llfBililiiillil
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 TREATISE 
 
 ON THE 
 
 LAW 
 
 OP 
 
 AWARDS, 
 
 THE SECOND EDITION, 
 
 REvisEn AND corrected; 
 With very conflderabU Additions from Printed and Manufcript Cafes 
 
 AND 
 
 AN APPENDIX, 
 
 . Containing a Variety of ufeful Precedents. 
 
 STEWART KYD, ESQ. 
 
 BARRISTER AT LAW, 
 
 OF THE MIDDLE TEMPLE. 
 
 Fronte exile negotium. — Aggreflis labor arduus. Terence. 
 
 Multum magnorum virorum judicio credo ; aliquod et raco vindico. 
 
 Senec. 
 
 Lonoan : 
 
 PRINTED FOR J. JOHNSON, C. C. Se J. ROBINSON, & J. BUTTERWORTK; 
 AND i, C. COLLINS, SALISBURY. 
 
 1799.
 
 "9?
 
 JOHN JOSEPH POWELL, ESQ. 
 
 Barrijier at Law, 
 OF THE MIDDLE TEMPLE, 
 
 THIS ESSAY 
 
 iS MOST RESPECTfULLV INSCRIBED, 
 As a Tcflimeny of 
 
 THE 
 
 HIGH SENSE THE AUTHOR ENTERTAINS 
 
 OF 
 
 THE HONOR 
 
 AND OF THE 
 
 JUST ESTIMATION IN WHICH HE HOLDS HIS CHARACTER 
 
 AS 
 
 A LAWYER AND A WRITER. 

 
 ADVERTISEMENT. 
 
 THE prefent Edition of the Treatife on the 
 Laxv of Awards contains a confiderable 
 Number of Cafes which have been determined 
 fmce the Pubhcation of the firft; and of thefe 
 feveral are no where elfe in Print ; in fome Parts 
 the Arrangement is fomewhat altered ; and fome 
 Subje6ts are difcuifed, which in the firft Edition 
 were left untouched. — The Appendix of Pre- 
 cedents is entirely new. 
 
 No. 3, Elm-Court, Temple, 
 Auguft 12, 1799.
 
 ADDENDUM. 
 
 NOTA BENE. 
 
 IN page 139 it is ftated that the Court of King's 
 Bench had lately decided that an award under feal 
 muft be on a deed ftamp, the fealing conftituting it a 
 deed. This cafe was cited before Buller J, at the 
 fittings in lall Trinity Term in the Common Pleas, at 
 Weflminfter, and fomething faid about the delivery of 
 an award under feal conftituting it a deed. — That Judge 
 faid he fhould pay no attention to that decifion in the 
 place where he then fat, and that by the delivery muft 
 be underftood that the arbitrator delivered the inftru- 
 ment as his awards not as his deed. 
 
 I have fince been favoured with the following Note 
 by Mr. Serjeant Bailey : — 
 
 " Wilson v. Smee. 
 
 *' In Hilary Term 1798 I moved for an attachment 
 *' for non -performance of an award ; Onflow fhewed 
 " for caufe that the award was under feal, that the 
 " atteftation purported that it had been fealed and 
 " delivered, and that it ought to have had a deed 
 " ftamp ; The cafe ftood over for the confideration of
 
 ADDENDUM. 
 
 V 
 
 the court till Eafler Term ; and then I produced an 
 affidavit that the arbitrators, at the time they exe- 
 cuted their award, ufed the words ' that they pub- 
 ' liihed it as their award,* and that they did not 
 deliver it as their a6l and deed ; and on this affidavit 
 the court thought the flamp proper, and made the 
 rule abfolute." 
 
 In Styles 459, Dod v. Herbert, Glyn J. C. fays, 
 an arbitrament under feal is no deed, and the arbi- 
 trament may be made without a deed, and therefore 
 it is not neceffary to be produced in court, for it is 
 but a WRITING under hand and feal ;" and in Perry 
 Nicholfon, i Bur. 278. Denifon J. page 281, fays, 
 It has been fettled that in anions upon awards 
 (which are no fpccialties) there is no occafion to fet 
 forth the whole award," &c.
 
 TABLE OF CONTENTS. 
 
 FAOK, 
 
 INDEX to the Cafes . - - . xiv 
 
 Introduftion _-_---! 
 
 Definitions _----~-o 
 
 D'tjiributlon of the Subj^il - " « - 6 
 
 CHAP. I. 
 
 Submission. 
 
 How it JJiall be - . - - 8 
 
 Its Extent - - - - - 26 
 
 H01V conflrued - - - - - 27 
 
 May be revolted - - - - 29 
 
 CHAP. II. 
 
 The Parties. 
 
 JVho may fubmit - - - - 35 
 
 JVho Jliall be bound by an Award - - 42 
 IVho may take Advantage of an Award - 48 
 
 CHAP. III. 
 
 The Subject of Reference. 
 
 What Snbje^s of Controverfy may be Jub- 
 
 mitted to Arbitration, and what net - 5®
 
 TABLE O CONTENTS. 
 
 CHAP. IV. 
 
 The Arbitrator and Umpire. 
 
 PVho may be an Arbitrator - - - *]0 
 Inveji'igat'ion of the Cafes relative to the 
 Manner andEffcSi of the Jppoint'ment of 
 an Umpire ^ _ _ _ _ y^ 
 
 Proceedings by Arbitrators - - ~ 95 
 
 How far they may referve an Authority to 
 
 tlu-mf elves - - - - - I2I 
 
 How far they may delegate their Authority 127 
 
 CHAP. V. 
 
 The Award or Umpirage. 
 
 The Award-muji be according to the Submijfon 1 40 
 
 It muji not extend beyond the Submifjion - 141 
 
 2^ or to a Stranger to the SubmiJJion - 156 
 
 JHuf not be of Parcel only of the Things 
 
 fubmitted - - ~ - - 171 
 
 Afuji not be of any Thing againfl Law - 1 84 
 
 J^or of a Thing impojjible - - - 1 85 
 
 It muJl be reafonable - ' - - - 189 
 
 ■ — advantageous - - - 191 
 
 certain - - - - 194 
 
 When Uncertainty may be helped by Averment 205 
 
 It muJi be final _ _ - - 208 
 
 : mutual - - - - . 218 
 
 How Awards fiall be conftrued - - 228 
 When an Award., though void for Party J/iall 
 
 be good for the Rcfidue - _ _ 242 
 
 When void for the whole - - - 246 
 
 The Form of the ward - - - 261 
 
 What f tall be Performance i- - 264 
 
 What JJiall be a Breach , . - 271
 
 TABLE OF CONTENTS. 
 
 CHAP. vr. 
 
 The Remedy to compel Performance, whem 
 
 THE Award is properly-made. 
 
 , ■■ ■ ,' -i- ■ 
 By the Roman L.aio _ ' _ _ 276 
 
 Iflien the SubmiJJion is verbal - - 277 
 
 IVJien the Suhmijfion is by Bond - ~ 280 
 
 JVhen by Reference at Niii Prius - - 311 
 
 fVhcn by Bond according to the Statute - 31^ 
 
 By Bill in Equity - - - - 3 1 S 
 
 CHAP. VII. 
 
 The Means of procuring Relief against an 
 Award when improperly made. 
 
 IVhcn the ObjeHion ar'ifes on the Face of the 
 
 Award - - -> - - 327 
 
 By Bill in Equity for Corruption, Partiality, 
 
 or Concealment - - - - 330 
 
 By fummary Application to have the Award 
 
 fet afide - - - - _ 340 
 
 For what Caufes an Award may be fet afide 346 
 Flow far an Award may be pleaded to a Bill 
 
 fl^ to fet it afde - - - -360 
 
 CHAP. vnr. 
 
 The EffcH of the ward in precluding the 
 Parties from fuing on the original Caufe 
 of Action, which was the Subjetl of Re- 
 ference ~ - - - - - 38 1
 
 TABI.K OF CONTENTS. 
 
 Appendix of Precedents. 
 
