Cн. 13.

Art. 10.

time; and if any new demand or controversy did happen in the mean time, the award, as to that new demand or controversy, is void," for that was not submitted. "And it is a good performance to tender a release of all matters in controversy to Bac. Arb. the time of the submission;" this is all he is bound to do, and 119, 120.new matter is not intended if not shewn in pleading.

Salk. 174, Simon v. Gaud.

Cro. Jam. 352, 358, Cro. Jam. 448, 578, 664.

Stain v. Wild.

-Cro. El. 858.--Cro. El.

5. In a similar case of a submission, July 29, and an award made August 8, the court held, the whole award was void. In this case the award was, that the plt. have a horse in dispute, and £3 paid him by the deft. for costs and mutual releases, including about two months after the submission; the action was for the £3, and on demurrer the court held, 861.-Hob. that though the award was on, and concerning the premises, 191-10 Co. and no new matter shewn, yet it was void, as to the releases, the plt. not shewing there was no new matter; and these being void, there is nothing awarded for the deft's. benefit, so all on one side and void. But 2 Cro. 578 there was a contrary intendment, and so Cro. El. 858, and so other cases.

132.

Goodman v.
Fountain.

6. So assumpsit for 40s. awarded, and verdict for the plt., Cro. El. 861, it was moved in arrest of judgment, that the award was void, as it was made of more than was submitted, as only actions at the day of submission were referred, and the award was of controversies at the day of the award. But the court held the award was good, as it is of and upon the premises, the things submitted; and though the award seems to extend to more, yet the words, upon and concerning the premises, restrain it to the thing submitted, and this is according to the best authorities.

Cobb.-Bac.

7. Where the award is on the premises, and the releases 3 Lev. 188, are general, and come down to no particular time, it shall be Robenet v. intended they were awarded only to the time of the submis- Arb. 118. sion, and so the award is good.

-5 Co. 78.

8. An award, that all actions are to cease amounts to Barnes 43.— a release. The intention of the arbitrators is clear, and the Bac. Arb. 129. form is not material. Their award operates like a judgment to bar and bind the parties.

9. If two partners refer all matters in difference be- 1 W. Bl. 675, tween them, the referees may dissolve the partnership between Greene v. them. Waring.

10. An award that orders partition, but orders no deed Willes 248, to be given, is void. No partition of land can be made with- Johnson v. out deed, by statute law. In this respect, an award is not like a judgment.

11. On the whole, the above case from Salk. 76, must now be considered as law, and the old cases to the contrary, as not law. These rested on a very erroneous principle; in them noth

Wilson.

CH. 13. Art. 11.

2 Wils. 293,

Addison v.

Grey.

2 Bos. & P.

371, Aubert

r. Magee.

2 W. Bl. 1117, Pickering v. Watson.

3 Lev. 414.Bac. Arb.

ing was intended in favour of the parties' own acts, amicably to settle their disputes.

ART. 11. Awards void in part. § 1. It appears in art. 9 above, and in the books, that many awards are void in part ; hence, an important question arises often, when does the void part vitiate the whole award. The rule is, that when the good part and the void part are distinct and independent, the good part will stand in force. But when any thing in the void part enters into the consideration of the good part, and so these good and bad parts are blended together and not distinct, the whole award is void. Award set aside for a bad debt included, good for the rest.

2. As in a subinission of all matters, so that the award be made on the premises, and at an after day the award is made, that one release all matters to the time of the award, and the other pay £10; here is an award primâ facie, both sides, but the releases being void, the whole award is so, for the release was intended as a part of the consideration; but now as the release would be held good for all matters before the submission, the award would be viewed as mutual and good. § 3. An award that the deft. pay the plt. £7 10s. and the 120, Bargrave costs of a suit, the plt. had against the defts., and thereon muv. Atkins.tual releases to be given, the court adjudged that this was a 2 Cain. 235. good award as to the £7 10s., and void as to the costs, as to them being uncertain; and that on payment of the £7 10s. each party ought to release, and not wait for the performance Willes 64, Chandler v. as to the costs, as to which the award was void. In this case Fuller.-2 T. the costs were a distinct article, and for the award to be good in part, that part must be distinct and independent. The arbitrators may award the plt. his costs, and also award costs of reference to be taxed by the proper officer, and if the officer tax the former, the award will be good for the plt's. costs, and bad for the costs of reference. For it is clear the referees cannot award costs of reference, though they may the costs of the party by the English law. See Whitney, adm. v. Cook,

-5 East 139.

R. 644.

1 H. Bl. 223,

-2 W. BI.

1117-2 D.

& E. 644.

