that an adlion fhould be conceived by the ad- 
 vice of certain counfel ; for this is not referring the matter to 
 their judgment on the fubftancc, but on the form, (c) But a 
 diftin£tion in thefe cafes feems formerly to have been made be- 
 tween fuch a reference to counfel, and to a flranger. When made 
 to the latter, it was faid to be the delegation of a judicial atSl:, and 
 therefore void ; fclj but this fcems to be a diflindion without 
 any foundation, fej 
 
 On this point there is fome uncertainty in the Roman law; 
 forne holding, that a reference to another to fettle the form 
 which fhould give effe^ to the fubRance of the award, was ge- 
 nerally valid ; while others held that it was void, unlefs it was 
 made in confequence of a power given for that purpofe in the 
 fubmifTion. ("fj 
 
 That arbitrators, where they r.wardthe fubflance of the thing 
 
 (a) 19 Ed. 4. J RoI.Aib. H. 5. 
 
 (b) Tr. 1650 Cater v. Staitut on 
 demurrer. Rol.Arb. H. 7. Style 
 217, 218. 
 
 fcj 8 Ed. 4. J I. a. Brooke 37. 
 
 (ci) 19 Ed. 4. I. Rol. Arb H. 6. 
 Emery v. Emery. Cro. El. 726. 
 
 (e) Jtnk. 128. 
 
 OJ Qijpd fi hoc modo dixerit, ut 
 arbitrio Publii Maevii fundus tradcre- 
 tur^ ant fatisdatio dttur r puto pa- 
 
 rendum efTe fententiae. Idem Pedius 
 probat — firem controverfise impoiiere 
 oportet ; non autem finiri contro- 
 verfiam cum arbilrium in alium tranf- 
 f'cratu)-, parttmquefententiaeeffe, quern 
 admodum fatisdetui', quibus fidejul'- 
 foiibus ; idquedeleeari non pofle, niil 
 ad hoc compromiflum fit, ut arbiter 
 Ibtueret, cujus arbitratu fatifdarclur- 
 Ff. 1.4. t. 8. 1". 32. 11. 16. 
 
 to
 
 THE ARBITRATORS AND UMPIRE. B> 
 
 «obe done, may refer it to another to fettle (he manner in which it 
 fhall be put in execution, is now fully fettled by a determina- 
 tion of Lord Hardwickc's. 
 
 By the confent of plaintiff and defendant in feveral caufcs, de- 
 pending in Chancery, refpc(5ling partncrfhip tranfadtions, an 
 order was made, that all matters in difference between them, 
 relating to their joint dealings, or otherwife, fhould be referred 
 to arbitration. The arbitrators made an award, and the plain- 
 tiff filed a bill againfl the arbitrators and the defendant, to have 
 an infpection of all the accounts from which the arbitrators had 
 framed their award, that the award might be fet afide ; and that 
 the defendant might account generally for all tranfadions during 
 his partncrfhip with the plaintiff. — The defendant pleaded the 
 reference by confent, and that the arbitrators had, within the 
 time limited, made their award, which he fet forth, and which, 
 among other thing?, contained the following orders : Having 
 given, in a fchedule to their award, an account of feveral debts 
 and effedls owing to the partnerfhip, to the amount of 
 5094I. 14s. 2d. they awarded, that thefe debts and fecuriticB 
 Ihould belong in moieties to the plaintiff and defendant, and, that 
 they might be the better collected, they recommended to the 
 parties to confent, that an order fhculd be made by the court, for 
 the appointment of a proper perfon, converfant in mercantile 
 affairs, to colle6l in the fcimc for their joint ufe ; and, in cafe 
 either of the parties fhould refufe their confent, the arbitrators 
 made it their humble rcqueft to the court to order the fame, as 
 being the moff probable means of preventing future litigations be- 
 tween the parties. 
 
 They awarded and declared that, exclufive of the above mat- 
 ters, there was then due, from the plaintiff to the defendant, the 
 fum of 9194). 19S. 6d. on a fair balance, which they awarded 
 to be paid by infblments of zoocl. at a time, with intercfl at 
 4I. per cent. 
 
 And laftly theyawarded that, on payment of the 9194I. 19s. 6J. 
 'by the plaintiff, his executors, &c. to the defendant, his exe- 
 cutors, &c. they, the faid plaintiff and defendant, their refpec- 
 tivc executors and adminiltrators, fhould mutually execute and 
 
 G 3 deliver
 
 S5 THE ARBITRATORS AND UMPIRE. 
 
 deliver to each other refpeilivcly a good and fufficient releafe 
 and difcharge, by which the laid parties fliould refpedively re- 
 kale to each other all matters in difference between them, relat- 
 ing to their joint dealings; and that the form of the releafe 
 ftiouW be previoufly fettled by one of the mafters of the court, 
 in cafe the court fhould be plcafed to give dircdlions for that 
 purpofe. 
 
 To the firft part of this award, it was objeded, that the re- 
 commendation of the arbitrators to the parties to confent, that 
 an order fhould be m.ade by the court for the appointment of a 
 proper perfon to collcft the debts due to the partnerfhip, was a 
 deputation to a third perfon to do an act which ought to have 
 been done by themfelves, and that therefore they had not pro- 
 perly exercifed their own judgment. To the fecond part it was 
 objected, that the arbitrators ought to have fettled the releafe 
 themfelves, and not to have left it to be done by a mafter under 
 the order of the court. 
 
 With refpect to the firft objection. Lord Hardwicke faid, 
 he had entertained great doubts ; but as the juftice of the deter- 
 mination was the material thing, and as the award anfwered the 
 purpofe of parties, in fubmitting to a reference, if it was good 
 to a common intent, he was now of opinion it was fufficient ; 
 for that in cafes of this fort, in mercantile affairs, which could 
 not admit of certainty, it would be too nice to defeat awards on 
 objections of this kind. It had been faid, that the recommenda- 
 tion to the parties by the arbitrators, to confent that an order 
 fhould be made by the court for the appointment of a receiver, 
 and in cafe of the parties refufal, the requeft to the court to 
 make fuch an order, was a delegation of their power. If it 
 were indeed a delegation of their power, the award was void for 
 the whole ; but it had been anfwered, that what the arbitrators 
 had done in this refpeci was, at moft, but furplufage ; yet his 
 Lordfhip obferved, if if affected the juftice of the cafe, Vv'ith re- 
 fpedt to the things fubmitted, it would not be merely furplufage. 
 But it feemed to him, that this recommendation was not com- 
 pulfory on the parties, but left them at large j and if they did not 
 
 approve
 
 THE ARKITRATORS AND UMPIRE. 87 
 
 approve of the fcheme, it was rurplufage only, and not a Jclega- 
 tion of their power. 
 
 The true qirjftion was, whether the award, that the debts due 
 to the partncrlhip, when received, fliould be divided in moieties 
 between the parties, was fufficicnt ? and he was of opinion it 
 was, for the arbitrators had no controul over the debtors them- 
 fclves, who might, if they pieafed, pay the whole to one of the 
 partners. 
 
 To lay it down as a general rule, he faid, that arbitrators muft 
 particularly point out the method in which their award fhould 
 he carried into execution would be too nice, and fuch a rule 
 would overturn a great number of awards ; if, in fuch a cafe as 
 the prefent, one of the parties fliould releafe a debt due to the 
 partnerihip, that would be a breach of the award, and the other 
 party could have no remedy but by action, or bill, to have the 
 award carried into execution, and then no award could ever be 
 effectual to finiih difputes between contending parties. 
 
 In the prefent cafe, he could think of no other method the 
 arbitrators could have purfued: it had indeed been faid, that they 
 might have directed the parties to give fuch perfcn, as they 
 fliould appoint, a letter of attorney to get in the debts ; but this 
 would not have been advifable, becaufe if the perfon fo deputed 
 had proved infolvent, it would have been doubtful whether the 
 arbitrators themfelves would not have been liable. 
 
 , As to the Lift objedion, he faid^ the award had fully and com- 
 pletely defcribed v/hat the parties fliould do, with refpecl to giv- 
 ing relcafcs, and then followed the reference to the mafter to 
 ietcle the form. If the award had faid, that the releafe fliould be 
 fettled by the court firit, and then the arbitrators would confider 
 whether they fliould order a releafe between the parties, this 
 would have been very different, and he fliould have thought it a 
 delegation of their power, and the award confequently void ; but 
 here they had awarded releafes, and only left it to the court to 
 give directions to a mafter to fettle the form : and it would be 
 very extraordinary, when he thought the arbitrators had done all 
 that was neceffary, and when there was no occa'lon for the court 
 to interfere, yet, becaufe they had faid they loft it to the court, 
 
 G 4 therefore
 
 SS TU2 ARCrrr-ATORS AXD UMPIRE. 
 
 therefore he muit interpofe merely for the fake of making ihat a 
 bad award, which, without his interpofition, would have been 
 good. CaJ 
 
 Aker the introJucrion of references at fiif, prius^ there could be 
 jio queftion but the arbitrator had a jurifdiciion over the cofts of 
 the aclion, as well as over the fubje^^t of the adlion itfelf, unlefs 
 it was provided by the form of the fubmiinon that the cofts 
 fliould abide the event, or that each party fhould pay his own 
 cofts ; or unlefs there was fome other reftriilion with refped to 
 the cofts : becaufe unlefs there was fome rcftriflion, the cofts 
 accruing before the refe.-ence was within the fubmiflion j and in 
 this cafe, if the arbitrator incorporate the cofts with the damages, 
 the court cannot interfere ; neither can they interfere when 
 they are given feparately, unlefs they are cxccffivc, and then 
 only by confidering their excefs as an evidence of undue prac- 
 tice. f!;J 
 
 It afterwards became a queftion, however, v.'hether the arbi- 
 trator, inftead of aibcrtaining the cofts himlclf, could refer it to 
 the proper ofncer of the court to tax the cofts ; and it was fettled, 
 on debate, that he might, the courts comparing awards to judg- 
 ments at law, to which, though certainty be requifite, yet the 
 ofFicers always tax the cofts; and therefore, v^'here the arbitrator 
 gives fuch dire6lions, this does not defeat the award, fcj Where 
 tiie arbitrator awards cofts of fuit to be taxed, without faying by 
 whom, it muli: be underftood that they are to be taxed by the 
 proper officer of the court, that being the fettled mode of taxing 
 cofts by the lav/ of the land, fdj If he award fimply that one of 
 the parties (hall pay cofts, without fpecifying the fum, or faying 
 '^ to be taxed," the court will fupply it, by ordering them to be 
 taxed by the proper officer, (e) But if he award cofts of the fuit, 
 und of the reference, the court will order only the cofts of fuit 
 
 /aj Lingood v. Eadc. z Atk. i i Sa!k. 75- 6 Mod. 195. 2 Keb. 
 
 5C1. (515)- 
 
 (b) Shcphard v. Brand. B. R. 
 H. 54. 
 
 (cj D. perLd. llardwicke. a Atk. 
 ^19. (5C4). Wir.ter v. Gailick, 
 
 331. Nuit V. Long. B. R. H. iSi. 
 
 (iO Barnes, 56 vid. 1 Sid. 35?. 
 
 (e) Dudley V. Nettltt'ord. Str. 737. 
 Thomlinfon v. Anilkin. Comyns. 
 
 330. 
 
 to
 
 THE ARDITRATORS AND UMPIRE. 89 
 
 to be taxed, bccaufc the officer cannot judge of the cods of the 
 reference, (a) 
 
 But the arbitrator cannot refer the fcttlement of cofts to any 
 perfon who is not the proper officer of the court, becaufc the 
 court have no controul over any other perfon. In an adion on 
 an arbitration bond, the plaintiff, in his replication, fct forth an 
 award, " which, among other things, ordered, that the defend- 
 ant (hould pay fuch a fum to the plaintiff as J. W. and J. G. 
 fliould fettle for cofts, having regard to fuch cofts as are ufually 
 taxed by mafters in Chancery," and averred, that the liiid J. W. 
 and J. G. fettled the fum of fo much to be due for cofts, in which 
 he had regard to fuch cofts as are ufually taxed by mafters in 
 Chancery, and affigncd a breach in the non-payment of that 
 fum. To this the defendant demurred, and the demurrer was 
 held good j for though fcvcral cafes were mentioned, in which 
 cofts were awarded, it was anfwered, that thefe were all of cofts 
 to be taxed by the proper officer of the court, or cofts generally, 
 which meant the fume thing ; that this was reafonable enough, 
 bccaufe the reference to the proper officer made an end of the 
 matter, as he was fubjedl to the authority of the court, who, if 
 he erred, could amend his errors fummarily •, but they had no 
 controul over a ftranger. And it having been argued, that this 
 taxation was a minifterial, not a judicial acl, and that arbitrators 
 might delegate a minifterial ail ; it was anfwered, that this was 
 j)ot merely a minifterial a6l, and appeared not to be fo, from the 
 terms in which the award was penned j for the referees were di- 
 redled to have regard to fuch cofts as the mafter would allow, 
 which was an a£l of judgment : reference to an officer was 
 merely minifterial, to a ftranger judicial, (h) 
 
 Neither can the arbitrator award a fum of money in certain, 
 and alfo the cofts of fuit depending in an inferior court, becaui.-, 
 fays the book, there is no mode of afcertaining them ; in this 
 cafe, therefore, he muft ncccffarily afccrtain them himfclt. (c) 
 
 (a) Bnrnes, 58. 
 
 (h) Nutt V.Long. B.R. H. 181. Str. 10:5. 
 
 (c) 6 Mod. 195. Salk. 75. 
 
 If,
 
 90 
 
 THE ARBITRATORS AND UMPIRE. 
 
 If, in any point, the arbitrators order that the parties fhali 
 ftand to the award already made on that fubjedl by former arbi- 
 trators, this is not fuch a delegation as to defeat the award ; for 
 it only exprefles their approbation of what others have done, and 
 has the fame effect as if they had repeated the former award as 
 from themfelves, in fo many words, (a) 
 
 So, an award, " that one before made by another arbitrator 
 fhall ftand in all other refpe-Tts, except, that whereas in the former 
 award one was to pay lol. at Michaelmas, he fhall have 'till 
 Chrjftmas to pay it," is good j for this is the fame thing as if, 
 witliout referring to the former award, they had repeated it with 
 this alteration, (bj 
 
 When by the fubmiflion a time is li- 
 mited for making the award, it feems 
 hardly ncceflary that it fhould have been 
 judicially decided that it might be made 
 on the day of the fubmiffion, yet a decifion to that purpofe is 
 gravely reported, (cj It has alfo been found necefiary to declare 
 judicially, that the arbitrators may make their award in the 
 evening of the day preceding that before which it is limited to be 
 made, provided they do it before midnight, (dj 
 
 At nvkat Time they 
 may make their A-vjard. 
 
 (a) 39 H. 6. II. a. per Prifot. 
 
 (b) Semb. fed quaere. Car. Rol. 
 Arb. H. 12. Ti-. 3 Jac. dubitatin. 
 
 (c) Latdi. 14. 
 (dj Witlieis V. Drew. 
 6:6. 
 
 Cro. EI 
 
 CHAP,
 
 THE AWARD OR UMPIRAGE. 
 
 9» 
 
 CHAP. 
 
 THE AWARD OR U M P I R A G E, 
 
 IT has been laid down as a general rule, that the arbitrator is a 
 judge, from whofe fcntence there is no appeal, and that no 
 other tribunal can inquire into the equity of his decifion. (a) 
 This is equally the general doctrine of the civil and the Englilh 
 law ; but in both it is guarded with particular reftrictions, de- 
 rived from the nature of the authority conferred on the arbitra- 
 tors, and the implied engagement under which the contending 
 parties bind themfelves by their fubmifllon. C'o) The chief of 
 thofe reftri(f"tions is that which requires that the award flioulJ be 
 confident with the terms of the fubmiHion, the whole authority 
 of the arbitrators being derived from thence, (c) 
 
 The principal dillinclion in the Roman i 
 
 law, is that between what is called a full, and TJ?e Av.'ard jm-fi 
 what is called an incomplete fubmiliion. A be according to the 
 full fubmifiion was that which comprehended ZubmiJJion. 
 all kinds of controverfy, and every fubjeclof , 
 difpute between the parties : an incomplete fubmiflion extended 
 only to fome particular matter ; yet, if the micanmg of the par- 
 tics was to confine the authority of the arbitrator to one fubjecl-, 
 
 (a) Arbitrorum genera funt duo ; 
 uniim eivilmodi, lit fivcsquum fit five 
 iniquiim, parciedcbeiiimis ; quod oh- 
 ("ervatur cum ex compromifto ad ar- 
 hitrv.m itum eft. Ff. 1. 17. t. 2. 1'. 76, 
 77, ante page 43. Qu^alem autem len- 
 tentiam dic:it arhiur, ad Prxtoreni 
 non pcrtinere, Lahco ait, dummodo 
 dicat quod ipfi vidctur. Ff. 1. 4. t. 8. 
 
 r. 19. 
 
 (b) Vid. ante page 3. Qiincfitum 
 eft dc fc-mentia uicenda ? et dioium, 
 r.on quamUbct : licet dc quibulU; m 
 
 variatum fit. Ff. I. 4. t. 8. f, 31. 
 n. 16. 
 
 (c) De officio Arl'ilri ti-KTiantibus 
 fcienduni eit, oinnem ira^tatum es 
 iplb compromillb Tumendum : nee c- 
 nim aliud illi lictbit, quani quod ibi, 
 ut cmcere pofiir, cautum eft. Non 
 ergo quodlibet Ihtucic arbiter potciit, 
 ncc in re quallbet : nifi dequa re com - 
 pvomiflum eft; et quattrus compro. 
 milium ell. Fl. I. 4. t. S. 1". 3i. n. 
 IS- 
 
 thoiir-.h
 
 THE AWARD OR UMPIRAGK, 
 
 though by inadvertency the fubmiilion was full, the intention of 
 the parties prevailed over the fhi£l form of the fubmifTion, and 
 they were not concluded, by a general award, from fuing one 
 another, on all thofe caufes of a6lion which were not intended 
 to be {\xhm\tted. faj It was alfo a rule, that though the fub- 
 miffion was full, yet it comprehended only thofe difputes which 
 cxifted at the time of the fubmiilion, and that the arbitrator could 
 not decide on any thing which had fubfcquently arifcn. fbj 
 
 The fame diftinftion between a full and a particular fubmifTion 
 is alfo recognized in the Engliih law ; but that is far from being 
 alone fufficient to explain the great multiplicity of cafes that oc- 
 cur : it will therefore be necefTary to compare the terms of the 
 award with that of the fubmiilion under which it is made, ar- 
 ranging the cafes according to the particular branches of the ge- 
 neral rule to which they more immediately refer. 
 
 The firft branch of the general 
 
 Muj7 not extend to cny rule is, that the award muft not ex- 
 Matter beycndthe Submijpon. tend to any matter not comprehended 
 within the fubmiflion. 
 
 Thus, if the fubmiflion be confined to a particular fubjeft of 
 difpute, while there are other things in controverfy between the 
 parties, an award which extends to any of thcfe other things is 
 void, as far as it refpedls them, (c) 
 
 By a fubmiflion of all anions perfonal, the arbitrators have no 
 power to make an award of any thing in which the parties have 
 only a caiife of a<^ion. Thus, in cafe of fuch a fubmiflion, an 
 av^ard '' that one of the parties fhall convey E, the fervant of 
 the other, to London," is void, unlefs it appear that an action 
 was depending relative to this fervant. (d) 
 
 (a) Plenum compromiffum appcl- 
 latur, qviod de rebus co)ttro-ver/iifve 
 compofitum ej\ : nam ad omnes con- 
 troveiTias pertinct. Sed fi forte de una 
 re fit difputatio, licet pleno coiiipro- 
 mifib aflum fit, tamen ex caeteris 
 caufis aftiones Aipercfie : id enim ve- 
 nit in compromifTum, de quo a61um 
 rft ut veniret. Sed eft tutius fi quis 
 de cerla re compromiffi.im fafturus fit, 
 
 de ea fola exprlmi re in compromiUb. 
 Ff. 1, 4. t. 8. f. 21. n. 6. 
 
 (h) De his rebus et rationibus et 
 controverfiis judicare arbiter poteft, 
 qu3e ab initio fuifil'nt inter eos, qui 
 compromiferunt, non quae poftea fw- 
 pervenerunt. Ff. 1. 4* t. 8. f. 46. 
 
 (c) Vid. z Mod. 309. 
 
 r^; 36 H. 6. lib. Bro.Arb.pl. 
 
 But
 
 THE AWARD OR UMPIRAGE. 93 
 
 But had the fubmiflion been of all adions and complaints^ this 
 would have comprehended caufcs of action ; and the award, with 
 refpecl to the conveyance of the fcrvant, would have been within 
 it. 
 
 If the fubmiflion be of all actions perfonal, fuits and com- 
 plaints, the word " perfonal" extends to fuits and complaints, 
 and confequently an award of all adions real is beyond the fub- 
 miflion ; but if it be of all aiflions perfonal, and fuits and com- 
 plaints, the word perfonal docs not extend to the latter part, and 
 an award on fuch a fubmiflion may comprehend actions real, (a) 
 
 Yet, where the fubmiflion is only of things real, the award 
 may order a fum of money to be given in fatisfa6lion. The (ub- 
 miflion was concerning the right and poflefllon of a manor ; it 
 was awarded, that one of the parties fhould releafe his right ii> 
 the manor to the other, and that the other fhould pay him twenty 
 pounds : it was held, that though the fubmiflion v/as only of 
 things real, yet the award of the twenty pounds was good, (b) 
 
 It feems alfo to have been the prevailing opinion in the fame 
 cafe, that where the fubmiflion is of things perfonal, yet the ar- 
 bitrator might award fomething in the realty in farisfViclion : th:.^ 
 may perhaps be YV'cll founded, where the party to who.n the thin^ 
 in the realty is awarded in fatisfadtion is ordered to give up fome 
 perfonal demand, to which otherwife he appears to be in titled ; 
 for in fuch a cafe the award will amount to the order merely of a 
 bargain and fale, but I doubt much whether it can be fupported 
 in the general terms in which it is here conceived. An award of 
 mofu^y in fatisfa6lion of any injury is good, becaufe money is tho 
 univerfal ftaiidard by which damages are eftimatcd ajid property 
 valued : but it feems to be altogether unreafonable to permit an 
 arbitrator, to order, without rertriftion, the transfer of any pro- 
 perty, or the performance of any particular adt, unlefs that ar- 
 ticle of property, or that particular a6l, have an immediate con- 
 nedlion with the fubject of difpute. Thu>^, where the fubmilTion 
 relates merely to a trefpafs, or to a claim of any fpecihc kind, it 
 would be highly unreafonable to leave it to the caprice of an ar- 
 
 (aj 9 Eii, 4. 44.. a. Flibt. 51. a. Rol. Arb, D. 6 -. 
 (b) Id. ibid. 
 
 bitrator
 
 9^ THE AWARD OR UMPIRAGE. 
 
 bitrator to order one of the parties to deliver to the other a par- 
 ticular horfe, or a particular article of drefs, or to releafe his 
 right in a certain piece of land, which vvere feverally unconne<Sled 
 with the difj^ute fubinitted to him. (a) 
 
 There are, however, one or two cafes which feem to con- 
 vey an idea that, in modern times, an award of fomething elfe 
 than money, in fatisfaction of a trefpaG, would be confidered as 
 valid. 
 
 To an action of trefpafs, the defendant pleaded a fubmiffion 
 by himfelf and the plaintiff, to the award of J. S. who ordered 
 that the defendant ihould provide a couple of fowls, at his man- 
 iion-houfc in Old Bedlam, to be eaten by the plaintiff and his 
 friends, on Wednefday or Thurfday in a certain week, in fatif- 
 laction of the trefpafs ; he averred that iie had, on ThurfJay in 
 trie week appointed, provided two fowls, but that the plaintiff 
 and his friends h?.d not come to cat them. No objecStion was 
 made to this award, becaufe it ordered fomething to be done 
 which had no relation to the fubject of the fubmifTion ; but it 
 was objected, that being an award of a collateral thing., k could 
 i:ot be a good bar v/ithout execution ; the word " collateral " be- 
 ing here ufed in contradiftinction to the payment of money ; 
 and that therefore the defendant ought to have given notice to 
 the plaintifi", on v/hich of the days, and at what hour he would 
 provide the fowls. But the court thinking the matter of too 
 ludicrous a nature to deferve a folemn decifion, gave no judgment, 
 but recommended that it fiiould be compromifed. fbj 
 
 In another cafe, it is fard, that, by the better opinion, an 
 av/ard, " tln^t the defendant fhould make a fubmiflion before the 
 mayor of a toum, for an injury done to the plaintiff," is good ; 
 but tliis v/as not the point directly in queftion ; for the arbitrator 
 had awarded, that the defendant fliould make this fubmifTion at 
 any time and place, at the difcretion of the plaintiff, which the 
 court held to be citarly bad, becaufe it made the plaintiff judge 
 
 r^J Vi<i. 9 E-1. 4.. 44.. Rol. Arb. I /'h) Purfiow v. E-ily. 6 MoH. 2:1. 
 B. II. Dia. com. perMoyk. 2 LJ. Raym. 1039. » Salk. 76. 
 
 of
 
 THE AWARD OR UMPIRAGE. 95 
 
 of the ratisfa6tlon to be given to himfcif ; time and place in facU 
 a cafe, making a principal circumflance. (a) 
 
 Notwithstanding the conclufion which might be drawn 
 from thcfc cafes, it is conceived, that an award of any thing> 
 not connected with the fubjedl of difpute, is not binding on the 
 parties. 
 
 If two fubmit to the award of a third pcrfon, all demands be- 
 tween them, without more; the word "demand," implies all 
 matters between them, concerning the lands of both parties, 
 which are the fubjecl of variance, (b) 
 
 If the fubmilTion be, " of all caufcs of aiflion, fuits, debt:,, 
 reckonings, accounts, fums of money, claims, and demands \" 
 an award " to releafe all bonds, fpecialties, judgment?, execu- 
 tions, and extents," is within the fubmilTion ; for as all debts are 
 liibmittcd, the arbitrators have power to make their award con- 
 cerning the debts thcmfelves, and of courfe to award a releafe of 
 every thing by which they are fecured. (c) 
 
 Where the fubmiflion is " of all debts, trcfpafles, and in- 
 juries, an award *' to releafe all actions, debts, duties, and de- 
 mands," does not exceed the fubmiflion ; for the word " injuries" 
 is fufficiently comprelienfive to imply all "• demands. "(''^^/^ 
 
 If the fubmiflion be " of the right and title of a manor, and 
 other lands and tenements, and of all manner of adlions and de- 
 mands," an award, " that one of the parties fhall deliver to the 
 other a deed of annuity, by which forty fliillings a year were 
 granted to the wife of the former, to be taken out of the ma- 
 nor," is binding on the hufband, becaufe, it is faid, he is intitled 
 to it in right of his wife, (e) 
 
 If the fubmiflion be "of all fuits and affions depending be- 
 tween A and B," the arbitrator cannot make an award of an ac- 
 tion which B and his wife have depending againil A, becauft^ 
 
 , .:,' I Sid. 12. 
 
 i l/j KciKvay 99. vid. i Ld. Raym. 
 115 ace. 
 
 fc' Rubcits V. Mariiot. z Saund. 
 100. 
 
 (J) 3 Buiftr. 512. 
 (e) 21 H. 6. 19. Br. 45;:. PI. 21. 
 f<;J quaere et vid. page 2S. 
 
 thit
 
 9^ THE AWARD OR UMPIRAGE. 
 
 that is out of the fubmiffion, the atStion between B and his wife, 
 and A, not being an a(Stion depending between A and B. (a) 
 
 If the fubmiflion be " of controverfies between the plaintiff 
 and defendant, for divers fums of money laid out for the de- 
 fendant's wife, at her requeit, while (he was fole," an award, 
 *' that the defendant fliall pay to the plaintiff a fpecific fum, for 
 ail fums of money laid out by the plaintiff for the wife of the 
 defendant while fhe was fole," is faid to be void, as being beyond 
 the fubmiffion ; that being confined to all fums laid out at her 
 requefl-, and the award being general of all fums laid out for 
 her, of which part might have been without her requeft. This 
 is reported to have been adjudged on a writ of error, and the 
 judgment of the court below reverfcd. t'bj But, it may well 
 be doubted, whether, at this day, it would not be prefumed in 
 favour of the award, that the whole had been laid out at her 
 requeft. 
 
 The rule, " that an award of any thing beyond the fubmiflion 
 is void," is not fo ftrictly interpreted as to extend to every thing 
 literally beyond it ; if the award be of any thing depending on 
 the principal, it is good, fcj 
 
 As if the fubmiffion be of all trefpafles, and in addition to the 
 award of fatisfaclion for the trefpaffes, the arbitrator order the 
 parties to put their fcals to the award, this is good, for it is 
 only an appendage to the principal. 
 
 So, if the fubmiffion be of all trefpaffes, and the award be, 
 " that one fhall pay to the other lol. and that he (hall enter into 
 a. bond to him for that fum ;" this is good, becaufe it only ren- 
 ders the award more effe6lual. 
 
 On this principle, it would feem that, *■ if the fubmiffion be 
 of all ailions perfonal, fuits, and complaints, and the award, 
 " reciting that the defendant had committed feveral trefpaffes on 
 the plaintiff, and that the plaintiff was feifed of a certain houfe 
 in his demcfnc as of fee," order that the defendant fhall releafe 
 to the plaiiitiff all his right in that houfe, and deliver the deed 
 
 /'fl; H. 3SEI.B.R. Brockas V. Savage. Rol. Aib. D. 4.. 
 CbJ Waters v. Bridges. Cio. Jac. 639, 640. 
 {ej 8 H. 6. 18. b. Rol, Arb. B. 2. C. 4. 5. 6. 
 
 of
 
 THE AWARD OR UMPIRAGE. gf 
 
 of releafe in fatisfaclion of the trefpalTes ; this is a gooJ awards 
 for though the fubmifTion, in this cale, be of avflions perfonal 
 only, and the award of a thing connected with the realty ; yet 
 there feeins to be a natural conneclion between a releafe ot a 
 man's right to a houfe, and trefpafi'es committed by him, with 
 rcfpedt to it. The Juftices, however, are not reported to have 
 been unanimous in this opinion ; (a) andRclie, in abridging the 
 cafe, gives it as decided the other way, with the exception of 
 Moyle. (b) 
 
 The fubmiiTion was concerning a term for years, and every 
 thing depending on it ; the award included rent to becoiiie due 
 at Michaelmas next after the date of the award ; this was held to 
 be beyond the fubmiilion, becaufe the rent might be extinguifhed 
 by furrender, evii^.ion, or otherv/ife, before Michael mas. (c) 
 The fame thing was held at a much later period, where the 
 award, made on the zji of June, ordered fo much rent to \\z 
 paid, which, by the award itfclf, appeared not to be due till the 
 24-th of June, [dj 
 
 A and B fubinitted to the award of J. S. a fult depending be- 
 tween them /// ejc^'iOiie firtncv. J. S. on t'nut fubmiHion, made 
 an award relative to the land for which the action was brought ; 
 in an action on the cafe, for not performing this award after a 
 verdict for the plaintiff, it was adjudged, in arrcft of judgment, 
 that the award was beyond the fubmillion. fe) 
 
 There was a difpute between a parfon and one of his pa- 
 rifhioners, whether the tythes lliould be paid in kind or not •, and 
 they, reciting the fubjedtof the difpute, fubmitted to the award of 
 J. S. concerning all matters, as well fpiritual as temporal, from 
 the beginning of the world to the day of the date of the fub- 
 mifilon. Tiie arbitrator awarded, that the parfon fliould have 
 7I. for the tythes due before the fubmifTion, and that the pa- 
 rifhioner fhould pay"4l. annually for the tythes which fhould 
 afterwards become due. This was held to be a good award for 
 
 (a) 9 Ed. 4. 44. 
 
 (b) RcI.Arb. B. 13. 
 
 (c) Inter Grav el Wicker. Rol. 
 Arb. B. 3. 
 
 H the 
 
 CJ) Barnardilton v. FouUer. 
 
 (t ) Tavlor v. Waltam. P. 
 Car. i;. R.
 
 98 THE AWARD OR UMPIRAGE. 
 
 the future tythes ; becaufe the fubmiffion comprehended not 
 only a difpute concerning the tythes then due, but a qucftion 
 concerning the future r^ht. (a) 
 
 If two partners refer all matters in difference between them, 
 the arbitrator may diflblve the partnerfhip. At a trial at n'lfi 
 priusj a juror was withdrawn, and all matters in difference be- 
 tween the plaintiff and defendant, who were partners, were re- 
 ferred in the common form ; and after the rule of reference was 
 drawn up, the plaintiff openly declared, he v/ould not have 
 it underilood, that the arbitrator (hould have a power to diffolve 
 the partnerfhip. The arbitrator did order the partnerfliip to 
 be diffolved. The plaintiff applied to the court to have the 
 award fet afide on this account, alledging, that the arbitrator had 
 exceeded his authority. The court held that, under fuch a ge- 
 neral reference, the arbitrator had clearly a power to diffolve 
 the partnerfliip ; and added, that if a difference between a mafter 
 and his apprentice were referred, the arbitrator had a power to 
 order the indentures to be delivered up. With refpedl to the 
 plaintiff's declaration, that he would not have it underflood, 
 that the partnerfhip (hould be diffolved, Lord Mansfield obferved, 
 this was evidence out of his own mouth, that the diffolution of 
 the partnerfhip was then a matter of difpute. (b) 
 
 Where the fubmiffion is by reference at tiiji prius, the order 
 in which the words are placed in the rule of reference, gives rife 
 to a material diftindlion with refpect to the power of the ar- 
 bitrator. — If the reference be " of all matters in difpute in the 
 caufe between the parties," the power of the arbitrator is 
 confined folely to the matters in difpute in that fuit. — If it be 
 *' of all matters in difference between the parties in the fuit," 
 his power is not confined to the fubjedl of that particular caufe, 
 but extends to every matter in difpute between them, though 
 there be crofs demands, and though the defendant has not pleaded 
 
 /'«y Beckingham V. Hunter. H. 41. | ('l^J Green v. Waring, i Bl. 
 El. B. R. Rol. Alb. D. 8. Rep. 475. 
 
 his
 
 THE AWARD OR UMPIRAGE. 99 
 
 his demand againft the plaintiff, by way of fct-ofF; and a pro- 
 vilb, that the cofls fliall abide thj event, makes no difference, (n) 
 
 An award, " that both fiiall pay the reckoning contracted at 
 the houfc where the award was made, is faid to be void, be- 
 caufe it extends to a time beyond the fubmiffion ; (IjJ fuch an 
 award indeed feems perfeclly nugatory, becaufe the lairJIordof 
 the houfc may recover againft them for the reckoning j but in- 
 ftead of being confidered as void, becaufe it extends beyond the 
 fubmiflion, it would be more corretSl to confider it as an av/ard, 
 that, to a certain extent, the expences of the arbitration (hould 
 be equally defrayed by the parties. 
 
 On the fame principle, " of being beyond the fubmiaion," an 
 objecSlion has been made to an award, " that land, the fubjeCl of 
 difpute, fhould be meafured at the expence of both parties j' Y^>' 
 though, inftead of an award relative to forne fubje6l not within 
 the fubmiiTion, it is rather to be confidercd as an order for the 
 performance of a future act, which is clearly within the power 
 of the arbitrator. 
 
 It appears too, that tho' the arbitrator order a claim of one 
 party againft the other, which has accrued fmce the fubmiflion 
 and before the award, to be given up in fatisfadion of tlie balance 
 of claims fubmitted to him ; this fnould not be confidered as an 
 ufurpation of a jurifdiction m'er fomething not within his au- 
 thority, but as an award to do a fpecific future ail, for the con- 
 clufion of the differences between them. This feems to have 
 been the principle which prevailed in a cafe, where two fub- 
 mitted to the award of J. S. concerning all matters between 
 them, ti/l the fubmiffion, and each affumed to the other to 
 perform the award. J. S. reciting that one of them was bound 
 to the other in an obligation m:\dcfjjce the fubmiflion, and /w- 
 fore the award, ordered the obligee to deliver up the obligation 
 to the otiier, in full fatisfa^ion of all matters between them : 
 
 (a) V^iJ. 2. Bl. Rep. 1 1 18. 2 
 Term Rep. 644., 5. 3 Tciin Rep. 
 6:6. 
 
 (h) \\^\\ V. MalTcy. RqI. Aib. 
 K. 14. 
 
 (i) ILmlres4 5. 
 
 H :. this
 
 ICO THE AWARD OR UMPIRAGE. 
 
 this was adjudged a good award. CaJ—RoWe, however, doubf* 
 of the propriety of this decifion, obferving, that though this- 
 was in fatisfaction of all matters within the fubmiflion, yet 
 the obligation being itff^If out of the fubmiflion, and a thing in 
 action between the parties, it would feem that it is void. 
 
 An opinion long prevailed, that under a fubmiflion in the 
 common form, an arbitrator had no power with refpect to the 
 cofts of the arbitration, becaufe they were fomething which had 
 arifen fmce the time of the fubmiflion. i^Z'j The only way, 
 therefore, by which he could fecure any recompence for his 
 trouble, was to keep the award in his own hands 'till he was 
 paid for it. Thi?, however, might be fubjedl to this inconve- 
 nience, that if the parties would not pay for it, and there was 
 a provifo, that it fhould be delivered within a certain time, an 
 objeftion might be made to the performance for want of delivery 
 according to that provifo : it became, therefore, a matter of 
 prudence in thofe, v/ho might be propofed as arbitrators, to re- 
 fufe the oflice, unlefs a claufe were inferted in the fubmiflion, 
 that the coils of the reference fhould be according to their dif- 
 cretion. The judges, however, did once go the length of fay- 
 ing, that vi'here it was part of the condition in the fubmiflion 
 that the awai'd fnould be in writing, payment for the writings 
 was intended, (c) And it is now determined, that the power 
 of awarding cofts of the arbitration is neceflarily incident to the 
 authority conferred on the arbitrator of determining the caufe ; 
 and that the reafon why, in references of this fort, a provifion 
 is frequently inferted, that the cofts fhall abide the event of the 
 award is, that the arbitrator may not have it in his power to 
 v/ithhold cofts from the party who is in the right ; and that 
 therefore fuch a provifion is to be confidcrcd as the reftriclion 
 of a power, which the arbitrator would otherwife neceflarily 
 have, (d) 
 
 (a) Nicklas V. Thomas, adiudged 
 good. T. isJac.B.R. Rol.Arb, 
 B. 10. Reporter quaere ceo. 
 
 (bj Vid. Bufhfidd V. Bufhfield. 
 Cro. Jac. 577, 578. Capel v. Alien 
 Hi). 2,z Car. B. R. Al. 10. Rol. 
 
 Arb. H. 13. Berry V. Perry. Bridge- 
 man 90, 91. 
 
 (cj Pinkney v. Bullock. zKeb. 
 832. vid. 10 Mod. 201. 
 
 (d) z Term Rep, 645. 
 
 When
 
 THE AWARD OR UMPIRAGE. lOt 
 
 When a caufe is referred at rifi prius^ and it is inferted in the 
 order, that the cofts fiiall abide the event^ which is the ufual 
 form, the event is taken to mean the legal event^ and therefore 
 the party, in whofe favour the award is made, will not be en- 
 titled to any more cofts than he would have been, had the trial 
 gone on, and he had had a verdict in his favour. 
 
 A CAUSE, in which the plaintiffs were executor?, was referred 
 at nijiprius, v/ith the ufual provifo with refpeit to the cofts abid- 
 ing the event. The arbitrator awarded, that there was nothing 
 due from the defendant to the plaintiffs j in confequence of which 
 the mafter taxed the defendant his cofts. An application being 
 made to reftrain the defendant from proceeding to enforce the 
 payment of thcfe, on the ground that the plaintiffs were execu- 
 tors, and therefore not liable to pay cofts, the court held the 
 meaning of the rule to be that which is ftated above ; and that, 
 as it was clear, that if a verdict had been given againft the plain- 
 tiffs, or tliey had been nonfuited at the trial, they would not 
 have been liable to pay cofts, they were confequently not liable 
 to this order, ('a J 
 
 On a fimilar reference, the arbitrators found, that the plain- 
 tiff's original demand was under 40s. awarding that the defendant 
 fhould pay the plaintiff only 37s. An application being made to 
 the court to have it referred to the mafter to tax the defendant his 
 cofts of the action, it was contended on his behalf, that the plain- 
 tiff was notintitled to cofts, any more than he would have been, 
 if, on a trial, he had recovered under 40s. but that on a fuggeftion 
 to be entered, by leave of the court, the defendant would be in- 
 titled to cofts. The court were oi this opinion, and made the 
 rule abfolute. CI' J 
 
 The plaintiff" brought an a6l:ion of trefpafs againft the defend- 
 ants, for pulling dov/n the plaintiffs gates and affaulting him. 
 The defendants juftified to all the counts, except one, under dirV 
 
 (n) Iligluiam et nl. v. Hr.flll. | miift have been a cafe where the de- 
 mand aroie wiihin the jurildiftioii oi 
 a court of conl'cience. 
 
 H. 14. Cr. 3. cite J 3 Term Rep. 159. 
 
 (b) Butler V. Gruljb. H. 23. 
 
 G. 3. cited 3 Term Rt[>. 139. This 
 
 H 3 fercnt
 
 102 THE AWARD OR UMPIRAGE. 
 
 ferent rights of way, and pleaded not guilty to the whole : the 
 caufe was referred at n'lf: priin^ the rule of reference reftri£ting 
 the cofts of the action to abide the event. The arbitrator awarded 
 a right of way to the defendants different from any of thofe un- 
 der which they juftified, and gave 5s. dannages to the plaintiff 
 for the aJault, as having been committed when the defendants 
 were attempting to exercife a right of way negatived by the ar- 
 bitrator. It was held, on the authority of the two preceding 
 cafes, that the plaintiff could recover no more cofts than damages ; 
 and further, that the arbitrator's award v/as not equivalent to a 
 judge's certificate under the 22d and 23d Car. 2. c. 9. (a) 
 
 As it is the profeffed purpofe of parties fubmitting their dif- 
 putes to arbitration to have them finally fettled, fo there is no 
 method more effedtual to anfwer that purpofe, than the award of 
 mutual releafes, after the execution of other parts of the av/ard j 
 there are, accordingly, very few of the cafes reported in the 
 ancient books which do not, among other things, include a re- 
 leafe : but as the arbitrator could not always be aware of every 
 nice objection to his award, it is very feldom that the period to 
 which the releafe fhall extend is confined to the date of the fub- 
 miffion. It is fometimes ordered to the date of the award, fome- 
 times to a period long fubfequent, and pofterior to the time ap- 
 pointed for the execution of ail the other parts, and fometimes 
 generally without any limitation of the time to which it is to 
 operate. In all thefe cafes, it has been conflantly objefted, that, 
 by awarding fuch a releafe, the arbitrator has exceeded his au- 
 thority : the objection has as conftantly been fuftained, fo far as 
 to determine the award of the releafe to be void for any thing 
 arifing fubfequently to the fubmiHion. But many cafes have 
 gone further, and the award has been frequently confidercd as 
 altogether void, on account of fo trivial an inadvertency in the 
 award of the releafe. The hiftory of thefe cafes is conAifed and 
 complicated, and involves a part of the fubjecl, which will make 
 a diftinct article very confiderable in itfelf. {b) 
 
 (a) Swinglehurft v. Altliam et al. 
 3 Term Rep. 138. 
 i^b) Vid. poft, " Where an award 
 
 fhall be good in part though void in 
 part," and, " how awards fiiall be 
 conllrued." 
 
 The
 
 THE AWARD OR UMPIRAGE. loj 
 
 The next branch of the general rule is, that the award muft 
 not extend to any one who is a ftrangcr to the fubminion. 
 
 Thus it has been held, that where the fubmiflion is between 
 two, and it is ordered by the award that one of them fhall convey 
 certain land to the other and his wife, this is void as to the wife, 
 becaufe fhe is a ftranger to the fubmiflion. fa) 
 
 So, if it be awarded that a third perfon be ready to feal p.nd 
 <]eliver 15 bonds for the payment of a certain fum to one of the 
 parties, and that he (hall do his endeavour that no advantage be 
 taken of a forfeiture committed by that party, all this is void, (b) 
 
 So, if two fubmit to the arbitration of certain perfons con- 
 cerning the title of certain lands, and the arbitrators award, that 
 all controverfies touching the land fhall' ceafe, and that one of 
 the parties, his wife and fon his heir apparent, by his procure- 
 ment, fliall make to the other fuch aflurance of the land as the 
 other fhall require, this is void ; becaufe the wife and fon are 
 ilrangers to the fubmiflion. (<■') 
 
 So, it is faid, that if the condition of a fubmiflion bond be to 
 ftand to the award of A and B, who award that one of the par- 
 ties fhall pay 203. to a third perfon: this, fays Coke, is a void 
 award, and the bond of no force, notwithftanding an opinion to 
 the contrary, v/hich he fays is ill reported, (d) 
 
 So, where it appeared that the plaintiff, in the action then 
 before the court, had formerly brought another action in the 
 King's Bench againftthe prefent defendant and one J. P. and that 
 the plaintiff and this J. P. had fubmitted all manner of trefpafs 
 and actions between them two, and all other trefpafTes between 
 the plaintiff and the prefent defendant ; and the arbitrators 
 awarded, that as well for the trefpafs done by the defendant as 
 by J. P. there fhould be paid to the plaintiff iocs, which J. P. 
 had paid. This was held to be a void award, becaufe the de- 
 fendant was not a party to the fubmiflion. 
 
 (a) Sainon's cafe. 5 Co. 77. b. 
 78. n. Rol. Arb. B.7. 
 
 (b) JO Co. 131. a. b. Rol. Alb. 
 B. 5. vid. 3 Leon, 6;. Mo. 359. pi. 
 489. 
 
 (c) Rol. Arb. N. 9. 
 
 (d) 10 Co. 131. b. Rol. Aib. 
 B. 6. E. 5. vid. 22 H. 6. 46. b. and 
 Brooke fays quod minim, fpeaking of 
 the opinion to the contrary. 
 
 H 4. Where
 
 I04 THE AWARD OR UMPIRAGE. 
 
 Where the fubmillion was between three on one fide, and 
 one on the other, of all adlions and demands between them, it 
 was faid by three juiliccs in the Exchequer Chamber, that the 
 arbitrators had an authority to make an award of all joint mat- 
 ters between the three and the one, and alfo of all matters feve- 
 rally between the one and any one of the three; and that there- 
 fore if he awarded that any one of the three fliould pay fo much 
 to the fmgle party on the other fide, and that the other two fhould 
 go quit ; or that the fmgle party fliould pay fo much to any one 
 of the other three, the award in thefe feveral cafes was good, (a) 
 And Brooke, In abridging the cafe, fays this is good law; but 
 he denies that what follows is good law, viz. that the arbitrator 
 has an authority to decide on any matter between any two of the 
 other three, (bj 
 
 It is in general laid down, that the award of payment of money 
 to a flrangcr is void : (c) but this muft be ujiderllood to hold 
 only v/hen fuch payment can be of no benefit to the other party ; 
 for an award that one of the parties fliall pay fo much to a cre- 
 ditor of the other in difcharge of a debt due by the other to that 
 creditor, is unqueftionably good, (d) 
 
 So, an award to pay money to W, the plaintiff's folicitor, if 
 it appear from the nature of the cafe that the payment is for the 
 plaintiff's benefit. (^^^ • 
 
 So, where it was awarded that the defendant fliould pay a fum 
 of money for the plaintiif's benefit, to fuch perfon as the plain- 
 tiff fnould appoint to receive it, it was faid in argument, and 
 aifentcd to by the court, that it would hardly be contended that 
 fuch an award was not good, (fj 
 
 So, if at my requeft, and that of W. N. two others are bound 
 in 20]. and, on a difpute arifmg between W. N. and me, on this 
 queflion, among other matters, " which of us fnall pay the 20I." 
 
 (a) 2R. 3. i3. 
 
 (b) Er. Alb. pi. 44. 
 
 (c) Godbolt. 12, 13. 
 
 (d) R. ace. I Lord Raym. 123. 
 Doddcndge femb, P. 16 Jac. B. K. 
 
 Biickhuift and Maj'o's cafe. Rol. 
 Alb. E. 5. 
 
 (e) I Lord Raym. 123. M. 8. 
 W. 3. , Bedam v. Clerkibn. 
 
 (f) Dale V. Mottram. zBamard. 
 291. 6 G. 3. 
 
 we
 
 THE AWARD OR UMPIRAGE. 105 
 
 we fubmit all matters in controverfy, anJ the arbitrator award 
 that I ihall pay to the obligee tlic half, with intereft, and W. N. 
 the other half; this is a good award, though the payment of the 
 money be awarded to a pcrfon who is a (tranger to the fubmiflion, 
 becaufe it appears to be an advantage to both parties. C^J 
 
 If the award be, that the one (hall acquit the other of a bond, 
 in which they are both bound to a third perfon for the payment of 
 a fum of money, this is good ; for though he cannot compel the 
 third perfon, v/ho is a ftranger, to deliver up the bond, or to nialce 
 a releafe by the common law, yet, if the bond be not forfeited, 
 he may pay the principal fum to the obligee at the day, and this 
 will acquit the other. If the bond be forfeited, yet he may pay 
 the penalty.f which will alfo acquit the other ; or, on fatisfaftion 
 given, he may compel the obligee to deliver up the bond in a 
 court of equity, or to give a releafe. (b) So now, fince the lla- 
 tute for the amendment of the law, on an aflion brought for the 
 penalty after forfeiture, he may pay the priacip.d, intereft and 
 cofts, which will alfo acquit the other party. 
 
 It having been awarded, that the plaintiff and defendant, who 
 were brothers, fhould pay a certain fijm yearly for the ufe of 
 their mother ; this was held a good award by Powell J. becaufe 
 he thought it muft be prefumed to be for their benefit, or rather 
 becaufe it really appeared to be fo, as it was for the ufe of their 
 mother ; and by Holt C. J. becaufe he was of opinion, that a ge- 
 neral award of the payment of money to a ftranger was good, 
 becaufe it was to be prefumed that the parties fubinitting were 
 bound as truftees, or were by fome means liable, and that the 
 payment fiiould be intended for their benefit, unleis the contrary 
 
 appeared. ftV 
 
 And, in general, a diftinilion is taken between the cafe of an 
 atSt awarded to be done by a ftranger, and that of an a6t awarded 
 to be done to the ftranger, by a pnrty to the fubmiflion : in tlie 
 latter cafe the award is faid to be good ; and if the ftranger will 
 
 (a) Giay v. Gray. P. 16 Jac. 
 B. R. Rol. Arb. E. 6. F. 8. 
 