 Common Bond of Arhltratlon ». _ - 398 
 Condition of an Arbitration _ _ - 
 
 'Qowd for fettling Accounts of Executors, i^c. - 400 
 
 Bond /r (5m J. H. to T. H. in the penal Sum of loool. 403 
 
 Time enlarged by cndorfemcnt _ _ _ 405 
 
 Award made on the foregoing Submifjion - - 406 
 
 Bondy)om f. S. to R. S. in the penal Sum of loool. 412 
 
 The Award - _ _ - _ _ 414 
 
 The Releafes given by each of the Parties in 
 
 Obedience to the Award - - - 423 
 
 Siibmiffion by Indenture _ _ , « ^24 
 
 Award made by the three Arbitrators on the above 
 
 Submifjion - - - - - 42*7 
 
 Rule of Reference at Nifi Prius "where a Juror is 
 
 ivithdraiun _ _ _ ^^2 
 at Nifi Prius where a VcrdiH: 
 
 is taken for the Plaint ij/^ - 433 
 
 Special Reference by Rule of Court - - 435 
 
 Award made on the foregoing SubmiJJion - . - 438 
 
 Pleadings on Awards _ _ _ - _ 441 
 
 Affumpfit on mutual Promfes to perform an Award 443 
 
 Debt on an Award for Payment of Money - 446 
 
 Declaration in Debt on an Award made by an Umpire 44S 
 Debt on an Award by Umpirage againjl Defendant, 
 
 i^c. in tJic Arbitration Bond - - - 451 
 
 Declavation in Debt on an Award, ^c. where one 
 
 of the Arbitrators rcfujed to a^ - - 456 
 Debt on Bond, iffc. - - _ _ _ 460 
 Pica to an Ai"iion on a Bond of Arbitration - 463 
 of an A-ivard in Bar of an Atlion, i^c. - 465
 
 TABLE OF CONTENTS. XU'l 
 
 Bill tofet ajide an Award, the Arbitrators having 
 
 made improper Allowances, tsfc. - - 468 
 
 Bill to Jet afide an Award far Concealment of 
 
 effent'ial Circumjiances, l^c. - - - 450 
 
 Vita, of the Defendant J. G. - - - 514 
 
 Bill to fet afide an Award for Corruption and 
 
 Partiality in the Arbitrators - - - 53 1 
 
 Plea of Defendant in whofe favour the Award was 
 made, to Part, and his Anfwer to the Refidue 
 of the Bill 550 
 
 Index - 5^7
 
 LIST 
 
 THE PRINCIPAL CASES 
 
 Cited in thh Work. 
 
 ABRAHAT V. Brandon, 234, 242. 
 Adams v.Statham, 279. 
 Adams V. Adams, 88, 236, 240. 
 Addifon v. Gray, 297. 
 Ainfley v. GorF, 354. 
 Alablartcr v. Clifford, 170. 
 Alardice v. Cambel, 339. 
 Alley V. Cox, 190. 
 Alfop V. Senior, 42. 
 Althleftone v. Moone, 183. 
 Anfell V. Evans, 23. 
 Arnokc v. Orwell, 237. 
 Arnotte v. Bieame, 200. 
 
 Eackwell v. Knipe, 203. 
 
 Badley v. Loveday, 316. 
 
 Baily v. Chcefely, 25. 
 
 Baldway v. Oufton, 33, 310. 
 
 Bamfield v. Bamfield, 301. 
 
 Barber v. Giles, 80, 
 
 Bdrker v. Lees, 30. 
 
 Barnard v. King, 79. 
 
 Barnardifton v. Fowlycr, 148, 272. 
 
 Barnes V. Grcenwcll, 174. 
 
 Bjrney v. Faierchilde, 248. 
 
 Barfcy v. Clipfham, 159, 188, 20O. 
 
 Barret v. Fletcher, 292. 
 
 Barry v. Ru(h, 40. 
 
 Bafpole's Cafe, 176. 
 
 Bafpolv; V. Freeman, 238. 
 
 Beale v. Beak, 202. 
 Bean v. Newbury, 182. 
 Becket v. Taylor, 159, 189. 
 Beckingham v. Hunter, 148. 
 Bedam v. Clcrkfon, 158, 197, 235, 
 
 283. 
 Bevan V. Bevan, 317. 
 Berrie v. Ferric, 28. 
 Bilford V. Flint, 267. 
 Bird V. Bird, 1 1;9. 
 Birks V. Trippet, 179. 
 Blake's Cafe, 51, ^3. 
 Booth V. Garnetr, 215, 275. 
 Bowyer v. Blorkfidge, 39. 
 Bowyer v. Garland, 48. 
 Bradley v. Tunftow, 395. 
 Bretton v. Pratt, 245. 
 Brown V. Dalton, 125. 
 Brown v. Marfden, 394 
 Brown v. Goodman, 311. 
 Brown V. Brown, 331. 
 Brown v. Savage, 169. 
 Bullock V. Dulbie, 160. 
 Burbidge v. Raymond, 226. 
 Burgcs V. Pleyer, 263. 
 Burton V. Ellerton, 373. 
 Burton v. Pctrie, 333. 
 Buftificld V. Bulhfield, 151, 178. 
 Butcher of Ctoydon's Cafe, 358. 
 Butcher v. Cole, 372.
 
 PRINCIPAL CASES. 
 
 Butler V. Grubb, 11:4. 
 Butler V. Wigge, 28. 
 
 Cable V. Rogers, 261. 
 
 Carter v. Carter, 183. 
 
 Carter v. Start ut, 129. 
 
 Carter v. Manfbridge, 25. 
 
 Cayhill v. Fitzgerald, 165; 
 
 Cliampion v. VVenham, 327, 351. 
 
 Chapman V. Lani'down, 23. 
 
 Chafe V. Dare, 82 
 
 Cbpcott V. Davy, 232, 385. 
 
 Clark V. Elwick, 24. 
 
 Cockfon V.Ogle, 127, 197, 259. 
 
 Cole's Cafe, 221. 
 
 Collet V. Powell, 203. 
 
 Colfton V. Harris, 223, 277. 
 
 Colwell V. Child, 46, 
 
 Cooper V. Hirft, 227, 231. 
 
 Cooper V. Pierce, 242. 
 
 Coote V. Pooley, 167. 
 
 Copping V. Huinaid, 80, 81, 94. 
 
 Cornforth V; Green, 350. 
 
 Cowell V. Waller, 90. 
 
 Coxal V. Sharpe, 54, 55. 
 
 Dalling v. Matchett, 107. 
 
 Danes v. M on fay, 87. 
 
 Davila V. Almanza, 34. 
 
 Dawney v. Vefey, 48. 
 
 Delaval v. Mafchall, 85. 
 
 Dick V. Milligan, 345. 
 
 Dightonv. Whiting, 216, 232, 287. 
 
 Dilly V. Polhill, 278. 
 
 Duchefs of Suffolk's Cafe, 71, 108. 
 
 Dudley V. Nettleford, 135. 
 
 Dudley v. Cole, 382. 
 
 Duport V. Wildgoofe, 197. 
 
 Edn^undfon v. Haitley, 374. 
 Elborough V. Yates, 263, 285. 
 Elliot V. Cheval, 84, 223, 30S. 
 Emery v. Emery, 130. 
 Ewes V. Blackwall, 326. 
 Exparte Whitchurch, 42. 
 
 Farmer V. Durant, 212. 
 
 Farrer v. Gate, 300. 
 
 Faver v. Bates, 54. 
 
 Foreland v. Hornigold, 280, 296, 301. 
 
 Fox V. Smith, 297. 
 
 Freeland v. Johnfon, 37^. 
 
 Freeman v, Sheene, 272. 
 
 Freeman v. Barnard, 383. 
 
 Furfer v. Prowd, 203. 
 
 Fyall V. Varier, 8j. 
 
 Gartfide v. Gartfide, 358, 378. 
 Gill V, Ruffell, 397. 
 Glover V. Barrie, 129. 
 Goddard v. Goddard, 323. 
 Godfrey v, Godfrey, 191. 
 Godfrey v. Boucher, 361. 
 Goligi'.tly V. Jellicoe, 180. 
 Goodman v. Fountain, 238, 277. 
 GoITe v. Brown, 170, 237. 
 Gray v. Wicker, 148. 
 Gray v. Gray, 159, 195, 212, 272. 
 Green V. Taylor, 31. 
 Green v. Waring, 149. 
 Greenhill v. Church, 330. 
 
 Hales V. Taylor, 317. 
 
 Halfhide v. Penning, 15. 
 
 Hall V. Hardy, 322. 
 
 Hall v. MalTcy, 150. 
 
 Hamond v. Hatch, 176. 
 
 Ranfon v. Liverfedge, 185,202, 262, 
 
 291. 
 Harris v. Ppyntcr, 183. 
 Harris v. Mitchell, 77. 
 Harris v. Kn'pe, 221. 
 Harrifon v. Giundy, 315. 
 Hawkins v. Colclough, 177, 212. 
 Hayes v. Hayes, 12, 45. 
 Hetley v. Hctley, lOi; 
 Hide V. Petit, 1S4, 312. 
 Hingham v. Haffej, 154. 
 Hinton V. Crane, 263, 26S, 293I 
 Hodfen v. Harridge, 299. 
 Holland V. Helwis, 190. 
 Holland v. Brooks, 346. 
 Hopper V. Hacker, 181, 223. 
 Horton v, Horton, 57, 
 H ungate 's Cafe, 116. 
 Hunter v. Benn'ifon, 72, 105, 127, 
 
 288. 
 Hurft V. Bambridge, 197. 
 Hutchins v. Hurchins, 316, 34a. 
 Huys V. Wright, 274. 
 
 Ingram V. Webb, 171, 253. 
 