8 East 13.

1 Bin. 61.

Bac. Arb. 133, 134, 145.

Poph. 16.

above.

4. Submission to the award of A, so that it be made at, or before April 30; he made one April 30, and awarded that the parties within four days release to each other to the time of the submission, but that if either be discontented with the award, and by May 20 pay the other party 10s. then it should be void. The court held this was a good award, and that the last part only was void, for the proviso to make it void, after the executions of the releases is repugnant, but if this avoiding proviso had been within the four days, the award would have been void, as it would have been no final end of the dispute.

5. An award, that one party assure lands submitted, to the other and his wife, is void as to her, as she is no party, and the assurance must be to the husband alone.

CH. 13.

Art. 12.

2 Wils. 267,

277.

§ 6. The courts of law formerly looked critically into Bac. Arb. 159. awards, but in modern times they give them a benign con- 269, Fox v. struction; and now, if an award be certain in part, as in re- Smith, and gard to £20 damages, and uncertain in part, as in regard to 293-1 Burr. costs unascertained, the party may shew the award in his plea, and assign a breach in the non payment of the £20 only; and he shall have judgment, for he may give up the bad, and rest on the good part. Costs, primâ facie, mean legal

costs.

7. So if all actions for tithes be submitted, and the award 1 Com.D.531. be that all actions cease, it is a good award; for it is intended --2 Cro. 664. there is no other action unless they be shewn, and the award is good for what is submitted, and void for the rest.

118, 120,

8. Debt on an arbitration bond. Plea no award. Repli- Gilb. Cases, cation, an award made, that the deft. pay the plt. 25s. April Abrathut v. 1st, and 25s. to each referee May 1st; and on the payment Brandon, and of said monies, mutual releases to be given to the time of the PP. 126, 127. award. The court held, this award was good as to paying the 25s. April 1st, and void as to the 25s. to each referee. And as to the release, that it was void, so far as it exceeded the submission; and that the releases might be to the time of the submission. This difference must be taken, that the justice of the award be not affected by the void part being rejected. And if the whole will be unjust by rejecting the void part, the whole must be set aside.

Farmer.

9. Though the plt. refer all matters, he may sue any mat- 4 T. R. 146,. ter, on proof it was not laid before the referees; but then, the Ravee v. referees must not, intentionally, omit any matter referred. As -Willes 268, where they decided all matters but one, and gave liberty to Bradford v. one of the parties to prosecute the matter, if he chose. In this Bryon. case the award was deemed bad in toto, though the excepted matter be excluded from the releases. But the referees may except a certain thing not in dispute, as a note, that it shall stand and be paid.

5 Ins. Cl.

ART. 12. How awards may be performed. On a view of 1 Bac. Abr. all the cases, it appears that an award to pay money in the 126, 127.house of a stranger, if not a tavern or coffee-house, is bad; 2 B-1 Com, but at the house is good; for they may pay at his house and D. 526. not be trespassers.

160, 128.

§ 1. There must be a demand of the thing awarded, and Salk. 83.tender and refusal has the same effect in awards as in other Bac. Arb. 127, cases; and when one party tenders his part, he has a right to have what the other is to do to, or for him. As if one tender the £10 he was awarded to pay, he may sue for the release 254, 255, 267.

1 Rol. Abr.

CH. 13.
Art. 13.

Bac. Arb.
179.
Salk. 75.

Bac. Arb.

135, 221, 222.

Bac. Arb. 136.

-3 Lev. 18,

413, 414,
Bargrave v.
Atkins.
Winter v.

the other was awarded to make to him, though the release was to be made on the receipt of the £10.

§ 2. An award will not be enforced when obtained by fraud or concealment of a party, or by corruption or partiality of the referees.

§ 3. And if one, who is to receive money, refuse it on a tender, he is as much bound to sign a release, as if he actually received. it.

§ 4. Where costs are awarded, they are as between party and party, and not as between attorney and client, unless the referees expressly so award; as that the plt. have all his expenses, or use other words, shewing they mean he shall have his actual costs. In pleading a tender of the performance of an award, ad hoc paratus is not necessary to be pleaded. Some books, however, are otherwise.

5. Costs may be ascertained by the plt's. bill given to the deft; but an award that the deft. pay the plt. £71 10s., and all reasonable expenses sustained by the plt. about his said suit, is uncertain and void. But since where it was awarded that the plts. pay the costs, and no one appointed to tax them, the bove-Stra. Court supplied it by ordering the master to do it. A parol 737, Dudley's award may be pleaded ready to be delivered, &c. Salk. 75, and sufficient if only made.