 (b) Bully V. Cl,pfli3m. Rol. 
 Alb. E. ii.'S. C. Cro. Car. 5^1. 
 
 viti. Eecket v. Taylor, i MoJ. 9. 
 S. P. 2Kcb. 546. S.C. 
 
 (O Bird V. Bird. 1 Salk. 74-. 
 
 not
 
 ro6 THE AWARD OR UMPIRAGE. 
 
 not accept the money awarded to be paid to him, the party's 
 obl'«gation is faved. (a) 
 
 If the perfons comprehended in the award were in contem- 
 plation of the fubmiflionj though they were not diredly parties 
 to it, yet the award is good ; as if it be awarded, that all fuits 
 fliall ceafe between the parties, or any others in their behalf, (b) 
 So, if the fubmiffion be by two, concerning a matter which 
 arofe between one of them and the wife of the other when fhe 
 was fole, an award " that the other iliall pay to the married 
 man and his wife icl." is good, becaufe it was on her account 
 that the difpute arofe. (c) 
 
 A DISPUTE arifmg between A and B on one fide, and C, D, 
 and E on the other ; C, in confideration of fixpence given to him 
 by A and B, fubmitted the matter for himfelf and D and E, and 
 aiTumed to Hand to the award : A and B fubmitted for themfelves 
 on the other fide. The arbitrator awarded that C, on behalf of 
 himfelf and the other two, fiiould pay a certain fum to A and B 
 in fatisfacftion of the controverfy : this was held to be a good 
 award, and C adjudged to perform it, though it concerned two 
 Grangers to the fubmiflion. (d) 
 
 A BOND was given by the defendant Clemence to Lynch and - 
 Templeman, of which the condition was, that Clemence, the 
 obligor, fliould perform the award of arbitrators indifferently 
 named, as well on the part and behalf of Clemence as of Lynch, 
 without naming Templeman, " to arbitrate and determine all 
 matters in controverfy between the faid parties or either of them.'* 
 The award, " reciting that there were feveral differences between 
 the plaintiffs Lynch and Terftplem.an on the one part, and the 
 defendant Clemence on the other, and that they had all fubmitted 
 by feveral bonds ; reciting alfo, that the defendant was bound to 
 Elizabeth Templeman, now the wife of the plaintiff Lynch : 
 that the bond was in truft for the plaintiff Templeman, and that 
 
 (a) Norwich v. Norwich, 3 Leon. 
 
 Ci. 
 
 (b) Onyons V. Cheefc. 10 W. 3. 
 Lutw. 530. 
 
 (c) March, 78. 
 
 (d) Bullcck V. Dalbie and Gat- 
 
 wood, adjudged H. 14- Jac. and on a 
 writ Oi error judgment aiiinned. Kol. 
 Arb. B. 18. vid'. zz E. 4. 25. i Bnr- 
 narditton. B. R. S5. i Keb. 790, 
 865- 
 
 11-].
 
 THE AWARD OR UMPIRAGE. I07 
 
 X17I. was due on that bond," ordered that the defendant fhould 
 pay to the plaintiff Templeman 83I. in part fatisfaclion of the 
 117I. and for fatisfadtion of the refidue fliould affign to the fame 
 Templeman a certain debtof 34I. due to CIcmencc by one Henry 
 Becfley of London, and fhould execute and deliver to the fame 
 Templeman fufficicnt authority to fue for and recover the faid 
 debt, with covenants to be inferted in that authority; that he 
 fhould not revoke it, nor receive the money from Beefley-, but 
 that he fhould aid and aflift Templeman to recover it ; that he 
 fhould alfo make an affidavit in writing before a mafter in Chan- 
 cery, that the fum of 34I. before mentioned, was really and 
 juftly due to him from Beefley ; and that in cafeClemence fliould 
 fail to execute fuch authority, and take fuch oath, he Ihould, 
 within the fpace of two months from the date of the award, pay 
 to Templeman the further fum of 34I. And that the plaintiff 
 Templeman, on performance, fhould deliver to the defendant 
 the bond in which he was bound to Elizabeth Templeman, and 
 that the plaintiff f^ynch fhould execute a general releafe to the 
 defendant. 
 
 Th-'v obje(5lion on which the defendant principally refted his de- 
 fence was, that Templeman not having been named in the condi- 
 tion of the fuhmiffion bond, he was a flranger to the fubmiffion, 
 and that therefore the award of payment to him was void : but it 
 was anfwered, that he was fo far from being a mere flranger, that 
 he was in fact the perfon principally in contemplation of the fub- 
 mifllon ; he was party to the bond, and the fubmifTion was of a thing, 
 in which his interett was concerned. The wife of Lynch, before 
 her marriage, was truftee for Templeman, and by the marriage the 
 hufbnnd became the trufree ; when, therefore, Templeman joined 
 with Lynch in taking the fubmiifion bond, it was manifcrt he had 
 agreed that the matters in controvcrfy relative to the bond, taken 
 byhim in the name of Elizabeth Temi'leman, fhouldbedctcrmined 
 by the arbitrators, which amounted to a fubmilTion to their award. 
 The arbitrators had, by their award, affirmed, that Templeman, 
 as well as Lynch and Clemence, had fubmitted to them ; the 
 court would prcfume that it was fo, and the parties to the fub- 
 ITiifTion bond were eftopped to fay the contrary : it was not ab- 
 
 folutely
 
 ro8 THE AWARD OR UMPIRAGE. 
 
 folutely neceffary that the fubmiJTion (hould appear by exprefs 
 words in the condition of the bond on which the fuit was 
 founded; it might appear by the bond made by rempleman to 
 the defendant, for the performance of the award : but in the 
 prefent cafe, without having recourfe to extrinfic circumftances, 
 the condition itfelf implied that Templeman was a party to it, 
 and the omiflion of his name was evidently the miftake of the 
 perfon who drew the condition, for it was to arbitrate betvjesn the 
 ./aid parties, or either of theniy where the latter words, " or 
 either of them," would be abfurd and infignificant, if there were 
 not two perfons on one fide. As to the av/ard itfelf, that was good, 
 for thefe reafons : the money payable on the bond to Elizabeth 
 Templeman, in equity, belonged to Templeman the plaintiff, 
 and, by the confent of his truftee, it was to be paid to him, 
 which was in effed the fame thing as if it had been awarded to 
 be paid to Lynch ; for had it been fo, it muft at lad have been 
 paid by Lynch to Templeman. Tender to Templeman, and 
 refufal by him of the money awarded, would have been a good 
 plea to an action of debt on the bond given to Elizabeth Tem- 
 pleman. By the payment to the plaintiff Templeman, the de- 
 fendant's bond would be difcharged as well as if the money had 
 been paid to Lynch, and Lynch would alfo be difcharged of his 
 truft, which was for bis benefit ; fo that each of the parties would 
 have a fuitable benefit by this award. (^^^ 
 
 The condition of a fubmiflion bond recited, that a replevin was 
 depending between Baily, one of the parties to the fubmiffion, 
 and one Webb, who made conufance, as bailiff to Ifaac Shelf, 
 the other party, and Margaret his wife, and then flatcd, that the 
 plaintiff Shelf, and the defendant Baily, were to ftand to the 
 award of arbitrators, on provifo, that the award \wtxc made con- 
 cerning the premifes, by a certain day. The award recited that 
 Baily had brought a replevin, for taking his cattle, againft Webb, 
 to which Webb had made conufance, as bailiff to Shelf and 
 Margaret his wife; and, after ftating the proceedings in that 
 a6tion, awarded, " of and upon the premifes, and of all matters 
 in difference betwen the parties j" that all proceedings in the re- 
 plevin 
 (a) Lynch v. Clemence. ii W. 3. Lutw. 571.
 
 THE AWARD OR UMPIRAGE. IO9 
 
 ^levin fliould ccafe ; that l-Jaily fhould pay 7I. los. for the rent 
 in arrear to Shelf, and lol. coUs ; and that Shelf fhould give him 
 a general rcleafc. In avoidance of this award, it was argued, 
 that Wchb was a {Iranger to the (ubminion, and that by it the 
 adlion between Baily and him was to ceafe ; that fo much was 
 to be paid to Shelf, who was to give a rcleafe, which would not 
 difcharge Baily from the claim of Webb, who was intitlcd to 
 cofts, if tlie pLiintiff in replevin did not proceed : it was anfwered, 
 that Shelf w:is the party concerned in intereft, and that a perfon 
 might fiibmit to an award for another. — And the court exprefTed 
 the inclination of their opinion to be, that if one fubmitted on the 
 behalf of another, his bond was forfeited if the (Iranger did not 
 perform his part of the award ; but that it did not appear here 
 that Shelf undertook for Webb, or fubmitted on his behalf, (a J 
 However, as in this cafe. Shelf was the principal in the avowry, 
 and Webb only an agent, the award appears to be conclufive 
 againft Webb, and might have been fet up as a defence to any 
 claim of coils by him againft Baily. 
 
 It has been {-^cny that a man is bound by an award to which 
 he fubmits for another ; (bj and that if an attorney, without 
 the exprefs authority of his principal, enter into a bond to a third 
 perfon, under a condition to be void on performr.nce of the 
 award by the principal, otiierwife to be in full force ; this fhall 
 bind the aLtorney and not the principal, (cj It has alfo been 
 foid, that if a man authorize another on his behalf to refer a 
 difpute between the principal and another, an award made in 
 confequence of fuch a fubmifllon is binding on the principal 
 alone, (d) But by a modern cafe, (e) it appears, that the latter 
 afl'ertion is true, only when the agent does not bind himfclf for 
 the performance of the principal; for if he does, not only the 
 principal who authorized him, but the agent himfelf is bound by 
 tiie award. 
 
 The bond was given by one George Fitzgerald, the defend- 
 
 (n) Shelf V. Baily in C. B, 8 Ann 
 Comyns Rep. 1S3. 
 (li) Ante page 24.. 
 (c) Ante pni,e 26, 27. 
 
 (d) Pa^ei!;. 
 
 (e) Cayliill v. Fit7reiaKi. B. R. 
 7 G. 2, 1-43. I Wilf. 28, 58. 
 
 ant.
 
 no THE AWARD OR UMPIRAGE. 
 
 ant, who was authorized by John Fitzgerald to fubmit all mat- 
 ters between the latter and Cayhill, the plaintiff. The condi- 
 tion reciting, that there were differences between John Fitzge- 
 rald and the plaintiff, concerning a certain debt, due from him 
 to the plaintiff, on a bond for 800I. purported to be that, if the 
 faid George Fitzgerald, the obligor, for and on the behalf of 
 the faid John Fitzgerald, fhould perform fuch av/ard as arbi-. 
 trators fhould make, on or before a certain day, between the 
 plaintiff and John Fitzgerald, then the bond ihould be void. 
 The arbitrators awarded, that Geo. F. the defendant, ihould pay 
 298I. 9s. 6J. that the plaintiff fhould receive it in full of all de- 
 mands, and that they fhould execute releafes. 
 
 Among other obje£iions to the award, this was taken, that 
 it was not made betv/een the parties to the fubmifficn ; for that, 
 inftead of ordering G. F. the defendant, to pay, it cught to have 
 ordered J. F. who was the real party to the fubmiffion. — The 
 court feemed at firff to think the award was bad, but afterwards 
 Lee, C. J. delivered the opinion of the court in favour of the 
 award : at firft he Hiid, that on reading Carthew's report of the 
 cafe of Bacon and Dubarry, (a) he had been inclined to think the 
 award was bad ; but that having looked into Lord Raymond's 
 report of the fame cafe, and alfo hen a manufcript report of it, 
 he was now clearly of opinion, that the award was good, and 
 that the prefent cafe was not to be diflinguiflied from that ; for 
 that it appeared by the pleadings in that cafe, (k) that had the 
 award been general as in the prefent, and not " to the ufe of 
 either of them," which confined it to the attorney, it would have 
 been good to bind the principal. In the prefent, it appeared on 
 the record, that the award was made " of and concerning the 
 premifes," in the condition of the bond, for it was exprefsly 
 averred to be fo, in the replication. 
 
 Where the flranger is only an inftrument to'the performance 
 of the award, no objection fhall be allowed on that account : 
 as if it be, that one of the parties fhall furrentier his copyhold into 
 the hands of two tenants of the manor, who fhall prefent the 
 furrender s this is good, though it be awarded, that the furren- 
 
 der 
 C^^ Ante page 17. C/-; In a Salk.
 
 THE AWARD OR UMPIRAGE. HI 
 
 dcr {hall be made to (Irangers, who cannot be compelled to ac- 
 cept it, becaufe they are only to be ufcd as inilruments. (a) 
 
 For the fame reafon, it is,a good award, that one of the par- 
 ies fhall make a deed of feoffment, with a letter of attorney, to 
 J. S. to make livery (b). Or that the defendant fliall pay as 
 the plaintiff and his attorney by a bill and oath fh^ill make ap- 
 pear, for the attorney is only an inftrument to afcertain the 
 fum. (c) 
 
 As an award of a thing, out of the fubmi/Hon, cannot be en- 
 forced by an action at law ; fo, neither fhall a man by fuch an 
 award be precluded from claiming his right in equity. — This ap- 
 pears clearly, from the cafe of "Warren and Warren, plaintiffs, 
 and Green, Hurtnall, and others, defendants. — Mary Warren, 
 the mother of the defendants, being poffeffed of the refidue of 
 a term for 99 years, in certain houfes and grounds in Briflol, 
 fettled them on Hurtnall, one of the defendants, and others, in 
 truft for herfclf, and afterwards to the ufe of the plaintiff John 
 Warren, her fon : fhe afterwards intermarried with the defendant 
 Thomas Green, and then Hurtnall, contrary to his truff, de- 
 Jivered up the fettlement, and the original leafe to Green ; 
 Mary was likewife feifed in fee for a moiety of other land?, and 
 died fo feized; and after her death. Green continued in poffelnon 
 of the lands and houfes j fome differences arifing between him 
 and John, one of the plaintiffs, concerning the fum of 81. and 
 other trifling matters, they were fubmitted to the arbitration of 
 Hurtnall, both parties entering into bonds for that purpofe : 
 Hurtnall awarded, that all fuits between them (hould ceafe, 
 and that before the end of Trinity term following Warren fhould 
 fufliciently convey and affure to Green, his heirs and anigns, all 
 his right and title to the moiety of the faid lands, and fhould 
 procure his wife to join with him in a fine before the end of the 
 faid term, in order to perfect the conveyance; and fhould fuffi- 
 ciently grant, convey, furrrender, and a!l:gn to Green, all his 
 right to the houfes in Brillol ; and that, 'till fuch conveyance 
 
 (aj Cootc V. Poolcy. Rol. Arb. ] (b) Rol. Arb. F. 8. 
 E.-7. I (c) Kc'.i; v. Lun. I K(.b. 569. 
 
 made.
 
 112 THE AWARD OR UMPIRAGE. 
 
 made, Green fhould continue in pofleflion, and fhould pay to 
 Warren iome fmall fums, amounting to 200I. whereas the pre- 
 mifes were worth more than loool. and that they fhould feal 
 mutual releafes to one another. 
 
 The plaintiff Warren exhibited his bill to have a re-convey- 
 ance of the premifes in Briftol, and an account of the profits fince 
 the death of his mother, and to have the award fet afide, as com- 
 prehending fubjecls not within the fubmiffion. 
 
 The court decreed, that Hurtnall and the other defendants, 
 the truftees, fhould re-convey the premifes j that Green fhould 
 account for the proRts, and that the bonds of fubmiffion fh-:)uid 
 ,be brought before the mafler and cancelled, (a) 
 
 Neither fhall an award affevSl the rights of nerfons not ;"ar- 
 ties to the fubmillion. Thomas Brown, on the day before his 
 marriage with Mary his intended wife, entered into a bond to truf- 
 tees for Mary, in the penalty of io,bool. conditioned, that if Mary 
 fhould furvive him, he would leave her 6000I. to be paid at three 
 payments within 18 months after his death ; but that if he fliould 
 purchafe lands to a certain value, and afiign the fame, together 
 with fome other property, to her, then the bond fhould be void. 
 After the marriage, the truflees delivered the bond to Mary, who 
 locked it up in her cabinet ; but the hufband, or fome one by his 
 order, opened the cabinet, and took away the bond and cancelled 
 it ; and he never performed the condition with refpeft to the pur- 
 chafe of the land. Brown had feveral fuits with the truflees, 
 which Vv'erc referred to arbitration ; general releafes were awarded 
 between Brown and the truftees, but the bond was not concerned 
 in the difputes, nor was any recompence made or intended to be 
 made to the wife by the award in fatisfadlion of the bond. 
 
 A BILL being filed by the widow againft the executors of 
 Brown, and thefe, with other circumflances appearing in the 
 caufe, the court confidering the award, and the releafes given in 
 confcquence of it, to have no relation to the bond, decreed, that 
 the widow fhould have the fame fatisfaction, and the fame benefit 
 
 (a') Julm anJ Ricliarc! Warren v. | fence of the decree, for the report is 
 Green, Hurtnr.l, et al. Ca. Temp. I not accurate. 
 Flr.ch 141. Tbis/tTOTJ to be the el- | 
 
 out
 
 THE AWARD OR UMPIRAGE. II3 
 
 out of her hufband's cftate, as if the bond had not been cancelled, 
 and the award had never exiftcd. (a) 
 
 The adherence to the rule, " that the award fhould not go 
 beyond the fubmi/Tion/' has not been fo literally ftridl, as to 
 overturn the award merely becaufe the words might feem too 
 comprehenllvc ; but if it might reafonably be prefumed that 
 nothing was in reality awarded beyond the fubmiflion, it has in 
 general been fupported. 
 
 Thus, antiently, " where the fubmiflion was of all matters 
 between the parties at the time of the fubmifHon, and it was 
 awarded that one of them fhould rcleafe to the other all demands 
 to a day fubfequent," it was held that this was void, becaufe a 
 demand might have accrued fuice the day of the fubmiiTion, v/hich 
 the arbitrator had no authority to order to be releafed. (b) Yet, 
 if in the fubmiiTioii there was a claufe running thus, " io that the 
 award be made concerning the premifes," or fomething equiva- 
 lent, and if the award was made with reference to that claufe, 
 this fhould controul the conflrucSlion of the award, and confine 
 the operation of the awarded releafe to difFerences exifting at the 
 time of the fubmi.Tion. (c) 
 
 So, where the fubmiiTion is of a part'uiiJar difference, when 
 there are other matters in controverfy, though an award of a ge- 
 neral releafe would have been void ; yet the burthen of fliewing 
 the exiflence of thefe was thrown on the party objecting to the 
 award on that account, (dj 
 
 The fubmiflion was, " of all fuits and controverfies between 
 the parties concerning the tythes of corn and hay in a certain 
 parifh. The arbitrator awarded, that the defendant fhould pay 
 to the plaintiff 401. before a certain day, in confideration of which 
 the latter fhould permit all fuits and controverfies depending be- 
 tween the parties to ceafe, and that they fhould be no further pro- 
 
 (a) Mary Brosvn, widow, v. Will. 
 Savasje et al. executors of her hufband. 
 Ca. Temp. Finch 184.. etvld. Id. 180, 
 441. 
 
 (b) Moor V. Bcdtl. Gouldfb. 91, 
 92, cited 10 Co. 131. 2. Jenk. 264. 
 Rol. Alb, B. <^. 
 
 (r; Vanlorev. Tribb. Rol. Arb. 
 21. Vid. 6 Mod. 232. 
 
 (d) 2 Mod. 309. Vid. Rous V. 
 Nun. I Sid, 154. Alablalter v. Clif- 
 ford. Rol. Alb. B. 23. Vid. Hob, 
 190. Gofle V. Browne. 
 
 I fecuted.
 
 114 THE A\VAR.D OR. UMPIRAGE. 
 
 feciited. The plaintiff having fet forth this award, averred, that 
 there were not any other fuits depending between them for the 
 tythes of the pariih. The defendant rejoined, that there were 
 fuits depending then between them, concerning a parcel of land 
 in the fame parifh, but no controverfy concerning the tythe. 
 When the cafe fird came before the court, they thought the 
 award bad, as extending to fubjects beyond the fubmifTion : on a 
 further hearing, however, the plaintiff had judgment, and a writ 
 of error being brought in the Exchequer chamber, the judgment 
 was affirmed, that court being of opinion, that the order " that 
 all fuits Ihould ce:ife," fhould be confined to fuits relating to the 
 tythe=, and void only for the refidue. (a) 
 
 Another branch of the general rule, 
 
 Muft not beofPa;-' " that the award mult be according to the 
 eel only of the Things fubmifTion," is, " that it muft comprehend 
 J'v.bmitud. every thing fubmitted, and mud not be of 
 
 parcel only, (b) The purpofe of the par- 
 ties in fubmitting if, to have a final determination of every mat- 
 ter comprehended within their fubmiffion : that purpofe is not 
 obtained when the award only com[)rehend.s a part. 
 
 Thic, hov/ever, muft be undcrilood with a confiderable de- 
 free of limitation ; for though the words of the fubmiffion be 
 more comprehenlivc than thofe of the av/ard, yet if it do not ap- 
 pear that any thing elfe was in difpute between the parties, befide 
 what is comprehended in the award, the av/ard v/ill be good. As 
 if the fubmifTion be of all actions real and perfonal, and the award 
 be only of actions perfonal ; it (hall be prefumed that no actions 
 real were depending betv/ecn the parties, (c) 
 
 So, it will be fufncicnt if the thing awarded neceffarily includes 
 the other things mentioned in the fubmiffion. As, where the 
 fubmiffion was of the rights t'ltlc^ and pojf'jfion of 20 acres of 
 land, and the arbitrators awarded that one of the parties fhould 
 enter into 10 acres, and have them to him and his heirs, and the 
 
 (a) Ingram v. Webb. . i Rol. 
 i<ep. 362. 2 Rol. Rep. 152. Cio. 
 Jac. 663. 
 
 39 H. 6. II. b. femb. cont. Brooke 
 Ai-b. 29. 
 
 (c) Vid.8 Co. 98. 19 H. 6.6.b. 
 
 (h) 19 n, 6. 6. Fhbt. Abr. 51. a, j Rol. Arb. L. 5. 
 
 Other
 
 THE AWARD OR UMPIRAGE. II J 
 
 Other fhould have the other lo acres for term of his life; thi* de- 
 ciuing apparent!/ only ihe poircfilon, yet ia fubilance compre- 
 hending the right and title, is a good award. ( uj 
 
 And where by a reference to fomcthing which the arbitrators 
 fiippofe done, but which is in fact not done, it turns out, that of 
 one particular point they have made no award, this ftiall not ren- 
 der the whole award void. 
 
 As where they awarded, that on one thing fubmitted to them 
 the parties {hould perform the award made by former arbitrators, 
 who had in fact made no award, (bj 
 
 So alfo, if the fubmiflion be of ail the premifcs, or of any par- 
 cel of them, in this cafe the arbitrator may make an award of 
 parcel only, (c) 
 
 If the fubmiffionbc of all matters between the parties, and the 
 award be made of all except a bond^ and of this the award be that 
 it fhall Itand, the award is good for the whole ; for the arbitrator 
 is not bound to difcharge the bond without caufe, and it fhall be 
 prefumed that there was nocaufc. (<!) 
 
 The condition of an arbitration bond was with a provifo that it 
 ftiould be made concerning the dilapidations of the parfonage ot 
 S. being and remaining in decay and ruin by the default and after 
 the death of A. B. clerk, w^hofe executor, one of the parties, was 
 late parfon there ; and alfo of and upon all and fmgular actions, 
 fuits, quarrels, debates, and ftrifes, had, moved or depending in 
 variance between the parties. 
 
 The award was, that the defendant, the executor, before a 
 certain day, (hould repair the dilapidations at his own cofts ; but, 
 in the award, the arbitrator protefted that he would not meddle 
 with any other actions, &c. befides. It was objected, that by 
 this proteftation the arbitrator had difabied himfelf to judge be- 
 tween the parties ; for that this differed from the cafe " of a fimple 
 fubmifTion, in words which, in their natural meaning, might ex- 
 
 (a) 10 H. 6. 6. Fhbt. Abr. 51. I (^l) H. 14 J^'c Benie v. Peirin, 
 a. Brocke+4. 45- l^ol- Arb. 51. a. I at Stii.aiifs Inn, judgment affirmeil 
 
 (b) 39 H. 6. 9. b. Brooke Arb. j on a writ of error. Cro. Jac. 40a. 
 2(j. Bridgeman, 91. Rol. Arb. M. 2. 
 
 (c) 39 H. C. II. b. Rol. Arb. I S. P. rtfolved in Sallows v. Girling. 
 L. 0. ! Cro. Jac.:;-. 
 
 I z tend
 
 u6 
 
 THE AWARD OR UMPIRAGE. 
 
 tend to two things, and an award of one of them ;" for there, in 
 favour of the award, it was to be prefumcd that no other matter 
 was laid before the arbitrator but that on which he had decided;- 
 but here it appeared, by the exprefs proteftation of the arbitrator 
 himfelf, that there were other matters in difputc befide the dila- 
 pidations, and he had not awarded according to the fubmiflion by 
 refufmg to take cognizance of thefe. In the report of this cafe 
 in Dyer, it does not appear whether the objedtion was confidered 
 as well founded, as it was not averred that any other matter was 
 in reality in difpute befide the dilapidations, nor is any judgment 
 there reported to have been given, (a) 
 
 But in another report of the fame cafe judgment is faid to have 
 been given for the defendant, the av/ard being void, (b) And on 
 anct|ier occafion it was held clearly by the court, that if arbi- 
 trators award for one thing, and fay that they will not meddle 
 vvith the reft, all is void, becaufe they have not purfued their 
 authority, (c) 
 
 With rcfpeil to the award being void or not, when It is made 
 only of part of the fubjciSts comprehended within the fubmiflion, 
 there is a diftindlion arifing from the form of the fubmiffion itfelf, 
 which runs through all the books, (dj 
 
 The fubmiflion is fometimes general of all matters in differ- 
 ence between the parties, without fpecification of any particular 
 fubjedb of difpute. Sometimes it fpeclfically enumerates the par- 
 ticulars. 
 
 Both forms are fometimes without any particular claufe pro- 
 viding for the arbitrators deciding on the whole ; and fometimes, 
 to each, fuch a conditional claufe is added, which, from the firft 
 words of it, when alllegal inftruments were in Latin, is called 
 the claufe of It quod: the words running thus : " So that the 
 award be made ' of and upon the pre?nifes,' before fuch a parti- 
 cular day." But it is not abfolutely neceffary, that, to produce 
 its proper effea, this claufe fhould exactly run in thefe words : 
 
 (a) Dyer, 216, 217. 
 (bj Benl, 
 
 (cj Dift. Barnes v. Greenwell. 
 Cro. EI.858. 
 
 (d) Vid. Cro. Jac. 200, 354- Hob. 
 
 49. 4 Leon. 49. 2 Saund. 292. 
 2 Lev. 3. 2 Keb. 759. 3 Lev. 413- 
 Cro. Car. 383. 2. Vent. 242, 243. 
 Salk. 75. pi. 16, Lutw. 552. 
 
 « of
 
 THE AWARD OR UMPIRAGE. 1 17 
 
 « of and upon the prcmifes" may be fupplicd by other vonis 
 equivalent i " fo as thc^/wf award be made and delivered by a 
 particular day" admit of a fimrlar conftru^tion, the " fame" hav- 
 ing a reference to every thing before mentioned. /<7J 
 
 A PROVISO, that the award be made on or before a certain 
 day, implies a provifo that it be made of the premifes, though 
 •that be not exprefled, and therefore all the qualities neceflhry to 
 conftitute a good award, where the provifo is full, are equally 
 neceflary in the other cafe, (b) 
 
 And where a provifion is made for the appointment of an um- 
 pire, in cafe of a want of decifion by the arbitrators, it is fufH- 
 cient that the claufe of ita qjiod be inferted with rcfpect to the 
 arbitrators, though it be not repeated with refpccl to the umpire ; 
 for the reference to the umpire is only an addition of time, and 
 not the conftitution of a diiiinil pov/cr. (c) 
 
 Where the fubmiflion is of certain things fpecifically named, 
 with this provifional claufe, the arbitrator ought to make his 
 award of all, otherwife it will be void. C^) 
 
 But where the fubmiflion is general of all matters in difference 
 between the parties, though there iTiould happen to be many fub- 
 je£ts of controvcrfy between them, if only one be fignified to the 
 arbitrator, he may make his award of that : he is, in the language 
 of Lord Coke, in the place of a judge, and his office '^^ ^^ oeter- 
 mine according to what is alledged and proved. It is the bufinef; 
 of the parties grieved, who know their own particular grievances, 
 to fignify their caufes of controverfy to the arbitrator j for he is a 
 Itranger, and cannot know any thing of their difputes but what 
 is laid before him. If any other principle i)revailed, many 
 awards might be avoided, fays the fame author; for one might 
 conceal a trefpafs committed, or other fecret caule of aflion, 
 which he had a-ainft the other, and fo avoid the award, which 
 
 (a) Cio. £1. 838. pi. 14. vid. Al. 
 52. 
 (b Lcev. Elkin. 13 W. 3. Lutw. 
 
 X02. 
 
 (c) J Kcb, 791, 865. I Lev. 140. 
 
 I J 
 
 (A) S Co. 93. Bafpole's cafe. S. 
 P. Humond V. Hatch. Goldfb. 115. 
 pi. 14. 19H.6. 6, Fhbt. Ai)i. 51. 
 a. Rol. Arb. L. 9. 
 
 would
 
 uS THE AWARD OR UMPIRAGE. 
 
 would counteratSl the very principle on which thefe domeftic 
 judgments are recognized by the law. (a) 
 
 And if, in the cafe of fuch a general fubmiffion, an award 
 concerning one thing only be made, it fiiall be prefumed till the 
 contrary be fhewn, that nothing elfe was referred to the arbitra- 
 tor, (b) 
 
 Pending an a£l:ion of trefpafs, the parties referred the mat- 
 ter to arbitration. The fubmilTion was, in general terms, o^ all 
 adlions, controverfies, and fuits between them : the award was 
 in thefe words — " Whereas there has been a fuit at law, between 
 the parties, that has run to a great expence on both fides ; and 
 it being left to me to make an end of it, I determine that they 
 Ihall each of them pay his own charges at law ; and that the de- 
 fendant pay the plaintiff five {hillings fur his making the firft: 
 breach in the law." 1 he defendant, by confent of the {plain- 
 tiff and leave of the court, pleaded this award, in bar of the ac- 
 tion ; one objCvSlion made to it was, that the fubmiffion pur- 
 ported to be of fcveral matter?, and the award was of one j but 
 the court held ur.animoufly, that as it appeared, that this parti- 
 cular fuit was depending between the parties, and the arbitra- 
 tor had decided on it, and the parties had not defired to be heard 
 on any more than this one ; there was no probable prefump- 
 tion that any other fubfifted between them fc) 
 
 And notwithftanding the provifional claufe inferted in a ge- 
 neral fubmiffion, it fhall not be prefumed, that any other dif- 
 ference appeared between the parties than thofe included in the 
 award, unlefs it be fliewn by the party cbjeiSting to it on that 
 account. — Thus, where the fubmiffion was of all matters de- 
 pending to the 29th of January, " fo that, Sec." and the arbi- 
 trators reciting that feveral matters were depending on the 
 29th of January, awarded, " of and concerning the premifes" 
 of all matters to the 28th of January; the award was held 
 good, becaufe it did not appear that any matter was depending 
 
 (a) 8 Co. 98. b. cited Hob. 49. 
 Rol. Arb, 1. 7. 8. Biownl. 63.2 pt. 
 309. 
 
 (i>) Vid. all thefe points adjudged. 
 
 Middleton v. Weeks. Cro. Jac. 200, 
 Oimlidcv. Coke. Cro. Jac. 355. 
 
 (c) Vid. the Cobler's Award, i 
 Bur. 274 et ftq. 
 
 on
 
 THE AWARD OR UMPIRAGE. II9 
 
 on the 29th which was not depending before the 28th, nnd be- 
 caufe, without fpecial matter fhcwn, it fhould be intended a 
 good award, with the averment, that it was made "of and upon 
 the premifcs. f^J 
 
 The fame determination has been given in may other fimilar 
 cafes, Cb) and in one it was foid by the court, thut there was no 
 occafion for an averment, that thefe were all the matters de- 
 pending at the time of the fubmiflion ; " nov/ depending" could 
 not be, unlefs they had been in fuit before tlie 29th ; becaufe 
 " a fuit cannot be faid to be begun and depending all on the 
 fame day." — I cannot, however, fubfcribe to the accuracy of 
 this obfervation, nor can it at all apply to any other cafe, v/here 
 the diftance of time between that mentioned in the award, and 
 the date of the fubmiflion is more than one day. 
 
 Though the provifional claufe be infcrted in a general fub- 
 miffion, yet it v.'ill be no objedion to the award, that the arbi- 
 trator had notice of a demand of a certain fum by one party 
 againfl the other, and that he made no award of that, if in other 
 refpe>51s the award be good. Thus, where the award was, that 
 the defendant (liould pay to the plaintift'fcveral particular fums, on 
 fo many diftinft accounts, and that on the payment of fuch fums, 
 they fhould give to each other general releafcs. The defendant 
 pleaded, that the plaintiff was indebted to him for fees and dif- 
 burfcments as an attorney in the fum cf ^1. that before the 
 award made, he gave notice of this demand to the arbitrator, and 
 offered to make it appear to him, and prayed that he would al- 
 low him that in the award; hut that the arbitrator made his 
 award as fet forth by the plaintiff, without any allowance made, 
 or confideration had of the faid 4I. notwithftanding the notice; 
 but it was held, that this was no objedtion to the award, becaufe 
 the arbitrator was not bound to make the allowance, as he 
 might confider it as not a jult claim ; he was the proper judge 
 
 (n) T. - Cnr. ?,. R. Ward v. 
 Unwin. Kol. Aih. B. 24. Cto. Car. 
 
 (/-; BufsficLl V. BufsJkld. Cio. 
 
 Jac. 5 ■'7. Ley v. Pavnes. H. 15 
 Jac. ct cod. term. Maye v. Gaimid. 
 Kol. Alb. M. 5. Hob.S. C. 138- 
 
 I 4 wheihcr
 
 I2P 
 
 THE AWARD OR UMPIRAGE. 
 
 whether it ought to be allowed or not, and he had given his judg- 
 ment by ordering general releafes. (a) 
 
 An award of one particular thing, for the ending of a hun-r 
 dred matters in difference is fufficient : as, where the fubmiflion 
 was of all matters in controverfy, and the award taking notice 
 pf feveral matters, ordered the defendant to pay to the plaintiff 
 four pounds, for arrearages of rent, and towards the repair of the 
 houfe ; this was he'd fufficient. (b) 
 
 Iw the cafe of a fubmiffion of fpeqific fubjecls of difference, 
 if no condition be annexed that the award fhall be made " of 
 and concerning the premifis," it is faid the arbitrator may make 
 his award of any of them, without confidering the others, (c) 
 This, however, appears to be a hard meafure of juflice, unlefs 
 it be accompanied with the qualification allowed in the Romarj 
 law, even in the cafe of a general fubmiffion ; by which, if one 
 of the parties had omitted to affert any particular claim, and the 
 arbitrator of ccurfe miade his avi-ard without conndcring that de- 
 mand, the party was not barred by the award, from afterwards 
 enforcing the claim omitted, by a fuit in the ordinary courts, (d) 
 And indeed there is a cafe reported, in modern times, which, 
 as far as a decifion at nifiprhn^ reported by one whofe authority 
 is not the mod refpe£led in Weffminfter Hall, can be confidered 
 as an authority, diredly contradicts the general principle here 
 laid down, (e) This was an adion of debt, on a bond condi- 
 tioned for the performance of an award. At the trial, the 
 Chief Juftice is reported to have faid^ that the arbitrators were 
 bound to make their award on all matters between the par- 
 tips which had been laid before them, though there was no 
 
 (^a) Birks v. Trippet. i Saund. 
 32,33- 
 
 (b) Hopper V. Hacker, i Keb. 
 738. I Lev. 132, 133. 
 
 (c) 8 Co. 9S. a. M. 5 Jac. Mid- 
 dleton V. Weeks. Rol. Arb. L. 2. 3. 
 Pi£t. prMaynnrd. 2 Vern. 100. 
 
 (d) De rebus controveifiirque om- 
 nibus coinpromifTum in arbitmm a 
 Lucio Titio et Mcevio Sempronio 
 taclum eft, fed errore quaedam fpecies 
 
 in petitlonem a Lucio Titio dedu61a5 
 non funt, nee arbiter de his quicquam 
 proniinciavit : quaEfitum eft an fpecies 
 onii/Tae peti poffint ? Rel'pondi, peti 
 poffe nee pccnam ex ccmpromiflb com- 
 mitti 5 quod fi maligne hoc fecit, pe- 
 tere quidem poteft, fed pcenx fubju- 
 gabitur.— Ff. 1. 4. t. g, f. 43. 
 
 (e) King V. Hammerton. 2 Geo, 
 2. I Barnard. K. B. 316. 
 
 provi-
 
 THE AWARD OR UMPIRACC. I2l 
 
 provifional claufe of " //« quod.'' And the arbitrators having 
 gverlooked foine matters that had been laid before them in the 
 prefent cafe, a verdid WiS given for the dv-fendant. 
 
 As it is of feveral particular things, fays Lord Coke, (a) fo it 
 \s of feveral particular perfons, and therefore, if two on one fide, 
 ?ind one on the other fu'omit, the arbitrator may make an award 
 between one of the two of the one part, and the other of the 
 other part, and it will be good, (h) 
 
 Therlfore v/iiere the fubmiilion was by two plaintiffs on 
 pne fide, and defendant and his wife of the other, of all matters 
 and controverfies betv/een them, " or any of them ;" the award 
 was held good, though nothing was awarded concerning the de- 
 fendant's wife, on account of the words, " between them, or any 
 of them." (c) 
 
 So, if A and B on one fide, and C on the other, fubmit to 
 the award of J. S. of all matters between them ; J. S. may make 
 an award of any matter between A alone and C, for the 
 fubmiifion fliall be taken diftributively, and perhaps there was no 
 matter between B and C. fdj 
 
 A SUBMISSION of all matters between the parties, when there 
 are more than one on one fide, is the fame as a fubmiffion of 
 all matters between the parties, or either of them ; and there- 
 • fore, on fuch a fubmiffion, an award of a fum to be paid by one 
 of the two to the lingle party, is good ; though it was objeciied, 
 that the fubmiffion muft be underfiiood of joint demands, and 
 that therefore an award of a I'eparate debt was not within it. (ej 
 
 But if, in fuch a cafe, it appear in the fubmiffion, that there 
 were differences between the perfon on one fide, and all the par- 
 ties on the other, and the fubmiffion be with the provifional claufe ; 
 the award muft comprehend all the parties, becaufe the fubmif- 
 fion is under a condition that it fhall do fo. (f) 
 
 (a) 8 Co. 9S. a. 
 
 (b) Vid. 2 R. 3. 18. Brooke 44, 
 cited Plowd. 289. 1 Kcli. 885. con- 
 tra. I Lev. i.iQ. Bean V. Newbury. 
 16 Car. 2 B.R. 
 
 (c) Ha.iLes 399. 
 
 (dj Araoia V. Pole. Rcl. Arb. 
 
 D. 5. Carter v. Carter, i Vern. 
 259. 
 
 (e) Althelftonev. Mooneet Willii. 
 C<jmyns 547. 
 
 (J) Harris v. Paynter. P>.ol. Arb. 
 O. S. cited Lutw. lOiS. 
 
 Tki«
 
 122 THE AWARD OR UMriRAGE. 
 
 This diftindion, " with refpeil to the fubmifllon being con- 
 ditional or not," is faid not to hold in the cafe of a reference by 
 a rule by confentof parties in a court of equity ; for there, it is 
 faid, unlefs the award comprehend all matters referred, it will be 
 fct aiide, as not being a determination purfuant to the terms of the 
 reference, (a) Perhaps fomething like a reafon may be given 
 for this apparent difference in the docflrine held on the two dif- 
 ferent fides of the Hall. — And perhaps the difference is more in 
 appearance than in reality.— In the conditions of fubmifllon 
 bonds, though there may in fad be but one fubjecft of difpute 
 between the parties, yet a great variety of general and compre- 
 henfive words is frequently inferted, which would, if in fadt 
 there were ever fo many fubjc6ls referred, include them all; 
 but the inicrtion of which does not imply the exiftence of more 
 than one. The courts of law, therefore, do wifely in impofmg, 
 on the party objecting to the award for this caufe, the burthen 
 of fnewing, that in fa6l a greater number of things were laid 
 before the arbitrator, than he has determined : but when the re- 
 ference is by rule of a court of equity, greater preclfenefs is 
 probably cbferved in the defcription of the fubje6ls referred, and, 
 by omitting to decide on any, the arbitrator does not fulfil the 
 intention of the court, which is to have as final a determi- 
 nation by his avv'ard, as would have been made by a decree. 
 
 Or if the rule be drawn up in general terms, it cannot be 
 lefs neceflary in a court of equity than in a court of law, for 
 the party objecting to the award, becaufe it is lefs comprehen- 
 five than it ought to have been, to fhew accurately that fome- 
 thing was in reality in difpute which is not comprehended in the 
 award. 
 
 If an av/ard be of any thing which is 
 
 M:tjl not be of anf againft law, it is void, and the parties not 
 ^'hing againft Lavj. bound to perform it. (b) As by the Roman 
 law no penalty was incurrred by non per- 
 formance of any thing awarded which was diftionourabIe.(^<:>) 
 
 fa) Hide V. Petit, i Ca. Ch. i86. ij.i^^tores, fi arbiter aliquid non ho- 
 
 Colwel V. Child. Id. 87. „^,,t^,,,^ ■ ^jy^.j.jf^ p^- i_ t. 8. f. 21. 
 
 ^^yi9E.4'. I. Kol.Arb.G. ,^_ ^^ ^^ 
 
 (ij Non dcbcnt autem obtcmpeiarc 
 
 And
 
 THE AV.'ARD OR UMPIRAGE. 123 
 
 And it wns once held, that an award of a recompence for 
 an injury, for which no damages arc recoverable at law, was 
 void : thus an award, " that the defendant fhould pay the cofts 
 of a fuit, inflituted againft him for words," was held to be void, 
 if the words were not adlionable ; and for that reafon it was ad- 
 judged, that the words ought to appear in the award, that the 
 court might determine whether they were adtionabie or not. (a) 
 
 But this has fince been denied to be law, and it has been 
 held, that the plaintiff" is not bound to fhew that there was caufe 
 of aftion, that being left to the arbitrators to determine, who 
 have power to award damages, though, in point of law, there 
 was no caufe of action, becaufe the parties have made tiic arbi- 
 trators their judges, (b) 
 
 An award of a thing which it is not phy- 
 ftcally or morally in the power of the party Mufl not be of a 
 to perform, is void ; as that he ftiall deliver Thing imj>offibU. 
 up a deed which is in the cuftody or power 
 of a perfon over whom he has no controul : [c) that he fliall pro- 
 cure a ffranger to be bound with him for the payment of a fum 
 of money ; for he cannot compel a flranger to be bound for 
 him : or that he fhall procure the juftices of the Common Pleas 
 to fit, in order that he may levy a fine : (d) or that he fliail pro- 
 cure the lord of a manor to grant a copyhold, or a ftranger to 
 make a releafe or confirmation of an eftate ; (e) or to pay a fum 
 of money at a day which was paft at the time of the award ; (fj 
 but in this cafe he ought to pay the money, the payment being 
 the efience of the award, and not the payment on a particular 
 day : or that he (hall cnier into an obligation to the other /;//- 
 mediately after the award ; for fome time is neceflary. (i) Yet 
 perhaps at the prefent day " immediately " would be con- 
 ftrued " within a reafonable time." An award, however, that 
 the one party fliall infcotithe other in an acre of land, and im~ 
 
 (a). Vid. 1 Sia. 12. 
 
 (b) Hanl'on v. Liverfedge. 2 W. 
 and Mary. 2 Vent. 243. 
 
 (c) 12 Mod. 585. 
 
 (d) 19 Ed. 41. I. Rol. Alb. F.2. 
 3-4. 
 
 (>•} 2S H. 6. Mo. 3. pi. 3. 
 (f) 8 Ed. 4. I. Rol. K. 17- 
 (O 18 Ed. 4. 21. Rol. Alb. E. 
 II. I. 
 
 mediately
 
 124 '^'f^E AWARD OR UMPIRAGE. 
 
 mediately after deliver up the tide deeds ; or enter into a bond, 
 and immediately after pay the money, would be good, becaui'e 
 neither of them is impoiTible. (a) 
 
 But an award, that the defendant fliall be bound with fureties, 
 fuch as the plaintiff" fhall approve, is void ; for it may be im- 
 poffibie to force th'j approbation of the plaintiff, (b) 
 
 So, we are told, an award is void which orders the party to do 
 fomething v/nich has been already done, or which, if it were 
 done, would not be effedtual to anfwer the purpofe intended : 
 as if it be awarded, that A fhall releafe to B the furety of the 
 peace which he has againll him in the King's Bench, when, \r\ 
 fa£l:, before that, B has purchafed a fuperfedeas out of Chancery, 
 directed to the juftices to difcharge the fureties in the King's 
 Bench, becaufe he had found fureties in Chancery, and the juf- 
 tices has accordingly difcharged them. — Or if it be awarded, that 
 he fhall releafe his fuit againft B, v/hen in fadt he had no fuit 
 againft him ; or that he fhall releafe all his right in a certain 
 manor, when in faft there is no fuch manor, or he has no right 
 in it. (c) 
 
 And in general, in this refpefl, a diftinflion is made between 
 the cafe of a bond, and that of an award ; for if a man bind 
 himfelf to do a thing which it is not in his power to do, it is 
 reckoned his own folly, and he forfeits his bond by non perform- 
 ance : but the duty of an arbitrator is to judge reafonably and 
 impartially between the parties, and he departs from that prin- 
 ciple, when he orders any thing which it is not phyficallv or 
 morally in the power of the parties to do. (dj 
 
 But it is no objedtion to the award, that it is difficult for 
 the party to perform it, from the accidental narrownefs of his 
 circumftances ; as if it be to pay zol. when he is not worth ?, 
 groat, or to give 20 tons of wine when he has not one. fcj 
 
 And, if the party's doing that which is awarded will have 
 
 (a) :S Ed. 4. 21. Rol. Arb. fdj 19 Ed. 4.1. RoI.Arb. F. 
 E. II . 2. 2. 3. 
 
 (b) 3 Mod. 272, 273. (e) Id. ibid. cont. 18 Ed. 4. i, 
 ('f; zi Ed. 4. 33. 39. Br. Alb. RoI.Arb. E. II. 2. F. 2. 
 
 40. 
 
 weight
 
 THE AWARD OR UMPIRAGE. 12; 
 
 ■weight with the court to give cffeil to it, he ought to do it; 
 as in the cafe of releafing the other from furetics of the i)eace, 
 where he is bound to keep the peace towards the re!eafor and 
 all the king's fubjecls ; though, by his relcafe, he cannot dif- 
 chargc the party fo bound, becaufe every fubje»5lhas an intereft 
 in the recognizance : (a J yet he ought to releafe, becaufe his re- 
 leafe fhewn to the court will be an inducement to them to dif- 
 chargc the recognizance, (If) 
 
 In the cafe too, of an award that one of the parties fhall 
 procure a ftrangcr to do a thing, a diflinction is taken between 
 the cafe, where he has no power over the ftranger to compel 
 him, and that where he has pov/cr, either by the common law, 
 oi by bill in equity. In the former cafe the award is void, for 
 fo much as concerns the ftranger. In the latter it is good ; as 
 if a ftranger to the fubmiffion be feifcd to the ufe of one of the 
 parties, and the arbitrator award, that the latter fhall caufe the 
 feoffee to ufes to give a releafe to the other who is in pofleflion? 
 this is good, becaufe the cr/ii^y que ufe has fuch intereft and power 
 over the feoffee, that by fubpoena out of Chancery he can com- 
 pel him to releafe. (c) 
 
 So, if it be awarded that one fhall pay a fum of money to 
 the other, and that in confideration of that he ihall acquit him 
 of a bond in which they are both bound to a third [^erfon ; here, 
 though a third pcrfon be in fome meafure to concur, yet it is 
 held, that the avi^ard is good ; for if the penalty of the bond be 
 not incurred, he may difchargc the principal fum at the day j 
 if the penalty be forfeited, he may pay, and compel the obligee in 
 equity to deliver up the bond, (d) The fame obfervatioa ap- 
 plies to an award that one of the parties fliall difcharge die 
 other of his undertaking to pay a debt to a third perfon. (e) 
 On the fame principle, it is faid, that, admitting no objection 
 will hold to an award of a difcontinuancc, c>r of a nonfuit, on ac- 
 
 (a) 21 Ed. 4. 40, 41.. 
 
 (b) 2 Hawk. Leach. 257. Quic. 
 et vid. as to the releafe of fureties of 
 the peace. Jeiik. 136. 
 
 (CI i7Ed.4. s. b. Rol.Arb. F. 1. 
 
 id/ Daifey v. Clip/liaiu. March- 
 18, I Rol. Arb. page 248. n. it, 
 vid. ante page. 
 
 (t) Bcckct T. Taylor. 1 Mod, 9, 
 
 count
 
 126 THE AWARD OR UMPIRAGE. 
 
 count of its not being final, fucli an award is good j though there 
 muil: be an acl of the court, for it is in the power of the party, 
 lays Rolle, to make default, or to deny the action, (a) 
 
 As an award muft not be of a thing Im- 
 Mufi he reajoR^ pofTiblc, fo neither muft it be of a thing un- 
 oble. reafonable. Therefore an av/ard, that the one 
 
 party fhall fcrvc the other for any period of 
 time, is void ; for it is unreafonable, as being contrary to the 
 firft principles of civil liberty, (h) On the fame principle, an 
 a%\'ard is void which orders the party to do a thing, in the per- 
 formance of which he may fubjeiSh himfelf to an adion from 
 another : thus, in the times of ancient nicety, an award was 
 confidered as void, which ordered the party to pay money " in " 
 the hour^ of a ftranger, becaufe he could not enter the houfe of 
 a Granger without committing a trefpafs. But, that he fhould 
 pay the money " at " or " near " the houfe, was held good, be- 
 caufe he might go to the houfe without entering it and com- 
 mitting a trefpafs : (c) unlefs the owner of the houfe has land 
 adjoining to it, fo that the party cannot come to the houfe with- 
 out trefpailing on the land, for then the award was confidered as 
 void, (d) But even in thofe times, if the houfe at which the 
 payment was to be made was a common inn, the award was 
 confidered more favourably, (e) And now an award to pay at 
 or in the houfe receives the fame conftruftion, and is taken to 
 imply a licence to go to the houfe; (f) efpecially, if it be in 
 the houfe of the arbitrator himfelf, for there a licence fliall be 
 prcfuraed. (g) Or at leaft the party may pay at the door of the 
 houfe, if he cannot obtain permilTion of the mafter to pay it in 
 the houfe. (h) It is on the principle of being unreafonable, 
 that an award, " that one of the parties fhall pay only part of 
 a debt due," has been confidered as void, if it appeared on the 
 
 (a) Rol. Arb. F. 5. 6. 
 