 Jeanes v. Fourthe, 246. 
 Jenkinfon v. AUenfon, 262. 
 
 Keind v. Carter, 291. 
 
 Kill V. HoUifter, 14. 
 
 Kiuge V. Fines, 216, 
 
 Kirby v. Pigot, 224. 
 
 Knight V. Burton, 61, 2tl, 212, 234* 
 
 Knox V. Simmonds, 138, 313. 
 
 Kockill V. Wetherel, 203. 
 
 Kynallon v. Jones, 239, 252, 256.
 
 LIST, &C. 
 
 Lamhard v. Kingsford, 235, 263. 
 Leak v. Butler. 
 
 Lee V. Elkiii, 175, 204, 242, 257. 
 Lerwyn v. Hillb, 237. 
 Ley V. Paynes, 178, 252. 
 Linfictd V. Feme, 202, 203. 
 Lingood v. Croucher, 366. 
 Lingoode V. Eude, 134, 371. 
 Linncn V. Williamfon, 231. 
 Liuicy V. Afhton, 189, 309. 
 Lonfdale v. Litilcdale, 333* 339- 
 Lumley v. Hutton, 47, 54, 55, 78, 
 
 198, 286. 
 Lufh V. Crabbe, 81. 
 Lynch V. Clcmence, 163. 
 
 Markham v. Jennings, 58, 229, 248. 
 
 Marks v. Maniot, 59, 241, 257. 
 
 Maffey v. Aubrey, 196. 
 
 Matthew v. Ollevton, 72. 
 
 Maye V.Samuel, 178, 222, 224, 239. 
 
 McfTengci- v. Freeman, ;02. 
 
 Mithel V. Harris, 16, 86. 
 
 Middlctonv. Weeks, 176, 181, 300. 
 
 Milvrood v. Stokes, 213. 
 
 Moor V. Bedel, 170. 
 
 Morgan v. Mather, 343. 
 
 Morris v. Creech, 55- 
 
 Monis V. Reynolds, 340. 
 
 Moife V. Surry, 47. 
 
 Mudy V. Ofann, 41. 
 
 Newgate v.Degeldcr, 32. 
 Nichols V. Grunnion, 208, 222. 
 Kickks V. Tiiomas, 151. 
 Noble V. Harris, 33. 
 Norton v. ManfcU, 320. 
 Norwich v. Norwich, 1 60. 
 Nuit V. Long, 135, 136. 
 
 Onyons v. Cheefe, 1 60. 
 Ormlade v. Coke, 176, 223, 277. 
 Ofborn V. Roydon, 104. 
 Owdy V. Gibbons, 12. 
 Owen V. Hurd, 316, 317. 
 
 Parmort v. Griffina, 13. 
 Paterfon V. Grofs, 315. 
 Pcarfon v. Henry, 41. 
 Petiley v. Godd.ird, 342. 
 Perry v. Nicholfon, 289. 
 Pcnvn V. Barry, 245. 
 Philips V. Knightky, 205, 2T5. 
 PhiMips V. Lord Falkland, 67. 
 Pickering v, Watfon, 239. 
 Pinckney v. Bullock, 152, 245. 
 PinWncy'v. Hall, ;6i. 
 
 Poole V. Pipe, 319. 
 Pope V. Brett, 194, 206, 382. 
 Pope V. Bufti, 373. 
 Pfcfton V. Eartwood, 139. 
 Purflow V. Baily, 144. 
 Pufcy V. Delhouvrie, 364, 
 
 Ravee V. Farmer, 138, i8l. 
 Raymond v. Popley, 222. 
 Recs V. Phelps, 241. 
 Rex V. Hammerton, 182. 
 Rex V. Coombs, 65. 
 
 V. Rant, 65. 
 
 Reynolds v. Gray, 94- 
 Richardfon v. Chancey, 315. 
 Ridout V. Pain, 350.. 
 Rifden v. Inglet, 301. 
 Roberts v. Newbold, 39. 
 Roberts v. Marriot, 145. 
 Rodham v. Stroher, 294. 
 Roffc V. Hodges, 202, 266, 303. 
 Rous V. Lun, 202, 262. 
 Rouih V. Peach, 376, 377. 
 Roy lion v. Ryall, 123. 
 Rudd V. Coe, 25. 
 Rudrton V. Yates, 36, 39. 
 Ruflel V. Williams, 392. 
 
 S. S, Company v. Bumpflead, 35O, 
 
 357> 363- 
 Sallows V. Girling, 28, 173, 284. 
 Salmon v. Pitt, 245. 
 Samon's Cafe, 128, 156, 195. 
 Sayer v. S.iyer, 244. 
 Scot V. Wray, 323. 
 Selby V. RuflTel, 121, 216. 
 Shelf V. Baily, 164. 
 Shephard v. Brand, 135. 
 Sherry v. Richardfon, 29, 217, 218, 
 Smith V. Kirfoot, 277, 2S8. 
 Soulfby V. Hodgfon, 105. 
 Sower V. Bradficld, 52. 
 Spettique v. Carpenter, 348. 
 Squire v. Greville, 11, 2X1, $4$. 
 Stain V. Wild, 255. 
 Stiles V. Trifte, 231. 
 Stock V. Di^ Smith, 316. 
 Stone V. Knight, 38. 
 Strangford v. Green, 42, 221. 
 Strike v. Benfley, 307. 
 Strong V. Saunders, 295. 
 Sweet V. Hole, 271. 
 Swinglehurll v, Altham, 155. 
 
 Talker V. Kcary, 102. 
 Tavcrncr v. Skingley, 189. 
 Taylor v. Walcam, 148.
 
 tI*T OF THE, kc. 
 
 Thinne V. Rigby, 123, 197. 
 Thomlidfon v. Ariflcin, 135, zi6, 
 
 389. 
 Tipping V, Smith, 197, 211. 
 Tittenfon V. Pear, 350, 371. 
 Toll V. Dawfon, 235. 
 Tomkins v. Webb, 244. 
 Trippet V. Eyre, 91. 
 Trulloe V. Afewre, 62; 
 Twifleton v. Travcrs, 83. 
 
 Vanlore v. Tribb, 170, 239, 250. 
 Vafquc V. Daniel, 239. 
 Veal V. Warner, 304. 
 Vynior's Cafe, 32. 
 
 Waller v. King, 100, 330. 
 
 Ward V. Pcriam, 336. 
 Ward V. Uuivin, 178. 
 Warren v. Green, 168. 
 Waters v. Bridges, 146, 249, 295. 
 Watfoi V. Clemcnr, 84. 
 Watfon V. Watfon, 206. 
 Webfter v. Biftiop, 315, 318, 
 Wellington v. Mackintofti, 14. 
 Wharlcy v. Bcckwith, 123. 
 Wills V. Maccormick, 32S. 
 Wilfon V. Conftable, 262, 284. 
 Winch V Saunders, 247. 
 Winter v. Garlick, 135. 
 Withers V. Drew, 137,206- 
 Wood V. Thomfon, 44. 
 Wood V. Ardift, 117. 
 Woodbridgc v. Hilton, 343.
 
 ■ II I IIIHIIII II Mill III I I I III I I I l l ^ l II IBM I I I 
 
 TREATISE 
 
 THE LAW OF AWARDS, 
 
 ><Ji.iS^i,«iiMi».«*' 
 
 Jntrotmctiattt 
 
 N the progrefs of fociety, a confiderable time 
 elapfes, after the ideas of property, and of the ex- 
 clufive rights of the individual, have arifen in the 
 minds of men, before acompulfory fyftem ofdiftributive 
 juftice can be completely eftablifhed. During that un- 
 fettled period, every difpute, for the decifion of which 
 the paffions of the difputants do 'not prompt them to 
 appeal to the chance of arms, is terminated either by 
 a mutual agreement, the conditions of v^^hich are fettled 
 by themfelvcs, or by the intervention of their friends ; 
 or by a reference to fome indifferent perfbn, of whofe 
 fuperior wifdom and equity they have formed a favou- 
 rable opinion. In the firfl: mode of fettlement, the 
 fecurity which each party has for performance by the 
 other, arifes partly from the nature of the agreement, 
 which confifls perhaps of mutual conceffions to be 
 made at the lame time, partly from the fear of mutual
 
 INTRODUCTION. 
 
 violence in the cafe of rcfufal, and partly from that fenfe 
 of honour and refpeft for the opinion of others, which 
 in every period of focicty has a conf Jerable influence 
 over the mind. In the other mode, by reference, bc- 
 lide thefe principles, which are equally applicable to 
 this as to the firlt cafe, there is an additional fccurity, 
 arifing from the opinion which the contending parties 
 entertain of the juftice of the arbitrator. It muft foon 
 have been found, however, that fomething more than 
 all thefe was wanting to procure a ready and uniform 
 obedience to the judge ; and it became iieceflTary to 
 arm him with the colleftive power of the fociety, to 
 enable him to enforce the execution of his decrees. — 
 Yet after the multiplied concerns, and the complicated 
 rights of men, had rendered the fcience of law a diilindl 
 profcffion, and courts with a regular courfe of pro- 
 ceeding were eflabliflied, many reafons concurred, in 
 many cafes, to induce contending parties flili to have 
 recourfe to the original mode of reference, to a do- 
 meftic judge chofen by their mutual confent. 
 