Garlick, a

Case.

Oatis v.

Bromil,

4 East. 584.

5 Co. 77, 78, Samon's Case.

2 Stra. 1024. 314, Thinn v.

-Cro. Jam.

Rigby.

1 Lutch. 550.

Rol. Abr 263

ART. 13. When awards are certain and final, or not. § 1. A and B submit all disputes as to lands, and award that A enjoy it, and that B give him a bond, is void; for the sum of the bond is not named, and there are no data on which to find it. And every award ought to be certain, that the party may know What he has got to perform. 1 Day's Ca. in Er. 130.

2. Two persons submit controversies, as to the right, title, and possession of 200 acres of land, called Kelstom Linge,Bac. Arb 131. award, that in the waste lands of the town of Kelstom, one -1 Lev. 88. shall have the brakes, there growing, during his life, paying to -Ld. Raym. 124, 234.- the other 2s. a year, without giving any name to the land in 12 Mod. 585. the award; this award is void, and cannot be helped by aver-1 Cain.319, ment, that the brake land is the 200 acres submitted, and not other land; for the party cannot expound the intent of the arbitrators, whose office it is to end all differences directly, or by reference to something certain. Costs of reference, also, are included in costs to abide the event. 9 East. 436.

304.-2 Cain,

327, 235.

9 East. 436.

Salk 75 Mod. Cas. 195.

Barnes 56,

18, 414.

§ 3. By all the above cases in regard to costs or expenses in the sixth and eleventh articles, the rule seems to be, that if costs of court are meant, they shall be taxed by the proper 166-3 Lev. officer, and so reduced to a certainty by a mere ministerial act; but if not such costs, but expenses generally, they are uncertain, and the referees must reduce them to certainty, or the award as to them will be void. Award, certain actions be dis2 Vent. 243. continued, and each pay his costs is final. 9 East. 497.

2 Wils. 268.

-Stra. 737, 1025, Knott v. Long

An award CH. 13.

§ 4. What is a certain and final award or not. is good, that one party pay £105 to the other by such a day; and if then not paid, £110 by such a day; for it is but a penalty for the non-payment at the day, all which is in the arbitrator's power. Bac. Arb. 70; 1 Com. D. 535; 1 Rol. Abr. 250; Cro. Jam. 534; 1 Keb. 335; 2 Keb. 670, 838; 2 Mod. 238.

Art. 13.

5. So an award is good that one party enjoy the land Cro. Jam. three years, and pay so much rent every 6 months; and on 423, Furser v.. failure to pay, the award for enjoying the land to be void. To 2 Atk. 501. pay debts named in moieties is good.

6. It is enough the award agree in substance with the submission, but the intentions of the referees must be expressed or implied in their award itself; and if not so, no intent can be averred; but this intent may be expressed in the award itself, or in any paper made a part of it by reference, as in Beal v. Beal, Winter v. Garlick, and other cases.

Prowd.

Bac. Arb. 84.

Dyer 242. -Plow. 396.

7. A question then often arises, it the award be accord- Dyer 242. ing to the submission in substance. Cases. The submission was of right and interest in land, and the award was of the profits. Adjudged this was not according to the submission. So of "all actions," a cause of action is not. quarrels include a cause of action.

But all actions and

pay $340

8. Submission by the husband of all disputes as to money Co. L. 285. laid out for his wife, at her request. Award hat he for all sums laid out for her, (omitting at her request,) is not according to the submission,

9. A parson and his parishoners recited a dispute, if his tithes shall be paid in specie or not, and submit " all matters,

-Cro. Jam. 639, Waters v. Bridge.

as well spiritual as temporal, from the beginning of the world 1 Rol. Abr. to the present day." The award is good that awarded him 246.£7 for his tithes, due before the submission, and that they pay Bac. Arb. 86, him £4 a year for the tithes growing due after, for the right to the tithes was in question and submitted.

$10. In most cases, things particularly mentioned in the 8 H. C. 18.— submission must be particularly determined, and no award Bac. Arb. $7. should be made of things not mentioned in the submission, yet however the award may be of things which depend on the principle, that is, of such things as relate to, or depend on, the things in the submission, though not expressed in it; as where the title and possession of land are submitted, the award may include the evidences concerning it. So as to debts and the evidences of them, as above.

11. The submission was to four referees, " of all actions Cro. Jam. and demands," so as that the award be made by them, or any 399, 400, Berry v. Penthree of them. Plea, no award made; the plt. shewed that three ring. of them awarded that all actions cease except a bond, which was Bac. Arb. to stand and be paid. This was held to be a good award, for 203.

107.-Yelv.