 (b) 9 E. 4. 44.. Rol. Arb. B. 12. 
 
 (c) Rol. Arb. E. a. where many 
 cafes are cited. Linl'cy v. Alb ton. 2 
 J-5ul;i. 39. Anon. 1 Kcb. 92. Rol, 
 Arb. F. 10. iRcl.Rep. 6. 
 
 (d) Tavcrner v. Sklngley. Rol. 
 Arb. E. 3. 
 
 (e) S. C. Cro. Car. 226. ' 
 
 (f) Alley V. Cox. 27 Car. 2. 3 
 Keb. 4"' 9. 
 
 (^) Freenn. 205. 
 
 f/i^llollauJ V. Hdvvis. 3 Lev. 153. 
 face
 
 THE AWARD OR UMPIRAGE. 127 
 
 face of the award, that more was really due. C^jJ But where it 
 does not ai)i)ear by the award, that a larger Turn is really due, but 
 that it is only in demand, an award of a lefs fum is good. And 
 if the fubinifTion be of all matters in difference, though the ar- 
 bitrator do not dircdtly ta^-e notice of any other matter but 
 the demand of the larger fum, it fhall be prefumed, in fupport 
 of the award, that the arbitrator faw, upon the whole, that no- 
 thing more was due than he has given. Thus, where, to debt 
 on bond for performance of an award, the defendant pleaded 
 *' no award made;" and the plaintiff in reply fet forth an award, 
 in which the arbitrators took notice of 72I. being in contro- 
 V(.rfy for rent due, and awarded 50I. in full fatisfaction and ge- 
 neral releafes to be given; but it did not appear by the award, 
 that any other matter had been in controverfy, though the fub- 
 miffion was general. The court were of opinion that the 
 award was good ; and further remarked, that it was fmgular the 
 objedtion fhould come from the defendant, in whofe favour the 
 award was; for by his objection he infifted on paying 72I. in- 
 ftead of 50I. The ftrength of the obje£lion, however, muft 
 have been, that the award for a lefs fum was void, bccaufe pay- 
 ment of the lefs fum in purfuance of it, if the award was not 
 good, would not be a bar to the plaintiff in another aclion for 
 the original debt, (bj 
 
 On the fame principle, of being unjuft and unreafonable, it 
 has been held, that, where the queftion in difpute was the taking 
 away of the plaintiff's goods, an award " that he Ihould have 
 part of them returned, and that the defendant fhould retain the 
 reft," is void. fcJ—But if it had appeared that there was a difpute 
 about the property of the goods, an award " that the plaintiff 
 Ihould have part, and the defendant fliould retain the reft," 
 might ha\ e been fuftained ; for then it muft have been under- 
 ftood, that the arbitrator adjudged the property of fo much as 
 he ordered to be retained, to have been in the defendant. 
 
 faj Coot. 45 FaI. 3. 16. where 
 it is by limple contrail. Bi . 4+. I). 
 ace. Kol. Alb. J. 4. 
 
 {!>; GodlVcy V, Godfrey, z Mod. 
 304. 
 
 (cj Cont. M.45E. 3. 16. Br. 44. 
 b. Ace. Rol. Alb. P5.
 
 128 
 
 THE AWARD OR UMPIRAGE. 
 
 An award muft not be of a thing which is 
 Muji be adv&n- merely nugatory, without any advantage to 
 tageeus. the parties j therefore an award that one of 
 
 them fhall go to Rome, or to St. Paul's, is 
 void, for it can be of no fervice to the other, (a) So, if a man 
 and a woman fubmit to arbitration, and it be awarded that they 
 Ihall intermarry, this is not binding ; for one reafon, among 
 others, that it cannot be | refumed to be advantageous to them, (b) 
 So, it is not a good award that one fhall give a releafe to the 
 other of land in fatisfaclion of an action, if he to whom the re- 
 leafe is to be made has nothing in the land at the time, for that 
 can be of no fervice to him. But, in fuch a cafe, if he to whom 
 the releafe is to be made be feifed of the land, fuch an award will 
 be good, though he who is to give the releafe has no right in it; 
 for it is an advantage to have fuch a releafe, to bar the releafor 
 if he fhould afterwards pretend to have title to the land. So, if 
 before fubmiflion, one of the parties had executed a releafe made 
 in favour of the other, but had retained it in his own hands, and 
 then, on fubmillion of all matters, the arbitrator had awarded 
 that he fhould deliver up all the evidences concerning the land, 
 in fatisfadtion of a certain adion j if he had not delivered the 
 releafe, this would have been a breach of the award ; the award 
 is good, though it be only to give the party his own evidences, 
 it being an advantage to him to have them without an adlion. (c) 
 Mutual relcafes are advantageous, and therefore an award 
 of them is good ; and the condition of a bond to {land to an award 
 will be broken, by not giving them, though there be no other 
 means of compelling performance than by an adion on the 
 bond. (d) 
 
 But the courts formerly went further than merely to require 
 that an award fhould be advantageous; they required that it 
 fhould give fomething which appeared exprefsly to be a recom- 
 pence to the plaintiff againfl whom it was pleaded. On this 
 
 Z'^; 9EJ. 4.44. Rol. Alb. J. n. 
 (b) Id. ibid, et Rol. Arh.'J. 10. 
 (cj Vid. all thefc points adjudged, 
 
 9 E. 4. 44. a. b. Rol. Alb. J. 10, 
 II, la, 13, 15. 
 (d) Id. ibid, etvid. Freem. 51. 
 
 principle,
 
 THE AWARD OR UMPIRAGE, I29 
 
 principle, it is held in many phcc^^(a) that an award that each 
 party fhall be quit againit the other of the trefpafTcs committcil 
 on one another, hecaufe thcle trefpalFes were equal, is not a bar 
 to an adtion by one of them for the original trefpafTes, hecaufe, 
 fay the books, one muft have a rccompence. In other places, (b) 
 however, fuch an award is held to be good, as indeed there feems 
 no rational objeilion to it. On the principle of a recom pence 
 being neceflary, an award " that the plaintiff fhall have his goods 
 again, wliich had been taken by the defendant," it is faid, is not 
 good, becaufe it gives no fatisfaction for the taking and deten- 
 tion ; (cj but, that if it be added that they fhall be carried to fuch 
 a place at the expence of the defendant, this is a fatisfaflion : it 
 is, however, no more a recompence for the taking and detention, 
 than the award without the addition of this claufe. 
 
 Even in thofe times it was allowed, that an award, that 
 " whereas each is indebted to the other in 409. the one fhall go 
 quit againft the other is good, becaufe it is a fulMcient fatisfac- 
 tion. C(/) 
 
 If on a fubmifTion of a trefpafs, it is faid, the arbitrator award, 
 that if the defendant will fv/ear that he is not guilty, he fhall go 
 quit, and he accordingly fvvear, this is not a good award, and 
 cannot be pleaded to an adiion of trefpafs, becaufe, fays the 
 book, (c) nothing is awarded to be paid ; or rather, fays Rolle, Cf) 
 it cannot be intended to be the fame trcfpafs of which he waged 
 his law. 
 
 As the intention of parties in fubmitting their 
 difputes to arbitration, is to have fomeih ng af- ^V.v,? h certain, 
 certained which was uncertain before, it is a ge- 
 neral rule that the award ought to be \o i)lainly exprefied, that 
 there may be no uncertainty in what manner the parties are to 
 put it in execution, but that they may certainly know what it 
 
 (a J 43 Ed. 3. a8. b. 29. a. Biockc, 
 44. I). Rol. Alb. J. 1. 21 H. 6. zi H. 
 6. 39. a. 9 Eti. 4. 44. Fhbt. 51. 
 b. 
 
 (b) 10 H. 6. 14. Br. 43. 19 Ed. 
 4.8. Br. 38. Rol. Alb. J. 7. 
 
 fc; II H.7. T4, 15. Vid.45Ed. 
 3.16. Rol. Alb. j. 3. Br. 3a. 
 
 (J) i9H.6.37.b, Rol. Alb. J. 6. 
 
 (c) 46 Ed. 3. 17, . Fhbt. 52. b. 
 Biookc, 44. b. vid. Rol. Arb. i. z. 
 
 if J Rol. Alb X. 7. 
 
 K is
 
 r?<5 
 
 THE AWAP.D OR UMPIRAGE, 
 
 is they arc ordered to do. It is to no purpofe, fays the civil- 
 law, CaJ that the arbitrator fliould pronounce an uncertain award ; 
 and the Engliih law has, in this refpedt, adopted the fame lan- 
 guage. CbJ Therefore arr award, " that one of the parties fliali 
 pay the other for certain tafk work and days work, without men- 
 tioning the fum," is void, fcj 
 
 The plaintiff sikI defendant having certain difputes concern- 
 ing a piece of land, fubmitted them to arbitration. The arbi- 
 trator awarded, amongft other things, that the defendant fhould 
 enter into a bond to the plaintiff", that the plaintiff and his wife 
 fhould enjoy the land ; this was held to be void, becaufe the ar- 
 bitrator had fixed no certain fum for the penalty of the bond i 
 and there was no means by which the fum could be afcertained ; 
 for it was held, that this did not refemble the cafe of a covenant 
 by the party himfelf, to enter into a bond for the enjoyment of 
 land, in which, if no fum be expreffed in the covenant, it is im- 
 plied that the penalty fhall be equal to the amount of the land, (d) 
 
 Two fubmitted all matters in controverfy between them» and 
 it was awarded that the one fhould pay to J. S. the one half, and 
 the other the other half of a certain debt due to J. S. by two 
 ftrangers, who were bound to J. S. at the requeft of the two 
 fubmittants ; though the fum in which the two ftrangers were 
 bound was averred in the plea in which this award was pleaded^ 
 yet two juftices againd: one(e) held the award was bad, for un- 
 certainty in not having mentioned the fum. But one Cf) of the 
 two thought that this might have been aided, by an averment 
 that the two flrangers were bound to J. S. in no other obligation 
 but this, (g) 
 
 (a) Pomponius ait, inutiliter arbi- 
 trum incertam fenteRtiam dicere ; ut- 
 puta, quantum ei debes redde, divi- 
 iioni veftrae ilari placet, pro ea parte, 
 quam creditoribus tuis folvifti, accipe. 
 Ff. 1. 4. t. 8. f. 21. n. 3. 
 
 (bj 10 Ed. 3. 18. 5 Co. 77. b. 
 78.3. 
 
 fc) Pope V. Brett. 2 Saund. 292. 
 «93. 
 
 (d) Samon's cafe. 5 Co. 77, 72, 
 Rol. Arb. Q^ i. 4- Cro. El. 432. 
 pi. 40. Mo. 359. pi. 489. 
 
 (e) Dodcridge and Houghton, 
 
 Montague c contra. 
 
 (f) Houghton. 
 
 (g) Gray v. Gray. Rol. Arb, 
 0^2.3. Cro.Jac,525. Godb. 275, 
 
 The
 
 THE AWARD OR UMPIRAGE. tjl 
 
 Tht. fubmiflion was " of all controverfies concerning the right, 
 title, and pofTeiTion of 200 acres of landj called Keljhrne L'lnge ; 
 it was awarded, that in the xvajle lands of the vill of Kelftorne, 
 the one (hoald have the brakes growing there during his life, pay- 
 ing to the other 2s. per annum, but in the award no name was 
 given to the land where the brakes grew ; and for this reafon the 
 award v/as held to be void for uncertainty, nor would the court 
 admit the aid of an averment, that the land where the brakes 
 grew " was the faid land called KcUlorne Linge in the fub- 
 miflion, and no other nor diverfe:" becaufe they faid they could 
 not expound the intent of the arbitrators, (a) 
 
 The condition of a bond being to perform the award of J. S. 
 made between A. and B. of all controverfies and demands be- 
 tween them, it was awarded, " of and concerning the pj"emifes,** 
 that A. fliould permit B. to enjoy certain leafes of certain lands 
 then in his pofleffion, which were the lands of W. S. and then 
 the inheritance of A. — B. paying the rents, and performing the 
 covenants in the leafes, and that B. fliould pay the arrears of 
 rent due to A. after his purchafe : notwithftanding an averment 
 that there were two {hillings of the arrears of rent then due, the 
 award, as to the payment of the arrears, was held void for un- 
 certainty, becaufe it did not appear by the av/ard, at what time 
 after the purchafe, the rent became due j for that B. the leflee, 
 could not know at what time A. the plaintiff, purchafed the re- 
 verfion of W. S. nor had he any means of knowing it, unlefs A. 
 or W. S. would inform him, v/hich he could not compel them 
 to do. (b) 
 
 Perhaps, in the three laft cafes, the courts appear to have 
 been abundantly nice ; the fame obfervation docs not apply in 
 an equal degree to fome of thofe which follow. 
 
 '1^0 an adlion on the cafe for the value of a quantity of malt, 
 the defendant pleaded a fubmiflion to arbitration, and an award 
 that he fhould pay to the plaintiff fo much for each quarter as a 
 quarter of malt was then fold for ; the award v/as held to be void 
 
 fa) El. 241. 52. per curiam. Rol. Arb. 0^5- 
 
 (I') Mallc-y V. Aubiey, afier vcrdlft for the plaintiff. Rol. Arb. (^9. 
 
 K 2 for
 
 T^i THE AWARD OR UMPIRAG'E. 
 
 for uncertainty, becaufe it was not mentioned in what place'thcr 
 price was to be taken, and perhaps in one market it might b« 
 fold for a greater price than in another, ("a J 
 
 An award, " that the defendant fhall deliver certain goods 
 particuhirly named, and three boxes, and y^x/^ra/ books, without 
 naming the books," is liable to the fame objedlion of uncer- 
 tainty : the books ihould have been particularly defcribed, un- 
 lefs it had been faid that the books Vfere within the boxes, by 
 which they would have been fufficiently afccrtaincd. (h) So, aa 
 award, 'that one of the parties fliall deliver up to the other a cer- 
 tain writing obligatory, or a certain bill obligatory which he had 
 before," is altogether uncertain,. for it does not fay of what fum, nor 
 of what penalty the bond is, nor of whom it w^is obtained. CcJ 
 
 l^HE fame thing has been faid of an award "that one of the 
 parties fhould give fecurity for the payment of a fum of mo*, 
 ney," either in one=grofs fum, or at different fpecific times, or 
 annually for life ; becaufe, it is faid, he cannot tell what kind 
 of fecurity is meant, whether by bond or othervvife. (dj 
 
 It was awarded, that " one party foould pay a certain 
 fum to the other, by different payments at feveral days, the laft 
 of which payments fhould be two years after the award, 
 and that on the laft payment, the payee fhould give a re- 
 leafe of all anions to the day of the date of the releafc \ 
 it was much debated, whether the objection of uncertainty 
 fhould prevail againft this award. The judges who argued in 
 favour of the exception, and who compofed the majority, (e) 
 argued in this way : It is uncertain v/hat the date of the releafe 
 was intended to be ; if it be on the day of the lafl payment, the 
 award of the releafe itfelf is void, becaufe many caufes of action 
 may have accrued fince the time of the fubmifTion ; and if it 
 rnuft be left to the election of the party himfelf to give fuch a 
 releafe as will be good, that is, with a date at the day of the 
 
 fa) Hurft V. Bambriclge. Rol. 
 Alb. 0^7. 
 
 (b) Cockfon v. Ogle. 13 W. 3, 
 Lut'.v. 550. 
 
 (c) Bedam v. Clerkfoa. i Ld. 
 Raym. 114. 
 
 (d) Diiportv, Wildgoofe. iBulftr. 
 260. Thynne v.Rigby. Cro. Jac. 314. 
 Tipping V. Smith. 2 Str. 1024.. 
 
 (e) Coke et DodeiiJge. 
 
 fubmifliori,
 
 THE AWARD OR UMPIRAGE. I33 
 
 Tubmiflion, he may decl to give it any other date, as before the 
 fiibmiilioii, which would not be ludicient. — The judge who ar- 
 gued in favour of the award (a) f;iid, it muft be taken to be 
 Ixich a releafe as would be good, if exprefsly awarded, and thea 
 it muft be antedated to the time of the fubmiffion, and the ante- 
 date could deceive nobody, (b) — In fuch a cafe, the judgment of 
 a court would, at this day, probably coincide with the latter 
 opinion. 
 
 If that, to which the objefiion of uncertainty is made, can 
 Le afcertained either by the context of the award, or from the na- 
 ture of the thing awarded, or by a manifeft reference to fome- 
 thing connected with it, the objeclion (hall not prevail. 
 
 On a fubmillion by bond, " the condition of which recited 
 ievcral differences between the plantitt and the defendant con- 
 cerning a piece of ground fituated fouth of the plaintiiFs houfe, 
 adjoining to the river Thame?, and ufed as a wharf, and the 
 ercilion of fcveral piles of boards and Icafrolds on it, of which 
 the plaintifF complained as being a nuifance to his houfe j" an 
 award was made, adjudging that the defendant fiould enjoy the 
 piece of ground as a wharf, and that the {cz?t o\^s fiould be pulled 
 down and removed. An action being brought on the bond, 
 and on the plea of " no award," this being fet forth by the 
 'plalntifF, and a breach affigned in the defendant's not having 
 pulled down the piles of boards and fcaffolds^ the defendant de- 
 murred to it as wanting certainty, bccaufe it did not order by 
 whom they fhould be pulled down ; and it was argued, that it 
 did not appear on the face of the award that the land belonged 
 to the defendant, fo that he could go upon it to pull down the 
 nuifance without being a trefpafUor ; for it was only ordered, that 
 'he fhould ufe the ground as a wharf, which rather imported that 
 ■it was before difputed whether it was his jDroperty or not; and 
 the award, that he fhould ufe it as a wharf, did not decide it to 
 "be his now : it only gave him a liberty .of wharfage : and if it 
 •were admitted to be his ground, yet the plaintiff might abate it 
 •if it were a nuilance ; every nuifance being abateable by him tp 
 
 .(<n) Houghton. (b) Lumlty v, liutton. i Rol. Rep. 271. 
 
 K 3 whom
 
 134 T'iE AWARD OR UMPIRAGE, 
 
 whom it is one ; and if it were in faci no nuifancc, yet the ?.r-, 
 bitrators, by awarding that the plaintiff fhould pull it down, 
 might have enabled him to do it without being atrefpafibr; 
 and it being left indefinite, whether the plaintifFor defendant 
 Ihould pull it down, the award was void for uncertaity. If any 
 one be ready to exclaim that this mode of reafoning is too tech- 
 nical and puerile to have feriouOy attraded the attention of a 
 court, let him treat it v/ilh more refpecl when he is told, that it 
 is the reafoning of Lord Chief Juftice Holt.— It received, how- 
 ever, this anfwer from the other three judges, (a) that the 
 ground muft necefTarily be confidered as belonging to the de- 
 fendant ; for it could not be fuppofed that the arbitrators would 
 have awarded that he ftiould u(z it as a wharf, if they had not 
 confidered it to have been his ground, and by declaring the 
 erctlion of tlie deals and fcafFolding to be a nuifancc, and or- 
 dering it to b^- pulled down, they could only mean that it lhoul4 
 be pulled dour, by him on v/hofe ground it v/as erefled. The 
 cafe was the fame as if a debtor or a creditor fubmitted to an 
 award, and the arbitrators fhould award that the debt fliould be 
 paid, or that it fliould be releafed ; where it was manifeft that it 
 muft be paid by the debtor, or releafed by the creditor. And it v/as 
 compared to a cafe which had occurred in the reign of Edward 
 the fourth ; fbj where the condition of an obligation was, that 
 the great bell of Milden Hall Ihould be carried to the houfe of 
 the obligee in N, at the cofts of the men of M, and there weighed 
 and melted down ; and the obligee fhould make of it a tenor, 
 &c : though it was not faid who fliould v/eigh the bell, yet it 
 was adjudged that the obligee, who was a brazier, fhould weigl^ 
 it, becaufe it belonged to his occupation to do it. A writ 
 of error, hov/cvcr, was brought on the judgment, which was 
 in favour of the plaintifF, in the Exchequer Chamber, but before 
 argument the parties agreed. 
 
 It v/as held, in the fame cafe, that where there was no date to 
 the award, it fhould be taken as dated from the day of the de- 
 livery, and that if any thing •yvas ordered to be done at a cer-f 
 
 (a) Powell, Powis, and Gould. I Breame. 6 Mod, 244. But more 
 
 (b) 9 Ed. 4, 3. b. Arnote v. I fully reported in z Ld. Raym. 107^.
 
 THE AWARD OR UMPIRAGE. I35 
 
 tain time after the date, that time fliould be reckoned from the 
 delivery, which might be afcertaincd by averment ; and, in this 
 cafe, where the fcaffolding was ordered to be removed within 
 fifty-eight days from the date of the award, which in truth had 
 no date exprefled, it was held that the time fhould be reckoned 
 from the 9th of 0*flober, that being the day on which it was 
 averred in the replication to have been delivered to the parties. 
 
 An award, * that one of the parties (hall aquit the other of a 
 bond of 200I. or " thereabout," in which they were bound to B, 
 for payment of logl- or "thereabout," is fufficiently certain ; 
 for being of a bond given to a particular perfon, and with a pe- 
 nalty, and for the payment of a fum nearly afcertained, it fhaU 
 not be prefumed that there are any more than one which will 
 anfwer the defcription in all thefe refpedts. (a) 
 
 An award, " that the one fliall fcal and deliver a dcmife to the 
 ©ther, or his afligns," is certain enough, it fhall be underftood, 
 « to himfelf." (b) 
 
 An award, " that the plaintiff Ihall pay the defendant a certain 
 film on a particular day, and that then the defendant fhall re-af- 
 fign the land mortgaged to him by the plaintiff," is fufficiently 
 certain, though it do not fay for what term the reaflignment fliall 
 be, whether for years, life, or fee j it (hall be underftood to be for 
 the whole interefl mortgaged, (c) 
 
 Where the fubmifTion was of all controverfics, rcfpedling a 
 voyage, and it was awarded that, one fhould pay his part of the 
 expences of the voyage, and allow, on account, his proportion of 
 the lofs which fhould happen to the fhip during the voyage j this 
 was held good, becaufe the expences and the lofs might be afcer- 
 tained by calculation, (d) 
 
 " To pay the charges of a fuit" is fufRcient, for thefe may be 
 afcertained by the attorney's bill, (e) So, " that the one fhall 
 pay to the other all fuch moneys as he had expended about the 
 profccution of a fuitj" for that may be afcertained by fhcwing 
 
 (a) Barfly v. Clipflnm on de- 
 murrer. Rol. Arb. Q^S. 
 
 {,b) I Keb. 335. 
 
 (c) RoiTe V. Hodges, j Lord 
 Jlaym. ii\, \ 
 
 (J) Beale v. Beale on demurrer. 
 Rol. Arb. H. 14. 
 
 (e) Cio. Car. 383. 
 
 what
 
 136 
 
 THE AWARD OR UMPIRAGE. 
 
 what was in fact laiJ out. Ca) So, " that the defendant fiiall pay 
 as the plaintiff and liis attorney, by a bill and oath foall maice 
 appear, fh) 
 
 So it might be fuppofed, an award between executors, " that 
 the one fliould pay the teftator's charges, debts, &:c. in the 
 Spiritual Court, as hr as his afTets went," would be good, be- 
 caufe both the charges and the afTets might be alcertained.ff; 
 
 So, it might be Tuppoied, <•* an award of a fum, provided the 
 party to whom it is awarded make afHdavit of it before a magi- 
 flrate," might be fupported j but an award that he fhall make fuch 
 an affidavit as the other party fliall require, is bad for the un- 
 certainty of what affidavit he will require, (dj 
 
 It is no objedlion to an award, that it is conditional, as that 
 one of the parties {h;ill enjoy a houfe for three years and a half, 
 and fliall pay his rent every half year 5 and that if he fail in pay- 
 ment, the av/ard for the enjoyment of the houfe fhall be void, (e) 
 So that he fnall pay the other lol. on condition that each fliall 
 acquit theotherj for it fhall be taken as a pofitive injunclion that 
 they /W/ acquit one another, (f) 
 
 So it may be made with a penalty, to attach on the non-per- 
 formance of a preceding part ; as to pay fzl. on two fever^l days, 
 ^nd on d-fault of payment the firft day, to pay the whole 12I. im- 
 mediately after, (g) 
 
 Akd, where it is left to a fubfequcnt event to afcertain pre- 
 cifely the thing awarded, it v/ill be fulTicient if that event mufl 
 necefTarily happen ; as if the fubmiinon be with refpecl to a way 
 leading to a houfe, and the award be, that the one fhall give a bond 
 of 300I. to the other, payable at three years' end; and in cafe the 
 way be taken away, then that he fliall pay lefs by a Certain fum, 
 and if not, a certain fum more, (hj 
 
 (a) Hnnfon v, Liverfedge. 2 W. 
 and M. 1 Vent. 24.2. 
 
 (b) Rous V. Lun. I Keb. 569. 
 etvid. ace. Linfield v. Feme. 3LCV. 
 j8 et ante page 83. 
 
 (c) Semi), cont. MefTcnger v.Free- 
 pian. 3 Keb. ^cS* 
 
 (ci) Backwell v. Knipe. 3 Keb. 293, 
 
 (e) Furt'tr and Bond v. Piowd. 
 do. Jac. 423. 
 
 ffj LinHdd V. Feme. 3 Lev. 18. 
 
 [gj Kockill V. Wetlierel. 2 Keb, 
 838^. 
 
 (h) Collet V. Po-.vcU. 2 Keb. 670.
 
 TII£ A'.VARD OR UMPIRAGE. 137 
 
 An award in the alternative, tiiat the party fliall do one thing 
 or another, is not fubjeit to the objeiUoa for uncertainty ; for 
 when he has done one of the things he has performed the award; 
 as if the award be, that he (hall deliver up to the other party a 
 certain deed, or pay him 50I. this is furiicicni-ly certain; and fuch 
 *n award in the alternative fecms to be the bc(c mode of com- 
 l)jlling a party to exert himf::lf to procure the performance of 
 what is not ftriclly within his own power; as in the cafe before 
 .mentioned, if the deed were in the cuftcdy or poflej'iion of anotiier 
 over whom he had no controul, the award would be void, if it 
 Cmply ordered that he fhould deliver up the deedy becaufe it might 
 not be in his power to obtain it from the perfon, in whofe poiTciTion 
 it was : but the alternative of delivering the deed, or paying jcl. 
 will be a motive for him to ufe his endeavours to have the deed 
 (delivered up; and if he cannot, the 50I, will be fome fort of re- 
 compence to the other for the want of it: perhaps, injuiiice, 
 the other is intitled to have the deed, and it is withheld from him 
 in confequence of fome mifconducl of the firft ; it is therefore 
 but juftice, that, if he cannot have the deed itfelf, he H-.ouid haves 
 ^ penalty equivalent to the damage he may fullain by the lois 
 of it. (a J 
 
 Lord Chief Juftice Coke is faid to have applauded the wif- 
 dom of Chief Baron Miinwood, in adopting this expedient of an 
 alternative award, to enforce the performance of fomething, for 
 which, had it been awarded fmiply, the award, according to fome 
 jruies of conftruclion, would have been void. 
 
 No objefiion can be taken to an av.-ar%l for wanr of certainty, 
 becaufe it appoints no time or place for the payment of a fum-of 
 money, though it be in the power of the arbitrator to appoint 
 a time for pu) ment, or for doing any collateral adl; becaufe the 
 award fhall have a reafonable conflrudtion; the party fhall have 
 a reafoi-.able time to pay the money ; a demand v/ithin a rea- 
 fonable time fhall be fuincient to entitle the onpcfite party 
 to recover: and the place is perfeftly immaterial. (l^J In 
 
 (a) Vid. Lee v. Elklns. 12 Mod 
 585, sS6. Lxiw. 5+5. 
 
 fi; 2 Eio.viil. 311. J Kcb. 92. 
 
 ct vid. Philips v. Knightly. Str. 933. 
 I Baiaaid. S4. 151. 463. 
 
 this
 
 138 
 
 THE AWATID OR UMPIRAGE. 
 
 this refpefl the Englifli law exadlly correfponds with the 
 civil, (a) 
 
 An averment, in fome cafes, may be ad- 
 Wben Uncertainly mitted to fupport an award which has an 
 may be helped hy an appearance of being uncertain. {'/'J Thu?, 
 A-verment in fieud- wherever from the nature of the thing, the 
 ing. awr.rd may be afcertained by a reference 
 
 to fomething clfe, there an averment will help 
 it, as if it be, " to pay the money expended in a certain fuit," an 
 averment " that fo much was expended," will fupfiort it. (c) 
 
 So, where the defcription of a matter in difpute, is not exadly 
 the fame in the award as it is in the fubmiffion, an averment in 
 pleadir-g " that the thing fo differently defcribed, is the fame 
 thing," will befufficient to fupport the award: thus, where the fub- 
 miffion was concerning an inclofure between Barton Down and 
 North Down, and the award purported to be of an enclofure, be- 
 tween the defendant^ down and the down of/. S. it feems to have 
 been admitted, an averment " that the enclofure mentioned in 
 the award, was the fame with that mentioned in the fubmiffion,'* 
 would have fupported the award: but for wantof fiich an averment, 
 the plaintiff failed in his action, (d) 
 
 But if there be no means by v^hich the thing, uncertainly 
 awarded, can be reafonably afcertained, 1:0 averment of the party 
 will make it good. — 7^hu?, if it be awarded " that the one party 
 fliall pay to the other fo much money as fiiall in confcicnce be 
 due," fuch an award cannot be fupported by an averment, " that 
 any particular fum is due in confciencc." It was the exprefs 
 bufinefs of the arbitrator to afccrtain the fum. (c) 
 
 So, an award, *' that the defendant fhall pay the plaintiff for 
 
 (a) Solutloni diem pofle ftatuere 
 arbitrum puto : et ita et Trebativis vi- 
 dcturlcntirc. Ff. I.4. t. 8.f. 21. n. 2. 
 Intra quanlumautemtempons,nifide- 
 tur quod arbiter juflerit, committatur 
 ftipulatio, videndum eft. Et, fi quidein 
 dies adjeflus not fit, Celfus fcrihit, in- 
 effequoddam modicum tempus: quod 
 ubi praetericrit, poena ftatim petl poteft 
 et tamen fi dederit ante acctptum ju- 
 
 dicium, agi ex ftipulatu non poterit. 
 n. 12. 
 
 (b) Dia. per Gould J. i Lord 
 Rn}'m. 612. 
 
 (c) Vide ante page 135. 
 
 ( d) Withers v. Drew. Cro. EI. 
 676. pi. 5. 
 
 (c) Watfon V. Watfon. Sty. 28. 
 T. 3. Car. B. R. 
 
 certain
 
 THE AWARD OR UMPIRAGE. I59 
 
 certain tafk v/orlc, and clays work, without fixing a value," can- 
 not be aided by an averment, " that the work was worth fb 
 much and no more, (a) 
 
 Where it docs not appear fioin the award itfclf, that it was 
 made " of and upon the premifes," an averment in pleading, 
 " that it wa-;," it is iiiid, will not help it: as where money was 
 awarded to be paid by one party to the oth^r, but it was not faid, 
 on wiiat account, nor was it profefled to be made of and upon 
 the premifes:" the allegation of the party that it was fo made, 
 W.1S held not fufficicnt to fupport the award in this part. (l;J \ et 
 it feems difficult to conceive a reafon, why it lliould not have 
 been prefumcd to have been made " of and upon the premifes," 
 rather than othervvifc. — However, it is laid down in the more an- 
 tient reports, as a thing not to be difouted, that, where the award 
 is not referred by the arbitrators to the fubjetfl in fubmiinon, or is 
 not any generality comprehending it, the averment of the party 
 that it is all ojie, cannot expound the intent of the arbitrators, fc) 
 As if the fubmiffion be of a manor, and an award be made of an 
 acre, and it does not appear by the award itfclf, that this is parccJ 
 of the manor i it cannot be made good by an averment that 
 it is. f^I) 
 
 So, where it was awarded, that the defendant fluould pay to the 
 plaintiff 3I. los. but it was not faid for what; Hobart held that 
 this implied nothing, nor could it be helped by averment. Yet 
 in the fame place he fays, that, if an adtion were brought for the 
 trefpafs, no doubt this award might be pleaded with an averment. 
 But why an award fhould be pleaded in bar of an aftion for the 
 caufe, on the fubmiffion of which the award was made, though 
 that award cannot be enforced, feems to require fome explanatioi). 
 However, Hobart adds, " that there was no judgment given in 
 this cafe; for though he himfelf was, and continued at the time 
 when he reported the cafe, to be clearly decided, and the reft 
 
 (a) Pope V. Brett. zSauntl.cQi. 
 
 (b) Bacon V. Dubaiiy. i Loni 
 Raym. 246. uMod. 119. 
 
 (c) Dyer 2.^z, b. pi. 5::. M. 7 
 
 and 8 Eliz. 
 
 (JJ Per Co. Ch. J. conccfrum per 
 Doderiilge, but Koiighton doubted: 
 but Coke laid this is Dyer's cale. 
 
 concurred*
 
 140 THE AWARD OR UMPIRAGE. 
 
 concurred, yet there was fome varying afterwards, and (o it hung, 
 
 and he thinks it was compounded, for he heard no more oCit.'Y^J 
 
 As the principal cbjec't which parties have in 
 
 lli'j? he final, view, when they fubmit to arbitration, is to pre- 
 vent any future litigation on the fubje(5l of the 
 fubmifTion, no rule is better founded than that which requires 
 that an award fhould be final, (b) 
 
 It is on this principle that it has been uniformly held, that an 
 award that each party {hall be nonfuited in the adion which he 
 has brought againft the other, is not good, becaufe a nonfuit does 
 not bar them f.om bringing a new aclion. (c) An award ought 
 to have four qualities, fays Newton ; it ought to be a final deter- 
 mination ; the parties ought to be bound by it for ever; it ought 
 to inflicl a penalty on him who does not peifcrm it ; and it ought 
 to be fuch, that performance may be compelled by the law : an 
 award of a nonfuit, continues he, is deficient in all thefe refpefts: 
 it is not final, and the party is not perpetually bound by it, be- 
 caufe he may bring another aclion; and he cannot be compelled 
 by the law to be nonfuited. — What is meant by the requifition 
 *' that the award fliould infli£l a penalty on him who will not per- 
 form it," docs not appear very intelligible ; it cannot be fuppofed 
 that it is meant, that every award fhould be in the alternative, 
 " do this, or fuftcr a forfeiture on failure of performance," for 
 very few awards are To penned : neither can it be fuppofed, that 
 it is intended that the thing itfclf which is awarded, fliould con- 
 tain any myftic virtue, which fhould deter the party from difo- 
 bedience. The lall requifite clearly refers to that diftindion 
 which was antiently taken bi2tween an award for money, and an 
 av/ard of any thing " collateral ;" the word " collateral" being 
 technically ufed to contradiftinguifh money from every thing 
 elfe : for in thofe times, an award for any " collateral" thing 
 could not be enforced, unlefs there was a bond for performance ; 
 i^.^ hov/evcr, there v/as a bend for performance, the party might 
 
 • (a) Hob. 49, 50. Nichols v, 
 Grunnion. 
 
 (b) Non difFercndariim litiiim cau- 
 fa, fed tolienJarum ad arbilrurn 
 
 itur. Ff. 1.4- 1. 8. f. S7- 
 
 (c) 19 H. 6. 36. Fhbt. 51. a. b. 
 Brooke. 45. a. 
 
 forfeit
 
 THE AWARD OR UMPIRAGE. Iff 
 
 forfeit the penalty of his bon 1 by not being nonfuited as well a* 
 by not doing any other fpccific thing. Another objection 
 is indeed made to an award of a nonfuit, " that the party can- 
 not be nonfuited without a judgment, and that, therefore, the 
 nonfuit is in part the afl of the court. But this objciflion would 
 extend to the award of every adt, to the accompliihmcnt of which 
 the concurrence of the court, or of a third perfon, is necefTary; 
 yet, in the very fame place where this objection- is taken to the 
 award of a nonfuit, it is laid down that an award " that one of the 
 parties ihail levy a fine is good, though a fine cannot be levied 
 without the adl of the court, (a) The only well founded objec- 
 tion, therefore, that can apply peculiarly to the award of a non- 
 fuit, is this, that it is not final, becaufe it does not bar the party 
 from bringing another action. Had the quefvion, indeed, re- 
 mained yet undecided, it might have been faid, in analogy to the 
 conftruition put on other cafes, that he, who fuffered a nonfuit, 
 but afterwards brought another a^Stion, nominally performed the 
 award, but in fubftance was guilty of a breach : however the word 
 " nonfuit" feems to be fo peculiarly appropriated to exprefs one- 
 particular idea, that its meaning cannot be fo far extended, as to 
 imply a breach of fuch an award, in bringing another action : for 
 " that an av/ard of a nonfuit is not final," has been uniformly held 
 from the time of the year books, to the prefent day. (bj 
 
 It was formerly doubted, whether an award " of adifcontinu- 
 ance of an zCXion" was not equally liable to the objection of not 
 being final, as that of a nonfuit, becaufe the party is not bound 
 by a difcontinuance from bringing another aiflion. (cj It was 
 loon, however, dilUnguifhed from the cafe of the nonfuit, by ob- 
 ferving that the difcontinuance was altogether the act of the party 
 namely, the making default and not profecuting his action; how 
 little this diliinchon affeds the queftion, may be conceived, by 
 what has bt:en obfervcd a little above. — However, Rolle tells us 
 that, " if it be awarded, that each Ihall difcontinue the actions 
 which he has againll the other," this is good : but kis opinion 
 
 fa) 5 H. 7. Z2. Fhhf. 51. b, 
 (b) Vid. the places before cited, ;^nd 
 Kol. Arb. T. 15. 16, 17. F. 9.7. 
 
 6 Mod. 232. I Barnard. K. B. 463. 
 (cJ Vid. the places above cited. 
 
 feems
 
 142 
 
 THE AWARD OF UMriRACZ. 
 
 feems not to be founded on the principle of fuch an award being 
 tuial ; for he immcJiately add? : *' but it is otherwife, when one 
 is ordered to difcontinue, and the other to give a rcleafe, becaitjt 
 then the parties have not an equal advantaged' (a) But in another 
 place, it is mentioned as a thing decided, " that an award to con- 
 tinue or difcontinue a fuit" is good, becaufe it is in the power of 
 the party to do it or not : (b) and now it feems to be taken for 
 granted, that no objection can be taken to fuch an award, (c) 
 
 An award, " that the party fhall enter a retraxit in a fuit which 
 he has depending, is clearly final, becaufe, after a retraxit, the 
 plaintift cannot afterwards bring another aiftion for the fame 
 caufe. (d) 
 
 An award, *' that all fuits ihall ceafe," is final : it fhall be taken 
 as if it had been faid that all fuits fhall ceafe for ever ; no new fuit 
 can be brought, while thofe ordered to ceafe are depending, be- 
 caufe thefe may be pleaded in abatement to the others, nor can 
 thefe be profecuted becaufe of the award ; that operates as a re- 
 leafe, and confequently extinguiflies the right; for if a man re- 
 leafe his action, and have no other remedy for his right but the 
 aclion, that difcharges the right; in the fame manner determin- 
 ing the fuit, determines the right of the thing, becaufe he has no 
 other remedy but by fuit, and therefore the award is final, fe) 
 
 So, an award, " that a bill in Chancery fhall be difmifTed" is 
 final : it fhall be taken to mean, " that the fuit fhall ceafe for 
 ever ;" that alone being a fubflantial difmilTion. (f) 
 
 So, " that what is awarded on one fide, fhall be in full of all 
 debts and demands on the other," will aid the award, fo far as what 
 is awarded on the other is not completely final ; for the word 
 *' demands" extends to every thing which the one has a right to 
 demand or exadl from the other at the time of the fubmifiion. (g) 
 
 An award, " that the plaintiff in an adtion fhall not profecute 
 
 (n) Diet. 1 Rol. Rep. 362. cites 
 19 H. 6. 36. 
 
 (b) Per G. Crcke, in the cafe of 
 Grny. Godbclt. 276. 
 
 (c) Vid. I Barnardlfton. 463. 
 
 (d) 5 H. 7. 22.. I'hbt. 52. b. 
 Brooke Aib. 31. Rol. Aib, Y. 7. 
 
 (e) Squire v.GrevIIIe. 6Mod. 33. 
 2 Ld. Rayni. 9615 96+. i Salk. 74. 
 vid. Tipping V. Smith. 2 Str. 1024, 
 which fLtnis contra. 
 
 (f) Knight V. Burton. 6 Mod. 
 232. 1 Salk. 75. 
 
 (g) Id. 
 
 nor
 
 THE AWARD OR UMPIRAGE. I4J 
 
 nor proceed In the fame term" is good, (a) But it isfaiJ that an 
 award " thiit each party fhall bear his own expcnces in fuits de- 
 pending between them/* though not liable to the objeition of 
 not being mutual, is bad for want of being final, without the 
 addition " that the fuits fhould ceafe." (h) Now, however, it is 
 apprehended, it would be prefumed, that it was the intent of the 
 arbitrators that the fuits fhould ceafe. And this opinion is fup- 
 ported by the judgment in the following cafe. To an atSlion cf 
 trefpafs, and falfe imprifonment, the defendant pleaded an award 
 which run in thefe words, " Whereas there has been a fuit at 
 law between the parties, that has run to a great expence on both 
 fides; and it being left to me to make an end of it, I determine 
 that they fhall each of them pay their own charges at law; and 
 that the defendant pay the plaintiff five fhillings, for his making 
 the firfl breach in the law." The court were unanimoufly of 
 opinion, that this was a fair and reafonabie award, and that it mu(t 
 necefl'arily be prefumed the fuits were to ceafe, and the five 
 fhillings to be paid by the defendant, to be taken as a dif- 
 charge. (c) 
 
 By the civil law, if the arbitrator declared " that the one party 
 owed nothing to the other," though he did not prohibit the latter 
 to fue, yet, if he did, notwithflanding, fue, he forfeited the penalty 
 of his fubmiifion. ^</j And with us, at this day, if there have 
 been fuits depending between the parties before the fubmilHon, 
 though the arbitrator take no notice of the cofls, yet if he award 
 mutual releafes, it fhall be prefumed that he meant each fhould 
 pay his own cofls. (e) And without fuch releafes the fame pre- 
 fumption would very probably be made if there were no other 
 obje<Slion to the award. 
 
 With refpecl to a bond which the one party had againfl the 
 other, it was awarded, " that the obligee fhould not profecute, 
 nor caufe to be profecuted, any fuit againfl the obligor on the faid 
 
 /'<7^ Gray V.Gray. Cro. Jac. 515. 
 ^^y) Farmer V. Durant. iKeh. 351. 
 
 (c) I Bur. 274. Hawkins v. Col- 
 clough, vid. ante page 118. 
 
 (d) Si Arbiter pionunciafTtt, " Ni- 
 hil viJeuTiiiumdcbcie bcio .'" iaraeu» 
 
 Seium non vetuifTet petere, tamen, fi 
 Hiiid petiiirct, videri contra arbitri 
 bententiam teciiTe. Ff. I.4. t.S.f. 21. 
 n. I. 
 (e) Dia. per Bulier J. Plil. 1791. 
 
 bonJi"
 
 144 THE AWARD OR UMPIRAGE. 
 
 bond ;" this was held to be fuificiently final; it was obje£led, lit* 
 deed, that the award did not extinguifh the duty, by merely or- 
 dering that he ihould not fue ; it was however anfwered that this 
 fhould be taken according to the ej}^ of the words, which was 
 to extingulili the duty, fa J 
 
 If the award be as final as the nature of the thing will admit, 
 that is fuiHcient. Marihall, at the inftigation of Knightly, 
 brought a qui tarn aftion againft Philipps, on behalf of himfelf 
 and the poor of a parilh : Philipps, for himfelf, and Knightly, on 
 behalf of Mardiall, fubmitted, by bond, all matters in difference 
 between the parties, to arbitration. It was awarded, that Knightly 
 fhould execute a covenant to indemnify Philipps againft all cofls, 
 damages, and expcnces which might happen by means of any- 
 further procc'cdings in the qui tarn aclion : an zdi\on on the 
 fubm.ifllon bond being brought, and after "no award " pleaded 
 by the defendant, this award being fet forth in the replication, 
 one obje6tion was taken to it, as not being final, not putting an 
 end to the fuit, but only giving a n€w action of covenant ; it 
 was indeed allowed, by the judge, (^Z-yl who fupported this ob- 
 je£tion, that if a bond had been awarded to the plaintiff, to in- 
 demnify him in the fuit depending, that would have been good ; 
 for there the arbitrators would have afcertained the penalty, as 
 the confequence of his not performing the award : and though, 
 by executing this bond, he had fatisfied the arbitration bond, and 
 the plaintiff's remedy was of courfe gone upon that, yet there 
 fubfifted as effe61:ual a remedy on the bond awarded to be exe- 
 cuted, as there was upon the other. But, in the prefent cafe, 
 by the execution of the deed of covenant, the plaintiff's remedy 
 on the arbitration bond was gone, and there was only a remedy 
 on the covenant left in its ftead, which was a fatisfaclion in da- 
 mages to be afcertained by a jury.— But the other judges thought 
 that the award was fufHcicntly firral, and that at any rate, it was 
 rot competent to the defendant to make this objection ; the 
 arbitrators had in this cafe done every thing they poffibly could 
 do to render their av/ard final ; they could not have awarded 
 that Marfiiall fliould difcontinuc the fuit, which he had brought 
 
 on 
 
 (aJMAwoQ^ V. Stokes. Rcl. Aib, O. 7, (b) Page J.
 
 THE AWARD OR UMPIRAGE. 
 
 '45 
 
 on behalf of hlmfelf and the poor of the parifli, for that vvoulJ 
 have been to divcft an intereft out of the poor which was vefled 
 in them by the commencement of the adlion : and there was 
 no difference between the award to execute a bond or to execute 
 a covenant, the remedy was by action in both cafes, (a) 
 
 If the award be of a thing to be done at a future day, it is 
 final, if it muil then be abfolutcly done, as if it be to pay money 
 at three feveral days to come, (bj So, to give a note or a bond, 
 for the payment of money at a future day. (c) — But if it de- 
 pend on a condition whether it muil be executed or not, then it 
 is not final ; as if it be, that money fhall be refunded if it ap- 
 pear afterwards that the party was not intitled to retain it. (d) 
 
 It was awarded, " that if one of the parties fhould, within four 
 months after the date of the award, make out, that two tons 
 of freight were difcharged by him at i6!. per ton; and that if 
 ■the other, within ten days, fhould make oath, that he received 
 the two tons of frieght at lol. per ton, and not more, then that 
 the firft (hall pay him 12I. mol-e than was awarded to him 
 in the former part of the award, being the difference on two 
 tons at 16!. and lol. per ton." The inclination of the court 
 feemed to be to confider this award as void, becaufe it was not 
 final at the time of making it. (e) 
 
 The fame opinion was held, where it was awarded that the 
 one fhould pay fo much money to the other, and the latter fliould 
 give him a releafe, provided that, if the firft fhould be difcharged 
 of any arrears due to foldiers by an a6l of indemnity, then the 
 award fhould be void. C.P So, an award, " that, if the plain- 
 tiffj on account, prove certain articles againll the defendant, 
 
 (a) Philips V. Knightly. Str. 903. 
 1 Barnard. 84. 151, 387, 457, 463. 
 Fitzg. 54, 168, Z70, but in the latter 
 book, it ietms the qui tarn had been 
 brought by the plaintiff in the prcfcnt 
 a6lion, and that it was he who was 
 awarded to covenant to indemnity, 
 in return tor svhich the defendant in 
 
 the prefcnt a<5\ion was to pay him a 
 fum of money, 
 ^ij Per Dodderidge. Pahn. no. 
 
 (c) Booth V. Garnett. 2 Str. icSz. 
 
 (d) Pahn. no. 
 
 (e) Dighton \. Whiting. 6 \W . 3. 
 Lutw. 51. 
 
 (j) Kinge v. Fines, i Sid. 59. 
 
 L 
 
 then
 
 j.g THE AWARD OR UMPIRAGE. 
 
 then he fhall pay fo much as the plaintiff was damnified there- 
 by," is not final, (a) 
 
 So, alfo, " that if the defendant make out, upon oath before 
 a judge, any difburfements made on account of the plaintiff, 
 that the plaintiff (hall pay them ; but in cafe the defendant do 
 not prove thefe matters within a certain time limited, then the 
 parties fhall give general releafes ;" ^Z-;— this is not final. 
 
 Where the firft part of an award is final, and a provifo is 
 afterwards added, giving a power to either of the parties to ren- 
 der it void, by an act to be done within a limited time after that 
 appointed for the performance of that which makes it final, the 
 provifo is repugnant to the former, and will be rejeded.— Thu?, 
 if it be awarded, " that each of the parties fhall, within four 
 days after the award, releafe to the other, all actions, fuits, and 
 demands, before the date of the fubmiffion bond, with a provifo, 
 that if either of the parties fliall be difcontented with the av/ard, 
 or any part of it, then, if within twenty days after the day for 
 making the releafes, the party thinking himfelf aggrieved fhall 
 pay iQS, to the other, the award fhall be void, and either of 
 them be at liberty againft the other as before the award :'* 
 this provifo being repugnant to that which was to be executed 
 before, fhall be rejected, and the former part of it fhall be valid; 
 for every award ought to be reafonable and indifferent between 
 the parties, and one part of it not repugnant to the other : 
 but here it would be contrary to thefe principles to confider the 
 award as totally void, and to fct the parties at liberty, the one 
 againft the other, when they had made mutual releafes ; or to 
 permit the one, when the other had releafed, to diffolve the 
 award, by means of the provifo.— And it would be abfurd to 
 confider the fubmiffion-bond as forfeited, as it muft be, by not 
 piaking the releafe within the four days, and afterwards to con- 
 fider it as becoming not forfeited, by the diffolution of the award, 
 in confcquence of the provifo. fcj 
 
 But where the provifo is not merely repugnant to the other 
 
 (a) Selby v. RufTel. Comb. 456. J CcJ T)\S\:. arg. by the court In 
 (1/ J Id. ibid. j Sherry V. Richardfon. Poph. 15, iC. 
 
 part
 
 THE AWARD OR UMPIRAGE. I47 
 
 part of the award, but (o conneded with it, that, on the con- 
 flrudion of the whole, the award is not final, there the whole 
 award is void. —As if in thelafl cafe the provifo had been, " that 
 either of the parties might render the award void, by paying the 
 JOS. within the four days limited for the making of the relcafes ;'* 
 • for here the award is not final, it being left to the parties to de- 
 termine whether it fhall be (o or not.— So, if the provifo had 
 been, " that within twenty days after the aivard made, it might 
 be defeated on the payment of los." for here the los. might have 
 been paid within the four days as well as at any fubfequent time 
 within the twenty, and the party not bound to make the re- 
 lcafes, becaufe, before the expiration of the time within which 
 they were to be made, that would have been done which the ar- 
 bitrator intended fhould render the award void ; and therefore the 
 award not being final at the time when it was made cannot be 
 fupported. (a) 
 
 The lafl rule to be obferved in the confti- 
 tution of an award is, that it fliall be mutual j The Aivard muft 
 that it Ihall not give an advantage to one par- be mutual. 
 ty, without an equivalent to the other. This 
 rule feems to have arifen from an idea of juftice mifapplied : un- 
 derftood in the general fenfe which the words of it convey, it 
 iuppofes, that it is impoffible for two parties, who fubmit to 
 arbitration, not to have committed mutual injuries; and that 
 it is equally impoffible for a man to make a groundlefs complaint 
 againfl his neighbour : fome of the ancient cafes fhew, that the 
 judges adopted the rule to this extent. 
 