 Under whatever fyftem of law regular courts for 
 the diftribution of juflice are ercdled, it is found ne- 
 ceflTary, in order to give certainty to their decifions, to 
 adapt peculiar forms of adion, and u:;odes of pleading, 
 to the particular nature of the cafe, and to ellablifh 
 certain formalities in the ma:;7:er of bringing the parties 
 before the court. The confideration of expence, that 
 mufl nccelTarily I: j incurred before a hearing can be 
 obtained, and a tear that a technical miftake in fome 
 part of the proceedings may endanger the parties fuc- 
 cefs, often prevail with him, though fatislied of the 
 juflice of his caufe, to refer it to the decifion of an 
 indifferent pcrfon, before whom we may explain every 
 
 4
 
 tNTRODUCTlON, 
 
 circumftance, without the apprehenfion of failing from 
 ignorance of form. An aftion, too, can feldom decide 
 more than a fingle queftion ; but the variety of tranf- 
 aftions, which, from the nature of improved fociety, 
 muft frequently have place between contending parties, 
 requires a tribunal which can completely inveftigate 
 the whole, fct one claim or one injury againfl another, 
 and pronounce fuch a fcntence as will put an end at 
 once to all their difputes. All courts have found it 
 neceflary to eftablifh particular modes of proof, and 
 certain rules of evidence ; and one, amongft the latter, 
 which is founded in the iirft principles of juflice and 
 public policy, " that no man fhall be permitted to give 
 evidence in his own caufe." But this rule^ like many 
 others founded on general principles, and ellabliflied 
 for general convenience, is fometimes produ6tive of 
 particular hardfhip. From the nature of the tranfaftion 
 itfelf, perhaps ; from the length of time that may have 
 elapfed fmce it took place ; from the want of pre- 
 caution in the parties to have their agreement witnelled, 
 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 themfelves, or what there is without thefe 
 may be very infufficient to enable a public tribunal to 
 draw a politive and certain conclufion. In fuch a cafe, 
 a judge, who can examine the parties to the tranf- 
 anfVion, who can obferve their looks and demeanour, 
 and who, without being confined to the lirift rules of 
 evidence, is at liberty to decide from circumftances of 
 probability, has manifeftly a lingular advantage. A 
 conviftion of the good policy of encouraging thefe 
 domeftic tribunals, has induced thofe who have pre- 
 
 e %
 
 IKTROOrCTION. 
 
 fided over the formation of the civil code, to lend them 
 their affiflance to enforce obedience to thefr decrees : 
 that aiTiftance, however, is not given indifcriminately 
 in all cafes, without examining iilto the propriety and 
 juflice of the award ; it has been thought proper to 
 eftablifli rules' of interpretation, derived from the nature 
 of the authority conferred upon the arbitrators, and the 
 implied engagement under which the contending parties 
 bind themfelves by their fubmiffion : accordingly we 
 find, that the title Awards inakes no.inconfiderable 
 figure in almoft every fyftem of law with which we are 
 acquainted. The rules which have been eflablifhed 
 with refpeft to awards, in the Englifli law, in their 
 general fpirit and fundamental principles, bear fuch 
 a refemblance to thofe which are found in the pandeft 
 and code of Juftinian,^ 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 
 impoffible now to difcover, as they are given as ac- 
 knowleged and long eftablifhed rules at the time 
 when the pande£l and code were compiled : nor is it 
 more cafy to fay, at what precife period they were 
 adopted here, or whether they were admitted at once, 
 or by degre'es, as a component part of our judicial 
 fyftem. In the moft ancient repofitories ^ of the 
 decifions of our courts, the greater part of them are 
 mentioned as known and uncontroverted law. It is 
 chiefly in the application of them to particular cafes, 
 and with refpcd to the manner in which effedl fliall be 
 
 ' Ff. I. 4. t. 8. Cod. 1. 2. t. 56 ' Year Books.
 
 INTRODUCTION. 
 
 given to them, by pleading or otherwife, that they 
 have been the fubje£l of litigation for many centuries 
 part. 
 
 Under each head into which the fubjeft of awards 
 naturally divrdes 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 fub- 
 je£l, which have been preferved in the books of re- 
 ports, 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 de- 
 cided. In the execution of this plan it may fometimes 
 perhaps be necelfary to detail a feries of technical fub- 
 tleties, which, fome may think, might as well have 
 been omitted : to thofe, however, who confider that, 
 in every fyflem, few law^s owe their exiftence to legif- 
 lative wifdom, contemplating the poffible relations and 
 general interefts of fociety, and providing at once, by 
 a pofitive edi£l, a folution for every quellion to which 
 the various tranfa£lions 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 quellion 
 has arifen ; that the paffions of the client have a ten- 
 dency to influence the mind of the advocate, and that 
 the advocate is often ready to affift the client in re- 
 pelling the claim of .his opponent, by all <he fubtleties 
 with which his profeffional purfuits have armed him — 
 To fuch readers this detail will probably appear the 
 leafl faulty part of the work.
 
 l.VTRODUCTIOX. 
 
 DEFINITIONS. 
 
 That aft, by which parties refer any matter in dif- 
 pute between them to the decifion of a third perfon, is 
 called a fubmiffion ; 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 lliall decide, that other is called 
 an umpire ; the judgment pronounced by an arbitrator, 
 or arbitrators, an award; that by an, umpire, an um- 
 pirage, or, I^fs properly, an award.^ 
 
 DISTRIBUTION OF THE SUBJECT. 
 
 The moft natural drflribution of the fubje£l feems to 
 be under the fpllowing heads : 
 
 I. The Submiffion. 
 
 II. The Parties to it. 
 
 III. The Subjeft of Reference. 
 
 IV. The Arbitrator and Umpire, 
 
 V. The Award, or Umpirage. 
 
 3 Domat. \ Yo], zzSo
 
 INTRODUCTION. 
 
 VI. The Remedy to compel Performance, when the 
 Award or Umpirage is properly made. 
 
 VII. The Means of procuring Relief againft it when 
 improperly made. 
 
 VIII. And, laftly, its EfFeft in precluding the Parties 
 from fuing on the original Caufe of Adion, which was 
 the Subjeft of Reference.
 
 THE SUBMISSION. 
 
 CHAP. I. 
 
 The Submission. 
 
 THE Submiffion may be purely by the 
 aft of the parties themfelves ; or it 
 may be by their aft with the interpolition 
 of a court. 
 
 In the ancient Roman law, whether the fubmiffion 
 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 fhould be awarded, or to incur the for- 
 feiture of a fum of money, or of fome other fpecific 
 thing;''- except in the cafe where the parties were 
 mutual debtors, and they promifed mutually that he 
 who did not obey the award fhould not fue for what 
 
 4 Ex compromiffo placet 
 exceptionem non nafci, fed 
 poenae petitionem, Ff. 1. 4. 
 t. 8. f. 2. — Tametfi neminein 
 praetor cogat arbitrium reci- 
 
 pere tamen ubi femel quis 
 
 in fe receperit arbitrium — 
 quifquamne poteft negate 
 sequilfimum fore prstorein 
 interponcre, ut officium quod 
 in fe rccepit, impleret ? Ait 
 praetor, " Q^i arbitrium, pe- 
 
 cunia compromiffa receperit." 
 1. 4. t. 8. f. 3. n. I, 2. — Arbi- 
 trum autero cogenduni non 
 eJTe fententiam dicere, nifi 
 compromifiTum intervenerii. 
 Quod ait praetor, '< Pecuniam 
 compromiffam :" accipere nos 
 dcbemus, non fi utrimque 
 poena nnmmaria, fed fi et alia 
 res vice poense, ^\ quis.arbitri 
 fententiae non fteterit, pro- 
 miffa fit. f. II, n.i, a.
 
 THE SUBMISSION. 
 
 was clue to him, which was in fubftance the fame thing 
 as a fubmiffion under a penalty.'* 
 
 Justinian, however, in fome meafure, though very 
 inadequately, provided for the cafe of a fubmiffion with 
 a liniple promife to ftand to the award. He cna&erly 
 that whether fuch a fubmiffion was verbal or in writin"-, 
 then if the parties, after the award made, fubfcribed 
 that the judgment did not difpleafe them ; or if, within 
 ten days, they did not exprefsly declare they were 
 dilfatisfied with it, each fhould have a remedy againil 
 the other, in cafe of non-performance. 5' And where 
 the fubmiffion was accompanied by an oath to ftand- 
 to the award ; or the arbitrator, by the confcnt of the 
 
 1 Interdum refte rtudo 
 
 pa£lo fiet cornpromifTum : ut 
 puta, fi air.bo debitores fu- 
 erunf, et padi funt " ne petat 
 quod fibi debetur, qui fen- 
 tentiae arbitri non fteterit." 
 II, n.3. 
 
 5 Si quis prefens arbitrum, 
 fententiam dicere prohibuit, 
 pcEna comniittetur. Sed fi 
 poena noa fuifTet adjefta corn- 
 promiffo, led fimpliciter " ftn- 
 tentias ftari " quis proraiferit ; 
 incerti verfus eum foret a£lio. 
 Ff. lib. 4, t. 8, f. 27, ii. 6, 7. 
 — Cum antea fancitum fuerat 
 in arbitris eligendis ; quos 
 neque pcEna compromiffi val- 
 labat, neque judex dederat, 
 fed nulla iententiaprscedente 
 communis eleftio, " ut illorum 
 fentcntise ftaretur," procrea- 
 bat — nihil ex eo iprocedere 
 
 prrefidli : fancimus in eos ar- 
 bitros — ut "eorum dcfinitioni 
 ftetur, fiquidem. fubfcrip- 
 ferint, — " quod non difplicccit 
 ambabus partibus eorum fen- 
 tentia:" non folum reo ex- 
 ceptionem veluti pafti gene^ 
 rari, fed etiam a£lori in fadtuni 
 aftioncm. Sin autem poft 
 fententiam minima quidem 
 fibfcripferint, " fe arbitri 
 formam amplefti," fed filtn- 
 rio earn roboravetint et non 
 intra decern dies proximos at- 
 tefiatio miiTa fuerit— pcrquam 
 manifeftum fiat definitionem 
 non effe ampledendam ; tunc 
 filentio partium fententiam 
 roboratam effe, ct fugienti 
 exceptionem, et agenti me- 
 moratam aftionem compecere. 
 Cod.l.z, t. 56, f.5.
 
 KO 
 
 IHE SUBMISSION. 
 
 parties, bound himfelf by an oalh to end the difpute 
 with all regard to truth, the fame emperor enabled, 
 that both parties Ihould be bound.^ 
 
 In the law of England, where the fubmiffion is by 
 the bare aft of the parties, without the intervention of 
 a court, it may be either verbal ov in writing : where it 
 is merely verbal, it may be limply an agreement to 
 fubmit the matters in difpute to the decifion of the 
 arbitrator, without an exprefs promife 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 effeft is now the fame ; 
 but the diftinftions were formerly held to be material. 
 At all times a fubmiffion, in any of the form.s, was held 
 
 * Si inter aftorem et reum 
 nee non ipfum judicem fuerit 
 confenfum, ut cum facramenti 
 religione lis procedat, et liti- 
 gatores hoc fuis manibus vol 
 per publicas perfonas fcrip- 
 ferint, vel — propria voce de- 
 pofucrint, quod facramentis 
 praeftitis arbiter eleftus eft, 
 hoc etiam additio, " quod et 
 ipfe arbiter juramentum prse- 
 ftiterit fuper lite cum omni 
 veritate dirimenda— :" vel fi 
 de arbitro nihil tale fuerit 
 compofitum vel fcriptum, ipfe 
 autem partes literis manifef- 
 taverint,quod juramenti nexi- 
 bus fe illigaverint, ut arbitri 
 lententiae ftetur.-five ab initio 
 hoc fuerit ab his fcriptum, vel 
 
 praifato modo depofitum dum 
 arbiter eligebatur, five poft 
 definitivam fententiam hoc 
 fcriptum inveniatur, " Quod 
 cum facramenti religione ejus 
 , audientiam amplexi funt : " 
 vel " Qaod ea quae ftatuta 
 funt, adimplere juraverint." 
 — Sed et fi ipfe folus arbiter, 
 hoc litigatoribus pofcentibus 
 
 prasftiterit juramentum, 
 
 " Quod cum omni veritate 
 liti Jibramenta imponat."-— 
 In his omnibus cafibus liceat 
 vel in faftum, vel conditionem 
 ex lege, vel in rem utilem 
 inftituere aftionem, fecundum 
 quod fafti qualitas poftula- 
 verit. Cod.l. 2,t. 56,i. i}.
 
 THE SUBMIBSrON. 
 
 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 aft, there was no means of compellinf 
 performance.' 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 per- 
 form the award, an adlion might be maintained on fuch 
 promife, though the award w^as of fomething elfe than 
 the payment of money.' The next ftep was to fupport 
 an aftion on fuch an award, where the fubmiflion was 
 by mutual prpmifes only.^ It was fomewhat later 
 before the very a£l of fubmiffion was confidered as im- 
 plying a promife in itfelf to abide by the determination 
 of the perfon to whom the matter was referred ; and 
 that an aftion might in all cafes be fuppprted on fuch 
 a fubmiffion,* 
 
 Though the fubmiffion may be by parol, yet, when 
 it is reduced into writing, it muft, according to a late 
 decifion qf the Court of King's Bench, be on paper 
 fuitably ftamped.^ 
 
 When the fubmiffion is in writing, it is moll com- 
 monly by mutual bonds, given by the parties each to 
 
 7 Per Holt, I L. Raymond, 
 
 * Gouldfborough, 92, pi. 4. 
 
 ^ I Ld. Raymond, 122. — 
 Squire v. Greville, 6 Mod. 35. 
 2 Ld. Raymond, 961, 965. 
 Vid. 6 Mod. 222. 2 Ld. Ray- 
 mond, 1039. I Salk. 76, 
 
 ' Vid. Knox v. Simaionds, 
 3Br. 259, 361. 
 
 » That is, if the fubmiflion 
 be in the form of a fimple 
 agreement, the ftamp muft 
 be an agreement ftamp ; if by 
 indenture with mutual cove- 
 nants, a deed ftamp — I do 
 not find the cafe reported in 
 which this was decided, nor 
 do I recolieft the name of it; 
 but I was in Court when the 
 point was decided.
 
 THE SUBMISSION'. 
 
 llie other, in a certain fum penal, on condition to be 
 void on performance of the award ; but it is not 
 effentially ncceflary that they fhould be fo given ; they 
 may be given to a third perfon, or even to the arbi- 
 ti-ator himfelf:^ 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 it neceiTary that, on each of the bonds, it 
 fnould appear of how many perfons the parties to the 
 fubmiffion confift. Thus, where* it appeared that 
 there were three brothers, Richard, Robert, aiid Wil- 
 liam ; that their father had devifed certain lands to the 
 two latter, and tliat feveral difputes ariiing between 
 them and Richard, they had, by bond, fubmitted to 
 arbitration; Richard, entering into a bond to Robert' 
 and William jointly, but they giving him feparate 
 bonds: it was held, after feveral arguments on an 
 a6lion brought by Richard againft Robert, that the 
 fubmiffion was properly made. 
 
 The fubmiffion may alfo be by indenture with mu- 
 tual covenants to ftand to the award. ^ 
 
 IT is ufual, in articles of copartnerfhip, and not un- 
 common in other agreements, to infert a proviiion or 
 covenant, that all difputes ariiing between the parties 
 relative to their intended tranfaftions, or to any cove- 
 nant in the articles, fhall be referred to arbitration. 
 Whether fuch a proviiion fhall fo far have the effeft 
 of a fubmiffion as to be a bar to either of the parties 
 
 3 Vid.36H.VI. 8. 22 Ed. 
 J v. 25 a. Owdy V. Gibbons. 
 
 tomb. 100, ■ 
 
 < Hayes v. Hayes, Cro. Car. 
 
 433- 
 
 5 2 Mod. 73.
 
 THE SUBMISSION. 
 
 I 7 
 
 fuing the other on any matter within the terms or 
 meaning of It, without having flifl had an actual refe- 
 rence, which has. proved ineiFe£lual, or a propofal b)- 
 the .plaintiff to refer, and refufal by tbe-defendant, has 
 been the fubjeft of contrary decifions. 
 