 If two fubmit themfelves to an award of all trefpafles, and 
 the arbitrators award, " that the one fhall make amends to the 
 other, but award nothing that he fhall do to him again," this, fay 
 the judges, is a void award; for all is for the one party, and 
 nothing for the other. — Here they fuppofe it impoifible for the 
 injuries not to have been mutual. 
 
 If it be awarded, it is faid, " that one fhall go quit of all ac- 
 tions had by the otlier againfi; him, and nothing be laid of the 
 a(5tions which the other has againlt him,'' this is void. If the 
 
 L z defendant 
 
 (a) Id. ibid.
 
 I|S THE AWARD OR UMPIRAGE. 
 
 defendant plead, * that the plaintiff and he fubmittcd all com- 
 plaints between them to arbitrators, who awarded, " thqt the 
 defendant flioulJ go quit of all actions and complaints had by 
 the plaintiff againfl: him, without faying any thing of the ac- 
 tions and complaints which the defendant had againfl him," the 
 plea is bad,' becaufe, adds the court, the one Hiould be difcharged 
 of all ai5tions, and the other would receive nothing in fatisfac- 
 tion : here they would not j..refume that the defendant had no 
 a>5tion or complaint againfl the plaintiff, nor that the complaint 
 of the latter againfl the former was, in the opinion of the arbi- 
 trator, without foundation. 
 
 They do, however, admit, that if it be expreffed by the 
 award, that the injuries were mutual, and equal, and that there- 
 fore nothing is given on either fide, this will be good. — Thus, 
 if the award recite that the plaintiff had committed a trefpafs 
 againft the defendant, and that the defendant had comiriitted a 
 trefpafs againft the plaintiff, and for that reafon order, " that the 
 one fhall be quit againfl the other, and the other againfl him ;" this 
 they fay is a good award, becaufe it is mutual, (a) 
 
 The principal requifite, however, to form that mutuality, 
 about which fo much is faid in all the cafes ufually claffed under 
 this rule, is nothing more than that the thing awarded to be done, 
 Ihould be a final difcharge of all future claim by the party in 
 whofe favour the award is made, againfl the other for the caufe 
 fubmittcd ; and therefore the prefent rule amounts to nothing 
 more than a different form of expreffion of the cafe, which re- 
 quires that an award fhould be final.— Thus, in the fame places 
 where it is required that an award fliould be mutual, it is held, 
 that an award, " that one party fhall pay to the other a certain 
 fum of money, in cnnfiderat'ion of a debt long due" is good : and 
 the reafon givGn is, that the party paying the money fhall be 
 difcharged of the debt, which is a fufficient reciprocity to fup- 
 port the award, (i) 
 
 The mofl frequent comp>laint againfl awards for the want of 
 putuality, is that when fomething is awarded on one fide, 
 
 faj 7 H.6. ^i. ai H. 6. 9. zz H. 6. 39. Br. Arbit. pi. 23 cites fame cafe. 
 (bj 8 Co. 9S. a. Rol. Arb. K. 5. 
 
 there
 
 THE AWARD OR UMPIRAGE. I49 
 
 there Is no re'.eafc awarded to the other in leturn ; for it is uni- 
 formly held, that a relcafc would render the award mutual : but 
 the releaCe nuiit ojierate to the benefit of the j-rinclpal in the 
 (ubmifllon, and not be confined to his attorney, who fubmits 
 for him ; at leafi: this is the conclulion to be drawn from a cafe, 
 the authority of wh/ch has not yet been overruled.— An attor- 
 ney, on behalf of his client, fubmitted by bond to perform an 
 award : it was awarded that the attorney fhould pay to the other 
 party 34;!. and that the attorney and the other party fliould 
 give mutual releafes, namely, tliat the otlier party fliould (ign a 
 releafe to the ufe of the " attorney," and the attorney to the 
 other party : this was held to be an award only on one fide: 
 the attorney, it was faid, fubmitted on behalf of his client, and 
 nothing was awarded to his client, the releafe not being exprefsly 
 awarded to the ufe of the latter, but to that of the attorney : and 
 then the award being only that the attorney fliould pay the mo- 
 ney, without faying on what account, it is not good without 
 the releafesj but it was admitted, that if the releafe had been to 
 the ufe of the client inflead of the attorney, the award would 
 have been mutual, and therefore good, (a) The place of the 
 releafe, however, may frequently be fupj^lied, by words from 
 which it mud reafonably be concluded that the arbitrator meant 
 the party, againft whom the award is made, fhould be difcharged 
 on performance of it. Thus, in the cafe preceding, it was ad- 
 mitted in argument, that if the money had been awarded to be 
 paid by the attorney, " in fatisfadlion of all accounts," or " for 
 all money due " from the client j or if the award had purported 
 to be made, " of and upon the premifes ;" the award would, in 
 any of thcfe cafes, been good without the relcafes, becaufe then 
 the payment of the money would of itfelf have been a good dif- 
 charge to the client. 
 
 So, it has been admitted that an award " that all fuits fliould 
 ccafc " was equivalent to an award of a releafe. (b) 
 
 So, that all " controverfies" fhall ceafs, and that the one fliall 
 pay lod. to the other, .although the other have nothing given to 
 
 (a) Bacor, v. Diibnn y. Coinb. 439. j (h) Stran^rord v. Green. 2 Mod. 
 I Ld. Rayin. 146. j ;i!j. 
 
 L 3 him,
 
 ISO 
 
 THE AWARD OR UMPIRAGE. 
 
 him, for perhaps, fay the books, he had committed the greater 
 trefpafs. (a) 
 
 An award vvas made " of and upon the premifes," that one 
 fliould pay to the other lol. at a certain day, and that the parties 
 aforefaid {hall continue in love and friendfhip as formerly ; it was 
 held to be an award on both fides, and that it fhould be intended^ 
 in fatisfadtion of all matters between the parties, more efpecially 
 as it was faid, that the parties fhould be friends as formerly, (b) 
 
 If two fubmit all matters between them, and the award be 
 made " of and upon the premifes,in manner and form following,'" 
 that is to fay, that the one fhall pay 40I. to the others it is 
 faid, this is a good award on both fides, for being made con- 
 cerning the premifes, it cannot be intended to have been made, 
 but in fatisfa6lion of all matters within the fubm.ifTion, and can- 
 not be taken to have been for any other caufe. CcJ But about the 
 fame time, it is faid, that, where an award was made " of and 
 upon the premifes, in manner and form following," namely, that 
 the one fhall depart from his houfe, and remove his hay, and pay 
 to the other 3I. this was an av/ard only on one fide, becaufe it 
 was not made of the premifes gencraUy^ but in manner and for?n 
 following, (cl) Yet this is exa6lly in the fame terms as the in- 
 trodudion of the award in the cafe immediately preceding. 
 
 As an award " that money fhall be paid in fatisfa£lion," is 
 good, fo other words may fometimes have the fame effedt; thus, 
 it is a good award " that the one fhall pay lol. to the other for 
 a trefpafs j" the word " for " implies that it is to be in fatisfac- 
 tion of the trefpafs." (e) Or *' to pay fo much for arrears of 
 rent j" for that fhall be taken " in fatisfaction of all arrears, and 
 
 (a} Cole's cafe 8 Jac. Rol. Arb. 
 K. 10. S. P. Harris V. Knipe. 13 
 and 14 Car. z. 1 Lev. 58. 
 
 (b) Raymond v. Popley, and on 
 the fame award Popley v. Popley in 
 the fame term. T. 8 Car. on de- 
 murrer in debt on the bond, and a 
 breach afligned in non-payment. Rol. 
 Arb, K. 12. vid. etiam Id. O, 1.2. 
 
 ( c) Mawe V. Samticl. 1 Rol. Rep, 
 I. 2. Rol. Arb. F. 6. 
 
 (d) M. 13 Jac. Nichols v. Grun- 
 vvin. Rol. Arb. K. 11. Brownl. 
 58. S. C. Hob. 49. in which laft 
 place it is faid that no judgment was 
 given. 
 
 (e) Ormlade v. Coke. Cro. Jac. 
 354. S. P. Hob. 49. Frccm. 205. 
 
 the
 
 THE AWARD OR UMPIRAGE. 1^1 
 
 the party difcharged by payment, (a) So, " for having made 
 the firli breach in the law," implies that the fum awarded fliall 
 be taken in fatisfadlion. (b) Yet, where the fubmiflion was of 
 all fuits depending between the plaintitr and defendant in the 
 Spiritual Court " for tythcs j" and it was awarded, that the de- 
 fendant (hould pay 40s. to the plaintiff" for the tythes," on fuch a 
 day ; it was held, that this award was not mutual, becaufe nothing 
 was awarded for the advantage of the defendant, as that he 
 fliould be free fuits, or fomething equivalent : it may be ob- 
 ferved, however, that the award, being of 40s. " for the tythes," 
 it muil necefiarily be implied, that the 40s. were intended to be 
 in fatisfailion. ('cj 
 
 An award recited that there had been confiderable dealings 
 between the plaintiff and the defendant, that the plaintiff had 
 paid to the defendant all his demands, and that 40I. were due to 
 the plaintiff, and then ordered that the defendant ftiould pay to the 
 plaintiff the 40I. It was held, that the recital of the deafmgs be- 
 tween the parties, and of the payment by the plaintiff of all that 
 was due on his part, implied that the payment of the 40!. by the 
 defendant was intended to be in full fatisfadlion of the debt, fdj 
 
 It was awarded that the defendant fhould pay to the plaintiffs 
 15I. on or before a certain day, which the arbitrators adjudged 
 to them for the cofls and damages they had fuflained by reafon of 
 a fjit commenced againft them v/Ithout caufe by the defendant, 
 and that all fuits and differences fhould ceafe which were be- 
 tween the parties before the date of the fubmiilion bond : it was 
 objedled that the award v/as not mutual, becaufe it was no be- 
 nefit to the defendant to ftay his own fuit and pay 15I. cofts; 
 but the objcvSlion was confidercd to be without foundation j as 
 indeed nothing but the groflefl; mifconception of the real mean- 
 ing of the rule, which requires awards to be mutual, could have 
 given rife to fuch an objc£tion. CeJ 
 
 In the more ancient report^, however, the rule il-ems to have 
 
 (a) Hopper v. Hackett. 1 Lev. 
 132. 
 
 (b) I Bur. 277. 
 (cj Colflon V. Harris. 
 
 L 4 been 
 
 (i/J Elliott V. Chcval. Lutw. 5I1. 
 (ej VVatmouf^h v. Holgate. z Vent. 
 221.222. S. P. Comb. 212.
 
 152 THE AWARD OR UMPIRAGE. 
 
 been fo undciftood, that either the thing which was awarded muft 
 of itfelf imply a dil'charge to the party againft whom the award 
 was made, or fome j)ofitive terms muft have been added which 
 fnewed the arbitrator's intention that a difcharge fhould be 
 the confequence ; fa) for otherwife, it was thought, it could not 
 be known for what caufe the thing awarded was to be done, and 
 therefore nothing could be prefumed to be difcharged by it. 
 
 If it had been awarded that the obligor, in a Angle (bj bond, 
 fhould pay the debt, if it was not added that he fhould thereupon 
 be difcharged, the award was held not binding for want of mu- 
 tuality, becaufe the payment of the money due by a fingle 
 bond could not be pleaded to an aclion on the bond, without a 
 releafe. (c) But this reafon, fince the ftatute for the amendment 
 of the law, fdj has no longer any v/eight. 
 
 If it appeared, however, by the general tenor of the award, 
 that the thing awarded to be done on one fide, was intended as 
 a recompence for injuries fuftained by the other, that was con- 
 fidered as rendering the award fufficiently mutual, without any 
 words of difcharge. 
 
 An award 'reciting the fubmifllon to have been of all dif- 
 ferences between the parties ; reciting alfo, that thefe difPerences 
 being underftood by the arbitrators, who were fatisfied that 
 certain allegations, made in a bill exhibited by the plaintiff in the 
 Star-chamber againft the defendant, were for the moft part 
 known to the latter to be true, namely, " That the defendant 
 had taken of the plaintiff 40s. for a fuperfedeas to reverfe an 
 outlawry againft the plaintiff, but had not reverfed it ; that he 
 had taken of the plaintiff" 20s. more as a fee pretended to be due 
 to him on an execution for 26I. fued againft the plaintiff; nei- 
 ther the defendant, who was then under-fheriff of Dorfet, nor any 
 one for him, having ever enforced the execution ; that the plain- 
 tiff had been imprifoned, by means of the defendant, by one J. S. 
 who had arrefted him without any warrant direifted to him, 
 
 (a) May v. Samuel. Rol. Arb. 
 F. 3. Kirby v. Pigot. 25 Car. 2. 
 3 Keb. 140. ., 
 
 (b) It may hot be altogether iife- 
 
 lefs to obferve here, that ^finylc bond 
 means a bond without a penalty. 
 
 (c) Hob. 49 BrovvnI. 58. 
 
 (d) 4 Ann. c. 16. f. 12. 
 
 and
 
 THE AWARD OR UMPIRAGE. 153 
 
 cud that the plaintiff had been compelled by J. S. to pay 200. 
 lor this unjuft arreft, before he was permitted to go at large:" 
 reciting further, that the plaintiff was an honeft man and of good 
 reputation, and a tradefman, having a wife and fix children, 
 and that by reafon of thecircumftanccs before recited he had fuf- 
 taiiicd great damage, fcandal anddifcredit :' ordered the defendant 
 to pay to the plaintiff 500I. by different payments, on certain fpe- 
 cific days. — It was objedcd to this award, that it was not mu- 
 tual, becaufe the 500L were not awarded to be paid in fatisfac- 
 tion for the, wrongs recited, nor in confideration of them, nor 
 lor them, nor were there any words which implied a difcharge 
 to the defendant : but the court held the award good, and that the 
 payment of the 500I. muft ncccffarily be intended to be as a 
 latisfadlion for the wrongs, (o) 
 
 And it may, now, be fafely laid down, that it Is not neccf- 
 fary that the award itfelf fhould cxprefs that a fum awarded to 
 be paid, or an a6l to be done in favour of one of the parties fhall 
 be in fatisfaclion ; or that it fliould contain any equivalent terms : 
 a difcharge to the other muft neceffarily be prefumed from the 
 payment of the fum or the performance of the aft. — Thus, the 
 defendant having pleaded to an adtion of trefpafs, that the plain- 
 tiff and lie had fubmitted the trefpafs aforefaid to arbitrators, 
 who had awarded that the defendant (hould pay to the plaintiff 
 7I. on a certain day, and alfo two thirds of fuch cofts as he had 
 been put to in and about the fuit, the fubmi/Tion having been 
 after an imparlance : this was held to be good, though no re- 
 leafes were awarded, nor any words of fatisfadlion were ufed. (b) 
 It feems indeed a little extraordinary that the plaintiff, in whofe 
 favour the award was made, (hould have ohjefted to it, for fo 
 lingular a reafon as that the money to be paid to him by the de- 
 Icndant was not awarded to be in fatisfadion or difcharge of any 
 thing, and that nothing was awarded to be done to the de- 
 
 (<il 16 Car. B. R. ,Burbi(.lge v. 
 Raymond in a writ of error on a 
 Hitlgnient in C. B. where it h:ul bten 
 adi'jiiged a void award on deiniiirer. 
 13 -Jt B. K. affirmed the judga-.ent tui 
 
 a clear defeft in the manner of plead- 
 ing, though they thought the award 
 good.— Rol. Arb. K. 17. 
 
 (b) Tomlinlbn v. Aiilkin. Comyns 
 318. 
 
 fendant
 
 J54 THE AWARD OR UiMFIRAGE. 
 
 fendant or for his benefit : the objeclion can be reconciled to 
 common fenfc on no other principle, than a fupppofition that 
 had the plaintiff" fued on the award, the defendant might have 
 objected to it for the reafons now affigned by the plaintiff. 
 
 To an action on a bond conditioned for the performance of 
 an award, the defendant pleaded that no award was made : the 
 plaintiff in hisj-eplication fet forth an award, "that the defendant 
 ftould pay to the plaintiff 12I. on a particular day, and take 
 away his mare and colt from the plaintiff's within a week :'* 
 this was held to be a mutual award, bccaufc it fhould be pre- 
 fumed, that the poffeffion wiiich by the award the plaintiff ap- 
 peared to have of the mare and colt was legal, as by diftrefs for 
 damage feafant, by bailment, or other means by which the plain- 
 tiff might have juftified the detention, (a) 
 
 These tv/o cafes feem fully to juftify the obfervation which 
 immediately precedes them. The firft is indeed the cafe of a 
 parol award, and it does not appear whether the fecond was by 
 parol or in writing : the condition of the bond enabled the ar- 
 bitrator to make his award in either way, and the replication 
 only ftates that he made and publifhed his award within the 
 time limited, but does not alledge in what manner : there feems, 
 however, to be no good reafon for making any diftinclion, in this 
 refpe£l:, between an award by parol, and one in writing. 
 
 All the preceding rules apply only to particular parts of an 
 award ; but there are many cafes in which, though the award, in 
 particular parts, be void, becaufe thefe are not conformable to 
 fome one or other of thefe rules, yet it is good for the remain- 
 der. And there are alfo a great many cafes in which the cir- 
 cumflance of its being void for part, renders it void for the 
 v/hole : but in order to confider this part of the fubject with ad- 
 vantage, it fcems proper to collect what is to be found in the 
 books v/ith refpecfl to the conftruction of av/ards. 
 
 I NT former times, the courts confidered 
 Honv Awards fpall awards, with rcfpecSl to their conftruction, 
 
 be co)7jlrued. in a very different manner from that in which 
 
 they confidered deeds and wills : the latter, 
 
 they 
 (ii) Coojierv. Hiiit. Lutvv. 539.
 
 THE AWARD OR UMPIRAGE. I55 
 
 they held, ought to be conftrued according to the intent of the 
 parties, and the meani;ig of the words to be colle£led from the 
 whole of the inftrumcnt put together; but an award they con- 
 fidered to be in the nature of a judgment, which ought to be 
 plain and correft, and that therefore there ought to be no ne- 
 cclTity to coUedl the meaning of the arbitrators s for that fuch a 
 collection would not be their judgment, but the conjecture of 
 another of what they had intended to decide, (a) 
 
 The adherence of the courts to this rule was in many inftances 
 fo rigorous and ftridt, that the power of referring difputes to 
 arbitration, inftead of being a benefit to the parties, often well 
 merited that refledlion which a learned judge once made with 
 refpe61: to references at nifi pr'ius-, that he never knew any good 
 to arife from them. 
 
 In thofe times, even a miftake in the recital of a day mentioned 
 in the former part of an award, was thought fuScient to render 
 the award void, though it would othcrwife have been good. 
 Thus where, on a fubmiffion of the title of copyhold land, die 
 arbitrator, after awarding the payment of a fmall fum of money 
 by one of the parties, on the " twenty" firfl day of May, or- 
 dered the other to releafe to him on the aforefaid firft day, omit- 
 ting the word " twenty," all his right to the copyhold land, and 
 that three years after he fhould make flirtiier aiTurance : the award 
 was held to be void, on account of the omiflion of the word 
 *' twenty," becaufe there being no fuch day before mentioned 
 as the firft of iVlay, there was no day from which the three years 
 could be calculated, and confequcntly no further ?fiurance could 
 be made, (h) The court thought they were not at liberty either 
 to fupply the word " twenty," which would have given effect 
 to the intention of the arbitratot, or to reject the word *' afore- 
 faid," which, though a little deviating from his meaning, would 
 have made the award completely certain. 
 
 Towards the end of the reign of James the firfl:, however, 
 the judges laid down more liberal rules to be obferved in the 
 conftrudtion of awards ; holding, that they fhould be interpreted, 
 
 (a) Browr.l. 9z. YlIv. 9S. j Arb. K. 11;. Q;^6. Cro. Jac. 149. 
 
 (b) Markhaijn v, Jennings. Rul. I Yclv. 97. oS, 
 
 as
 
 156 THE AWARD OR UMPIRAGE. 
 
 as deeds, according to the Intention of the arbitrators ; that they 
 fhould be confidercd, with the lame flivour as the " arbitrium 
 boni viri," in the civil law; that therefore they fhould not be 
 taken flrictly, but liberally, according to the intent of the par- 
 ties fubmitting, and according to the power given to the arbi- 
 trators : that " all ailions" mentioned in the award fhould be 
 taken to mean " all actions over which the arbitrators have 
 power by the fubmiffion ;" and that if there were any contradic- 
 tion in the words of an avi'ard, fo that the one part could not 
 ftand confidently with the other, the firfl part fliould ftand, ajid 
 the latter be reje^fted : but that if the latter were only an expla- 
 nation of the former, both parts fhould ftand. faj 
 
 So, it v/as held, that if an award were made generally In fa- 
 tisfa£lion of all controverfies without any limitation, this fhould 
 be conflrued to extend only to fuch controverfies as are within 
 the fubmiffion. fbj 
 
 If, by manifeft Implication, that appear, which, if pofitlvely 
 expreffed, v.'ould render the award good, that Is fufticlent to fup- 
 port it. 
 
 The fubmlflion was of all controverfies between the parties, 
 and it was awarded, " that the one fliould pay to the other lol. 
 on a particular day, and that the other, on the receipt of the 10!. 
 ihould give to the firft a general releafe." It was objecfted, that 
 if he to whom the lol. were to be paid refufed to receive it, he 
 was not bound to give the releafe, and the award, for that rea- 
 fon, was only on one fide, and therefore void : but the objeiStion 
 was overruled, and the award held to be good ; becaufe, when 
 it is awarded that the one fhall pay lol. to the other. It Is, by ne- 
 cefFary Implication, awarded that the other fhall receive it : la 
 the fame manner as If It had been av/arded that the payment 
 fhould be In fatlsfadflon of all controverfies between them, in 
 which cafe It muft have been implied that the other fhould re- 
 reive it in fatisfacllon : In the prefent times it will appear ftrange 
 that there fliould have been any nccciTity for the judgment of a 
 
 (a) Dia. per Doclcridg;e. Palm. 108. 3 Bulftr. 66, 67. 
 (l^J B;o\vn"s cafe, cited Iluttcn, 9. 
 
 court
 
 THE AV.'ARD OR UMPIRAGE. 1 57 
 
 court in tills cafe, but in the reign of Charles the fiiil, the mat- 
 ter was fo far from being clear, that the unfuccefstul party not 
 being fatisfied with the judgment of the court below, appealed 
 to parliament in a writ of error, where the judgment was con- 
 firmed by the opinion of all the judges, (a J 
 
 An award " that the one Ihall keep and enjoy the goods in 
 difputc, " paying " fo much money to the other," mull: be con- 
 flrucd in the fame manner as if it had been expreffed impera- 
 tively, " that he ihould pay." (b) 
 
 It was awarded "that the defendant fhould pay lol. to the 
 plaintlfl', and fetch away his mare and colt;" it was objecled, 
 that it was not awarded that the plaintiff' fliould deliver the mare 
 and colt: it wus adjudged, that that muft neceirarily be im- 
 plied, (c) 
 
 So, it might reafonably be fuppofed, that, where the award 
 was, " that the plaintiff, for work done, fhould "accept" a bill 
 of fale from the defendant, of the eighth part of a fhip," there 
 could have been no harm in implying that the defendant fliould 
 *' give " the bill of fale : in common language, a man cannot 
 accept a thing, which it is not in his option to have, and it could 
 not be in his option to ha\ e it, unlcfs the other was bound to 
 give it. (d) 
 
 On the fame principle, it would fecin that an award, " that 
 the plaintiffs fhould pay 30I. to the defendant, and that they 
 fhould receive their goods left by the defendant in the hands of 
 a third perfon for their ufe," were good, and that the defendant 
 fhould be bound to procure the delivery of the goods, (e) 
 
 It was awarded " that the defendant fhould enjoy a houfe of 
 which the plaintiff was leffce for years, during the term, paying 
 to the plaintiff 20.?. yearly :" this was conf^rued not to be merely 
 a condition annexed to the award of the defendant's enjoyment 
 of the houfe, but it was confidercd to be a part of the award it- 
 
 {a) M. la Car. B. R. Linnen v. 
 Williamfon. Ri.l. Arb. K. 16. 
 cited 6 Mixl, 35. 2 LJ- Rnym. 965. 
 
 {hi Stiles V. Tiilte. I Sid. 54. 
 
 (cj Hooper V. Hirll. Lutw. 539, 
 jcitcd I Ld. Raym. 612. 
 
 (d) Dis alitcr vifum. Clapcott v. 
 Davy. I Ld. Raym. 612. 
 
 fe) But fenib. contr. Dighton v. 
 Wliiling. Lutw. 51. 
 
 felt;
 
 158 THE AWARD OR UMPIRAGE. 
 
 felf, that being evidently the intention of the arbitrators: and it 
 was held, that an action of debt on the bond, would lie for the 
 non-payment of the 20s. (a) 
 
 The fubmiflion v/as of certain controverfies refpefting a 
 wine licence, and the arrears of rent ifluing out of certain land ; 
 the award was in fuch term's as thefe, " that 'vvhereas it appeared 
 to the arbitrators that 15I. remained due to the plaintiff, they 
 ordered that the defendant fhould pay him 7I. los. in fatisfac- 
 tion of fo much of the 15I. and fhould aflign to him the wine 
 licence :" it v/as held, in the firfl: place, that though it was not 
 expreffed 0:1 what account the defendant was indebted to the 
 plaintiff, it fliould be prefumed to be for no other caufe than for 
 the rent ; and fecondlj'-, though it was not fliid that the v/ine li- 
 cence fhould be affigned in fatisfadlion of the refidue of the 15I. 
 the better opinion was that it fliould be fo prefumed. {b) 
 
 Where the words of an award have any ambiguity in them, 
 they are always to be conflrued in fuch a manner as to give effe<5t 
 to the award.— Thus, if money be awarded to be paid "in full 
 of all demands ;" thefe words fhall be conflrued to mean " in 
 full of all demands up to the time of the fubmiflion only, not 
 to the time of the award, or to the time of payment, (c) 
 
 On a fubmifBon by the parfon and part of his pariihioners 
 en behalf of themfelvcs and the rcfl-, with rcfpedl to tythe?, it 
 was awarded, that each of the pariihioners fhould give the par- 
 fon notice, when he intended to fhear his fheep ; in anfwer to 
 an ohjeclion that the award was unreafonable, becaufe the pa- 
 riinioner muft follow the parfon wherever he might be, in or- 
 der to give him notice, it was held, that the award muft be con- 
 flrued to mean that the notice fhould be given at the parfonage- 
 hcufe. (d) 
 
 It was awarded that the defendant fhould pay to the plaintiff 
 fo much money, on the firfl of April, and fo much on the firfl 
 of May ; and that the parties fhould pay il. 5s. each to the ar- 
 bitrators for their trouble ; and that " on payment of the mo- 
 
 (a) Parfon s v. Paifons. Cro. El. 
 211. S. P. M. jgand 19 El. inter 
 Treflamet Robins. 
 
 r^; Al.si. 
 
 (c) Per Powell J. 6 Mod. 35. 
 
 (d) Litt. 30. 
 
 iiey
 
 THE AWARD OR UMPIRAGF. t;9 
 
 ney aforefaid" on the firft of May, they fhouIJ give mutual 
 releafes : here the words " on payment of the money afcrc- 
 faid," coming after the award of the money to the arbitrators, 
 it was contended they fiiould be referred to the whole, as well 
 to the money to be paid to the arbitrators, as to that to be paid 
 to the plaintiff by the defendant ; and, according to the opinion 
 wliich then prevailed, the award being void as to the former, be- 
 caufe performance of it could not be compelled, and the releafes 
 not being awarded to be given till performance, it was infifted 
 the award was void for want of mutuality : but the court held 
 that thefe words, " the money aforefaid," fhoulJ be referred only 
 to thofe fums with refpecl to which the award was good, and 
 not to the m.oney awarded to be paid to the arbitrators, ((i) 
 
 An award, reciting that fo much money had been dilburfcd 
 by one party, as was aliedgcd^ ordered that money to be paid by 
 the other : in favour of the award, the court held, that this 
 fhould be underftood as alledged, and not controverted or dif- 
 proved : and that it fhould not be fuppofed that the arbitrators 
 did not inquire into the matter, or that they awarded payment 
 from the mere allegation of the difburfement. (b) 
 
 It was awarded that the defendant fliould pay to the plaintiff 
 81. on the 14th of April, "and that he Ihould deliver to the 
 plaintiff a certain writing obligatory, or a certain bill obligatory, 
 which he had before," and that then the one fliould make to 
 the other general releafes. In favour of the award, the court 
 held, that the word then fhould be referred to the 14th of April, 
 and not to the delivery of the bond to the plaintiff, that the ob- 
 jection to the uncertainty of the intervening phrafe might not 
 excufe the payment of the money, (c) 
 
 A MisRECiTAL of the fubmiflion fliall not avoid the award : 
 thus, where it appeared by fpecial verdift that the fubmiffion 
 bond of the plaintiff was dated on the 22d of February, and 
 that of the defendant on the 9th of March ; but the award recited 
 the latter to have been on the fame day with the former j this was 
 
 f^j J Abrahat V.Brandon. 10 Mod. 
 ?oi. 
 
 ^ij Knight V. Burton. 6 Mud. 132. 
 
 /'cj Bedam v. Clcrkfon. i Ld. 
 Raym, 123. 
 
 held
 
 l6o THE AWARD OR UMPIRAGE. 
 
 held not to be material, (a) So, where the fubmifli vvas dated 
 on the loth of February, and tiic award recited as of the 7th. (bj 
 
 Nor is it any objeilion that money is awarded to be paid at a 
 place by name with the addition of the word " aforefaid;" 
 though the place has not been mentioned before j the word 
 " aforefaid," in fuch a cafe, is to be rejefled as furplufage. (cj 
 
 If the fubmiilion be " fo that the av/ard be made on or before 
 a particular day, or that the arbitrators ihall choofe an umpire," 
 and the umpire fo chofen make an award, reciting that the par- 
 ties had bound themfelves to iland to his award j though com- 
 pared to the words of the fubmiilion, this be not literally true, 
 yet an objection on that account will not be allowed, bccaufc it 
 is but recital. Cd) 
 
 Where the fubmiflion contains the claufe of " ita quod," 
 and the award is made with reference to that claufe, this fhall 
 controul the conftruction of the award in fuch a manner as to 
 fupport it, though the words in theirnatural fignification be more 
 comprehenfive than the fubmiffion, and it fhall be intended that 
 nothing was in controverfy but what was comprehended in the 
 fubmiffion, unlefs the contrary be fhewn : and on the contrary, 
 if the words of the award be not fo comprehenfive as thofe of 
 the fubmiffion, yet, unlefs the contrary be alfo fhewn, it fliall 
 not be intended that any thing more v/as in controverfy than 
 what is comprehended in the award, (e) 
 
 The fubmiffion was by bond conditioned to ftand to the 
 award of J. S. fo that it were made " of and upon the premifes ;" 
 the award referring to that claufe, ordered that one of the par- 
 ties fliould pay to the other lol. two months after the award, 
 and that on fuch payment each (hould make to the other a ge- 
 neral rcleafe up to the time of the payment, though the releafe 
 comprehended a time beyond the fubmiffion, and though It was 
 objected that the bond or promifc of fubmiffion would be re- 
 leafed : this was held to be a good award, for by the payment 
 
 faj Al. 85. 87. 
 
 fb) Toll V. Dawfon. 1 Vent. 184. 
 /'f^ Lambardv.Kingsford. Lutw. 
 55«. 
 
 fJj Adams V. Adams. 2 Mod, 
 169. 
 
 (e) C Mod. 232. 
 
 of
 
 THE AV/ARD OR LT.tPIRACE. I^I 
 
 cf the money the rubmilTiou \va-; at zn c:id, and every thing de- 
 pending on it ; and, on account of the claulc of " ita quod," the 
 releafe fliould be taken to extend only to the things fub- 
 initted. ('jj 
 
 Ok a limilar fubmiffion, it v/as awarded that the one party 
 fliould pay to the other lol. in fatisfaclion of all actions, fuits, 
 and accounts which he might have :ig-'.inll: him for any matter to 
 the time of the award made, and that all fuits then depending, 
 or which afterwasds fliould be depending between them, for any 
 matter, from the beginning of the world to the time of the award 
 made, fhould ceafe ; this was held good, though it compre- 
 hended a time beyond the fubmifllon, becaufe it muft be prc- 
 fumed, without being fhevvn, that nothing had arifcn between 
 the time of the fubniifiion and the award. (^) 
 
 The fubmiflion was of all actions perfonal, " fo that the av/ard 
 were made of and upon the premifes," before Ealtcr : the award 
 made before Eafter, and profefnng to be made, " of and upon 
 the premifes," ordered that the one fiiould pay to the other 20!. 
 at Midfummer next enfuing, and that then the other fhould re- 
 leafe to him all actions perfonal, in fatisfaclion of all matters 
 perfonal between them ; this being made " of and upon the pre- 
 mifes," it was held, that it muft be intended that the releafe was 
 to be of actions only till the time of the fubmiiTion, and not 
 till Midfummer. (cj 
 
 So, where an award was m.ade "of and upon the premifes," 
 that all actions and controvcrfies between the parties fliould 
 ceafe; it was held that, though the latter words, in flrict gram- 
 matical propriety, applied to all matters and controverfies at the 
 time when they were ufed, that 1?, at the time of the award, yet 
 the words, " of and upon the premifes," fliould controul the 
 
 (a) Dulntatur M. 14 Car. B. R. j HiH^ on derrmrrcr. Rol. Arb. O. 5. 
 Atnoke v. Owell, movca in anclt of 1 S. C. Al. 26. there called Gurmaii v. 
 jutlgment and the PcjJea Hay I'ur ceo. Hill. 
 
 Kol.Aib. 0.4. Vid. ace. z Mod. ' (c) 5 Jac. Gofle v. Brown. Rol. 
 j-o, j Alb. M. I. Hob. 7.58. S.C.dtcd 
 
 '(l>) z: Car- B, R. I.erwyn v. i Mo. SSs- pi. 12.^:1. 
 
 M mcanlr.g.
 
 iSz THE AWAT.D OR UMPIRAGE. 
 
 meaning, and refer it only to controyerfies at the time of the 
 lubmillion. C.^J 
 
 There is no doubt but that at prcfent, without the help of 
 this controuling ckufe, the fame conitrucSlion would prevail in all 
 cafes fimilar to the preceding ; even in thofe times of nicety, it 
 was held that an award of a funi of money 720W in controverfy, 
 was good, for that it (hould be underitood to have been in con- 
 troverfy at the time of the fubmlflion as well as at the time of 
 the award, {hj 
 
 Much diiHculty, it has been obferved, occurs in all the morcr 
 ancient reports, on the conltrudlion that ought to be put on the 
 award of a releafe : that which was naturally adopted as the moft' 
 probable mode of putting an end to litigation, between the 
 contending parties, has,, in almofl numberlefs inftances, been the 
 great obftacle to the accompliHii-nent of that purpofe.— It ha3 
 not been without an obftinate ilruggle, that an award of a 
 "general" releafe, unaccompanied with any words from which 
 an unfavourable con(lru£lion might, with any fhew of reafon, 
 be put upon it, has been admitted to be good; though fo early- 
 as the reign of Charles the fecond adillindtion was made between 
 the award of a "general releafe," without additional words, 
 and of a " general releafe to the time of the award ;" (cj yet, {(>■ 
 late as the feventeenth of George the thirds an objecllon was 
 ferioufly taken to an award' becaufe it ordered a " general re- 
 leafe." On a reference at nif. prius of all matters in queftion 
 in the caufey the arbitrators had at firft ordered the pai'tles to give^ 
 general mutual releafes j but afterwards obferving that the re- 
 ference was not of all matters between the parties^ they thought 
 they had exceeded their authority, and therefore they made ano- 
 ther award, in every other refpecl the (ame as the former, but 
 inftead of general releafes, ordered fpecial releafes of all matters 
 in difference in that caufe. An application was made to the 
 court to have both awards fet afide, the firfl: becaufe of the ge- 
 neral releafes, and the fecond, becaufe it was made after the ar- 
 
 (n) Cio. El. 861. Goodman V. Fountain. 
 
 (b) Bafpole V. Freeman. Cio. Jac. 285. 
 
 I'.c) VaG^ue v. Daniel. 25 Car. 2, 3 K'.-b. 251,- 
 
 bitrators
 
 THE AWARD OR L'MPIRAGE. 163 
 
 bitrators had executed their authority. The court however held 
 that the firft award mi^ht be fupportcd, either by conftruing 
 the rcleafc to be lb far good as it fill within the authority of the 
 arbitrators, or if it muft be fuppolcd to be one intire tiling, by 
 rcje<Sting it altogether, (a) 
 
 The leading cafe on this fubje«ft is that of Vanlore and Tribb, 
 as given in Rolle's Abridgement : (bj the fubmiffion was made oa 
 the firft of Alay, of all controverfies between the parties : the 
 award was made on the fourth of May, and ordered that one 
 fhould give a general rclcafe to the time of the award : this was 
 held to be altogether void, bccaufc, comprehending a time out 
 of the fubmiilion, and extending to controverfies that might have 
 arifen between the firft and the fourth of May, it was void as 
 to thefe, and being an intire thing it mult be confidercd as void 
 in the whole. 
 
 But the principal reafon given by the court for this deter- 
 mination wa?, that by this releafe, the bond or afTumpfitjby which 
 the oppofitc party v/r.s bound to perform the award, would be 
 releafed. And this reafon has been adopted in fubfequent cafes. 
 
 It was awarded that the defendant fhould pay to the plaintiff 
 two fums at two fevcral days, and that feveral releafes fhould 
 be given prefently : the court held this was void, becaufe the re- 
 leafe would difcharge both the arbitration bond and the money 
 awarded to the piaintitF. fcj Here the court muft have pro- 
 ceeded on tlie idea thai the rcleafe was an intire act, and that a 
 releafc to the time of the fubmifT.on would not have been per- 
 formance. 
 
 The fiibmiflion bond was dated the ;d of July : the award 
 was that the defendant fhould execute a general releafe to the 
 plaintiiT to the 12th of Auguft following, and that then the plain- 
 till" fiiould give a general relcafe to the defendant : to this it was 
 obje(5led, that as the defendant was to give the firfl releafe, if the 
 plaintiff afterwards rcfufed to give his in return, the defendant 
 
 faj Pickerinpj V. Watfon. 2 Bl. 
 Rep. inr. M. 17. G. 3. C. B. 
 
 (b) Rol. Arb. N. 1. vid. Mnsve 
 V. Samuel. 2 Rol. Rep. 2, rht I'jtne 
 
 cIoiTlrine. Kynailon v. Jones. Rol. 
 Arb. N.2. 
 
 CcJ Adams v. Adams. 2 Mod. 
 169. 
 
 M 2 would
 
 fi^j. THE AWARD OR UMPIRAGE. 
 
 would have no remedy ; for, if, on fuch refuful, tlie defciulant 
 fliould fuc on the fubniiflion bond, and affign the breach in this 
 that the f laintifF had not executed the releafe on his part, he 
 mi^ht plead the prcfent defendant's releafe in bar of this a<fi:ion 
 on the bond. — And here a difiinclion was made by Powell, J. 
 between an award of rcleales generally, and an award of releafes 
 to be executed to the time of the award made : (a) in the for- 
 mer cafe, he faid, the releafe fhould be underftood to relate only 
 to the time of the fubmiflion ; but in the latter, fuch a con- 
 llruftion could not be admitted, becaufe, going exprefsly beyond 
 the time of the fubmiflion, it would releafe the bond of fubmif- 
 fion itfelf, and all intcrn-rediatc ads. But Treby, C. J. faid that 
 it had been held in fuch a cafe, that the fubmiflion bond fhould be 
 excepted, (h) And it certainly had been fo held, about {^vcw 
 years before, in the following cafe. To debt on a bond con- 
 ditioned to perform an award, the defendant pleaded "no award." 
 The plaintiff, in his replication, fet forth an award, " that the 
 defendant fliould pay 5I. to the plaintiff prefently, and give bond 
 for the payment of lol. more on the 29th of November follow- 
 ing, and that the parties fliould "now" llgn general releafes; 
 on demurrer, this was argued to be a void award, becaufe mu- 
 tual releafes were to be given at the time of the award, which 
 would difcharge the bond payable in November following. But 
 the court overruled the demurrer, faying the releafes fliould dif- 
 charge fuch matters only as were depending at the time of the 
 fubmiflion. (c) 
 
 Chief Juflice Trevor, however, afterwards (a) fupported tlie 
 difliniSlion taken by Powell, faying that " to hold that a tender 
 of a releafe to the time of the fubmiflTion was a fufficient per- 
 formance, where the arbitrators had awarded a releafe to the 
 time of the award," would be to make an award, and not to de- 
 clare the law upon it, and then farewell all awards. 
 
 It is now, however, clearly fettled, that an award of releafes 
 
 (a) See this diftinolion 3 Lev. 188, 
 344. 1 Show, 272. 
 
 (h) Marks v. Maniof. i Ld. 
 ■Raym. 115, 116. M. 2. W. 3. 
 
 (c) Rees v. Phelps. M. i. W. 
 and M. 3 Mod. 264. 
 
 (d) M. 13 W. 3. Lee v. Elkuis. 
 Mod. 590. Lulvv. 545. 
 
 up
 
 THE AWARD OR UMPIRAGE. l6j 
 
 up to the time of making the award, is not altogether void, but 
 that it fhall be conftrucd ib as to fiipport the award, and that for 
 two rcafons : the firfl, that it fhall be intended that no difference 
 has arifcn fiiice the time of the fubmiflion, uiilefs it be fhewn 
 fpccially that there has ; the fccond, that a releafe to the time of 
 the fubmillion is a good performance of an award ordering a re- 
 leafe to the /;V/:^7 of the award ; not becaufe the meaning of the 
 arbitrators is fo, but becaufe their meaning muf]: be controulcd 
 fo far as it is void, by conftruilion of law. (a) 
 
 I SHALL conclude this part of the fubj-'ct with one general ob- 
 fervation ; that though an award muir pofTcfs all the qualities 
 which have been defcribed as neceffurily belonging to it, yet the 
 courts, in modern times, have repeatedly declared that they dif- 
 approved of the ftiictnefs with which they were formerly con- 
 strued, and that they v.'ill always adopt a liberal conftruction, in 
 order that awards may anfwer the purpofe for which they ar? 
 intended. (bJ Lord Hardwicke too, on one occafion, declared, 
 that as courts of law had relaxed confidcrably from the rigour 
 formerly obfcrved, it might pofTibly be of confequence to confider, 
 whether courts of equity might not IHII take greater latitude; 
 but he faid he was unwilling to do this, becaufe it would introduce 
 ,confufion and uncertainty, rendering awards a mixed cafe, partly 
 determined by arbitrators, and partly by the authority of courts 
 of equity, and therefore he chofc rather to confine himfelf to one 
 rule, (c) 
 
 In early times, if one part of an award 
 was void, the whole was confidered as void : When an A^vard, 
 but in the reign of Qiicen Elizabeth, Holt ilmigh 'void for part, 
 i\\:%(d) in the reign of King James the Jhnll be good for the 
 firft, it began to be the rule of the courts, r.f. 
 in many cafes, to enforce t!ic performance 
 of that which, had it ftood by itfelf, would have been good, not- 
 withflanding another part might be bad : but the adoption of this 
 
 (a) Ahrahat v. Bran Jon. lo Mod. 
 toi. Squire V. Grevill. 6 Mod. 33. 
 35. z Ld. Raym. 96+, r. Cooper 
 V, Pierce, i Ld. Raym. fi6. vid. 12 
 
 Mod. 116. Godb. 16+, 5. 2 Kjb. .^3T. 
 (/>; Pej Ld. MansHeld. \ Bur. 277. 
 (c) A Atk. 504. (519) 
 (dj 12 Mod. 534. 
 
 M 3 rule
 
 l66 THE AWARD OR UMPIRAGE. 
 
 rule without rcftri6lion, it was foon difcovered wo-jIJ, in many 
 inilances, he produflive ot ir.juilicc. It became tlicrcforc ne- 
 ccflary to dillinguilh in what cafes the rule fnould be adopted, 
 and in what it fliould be rejected. The principles by which the 
 application of the rule fhall be directed are net very accurately 
 explained in the books ; but, from a general purviev/ of the cafe?, 
 I will venture to exprefs them in general terms, and give under 
 each the cafes which feem to juftify my afTertions. 
 
 If an award be void as to part only of what is ordered to be 
 done by one of the parties, but good as to the red, it is not com- 
 petent to him v,'ho is ordered to perform it to objeci to the v/hob, 
 on account of the part v/hich is void ; but he mud perform the 
 part for which the av^ard is good, as if it ftood by itfelf ; unlefs 
 the oppofitc party could objecl to the performance of his part, 
 on account of the want of remedy to enforce pcrform.ance of the 
 part which is void on the other, fa) 
 
 Thus, if the fubmiflionbe of a particular thing, and the av/ard 
 made of that which is fubmitted, and alfo of fomething elfe to be 
 done by the fame party, though with refpecl to the latter the 
 award be good, yet he fhall be bound to perform the refi:. (b) 
 
 As, if the fubmiffion be of all m.atters depending, and the 
 award be that one of the parties fhall not profecute any action 
 depending or arifen at the time of the award made, where there 
 are actions depending between the time of the fubmiffion and the 
 award, in which cafe the award is void as to them, yet the award 
 being good for thofe which were depending at the time of the 
 fubmifaon, mufl be fo far performed, (cj 
 
 If it be av/arded that one fhall pay fo much to the other, and 
 that he fiiall give bond v/ith two furetics for that fum, though this 
 be void as to the fureties, yet he muft give a bond himfelf. (d) 
 
 So, " that the defendant fhall pay the plaintiff 150I. and find 
 three fureties for the payment of a y^777/;t7- fum," though void 
 with refpecl to the fureties he muft pay the 150!. and be bound 
 
 fa) VicL Rol. Arh. N. 6. I fd) Vid. 19 E. 4. i. 18 EJ. 4. 
 
 (b) Tomkins v. Webb. 2 Re 
 Rep. 46. 
 
 Ccj 18 Jac. Sayer v. S;!vcr. Rol. 
 Arb. N. 5. 
 
 23. cited Cro. El. 432. Rol. Arb. 
 N. 7. I Rol. Rep. 270, z Lev. 6, 
 3 Leon. Cz. 
 
 himfelf
 
 THE AWARD OR UMPIRAGE. 167 
 
 ■himfelf for the further fum, if no objeclion can be taken to any 
 other part of the award, (cj. 
 
 So, if it be awarded that the one {hall make afTurance of certain 
 land, within the fubmiiiion, to the other and his wife^ though 
 this be void a? to the wife, who is a llranger to the fubmilTion, 
 yet it is good for the reft, .md he niuft convey the lajid to the 
 •other party himfelf. (cO 
 
 So, if the awird be that one of tlie parties and his wife levy a 
 fine, of the land in difpute, to the other, though this be void as 
 to the wife, yet the hufband muft levy a fine, otherwife he will 
 forfeit his bond, (bj So, if the award be that he fhall make an 
 eRate of certain lands to the plaintifFfor life, with remainder to a 
 ilrangcr in fee, this is good for the eftate to the plaintifFfor life, 
 and for fo much muft be performed, though it be void for tlie 
 xeft./tV 
 
 .So, when it was held that the arbitrator had no power over the 
 cofts of the arbitration, yet '' an award that one of the parties 
 {hould pay a fum of money to the other, and fo much for writing 
 the award," muft have been performed with refpecl to the mon^y 
 to be paid to the other Yizrtv." (d) 
 
 The fubmillion was by bond, conditioned to ftand to an award 
 of all controverfies and doubt?, had, made, moved or ftirred be- 
 tv/een the parties from the beginning of the world 'till the day of 
 the date of the bond : it was awarded that the one fhould pay to 
 the other lol. which appeared by his confeiTion to have been re- 
 ceived by him ; and if it ftiould appear in a month, and due proof 
 fhould be made that he had received more than he liad confelTed, 
 then he fhould pay that alfo. It was objected that all doubts 
 were referred, and the condition contained a provifo that the 
 award fhould be made of the premifcs, yet the arbitrators hp.d 
 not made an end of all doubts, as it appeared they doubted whether 
 more was due or not ; but the court held, that as it was not 
 
 (e) Id. 
 
 (a) M. -,7. 3S El. Samonv. Pitt. 
 Rol. Arb.N.8. 
 
 (bJ Keilw. 43. a. b. 45 b. 2 Keb. 
 
 (c) Brettonv. Pratt. Cro.El. 75?. 
 pi. 27. 
 
 I J' Perryn V. Barry. Brid^rcman 
 90, 91. Piiikney V. Bullock. 2 Keb. 
 759. 2 Lev. 3. 
 
 M 4 averred
 
 l6S THE AWARD OR UMPIRAGE. 
 
 averred that there was any doubt moved or flirred between th-e 
 parties at the ti:ne of the fubmiiTion, it fhould be prefumcd that 
 thisdo-abt arofe in the rninds of the arbitrators after the fubmif- 
 fion, and that they added this rcfervation only by way of greater 
 caution on their own pr;rt: and though fuch a refervatlon was 
 void, yet the award was good for the payment of the lol. (a) 
 
 If that part of the award which is void, be fo connected with 
 the refl as to affbiSl the jufrice of the cafe between the parties, 
 the award is void for tlie whole. — Thus, where it was awarded 
 " tliat the defendant ihould pay to the phuntifF 40I. by indal- 
 ments, namely, lol. at Alichaelmas, 20]. at Chiitlmas, and lol. 
 at the annunciation j and, if before the laft payment it (hould 
 fccm to the arbitrator that the defendant was engv;ged for the 
 phintift'in any debt not fatisaed, he fhould repay him fo much, 
 as the debt not fatisiied amounted to ; and that the i^arties fhouid 
 give mutual rcleafcsj" it was held, that that part with refpe6l to 
 the reimburfcment being void, and aiTecling the whole of the 
 award, the whole was void, (bj 
 
 I HAVE ventured to aflcrt that it is not necefTary that an award 
 fhouid be mutual, in the fenfe in which the rule is expreiled, and 
 in which it is commonly underliood, namely, that fomething 
 murt be awarded in favour of each party : however, when frora 
 tlie tenor of the av/ard, it appears that the arbitrator has intended 
 that his award fnould be mutual, awarding fomething in favour 
 of one of the parties as an equivalent for what he has awarded in 
 favour of the other ; if then by any of the rules for the conftitu- 
 tion of an award, that which is awarded on one fide, be void, fo 
 that performance of it cannot be enforced, the award is void for 
 the whole, becaufe that mutuality, which the arbitrator intended, 
 cannot be prcfl-rved. 
 
 Thus, where tl^e difpute related to the title of a copyhold te- 
 nement, and it was awarded that the defendant fnould pay 61. to 
 the plaintiff on the twehty-firfl of May, and that then the plain- 
 tiff fhouid releafc all his right tc the copyhold, and three months 
 
 (a) Jeanes v. Fourthc on a writ of cr ■ 
 rci- from C. B. and jucigment affirmed 
 in U. R. H, 10 Car. Rol. A:b. M. 5, 
 
 (b) Winch and Grave v. Saunders. 
 Cro. Jac. 52-4.. ^ 
 
 after
 
 THE AWARD OP. UMPIRAGE. l6p 
 
 after the aforefaid firll: of May flioulti make further aiTurance to 
 the defendant ; at a time when the courts would not fujiply the 
 word " twenty,'* but for want of it held all that part of the award 
 to be void ; it was perfectly confonant to reafon and juftice that 
 they fliouid liold the award void for the whole, and not force the 
 defendant to jiay the 61. v/hcn he could not have that in return 
 which was intended by the arbitrator as a confideration for it. (a) 
 
 So, when it was held that the arbitrator had no power over the 
 colts of the reference, if it had been awarded that one of the par- 
 ties fhould pay the other lol. and that the latter fhould pay the 
 cofls of the reference : the latter part being void, and intended as 
 a recompcnce or equivalent for the other, it was reafonable to 
 confider the whole award as void, fbj 
 
 So, where A. and B. fubmitted, to certain arbitrators, the title 
 of certain land, who awarded that all controverfies fhuuld ceafe 
 concerning the land, and that B. fnould pay to A. 81. and that 
 A. his wire and fon and heir apparent, by the procurement of A. 
 fhould pafs to B. fuch aflurance of the land as B. fhould require j 
 this was held to be void for the whole; A. could not compel his 
 wife and fon, who were Grangers to the fubmiffion, to make the 
 allurancc, and perhaps the v/ife and fon had the eftate of the land 
 in them, and their pafTmg the eilate was the confideration for 
 which the 81. were awarded to be paid by B. to A. fcj 
 
 It was awarded that the defendant fliould pay and fatisfy the 
 plaintiff for taflc work, and days work done by the latter for the 
 former, and that then the plaintiff fhould pay to the defendant 25I. 
 and give him a general relcafc of all controverfies : this was held 
 to be void for the whole, becaufe being void for that awarded to 
 be done by the defendant on account of the uncertainty of how 
 much he was to pay to the plaintiff for the ta(k work and days 
 work, the recompence intended for the plaintiff' was gone. C^iJ 
 
 Ir one intire acl: awarded to be done on one fide comprehend 
 ievcral things for fome of which it would be good, and for others 
 
 (a) Yel. 98. Maikhnm v. Jen- 
 nings. Rol. Arb. K. 15. Brovvnl.Qi. 
 
 (h) Rol. Arb. K. 13. 14. Cio. 
 Jac. 5-7. 8. Al. lo. loMoii.joi. 
 
 (c) Barney v. Faicrchildc. Rol. 
 Arb. N. 9. 
 
 (J) 2 Saund. 293. 
 
 rot,
 
 170 THE A\VARD OR UMriRAGE. 
 
 not, the award is bad for the whole, becaufe the acl cannot be 
 divided. — As if an aggregate fum be awarded to be paid to one 
 of the parties for confiderations exprefled in the award, fome of 
 which arc within the fubmiffion, and others out of it, this is void 
 for the whole, becaufe it is impofliblc to diltinguifh how much 
 was intended for the confiderations. — Thus, where the fubmif- 
 fion was of all controverfies between the plaintiff and defendant, 
 and the wife of the latter, for divers fums of money laid out for 
 the wife by the plaintiff at her requej} when fhe was fole : an 
 award " that the defendant fliould pay to the plaintiff a certain 
 fum of money, for all fums laid out by him for the wife while 
 fole, without the addition of its being at her requiij}^'' Vv^as held 
 void, in thofe times when the courts were unwilling to prefume 
 a;iy thing in favour of an award, and therefore would not take it 
 for granted that the whole was laid out at the requeft of the wife : 
 and in this cafe had any thing been av/ardcd on the other fide, 
 the award would have been totally void, becaufe it would have 
 wanted that mutuality which the arbitrators had intended to pre- 
 vail in their award, (a) 
 
 "VVi-iEN it was held that a rcleafe extending to a time beyond the 
 fubmifllon, was void for the whole, and that the execution of a 
 releafe to the time of the fubmiffion was not a good performance 
 of an award which ordered a releafe to the time of the award ; and 
 when it was held that, without a releafe, no fatisfaction could be 
 prefumed, unlcfs fome virords were ufcd which neceffarily implied 
 a fatisfaflion : in thofe times, if money had been ordered to be paid, 
 and then a releafe from the other to a time beyond the fubmiffion, 
 the latter part being void, the whole award would have been 
 void, (b) — This is the do^i-ine cf Rolle in his abridgmeiit of 
 the cafe of Vanlore and Tribb, from his own reports ; and from 
 this cafe as given in the abridgment, all the difficulties with re- 
 fpecl to releafes have arifen. 
 
 The cafe as given in his reports, by no means juftifies his con- 
 clufion here : in thcfe the av/ard is flated to have been, " that one 
 
 (a) Waters v. Bridges, adjudged I (h) Vanlore v. Tribb. Rol. Arb. 
 on a writ of error. Cro. Jac. 639. | N. i. cites his own ReporK. 
 
 of
 
 THE AWARD OR UMPIRAGE. I7I 
 
 of the parties fhould pay (o much to the other in fatisfaciion of 
 all duties which " he" (the latter as it would feem) had againlt 
 *' liiin" (the former apparently) as adminillrator to J. S. and 
 that " he" (it appears doubtful which of the two is here meant) 
 fhould make a rcleafe to " him" (here the fame doubt prevails) 
 of all adions to the day of the award:" the breach aliigned was 
 the non-payment of the money, and the cueflion was, whether, 
 as the award was confefiedly void as to the rcleafe, " he" fhould 
 be bound to perform the remainder, that is to pay the money. — 
 The doubt with rcfpedl to the award as here Hated is whether 
 from the confufion of the pronouns we are to underftand that the 
 releafe was to be given by the fame perfon who was to pay the 
 money, or by the other to him in confequcnce of the payment j 
 if we are to underftand the former to have been the cafe, as feems 
 nccelTarily to be implied from the manner of reafoning both of 
 the court and counfel, there could be no queflion but he was 
 bound to pay the money, for that was altogether independent of 
 the rcleafe. — It is laid down as a principle in the argument of the 
 counfel, that as the party is bound to perform every thing in the 
 award, therefore he ought to perform that which is good, though 
 part be void; this iu adopted by the court, and judgment given 
 accordiiigly for the phiniiit.faj Had the relcafe been awarded 
 to be givcii by the other party on payment of the money to him, 
 then the quedion could not have been directly whether he who was 
 to pay the money was bound to perform his part of the award ; 
 but that would have depended ultimately on the queftion with 
 refpecl to the releafe itfelf; and according to the princi[»les which 
 then [)revailed the award with refpet5l to the rcleafe would have 
 been confidered as void, and therefore that being the rccompencc 
 for the payment of the money the award would have been of one 
 fide only, and therefore void for the whole, according to the doc- 
 trine of the abridgment. 
 
 The next cafe in the abridgment^ is one of a fubmifTion on the 
 firft of May of all matters between the parties, and an award 
 that the one ihould pay to the other 203. in fatisfadtion of all 
 matters between them to the time of making tlie award, which 
 
 was 
 faj I Rol. Rop, 437. S. C. Brid^eman, 59.
 
 17- THE AWARD OR UMPIRAGE. 
 
 v/as on the fourth of May. — Though this comprehends more 
 time than the fubmillion, fays the abridgment, ftating the words 
 of the court, yet becaufe it fhall net be intended that there were 
 any matters between them, from the time of the fubmiflion, to 
 that of the award, if it be not fhewn on the other fide, the award 
 is good, (a) R o!le adds his own opinion, that this cafe feems to be 
 good lavv', but that the rcafon on which the court relies, is not the 
 true reafon, becaufe it crojjes the rcafon given for the judgment 
 in the cafe before; for there the award was held to be void, be- 
 caufe there might have been other difputes between the time of 
 the fubmiffion, and the award: but he fays, it feems the reafon 
 of the prefent cafe is, that though there tvcre other matters be- 
 tween the fubmiinon and the award, and fo the award void for 
 thefe, yet here there is not one intire act to be done, as in the 
 cafe before of the relcafe ; but the 20s. fhall continue a good fatis- 
 faclion for the other matters fubmitted; and all the inconveni- 
 ence is that perhaps the money to be paid was increafed by rea- 
 fon of the intervening matters, and fo he may fuftain fome pre- 
 judice, but no prejudice can be fuHained on the other fide. — 
 The reafon of the court, however, is more confonant to the 
 principles of judicc than that of Rolle — by prefuming that 
 there were no matters between the i)arties, from the time of 
 the fubmiflion to that of the making of the award, the court fup- 
 pofe that the arbitrator had not in contemplation any injury for 
 which he was to give a fatisfaftion, but thofe which were within 
 the fubmiflion, and that the words feeming to comprehend fome- 
 thing more, muft be confidered only as an inaccurate expreflion. 
 — But the reafon fuggefted by Rolle, is agalnft the juftice of the 
 cafe; for if in truth the arbitrator, by confiderlng other injuries 
 than thofe fubmitted to him, had increafed the fatisfaclion, beyond 
 that which he would otherwife have given ; and if the party not- 
 withftanding that increafc of damages, be not precluded from fuing 
 His opponent for thofe injuries which were out of the fubmiflion, 
 the intention of the arbitrator does not prevail. 
 
 It is only by fuppofing that the arbitrators have not exprcflTcd 
 
 (a) M. 24. Car. B. R. Kynaflon v. Jones. H. 15 Juc. Ley v. Payne. 
 Hutt, 9. Mu. 885. pi. 124.2. 
 
 their
 
 THE AWARD OR UMPIRAGE. 173 
 
 \hcir real meaning with perfeft accuracy, that the following and 
 many other funilar cafes can be fupported, with a due regard to 
 juftice. 
 
 Tkk fubmiflion was by A. and B. of all fuits between them, 
 concerning certain tythes; the award was that A. (hould pay to 
 B. a certain fum of money, and that B. fhould fuffer all fuits 
 which he had againft A. to be difcontinued, when in fact he had 
 other alliens againft A. which did not concern the tithes : the 
 court held that the award, though void as to the difcontinu- 
 ance of the aflions which did not concern the tithes, was yet 
 good for the reft, " becaufe the fuffering, fays Rolle, of the 
 adions to difcontinue, is not an intire adt like the execution 
 of a releafe." (a J But the only fair reafon muft be thp.t the arbi- 
 trator had no other aclions in contemplation than thofe con- 
 cerning the tithes. 
 
 It is indeed laid down by Lord Coke, In general, unequivocal 
 terms, " that though fcvcral things be awarded to be done in fa- 
 tisfa£lion of another, and fome are within the fubmiflion, and 
 fome out of it and therefore void j and although all were intended 
 by the arbitrators to be a plenary and intire recompence for the 
 things done by the other, yet if any thing to be given or done to 
 the party, though of fmall value, be within the fubmiflion, the 
 award Is good, though it appear to have been the intent of the ar- 
 bitrators, that that which Isv/ithin the fubmiflion, without thcrell, 
 fliould not be a plenary fatisfaclion for the thing to be done by 
 the other party, (bj — But Jufl:ice Powell mentions this opinion 
 of Lord Coke in terms of difapprobation, and fays, that the judg- 
 ment in the cafe which Coke had then in contemplation was 
 afterwards reverfed on a writ of error, (cj It well deferved his 
 difapprobation -, for if it were to prevail, the inadvertence or ths 
 blunder of an illiterate arbitrator might in many inltances be 
 converted into an inftrument of the grofleft injufticc. 
 
 (a) Tr. 18 Jac.B.R. Inorramv. 
 Webb. Rol. Arb. N. 4. ^7. Rol. 
 Rep, i6i, Cio.Jac. 663,664. Palm. 
 
 (h) 10 Co. 131. b. 13:. b. Rcl. 
 Arb. b. 22. 
 
 (c) 1 Lson. 170. V'id. iz Mod. 
 587. 
 
 However
 
 174 THE AWARD OR UMPIRAGE. 
 
 Hovv EVER, v,;hcn it appears that both parties have the full 
 efrecl of what was intended them by the arbitrator, though fome- 
 thing be awarded which is void ; yet the award Ihall Hand for 
 the reft. 
 
 Thus, if it be awarded that the one fhall pay the other 40s. in 
 fatisfadlioii of all matters between them, and that the latter fhall 
 give the former a releafe of all matters up to the time of the award, 
 though the award be void as to the releafe, yet it fhall fland as 
 to the reft', becaufe without the releafe, the mutuality intended by 
 the arbitrator remains complete. (^J 
 
 So, an award, "that the plaintiPr* fhall have and enjoy a certain 
 horfe which was in controverfy between the parties, and that 
 the defendant fhould pay him 3I. before Michaelmas, towards 
 his charges, and that they fhall releafe the one to the other all 
 matters whatfoever, between the time of the award made and St. 
 Michael," though void as to the releafe, would now be confi- 
 dercd as valid for the refl. Cl^J 
 
 So, an av^ard " to pay lol. in fatisfaclion of trefpafTes, and that 
 both parties fnall give mutual rcleafes to the time of the award," 
 is p-ood as to the lol. becaufe, by being in fatisf^vilion of the tref- 
 pafs, the mutuality is complete v/ithout the releafe. fcj 
 
 The fubmifTion v/as by bond in the penalty of 2000I. the bond 
 of the plaintiff's was dated on the twenty-fecond of February, 
 that of the defendant on the ninth of March ; the award ordered 
 that the defendant fhould pay to the plaintiffs izocl at four pay- 
 ments; that on the fourth of May he fhould enter into four 
 bonds for the payment on the days appointed, and fhould then 
 pay to the plaintiffs 30I. towards their cofls and charges ex- 
 pended ; that all adions and controvcrfies between the plaintiffs 
 and the defendant fliould ccafe and determine ; and that they 
 fhould feal and deliver to each other general releafes of all con- 
 troverfies, fuits and demands, to the eighth day of March. — The 
 objcftion made to this award was that the releafes being ordered 
 to the eighth of March, the plaintifPs bond of fubmifTion, which 
 
 (a) Rol. Arb. M. 4. K- 9- 
 
 f/'j Held contra formerly. Stain v. Wild. Cro. Jac. 352, 353. 
 
 (c) Freem. 265. 
 
 was
 
 THE AWARD OH UMPIRAGE. i;- 
 
 Was dated on the twenty-fecond of February preceding, vvouM 
 be diicharged by the defendant's releafe : but in this cafe tlic 
 court thought that ti»e queftion, whether the award as to the 
 releafes was void, was immaterial ; becaufe, it beiiig awarded 
 tliat all fuits fliould ccafe, the award was reciprocal, and a fufH- 
 cient fatisfadtion for the money ordered to be paid by the de- 
 fendant, (a) 
 
 It was awarded that the plaintiff fhould pay 30I. to the de- 
 fendant, and that the latter, on the payment, uiould furrendcr to 
 the former, the poUefuon of a houfe in which the defendant lived, 
 and deliver to the plaintifF a deed, by which the houft; was in- 
 tailed to the plaintifF, and deliver up all bonds which he had 
 againft him, and execute a general releafe to him, to the 12th of 
 Augull, the fubmillion bond being dated the 2d of July preced- 
 ing, and that the plaintifF fhould then give a general releafe to 
 the defendant. — It was objected that the award was not mutual, 
 becaufe the dc' jndant being ordered to give his releafe firfr, tiie 
 plaintifF might refufc to give that awarded on his part, and the 
 defendant had no remedy to enforce it ; becaufe if he brought 
 an adion on the fubmiilion bond, the plaintifF might plead the 
 defendant's releafe in bar : but it was held that whatever might 
 be the efFe<Sl of fuch a plea, the award was mutual v/ithout the 
 releafes, and no defect with refpcdl to them fliould vitiate 
 it. (b) 
 
 An award confifted of the following diflincSl particulars. 1. 
 That the defendant fhould pay all his own cofls till the day of 
 the fubmifiion. 2. That he fliould execute a general releafe to 
 the plaintifF, of all a<Stions, &c. unto or upon the fame day. 
 3. That he fhould deliver to the plaintifF all the deeds mentioned 
 in the award relating to the premifes in difpute. 4, If he did not 
 deliver them, then he fhould pay to the plaintifF 50I. 5. That 
 the defendant fhould procure double fixpenny ftamps to certain 
 indentures relating to the premifes. 6. That the defendant 
 ihould pay to the plaintifF \\\. for the cofts in the fuit recited in 
 
 /'^yKynafton and Spencer V. Jones. I (hj Marks v. Marriot. i \A. 
 Al. 87. Rol. Arb. N. 5. j Rajm. 114, 5, 6. 
 
 the
 
 I76 THE AWARD OR UMPIRAGE. 
 
 the award, on or before the fecond day of May following, and 
 give a bond in the penalty of 74I. with a condition to pay the 
 faid III. and that the plaintiff on the performance thereof fhould 
 execute a releafe to the defendant of all actions unto or upon the 
 day of the fubmiffion. 
 
 Though the opinion of the greater part of the court was that 
 the releafe to be made by the plaintiff to the defendant, would, 
 if executed, have been a releafe to the fubmiflion bond ; yet they 
 were all of opinion that the av/ard was good, becaufc it amounted 
 to a particular fatisfa<Siion, and mutual recompence as to each 
 particular matter awarded, (a) 
 
 By an umpirage, it was ordered that all a6lions fhould ceafe. 
 
 2. That the defendant fhould pay to the plaintiff 12I. 15I. 3d. 
 
 3. lliat the defendant fhould deliver to the plaintiff certain goods 
 particularly mentioned, and three boxes, and feveral book?:, 
 without naming them ; and that the plaintiff fhould deliver to 
 the defendant feveral articles by name ; but that, if any of the 
 goods fhould be miflaid or loft, then the parties fhould pay the 
 value of them, to be appraifed by the umpire, and the arbitra- 
 tors, and that the parties fhould execute mutual releafes. — In an 
 action on the bond for performing this award, the breach was 
 affigned in the nonpayment of the 12I. 15s. 3d. 
 
 That part of the award, refpe6ting the three boxes andy^- 
 leralhooks v/as held to be void, as it clearly is, on account of 
 the uncertainty as to the books ; as to that part which relates 
 to the appraifement of the goods, that might be millaid or loft, 
 by the umpire and arbitrators, doubts were entertained ; fome (b) 
 holding that it was a judicial act, Powell that it was a minifterial 
 a£t. — With refi;c6t to the releafes av/arded to be executed on 
 both fides, it was rclblved, that, although no time was limited for 
 the execution, nor was it faid, that it fliould be done, on or af- 
 ter the performance of the other parts of the award ; yet the 
 award being void, with refpeil to the delivery of the goods, 
 neither the one nor the other was obliged to give the releafe, for 
 
 then 
 
 (a) Lee v. Elkin. i 3 W, 3. C. B. Lutw, 54.5. 
 
 (b) Trevor, C. J. and Blencow, J.
 
 THE AWARD OR UMPIRAGE. 177 
 
 then the goods would be releafcd without any futisfacllon, which, 
 as was faid by one of the judges, would b^ abfurd. 
 
 It was alfo held, that the fubmiflion in this cafe containing 
 the provihonal claufe of " Ita quod," if the award was void for 
 a part, it was void for the whole; and being void for that part 
 relating to the delivery of the goods, it was void for the 
 whole, (a) 
 
 The proper way, however, of confidering the cafe, feems to 
 be this : that part of the award which gives 12I. 15s. 3d. to the 
 plaintifl", and orders the delivery to the ]!aintift" of certain goods 
 particularly mentioned, and three boxes, with feveral books, 
 without particularifing them, is altogether the confideration in- 
 tended by the umpire for the delivery of the goods by the plain- 
 tiff to the defendant, and part of that confideration being void, 
 the plaintiff could not be compelled to perform his part ; confe- 
 quently if the defendant had been held to the payment of the 
 12I. 15s. 3d. he could not have had that equivalent which the 
 arbitrator intended him. But had the plaintiff alledged that he 
 had delivered the goods awarded to be delivered on his part, it is 
 conceived, no objection could have arifen on the part of the de- 
 fendant en account of the releafes, becaufe without them the 
 award would then, in every refpedl, have been mutual. 
 
 In all the cafes in which objections are made to the 
 award, as wanting mutuality, on account of one part being void, 
 the arguments are founded on the fuppofition that the defendant, 
 on performance of his part, has no means of enforcing perform- 
 ance from the plaintiff of the part awarded to be performed by 
 him in return ; this ftrongly fayours the argument, that where 
 that obje£lion is removed by an actual previous performance on 
 the part of the plaintiff, the defendant fhall be bound to perform 
 his, where there is no reafon to impeach the validity of that. — 
 This opinion is confirmed by the reafoning of the judges in the 
 cafe of Lee and Elkins. ^/^J— Powell, J. fays there is a diverfity 
 to be obferved ; where an award confifts of feveral things, for 
 
 (a) Cockfon v. Ogle. 13 W. 3. LiUw. 550. 
 (/') 12 Mod. 588. 
 
 N one
 
 f78 THE AWARD OR UMPITIAC , 
 
 one of which it is void, and it is exprefsly faid, that on per- 
 formance of that which is void, the other party fhall do fome par- 
 ticular thing, there the performance of that, for which the award 
 is void, is a condition precedent, and mufl be averred before the 
 action againft the other for not doing his part, can be maintained. 
 But when there are feveral things in an award, for fome of which 
 it is good, and for others not, and it is further faid, that on per- 
 formance of the premifes, the other party fhall do fomething 
 in return, there the words " on performance of the premifes," 
 fhall only apply to that, part of the award which is good, and 
 performance of fo much obliges the other to do what belonged to 
 him. And, in the latter cafe, the opinion of Lord Hale feems 
 fo have been conformable to that of Powell. The award was 
 that the defendant fhould pay to the plaintiff lol. and that the 
 plaintiff fhould pay to the defendant the expences to the making 
 of the award, and that then^ each fhould give to the other a. 
 mutual releafe : the breach being affigned in the non-payment of 
 the lol. by the defendant, it was objeded that the award was 
 not mutual, becaufe it was void for the expences to be paid by 
 the plaintiff, and therefore no releafe was ever to be given ; but 
 Hale held that on performance of that, for which the award was 
 good, the releafe ought to be given, (a) — But this diftindlion 
 ■was, on good reafon, denied by Chief JufUce Trevor, who faid, 
 that in the latter cafe mentioned by Powell as well as in the for- 
 mer, if it appeared that the arbitrators defigned that fuch illegal 
 part fhould be part of the confideration, in refpe6l of which the 
 other was to perform, that illegal part muft in fa6t be performed, 
 otherwife the oppofite party would not have that advantage 
 which was defigned for him; and he would be injured by being 
 forced to pay for a confideration, of which he had not the be- 
 nefit.— Thus, if feveral things were awarded to be done on the 
 part of the defendant, againft which no objedlion could be taken, 
 and alfo that he fhould give the plaintiff a general releafe, " unto 
 and upon the day of the arbitration bond," and that then the plain- 
 tiff fhould give him a like general releafe ; though, by the Chief 
 Juflice, it was held that the releafe was void, as extending to 
 
 the 
 
 (a) Pinkney v. Hall, i Lev. 3. 23 Car. z.
 
 THE AWARD OR UiMPIRAGE. Jt^ 
 
 the (lay of the fubmifTion, and fo going beyond the fubmiflion, 
 yet he held that the plaintiff" was not bound to give the releafe on 
 his part, independently of the fame objection to its legality, un- 
 lefs the defendant firft gave his releafe ; but if the plaintiff aver- 
 red performance on his own part, the defendant could not ex- 
 cufc himfelf from the performance of what was awarded to be 
 done by him, merely on account of the illegality of the part to 
 be performed by the plaintiffs 
 
 Where the fubmifTion is verbal, without a 
 provifo that the award (hould be made in writ- The Form of the 
 ing, a verbal award is fufncient. ("a) Av^ard, 
 
 If the fubmiflion be by bond, and the condi- 
 tion contain a provifo that the award (hould be made and ready 
 to be delivered, either in writing or by word of mouth ; a parol 
 award is in this cafe alfo fufficient. (h) And where the provifo 
 is merely that the award fhall be made and delivered, it feems 
 that it may be made without writing ; (c) at leaff it is not ne- 
 ceffary for the plaintiff" to fliew that it was in writing. — If the 
 provifo be that the award be made in writing or by word of 
 mouth before two witncffes, a verbal award alone will not fa- 
 tisfy the provifo, it muft alfo be pronounced before two vvit- 
 nefles. (d) 
 
 If the provifo be that the award fhall be made and delivered 
 under the hands and feals of the arbitrators, the award muff: be 
 a<5luallysfubfcribed by them ; fealing alone will not be fufficient. (e) 
 But if the arbitrator make his mark, that is fufficient fubfcrip- 
 tion. (f) 
 
 And if the provifo be that the award fhall be fealed with the 
 feal of the arbitrator before a certain day, it will not be fuffi- 
 cient for the party pleading the award, to alledge that he has it 
 in court fealed with the feal of the arbitrators, he muft fhew 
 
 (a) Cable v. Rogers. 3 Bulftr. 
 312. 
 
 (b) Hanfon v. Liverfcdge. 2 Vent. 
 240, 241. 
 
 (cj Rous V. Nun. 1 Sid. 155. vid. 
 ante74, -5acc. 
 
 N 2 that 
 
 (d) Wilfon V, Conftable. Lutw. 
 536. 
 
 (c) Thairev. Thaire. Palm. 109, 
 112, 121. 
 
 (f) 3 Salk. 44.
 
 |8o THE AWARD OR UMPIRAGE. 
 
 that it was fealed at the time of the delivery. Ca) — But thougft;, 
 in the beginning of the replication, it be only faid, that the ar- 
 bitrators, by their writing fealed with their feals, awarded ; yet 
 if it be afterwards faid, that it was ready to be delivered under 
 their hands and feals, it will be fufficient to fatisfy the provifo. C^J 
 
 It was formerly held that a provifo " that the award fboud be 
 made by deed indented," was not fatisfied by an award made in 
 writing without being indented, and that even the acceptance 
 of it by the parties unindented, would not alter the cafe, (c) 
 — It was further held that an averment " that it was made ac- 
 cording to the effed: and form of the condition would not aid it, 
 becaufe that relates to the delivery to the parties, and J'oj it is 
 faid, it bath been often adjudged, (d) But the good fenfe of later 
 times, has confidered this objedlion as altogether immaterial, and 
 of not more confequence than if the fubmiflion required the 
 award to be made on gilt paper, (e) 
 
 Where there is a provifo that the award be made, " of and 
 upon the premifes," it is not neceflary that the award fhould 
 exprefsly purport to be made " of and upon the premifes," for 
 unlefs the contrary appear on the face of it, it cannot otherwife 
 be intended. — This, at leaft, fecms the true conclufion from two 
 cafes reported : where the fubmiflion contained that provifo, 
 and if the arbitrators did not make their award within the time, 
 then an umpire flaould decide ; the arbitrators did not make any 
 award within the time, but the umpire did, without profefling to 
 make it " of and upon the premifes;" it was held that the pro- 
 vifo extended to the umpire, as well as to the arbitrators ; but 
 that though he had not profefled to make his award " of and 
 upon the premifes," it was fufficient. (f) 
 
 It is not in all cafes abfolutely neceflary 
 
 Performance nvhat that performance fhould be exaftly accord- 
 
 f?all be, ing to the words of the award j if it be fub- 
 
 flantially and effeflually the fame, it is fuf- 
 
 (a) Palm. \^\. Jenkinfon v. Al- 
 lenfon. 3 Kcb. 51-5. 
 f Z>y Lambard V. Kingsford. Lutw. 
 
 (c) Dift- per Hale in Elborough v. 
 
 Yates. 3 Keb. 125. adj. in HInton 
 V. Cray. 3 Keb. 512. 
 
 (d) Burges v. Pleyer. Freem. 4.67. 
 
 (e) Barnes 56. 
 
 (jl I Keb. 790. 865. 
 
 ficient.
 
 THE AWARD OR UMPIRAGE. l9l 
 
 ficient. Thus, if it be awarded that one of the parties fhoulJ 
 deliver, to the other, the laft will and teftament of his teftator, it 
 is fufficient to alledge a delivery of letters teftamentary, becaufe 
 thefe are in effeiSl the fame thing, (a J Where it was awarded 
 that one of the parties fhould " withdraw" his adion, it was 
 much debated whether his fufFering a difcontinuance would fa- 
 tisfy the award : the report of the cafe is far from being clear, (b) 
 but the prevailing opinion fcems to have been that it fliould not ; 
 for by this award, it was faid, the party muft do an aft ; he muft 
 come into court before the day which was given for the conti- 
 nuance, or before the return of the writ, and fay that he will no 
 further proceed in his action, on which the entry on the record 
 is, " that the plaintiff comes in his proper perfon and fays that he 
 v/ill no further proceed in this plea." 
 
 A DISCONTINUANCE, howevcr, feems a fufficient perform- 
 ance of fuch an award, becaufe it has the fame effect as a retraxit ; 
 for though a retraxit be a bar to another adlion, which a difcon- 
 tinuance is not, yet by bringing another action after an award of 
 a difcontinuance, the party as much difobeys the award, as if 
 he did the fame after an award of a retraxit. 
 
 Where the award orders a releafe to a time beyond the fub- 
 miflion, a releafe to the time of the fubmiffion is fufftcient per- 
 formance, (c) 
 
 Performance by the attorney is equivalent to performance 
 by the principal ; as if the award be that the party (hall difcon- 
 tinue his fuit, a difcontinuance by his attorney is fufficient. (d) 
 
 If it be awarded that one of the parties fhall pay a fum of 
 money to a ftranger and his affigns before a certain day, and be- 
 fore the day, the flranger die, the party muft pay the money to 
 the executor or adminiftrator ; for thefe are the affignees in law ; 
 and the law is the fame, where no mention is made of affigns, in 
 the award, (e) 
 
 (a) 17 Ed. 4. 3. cited 3 Bulftr. 
 67. 
 
 (b) zi Ed. 4. 38, et feq. 
 
 (c) Godb. 164, 5. 1 Sid. 365. 
 
 6Mod.34,35. 12 Mod. 8, 117, 589. 
 et vid. ante page 162 — 165. 
 
 (d) Jenk. 136. dift. contra of a 
 retraxit. 
 
 (e) 3 Leon. 212. 
 
 N 3 Where
 
 l82 THE AWARD OR UMPIRAGE. 
 
 Where the concurrence and prefence of both parties is not 
 abfolutely neceffary to the performance, each ought to perform 
 his part without requeft from the other, (a) Thus, where the 
 award was, that the defendant fhould reaflign to the plaintiff cer- 
 tain premifes mortgaged to him' by the latter, it was held, he 
 was bound to reaffign without the prefence or concurrence of 
 the plaintiff, and if the mortgage had been of a fee, the reaffign-. 
 ment might be done by leafe and rekafe. Had the award been 
 that he fhould reinfeoffe the plaintiff, he could not ha\'« performed 
 without'the prefence of the plaintiff or fome one on his behalf to 
 take livery. ChJ 
 
 Where an adl is awarded which may be done two ways, but 
 by the one, it cannot by law be done before a didant day, and 
 by the other it may be done immediately, the party muff do it 
 in that way in which he may do it immediately, unlefs he has a 
 time by the award, which goes beyond the diflant day. Thus 
 where the award was that one of the parties fhould grant the re- 
 verfion of an eftate held for term of life, this, before the ftatute 
 for the amendment of the law, might have been done in two 
 ways ; by fine, or by deed, and attornment of the tenant for life, 
 but the fine could not be levied before term, the reverfion muff 
 therefore have been granted by deed, which might be done 
 immediately ; however, it muff be obferved, that, before that 
 flatute, the conveyance would not have been complete without 
 the attornment of the tenant- which could not be compelled but 
 by " per quae fervitia," or " quem redditum reddat ;" and thefe 
 could not be profecuted with effe6l 'till the term : if, therefore, 
 the party could not have completed the conveyance before term, 
 he could not have been guilty of a breach of the award, fcj 
 
 It may fometimes be a queffion, when mutual things are 
 awarded, who (hall do the fu ft act. On a fubmiffion of a battery 
 committed by one of the parties againfr the other, if it be awarded 
 that the offender fhall pay a fum of money, and the other give 
 
 (a) Nihil nliud effe, fententise ftare, 
 quam id agere, quantum in \\>Co fit, 
 ut arbitri parealur fenlenliae, Ff . 1. 4. 
 t. S. f. 23. n. 2, 
 
 {bj RoflxV. Hodges. 1 Ld. Raym. 
 Z33, 234.. 
 
 (cj 21 Ed. 4. 40 — 43. quaere, for 
 thc report is very inaccurate. 
 
 hiiti
 
 THE AWARD OR UMPIRAGE. 183 
 
 him a rclcafe of all a(5tions, or a releafe fimply, there tne pay- 
 ment of the money muft precede the releafe, becaufe, according 
 to the old dodrine, fuch a releafe would have extended to the 
 money awarded in fatisfadion. But if the award be that the 
 one {hall pay money, and the other give him a releafe of " the " 
 ai^ion, this not extending to difcharge the payment of the money, 
 and the remedy on the award remaining for the recovery of it, 
 after the execution of the releafe, there is no precedency required, 
 and the offender may fue on the award, and affign a breach in 
 not executing the releafe without fhewing that he has paid the 
 money, nor will he be barred, by the other party's alledging the 
 non-payment, in his plea, (a) 
 
 If the party, in whofe favour the award is made, accept of a 
 performance differing in circumftances from the exa6l letter ot 
 the award, that is fufficient: — thus, if it be awarded that the one 
 fhall infeoff the other, in a piece of land, and the latter come to 
 him and require him to infeoff J. N. and himfelf, to the ufe of 
 him and his heirs; if he make the feoffment accordingly, this is 
 performance of the award, fufficiently within the intent, though 
 not exadlly within the words, (b) So, if the award be, that the 
 defendant fhall condu6l the fervant of the plaintiff to London, 
 and the defendant, by the direction of the plaintiff, deliver him 
 to A. B. at Salifbury to be conducted to London, this is fufficient. 
 But where the fubmiffion bond was to a ftranger, and not to the 
 party in whofe favour the award was made, it was held that fuch 
 a performance would not fave the penalty of the bond, becaufe, 
 by the law relative to bonds, he was bound to a ftridt and literal 
 performance, (c) It was afterwards, however, decided on fo- 
 lemn argument, that in fuch a cafe, if the obligor did all he could 
 to perform the award, and the party in whofe favour it was made 
 prevented the literal performance, this was fufficient, becaufe 
 when a bond is given to A. by B. conditioned to ftand to A.'s 
 award between B. and C. there is fufficient privity between the 
 
 (a) Bilford v. Flint, a Bulllr. 
 117. vid. « Keb. 163. 403. 3 Keb. 
 ^8. SirT, Raym. 169. 
 
 (b) 36 H, 6. cited 3 Bulftr. 67- 
 
 (c) Id. 
 
 N 4 two
 
 184 THE AWARD OR UMPIRAGE. 
 
 two latter to make the default of C. in whofe favour the award 
 is made, excufeB. (a) 
 
 But, without having recourfe to that privity, it may be ob- 
 ferved that in this refpecl the cafe of an award is different from a 
 common bond, for by a bond to ftand to an award, the obligor 
 is only bound to perform the award in a reafonable manner, and 
 it would be too much to fay it was reafonable, he ftiould compel 
 the other party to accept performance. 
 
 If the award be to pay on or before a particular day, payment 
 before the day is equivalent to payment on the day, (bj and fo 
 one might fuppofe if the award were to pay on the day, without 
 the word, " before." (c) 
 
 If no day be limited for the payment of money awarded, it 
 muft be paid within a reafonable time, and the party to whom 
 it is to be paid, is not bound to make a requeft before he bring 
 his a6lion for the recovery of it. (d) But it feems rather a ftridt 
 conftrucftion, that if the party who is to pay the money let acon- 
 lidcrable time elapfe, the other fhould be at liberty to refufe it 
 when offered, and be permitted, notwithftanding fuch tender and 
 refufal, to fuc on the fubmiifion bond. — Such ftriclnefs, however, 
 was formerly adopted.— Money was ordered to be paid, by an 
 award dated on the firfl of May. The plaintiff brought his ac- 
 tion, afligning the breach in the non-payment of the money, the 
 defendant pleaded a tender and refufal at Michaelmas, and the plea 
 was overruled, becaufe the time elapfed was too long, (ej — There 
 is no doubt, however, at prefent, but that if the tender is adlually 
 before the commencement of the adlion, it is fufficient; and this 
 is conformable to the civil law on the fame fubjecl. (f) 
 A CONSIDERABLE number of years having elapfed fince the 
 
 making 
 
 /i2> 22 Ed. 4. 27. BrookeArb.pl. 41. j fd) 21 Ed. 4. 38etfeq. 
 ('^^ Hinton V.Crane. 3 Keb. 675,6. (e) Jenk. 136. 
 
 (cj Si arbiter, me tibi certa die pe- (f) Si dies adjeftus non fit, ineft 
 
 cuniamdare]xi.^<nt, tu accipere nolu- 
 ifti : — pofTe def'endi, ipfo jure poenam 
 jnon committi, Sed fi poftea tu para- 
 tus fis accipere : impune me non datu- 
 rum; non cnim ante feoeram. Ff. 1. 
 t;. t. 8.f. 23. n. 3.f. 24, 
 
 quoddam modicum tempus, quod ubi 
 pra2terierif, poena ftatim peti poteft ; et 
 tamen fi dederit ante accepium judici- 
 um, agi ex ftipulatu non poterit. Ff. 
 1. 4. t. 8. 1'. 21. n. 12. Utique nifi ejus 
 inteifuerit, tunc folvi. f. 2*. Celfus 
 
 ait^
 
 THE AWARD OR UMPIRAGE. 185 
 
 making of the award, is no objection to the parties being called 
 upon to perform it. 
 
 A TESTATOR left his fon and brother executors ; the teflator 
 was pofTcfTed of a confiderablc perfonal eftate : the brother pof- 
 fefled hitnlelf of it, promifing to give a juft account, and that the 
 fon fliould have his fliare of it; butdifputes arifing between them, 
 thefc were referred to arbitrators, and mutual bonds given to 
 ftand to the award : The arbitrators awarded that the perfonal 
 eftatc fhould be equally divided between them, and that each 
 fhould give the other a general releafe. The brother having the 
 greateft part of the eftate in his hands, promifed to fliarc it with 
 the fon, according to the award •, the fon relying on tb.ut promife, 
 gave his uncle a general releafe, and wifhing to have his fliare, 
 to enable him to difcharge fome debts which he had contracted, 
 applied to his uncle, who pretending that he had not money, 
 borrov/ed zool. of one Hody, and 300I. of one Holland, for which 
 he gave his bond, and advanced 30I. of his own money, and took 
 a mortgage from the fon as a fccurity for the payment of the 
 530I. — The fon could never bring his uncle to account, and to 
 divide the teftator's eftate according to the award. — When the 
 fon tendered to his uncle the 530I. with intention to have his 
 mortgage delivered up, the latter declared that on a juft and fair 
 account there would be nothing due, and that therefore he fliouId 
 have his mortgage delivered up to be cancelled. — The brother 
 made his will, appointing his wife executrix, and died. The 
 widow proved the will, and the fon exhibited his bill againft: 
 her, praying that he might have his ftiare of his father's eftate as 
 awarded to him : the defendant confelFcd the charge in the bill. 
 
 ait, fi arbiter intra Kalendas Septein- 
 bres dari juflcrit, ncc datum erit : licet 
 pollea ofFeratur, attamen (cinel com- 
 niiflam pcenam compromifli non eva- 
 nefccre : quor.iam llmper vcriiin eft, 
 intra Kalendas, datum non efle. Sin 
 autem objatum accepit, poenam petere 
 non poteft, doli exceptione rtmoven - 
 dus, contra ubi, duntaxat Jare jviffus 
 eft. Idem ait, li juft"crit me tibi Jare, 
 ct valctudinc fis impcditus, quo minus 
 
 accipias, aut alia jufta ex caufa : Procu- 
 lum cxiftimare, poenam non committi 
 nee fi,poft Kalendas, teparatoaccipere, 
 non dem. Scd ipfc rc6lc putat duo efle 
 arbitri pra:cepta ; unum, pecu/iia:n 
 dari, aliud, intra Kalendas dari. Licet 
 igitur, in poenam non committas quod 
 intra Kalendas non dedcris, quoniani 
 per te non ftetit : tamen committis in 
 earn partem, quod non das. f. 23. 
 
 but
 
 IS6 THE AWARD OR UMPIRAGE. 
 
 but faid (he believed her hufband had performed the award, and 
 infifted that ihe ought not, either as executrix of her hufband, or 
 otherwife, to be drav/n into account; for that her hufband lived 
 twelve years after the award made ; and faid, that though Hody's 
 debt was paid, yet fhe had been fued for Holland's, and had paid 
 it, and that on payment of that and other fums expended by her, 
 (lie was willing to affign the mortgage. 
 
 The court decreed an account and diflribution of what was 
 awarded, as well as a redemption of the mortgage, but that the 
 account of the mortgage fhould be taken apart and not attend the 
 account on the award. — That the maflcr fhould compute what 
 money was due to the defendant, and on payment of that flie 
 fhould reconvey the mortgaged premifes to the plaintiff. That 
 the mafler fhould inquire whether the award had been performed 
 by the brother, and if it had not, then that the defendant fhould 
 be anfwcrable in fuch manner as the mafler fhould appoint, (a J 
 If the arbitrators award that a fuit de- 
 ff'vat /ball be a pending in Chancery between the parties. 
 Breach of the Anuard. fhall ceafe ; it is no breach if the plaintiff 
 in the bill file another in the fame caufe, 
 if he do not fue out procefs on it; for it is faid, till procefs be 
 fued out, a fuit is not properly depending, and till that time the 
 defendant cannot be faid to be molefled : that this refembles the 
 cafe of a counterbond from the principal obligor in an original 
 bond to fave his furety harmlefs ; where though the original bond 
 be forfeited, yet this in itfelf is no damnification, and the counter- 
 bond is not forfeited till fome adual damage happen to the 
 furety. (h) 
 
 If an award order that the defendant fhall reafTign to the plain- 
 tiff certain mortgaged premifes, it will be a breach if he do not 
 reallign without requefl. (c) 
 
 An award that all fuits fhall ccafe between A. and B. does not 
 extend to fuits, between A. on one fide, and B. and a third per- 
 
 C^; Sweet V. Hole. Ca. Temp. | 98. i R0l.Rep.7iS. Cro.Jac.340. 
 Finch, 384. 
 (h) Freeman V. Sheene« aBulftr. 
 
 Browr.l. 122. 
 
 (c) I Ld. Rayni, a34. 
 
 Ton
 
 THE AWARD OR UMPIRAGE. 
 
 18/ 
 
 fon on the other, and confequently the profecution of a fuit be- 
 tween fuch parties is not a breach of the award, (a) 
 
 A CONTINUANCE from term to term is no breach of an award 
 that the plaintiff in an ailion fliall not profecute or proceed dur- 
 irig the fame term, (h) 
 
 It was awarded that the defendant fhould pay to the plaintiff" 
 8i. or 3I. and cofts of fuit in an acflion of trefpafs between the 
 plaintiff' and defendant, as ffiould appear by a note under the at- 
 torney's hand, " at the pleafure of the defendant."— The queffion 
 was, whether the defendant was bound to procure the note cf the 
 attorney, and to make his eleftion, or the plaintiff was bound to 
 tender him the note, before he could bring his action and afTign 
 a breach in the non-payment of the one or the other. This 
 queftion, it was argued, depended on another, which was this ; 
 whether, in the prefent cafe, the attorney was to be confidered as 
 a ftranger to the plaintiff; for if he was, it was not incumbent on 
 the j-Jaintiff to give notice to the defendant of the fum due by the 
 note, but the latter was, at his peril, to procure it from the attorney; 
 but, if the attorney was to be confidered as the fervant of the plain- 
 tiff, and it was in his j^ower to compel him to deliver the note, then 
 the defendant was not bound to make his eleflion till that was de- 
 livered to him. — The judges were at alofs how to determine, and 
 the court not being full, the queftion was adjourned. — But after- 
 wards the fubjecfl: was refumed, and judgment given in favour of 
 the plaintiff, on the principle, that, though the attorney is to 
 many purpofes the fervant of the principal, yet in the cafe before 
 the court, it did not lie in the knowledge of the plaintiff", to what 
 the fum amounted, and he could not compel the attorney to 
 make the note, (c) But this judgment is open to fome obferva- 
 tion. — Muff not the attorney be confidered as the agent of the 
 plaintiff? and, if he had refufed to make the note, at his requeff, 
 might he not have been compelled, by an application to the court 
 for that purpofe ? 
 
 If, by an av/ard made in the middle of a term, it be ordered thit 
 one of the parties fhall ceafe a certain fuit which he has againft 
 
 (a) Barnardifton v. Fowlycr. 10 [ (h) Gray v. Gray. Cio. Jac. 525. 
 Mod. 204, 5. J (c) March. 109, 137. 
 
 the
 
 lS8 THE AWARD OR UMPIRAGE. 
 
 the Other; it may appear trifling to by it down, as an important 
 point, that it will be a breach in the plaintiff in the fuit to profe- 
 cute it to judgment afterwards in the fame term : but it was, in 
 truth, ferioufly argued that this was no breach of fuch an award; 
 becaufe, by fiilion of law the judgment relates to the firft day of 
 the term, and therefore the award being made in the middle of the 
 term, was of a thing which it was impolTible for the party to per- 
 form; the fuit having ceafed by the judgment, by relation, before 
 the award was made. — And fuch is the imbecility of the human 
 mind, when its views are contradled by the technical dogmas of a 
 fingle fcience, that the judges, inftead of reje£ling this as mere 
 jargon and abfurd nonfenfe, very gravely obferved, that though by 
 fiction of law, every judgment related to the firft day of the term, 
 yet as the plaintiff had in his declaration cxprefsly averred that 
 the defendant, after the time of theav^^ard made, had continued to 
 profecute his fuit to judgment, and though it appeared to be of 
 the fame term, yet the defendant ought to have taken advantage 
 of it, by fpecial demurrer, (a) 
 
 If an award be that the one fhall make a leafe for a term of 
 years to the other rendering rent, and the leafe be accordingly 
 made, and the tenan: do not afterwards pay the rent, this is no 
 breach of the award on the part of the tenant, nor is his fubmiflion 
 bond forfeited ; the remedy of the leffor for his rent is the fame 
 as in every other cafe of landlord and tenant : the award was 
 completely performed by his acceptance of the leafe with the 
 rent rcfcrved. (b) 
 
 So, if it be awarded that the defendant enter into a bond for 
 the payment of money to the plaintiff at a future day ; if he give 
 the bond, that is performance of the award, and by non-payment 
 at the d^y, he will forfeit only the ben J awarded, not the bond of 
 fubmiflion. (c) 
 
 So, in the cafe of an award to give a note for the payment of 
 money, the giving of the note accordingly will be performance, 
 
 ('rt^ Huys V, Wright, ijac. Yel- 
 verton 35. 
 
 (b) Benl. 15. pi. 16. ^^ Hen. 8. 
 
 More. 3. pi. 8. there faid to be 
 28 Hen. 8. 
 (c) Str. 903. I Barnard. 463. 
 
 and
 
 THE AWARD OR. UMPIRAGE. 189 
 
 and the plaintlfTmuft on non-payment be confined to his aclion 
 on the note, (a) 
 
 If an award be made between the grantee of a rent and the 
 terre-tenant of the land out of which the rent iflues, *' that the 
 grantor (hall ftand acquitted of the rent," the grantee is not bound 
 by this to give the tenant a releafe ; it is fufficient if he never 
 purfue any remedy for the recovery of the rent, by action or 
 diftrefs. (b) 
 
 CHAP. VI. 
 
 The REMEDY to compel PERFORMANCE, when' 
 THE Award OR Umpirage is properly made. 
 
 IN the Roman law, the only remedy which either party could 
 have againft the other for difobedience of the award was to 
 fue for the penalty exprefled in the fubmifiion. (c) But with us 
 the remedy is various, according to the \?iXio\xs forms of the fub- 
 mifiion. 
 
 Though the fubmifiion be verbal, it has been feen, fd) that 
 in all cafes an a^Sticn may be maintained on the award, whether 
 it be for the payment of money, or for the performance of a 
 collateral adl ; where it was of the latter kind, however, it was 
 not but by flow degrees that it was held that the aiSl of fubmif- 
 fion implied in itfelf a promife to perform the award ; before the 
 courts went fo far, they held that the promife was collateral to 
 the fubmifiion, and that where it was laid to have been made at 
 thzfame time with the fubmifiion, proof of the latter might have 
 been confidered by the jury as a foundation for prefuming the 
 former : but if the promife had been laid to have been made at 
 any other time, though on the fame day with the fubmifiion, 
 
 (a) Booth V. Garnett. Str. 1082. I (c) Viil. p. 5, 6. 
 
 (b) 2 Bulftr. 96. I (J) P. 8. 
 
 then
 
 190 THE REMEDY 
 
 then in an action on the cafe, proof muft have been given of an 
 actual prOmife. (a) 
 
 Where the award, on a parol fubmiflion, is for the payment 
 of money, the adiion on the award may be an action of debt as 
 well as where the fubmiflion is by deed, and as well where the 
 award is verbal, as where it is in" writing, (h) It may alfo be 
 an atSlion oi ajfumpfit : in all other cafes on a parol fubmiffion, an 
 eJftonpfA is the only fpecies of a6lion that will lie. 
 