 In an early cafe'' on this fubjedl the quellion fecms 
 not fo much to have been whetlierfuch a pJea, if pro- 
 perly applied, would have been valid, but whether it 
 clearly appeared that the fubjeft of controverfy fell 
 within the meaning of the covenant to refer. — In an 
 indenture containing feveral covenants there was a 
 provifo that if any mifunderftanding or controverfy 
 fhould arife in future by reafon of any claufe, article, 
 or other agreement in the indenture contained, that 
 then before any fuit fliould be attempted, the parties 
 fliould choofe arbitrators for the determination of the 
 difpute. A bond was alfo given for the performance 
 of covenants contained in the indenture : the defendant 
 being fued on this bond pleaded this provifo, and al- 
 leged that the difpute and controverfy, on which the 
 aftion was brought, arofe on the indenture. The 
 court held the plea w^as 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 fubjeft of reference within the meaning 
 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 in- 
 denture, but were confined to the cafe where a difpute 
 arofe on the " conftruftion" of anv covenant. 
 
 * Parmort v. Griffina, i Leon.
 
 t4 THE SUBMISSION'. 
 
 But in a later cafe it was exprefsly decided, that 
 fuch an agreement could not alone exclude the jurif- 
 diftion of a court of law. An aftion was brought on a 
 policy of infurance, in which a claufe was inferted, 
 that in cafe of any lofs or difpute about the policy, it 
 Ihould be referred to arbitration. The plaintiff in his 
 declaration averred that there had been no reference ; 
 on the trial at Guildhall, it was referved for the con- 
 fideration of the Court of King's Bench, whether the 
 aftion could be maintained before a reference had 
 taken place ; and the whole court were of opinion, that 
 if there had been a reference depending, or a reference 
 had taken place and been determined, this might have 
 been a bar to the a6lion, but that the mere agreement 
 of the parties could not exclude the jurifdiftion of the 
 Couit.7 
 
 ^ To a bill filed for difcovery and relief againft frauds, 
 the defendant pleaded, that the plaintiff and he had, 
 on the 15th of November, 1728, executed articles of 
 copartnerfliip, by which they had covenanted to be- 
 come joint traders, as Blac'kwell-hall faftors, for eight 
 years, and agreed that in cafe any difference fhould 
 arife relating to their bufinefs, or with refpeft to any 
 covenant in the articles, it Ihould be referred: and 
 averred that all matters in the plaintiff's bill related 
 only to the partncrfhip, and that they had never been 
 fubmittcd to arbitration, nor had the plaintiff ever pro- 
 pofed a reference, or nominated any perfon to be an 
 arbitrator, though the defendant had offered and was 
 always ready to fubmit all matters to arbitration. 
 
 7 Kill v,Hollifter. i Wilf, 1^9. 
 ' Wellington v. Mackinrofli. 2 Atk. $85 (569),
 
 THE SUfiMlSSION. 15 
 
 Lord Hardwicke is reported to have difallowed the 
 plea, not becaufc he thought that an agreement of this 
 kind could not be pleaded, but becaufe there was no 
 power in the prefcnt inftance given to the arbitrators 
 to examine the parties, as well as witnefles, upon 
 oath. The bill was to obtain difcovery and relief 
 againft frauds, impolitions, and concealments, which, 
 without fuch a power, the arbitrators could not ex- 
 amine. If the plea 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 admit a difcovery, 
 in order to afiift the arbitrators. 
 
 In a fubfequent cafe, alfo of a bill for difcovery and 
 relief, where a fimilar plea was pleaded, the ^ Mailer 
 of the Rolls aflerted that this opinion of Lord Hard- 
 wicke's mull have been mifreported, becaufe the parties 
 could not give the arbitrators fuch a power. There 
 could be no doubt, he faid, that the parties entering 
 into an agreement that all difputes Ihould be referred 
 to arbitration, were bound by fuch agreement. If it 
 had been aftually referred, and the arbitrators had 
 found the examination of the parties infufficicnt, they 
 would have declined to determine, and then the jurif- 
 diftion of the court would have been reftored ; this v*'as 
 an anfwer to the objeftion that the pica fliould not go 
 to the difcovery. If it had become necelTary for the 
 information of the arbitrators, that there fhould be a 
 difcovery, the bill ought to have ftated that faft : the 
 lirll appeal mull be to thofe judges pointed out by the 
 articles i if they could not determine the controverfy, 
 they would remit it to the court. 
 
 9 Kenyon. Halfhide v. Penning, z Brown, 33S.
 
 l6 THE SUBJUSSJOiV. 
 
 But in a later cafe, the doftrine, " that the bill 
 ought to ftatc that it bad become neceffary for the 
 information of arbitrators that there lliould be a dif- 
 covcrv^," has been over-ruled • and it has been decided 
 that, notvvithftanding fuch a claufe in articles of agree- 
 ment, a bill will lie to obtain a dlfcovery for the purpofe 
 of enabling the plaintiff to fupport an a£lion at law. 
 
 The plaintiffs/ as partners in the Cornifh Copper 
 Company, in the bulinefs of fmehing copper ore, filed 
 their bill againft the defendants as partners in the 
 Cornlfli Metal Company, merely praying a difcovery, 
 and flating that by arLlclcs of agreement made between 
 the defendants on behalf of themfelves and the reil of 
 the Cornifli Metal Company on the one part, and 
 fevcral other perforis, and the plaintiffs in the Cornifli 
 Copper Company, on the other, the defendants had 
 agreed from time to time during the term of feven 
 years to deliver to the Smelting Company a certain 
 Ihare of all the copper ore which Ihould be procured or 
 purchafed by the defendants in the county of Cornwall, 
 in certain fpecific proportions, that the plaintiffs fhould 
 fmelt it, and difpofe of it. in the manner defcribed, and 
 that the defendants fliould pay for it, at the ufual times, 
 the caflomary allowance being firfl made in the manner 
 particularly defcribed, — and that no copper fliould be 
 delivered by the defendants for the purpofe of being 
 manufaftured by any perfon whomfoever other than 
 the Smelting Company. — The bill further Hated that 
 the defendants having entered into partncrfliip, or into 
 fome contract with one Thomas Williams, who was 
 *hen concerned in fraelting and- manufafturing copper 
 
 ' Michel and others v. Harris and others. 4 Browne, 311. 
 ' Vcz. Jun. 129.
 
 THE SUBMISSION, 
 
 17 
 
 ore and copper, had dircoiitinucd delivering copper ore 
 to the plaintiffs, and had delivered large quantities to 
 the account of Williams, to the great detriment of the 
 plaintiffs, and in dirc£l violation of the agreement. — 
 The bill particularly charged that the defendants ought 
 to difcovcr the feveral tranfaftions betvi^een them and 
 Williams, refpeding the delivering and manufafturing 
 of fuch copper ore and copper, and the quantity of 
 copper ore fo by them had and purchafed during the 
 time mentioned, and fmelted and manufadured at 
 other works and mills than thofe of the plaintiffs, and 
 the value and amount of the profits, which would have 
 arifen to them, had they been permitted to fmelt 
 and manufafture their proper fhares, according to the 
 articles of agreement. — The bill likewife charged that 
 the defendants had in their cuftody feveral books, 
 papers, accounts, writings, or letters refpedling fuch 
 matters, and tending to fhew that fome fuch agreement, 
 as alleged, exifted between them and Williams, and 
 that from thefe it would appear that the defendants 
 had fold very large quantities of copper ore obtained 
 within the county of Cornwall, and had procured it to 
 be fmelted and manufadlured at other mills than thofe 
 belonging to the plaintiffs, and that without fuch a 
 difcovery the plaintiffs were totally unable to proceed 
 at law againft the defendants to recover a compenfation 
 for fuch breaches of the agreement. 
 
 The defendants pleaded that by the articles of 
 agreement mentioned in the bill, it was agreed that 
 in cafe any variance or difpute fliouhl at any time 
 thereafter arife between the parties, refpecSting the 
 conftru6lion of any of the claufes therein contained, or 
 any of their dealings, or tranfadions, nnder the faid 
 
 D
 
 jS the SUBMISSION'. 
 
 articles, or in confequence of fuch dealings and tranf- 
 actions, fuch variance or difpute fhould be referred to 
 arbitration in the manner particularly fet forth ; and 
 they averred that all the feveral matters refpefting 
 which the plaintiffs fought a difcovery related to the 
 CQnftru6lion of claufes in the faid articles of agreement, 
 or dealings and tranfaftions of the plaintiffs or de-, 
 fendants under them, or in confequence of them, and 
 therefore they pleaded this claufe in bar to the dif- 
 covery fought. — The counfel who argued in fupport of 
 the plea, contended that the plaintiffs had not by their 
 bill fufficiently and clearly flated the abfolute «eceflity 
 of a difcovery of the feveral matters, fo as to proceed 
 to a reference to arbitrators ; that the averment of the 
 claufe was fufficient to fupport the plea ; that the 
 matters in difpute might be determined by the award 
 of arbitrators, without reforting to law ; and that 
 therefore the plaintiffs were not intitled to the aid of 
 a court of equity for the purpofe of a difcovery to 
 enable them to proceed in an aftion ; and they relie4 
 on the authority of the cafe of Halfhidc and Penning/ 
 