 When the courts would not fupport an action on an award 
 of a collateral thing, where the fubmiflion was verbal, unlefs 
 there were adtually mutual promifes to ftand to the award, oa 
 confideration of a certain fpecific fum, it was, of courfe, ne- 
 ceflliry that the declaration fhould run in fome fuch form as this ; 
 " Whereas certain differences fubfifted between the plaintiff and 
 the defendant, and they had fubmitted themfelves to the award of 
 J. S. concerning the premifes, and in confideration of 6d. given 
 by the one to the other, the one alTumed to the other to ftand to 
 his award," that affumption being ftated in the terms of it. (c) 
 When mutual promifes only v/ere held to be a fufficieHt founda- 
 tion for this action, it was no longer neceffary to Itate any con- 
 fideration for them in the declaration : when the a6t of fubmif- 
 fion was of itfelf confidered as an implied promife to perform 
 the award, it became of courfe fufficient to ftate the fubmiflion. 
 
 In all actions on the award however, whether debt or afllimpfit, 
 it mult necefTarily be fhewn that the parties fubmitted, before 
 the award can be properly introduced ; and that fubmiflTion muft 
 be fhewn in diredl, unequivocal terms ; ' that the arbitrator was 
 nominated "on behalf " of the defendant,' is not fufficient j it 
 muft appear that he was in efFetSl nominated by the defendant, 
 Tvhich, the former expreflion, it is faid, does not fufliciently im- 
 
 II 
 
 (a) Vv\. Read v. Palmer. P. 24 
 Cai". Al. 69, 70. 
 
 (b) I (Jo not fiml any clireft autho- 
 rity fcr this, but the general tenor of 
 tlie cafes feems to juftify the conclu- 
 lion. — Smith v. Kirfoot. 1 Leon. 72. 
 and OrmlaJe v. Cuke. Cio. Jac. 
 
 354, are a£lions of debt on the bond, 
 Init it does not appear whether either 
 the fubmiflTion or the award was ver- 
 bal or in writing. 
 
 (c) Vid. Goodman v. Fountain' 
 Cro. EI.S61. Colfton v. Harris, id. 
 904. 
 
 port)
 
 TO COMPEL PERFORMANCE. igi 
 
 port, for the nomination may have been by fome friend, to which 
 the defendant might not have confented. faj 
 
 It is alfo faid, that it muft appear for what caufe the parties 
 fubmitted ; fbj perhaps the reafon may be, that it ought to ap- 
 pear whether the award be according to the terms of the fub- 
 miflion. 
 
 The fubmiflion, too, muft be fo dated as to correfpond 
 with the award and fupport it ; othervvife the plaintiff cannot 
 have judgment ; therefore, where the declaration recited 'that 
 certain differences had arifen between the plaintiff and the de- 
 fendant, and that they had fubmitted to the arbitration of J. S. 
 who had awarded, " of and upon the premifes," that the defend- 
 ant fhould pay to the plaintiff 3 ol. in fatisfa6lion of all fums due 
 to him out of the eftate of one Woolly,' and the breach was 
 affigned in the non-payment of this money ; though a verdidt was 
 given for the plaintiff, yet the judgment was arrefted, becaufe it 
 did not appear by the fubmiflion as recited, that^ the defendant 
 was executor, adminiftrator, or truftee for Woolly, or that he 
 had any thing of his, or had fubmitted on his behalf, fcj 
 
 When the a£lion is on a mutual afTumpfit to pay a certain 
 fum on requeft, if the defendant fhould not ftand to the award, 
 an adlual requeft to pay that fum, before the ailion brought, 
 muft be ftated ; for in a cafe like this the requeft is an efTential 
 thing to intitle the plaintiff to his a6lion ; and there is a dif- 
 ference between a mere duty and a collateral fum ; in the ftrft 
 cafe, as where there is a jiromifi to pay on requeft, all fums lent 
 to the defendant, no actual requeft is neccfTary ; the bringing of 
 the adlion is a requeft; but in the latter cafe, an adual requeft 
 is neceffary, becaufe the promife of payment on requeft is as a 
 penalty, and collateral, fclj — And the averment " that though re- 
 quefted he had not paid," is not a fufficient allegation of the re- 
 queft made ; it muft be fhewn, by pofitive affirmation, to have 
 been made before the aiStion brought, fej 
 
 (a) Dilly V, Polhill. 2 Str. 913. 
 
 (b) Brooke Aib. pi. 3+, cites 5 Ed. 
 4. 1, which feems a wrong citation. 
 
 (c) Adams v. Statliaiii. 2 Lev. 
 235. z Show. 61. 
 
 (J) Birks V. Trippet. i SaunJ. 
 33. 2 Keb. ii6. 
 
 (e) Semb. lor in the cafe here cited 
 the words " tbo' requcfted" were in- 
 i'ertcd. 
 
 In
 
 igt 
 
 THE REMEDY 
 
 In an action on the afiumpfit to perform the award, the plain- 
 tifFmay affign feveral breaches ; this cafe is not like that of a 
 I enal obligation, in an acSlion on which at common law, one 
 breach only could be affigned, that being fufficient to forfeit the 
 obligation; but, in the afTumpfit, only damages are recoverable 
 according to the extent of the lofs fuftained by the plaintiff on 
 account of the non-performance, and that may arife on every 
 breach. In fuch a cafe, however, if one of the breaches be af- 
 figned in non-performance of a part of the award which is void, 
 and intire damages be given, the judgment will be arrefted : 
 tnus, when an award of a releafe to a time beyond the fubmif- 
 fion was held to be void, if it had been awarded that the de- 
 fendant fhould pay 15I. to the plaintiff in fatisfadion of a judg- 
 ment, and that he fhould alfo releafe to him all demands to the 
 time of the award ; and in an affumpfit on this award, the breach 
 had been afligned in non-payment of the money, and in not 
 giving the releafe, if then intire damages had been given, a judg- 
 ment on that verdict would have been erroneous, (a) 
 
 When the fubmiilion is by bond, if the av/ard be for the 
 payment of money, an action of debt on the award lies, as well 
 as an action on the bond ; fl?J but the latter is the adtion moft 
 ufually brought, in which the order of pleading commonly ob- 
 ferved i?, that the plaintiff declares on the bond as inordinary 
 cafes of actions on a bond ; the defendant then prays oyer of the 
 condition, which being fet forth, he pleads that the arbitrators 
 or the umpire made " no award;" then the plaintiff replies, not 
 barely alledging that they did, but fetting forth the award at 
 large, and affigning the breach by the defendant, and on that the 
 whole queftion arifes as on an original declaration. — The de- 
 fendant then either rejoins that they made ^'- no fuch award," on 
 which the plaintiff takes iffue — or, he demurs, and the plaintiff 
 joins in demurrer, (c) 
 
 Where by the condition of the bond, the award muft be 
 made before a certain day, the defendant, inftead of pleading 
 
 fa) Jenk. 264. vid, Yelv. 35 a dic- 
 tum vvliich feems contra, willi refpect 
 to '.he intirety of the damages. 
 
 (h) Vid. Str. 923. Freem. 410, 
 415. 
 (c) 5 Ed. 4. 108. Brooke pi. 33. 
 
 fimgly
 
 TO COMPEL PERFORMANCE. (93 
 
 flmply that no award was made, may plead that no av/ard v/as 
 made before that day, becaufe he is not bound to perform an 
 award made after it ; then the plaintiff in his replication muft al- 
 ledge the award, which he fets forth, to have been made before 
 the day. (a) 
 
 The plaintiff muft indeed fhew that the award was made 
 within the time limited, whether the defendant plead in this man- 
 ner or not; for without that, his right of aiStion will not be com- 
 pletely ftated. (bj — But an allegation under a " videlicet" will 
 be fufRcient : thus, " that the arbitrators, after the execution of 
 the bond, and before the exhibiting of the plaintiff's bill, videlicet, 
 on fuch a day, made their award," is fufficient. And a diftinc- 
 tlon is taken, between a cafe, where the words under the " vide- 
 licet " are repugnant to the preceding m.atter, and where they 
 are not ; in the former they are merely furplufage, and muff be 
 rejecSled ; in the latter, they are an affirmation fufficiently pofi- 
 tive that the award was made, on the day mentioned after the 
 " videlicet," and no other day can be prcfumed. (c) 
 
 To this the defendant cannot rejoin, by faying that the arbitra- 
 tors gave him no notice before the day, of any award made j for 
 Independently of any objeftion that might be made to the fub- 
 ftance of the rejoinder, on account of the arbitrators not being 
 bound to give notice of the award, (d) it is a departure from 
 his plea, by which he had denied the exiftence of any award at 
 all, before the day. ^f/ — In one book, we are told, that if the de- 
 fendant wiih to avail himfelf of want of notice, he muft fet the 
 award forth in his plea, and then aver that he had no notice of 
 it before the day. (f) This, however, leems an inconfiftency ; 
 for how can he fet forth that of which he had no notice ? and if 
 in fa£l: he be enabled, at the time of his plea, to fet forth the 
 award, he will ftill, in many cafes, be bound to perform if, 
 though he had no notice on the day when it v/as made. The 
 plaintiff too, might take ilFue on the fadt, whether the defendant 
 knew of the award before the commencement of the action. — 
 
 (a) 31 H. 8. Brooke Alb. pi. 42. 
 
 (b) I Ski, 370. 
 
 (c) I Saund. 169. 2 Kcb, 361, 3S3. 
 Bur. 1729) 1730. 
 
 (d) Vid. p. 67—73. 
 
 (e) Keilw, 175. a. 
 (fj Id. ibid. 
 
 O And
 
 rg^ THE REMEDY 
 
 And it appears, by fubfequent refolutlons, that, where the cori» 
 dition of the bond contains a provifo,- " that the award fhould be 
 made and delivered to the parties, dn or before a particular day,^' 
 by which a delivery accordingly becomes eflential to bind the 
 parties, the defendant " proteiting that no award was made," 
 may ailedge as a plea, " that after the making of the bond, and 
 before or on the day appointed, no award was delivered to the 
 parties, of or upon the premifes, fpecified in the condition of the 
 bond, (a) 
 
 If the plaintifF can contradi£l this plea, it is faid, that he 
 fnuft do it in direct terms, alledging exprefsly that the arbitra- 
 tors made their award, fetting it forth with certainty, and that 
 they delivered i-t to the parties in writing within the time limited. 
 —It will not be fufficient, it is faid in fome places, (b) to ailedge 
 the delivery, by way of inducement, in fuch terms as thefe, 
 ** That the arbitrators having, at fuch a time and place, under- 
 taken the burthen of the award, after the execution of the bond 
 and before the day appointed, by their award made in writings 
 and then and there delivered by the faid arbitrators to the faid 
 parties awarded, &c." It is however only faid, in this cafe, that 
 all the juftices argued againft the plaintiff, but no judgment was 
 given.— In another book, fcj it is adjudged that the allegation of 
 delivery in this manrter by inducement is fufficient. 
 
 The provifo contained in the condition of the fubmiflioii 
 bond was, that the award fhould be made and ready to be deli- 
 vered by three o'clock in the afternoon of the fixth of April : 
 the defendant pleaded that the arbitrator made no award of the 
 premifes before three o'clock of the dsy aforefaid in the condi- 
 tion aforefaid fpecified : it was objected that this plea was un- 
 certain, becaufe there were two moments of time which might 
 fatisfy the words three o'clock ; and the award might have been 
 made before three o'clock in the afternoon, though it was not 
 made before three in the morning ; the court held that this would 
 have been a good exception, if the plaintiff had demurred for 
 
 fa) Bendl. 39, Benl. 108. 2Keb. I fbj Dyer 243. b. 
 <^02o \ (cj Cio. Jac. 285, 
 
 this
 
 TO COMPEL PERFORMANCE. lf?5 
 
 tills caufc-, but as he had replied, the objection was not now opeh 
 to him. (a) 
 
 Every thing neceflary to fhew that the award was made ac- 
 cording to the terms of the rubmilTion, mufl be ftatcd by the 
 plaintiti'; as, if the fubmirnon contain a provifo that the award 
 be made in writing or ore ter.us before two witnefles, it is not 
 fufficient to fet forth an award alledging it to have been made- 
 ore tenus; it mufl: alfo be faid to have been made before tv/o wit- 
 nefTes. (bj 
 
 So, formerly If the provifo had been that the award fnouJd 
 be by deed indented, the plaintiff muft have alledgcd it to ha^■e 
 been fo ; otherwife it was thought, it would not have appeared 
 that the arbitrators had purfaed their authority, (c) 
 
 So, where the condition contains a provifo that the award 
 be put in writing under hand and feal of the arbitrators ; in 
 pleading it muft be faid to have been mnde under hand and feal, 
 and not under feal only, (d) — But, when the provifo requires 
 that the award fhall be ready to be delivered, it is not nece.Tary 
 to alledge that it was ready ; it is fufficient to fay that it was made ; 
 the allegation of the hitter implies the iormtr.(c) 
 
 But where the provifo was, that the award fliould be made 
 and ready to be delivered on or before a certain day, at a certain 
 fliop in London ; and the plaintiff fhewed an award made at 
 York, faying that it was ready to be delivered at the fliop in 
 London, this was adjudged to be a void publication and delivery, 
 becaule a particular place was appointed, where the parties were 
 to expeil it, and not elfewhere. (f) It h.is alfo been held that, 
 in this cafe, an "averment that the award was ready to be de- 
 livered according to the form of the condition,'' was not fuffi- 
 cient, for that it muft be faid at the very place ; and that a 
 
 faj Beilam v. Clcrkfon. i LJ. I v. Girling. Cro. Jac. 178. =Mod. 
 
 Raym. 123, 124 
 
 (b) VVillon V. Conftable. Lutw 
 
 (c) z Keb. 156, but firc page 
 
 77, 78. 
 
 (e) I Kcb. 739. 1 Lev. 133. 6 
 Mod. 82. 2 Ld. Raym. 989. 
 
 ffj Vid. Hardies 399. i Show. 
 
 180. [ 93, 242. Cartli. 158. 3 Mod. 330. 
 
 CiO I Bulrtr. Scot V.Scot. Trairc LJ. Raym. 115. Frecm.416. 2R0I. 
 V. Traire. 2 Rol. Rep. 243. Sallows I Rep. 193, 194. Cro. Jac. 5-' 8. 
 
 O 2 dcliverv
 
 ig6 THEREMEDY 
 
 delivery at another place would not be fufEcient, notwithftand- 
 ing the party's acceptance, though it was obferved that the in- 
 'fertion of a particular place in the provifo, was only that the 
 parties might go there to fee the award, (a) 
 
 It is not ncceflary to ftate the date of the award ; if it be al- 
 ledged to have been made on a day which is within the time of 
 the fubmiffion, that is fufficient, and then it fhall be intended to 
 have no date, and fhall be confidered as binding from the day of 
 the delivery, (h) 
 
 It is held, in a great many books, that the plaintifF muft 
 mention the place where the award was made, becaufe, it is faid> 
 the place is rfluable, and matter of fubftance ; [c) however, it is 
 allowed to be fufficient, if the place appear by way of recital, (d) 
 
 In introducing the award, after having ftated that the parties 
 fubmittedto the award of the arbitrators by name, it will be fuf- 
 ficient afterwards to fay, that t!ie aforefaid arbitrators, without 
 repeating their names, proceeded to confider the matters, and 
 made their av/ard > becaufe the word " aforefaid" refers to the 
 arbitrators mentioned before j and for the fame reafon, wherever 
 in any fubfequent part of the pleadings they are introduced, it 
 may be done by the fame epithet without name, (e) But if the 
 name be miftaken in any part, that, it is faid, will render the 
 pleading bad. In fetting forth the condition, it was exprefled to 
 be, to fland to the av/ard of two by name, and if they made no 
 award, then to the umpirage of " Randolfe" Wulley ; the de- 
 fendant pleaded, that neither the aforefaid arbitrators, nor the faid 
 " Ranulf" Wulley, made any award : this was held not to be a 
 good plea, becaufe Ranulf was not the fame name as Randolfe, 
 and the word " aforefaid" prefixed to Ranulf was not fufficient 
 to remove fo weighty a difficulty in the opinion of two of the 
 judges ;^/^ though another f^^ took a diftin6lion between the 
 making of the award itfelf, and the manner of pleading it, ob- 
 
 (a) Elhorough v. Yates. 2 Keb. 
 874. 3 Keb. 69, 125. But the judg- 
 ment is reported contra in 2 Lev. 68. 
 
 (b) 6 Mod. 244.. 2 Ld. Raym. 
 1376. Salic. 76, 498. 3 Bulftr. 312. 
 
 (c) Vid. Cro. El. 753. 2 Vent. 
 
 72. et vid. 9 H. 6. 5. and Cro. El. 66. 
 
 (d) 2 Keb. 390. 
 
 (e) Lumley v. Hutton. i Rol. 
 Rep. 271. 
 
 (f) Coke and Houghton. 
 
 (g) Dodderidgc. 
 
 ferving,
 
 TO COMPEL PERFORMANCE. 1 97 
 
 ferving, that where the fubmifllon was to Randolfe, and the 
 award was made by Ranulf, this was another man, but it fcemcd 
 othcrwife in jileading, for here the word aforcfaid afcertained Ra- 
 nulf to be the fame mai) as Randolfe. 
 
 It was anciently held, th.it the plaintiff, after fetting forth the 
 award, mufl: lliew that he had himfclf performed that part which 
 he was ordered to perform, unlefs by the terms of the award the 
 performance on the part of the defendant was to precede the per- 
 formance by the plantiff. (a) 
 
 But now there are only two cafes in which the plantifFmuft 
 even fuggeft performance on his part: the firft is where the 
 part awarded to be done by him is void, and cannot be enforced 
 by the law, and unlefs he avers performance, the defendant may 
 objeil to the v/hcle award for want of mutuality, (b) The fecond 
 is where, by the terms of the award, performance on the part of 
 the plaintiff is a condition precedent to that on the part of the 
 defendant ; for there he muft fhew that he has done every thing 
 neccffary to intitle him to call on the oppofite party. But ten- 
 der by the plaintiff, and refufal by the defendant, will be fufficlent, 
 unlefs the thing to be done by the plaintiff can be done without 
 the concurrence of the other. 
 
 Thus, where the fubmifllon was concerning certain lands, and 
 the arbitrators awarded that the plaintiff fhould, on the fecond of 
 March then next following, pay to the defendant 7I. 10s. for 
 every acre of the land, to be meafured by an able meafurer in the 
 presence of the arbitrators and umpire, or fome or two of them, 
 after the rate of feven yards to the pole; on payment of which, 
 the defendant, his heirs or alTigns, fhould pafs, convey, or fur- 
 render to the plaintiff or his heirs, or fuch as he fhould appoint, 
 all the faid land?, with warranty againfl the defendant and his 
 heirs, and all claiming under him ; or in default of fuch payment, 
 the plaintiff and his heirs fhould feal and deliver a releafe of all 
 his claim to the faid lands, and every part of them, and a general 
 releafe of all adlions, fuits, and demands : the plaintiff having 
 
 faj Vid. Brooke 45. pi. zz. verf. finem and the year books pafTim. 
 (bj Yid. ante p. 16S et feq. 
 
 O 3 f^;ued
 
 igg T K E R E M E D Y 
 
 ftated this award, averred that it had been tendered to th« de- 
 fendant on the day limited for the malcing of it by the fubmiffion, 
 according to the cfFect of the condition j he alfo averred an ad- 
 meafurement made the fame day, according to the efTecl of the 
 award, on which the lands were found to contain 12 acres, at the 
 rate of feven yards to the pole, and 80I. were the fum to be paid, 
 which he had tendered accordingly, but which the defendant had 
 refufed to receive, and that the plaintiff had requefted him to 
 pafs a furrender to him and his heirs, which he had alfo refufed. 
 This appears to have been thought the proper mode of pleading 
 in this cafe, (a) 
 
 A DISTINCTION is taken with refpecl to the manner of de- 
 claring in an action of debt on the avv-ard itfelf, and the manner 
 of fetting forth the avt'ard in the replication in an action on the 
 fubmiflion bond; a diftin6tion which, when it was infifted on 
 that every award fliould appear on the face of it to be mutua:j 
 was of more importance than it is at this time. 
 
 In declaring on the award, it is not neceflary to fet forth any 
 more of it, than is fufficient to fupport the plaintiff's claim to the 
 money awarded : it was not ncceffary, even in former times, in 
 this a£lion, to fliew an award that was mutual ; if the defendant 
 wifhed to impeach it, by (liewing that It was not mutual, or that 
 there was any thing by way of condition precedent to the pay- 
 ment of the money, he might do it by pleading, (b) But in aii 
 aflion on the bond, the award muft have appeared to be mutual, 
 as fet forth by the plaintiff. In an action on the award too, the 
 plaintiff' might declare, th'dt among other ?/;/;;^j- it was awarded : 
 whereas on the bond, " among other things" would have viti- 
 ated the replication, (c) Farther than this the diftlndtion does 
 not appear to be very effcntial ; for, in every other refpecl, the 
 mode of taking advantage of any variance between the av/ard 
 fet forth and the real award, is the fame j as is alfo the effedt of 
 that variance, whether it be material or not. 
 
 (a) Hunter v. Eennifon, Har- 
 dres. 43, 44- 
 
 (b) bmith V, Kirfoot. i Leon. 
 7i. Leake V. Butler. Liu. 312, 313, 
 
 cited I Bur. 281. vid. 1 Rol. Rep. 437. 
 (cj Vid. Liu. 3IZ, 313. I Mod. 
 36. Comyns.Tit. Arbitrament. I. 2. 
 1.5. 
 
 If
 
 TO COMPEL PERFORMANCE. ijg 
 
 If the plaintiff fct forth the award with z profert in ciiria^ the 
 defendant craves oyer, and demurs for the variance ; if the plain- 
 tiff fet forth the avyard without the profert, the defenckint anfwcrs 
 " no fuch award," on which iflue is joined : if, on the demurrer, 
 the award fet forth vary materially from the real award, judgment 
 will of courfe be given againft the plaintiff: if, on the iffue 
 joined, the award fet forth differ materially from that given in 
 evidence, the judge will direct the jury to firid for the deft-ndant ; 
 , if there be no material variance, in the one cafe judgment^ and 
 in the ether a vcrdi6i^ will be given in favour of the plaintiff. In 
 the cafe of a general verdi6l in his favour, it muff be prefumed, 
 that there was no material variance j if at the trial it be doubted 
 whether the variance be material or not, a fpecial verdicl may be 
 taken, and the queftion argued in court, as on a demurrer, (a) 
 
 The form of declaring in debt on the award is faid to have 
 been taken from a writ in the regifter, in which fo much only of 
 the award is fet forth as is neceflary. (b) That writ, however, 
 is very far from juftifying the affertion. It is a writ in trefpafs 
 on the cafe, fucd by the party againft whom the award is made 
 for the payment of money to the other at a future day, againfl 
 that other for having fued for the money before the day ap- 
 pointed, (b) 
 
 TtiEJiE is a diftindlion better founded, with refpe^l to the de- 
 fendant's plea, that he did not fubmit. In the acflion on the 
 award, there is nothing which can preclude the defendant from 
 the benefit of this plea : before he can plead at all, the plaintiff' 
 jnuft have (hewn every thing neceffary to maintain his atSbion, 
 
 (a) Foreland V. Marygold. i Snlk. 
 ■73. S. C. Foreland v. fiornigold. 
 a Ld. Rnym. 715. Perry v. Nichol- 
 fon, 1 Bur. 378. 
 
 (h) Per Ld. Mansfield, i Bur. 
 tSo. and in Litt. 312, 313. 
 
 (b) — Ortenluriis quare ciimlidem 
 B. et C. pro certis debatis inter ipfos 
 motis, in arbitrium T. et E. ad hoc 
 ■per ipfos B. et C. elcflorum in om- 
 nibus fe poluiiTent et fubinlfiflrent, et 
 iicet iidem arbitratores prxtatum B . 
 
 ad decern librae folvendas eidem C. 
 ad certoj tcnninos nonduni elapfos ar- 
 bitrati fuifTcnt et adjudicaflent : prx- 
 diilus tanien C. pro dcbito praediito 
 verfiis pixfaiiim B. coram pinefatis 
 jiillitinriis prouquitur, et ipfuni B. ea 
 occalione laboribus variis et expenfis 
 plurimis midtipliciter fatigat et in- 
 quietat minus jiifte, in iplius B. dam- 
 num non modicum et gravamen ut 
 dicit, &;c. Reg. 111. a. 
 
 O 4 and
 
 200 THE REMEDY 
 
 and the defendant does not. contradict himfelf by pleading that he 
 did not fubmit j but in an a<Slion on the bond, fuch a plea is not 
 good. The plaintiff, in his declaration, only fets forth the bondj 
 from which it does not appear from what caufe ifwas given ; the 
 defendant cannot therefore, at that period, immediately plead 
 that he did not fubmit, becaufe by fo doing he will fhew that he 
 knows the condition of the bond to contain his fubmiflion ; v.'hen 
 lie prays oyer of the condition, and that is confequently given; 
 he cannot then plead that he did not fubmit, becaufe the condi- 
 tion implies that he did : if he wiibes to have the effedl of fuch a 
 plea, he muft plead that it is not his deed, (oj 
 
 More exaclnefs is required in fetting forth a written than 3 
 verbal award ; the former muft be ftated more particularly, every 
 reference being to feme particular part of the award itfelf, and 
 not to any thing alledged by inducement. But it is not necef- 
 jary that a verbal award fhould be (o exaClly fhewn, becaufe it 
 may be very difficult to prove the prccife words j the efFedl and 
 fubftance is fufficient : thus, where the plaintiff, by inducement, 
 alledged that, at the time of the fubmlfHon, there was a certain 
 fuit depending betv^^een him and the defendant, and then ftated 
 that the arbitrators having undertaken the burthen of the award^ 
 ordered, among other things, that the defendant fhould pay to 
 the plaintiff all fuch monies as he had expended about the " fuit 
 aforefaid ;" it was held that this fhewed fufficiently that the award 
 was made of the action mentioned by inducement, (bj 
 
 Where the fubmiflion is to arbitrators, and in their default to 
 an umpire, the defendant, after oyer of the bond and condition, 
 niufl not merely fay that the arbitrators made no award, but that 
 jieither they nor the umpire made any, otherwife his plea will 
 be incomplete, and the plaintiff may demur to it : but if, inftead 
 of demurring, he choofe to reply, it is not neceflary for him to 
 take any notice of the arbitrators, but he may immediately fat 
 forth an award made by the umpire, (cj 
 
 After ftating the award, the plaintif?^" mufl affign a breach by 
 
 (aj Keindv, Carter. 2 Keb. 73. 
 3 Sid. 290. Vid. 2 Str. 923. 
 
 (^b) Hanfon v. Liverfedge. 2 Vent. 
 
 242. Vln. the pleadings in that cafe. 
 (c) Kinton v. Crane. 3 Keb. 
 675. 
 
 the
 
 TO COMPEL PERFORMANCE. 
 
 20I 
 
 the defendant ; for tlie breach is the caufe of adlion itfelf, and un- 
 lefs that be afTigned the defendant may demur to the replication ; 
 the plea of " no award" is a total denial of all caufe of adlion, and 
 therefore the plaintiff does not anfwer it without (hewing a 
 breach. T'?^ And if the defendant, inftead of demurring, rejoin 
 that the award fet forth is not the deed of the arbitrators named, 
 or that they made '' no fuch award ;" though the fadl be found in 
 favour of the plaintiff, yet he fliall not have judgment, becaufc 
 on the whole of the record, no caufe of adlion appears. { b) 
 
 If after fctting for the whole award, the plaintiff aflign the 
 breach in a part which is void, the effe£lwill be the fame as if he 
 affigned no breach at all ; but though part of the award fct forth 
 be void, yet if, notwithftanding that, the rea;ainder be good, an af- 
 fignment of a breach in any part of the latter will maintain the 
 aftion. Thus if the aw ird be, that the defendant and another 
 fhal! enter into a bond to the plaintiff; this being void as to the 
 flranger, the breach muft not be affigned, " that the defendant 
 and the ftranger did not enter into the bond," but " that the de- 
 fendant himfelf did not enter into it." (c) 
 
 Where money is awarded to be paid, on or before a particu- 
 lar day, it has been held that, in affigning the breach, it mufl not 
 be merely faid, that it was not paid on the day ; it mufl be add- 
 ed that it was not paid before the day; and this is faid to be the 
 neatefl way of affigning the breach in this cafe, (dj But in ano- 
 ther cafe, where an objection of this kind, fcemed to be that which 
 moft affeded the manner of pleading, it v/as held that an allega- 
 tion of non-payment on the day implied that it was not paid be- 
 fore the day. (e) Perhaps a difliniftion may be made, between 
 an allegation of payment on the day, in the a<Stive or in the paf- 
 five voice ; if it be faid that " he did not pay " on the day, that ap- 
 plies to the fimple fadl of payment at that particular time, and 
 docs not imply that he did not pay before ; but " that the money 
 was not paid by him" on the day, implies that it remained yet 
 
 (a) Wynche. 121. Yclv. 24, 78. 
 
 (b) Barret V.Fletcher. Yelv. 153. 
 
 (c) Godb. 165, 3 Bulltr. 313. 
 Kcb. 601. 1 Ld. Rayin. 114., 123, 
 
 234. 2 Mod. 509. i2Mod. SS5. 
 (d) 12 Mod. 585, 6. 
 (c) Bridg. 91. 
 
 unpaid.
 
 202 THE REMDEPY 
 
 unpaid. However without adverting to fuch a diftincTtion, it 
 
 has fince been held that though payment before the day will be 
 good evidence of payment on the day, where payment on the 
 day is pleaded ; yet, in pleading, parties ought to purfue the 
 words of the condition, (a) By the latter words, I fuppofe, it is 
 meant that the plaintiff in afligning the breach fliould follow the 
 very words of the award. However the breach will be fufficiently 
 afligned by alledging that the defendant did not pay according to 
 the form and effe6l of the award aforcfaid ; the rule of pleading 
 in fuch a cafe, being that where the day of payment or perform- 
 ance appears before on the record, there, in averring perform- 
 ance or in affigning a breach for the want of it, the day needs not 
 be fpecifically mentioned, but it may be afcertained by a reference 
 to a former part of the record, (b) 
 
 If the award fet forth, be that the defendant, at a certain place, 
 and between certain hours, ihall pay the plaintiff a fum of money ; 
 in afligning a breach for non-payment, the plaintiff muff not on- 
 ly fhew that he himfelf went to the place between the appointed 
 hours, and that the defendant was not there, he muft alfo fhew 
 that he continued there till the laft moment; it is not to be pre- 
 furned, till the contrary be fhewn, that he continued there till the 
 lad moment; for the defendant has no opportunity of fhewing 
 the contrary by a rejoinder, becaufe that would be a departure 
 from his plea of " no award made." (c) 
 
 It was awarded that the defendant, on the delivery of the award, 
 fhould pay the plaintiff 22I. zs. io|d. In an action on the fub- 
 mifllon bond, on " no award" being pleaded by the defendant, 
 the plaintiff affigned the breach by averring the delivery on fuch 
 a day, and the non-payment on the delivery.— The defendant 
 demurred, and it was infifted on his behalf that the breach was 
 not well affigned, becaufe though it was ordered that the defend- 
 ant fhould pay the money on the delivery of the award, yet the 
 law, by a rcafonable conftrudlion, would allow him a convenient 
 time for payment, the award might have been delivered to him 
 
 (a) a Vent. 221. 3 Lev. 293. | (c) Fitzglb. 54, 55. i Barnard, 
 (h) Lutw. 54.5. iz Mod. 5S6. J K. B. 151. 
 
 on
 
 TO COMPEL PERFORMANCE. 201 
 
 cn his journey on the highv^ay, at a great didance from his habi- 
 tation, when it could not be prerumed he had money to pay ; 
 and if this conltruition were allowed, then the breach was a/Iigned 
 too firictly: it ought to have been that the money was not paid 
 on the delivery of the award, nor at any time after. But the ma- 
 jority of the court were of opinion that the breach was well af- 
 figned, and that it fhould not be intended that the money \v;is paid 
 after) and if in facl:, it had been paid, within a reafonable time 
 after, it ought to have been fo pleaded by the dcfejidant. (a) 
 
 If the award be that the defendant fliall pay a fum of money to 
 the plaintifi-', when he fliall be requcftcd ; in the aflignment of the 
 breach in non-payment, a requcfl muft be direcijy dated, becaufe, 
 by the award, the money is not due, but on fpecial demand j there 
 being a difference in this refpect between a debt due on bond or 
 on contrail, where no demand is neceffary, and the caufe of an 
 award ; and therefore an allegation that though often requefted, 
 the defendant has not paid, will be fufficient in the former cafe, 
 but not in the latter, (b) 
 
 The breach mull: always be afTigned with fuch prccifion, as 
 Jo fliew that the av/ard was made of the thing in which the breach 
 is alledged: therefore, where the plaintiff, in his replication, al- 
 ledged that the defendant had filed a certain bill in Chancery 
 againfl him, fetting it forth in the words of the bill, and that after- 
 wards they had fubmi.tted to arbitrators who awarded that a 
 " certain" fuit which was depending in Chancery between them 
 fliould ceafe, and then /hewed that the defendant had fince filed 
 another bill, averring that both bills were for the fame matter : 
 this was held to be badly pleaded, becaufe it did not appear that 
 the award was made concerning the firfl: bill, as the defendant 
 plight have feveral bills in Chancery againft the plaintiff, (c) But 
 it was admitted that if he had f\id, that the arbitrators had award- 
 ed that the " faid" fait Ihould ceafe, this would Jhave fhewn that 
 ihe avy^ard related to the particular bill fet forth. 
 
 fa) Strong. V. SnuntUrs. Lutw. 3?9. 
 
 {b) Waters V. Biiilgcs. Cio. Jac. 
 
 640. vid. Kodlum v. blioher. 3 Kcb. 
 
 (c) Freeman v. Shcene. 1 Rol. 
 Rep. 8. do. Jac. 339. Brownl. 122. 
 2Biililr. 93. 
 
 If
 
 k04^ THE REMEDY 
 
 If the award be to pay the rent mentioned in a certain inden- 
 ture, in afngning the breach, it is not neceflary to fet forth the in- 
 denture at large— but if it be that the rent Ihall be paid in fuch 
 manner and at fuch times as is expreffed in the indenture, then the 
 indenture muft be fet forth at length, or the manner and time 
 particularly defcribed. (a) 
 
 Where the award is in the alternative that the defendant fhall 
 do one thing or another J in affigning the breach upon this, the 
 plaintiff muft fay that he has neither done the one nor the 
 other, becaufe if he has done either, he has obeyed the award, (b) 
 
 Where feveral things are ordered to be done by the defend- 
 ant, the plaintiff, it is faid, can affign a breach only in the non- 
 performance of one where the aclion is on the bond, becaufe an 
 aiTignment of tv/o breaches will be liable to the objedion of 
 double pleading. (c)—\n a cafe, however, which occurred in the 
 fixth of the prefent king, it is only fiid that it is not neceflary to 
 affign breaches of every matter in an award, becaufe the breach 
 of any one is a forfeiture of the penalty of the bond ; that if the 
 breach be well aiTigned in one point, for which the award is good, 
 the plaintiff muft have judgment on demurrer for the whole pe- 
 nalty of the bond, and when he has once recovered that, he can 
 never maintain another adlion, on the fame bond, to recover the 
 penalty again, on a fecond breach, (d) 
 
 Where the award is for the payment of money, and the 
 plaintiff brings his action on the fubmifTion bond, but does not 
 properly affign the breach, the court, it is faid, will not in gene- 
 ral grant him leave to difcontinue, unlefs under peculiar circum- 
 fliances, becaufe he may have his remedy on the award itfelf. (e) 
 It appears, therefore, that judgment againft the plaintiff, in one 
 form of ailion, ariftng from miftake in the pleadings, is no bar 
 to another. 
 
 (a) Anon, i Vent. 87. 
 
 (b) Semb. contra. Sav. 120, where 
 one of the things is void. 
 
 (c) ziH.6. i8.b. ComynsDig. 
 Arbit. I. 6. TheSt. Sand 9 W. 3. 
 c. II. f. S. with refpeft to the aflign- 
 ment of feveral breaches in aftions on 
 
 - 3 
 
 bonds for the performance of cove- 
 nants, Sic. does not fecm to apply to 
 the cafe of awards. 
 
 (d) Fox V.Smith. 2 Wilf. 267, 9. 
 vid. Addilon v. Gray. S. P. Id. 
 293. 
 
 (e) Freem.410, 415. 
 
 Ir
 
 TO COMPEL PERFORMANCE. 205 
 
 If the defendant, inftead of pleading the ufual plea, " that the 
 arbitrators made no award," plead fome collateral matter, which 
 if true, would be a bar to the action on the award, the plaintiff, 
 without fetting forth the aw^crd, or afligning a breach of it, may 
 take iflue on the plea, and go to trial on that fa6t ; or if he doubt 
 the effect of the plea, he may admit the truth of it by demurring, 
 and put the whole of the caufe on its validity, (a) 
 
 The ftatute of limitations (^^^ cannot be pleaded to an atSlion 
 of debt on an award under the hand and feal of the arbitrators ; 
 the words of the flatute, as applicable to adlions of debt, arc " all 
 a6lions of debt grounded on any lending or contra<5l without fpe- 
 cialty," and though perhaps, in ftrivSlnefs, an award, under the 
 hand and feal of the arbitrator, may not, to all purpofes, be con- 
 fidered as a fpecialty, that denomination, being, with propriety 
 given only to an inftrument under the hand and feal of the party 
 who is to be bound by it, yet it may be fo far confidcred as par- 
 taking of the nature of a fpecialty, as to be within the meaning 
 of the ftatute; the purpofe of tliat flatute was to limit the time 
 for bringing actions on a fimple contradl without writing under 
 hand and feal, the profecution of which a long time after the 
 caufe of them had accrued, was often the occafion of perjury in 
 witneffcs who took upon them to fwear to circumftances of 
 which from the length of time they muft be fuppofcd to have an 
 imperfedl remembrance : but this reafon can never apply to a 
 cafe v/hich may be fo eafily afcertained as an award under the hand 
 and feal of an arbitrator ; the words of the ftatute are applicable 
 to debt of another kind, and the dicifions given on thefe words 
 alfo favour this courfe of argument. — The ftatute fays, it fliail 
 extend to all aftions of debt for arrearages of rent ; but on thefe 
 words, it has been determined, that it was only an adion of debt 
 for arrearages of rent on a parol leafe which could be barred by 
 the length of time, and that they did not extend to rent referved 
 on a leafe under hand and feal. — On thefe grounds the whole 
 court, except Keeling, C. J. held that an action of debt on an 
 award, though not a fpecialty, was not barred by the ftatute; the 
 
 (a) Yelv. 15. 79, Cro. Jac. 300. (h) ji Jac. c. i6. f. 3. 
 
 words
 
 2C6 THE REMEDY. 
 
 words not being, " all aiSiions of debt without fpecialty gene- 
 rally," but, " all actions of debt without fpecialty, which are 
 grounded on any lending or contradlj" this action was clearly 
 not grounded on lending; neither could it with propriety be 
 faid to be grounded on fuch contraft as was intended by the fta- 
 tute ; it was true indeed, all a£tions of debt were founded on con- 
 trafl either exprefs, or implied by the law, and this was a con- 
 trad implied, but had the ftatute meant to extend to fuch con- 
 tradls, the words " founded on lending or contrail" would have 
 been fuperfluous and ufelefs ; and it clearly appeared what kind 
 of contrails were meant, by coupling the word contracl with 
 lending ; and if the more extenlive conftruilion of the acl were 
 adopted, it would extend to all adions of debt v/ithout fpecialty 
 whatever, (a) 
 
 Where the defendant pleads the common plea of " no award," 
 he cannot in general, after the replication, rejoin any thing elfe 
 than that there was " no fuch award :" if the award be void, he 
 muft demur, becaufe a void av/ard, is as no award, and the bond 
 is not forfeited by non-performance, f^^ He murt not rejoin 
 that the award is void, becaufe that is a departure from hrs 
 plea, (c) Nor can he allcdge payment or performance of the 
 thing, in which the breach was affigned, for that will alfo be a de- 
 parture. (^^^ So, if the award fet forth in the replication order 
 general releafes to the time of the award, he cannot rejoin that 
 a new caufe of a£lion arofe, between the time of the fubmifiion 
 and the award, (e) But if the award was made by an umpire, 
 and the defendant had only pleaded that the arbitrators made no 
 av/ard, he may, on the umpirage being fet forth, rejoin perform- 
 ance ; for that does not contradict his plea, (f) 
 
 So, if the fubmiffion be general of all matters in controversy 
 bctv.'eenthe parties, with aprovifo that the award be m.ade of the 
 
 C^jHodfdcnv.HaniJgf. zSaund. 
 ^4. S. C. very inaccurately reported. 
 
 zKeb. 4-64.497. 533» 536. 
 (ij) Jenk. 116. 
 
 (d) Comyns Dig. Arbit. I.' 6. 
 Pkader, F. 7. 
 
 (e) I Keb. 434. contra. Freem. 
 z66. 
 
 (c) I Keb. 414. pi. 12. 678. pi. (f) nil. 1791. B. R. 
 72. 2 Ktb. 156. I 
 
 premifes;
 
 TO COMPEL PERFORMANCE. 20/ 
 
 premifes ; the defendant may plead, that the arbitrators made no 
 award of the premifes, and if the award fet forth in the replica- 
 tion do not comprehend all the fubjcdls that were in controverfy, 
 he may rejoin that there were other things incontroverfy of which 
 the arbitrators had notice, and of which they made no award, con- 
 cluding " that therefore they made no award of the premifes"— 
 which is fo far from a departure from his plea, that it is a confir- 
 mation of it. (a) 
 
 If the defendant conceive the award to be bad, inftead of 
 pleading "no award," and then demurring to the award fet out in 
 the replication, he may himfelf fet forth the award, averring that 
 the arbitrators made no other, without alledging performance. — 
 Then the plaintiff demurs, and the queftion conies before the 
 court on the validity of the award itfclf. (b) 
 
 If the defendant has performed the award, he may after fetting 
 it forth in his plea alledge performance. But it is faid, that he 
 cannot plead fimply that he has performed, but mult fliew in 
 what manner, (c) But it is conceived that this applies only to 
 the cafe of an award in the alternative, where in order to dif- 
 charge himfelf he mud fliew, which of the two things he has 
 done, (d) — and he needs onlylhew performance, in words adapt- 
 ed to thofe of the award itfelf. Thus if an award be " that a 
 fuit which the defendant had againft the plaintiff fhall ceafe," it is 
 fufficicnt to fay that the plaintiff flood acquitted of that fuit j it 
 is not necelTary to iay that he gave him a releafc. (c) 
 
 Where the award is void, with refpefl to any thing awarded to 
 be done by the defendant, he needs only aver performance of that 
 for which it is good, and take no notice of that which he con- 
 ceives to be bad. (f) 
 
 An averment of tender and refufal, is fufKcient, but the better 
 
 (a) Middleton v. Weeks. Cro. 
 Jac. 200. viJ. Farrer v. Gate. Palm. 
 511. 
 
 (b) Vid. Rifden v. Inglct. Cro. 
 El. 838. 
 
 /"<■; 28H. 8. Mo. 3 pi. 9. Bam- 
 lield V. Bamficld. 2 Keb, 238. 
 (dj 26 H. 6. 27 H. 6. I. Fhbt. 
 
 Si.n. 
 
 (e) Freeman v. Slieene. i Rol. 
 Rep. 7, 8. Cro. Jac. 339. zBulftr. 
 93. vid. 36 H. 6. 8. 39H. 6. ii.b. 
 
 (f) 36 H. 6. 12. Brooke 27. 
 39. 51. 19 E. 4. I. 17 E. 4.. 5. 
 18E. +.23.Rul.Arb.F.2. Al. 86. 
 3 Leon. 62, 
 
 I opinion
 
 2o8 THE REMEtJY 
 
 Opinion feems to be that it muft be accompanied with an aver- 
 ment that he is ftill ready to perform, (a) 
 
 Where it appears by the award that the plaintiff is to do the 
 firft a£l, it is fufficient for the defendant to fay that he has not yet 
 done it,' but that he is ready to perform his part as foon as the 
 plaintiff does his. Thus, if the award be that the plaintiff fhall 
 prepare an obligation fealed with wax, and carry it to the defend- 
 ant, who fhall put his feal to it, in fatisfadtion to the plaintiff, it is 
 fufficient for the defendant to fay that the plaintiff has not yet 
 tendered to him the obligation, and that he is ready to feal it, when 
 it fliall be offered, (b) 
 
 If the defendant fet forth the award and alledge performance ge- 
 nerally, and then on a breach being affigned in the replication, he 
 rejoin and (hew a fpecial performance, this will be a departure. 
 In an action on a fubmiffxon bond, the defendant after oyer of 
 the condition, fet forth this award, ' that whereas the defendant 
 had lent the plaintiff 30I. for fecuring of which the plaintiff had 
 mortgaged certain lands to the defendant, and whereas there was 
 a controverfy between them concerning that matter, it was award- 
 ed that the plaintiff fliould pay to the defendant 35I. before a par- 
 ticular day, and that in the mean time he fhould permit the de- 
 fendant to enjoy the poffeffion of the mortgaged lands, and that on 
 payment of the faid 35I. the defendant fliould account to the plain- 
 tiff for the mefne profits, and deliver over to him the mortgaged 
 deed, and reaffign to him the mortgaged lands, and that they 
 fhould give mutual releafes ;' then he aliedged performance gene- 
 rally: the plaintiff replied that he had paid the 35I. before the day 
 appointed, but that the defendant had not reaffigned^ the de- 
 fendant rejoined that he had delivered the mortgage deed to the 
 plaintiff and was ready to reaffign, but that the plaintiff had not 
 requefted him : the plaintiff demurred, and it was refolved that 
 this rejoinder was a departure from the plea, becaufe there he had 
 pleaded performance generally, and here he had only fhewn a 
 fpecial performance, (c) 
 
 (a) It H. 6. 39. b. vid. Morgan's 
 precedents, 525. 
 (h) M. 5 E. 4. 7. a. Fhbt. 53. a 
 
 Brooke. Arb. 36. Rol. Arb. Z. 6. 
 (c) Rofle V.Hodges, j Ld.Raym, 
 
 It
 
 To COMPEL PERFORMANCE. 2cg 
 
 It has fcveral times ha[)p(;ncd that tlic ilefc-ndantj by fcttir.g 
 forth an award partially, has impoled coniiderable dilficulty on the 
 plaintiff how to anfwer him. — The firlt cafe of that kind which 
 occurs is that of Veal and Warner — in which the defendant fct 
 forth an award that he fliould pay the plaintitF 3100!. and give 
 him a general releafc, wliich was confidcred as an award of one 
 iide, and therefore void ; and he averred that he had paid the 
 money; the plaintiff took ifTue on the payment; the defendant, 
 inftead of joining iflue, rejoined that the plaintiff' was not at 
 liberty to fay he had not paid the money, becaufe he had, by 
 his certain writing, acknowledged the receipt of it. To this the 
 plaintiff demurred, as he well might, becaufe the rejoinder was a 
 departure from the plea : the defendant joined in demurrer, and 
 would have had judgment in his favour, becaufe notwithftand- 
 ing his allegation of performance it was of no confequcncc 
 whether he had performed it or not, the award being only on 
 one fide, and therefore void. But on application from the plain- 
 tiff, leave was granted to difcontinuc, becaufe it appeared that 
 the award was alfo that the plaintiff' fliould rcleafe all actions to 
 the defendant which made it mutual ; and the court reprehended 
 the trick that had been put upon the plaintiff, adding to the 
 rule for difcontinuance, this rcafon, that it was for the foul 
 practice of Saunders the defendant's counfel. CaJ But Saunders 
 excufes himfclf by the hardfhip of his client's cafe, faying that the 
 bond was only in the penalty of 2000I. and the fum awarded was 
 3100I. when in faft the plaintiff was in tlie debt of the defend-* 
 ant, and the arbitrators had been in collufion with the plaintiff". — 
 And further that a bill being afterwards filed in the Exchequer 
 againft the plaintiff' procured the defendant relief. 
 
 The defendant on oyer fet forth an award that he fhould pay 
 to the plaintiff 12I. 10s. and averred performance : the plaintiff 
 replied that true it was the arbitrator had awarded that the de- 
 fendant fhould pay to the plaintiff 12I. los. in full fatisfadion of 
 all differences between them, and offered iff'ue on the non-per- 
 formance. The defendant demurred, becaufe the plaintiff had 
 
 f<?^ Veal V Warner, zKcb. 56S. iSauiu!,3i6, 
 
 P concluded
 
 2IO THE REMEDY 
 
 .concluded to the country, having alledged new matter without 
 which the award was void, and the defendant was deprived of 
 the opportunity of his traverfe to that matter ; and the plaintiff 
 ought not to have his judgment, becaufe it did not appear to 
 the court whether the award was good or not ; and of this opi- 
 nion were Jones, C. J. and Charlton, J. after two arguments 
 at the bar. But Windham and Levinz were of a contrary opi- 
 nion, becaufe the defendant had admitted the award to be good, 
 and taken upon him to plead performance ; ^nd when the plain- 
 tiff had fliewn that matter which jirovcd the award to be good, 
 the defendant fhould not be permitted to traverfe that, to prove 
 it bad, but if the truth was that the award was not in fatisfadtion 
 of all matters, and (o only on one fide, lie ought to have 
 pleaded " no award ;" but when he had pleaded it as a good 
 av/ard, and by the replication it appeared to be fo, he fhould not 
 be admitted a traverfe to prove it bad, for that would be a de- 
 parture from his plea, and equivalent to fiiying in the latter that 
 there was an award made, and in his rejoinder that there was 
 not. (fi) 
 
 In the cafe of Strike and Benfley, a queflion of the fame kind 
 occurred, but remained {fill undecided.— On oyer of the con- 
 dition, it appeared to be, of a fubmifTion to perform the award 
 of four arbitrators, with a provifo that it fhould be made, on or 
 before the fifteenth of February, and if not, then to perform the 
 umpirage of T. B. fo that it were madej on or before the twenty- 
 'third of February. — The defendant pleaded that before the 15th, 
 tv/o of the arbitrators made no award, but that the umpire on 
 the 23d awarded that t4ie defendant fliould pay to the plaintiff 61. 
 and fhould afterwards releafe to him, and that he fhould per- 
 mit the plaintiff to enjoy a particular clofe. The defendant 
 averred that he had paid the 61. that he was always ready to exe- 
 cute a releafe, and that he had not diflurbed the plaintif}^" in the 
 enjoyment of the faid dofe. — The plaintiff in his replication 
 confeffed that the faid two arbitrators did not make any award, 
 and that the umpire had awarded as pleaded by the defendant, 
 but averred that he had further awarded, that the plaintiff on 
 
 payment 
 (a) Seal v. Crowe. 3 Lev. 165.
 
 To COMPEL PERFORMANCE. 2M 
 
 payment of the Hiid 61. fliould execute a relenfe to the defendant; 
 then he averred that the defendant had not paid the Lid 61. but 
 did not take ilVuc on it, but travcrfed tliat the uin|)ire had 
 awarded only as the defendant had allodgcd.*— On demurrer the 
 cafe was argued fevcral times ; the principal objccHon made by 
 the defendant's counfcl wr.s that no fuificieiit breach was allcdged 
 in the replication ; for the defendant having fhewn an award by 
 the umpire that the defendant fliould pay to the plaintiff 51. and 
 the plaintiff" having replied that the defendant had not paid it, 
 he ought to have taken ifiue on it, and not to have concluded 
 with a verification. — To this it was anfwercd that though the 
 replication might be f.iuity in not having taken ilfue on the pay- 
 ment, and alfo, bccaufe the plaintiff" by the travcrfe in the rcj.li- 
 cation had prevented the defendant from rejoining; yet the plea 
 was fiaulty, becaufe by the award, the defendant was to feal and 
 execute to the plaintif}' a general releafe j and he had only faid 
 that he was always ready to do it, whereas he ought to have ex- 
 prefsly averred that he had done it ; or that he had tendered a 
 releafe which had been refufcd ; that therefore no replication was 
 neceflaryj and the firfl: fault being in the plea, that in the re- 
 plication was not material. — Treby, C. J. v/as of opinion, that 
 in this cafe it was not neceflary to fliew any breach, bccaufe 
 the bar was merely idle and impertinent, for it did not appear 
 that the umpire had any authority to make an award, and then 
 it was the fame thing as if it had been faid that the arbitrators 
 had not made any award before the fubmiffion, or that a mere 
 ftranger had not made any award : the plea admitted that tli;* 
 arbitrators might have made it, for it v/as faid that tv.-o of them 
 had not made any award before the 15 th of February, whereas 
 by the fubmiflion, they had authority to do it on the fame day. — 
 The plaintiff might have demurred to the plea, and although he 
 had replied, yet the defendant having demurred to the replica- 
 tion, the plaintiff might take advantage of the imperfection of 
 the plea, the firft fault being in that.— He admitted, however, 
 that if the defendant had pleaded " no award," a breach ought 
 to have been fufficiently alTigncJ.— Powell, J. was of a contrary 
 opinion. He faid, that though it was a general rule of pleading 
 
 P 2 that
 
 2ij{ THE REMEDY 
 
 that judgment ftiould be given againll him who committed the 
 firft fault, yet that could not have place in the cafe of an award. 
 Had the defendant pleaded that he had not fubmitted, or any 
 other collateral matter, it would not have been neceflary for the 
 plaintiff to affign a breach, but he might follow the defendant 
 in his own way : but when the defendant pleaded "no award," or 
 that which was equivalent, a breach ought properly to be affigned. 
 And the plea here amounted to a plea of " no award."— The 
 other judges delivered no opinion, but the plaintiff had leave 
 to difcontinue. (a) 
 
 In fuch a cafe as this, if the plaintiff demand oyer of the 
 award, and have it fet forth at full length, afligning a breach in 
 the fame manner as if the defendant had pleaded " no award," 
 he will be fecure againft any objedlion from the manner of plead- 
 ing.__To an aclion of debt on a bond, after oyer of the condi- 
 tion, which was to perform an award, fo that it were made on 
 or before the z iff of May, otherwife to perform the umpirage 
 of a third perfon to be nominated by the arbitrators, the de- 
 fendant pleaded that no award was made by the arbitrators, but 
 that they on the 20th of May nominated J, H. to be umpire, 
 who on the 28th of May by writing awarded the defendant to 
 pay the plaintiff 40I. on the nth of June then next, which he 
 had paid : the plaintiff craved oyer of the award, which recited 
 that there had been confiderable dealings between the plaintiff 
 and the defendant, and that the plaintiff had paid the defendant 
 all his demands, and that 40I. were due to the plaintiff; and 
 therefore it ordered the payment of the faid 40I. to the plain- 
 tiff. — Xhe plaintiff then affigned a breach in the non-payment 
 of the 40I. — The defendant demurred, and on many objeflions 
 being taken to the award the plaintiff had judgment, no objection 
 being taken to the manner of pleading, (b) 
 
 If, on an award partially fet forth and performance pleaded 
 by the defendant, the plaintiff in his replication fhew that the 
 arbitrators awarded fomething more befide that which was fet 
 forth by the defendant, and fhew a breach in non-perform- 
 ance 
 
 C^z^ Strike V. Benfley. Lutw, 525. 
 (b) Elliot v. Cheval. Lutw. 451,
 
 TO COMPEL PERFORMANCE. 213 
 
 ance of that, " without this that they awarded only as the de- 
 fendant had let forth:" he will be fccurc againft any objcitiou 
 to the form of his replication. — The defendant fct forth an 
 award, that he fhould caufe all fuits to ccad- which he had againlt 
 the plaintiff, and averred that he had caufed all fuits to ceafe. 
 The plaintifi^" rei)licd that it was awarded befides, that the de- 
 fendant fhould pay Jiim 15I. which he had not paid, without 
 this that the arbitrators had awarded only as the defendant al- 
 ledgcd : it was objedled on the p:irt of the defendant, that this 
 replication was not good, becaufe it traverfed that which was 
 not alledgcd by the plea, and it was a rule that nothing fhould 
 be traverfed but what was exprcfsly alledgcd. The plea had 
 not alledged that the arbitrators had awarded only as was therein 
 let forth. The court held that the replication would have been 
 good without the travcrfe, and it was good with it ; for when 
 the defendant pleads that it was awarded that all fuits fhould 
 ceafe, this muft be underflood to be the whole of the award, and 
 when the plaintiff replied that they had awarded more, he might 
 well take a traverfe. (a) 
 
 In fuch a cafe, the defendant cannot rejoin, alledging that 
 the additional part of the award fet forth by the plaintiff was 
 accompanied by another circumflance which rendered it void for 
 that part. — In the cafe immediately preceding, he had rejoined 
 that the arbitrators had awarded that he fhould pay the 15I. at 
 the houfe of J. D. a flranger, and that for this the plaintiff was 
 to releafe all a6lions to the day of the releafe. He did this, on 
 the fuppofition that the award of payment at the hoiif^ of J. D. 
 was void, as expoilng him to an adion of trefpafs, and that 
 therefore he was not bound to perform it. The plaintiff de- 
 murred, and infifled that this was a departure from the plea; for 
 when the defendant had pleaded an award in bar, it mufl be un- 
 dcrftood to be the whole award, and he had contradidted that in- 
 tendment by afterwards fetting forth another part— and of this 
 opinion was the court. 
 
 If, in truth, from the default of the c-jfendant, no award has 
 
 (a) Llnley v. Ail\ton. Godb. 255. 1 Rol. Rei-. 6. 
 
 P 3 been
 
 jl^ T H E R E M E D Y 
 
 been made within the time limited, the plaintiff may, to the 
 plea of " no award," reply that default of the defendant. 
 
 He may reply that the defendant revoked the authority of the 
 arbitrators, and it is not necefiary to ftate that the arbitrators 
 had notice of the revocation, for fuch notice is implied in the 
 very v.'ord revoked ; but he muft fhew that the countermand 
 was before the day appointed for making and publifhing the 
 award, for other wife there is no forfeiture of the bond. Cc) 
 
 In debt on a bond conditioned to pay fuch cofts as fhould be 
 ftated by two arbitrators chofen by the parties : the defendant 
 pleaded that none were ftated, which was in efFeil that no 
 award was made. — The plaintiff replied that the defendant had 
 not brought in his bill : on demurrer, the court inclined to think 
 that before any default could be affigned in the defendant, the 
 plaintiff ou^jht to have (iiewn the appointment of ^n arbitrator 
 by himfelf. (b) 
 
 "Where the fubmilTion is by bond, the condition containing 
 a provifo that the award (hall be made within a limited time ; if 
 that time clapfe v^^ithout any award being made, and the parties, 
 by mutual confent, enlarge the tim.e ; though the award be made 
 within this enlarged time, the party in whofe favour it is made 
 cannot maintain an acElion on the bond to recover the penalty for 
 non- performance: the defendant has bound himfelf in a penalty, 
 to abide by an award, if made within a given time ; but that can-p 
 uot extend the penalty to an award made after that time under a 
 liew agreement, (c) 
 
 After the practice began of referring matters to arbltratiow 
 under a rule of nifj pr'ius^ application was of courfe made in the 
 name of the party in whofe favour the award was made, to en- 
 force perform.iince by an attachment as for a contempt in dif- 
 obeying an order of the court.— The courts of law, however, 
 for a confiderable time liftened with much reluctance to fuch 
 applications. They faid it was then a matter of the firft imr 
 prefiion j that no attachment lay for non-performance of an 
 
 (a) S Co. Si. ('f^ Brown v. Goodman. 3 Term. 
 
 (b) Baklway v. Ouftcn. i Vent. 
 71. 2 Kcb. 624. 
 
 Rep. 592. n. 
 
 awardj
 
 TO COMPEL PERFORMANCE. 2 i 5 
 
 award, under thcfe references j that it was a novc-l practice, thus 
 to imprifon the body of a man, without his being heard i thut 
 the defendant might deny that any award was made ; that they 
 would not try fuch illue upon affidavits ; that if fuch applications 
 were encouraged, all awards might be affirmed as good, how void 
 foevcr they might be — but that the fuccefsful party might have 
 his action on the award, and then the validity of it might be dif- 
 cufled. (a) 
 
 And at firft, a di(lin(Slion was made between the cafe, where 
 the party, after having, by rule o{ n'lfi priia^ confented to fubmit, 
 afterwards withdrew his iubmiffion before any award was made, 
 and the cafe where, continuing his fubmiflion, he afterwards refufeJ 
 to perform the award. In the former cafe the attachment was 
 generally granted ; in the latter it was refufed, becaufe in the for- 
 mer there was no other remedy ; in the latter the oppofitc party 
 might have his remedy on the award, (h) 
 
 Sometimes the objection was only to the manner in which 
 the application for an attachment was made j it having been 
 declared that an attachment (hould not be granted on a general 
 fuggeftion of a breach of the award without notice to the party 
 againft whom it was moved ; but that he who would have an at- 
 tachment muft fuggeft a breach by " affidavit," and then the 
 defendant might come in and fhew caufc why an attachment 
 Ihould not iffuc, and fo the matter might come in debate, (c) 
 
 While the courts of law, however, were fo unwilling to en- 
 force obedience to an award by proccfs of contempt ; the courts 
 of equity made no difficulty in doing it, where the fubmiillon 
 was under one of their rules, (d) 
 
 Afterwards the courts of law ran into the contrary ex- 
 treme, and in all cafes granted an attachment, whether the award 
 was void or not in point of law, obferving that the reference 
 being by rule of court by confcnt of counfel in the caufe, there 
 ought to be a rule for performance, for the abufe to the couit j 
 
 (a) I Ktb. 130, 138, 559. I Sid. 
 452, 3130. Sir T. Raym. 35, 152. 
 a Keb. 22, 645. 
 
 {h) i Keb. 22. 3 Keb. 844. 
 
 (c) I Ktb. 634. 
 
 {d) Hide V. Patlt. 22 Car, 2. \ 
 Ca. Ch. 
 
 P 4 that
 
 2l6 THERE MEDY 
 
 that If no attachment were to go, the party in whofe favour the 
 award was made, would be deluded by the trial being put off, 
 and there ought either to be no fubmiflion, or that ought not to 
 be clufory. (a) 
 
 But now the courfe of proceeding to obtain an attachment is 
 this ; the award muft be tendered to the party againft whom it 
 is intended to move for the attachment, and if he refufe to accept 
 it, affidavit of the due execution of the award, and of fuch ten- 
 der and refufal, muft be made, and on that an application made 
 to the court to have the order of nifi pr'ius made a rule of court; 
 then a copy of this rule muft be ferved on the party refufmg 
 to accept the award ; if he ftill refufe to accept it, an affidavit 
 jTiuft be made of perfonal fervice of the rule, and of the difobe- 
 dience to it; and then on application, grounded on that affidavit, 
 an attachment will be ordered of courfe. (bj 
 
 When the award is accepted, but the money being demanded 
 is not paid, an affidavit muft be made of the due execution of 
 the award, and of the demand and refufal of the money. And 
 an indorfement on an award unftamped, is a fufficient authority 
 to a third perfon to demand the money awarded ; it is not ne- 
 ceflary that there fhould be a warrant of attorney for that pur- 
 pofe. (c) 
 
 On references at nifi prhis^ it is not unufual for the plaintifF 
 to take a verdid by confent, for fecurity. And if the award 
 be made in his favour, he may, at his eledion, either enter up 
 judgment on the verdicSl, and take out execution for the fum 
 awarded, if that does not exceed the fum for which the verdi6l 
 was taken ; or he may proceed by attachment. But, he cannot 
 enter up judgment without leave of the court ; f^J and to ob- 
 tain that, it is as neceflary to produce an affidavit of the due ex- 
 cution of the award, and the demand of the money awarded, as 
 it is, to obtain an attachment, ("e) 
 
 Where the fubmiffion is by bond with confent to have the 
 " award" made a rule of court, it is faid, that the court will not 
 
 {a) 3 Keb. 164, 446. Comb. 503. 
 (bJ J Crompton'sPra£lice, 264. 
 (cj aBl. Rep. 990, 091. 
 
 (d) I Salk, 84. 
 
 (e) Barnes, 58, 
 
 graut
 
 TO COMPEL PERFORM A NCE. 217 
 
 grant its Interpofitionj and it is certain, that the words of the 
 itatutc do not extend to that cafe; they provide only for the cafe 
 of a confcnt to have the " fubiniflion" made a rule of court, (a) 
 But where the fubmiflion has been made a rule of court, it i-> not 
 necefTary there Ihould be another application to have the award 
 made a rule of court, in order to ground an attachment : that will 
 be granted without fuch application. (l>) 
 
 The party in whofe favour an award is made, when the fub- 
 mifTion is according to the ftatutc, may have his remedy by at- 
 tachment, though he may have obtained judgment in an action on 
 the bond, or on the award ; for he may perhaps think an attach- 
 ment a more expeditious and eiFedtual proccfs than fuing out exe- 
 cution on the judgment, (c) 
 
 And though the defendant may be in cuftody on an attach- 
 ment, the court will not ftay proceedings in an action of debt on 
 the bond, or on the award, becaufe if the defendant die in execu- 
 tion on the attachment, that execution is at an end, and cannot 
 be revived againft his heirs or executors ; for the flatute fays, 
 that the attachment iliall be profecuted as in the cafe of a con- 
 tempt in other cafes : and a contempt dies with the perfon, and 
 cannot be profecuted againft his reprcfcntatives ; (d) but if he die 
 in execution on a judgment, the plaintift may ftill have an exe- 
 cution on his goods, (e) But, if the defendant be taken in exe- 
 cution on the judgment, the attachment will be difcharged. (f) 
 And if an action be brought before an apjilication is made for an 
 attachment, it will be refufed, during the pendency of the adlion, 
 unlefs fome very particular reafon appear to the court for grant- 
 ing it. — This cafe was compared to the cafe of the fe\eral reme- 
 dies which are allowed on a mortgage, a bill for forcclofure, an 
 a6^ion on the bond, and an ejectment to obtain the pofl'eflion, 
 which are allowed to be all ufed at once. But Lord Hardwicke 
 anfwered, that thefe feveral remedies were for different purpofc>. 
 
 (a) Vid. Harrifon v. Giundy. 2 
 Str. 1178. Anon. 2 Barnard. B. R. 
 163. 
 
 (b) Salk. 71, 
 
 {c) I Salk. 73. 10 Mod. y^i. 
 (ii) Determined by the Judges in 
 
 Wcbftcr V. Bifhop. Prcc. in Ch. 
 213. 2 Vcrn. 444. 
 
 fej Paterfon v. Grofs. 2 Bar- 
 naid. B. R.2I7. 
 
 Cj) Vid. Richardfon v. Ch.inccv. 
 I Barnard. 586. cited B. R. H. laj. 
 
 and
 
 2l8 THEREMEDY 
 
 and remedies to which the party is intitled by the courfe of law, 
 without the leave of the court ; but the two remedies in the 
 prefent cafe had but one object, that of enforcing obedience to 
 the award, and the one was by the courfe of law, while the other 
 depended on the difcretion of the court, (a) 
 
 If the time limited for making the award expire without axiy 
 award made, there mud be a fecond application for making the 
 fubmiffion to a fecond arbitrator a rule of court, or elfe the court 
 cannot grant an attachment for non-performance of the fecond 
 arbitrator's award, (b) And the fubmiffion muft be made by the 
 parties on the record : therefore, an attachment was refufed, 
 where it appeared that a fubmiffion to an award bctv/een A. and 
 B. had been made a rule of court; but no award having been 
 made within the time, the difpute had been referred to a fecond 
 arbitrator, by B. and C. who were the real parties, without an 
 application to make this fubmiffion a rule of court. — And the 
 court would not go into the merits, though the defendant offered 
 to wave the objeftion, becaufe they had no jurifdi(Stion. (c) 
 
 When the fubmiffion is made a rule of court according to the 
 ftatute, the affidavits, to ground an attachment, need not be in- 
 titled in any caufe, for till the rule for the attachment is granted, 
 there is no proceeding in court.— Eut the affidavits in anfvver 
 muft be intitled. (d) 
 
 In both forms of fubmiffion, it is difcretionary in the court, to 
 enforce the award by attachment or not. — The plaintiff had 
 brought an action againft the defendant for diverting a water- 
 courfe; the matter was referred to arbitrators, who awarded that 
 the defendant (hould fill up a canal, reftore the ftream to its for- 
 mer courfe, and do feveral other matters relating to the water- 
 works. The plaintiff afterwards applied to the court for an at- 
 tachment for non-performance of the award, and read feveral af- 
 fidavits to found his application. The defendant in anfwer read 
 feveral affidavits to prove his compliance with the dire6lions of 
 
 { 
 
 (a) Stock and Huggins v. De 
 Smith. B.R. H. io6. 
 
 (b) Owenv.Hurd. z Term Rep. 
 64-3» 4- 
 
 fcj Owen V. Hurd. a Term Rep. 
 643. 
 
 (d) Bevan v. Bevan. 3 Term 
 Rep. 601, 
 
 the
 
 TO COMPEL PERIORMANCE. 219 
 
 the award. The court therefore refufcd an attachment, on ac- 
 count of the contrariety of" evidence, and left the plaintift'to his 
 remedy by action, (a) 
 
 They may alfo refufe to enforce an award by attachment, 
 when it appears to be a hard cafe upon the defendant, tliough tliey 
 cannot for that reafon fet the award alide. (b) 
 
 An attachment for non- performance of an award is only in the 
 nature of a civil execution, and therefore a party cannot be ar- 
 refled on it, on a Sunday, (cj 
 
 When the award is for the payment of money, the only re- 
 medies to enforce performance are thofe which have hitherto 
 been conhdered. (dj — But when it is for the performance of any 
 collateral a(5t, it may fometimes be enforced by a bill in equity, 
 which will decree a fpecific performance. 
 
 When the award is made in confequence of a reference by- 
 order of a court of equity, it feems to be a reafonable conclufion, 
 from the tenor of all the cafes on that fubjeiSt, that a bill will ge- 
 nerally lie for a fpecific performance; but when the fubmiflion 
 is merely voluntary, without the interpofition of a court of equity, 
 fuch a bill will not lie, unlefs there has been fome acquiefcence 
 in the award by the parties to the fubmilfion, or an agreement 
 afterwards to have it executed, (e) 
 
 But if, in the cafe of fuch a fubmiflion, the plaintiff, whofeeks 
 by his bill to enforce the performance on the part of the defend- 
 ant, has himfclf performed his part, a court of equity will decree 
 a performance by the defendant, (f) even where the defendant 
 fliews that the plaintiff has put the fubmiflion bond in fuit in a 
 court of law ; unlefs the award order fomcthing which it is againft 
 the conftant courfe of a court of equity to enforce. Thus, where, 
 among other things, it was charged by the bill that the father of 
 the plaintiff and defendant, was feifed to him and his heirs male, 
 
 (a) Sir Thomas Hales v. Taylor. 
 I Str. 695. 
 
 fbj Vid. B. R. H. 106, and i Bur. 
 278. 
 
 (c) I Term Rep. 266. denies 
 jl Atk. 58. to be law. 
 
 (d) 3P. Wm. 185, 190, 
 
 (e) Di£l. per Lord Hardwicke. 
 I Atk. 74. (62) Biniop V. Wchrter. 
 Abr. Eq. Ca. 51. Vid. 2 Rtp. in Ch. 
 18. fo. cd. Semb. contra Id. 16. 
 
 (J) Poole V. Pipe. 18 Car. 2. pr. 
 Hyde Chancellor. 3 Rep. in Chan. 20. 
 
 with
 
 320 THE REMEDY 
 
 with the fee expeiflant of fcvcral lands in Henfield, and the plain- 
 tiiFconceiving he had been feifed in fee of the lands in Henfield, 
 conveyed the fame to the defendant and the heirs male of his body, 
 leaving the fee in himfelf ; that differences arifing about the eftate 
 tail, Mr. Juftice Crolce, who had been chofen arbitrator between 
 the plaintiff and the defendant, had awarded that the defendant 
 ihould enjoy a former eftate tail fettled by their father, on him 
 and his heirs male, and that the plaintiff fhould confirm the faid 
 eftate tail at the charge of the defendant, and that the defendant 
 ihoulddo no aclto baror difcontinue the faid eftate tail, or the 
 remainder of the plainiiff, without the confent of the latter, ex- 
 cept it were for a jointure for his wife. — The Lord Chancellor, 
 though he held that the defendant ftiould anfwer as to the other 
 parts of the award, declared that as it was abfolutely againft the 
 conftant courfe of the court to decree a perpetuity or give any 
 reliefinthat cafe, he would allow the defendants demurrer as to 
 tiiis part of the bill, (a) 
 
 On a fubmiffion by bond, it was awarded that the plaintiff, in 
 the bill, fnould pay the defendant 900I. and feal a releafe to the 
 defendant ; that the defendant (hould afiign feveral fecurities which 
 he had from the plaintiff. The bill ftated that the plaintiff had 
 fold fome lands to raife the 900I. expecting the defendant would 
 accept it, as he had intimated he would, and tendered him the 
 900I. and a releafe executed according to the award : though 
 there v/as no other execution on the part of the plaintiff, and 
 tliough it was conceived, that the' award was extrajudicial^ and 
 not good injlridnefs of law^ yet the Lord Chancellor decreed that 
 it ihould be fpeciftcally performed, (h) 
 
 On a bill brought to compel the defendant to make fpecific 
 performance of an award, the cafe appeared to be thus : the 
 plaintiff and defendant, v.^ho v/ere brother and fifter, had a dif- 
 pute about the fee fimple of a fmall parcel of land under the fa- 
 ther's will i they entered into a bond in the penalty of 200I. to 
 ftand to the award of arbiti-ators with refpedl to the difpute. The 
 arbitrators av/arded that the plaintiff fhould pay lol. to the de- 
 
 (a) Bifliop V. Bifhop. 1 F.ep. in j (h) Norton v. Manfell, zVcrn. 24. 
 Chanc. [ S. C. 2 Rep. in Chan. 304.. 
 
 fendant
 
 TO COMPEL PERFORMANCE. 221 
 
 fendant on a particular day, and 30I. on a future Jay j and that 
 on this the defendant fhould procure his wife to join with hiia 
 in a fine and deed of ufes, and thereby convey the premifcs to 
 the plaintiff and her heirs. The plaintiff paid die defendant the 
 lol. on the day on which it was awarded to be paid ; fhe after- 
 wards tendered the remaining 30I. on the day on which that was 
 awarded to be paid, and the defendant was willing to take the 
 money, but would not execute the fine and deed of ufes. Oa 
 the opening of the cafe, the Maflcr of the Rolls faid he thought 
 this a ll:range bill, for which he knew no precedent ; and tliat 
 the plaintifF mull fue her bond. The plaintiff's counfel urged 
 that the defendant, having accepted the lol. had thereby under- 
 taken to perform the award, and cited the cafe immediately pre- 
 ceding, where he faid the court had decreed a fpecific pcrform- 
 aiKe though the award had not been executed, and though, ia 
 ftridtnefs of law, it was void. The Mafler of the Rolls replied, 
 that, in that cafe, the award not being good in lav^-, there might 
 be reafon to decree a fpecific performance of it. But he Jcfued 
 to know what the defendant's counfel could fay as to the defend- 
 ant's having accepted part of the money. It was contended that 
 it was fufficient, that, unlefs in very extraordinary circumltances, 
 there was no inflance of a bill being brougiit for a fpecific per- 
 formance of an award : that befides, this was an unreafonablc 
 award, that the hufband fhould procure his wife to join with him 
 in a fine, which it might not be in his power to do ; and there- 
 fore the court ought not to oblige him to it. His honour an- 
 fwered that there were a hundred precedents, where, if the huf- 
 band, for a valuable confideration, covenant that his wife fhall 
 join with him in a fine, the court had decreed that the hufbanJ 
 fhould do it. In the prefent cafe the defendant, by his accept- 
 ance of part of the money awarded, had undertaken fpecilically 
 to perform the award. His honour therefore decreed, that on 
 payment of the refidue of the money awarded, the defendant 
 ihould p*erform the award, and that he fliould pay cofls ; it being 
 contrary to good confcience to take the money awarded, and 
 yet refufe to perform his part of the award, (a) 
 
 Though 
 
 (a) Hall V. Hardy, 3 P. Wm- 187.
 
 224 THERfiMEeV 
 
 Though an award made in confequence of a voluntary re- 
 ference be defeiStive in form, or might have been at firft avoided 
 for uncertainty, yet if the parties have long acquiefced in it, and 
 performed it, a court of equity will prevent its being afterwards 
 difturbed by a fuit at law. 
 
 In a bill filed in Chancery by one Scot againft one Wray, it 
 appeared that fome differences having formerly arifen between 
 one Roger Whitte v, and the defendant Wray, refpe£ling certain 
 lands, the decifion was referred to arbitrators, who awarded that 
 Whittey fhould have the lands ; and there was a provifo in the 
 award, that if any doubts fhould arife upon it, the arbitrators 
 fliould expound them: the defendant Wray "had found a defe6l 
 in the award, which was, . that it ordered Whittey to have the 
 lands without faying that he and his heirs fhould have them, for 
 which reafon he infifled that Whittey fhould have them but for 
 life J on which three of the four arbitrators then furviving, by a 
 writing under their hands and feals, declared they meant that 
 Whittey fhould have the lands to him and his heirs for ever, and 
 that the latter words were left out by miftake : it appeared fur- 
 ther, that Whittey, being in poffeffion, had conveyed the lands 
 to Scot, the prefent plaintiff, and his heirs ; and that the de- 
 fendant, claiming under an old deed of entail, fought to eje6lthcr 
 plaintiff out of the premifes. 
 
 The Chancellor, on perufal of the award, and of the expla- 
 nation of it, and alfo of the depofitions of the two arbitrators wha 
 were alone furviving of the four, and which depofitions corref- 
 ponded with the former explanation, confidering that the award 
 had been long fmce made and executed on both fides, and adopt- 
 ing the opinion of two judges whom he had called to his aflifl- 
 ance, declared, that notwithflanding it had been made on a vo- 
 luntary reference, without the dire6lion of the court, it ought in 
 juflice and equity to be ratified and confirmed, and he accord- 
 ingly decreed that Scot and his heirs fliould enjoy the land againfl 
 the defendant, and all claiming under him, according to the 
 award and explanation, (a) 
 
 On the fame principle the court refufed to reverfe a decree on 
 
 a bill 
 
 (a) Scot V. Wray. i Rq>. in Chan. 4-6,
 
 TO COMPEL PERFORMANCE. 223 
 
 a bill of review which had been made fixteen years, in confe- 
 quence of a reference to fettle the differences between the par- 
 ties ; though the plaintiff, in the bill of review, afligned for er- 
 ror, that the caufe had been referred to four comiBilTioners, and 
 only three certified, and that the leafe on which he now inlifted 
 was not then in ifiue, and that he had never aflented to the cer- 
 tificate. C^) 
 
 If the plaintiff in the bill was limited to a time for the per- 
 formance ot his part, and does not perform it within that time, 
 the defendant fhall not be bound by the award ; yet if, fiibfe- 
 quently to the time, he has accepted of part performance, he 
 Iball be bound for fo much as that is an cqui\ silent for. 
 
 In a bill filed by Sufan Ewes and William Reeve againft Ed- 
 ward and William Blackwall, the circumftances of the cafe ap- 
 peared to be thcfe. 
 
 The plaintiff Reeve being felfed of a certain manor and lands, 
 in part freehold and part copyhold, mortgac^ed them to the de- 
 fendants, on condition to have them reconveycd to the plaintiff" 
 Reeve and iiis heirs, on payment of fomc money due to them : 
 fome differences afterwards arofe between the parties about the 
 amount of thofe fums, and fuits being commenced by the plain- 
 tiffs for a new redemption, a reference was propofcd, and ac- 
 cordingly, by agreement, all matters were referred to two per- 
 fons, who made an award that Reeve fhould pay to Edward 
 Blackwall, as due to him, the fum of 6543I. 13s. gd. and to 
 William Blackwall 3500I. as due to him: but that if Reeve 
 fhould procure bonds or bills under hand and feal, by which the 
 faid Edward Blackwall ftood bound to any perfon or perfons for 
 his own juft debts, which with intereft fhould amount to the 
 debts aforefaid, and the faid bonds and bills fhould be delivered 
 up to the faid Edward within five weeks from the date of the 
 award, then the defendants fhould accept them in full difcharge 
 of their debts, and then reconvey to Reeve, his heirs and afligns, 
 all the lands which were by him mortgaged to them, difcharged 
 of all incumbrances incurred by them, or any claiming under 
 them, vvith all deeds and evidences concerning the fame, and dif- 
 charge 
 (a) Id. GodJard v. Goddard. 15 Car.
 
 22^ THE RfiMEDY 
 
 charge all bonds and fecurities whatever, which they had againft 
 Reeve or his eftate j but if Reeve fliould fail in the performance 
 of what was awarded, then the defendants fhould have the full 
 benefit of their fecurities for the whole money Hated to be due 
 to them as before mentioned. 
 
 The bill further ftated, that within the time limited for pay- 
 ment of the fiiid money, there was a great quantity ofgrafs fit to 
 be cut ofF the eftate, which it was agreed the defendant Edward 
 fhould caufe to be cut and made into hay, and that if the plaintifF 
 Reeve performed the award, and paid the money and charges for 
 cutting the grafs, and making it into hay, then he fhould have 
 it to his own ufe : that in part performance of this award, the 
 plaintifF Reeve borrowed of the other plaintifF Sufan Ewes, the 
 fum of 700I. and paid the fame to the defendant Edward Black- 
 wall, by the hands of Kenry Johnfon, Efq. -but not within the 
 jive weeks from the date of the award ; and farther paid to him, 
 by the fame hand, the fum of 6543I. by delivering up feveral 
 bonds, in which Edward iFood bound to feveral perfons for his 
 own debts ; and that in confequence of this the faid Edward and 
 the plaintifF Reeve conveyed the lands in the bill mentioned, or 
 the greatefl part of them, to Henry Johnfon and his heirs. 
 
 That, in further purfuance of the award, the plaintifF Reeve 
 paid the defendants, or one of them, in money or in bonds, or 
 flatutes, in which the faid Edward and John Blackwall, or 
 one of them, were bound, the fum of 205 81. 15s. 6d. part of the 
 faid 3500I. appointed to be paid by the award to the faid Edward 
 Blackwall, for the debt of the other defendant William Black- 
 wall, which they had accepted, and the plaintifF had tendered 
 and ofFered to deliver up fome other bonds and fecurities, in 
 which the faid Edward flood bound for his own debts, and which 
 amounted to the refidueof the faid fum of 3500I. and required the 
 defendant to accept the fame, and that the faid William Black- 
 wall fhould furrender the copyhold lands to the plaintifF Sufan 
 Ewes and her heirs, and convey the freehold lands to the plain- 
 tifF Reeve and his heirs, difchargcd of all incumbrances, and per- 
 form thg award fpecillcally, and account for the value of the 
 hay* 
 
 On
 
 TO COMPEL PERFORMANCE. 
 
 22^ 
 
 On hearing, the court difmini'd the bill as to the hay, and de- 
 creed that the money paid and " accepted" by bonds or other- 
 wife, was well paid, and fhould go towards the fatisfaclion of 
 the debt due to William Blackwall, as well on bond as on mort- 
 gage, fo far as the fame would reach ; and that the award, in the 
 bill fet forth, not being performed by the plaintiff within the 
 time, ought not to be conclufiveand binding to the faid Williami 
 Blackwall, to cut off any part of his jufl: debt, and that therefore 
 the award fhould fland diffolved from that time. That the 
 mafter (hould compute what was due to William Blackwall for 
 principal and intereft by bond or mortgage, beyond what had 
 been already paid by bonds or in money, and that on payment of 
 that balance, at a time to be appointed by the mafter, the de- 
 fendant fhould reconvey and furrender the mortgaged premifes 
 to the plaintiff, or to his appointment, difcharged of all incum- 
 brances, as the mafter fhould diredl, and then deliver up the 
 mortgages and bonds, and other writings, and in default of 
 payment the defendants fhould take the benefit of their fecuri- 
 ties, (a) 
 
 However fiir a court of equity may aflift a plaintiff to pro- 
 cure the execution of an award, it will not compel a defendant 
 to difcover a breach, by which he may charge himfclf with the 
 penalty of a fubmiflion bond, (h) 
 
 (a) Su fan Ewes and Wm. Rccvc 
 V. Ed. and Wm. Blackwall. Rep. 
 temp. Finch, 22. 
 
 (h) Bifliop V. Bifhop. 15 Car, 
 I Rep. in Cli. 
 
 a 
 
 CHAP.
 
 22$ THE MEANS OF PROCURING RELIEF 
 
 CHAP. VII. 
 
 The Means of procuring RELIEF against an 
 
 AWARD WHEN IMPROPERLY MADE. 
 
 WHERE the obje£tion taken to the award is, that it is con- 
 trary to fome of thofe rules, which the law has prefcribed 
 to be obferved in the conftitution of an award, that obje£lion 
 may be taken when the award is put in fuit. This is equally 
 applicable to the cafe of a fubmiffion by the mere adl of the par- 
 ties, and to that where the mere a6l of the parties is accompanied 
 by the interpofition of a court. 
 
 But when the fubmiflion is of the former kind, then in order 
 to be relieved againft the award on account of any extrinfic cir- 
 cumftances, the defendant cannot make thefe a defence to the 
 aclion on the award or on the fubmiffion bond : he cannot giv^ 
 in evidence any thing to impeach the condud of the arbitrators j 
 the award is a determination of judges chofen by the a6t of the 
 party himfelf, and nothing extrinfic to that judgment can be of- 
 fered in evidence to overturn itj if fuch evidence were admitted, 
 the plaintiff would come entirely unprepared : to fupport his ac- 
 tion he has only to prov^e the fubmiffion and the award ; the cor- 
 ruption or partiality of the arbitrators, it is faid, may be wholly 
 unknown to him ; it concerns only the arbitrators themfelves : 
 there is no precedent at law of any writ to fet afide an award ; 
 corruption or partiality has never been pleaded, and the ftatute 
 of William the third fhews that an award at law muft fland, 
 where there is no objection to the terms of it ; for, as to awards 
 made under that ftatute, it fays they muft ftand, unlefs con- 
 troverted and fet afide in two terms, faj 
 
 In this refpecl the Roman law is fomewhat difterent from 
 ours i for though it provides no direil method, by which the 
 
 faj Vid. I Saund, 327. z Vefey, 315. Wills v. Maccarmick, C. B- 
 i Wilf, 149. 
 
 3 party
 
 WHEN THE AWARD IS IMPROPERLY MADE. 227 
 
 party againft whom the award is made can impeach the conducl 
 of the arbitrators, yet by a refcript of Antoninus, it is provided 
 that the enmity of the arbitrators to the defendant may be fet 
 up as a defence againft the plaintift''s adion for the penalty ex- 
 prefTed in the fubmiflion. (a) 
 
 With us, in fuch a cafe, the only relief is in equity, which 
 often fets afide awards, and gives that kind of relief, which fecms 
 naturally to arife out of the circumftances j as by diredling ac- 
 counts, or granting injunctions to ftay all legal proceedings 
 which had been purlued, on the foundation of the award being 
 good. Though bills of this fort arc received with fome preju- 
 dice, becaufe arbitrators are judges of the party's own nomi- 
 nation, yet, if on partiality a court of equity fhould not relieve, 
 arbitrators would have too great a power, and might abufe it 
 from corrupt motives, (h) 
 
 But, except for corruption or improper conduft in the arbi- 
 trators', a court of equity will never fet afide an award, where 
 the fubmiOion is voluntary, (c) 
 
 In a bill filed to have an award fet afide, it was ailed ged by 
 the plaintiff, that he had been arrefted at the fuit of the defendant, 
 on which both parties fubmitted to two arbitrators, and on the 
 event of their not agreeing, then to an umpire ; on the non- 
 agreement of the arbitrators, the umpire awarded 3 61. to be paid 
 by the plaintiff in the bill to the defendant, and as was fuggcfted 
 in the bill, without hearing the plaintiff. The defendant, in his 
 anfwer, fet forth that he held lands by leafe of the plaintiff; 
 that being indebted to feveral perfons, he was perfuaded by the 
 plaintiff, his landlord, to make over his goods to him, and de- 
 
 (a) Cum quiciam !irhiter ex aliis 
 caufis iniinicus manifefte apparuiflet, 
 tellationibiis etiam convcntus, ne fen- 
 tenticvn diceret, nihilominus nullo 
 cogente dicere perfeveraflet : llbello 
 cujufdam id qiierentis , Tmperator 
 Antoninus fubfcripfit,/>o^t' turn utidoli 
 fnqli exceptioiie. Et idem cum a judice 
 confuleretur apud quern poena petc- 
 batur, refciiplit, etiamfi appellari mn 
 
 potej}, doll malt txceptionem in poena 
 peiitione ohjlaturam. Per hanc ergo 
 exceptionem quxdem appellandi fpe- 
 cies elt, cum liceat retraftare de fen- 
 tentia aibitii. — Ff. J. 4. t. 8. 1". 32. 
 n. 14. 
 
 (b) 2 Vefey, 315. a VVilf. 149. 
 
 (c) I Ca. Ch, 276. 3 Atk, 529. 
 (496.) 
 
 Q.Z liver
 
 228 THE MEANS OF PROCUaiNG RELIEF 
 
 liver him up the leafe, in order to protecl: it againft his creditors ; 
 but the plaintiff abufing his truil, had infifted the goods were 
 his own by an abfolute furrender ; that this being the greateft 
 fubje^l of difference between them, it was referred to arbitration, 
 and all this matter appearing before the arbitrators in the prefence" 
 of the umpire, the latter had made the award. It appeared on 
 the proofs in the caufe that the plaintiff had goods of the de- 
 fendant only to the amount of 7I. 10s. but that he might have 
 been heard, if he had pleafed. The court thought the award 
 ought not to be fet afide for any fuppofed hardfliip in the cafe, 
 as the umpire had exercifed his judgment in the recompence he 
 had given to the defendant for the injury he had fuftained, and 
 the bill was difmiffed with cofts. (a) 
 
 The fame rule applies to the cafe of an award made in con- 
 fequence of a reference at nifiprius^ for to a court of equity, that 
 is nothing more than a voluntary reference. Thus, where the 
 plaintiff tenant for life, remainder in tail to his firff, &:c. fons, 
 remainder to the defendant in tail, had committed wafte for 
 which the defendant had brought his aclion, and at n'lfi prius, 
 by confent of the parties, the matter was referred to two 
 of the jury, under a provifo that they fhould make their award 
 by Michaelmas, otherwife that an umpire Ihould decide : no 
 award was made by the arbitrators, but the umpire gave the 
 plaintiff in the aiStion, the defendant in the bill 384I. damages. 
 The bill was exhibited to pray relief; i. Againft thefe da- 
 mages, as exceflive ; 2. For mifcondufl in the umpire, becaufe 
 he had declared before the umpirage made, that he would not 
 meddle in the matter, and afterwards that he had made it for 
 fear he fhould be arrrefted, from whence the plaintiff's counfel 
 inferred that he had been menaced ; and laftly, becaufe after the 
 fubmiilion the plaintiff had repaired the premifes, and proved re- 
 pairs done, and that 40s. would complete them. 
 
 The defendant infifted that the umpirage ought not to be fet 
 afide without fraud or partiality proved j that the time when the 
 
 (a) Waller v. King, i pt. Ca. 
 In Law and Eq. 63, 64-. Vid. Geen- 
 
 hill V. Cliurch. 3 Rep. in Ch. 49> <o 
 the lame point. 
 
 umpire
 
 WHEN THE AN\'ARD IS IMPROPERLY MADE. 229 
 
 umpire had faid he would not meddle in the bufinefs, was in 
 Auguft, before the time he was to make his umpirage, as the 
 truth really was; and that the plaintiff had notice given him by 
 the umpire to attend, whith he did not, fo that the umpire had 
 no notice of the repairs, and if he had, that was not material 
 to avoid the award, (a) In another report of the fame cafe, (b) 
 it appears, that the tenant for life had no ifi'ue ; that the value of 
 the eftate was 70I. per annum, and that the tenant for life, who 
 had fuffered fome mills and houfes, of which the eftate confiftcd, 
 to go greatly out of repair, had, before the umpirage made, re- 
 paired all the wafte lo within 40s. and forbidden the arbitrators 
 to make any award, and had alfo forbidden the umpire, who 
 notwithftanding made the umpirage as before ftated: one ground 
 of impeaching the umpirage was that the umpire had refufed to 
 hear the plaintiff; but of that no other proof was given than 
 that he had faid, the plaintifFmight bring what witncfTes he would, 
 he would not believe them, becaufe he knew the premifes him- 
 fclf, and was well fatisfied about the value of the repairs. With 
 lefpedl to the outrageoufnefs of the damages, it was faid, that 
 the defendant had but a remote remainder after an eftate tail, 
 and yet he had as much given him, as if he had been to come 
 immediately to the eftate : it was anfwcred, that the damages 
 were not to be meafured by the quantity of the tenant's eftate, 
 but by the injury done to the inheritance ; that were it neceflary 
 to confider the exceflivenefs of the damages, they might have 
 been given for the treble value; and that no fraud or collufion 
 being proved, the court could not fet the award afide, unlefs 
 there were a manifeft error in the body of the award. 
 
 In bills to have an award fet afide for corruption or partiality, 
 it is ufual to make the arbitrators defendants ; (c) the arbitrators 
 may plead the award in bar, but they muft fupport their plea, by 
 (hewing themfclves impartial, or the court will give a party a 
 remedy, by making them pay cofts. (dj 
 
 (a) Brown v. Brown. 
 J40. 
 
 (b) 1 Vcrn. 157. 
 
 J Ca. Ch. 
 
 (c) Ca. Temp. Fincli, 141. 
 
 (d) zAtk. 3s6, (411.) 
 
 0.3 
 
 But
 
 230 THE MEANS OF PROCURING RELIEF 
 
 But in order to avoid the inconvenience of having a bill filed 
 againft them, it is not unufual for the arbitrators to inlift on its 
 being made a condition of their acceptance of the office, that 
 no bill in equity fhall be brought againft them : in w^hich cafe, 
 if they are made parties to a bill for fetting afide the award, they 
 may apply to have their names flruck out, which will be imme- 
 diately ordered, (a) 
 
 A BILL will not lie to compel the arbitrator to difcover the 
 grounds on which he made his award ; it is unrcafonable that he 
 fhould be put to fo much trouble and expence : if there be any 
 palpable miflake made by the arbitrator, or a mifcalculation in 
 ?in account that had been laid before him, the party aggrieved 
 may bring his bill againft the party, in whofe favour the award 
 is made, to ha^e it rectified, (b) 
 
 Where the fubmiffion is by rule of a court of law, whether 
 ill confequence of a reference at nifi prius^ or according to the 
 ftatute of William, a court of equity will not entertain a bill 
 to fet afide an award for corruption and partiality, unlefs the 
 court of law has refufed that relief, or in the cafe of the fub- 
 miffion according to the ftatute, the time for complaining in the 
 court of which the fubmiffion has been made a rule, is elapfed. CcJ 
 
 Where application has been made in the court of which the 
 fubmifiion is a rule, for an attachment for non-performance, by 
 one party, and to have the award fet afide, by the other j and 
 both applications have been unfuccefsful, then a bill will lie to 
 obtain relief againft the corruption or partiality of the arbi- 
 trators. 
 
 The cafe of Mr, Ward of Hackney is a very remarkable 
 inftance of this kind. It came twice before the court of Chan- 
 cery J it was a bill to fet afide an award made by Walker and 
 Floyd, two arbitrators out of three, in confequence of a refer- 
 ence to put an end to a caufe of long ftanding, in which an ac- 
 count v/as before a mafter, the fubmiffion was made a rule of 
 the court of King's Bench. The party againft whom it was 
 made obtained a rule to fhcw caufe, why the award ftiould not 
 
 ('^^111.396,397,(412,413.) I ('r; 2Atk. 155, (162.) Vid. Bunk 
 {If) 3 Atk. 644.. (609.) I 265. 1 Barnard. 152. 
 
 be
 
 WHEN THE AWARD IS IMPRORERLY MADE. 23J.. 
 
 be fet afidc, on account of partiality and mifbcliaviour in the ar- 
 bitrators. On fhewing caufe, the court was divided, fo that the 
 award could not be fet afide. The other party afterwards moved 
 for an attachment for not performing the award, the court was 
 flill equally divided, and no attachment was, of courfe, granted. 
 The party m whofc favour the award was made, having no ad- 
 vantage from the rubmiflion being made a rule of court, brought 
 a common adion on the fubmifTion-bond. Ward, the party 
 againR whom the award was made and the defendant in the ac- 
 tion, filed his bill in Chancery merely to be relieved againft the 
 award, only praying general relief. The defendant to the bill, 
 by his anfwer, infifled that the King's Bench had determined, 
 and therefore the award ought not to be fet afide. The caufc 
 was heard by Lord Macclesfield, (a) who was a little doubtful 
 on account of the proceedings in the King's Bench, as the 
 award was by virtue of a fubmilFion by rule of that court, within 
 the a£l of Parliament ; he therefore hefitated whether he fhould 
 give relief, as the whole matter was fubjedl to the jurifdiclion of 
 a court of common law, who had inquired into it, and were 
 not of opinion to fet it afide : all he did at firft, therefore, 
 was to refer it to the mafter to ftate what the King's Bench had 
 done ; and the mader flated the cafe as above.— Lord Maccles- 
 field was then of opinion that the King's Bench had not deter- 
 mined either way, not having thought fit to fet afide or to con- 
 firm the award, becaufe they had refufed the only procefs to 
 carry it into execution ; and therefore he held, with reafon ac- 
 cording to the opinion of Lord Hardwicke, that the cafe Ihould 
 be confidered as an award by fubmiflion, without a rule of court, 
 and that if a court of common law, which had this fummary ju- 
 rifdiiSlion, refufed to exercife it, and left the party on one fide to 
 his a«Slion, it left the other to feelc relief by a bill in equity, (b) 
 
 How far a court of equity will interpofe to grant relief againll 
 partiality or corruption in the cafe of an award made in purfu- 
 ance of the ftatute, either when no application to fet the award 
 
 (a) 2ift April, 1-19, 
 
 ^Z-J Ward V. Pel iam, cited: Atk. 155. (»6;,) 396, (411-) iVefcy, 316, 317. 
 
 Q^^ afidc
 
 232 THE MEANS OF PROCURING RELIEF 
 
 afide on that account has been made to the court of which the 
 fubmifTion has been made a rule, within the time limited by the 
 ftatutc, or when fuch application has been made without fuccefs, 
 but no application has been made on the other fide for an at- 
 tachment, appears by no means to be a fettled point. 
 
 The words of the liatute fo far as they afte£l this que(tion are 
 thefe : " in cafe of difobedience to fuch arbitration or umpirage, 
 the party neglecting or refufmg to perform and execute the 
 fame, or any part thereof, fliall be fubjecl to all the penalties of 
 contemnijig a rule of court, when he is a fuitor or defendant in 
 fuch court, and the court on motion (hall ilTue procefs accord- 
 ingly, which procefs fhall not be flopped or delayed in its exe- 
 cution by any order, rule, command, or procefs of any court, 
 either of law or equity, unlefs it fhall be made ai)pear on oath 
 to fuch court, that the arbitrators or umpire mifbehaved them- 
 felves, and that fuch award, arbitration or umpirage, was pror 
 cured by corruption or other undue means. And any arbitra- 
 tion or umpirage procured by corruption or undue means, fhall 
 be judged and efteemed void and of no effect:, and accordingly 
 be fet afide by any court of law or equity, fo as complaint of 
 fuch corruption or undue pradlice be made in the court where 
 the rule is made for fubmiflion to fuch arbitration or umpirage, 
 before the laft day of the next term after fuch arbitration or 
 umpirage made and publifned to the parties ; any thing in this 
 adl contained, to the contrary notwithftanding." 
 
 I FIND but one cafe reported relative to this queftion, and 
 that is by no means conclufive or fatisfactory. It is reported in 
 two books, with a little variation : in the one, (a) it appears that 
 an application had been made without fuocefs in the court of 
 King's Bench, to have the award fet afide, before the filing of 
 the bill ; in the other, fb) it is faid that no application had been 
 made to that court. 
 
 The bill was filed to have fatisfi;<5lion on a note of hand for 
 31841. given to one Richardfon by Cambel, one of the defend- 
 ants to the bill, and party to the fubmiffion, which had come to 
 the hands of the plaintiffs by mefne aflignments, and to fet afide 
 
 an 
 (a) I Barnard. K, B. 75, 152. (b) Bunb. 265.
 