 The counfel for the plaintiffs contended that the 
 plea was bad in form and in fubflance ; it merely 
 alleged that the parties were bound by contrafl to 
 fettle matters in difpute by arbitration ; and that it 
 ought to have alleged a fub.miJJiQn to arbitration and 
 a reference depending : The authority of the cafe of 
 Halfhide and Penning, they faid, was much doubted ; 
 but if it were ever fo decifive, no reliance could be had 
 on it in the prefent cafe, frorn which it was very dif- 
 ferent, as the bill there prayed relief as well as difco- 
 very. As to the fubflance, the plea did not meet th« 
 
 » Ante, p. 15,
 
 T^E SUBMISSIOV. Ig 
 
 • ••;• - I *" '"""""'-•-'^ '—-'- — --'- ■ - '- •* " III jjj : ; 
 
 cafe made by the bill, which was founded on certain 
 frauds committed by the defendants, which were out of 
 the reach of the articles. It would be impoflible, they 
 faid, for arbitrators to do juftice, for the bill fought a 
 difcovery of papers and writings in tlie pofleffion of the 
 defendants, which, without the aid of a court of equity 
 they could not be compelled to difclofe, fo that juftice 
 would be completely evaded, if the plea were allowed : 
 The cafe of Wellington and Mackintofh, they faid, 
 was precifely in point ; that Lord Hardwicke had held 
 the plea in that cafe to be no bar to the difcovery^ and 
 that he had over-ruled it on this ground appeared by 
 the ftatement in the regifter's book : They faid further 
 that fuch a plea would not avail at law, unlefs there 
 had been an a£tual reference, in fupport of which they 
 urged the authority of the cafe of Kill and Hollifter 
 before mentioned.^ 
 
 The Lord Chancellor"^ obferved, that in the cafes at 
 law, fcarce a hint occurred, where an agreement of 
 this nature had been fet up as a bar to the adion ; but 
 on the other hand, many authorities were to be found, 
 that the award itfelf, or the fubmiffion to an award, 
 might be pleaded ; and on fuch a plea, the Court 
 examined the award. — In the prefent cafe, the bill did 
 not ftate that the parties were unable to proceed before 
 the arbitrators, and that they could not have the eife£l 
 of this covenant in the articles refpeding the reference, 
 for want of a difcovery ; but taking no notice of that 
 claufe, it ftated a variety of circumftances, in which 
 the defendants had violated the articles of agreement. 
 
 ' Vide ante, page 14. * Loughborough. 
 
 D 2
 
 THE SUBMISSION. 
 
 and committed fraudulent afts and concealments on 
 their part, to the detriment of the plaintiffs, and called 
 for a difcovery, not for the purpofe of going before 
 arbitrators, but in aid of an aftion at law. — It had 
 been objeftcd, that the parties having entered into a 
 covenant to refer matters in difpute to arbitration, this 
 court ought not to aid fuch an aftion, and that the 
 covenant would be a plea to an adlion at law ; and that, 
 therefore, it would be nugatory for this court, by 
 compelling a difcovery, to lend its aid to an a6tion, 
 which muft be completely barred by fuch a plea. — He 
 could not adopt this opinion. — In the cafe before Lord 
 Hardwicke, relief as well as difcovery was prayed ; it 
 was a lingular cafe, and whatever reafon the reporter 
 had inferted as his Lordfliip's ground of decifion, the 
 plea was over-ruled, and agreed with the cafe at law 
 which had been cited.* Had the parties proceeded to 
 a reference, and an award had been aftually made, 
 the award might ftill have been examined, or im- 
 peached in this court on equitable grounds. — The 
 prefent was a cafe where no reference had been made, 
 and v/here the bill merely fought a difcovery in order 
 to aid the parties in proceeding at law, and the plea 
 was in truth a plea to the aftion, and unlefs it could 
 hold as a bar to the a£lion itfelf, it could not prevail 
 here ; and on this ground the plea muft be over-ruled.^ 
 And parties cannot be precluded from purfuing their 
 right in the ordinary courfe, by any reftridion laid 
 
 5 Kill V. HoUifter. i Wilf. 129- 
 * The Reporter, in a note, fays, «' a plea of this nature was over- 
 ruled in the Exchequer, in Satterly V. Robinfon, Dec. 17, i79i-"
 
 THE SUBMISSIOI 
 
 upon them by another from wliom they derive their 
 title to the lubjeft in difpute :^ as if a tcftator direft, 
 that whatever controverlics fhall arife on the con- 
 ftruftion of his will, they Ihall be decided by fuch and 
 fuch arbitrators ; tlic legatees, or parties claiming 
 under the will, may, notwithftanding, have them de- 
 cided at law, if they think proper. 
 
 All the cafes of awards, reported in the books for 
 a long feries of years, appear to have been made on 
 fubmiffions, by one or other of thefe methods, by the 
 aft of the parties only ; but v/hen mercantile tranfac- 
 tions came to be frequently the fubjeft of difcuffion in 
 the courts, it was foon found that a judge and a jury 
 Vv^ere very unfit to unravel a long and intricate account, 
 and it therefore became a practice, in cafes of that 
 kind, and others which feemed to be proper for the 
 fame tribunal, to refer the matters, by confent of 
 parties, under a rule of tiiji prlus, which was afterwards 
 made a rule of that court out of which the record 
 proceeded, and performance of the award was enforced 
 by procefs of contempt. This praftice does not appear 
 to have begun before the reign of Charles II. for the 
 reports of that period fhew, that it was not before the 
 latter end of that reign that the courts granted their 
 interpofition without reluftance ; and in more inftances 
 than one a judge is ftated to have faid, that thefe re- 
 ferences were but newly introduced, and he never 
 knew any good to arife from them. But their utility 
 was fo well felt a fhort time afterwards, that, in the 
 reign of William III. in imitation of them a flatute \ 
 
 7 Dift. per Powys J. lo Med. 59, 
 ° 9 and 10 V/. III.c. 15, f. I.
 
 THE SUBMISSION. 
 
 was made, reciting, that * It had been found, by ex- 
 
 * perience, that references, made by the rule of court, 
 
 * had contributed much to the eafe of the fubjeft, in 
 
 * determining controverfics ; becaufe the parties became 
 
 * thereby obhgcd to fubmit to the award of the arbi- 
 
 * trators, under the penalty of imprifonment for their 
 < contempt, in cafe they refufed fubmiffion ; and 
 " enafting," ' for promoting trade, and rendering the 
 
 * awards of arbitrators the more effedtual in all cafes, 
 
 * for the final determination of controverfies referred to 
 
 * them by merchants and traders, or others, concerning 
 
 * matters of account or trade, or other matters, *' That 
 *' it fhall and may be lawful for all merchants and 
 *' traders, and others, deliring to end any controverfy, 
 " fuit, or quarrel, controverfies, fuits, or quarrels, for 
 *' which there is no other remedy but by perfonal 
 " aftion or fuit in equity, by arbitiation, to agree that 
 *' their Juhmifjion of their fuit to the award or umpirage of 
 " any perfon or perfons, JJiould be made a rule of any of his 
 *' Ad^ajefys courts of record which the parties fhall choofe^ 
 *' and to infert fuch their agreement in their fubmiffion, 
 ♦' or the condition of the bo7id ox promifc, whereby they 
 *' oblige themfelves refpedively to fubmit to the award 
 *' or umpirage of any perfon or perfons ; which agree- 
 *' ment being fo made and inferted in ihoiv fubmijjion or 
 *' promife, or condition of their refpeftive bonds, Ihall or 
 " may, upon producing an affidavit thereof, made by 
 *♦ the witnelTes thereunto, 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 
 " fhall thereupon be made by the faid court, that the 
 " parties fliall fubmit to, and finally be concluded by
 
 THE SUBMISSION. 
 