 WHEN THE AWARD IS IMPROPERLY MADE. 2J3 
 
 an award which ordered that note to he delivered up by the 
 plaintiffs : the bill charged that the note had never been pro- 
 duced to the umpire ; that one of the plaintifrs informed the um- 
 pire that Alardice, the other plaintiff", was gone to Scotland, to 
 inquire whether the defendant Cambel had paid this note to 
 feveral fhipowners there, as he pretended ; that Alardice was the 
 only perfon who knew any thing of the aftair, and therefore the 
 other plaintift' dcfired the umpire to wait for his return, which 
 he promifed to do, but afterwards made the umpirage htforf 
 Alardicc's return ; that both the umpire and Cambel promifed 
 the award (hould be only conditional, and that Alardice flioulJ 
 be heard after his return from Scotland : and there were other 
 charges in the bill of undue pradlice in making the award. — One 
 report C^J ftates, that the defendants pleaded the fubmiflion to 
 the award, the clctStion of the umpire, and the award within the 
 time ; that the fubmifaon had been made a rule of the court of 
 King's Cench ; that there had been no application made to that 
 court according to the flatute, and therefore that all other courts 
 were now precluded from taking cognizance of the caufe ; the 
 other report (6) flates, that Cambel pleaded that the umpire 
 made an abfolute and impartial award, according to the befl of 
 Cambel's belief, but that it had b.en delivered above two terms 
 before the filing of the bill, (o that the plaintifFs were now too 
 late to take his exceptions ; that the umpire put in an anfwer 
 to the bill in a particular manner, and fet it forth with a great 
 many circumllances.— By both reports it apj^ears that the de- 
 fendants gave no anfwers to the exprefs charges in the bill, veri- 
 fying their plea only in general terms, and denying combination. 
 The principal quellion being, whether courts of equity, as 
 well as the court of law, of which the fubmiflion had been made 
 a rule, were not confined by the ftatute to the time thereby prc- 
 fcribed, for the allowance of excejnions to the award; the 
 Chief Baron is reported to have been of opinion that they were 
 liot. He obferved that before this flatute, agreements made in 
 any caufe depending in courts of law, and afterwards made rules 
 pf thofc courts, had equally the advantage of that fpecdy remedy. 
 
 which 
 
 (aj Buiib. fi'J Barnard.
 
 734- T^^E MEANS OF PROCURING RELIEF 
 
 which now all extrajudicial agreements may have on this adl of 
 Parliament. They were, however, open to the infpection of 
 courts of equity, who might examine into any circumftances of 
 fraud or mifbehaviour : as* the law then flood, if courts of law 
 had enforced fuch agreements by attachments, for proper reafons 
 courts of equity might have granted injunctions. This flatute 
 had indeed confined the courts of equity in cafes of fubmiflions 
 under the provifions of it j it faid in general that no injunc- 
 tion faould lie upon fuch attachment : but a bill todifcover 
 whether there was partiality or not, he faid, was left as it was 
 before, and would not affeil the proceedings on the attachment. 
 On the whole, he thought the plea ought to be overruled ; 
 but that if the rcil of the Barons thought it as well that the plea 
 Ihouid fland for an anfwer, he would not oppofe it. Hale and 
 Comyns agreed with the Chief Baron as to the principal point ; 
 Carter differed from them : but they all agreed that the plea 
 ihouid ftand for an anfwer, with liberty to except, (a) 
 
 When the pradlice of referring caufes at nift prius was but 
 new, and the courts had jufl overcome their rcludance to enforce, 
 by attachment, awards made in confequence of fuch references j 
 it was a matter of fome difficulty, to procure relief againft the 
 corruption or mifconduct of the arbitrators. Holt is reported to 
 have maintained, with even indecent warmth, that an award 
 ifiould not be impeached for any fuch mifconduft, and for no 
 better reafon than that it was contrary to all practice within his 
 experience; which was that the integrity of the arbitrators, whom 
 the parties, by confent, had chofen to be their judges, Ihculd 
 never be arraigned any more than the integrity of any other judge. 
 The other three judges, fhj however, could not adopt the fenti- 
 ments of the Chief, with refpect to this unimpeachable integrity 
 of arbitrators ; they fui^pofcd it poffible, that they might be in- 
 fluenced by corrupt motives, and faid, it was abominable to 
 countenance them in fuch proceedings, and they ought to be pu- 
 nifhed for having abufed the office of a judge. Accordingly an 
 
 (a) AlarcUce v. Cambel in the Exchequer, i Barnard. 75, 151. Bunb. 2C5. 
 (bjVowdl, Powys and Gould, 
 
 application
 
 WHEN THE AWAP.D IS IMPROPERLY MADE. 
 
 235 
 
 application being made to have an award fct afidc, which had 
 been made by arbitrators, chol'cn by the confcnt of parties, under 
 a rule of niftpriusy which liad afterwards been made a rule of the 
 court of Kijig's Bench, and affidavits being pioduccd of the mif- 
 condud of the arbitrators, they were ordered to attend, and all 
 their proceedings being examined, one (a) report or the cafe fays, 
 great mifcondu<St appeared ; but another (bj fays the av/ard was 
 examined and confirmed ; that the plaintitl' moved for an attach- 
 ment for non-performance ; but that the court held that the non- 
 performance, while the matter was under examination, was no 
 contempt. 
 
 When the fubmi/Tion is by reference at tiifi prlus, there is no 
 time limited for making an application to fet afide an award for 
 any caufe, whether for corruption or for an objection appearing 
 on the face of the award ; and the defendant has the fame ad- 
 vantage inihewir.g caulo againft an attachment being granted on 
 the application of the plaintiff, (cj 
 
 When the fubmiilion is by conf^Mit to have it made a rule of 
 court according to the ftatutc, no application can be made to 
 have the award fet afide till the fubmiiTion be actually made a 
 rule of court ; (d) but it is not necefl'ary, as fuggcfled in one 
 book, (ej that the fubmiflion be made a rule of court before the 
 award made ; that may frequently be impofliblc, becaufe the 
 award may be made in the vacation, before any term arrives af- 
 ter the fubmiffion. (f) 
 
 By the words of the ftatute, however, the complaint muft be 
 made before the end of the next term after making the award ; 
 and it is faid^^j that nothing is a ground within that rtatute for 
 fetting afide an award but the mifcondufl of the arbitrators : but 
 as that ftatute was made to put awards made according to the 
 diretflions of it, on the fame footing with awards made in confe- 
 quence of references at nift prius^ and is declaratory of what the 
 
 (a) Morris v. Sir Richard Rey- 
 nolds, z Ld. RaviTi. 857. 
 
 (b) S.C. I Salic. 73. 
 
 (c) Vid. 2 Atk. 155, (162.) and .1 
 Diflum of Lord Macclesfield's. 1 
 Baniard.461. Str. 301. 2 Bur. 701, 
 
 (d)\Sxi.':,Q\. zVci". S17. iStr 
 1178, 
 
 (e) 3P. W. 361. 
 
 (f) Vid. I B.irnan.1. 155. 
 (t:;) I Str. 301. 
 
 law
 
 236 THE MEAN'S OF PROCURING RELIEF 
 
 law was with refpeit to them, any other obje6lion may be made 
 to an award founded on a fubmiflion of the former kind, which 
 ir.ight be made to one founded on a fubmiffion of the latter ; (a) 
 and where the objeflion arifes on the face of the award, it may be 
 - made at any time, on fhewing caufe againft an attachment, though 
 it be after the time allowed by the ftatute for compiainirjgagainft 
 corruption, {h} 
 
 Where the fubmifTion is by confent under an order of a court 
 of equity in a caufe depending there, exceptions may be made to 
 the award, as to a matter's report. And when the party com- 
 plaining of the award alledges that the arbitrators had not confi- 
 dered certain partfculars, which were in iffue in the caufe, the 
 court will order the arbitrators to certify whether they had con- 
 frdered them, and examine into the merits of the award; and if 
 it be found iinjuft, pcrf3rmancc will not be decreed, even though 
 it be exprelfcd in the order of reference, that the award to be 
 made fiiall be final, and confirmed by a decree of the court with- 
 out exception or appeal, (c) 
 
 The mod: frequent fubje6l of complaint 
 
 Fcrn'jhafCtjrt/is an againft an award arifes from fome imputed 
 A^o.rdmnybejetafide. mifconduiSl: of the arbitrators ; and when the 
 complaint is made out, it is generally fuc- 
 cefsful. If the fubmiifion be to three, or any two of them, and 
 two, by any undue means, exclude the third, that alone is fuf- 
 iicient to caufe the award to be fet afide. (d) 
 
 So, if the arbitrators hold private meetings with one of the 
 parties, and admit him to be heard, to induce an alteration in 
 their award, this is fuch grofs partiality as to induce a court of 
 equity to fet it afide. (e) 
 
 Whf.re an umpire was chofen by the arbitrators by throwing 
 crofs and pyle, this was thought fufficicnt reafon to fet afide the 
 umpirage, (f) 
 
 So, where the fervantof the perfon chofen umpire had, before 
 the award made, given out that he was fure his matter would 
 
 (a) Vifi. 2 Bur. 701. 
 C^; Burnes, 57- Id. 55 contra. 
 (c) I Ch. Ca. 186. I Veni. 469, 
 4.705 2 Vern. 1C9. i Brown, 398. 
 
 (d) 2 Vern. 515. 
 
 (e) Id. ibid. 
 if J Id. 485. 
 
 award
 
 WHEN THE AWARD IS IMPROPERLY MADE. 237 
 
 award I50I. and it appeared that the arbitrators had di.'iered ; the 
 one coiircnting to give 35!. and the other infilling on 95I. and 
 that the umpire coming in had given 150I. tiiefe circunillance> 
 the court confidered as an evidence of fraud and corruption, and 
 therefore decreed the arbitration bond to be given up. (a) 
 
 So, where the arbitrators promifed to hear witnelles, but af- 
 terwards made their award without hearing -Any.fl)) So, wlicre 
 they promifed not to make their award 'till one of the parties 
 who was not well, fliould come abroad, but they made it be- 
 fore. (£) 
 
 There were feveral flated accounts between the plaintifFnnd 
 the defendant, by which confiderable fums were due from ihe de- 
 fendant to the plaintiff, but the arbitrator, without regarding any 
 of thefe ftated accounts, made up an account in his own way 
 bringing in the plaintiff indebted to the defendant 25I. and m- 
 tcnded to award the former to alTign over to the latter a mort- 
 gage which he had on the other's edate, on which mutual re- 
 leafes were to be given. The plaintiff undcrdaiiding what 
 award the arbitrator was about to make, fent a meffeiiger about 
 two or three days before the time for making the award was ex- 
 pired, to inform him that the plaintiff dchred him to defer making 
 his award, until he fnould talk with him about his demands to 
 fupport the ftated accounts, and know what obje£lions were 
 made againd them. The arbitrator, however, would not defer 
 making his award. The Lord Chancellor, on a bill filed by the 
 plahitiff to have the award fet afide, faid that it was ailing un- 
 duly to proceed In making the award, when the plaintiff had de- 
 fircd to be heard agaiiiil: the arbitrators determining in contra- 
 divSlion to fo many flated accounts. And though it v/as an- 
 fwered that the application from the plaintiff was within two or 
 three days before the time for making the award was expired, 
 and with an intent that no award fiiould be made; and though it 
 did not appear that the plaintiff was ready to be heard within the 
 time, yet as there feemed to be juft ground for the plaintiff tp 
 defire to be heard, and it was difficult to aflign a rcafon for rc- 
 
 (ajU.iQi. (b)\'l.zs^. Cc-; Id. ibid. 
 
 jcaing
 
 23S THE MEAKS OF PROCURING RELIEF 
 
 je£ting fo many ftated accounrs fo recently allowed and pafled 
 between both the fubmitting parties, the court fet afide the award 
 •with cofts. (aj In the cafe of Ward before mentioned, Walker, 
 one of the arbitrators, had faid he would make Ward pay cofts ; 
 Lord Macclesfield thought this fuch a declaration, that though 
 Floyd, the other arbitrator, joined in the award, he decreed fa- 
 tisfadion to be acknowledged on the judgment on the bond of 
 llibmillion, and inverted Walker's threats by making hwi pay 
 coils, (bj 
 
 Lord Hardwicke approved of this decree, and on the autho- 
 rity of It made a fimilar one in the cafe Chicot and Lequefne. 
 There were three arbitrators, G. Vine, and Myhill : the award 
 was made without the latter hearing it, or having an opportunity 
 of conference to convince the others, or be convinced. It ap- 
 peared in evidence, that at one of their meetings Vine faying he 
 Ihould confider and judge on plain fails, G. replied, he fhould 
 not mind fads, that being convinced Mr. Letellier bad mifufed 
 the Lequefnes, and having it now in his power, he would mul6l 
 his reprefentatives. Lord Hardwicke declared, that if thefe were 
 words of warmth only, they were a declaration made by a perfon 
 ■who was to a6l the part of a judge ; and if he carried that heat 
 and paffion into execution, the award ought not to be fufFered to 
 ftand. If it was the refult of his judgment on the merits, it was 
 a partial refult; his Lordfhip therefore ordered that G. and M. 
 fhould be examined on interrogatories before the mafter, Vine 
 having been examined before j and if it fhould come out that 
 G. did make that declaration, he would follow the precedent, 
 and make him pay cofls. (c) 
 
 Arbitrators had infifled on three guineas a piece to be 
 paid them by each of the parties, before making their award, for 
 their trouble and expences. The defendant refufed to do it on 
 his part, and the plaintiff paid the whole money. The court 
 thought this a matter of fo delicate a nature, and the example fo 
 dangerouE, that they fet afide the award on that account, becaufe 
 
 (a) 3 P. W. 362. Spettigue v. j (b) 2 Vef. 317. 
 Carpenter. J Cr^ 2 Vef, ai6— 2jS. 
 
 if
 
 WHEN THE AWARD IS IMPxIOPERLY MADT. 239 
 
 if it flioulJ be fufFercd, it would be hard to diftinguifh what was 
 corruption, (a) 
 
 It has been thought that the circumftance of the arbitrator's 
 employing the attorney, of the party in whofe favour the award 
 was made, to draw it up, was a ])roof of corruption : but there 
 is no cafe to that purpofe ; nor does it at all appear a fuiBcicnt 
 rcafon for fctting afide an award : the arbitrator employs tlie 
 party's attorney as his own : and if this obje6Hon were good, it 
 is apprehended a great many awards might be fct afiUc which arc 
 perfe6lly fair, (b) 
 
 If it appear that the arbitrators went on a plain miftakc, either 
 as to the law, or in a point of fact, that is an error appearing on 
 the face of the award, and fufficient to fet it afide. (c) 
 
 If indeed they appear to be miftaken in a doubtful point of law, 
 the award may be permitted to ftand, though the court, after 
 great deliberation, fhould be of a different opinion, (d) 
 
 It is reported to have bcenfaid by Lord Hardwickc, that the 
 aibitrators are not bound to give notice of the time when, and 
 the particular place where they intcixl to meet, and that an ob- 
 jetflion of that kind is not material, (e) It is vjery difficult, how- 
 ever, to approve of the juftice of his Lordfhip's obfervation. 
 
 If the arbitrators appear to have an intereft in the fubje6i: of 
 the reference, a court of equity will confider this as a fufficient 
 ground for fetting afide the award. Therefore, where it ap- 
 peared that the award related to a cargo, in which the arbitra- 
 tors were interefted, and that five days after the award made, 
 they attached the money awarded, for debts owen to them by 
 the party in whofe favour they had awarded, the court fet afide 
 the award, prefuming that the arbitrators might have fet too 
 great a value on the cargo, from the interefl: they had in the 
 fubjea. (f) 
 
 Where any circumftance is fupprefTed by either of the par- 
 ties, or concealed from one of the arbitrators, and if the arbitra- 
 
 (a) B. R. H. 54. z Barnard. 1 (d) Di(i1. per Lord Hardwickc. 
 463. 3 Atk.49s, (462.) 
 
 (b) Vid. I Barnard. 430. (e) 3 Atk. 497, (530.) 
 
 (c) Cornet'orth V. Green. 2 Vern. (J) 2Vern.25i. 
 705, cited 3 Atk. 494, (46:.) I 
 
 tor
 
 240 THE MEANS OF PROCURING RELIEF 
 
 tor declare that had he known that circumflance he would not 
 have made fuch an award, that will be a fufficicnt rcafon for fet- 
 ting afide the award. Thus where certain marriage articles were 
 Ihewn only to one of the arbitrators, and the other after the 
 award made declared that, had he feen the articles, he would 
 not have confentcd to the award — Lord Hardwicke fet the award 
 afide. (a) 
 
 On a fubmiffion at mfi prim of all matters in difference between 
 the parties, the arbitrator, on fettling all articles of account, found 
 pnc or them indebted to the other in a fum of 50I., but that the 
 party fo indebted was fccurity for the other in a bond; he there- 
 fore awarded that the party indebted fnould pay the 50I. but not 
 until the other had cither difcharged the bond or indemnified the 
 lecurity againll it. At the time cf the reference the party in- 
 debted was in Ireland, and the matter was conduced on his be- 
 half by his attorney, who was not acquainted with any other 
 circumftance than thofe laid before the arbitrator ; the party t© 
 whom the money was awarded indemnified the other againft the 
 bond or difcharged it, and then brought an adion" for the 50I. 
 holding the other to bail : it was then difcovered that the de- 
 fendant was bound as a Iccurity for the plaintiff, in another bond 
 to a confiderable amount; a circumftance which was within 
 the plaintiff's knowledge at the time of the reference, but which 
 he had concealed. The arbitrator now fwore that had this cir- 
 cumftance of the other bond been laid before him, he would not 
 have awarded the 50I. without providing that the plaintiff Ihould 
 either difcharge the fecond bond, or indemnify the defendant 
 againft it. On thefe circumftanccs being ftatcd to the court, 
 they granted a rule to fhcw caufe : but the event I have not 
 heard, (h) 
 
 By the Roman law, the party who thought he had rcafon to 
 complain of an award, might be relieved againft it for reafons of 
 the fame nature with thofe which are the foundations of relief 
 
 in our courts, (c) - 
 
 Where 
 
 (a) 1 Atk. 77, (64.) I fit, Ti fine dolo malo ftipulantis fac- 
 
 fb) M. 1790. B. R. I tuni eft: lub h:ic enim conditione 
 
 (c) Tta demum autem committe- I conimittitm- itipulatlo, ne quis doli 
 
 tur ftipulatio, cum advcrius camquid | fui pra^mium ferat. Sed fiquidem 
 
 compromiflb
 
 WHEN THE AWARD IS IMPROPERLY MADE. 
 
 Ui 
 
 Where the fubmiflion is under the ftatute or by reference at 
 ijifi pritis^ the court will liften to an application to have the award 
 fent back to the arbitrator to reconfider it, on the fug^eilion 
 that he had not fufEcient materials before him ; and perhaps 
 too, to redify any trifling or apparent miftaJce : but when the 
 fubmillion is according to the ftatute, fuch application muft be 
 made, within the time thereby prefcribed, though no mifconducl 
 be imputed to the arbitrator. C<J) 
 
 If an award appear on the face of it to be contrary to the 
 rules of a court of equity, that will be a reafon for fuch a court 
 to 'fet it afide ; as if it concern an infant, to whom a fum of 
 money is awarded ; and it is alfo awarded that the guardian fhall 
 give a bond that the infant fhall, at his full age, convey cer- 
 tain land in difpute: for this is inequitable, becaufe the infant 
 may die, or if he live to full age, may I'efufe to convey, (bj 
 
 On a bill filed merely to fet afide an award, the court will not 
 permit the plaintiff to difcufs any legal objecflions to the award 
 itfelf, becaufe advantage may be taken of thefe at law ; but will 
 reftridt him to thofe for partiality and corruption : where the bill 
 is for an account as well as to fet afide the award, the plaintiff^ 
 in order to let in fuch account, may make legal objeiSlions. (cj 
 
 eompromiflb adjiciatur.yr^fM/i/ dolo in 
 ea refaSlum/it\ ex ftipuiatu conve- 
 niri, qui dolo fecit, poleft. Et idee, 
 fi arbitiiim quis coriupit vel pecunia, 
 \t\ ambitione, vel advocatum diverfse 
 partis, vel aliqueni ex his quibus cau- 
 I'am fuam commiferat ; vel fi adver- 
 iarium callide circumvenlt. Et om- 
 iiino fi in hac lite dolofe verfatus eft : 
 locum habebitex ftipuiatu aftio. Et 
 ideo, fi velit de dolo actionem exercere 
 adverfarius : non debebit cum habcat 
 
 ex ftipuiatu aflionem. Qu^od fi hu« 
 jufmodi claulula in compromifTo ad- 
 firripta non eft, tunc de dola aftio, vel 
 exceptio locum habehit. Hoc autem 
 compromiflum plenum eft, quod et 
 doli claufulae habet mentionem. — Ff. 
 1. 4. t. 8. f. ;i. 
 
 faj 2 Term. Rep. 781. 
 
 (b) I Ca. Ch. 279, 280. 
 
 (cj Champion v. VVenham. Am- 
 bler, 2+5. 
 
 .CHAP.
 
 242 THE EFFECT OF THE AWARD 
 
 CHAP. viir. 
 
 The effect of the AWARD in precluding thf 
 
 PARTIES FROM SUING ON THE ORIGINAL CaUSE OF 
 
 Action, which was the Subject of the Reference. 
 
 S the obje£l of every reference to arbitrators, is to have an 
 end put, by the decifion of a domeflic tribunal, to all con- 
 troverfy refpefting the fubjedt referred, no rule is more confo- 
 nant to good fenfe than that which precludes the one party from 
 harraffing the other with an action on the original fubjedl of dif- 
 pute. The ancient law, accordingly, provided a remedy by aftion 
 for him who was fo harrafTed ; for as foon as he was fued on the 
 original caufe of adtlon, he might fue out a fpecial writ of tref- 
 pafs on the cafe, which is to be found in the Regifter, (a) by 
 the name of Breve de Arhitratione fatla^ on which he might 
 recover damages for the vexation ; and it were good, fays Lord 
 Coke, that fome one would fue that writ, (b) The wifdom of 
 his Lordfhip's obfervation is, however, very queftionable ; as 
 the defendant has a much lefs expenfive, and much more fpeedy re- 
 medy, in the privilege of pleading the award in bar of the 
 plaintiff's adlion. 
 
 To what action an award may be pleaded In bar it is not ne- 
 ceflary here to point out ; that queftion will be fufficiently an- 
 fwered by a perufal of the chapter on the fubjeft of reference, (c) 
 an award being pleadable in bar to every a£tion brought on a 
 queftion which may be referred to arbitration. 
 
 The queftion, what award may be pleaded in bar admits in 
 general of an anfwer equally fhort ; it muft have all the quali- 
 ties neceflary to conftitute a good award, and muft be fuch, if 
 it be pleaded without performance, that the plaintiff may have 
 a remedy to compel performance : but, if perform.ance be al- 
 ledged, a void award may frequently be a good bar. An award, 
 
 (a) Reg. Br. Orig. 1 1 1 . a. I (c) Cap. 3. page 30—40. 
 
 /'^^3Bullir.68,(66.) | 
 
 however.
 
 IN PRECLUOrrO THE PARTIES, Scc, 243 
 
 however, which is in itl'clf uncertain, and cannot be afccrtained 
 by averment, cannot be pleaded in bar. — To an adlion of af- 
 fumpfit for work and labour done, the clcf'cndant pleaded an 
 award " that the plaintiff fhould be fatisficd for the days work 
 and tafk work he had done for the defendant j but no value was 
 put, by the arbitrator, on the work ; and that then the plaintiff 
 fhould pay to the defendant 25I. and give him a general releafe 
 of all controvcrfies:" the defendant then averred that the tafk 
 work and days work were worth izl. los. and no more, and 
 that he had paid and fatisfied the plaintiff that fum. But the 
 plea v/as overruled, becaufe the arbitrator himfclf had not valued 
 the work, (a) 
 
 Whkre an award, it is faid, creates a new duty, inftcad of 
 that which was in controverfy, the party has a remedy on the 
 award, and therefore if he refort to an action on that which was 
 referred, the award is a good bar to that action : but where the 
 award does not create a new duty, but only cxtinguifhes the old 
 by releafe, the award is no bar to an acSlion on the original de- 
 mand. On this principle, where an action of airumplit was 
 brought on an agreement for the delivery of a certain quantity 
 of hops, and the defendant pleaded a labmiifion to arbitration, 
 and an award that each fhould give to the other general releafes, 
 and Ihewing that he had always been ready, and Itill was, to 
 fign and feal a releafe j this was held to be no bar, becaufe no- 
 thing, it was faid, was awarded in fatisfa(5lion. (IjJ 
 
 Ox the fame principle, it has been faid, an award " that all 
 fuits fiiall ceafc," though good to make the party forfeit his 
 bond, if he proceed in the fuit, yet is not a good jJca to the ori- 
 ginal action, becaufe it is a thing always executory and at the will 
 of the parties, and there are no means at law to enforce the per- 
 formance of it. CcJ Both this and the cafe immediately pre- 
 ceding, however, fecm altogether irreconcileable with good 
 fenfe. What reafon can be given, why an award fhould be 
 
 (<i) Popcv, Brttt. 2 Saund. 191. 
 3 Kcb. 736. vid. I Keb. 754. Dud- 
 ley V. Cole. 
 
 (b) Freeman v. Bcniard. i Ld. 
 
 Raym. 24.8. 12 Mod. 130. Comb. 
 440. I Sulk. 69. 
 
 (c) Lutw. 56, 57. 
 R 2 confidered
 
 244 THE EFFECT OF THE AWARD 
 
 confidered as good, for the purpofe of making the party forfeit 
 his bond by a breach of it, and yet that he Ihould not be per- 
 mitted to plead it in bar of an aftion for the original caufe ? 
 While indeed it was held that no adtion could be maintained on 
 an award to do a collateral thing, unlefs the fubmiffion was by 
 bond, it was perfedtly confiftent with reafon that fuch an award 
 Ihould be no bar to the original a6lion, unlefs performance of it 
 were fhev/n on the part of the defendant who pleaded it : the pur- 
 pofe of the fubmiflion was to decide, whether either of the parties 
 was entitled to complain againft the other, to give him a recom- 
 pence, to whom the arbitrator thought it was due, and by that 
 recompeace to put an end to the difputes fubmitted : if therefore 
 performance could not be compelled, it was reafonable, the 
 plaintiff fhould not be precluded from profecuting his adtion for 
 the original complaint. But, after it came to be held that there 
 was a remedy on an award of a collateral thing, though the 
 ubmiflion was not by bond, it feems altogether inconceivable, 
 why any cafe fhould be excepted, in which the award ftiould 
 not be a good plea. If the party, on an award that all fuits fhall 
 ceafe, muft forfeit his bond, by going on with his adion, or 
 where it is that he fhall give a releafe, by not giving that releafc 
 accordingly ; or if, where the fubmiffion is verbal, an action may 
 be maintained on the fubmiflion, for a breach in continuing the 
 adlion, or not giving the releafe j why Ihould not the award of 
 the one or of the other be a good plea to an action for the ori- 
 ginal caufe ? 
 
 An award, which does not extend to the whole of the thing 
 demanded, is not a good plea to an action on the demand, (a) 
 
 To an " indebitatus afiumpfit," and " quantum meruit " for 
 worlc done, and goods fold and delivered, the defendant pleaded 
 an award, by which, it was ordered that the plaintiff, for the 
 work done, fhould accept a bill of fale before made, of the 
 eighth part of the fhip " Fortune," or a like bill of fale to be 
 made, and that the plaintiff and defendant ftiould give each to 
 the other a general ; among other exceptions to this award as 
 a plea, one was that, nothing being av/arded for the goods fold 
 
 ar.d 
 fa) Farrer v, Ba^es. Al. 5.
 
 IM PRECLUDING THE PARTIES, Scc. 24J 
 
 and delivered, the award did not give a fatisfadion for the ivholt 
 demand ; for that, according to a former cafe, the general re- 
 leafe was not of itfelf a fatisfaiStion. But had the bill of fale, it 
 was faid, been awarded in full of all demands, then the award 
 would have been a good plea to the whole, becaufe it would have 
 been in fatisfa6tion of all demands, (a) 
 
 Where the plaintiff lays feveral counts In his declaration, 
 and the award, from the terms of it, can only be a bar to one 
 of them; if, in reality, they are all for the fame caufe, the bed 
 way of pleading feems to be, to plead the award to that count, 
 to which, in terms, it is an anfwer, and the general i/Tue to the 
 reft. Thus, in the laft cafe, the av/ard might have been pleaded 
 to the count for work and labour, and the general ifTue to that 
 for the goods fold and delivered, (b) 
 
 In an ailion of account the plaintiffs declared againft the de- 
 fendant, as bailiff, charging him with feveral parcels of goods, 
 which he had received for merchandizing : the defendant pleaded 
 that the plaintiffs and he had fubmitted to arbitrators, with a 
 fubmiffion over to an umpire; that the arbitrators made no 
 award ; but that the umpire had awarded that all fuits fhould 
 ceafe; that the plaintiffs (hould pay the defendant 30I. and fhould 
 receive their goods left in the hands of one Warren for their 
 ufe ; that if one of the plaintiffs (hould, within four months after 
 the date of the award, make oath that he had difcharged two 
 tons freight at 16I. per ton, then the defendant fhould have no 
 more money than the 30I. unlefs, within ten days after the four 
 months, he fhould make oath that he took the tv/o tons only at 
 lol. per ton ; and then the plaintiffs, or fome of them, (hould 
 pay him 12I. more ; and laftly, that the parties fliould give mu- 
 tual releafes. The plaintiffs demurred, and the defendant joined 
 in demurrer. The Chief Juftice (^r^ pronounced judgment in 
 favour of the plaintiffs, but without ftating his reafons ; but the 
 reporter (d) has thought proper to give us his own argument in 
 
 {a) Clapcolt V. Davy. i Ld. 
 Raym. 612. 
 (b) Seni. Ld. Raym. ibid. 
 
 (c) Tr.by. 
 
 (d) Lutwychc, 
 
 R 3 favour
 
 1^6 THE EFFECT OF THE AWARD 
 
 fiivour of the pkintiffs. It was acknowledged, he fays, that as 
 to the ceafing of all fuits, and the giving of mutual releafes, the 
 award was good to bind the parties to performance ; but it was 
 infifted, that, had nothing elfe been awarded, the award for thefe 
 would not alone have been a fufficient plea : it was alfo objetfied 
 that the part which related to the two tons' freight was appa- 
 rently abfurd and unreafonable, and that therefore the award in 
 that particular was void. But the principal objeclion was to 
 that part which dire£led the plaintiffs to receive the goods which 
 had been left in the hands of Warren for their ufe : this was 
 evidently meant as an equivalent to them for the payment of 
 the 30L and if there was any foundation for what v/as alledged 
 on this, head, that the execution depended on the mere good 
 will of the defendant, becaufe Warren might not deliver the 
 goods without his order, and the law gave no remedy to com- 
 pel the delivery of them, or to procure fatisfaclion for the non- 
 delivery, undoubtedly the award ought not to have been a bar 
 to the adtion of account; becaufe, as was juflly obferved, all the 
 things awarded to be done in favour of the plaintiffs were but 
 one intire and complete fatisfaciion for their demand ; but, if, 
 in truth, the award, " that the plaintiff fliould receive the goods," 
 ought to have been conftrued that the defendant fhould deliver 
 them, or procure them to be delivered, and if an acStion on the 
 award in which the breach might have been afligned in the non^- 
 delivery, could have been maintained againft the defendant, 
 there feems to have been no good reafon for the judgment, (a) 
 
 A DEFENDANT, to an aclion of trefpafs, may fometimes 
 plead an award made on fubmiffion by the plaintiff and a 
 ftranger. Thus, to an aflion of trefpafs for trampling down 
 the plaintiff's grafs with cattle, the defendant pleaded that at the 
 time of the trefpafs committed, the cattle were in the cuftody 
 of a flranger, and that the plaintiff and that flranger had fub- 
 mitted to the award of a certain pcrfon, who ordered the ftranger 
 to pay the plaintiff a certain fum, in fatisfadlion of the trefpafs, 
 
 which 
 
 (a) Dighton etal. v. Whiting. Lutw. 51,
 
 IN PRECLUDING THE PARTIES, kc. 247 
 
 which he had accordingly done ; and this was held to be a good 
 bar to the a6Uon. (a) 
 
 The defendant mav alfo plead that the trefpafs, of which the 
 plaintiff complains, was committed by the defendant and ano- 
 ther ; and that the matter was afterwards fubmittcd to arbitra- 
 tion, by the plaintiff, the defendant and the other trcfpaffer. 
 
 The plaintiff declared in trefpafs for taking away and detain- 
 ing his wife for four months againft his confenf, by which he 
 loft the comforts of matrimony : the defendant, after imparlance, 
 pleaded, as to the force and arms, not guilty, and as to the re- 
 fidue, that the trefpafs of which the plaintiff complained, was 
 committed as well by the defendant as by one H. Martin, and 
 that after the trefpafs aforefaid, and fmce the laft continuance, 
 particularizing the day, the plaintiff", the defendant and H. Mar- 
 tin, fubmittcd to the arbitration of three perfons the trefpafs afore- 
 faid, between the plaintiff, and the fame defendant and H. Riartin, 
 and divers fuits then depending between them : that the arbitra- 
 tors had awarded that the defendant and H. Martin fhould pay to 
 the plaintiff, or tender to his ufe, 7I. on the third of June, and 
 two intire third parts of all thecofts of the plaintiff, in and about 
 the faid fuit, payable to his attorney, after the bill produced; 
 that they had tendered the 7I. on the third of June, but the plain- 
 tiff had refufed it, and that no bill of the cofts had hitherto been 
 produced. On demurrer, this was held a good plea, though it 
 was objected that the declaration had charged the defendant for 
 a particular fa6t of his own, namely, the taking away of the 
 plaintifl''s wife and the detention of her for four months ; that 
 the detainer by the defendant could not be committed by H. 
 Martin, and therefore the fuit againft the defendant for that fact 
 could nol be a fuit depending between the plaintiff and the de- 
 fendant and H. Martin : but the objedion was overruled, for this 
 reafon, that the fubmiffion was to be conftrued of all anions be- 
 tween them or any of them, fhj 
 
 To an adtion brought after the fubmiffion, and before the 
 
 f^; 7H. 4. 31. b. Brooke, 44. b. [ C^) Thomlinfoa v, Arri(kin. Co- 
 pl. 48. Rol. Alb, 2 B. I. I myns, 318. 
 
 R 4 award
 
 248 THE EFFECT OF THE AWARD 
 
 award made, the defendant may p]e:id that fubmifHon, and that 
 the arbitrators have not yet made any award j provided no day 
 be limited for the making of it : but if a day be limited, then he 
 can only have the benefit of this plea, before that day. faj 
 
 But in order to make an award a good plea, it muft appear 
 that the plaintiff and the defendant were equally bound by it. 
 To an atSion of trefpafs againfi: C. P. he pleaded that the plain- 
 tiff had formerly brought another adion againft the prefent de- 
 fendant and one J. P. on which the plaintiff and the faid J. P. 
 had fubmitted all manner of trefpaffes and actions between them, 
 and alfo all other trefpaffes committed between the plaintiff and 
 the prefent defendant j that the arbitrators awarded, that as well 
 for the trefpafs of the prefent defendant as that of J. P. there 
 fhould be paid to the plaintiff lool. which had been paid : it was 
 held that this was not good, pleaded as an award, becaufe there 
 was no fubmifHon of the defendant, and therefore he was not 
 bound by it ; but it was held that it would have been a bar to 
 the adion, if [leaded as an agreement of the plaintiff. fl?J 
 
 In pleading an award, the defendant, it is faid, muft fhew the 
 place Vk'here the fubmiflion was made, and the names of the ar- 
 bitrators, but that it is not neceflary, in averring the payment of 
 money in purfuance of an award, to flate at what place nor at 
 what time it was p^d; Cc J nor at v/hat time the award was 
 made, fdj A difference is made in the old books, in the man- 
 ner of pleading an award in a declaration, and in 'd plea. — In the 
 firft cafe, the plaintiff muft fhew for what caufe they fubmitted, 
 but in the fecond, it is fufficient for the defendant to alledge 
 the fubmiilion generally, fej But it feems at leaft neceftary that 
 it fnould appear by the plea, that the fubmiilion comprehended 
 the fubjecl on which the aftion is brought, otherwife it can be 
 no plea to that action. 
 
 There were formerly fome diftinclions in the manner of 
 pleading an award, with refpect to the neceflity of allcdging per- 
 
 (a) i;5 R. 2. 
 
 (b) 20 H. 6. 41. Fhbt. 51. b. 
 
 (c) 8 H. 6. 25. b. 9 H. 6. 
 Biooke, 4.4.. a. 
 
 (c/) Per Biigges, 21 E. 4. 41, b, 
 ad quod non fuit refponfum. 
 
 (r) Br. 34. cites 5 E. 4. I. 
 
 formance
 
 IN PRECLUDING THE PARTIES, Scc. 24^ 
 
 formance of the things awarded, which though, of importance 
 then, arc not now efluitial. 
 
 The moll general diUindtion, was between the cafe where the 
 party in whofe favour the award was made, had a remedy to 
 compel pciformante, and that where he had not. In the former 
 the award itfelf was conlidered as a fufficicnt antwer to an avStion 
 on the fubjedt fubmitted ; but iu the latter, it was necellary that 
 he fliould aifo Ihew performance on his part ; faj becaufe it was 
 confidered that if there was no remedy for the thing awarded, it 
 remained in the power of the defendant whether he would fatlsfy 
 the plaintiff or not. (i)J 
 
 There was however one exception from this cafe, which was, 
 that, when the thing, awarded to be done on the part of the de- 
 fendant, was to follow the performance of fomcthing on the part 
 of the piaintiF, it wp.s fufficient for the defendant to alledgc a 
 default on the plaintiff's part, a-nd to fay th:'.t on performance by 
 him, he was ready to perform his part, (cj 
 
 This dillinclion principally prevailed between the cafes of a 
 verbal fubmiflion, and a fubmidion by bond. In the latter the 
 plaintiff had always the means of compelling performance of 
 the award, by fuing for the penalty of the bond: but in the for- 
 mer, uniefs the award was for the payment of money, the plain- 
 tiff had no remedy on th:; award, and, therefore, it was reafona- 
 ble that the defendant in pleading the award and fubmiflion ihoul J 
 fhew performance, fj) 
 
 In the cafe of an avvMrd for the payment of money on a pa- 
 rol fubmiflion, there was alfo a difference in the manner of 
 pleading, when the money was ordered to be paid on a parti- 
 cular day, and when there was no time limited for the payment. 
 
 In the latter cafe it was neccffary for the defendant to ailed ge 
 at lead that he always had been, and fHll was ready to pay ; and 
 
 (a) 4^E. 3. •ji. 45 E. :. 16. h. 
 IJ H. 4. IS. 9 H. 6. ro. b. 19 H. 
 6. 36. 9 E. 4. 44. Fiibt. 52. b. 
 Pr. 45. a. Rol. Alb X. 3. (,. 
 
 (b) 6 Mod, 211. 
 
 (:) ;o n. 6 iS. 19. Br. 44. a. 
 36 H. 6. 15. Brooke Arb. pi. z8. 
 
 ^./ 9E.4.44. Vi^l. I Lil. Rnj-m. 
 :4s. 
 
 there
 
 2-0 THE EFFECT OF THE AWARD 
 
 there are fome cafes reported, from which it might be concluded 
 that an allegation of aflual payment was necelTary ; but that 
 feems to have been carrying the point too far, becaufe the plain- 
 tiff might at any time have had his remedy on the award, (a) 
 
 Where the award was for the payment of money at a certain 
 day; in pleading this award, it was fufficient to alledge that the 
 day was not come, (b) But even in this cafe, if the day was 
 paft:, he muft have (hewn that on or before the day he had j aid 
 the money, or that he had tendered, but that the plaintift had 
 refufed it ; for, it was faid, though the plaintifr might have debt 
 on the award, yet the defendant could not compel the plaintiff to 
 have recourfe to that a6lion, and be barred of his aflion for the 
 original caufe : it was his own default that he had not paid the 
 money at the time appointed, (c) 
 
 But thefe diftinctions hardly any longer exifl ; for fince it has 
 been held that an action will lie on the mere fubmifTion, it is in 
 no cafe necefTary for the defendant, in pleading an award in bar 
 of an adtion, to alledge performance of the thing awarded, unlefs 
 where the award is void, and confequently the plaintiff could 
 not enforce it. (dj 
 
 SUCH is the general Syftem of the Law of Awards ; a fyftem 
 which, in many infcances, with much difficulty purified from 
 the unintelligible jargon of technical argumentation, has been, in 
 modern times, eftablifhed on the principles of fober reafon and 
 found fenfe j a fyftem, which, were the parties fubmitting always 
 certain of appealing to a judge of perfed wifdom and incorruptible 
 integrity, would be highly beneficial to the fociety : but which, 
 from the weaknefs and depravity of men, frequently becomes the 
 inflrument of the mofl flagrant injuflicc, and the moft ferious 
 
 (a) Vid. the places before cited. 
 
 (bj 22. H. 6. 52. b. 5 E. 4. 7. 
 Rol. Arb. Z. 3. 46 E. 3. 17. b. 
 Kol. Alb. X. 5. 
 
 (c) 49 E. 3, 3. 21 E. 4. 42. b. 
 
 Rol. Arb. Z. 1. I Keb. 848. Vid. all 
 tiiefe (iiftinftions pointed out, Lutw. 
 281, Ruflel V. Williams. 
 (d) Vid. I Ld. Raym. 122. 
 
 opprefHon.
 
 IN PRECLUDING THE PARTIES, &C. IS* 
 
 opprefTion. From the manner in which arbitrations are often 
 conducted, the parties, inftead of obtaining a fpccdy dctermiiu- 
 tion to their dif,)utes at an cafy expence, are frequently altogether 
 difappointed, by having no determination at all, and frequently- 
 involved in a niofl: ex; cniive and tedious litigation, which might 
 h.ivc been avoided, had they chofcn at fu 11 to have recourfe to 
 the ordinary tribunals of the country. 'I'hc only fubjects, which 
 are proper for arbitration, feem to be long and intricate accounts ; 
 difputes of fo trifling a nature, that it is of little importance 
 to the parties in whofe favour the decifion may be given, pro- 
 vided, at all events, there be a decifion j and queftions on which 
 the evidence is fo uncertain, that it is much better to have a de- 
 cifion, whether right or wrong, than that the parties fhould be 
 involved in continued litigation. 
 
 INDEX.
 
 INDEX. 
 
 A DMINISTRATOR.— See Executor. 
 
 Affidavit of Submission. 
 
 Witnefs to fubmifllon, may be compelled to make, ij. 
 To ground an attachment for non-performance, 215 — 218. 
 
 Arbitrator, 
 
 Who is, 4. 
 Who may be, 41. 
 Two kinds of, 43. 
 Proceedings by, 59. 
 
 Whether bound to give notice of the award, 67 — 76. 
 Cannot leferve an authority, 78 — 82. 
 Cannot delegate an authority, Sz — 90. 
 AVhen he may make his award, 90. 
 When made defendant to a bill, 229, 230. 
 See Umpire. 
 
 Assignees. — See Bankrupt. 
 
 Assignment. — See Breach. 
 
 Attorney, 
 
 May fubmit for his principal, 24. 
 
 When he fliall be perfonally bound, 27, i;:;9, no, 145. 
 
 Performance by, 18 1. 
 
 Award,
 
 INDEX. 
 
 What, 5. 
 
 Who fhall be bound by, 24. 
 Who may take advantage of, 39. 
 How made, 77. 
 When it may be made, 90. 
 Muft beacconiing to the fubmiflion, 91. 
 Not beyo d the fubmiflion, 9Z, 113. 
 Muft not extend to a ftranger, 104. 
 See Stranger. 
 
 Muft not be of parcel only of the things fubmitted, 1x4. 
 Muft not order any thing againft law, izz. 
 Muft not be of a thing impoffible, 123. 
 Muft be reafonable, 126. 
 
 » advantageous, 128. 
 
 Whether it muft give a recompence, 129. 
 Muft be certain, 139. 
 May be conditional, 136. 
 
 in the alternative, 137. 
 
 Muft be final, 140 — 146. 
 
 Whether it muft be mutual, 147 — 154, 168. 
 
 How conftrued, 154 — i6j. 
 
 May be good in part, though void in part, 165—178. 
 
 The form of it, 179. 
 
 Performance of it, i8o — 186. 
 
 Breach of it, 186 — 189. 
 
 How fet forth, in the declaration, 190, 191. 
 
 ■ in the replication, 192. 
 
 For what caufcsfet afide, 236. 
 
 How pleaded in bar of an adion, 242— a50' 
 
 Bankrupt, 
 
 Affignces of, may fubmit a difpute in his right, 33. 
 
 when bound by his fubmiffion, 29. 
 
 . — may take advantage of an award made in his 
 
 favour, 29. 
 Breach, 
 
 Of fubmiffion, 16 — 19, 60. 
 Of the award, 186—189. 
 
 . when necelTary to be afligned, 192, 201, 205. 
 
 ' ■ huw it muft be affigned, 201, 202, 203, 204. 
 
 Costs,
 
 INDEX. 
 
 Costs, 
 
 The power of the arbitrator over, 88 — 90, 100— lox, 169. 
 
 Date, 
 
 Of the award, 134, i35- 
 
 Whether ncceflary to be alledged in pleading, 196. 
 
 Delegation, 
 
 Of a minifterial a(ft, 82 — 90. 
 Of a judicial ad, 8a — 90. 
 
 Departure, 193, ao6, 208, 409, 210, 213. 
 
 Executor, 
 
 May fubmitadifpute in right of his teftator, 23. 
 Bound by an award on fubmiffion of his teftator, 29. 
 May take advantage of ditto, 29. 
 
 Feme Coverte. — See Married Woman. 
 
 Infant, 
 
 Cannot fubmit, ei. 
 Cannot be an arbitrator, 41. 
 Another may fubmit for him, la. 
 
 Married Woman, 
 
 Cannot fubmit, ao. 
 
 Cannot be an arbitratrix, 41. 
 
 When flie (hall be bound by an award, 27, 28. 
 
 Partners, 
 
 Covenant to fubmit by, S, 9, 10. 
 
 Performance, 
 
 Whatfliallbe, 180—186. 
 
 Remedy to compel, 189. 
 
 When neccflary to be alledged, 197, 207, 208, 248 — 250. 
 
 Pleading,
 
 INDEX. 
 
 Pleading, 
 
 Order of, 192. 
 
 Premises, 
 
 Submiffion with a claufe, " of and upon the prcmifes," 
 113, 122, 139, I49» 150, 160, 161, 177. 
 
 Release, »c2, 113, 132, i49> 156, 159, 160—165, i70--i73> i74— * 
 177, 181. 
 
 Relief, 
 
 Again ft an award, 
 
 By objedions appearing on the face of it, 226. 
 
 By fliewing caufe againft an attachment, 234, 236. 
 
 By motion tofet itafide, 234. 
 
 By bill in equity, 227 — 234. 
 
 Remedy, 
 
 On an award, 
 
 By adion of anTumpfit, 189 — 192. 
 
 By adtion of debt on the award, 190 — 192. 
 
 By debt on the fubmifiion bond, 192 — 214. 
 
 By attachment, 214 — 216, 217, 218. 
 
 By bill in equity, 219 — 225. 
 
 Request, 
 
 When necefiary to be ftated in pleading, 191, 203. 
 
 Reservation, 
 
 Of a minifterial aft, 81. 
 Of a judicial adt, 81, 82. 
 
 Revocation, 
 
 Of the fubmifiion, 16. 
 How it may be, 17. 
 Exprefs and implied, 17.' 
 EfTci^s of, j8, 19, 6c- 
 
 StrangeRj
 
 INDEX. 
 
 Strascer, 
 
 To the rubmifTion, 103 — 113, 125. 
 
 Diftin(5lion between an adt to be done bj and to, ioj« 
 
 Subject of Reference, 
 
 What things may be fubmittcd, 30 — 40. 
 
 Submission, 
 
 What, 4. 
 
 How it fhall be, 5. 
 
 By the aft of the parties merely, 5 — ro. 
 
 By their aft with the intervention of a court, 5 
 
 By reference at «j/?/nttj, 11 — 14« 
 
 Byftatute of W. 3, 11— 13. 
 
 Verbal, 7. 
 
 In writing, 8. 
 
 By bond, 8. 
 
 By covenant, 9. 
 
 By whom and to whom made, 8, 30, ai, 23. 
 
 Howconftrued, 14. 
 
 Its extent, 14. 
 
 May be revoked, 16. 
 
 What fhall be a breach of, 19. 
 
 When neceiTary to be ftated in pleading, 190, 191, 199, so^ 
 
 Verdift by confent for fecurity, a 16. 
 
 Umpirage, 
 
 What, 5. 
 
 See Award. 
 
 Umpire, 
 
 Who is, 4. 
 
 See Arbitrator. 
 How appointed, 43, 44. 
 Arbitrators having nominated one who rcfufes may tkct 
 
 another, 56 — 59. 
 Claufc of " Ita Quod" extends to him, 117. 
 
 S Ukci&taistv,
 
 INDEX. 
 
 Uncertainty, 
 
 When helped by averaxent, 135, 138, 139. 
 
 Witness to Submission, 
 
 May be compelled to make affidavit, la 
 
 Woman, 
 
 May be an arbitratrix, 41- 
 
 FINIS.
 
 ERRATA. 
 
 In pa. 6, note (c), fccond column, 1. fccond, yor ftari, rwiftarc. 
 14, note /'ay, yir Compton, r^j</ Crompton. 
 
 18, at the bottom, after plainlift", yi./-//)- (i ). 
 
 19, note (a) , firll column, laft \. for ftari, read ^zrt. 
 ao, 1. 6, after hindered them, fupply from. 
 
 38, note (a), laft 1. firft column, yir parti, rcW parte. 
 41, note (d), 1. fourth, /or opitimae, r^W optimx. 
 
 48, 1. %b,for on before, read on or before. 
 
 49, 1. i^^for the opinion, readt\\\s opinion. 
 
 51, 1. 2, /or firft, readU^. 
 
 59, 1. 10, fr reference, r^W referee. 
 
 62, 1. "J, for owing, read owcn, 
 
 67, note, fecond column, 1. firft, /or ftari, r^a^ftare. 
 
 1. eighth, for fummum, read fummam. 
 
 74, note (b)tfor delt,rfi2rfdebt. 
 
 76, note (h), firft column, 1. four, /or fentifle, r^arf fenfifle. 
 
 82, 1. ^,for faid, read title. 
 
 95, 1. 8, /or " demand," read " demands." 
 Il9i !• Sifii^ may, ''^"'^ many. 
 148, 1. if), for of the cafe, read oi that. 
 I5I» '• 9» beliveen free and i\l\ts,ftipply from. 
 
 note /'cy, a/>fr Harris, /ufp/y Cro. El. 904. 
 
 160, 1. 2, iT/Vcr recited, /////y it. 
 303, 1. 15, for caufe, rfa</ cafe. 
 114, I. 25, /or uot, rfji/not. 
 326, 1. 6, de/emerc. 
 338, 1. II, a/V^r cafe, /«/-//_)! of. 
 
 *," There arc feveral inaccuracies in the pundluation, which the candid 
 reader will obferve and cxcufc. 
 
 No. 4, Hare. Court, TemfU, 
 April to, 1 79 1.
 
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