 '3 
 
 " the arbitration or umpirage which fhall be made 
 *' concerning them, by the arbitrators or umpire, pur- 
 *' fuant to fuch fubmiffion ; and in cafe of difobedience 
 " to fuch arbitration or umpirage, the party neglecting 
 ♦* or refufing to perform and execute the fame, or any 
 " part thereof, fhall be fubjeft 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, 
 ** Ihall iiTuc procefs accordingly," 
 
 It has been lately decided by the Court of King's 
 Bench that an award made under a verbal agreement 
 to refer, is not within the meaning of this (latute, and 
 in fuch a cafe they refufed, though both parties con- 
 fented, to make a fubmiffion a rule of court ; alleging 
 that the llatute, requiring the agreement to be inferted 
 in the fubmiffion, did not extend to it.^ 
 
 Where parties have come to trial in a caufe de- 
 pending in one court, they may fubmit to arbitration, 
 and agree that their fubmiffion fhall be made a rule of 
 another : This lately happened in the Exchequer, where 
 it was agreed that the fubmiffion fhould be made a rule 
 of the Court of King's Bench : and the Court of Ex- 
 chequer, on an application made to them for relief by 
 one of the parties, refufed to interpofe on the ground 
 that they had no jurifdiftion, and faid the application 
 muft be to the Court of King's Bench, of which the 
 fubmiffion had been made a rule.^ 
 
 When the fubmiffion is according to the provifions 
 of this ftatute, the court will compel a witnefs to it, 
 
 9 Anfell V. Evans, 7 Term Rep. i. 
 Chapniiin v. Lanfdown. i Anftruth. Rep. Exch. 273. 
 
 D4
 
 THE SUBMISSION. 
 
 to make an affidavit of it, in order to enforce the 
 award : for though the words of the ftatute be not 
 compulfory, the very nature of the thing gives the 
 court a jurifdi£lion over the witnefs. The adt of' par- 
 liament has appointed only this way by affidavit, and 
 a witnefs mufl not be permitted to evade it by his 
 refufal : a witnefs to a bond is compelled, by n fuhpoena^ 
 to give evidence of the execution ; and every man who 
 fubfcribes his name as a witnefs to an inftrument, un- 
 dertakes, by implication, to give evidence at a proper 
 time, and in a proper manner: no objeftion to this 
 arifes from the fuggcftion that the award was unfairly 
 made, and that the party has no other means of pre- 
 venting the fubmiffion from being made a rule of 
 court : the hardfliip of a particular cafe mufl not be 
 permitted to vary a rule founded on general principles 
 of utility,^ 
 
 But in order to found the application for a rule 
 againll the witnefs to make the affidavit, it feems to 
 be neceffary to lay before the court fome circumflance 
 to fatisfy them of the probability of his being a wit- 
 nefs ; as an affidavit of his having acknowleged that 
 he was ; or an affidavit of the party applying, that he 
 really is fo. 
 
 Such an application is not frequently neceffiary, and 
 therefore it does not appear whether the rule granted 
 in confequence of it may be abfolute in the firfl in- 
 ilance, or mufl be only a rule to Ihew caufe. The 
 few cafes that are reported have been of rules of the 
 latter kind.^ 
 
 * Clark V. Elwick. i Str. i, 2. 10 Mod. 332, 333. 
 5 Vid. Barnes, 58.
 
 THE SUBMI S SIGN. 
 
 »5 
 
 It is not neccffary that the agreement to make the 
 fubmiffion a rule of court ihoulJ be part of the con- 
 dition, or that it fliould be adually figncd : if it be 
 written under the condition, and the fubfcription, by- 
 affidavit, appear to have been made before tiie execu- 
 tion of the bond, the court will take it to be part of 
 rhe fubmiffion, as an indorfement by way of defcafance 
 is part of a deed.-* 
 
 If the application be on behalf of one of the parties, 
 and it appear by the bond of the other, produced in 
 court, that it was executed by him, the motion will be 
 granted of courfe ; the confent of the Ijitter appears by 
 the execution of the bond.^ 
 
 A SUBMISSION was by bond, and in the end of the 
 condition was this claufe : *' And if the obligor fliali 
 confent that this fubmiffion be made a rule of court, 
 then, &:c." A motion to make this fubmiffion a rule of 
 court was oppofed, on the ground that thefe words do 
 not imply his confent ; but that if he chofe to forfeit 
 his bond, he might prevent its being made a rule of 
 court: the words, however, were confidered by the 
 court as a fufficient indication of confent, becaufc they 
 could have been inferted for no other purpofe, and the 
 motion was accordingly granted.^ 
 
 But if the agreement be only that the "award'* 
 fhall be made a rule of court, that is not fufficient, it 
 is faid, to ground an application to have the *' fub- 
 miffiion" made a rule of court.' 
 
 t Carter v. Manlbridge. — 
 Barnes, 55. 
 
 *Ruddv.Coe. Barnes, 55. 
 '^ Baily V. Cheefely. 13 W. 
 
 III. I Salk. 72. Comyns, 1 14. 
 I Lord Raym. 674. 
 
 7 2 Barnardifton, K-B. 163. 
 Str. H78.
 
 x6 THE SUBMISSION. 
 
 If a caufe be referred by confent at tiiji prius, in 
 London or Middlefex, application muft be made for 
 the order of uifl prhn, to the clerk of niji prius ■, if on 
 the circuit, to the judge's alfociate, whofe bulinefs it is 
 to draw it up : and the attornies ought to fet down the 
 names of the witnelTes 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, 
 otherwife they muft attend a judge to be fworn.* 
 
 It was formerly held, that the ftaying of a caufe 
 was neceflarily 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, fays Twifden, that man is made judge.^ 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 de- 
 pending in that court Ihould ftay the proceedings, unlefs 
 it was exprefTed in the rule of reference to have been 
 fo agreed.'' 
 
 The extent of the fubmiffion may be va- 
 £/ 1 .e j.-jQ^jg accordinsr to the pleafure of the parties ; 
 
 Suhmijton. & r r 
 
 it may be of one particular matter only, or 
 of many, or of every fubjeft of litigation between them ; 
 but what extent fhall be given to the particular words 
 of it will be more properly difcufled in another place. 
 
 It is ufual, and even neceftary, to fix a time within 
 which the arbitrators fhall pronounce their avv-ard ; for 
 on the one hand, a delay is ncceftary for inftruding the 
 
 * \ Gotnpton, %i>i. Impey, 571. » j Mod. 24.' 
 
 \ i Lord Raym. 789.
 
 THE SUBMISSION. 
 
 17 
 
 arbitrators, and putting the queftion in a condition of 
 being determined ; and on tlie other tlie time ought to 
 be limited, becaufe it would not be juft, that it Ihould 
 be in the power, either of arbitrators or of the parties, 
 to put off the final decifion for ever." 
 The fubmiffion, being the voluntary agree- 
 
 _ , , , .... f, , Suhtniffiori, 
 
 ment of the parties, the words or it mult be , 
 fo underftood as to give a reafonable con- 
 ftruftion to their meaning, and to make their intention 
 prevail : therefore, where the fubmiffion was by d.^^^, 
 rehearling that each of the parties was bound to the 
 other in a fum of lool. and they, by the fame A^o.^^ 
 granted, that " if each of them iTiould Hand to the award 
 of A. B. then the obligation of him who performed the 
 award fhould be void, and that of him who did not 
 ihould be in full force:" and it was objcfted, that this 
 fubmiffion was void, becaufe it imported tliat each of 
 them was bound for the performance of the award by 
 the other. This conilrudtion was rejefted as abfurd 
 and nonfeniical, and contrary to the plain meaning of 
 the parties: and it was held, that the words, " if each 
 of them Ihall (land," &c. Ihould be taken in the fame 
 fenfe as if the fubmiffion liad been exprelTed thus, 
 " that the one was bound to the other, and the other 
 to him, each that himfelf lliould ftand to the award, 
 if not, his obligation to be in full force." ^ 
 
 So, where the condition of a bond was to ftand to 
 the award of two arbitrators, with a provifo that it 
 fhould be made on or before the' 23d of January ; but 
 if the arbitrators Ihould not afrree on the awaixk that 
 
 •» Domar. i vol. 224. * 39 H. 6. 9. b. n- a.
 
 28 
 
 THE SUBMISSIOrs'. 
 
 then they fhould choofe an indifFerent man, and " they" 
 fhould {land to the final end, determination and judg- 
 ment, which he fhould give on or before the 2Sth of 
 January, under his hand and fcal : it was ferioufly 
 argued, tliat the lail pronoun, " they," not having 
 immediately before it any antecedent, to which, in the 
 grammatical order of the fentence, it could be referred, 
 applied to the arbitrators, who were to perform the 
 award of the umpire , but good fenfe prevailed over this 
 objeftion, and the court held that it fliould be referred 
 to the parties thcmfelvcs/ 
 
 Where the fubmiffion 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 feveral folemn arguments, 
 that the court were prevailed on unanimoufly to hold, 
 that thefe 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 exadnefs the " fame" 
 award referred to the former part of the fentence, and 
 might be taken to mean the award made by four, yet 
 as this conftrua-ion would render the latter words per- 
 feaiy ufclefs, it mull be rejefted, and the obvious 
 meaning of the parties, on the whole, adopted : that 
 the " fame" award fhould be referred to the thing, and 
 not to the perfon ; fo that it fliould be interpreted 
 " the fame" award of the fame things, to be made by 
 the faid arbitrators, or any three of them.^ 
 
 4 Butler V. Wigge. 2 Keb. 
 204. I Saund. 65. 
 
 5 Vid. I Rol. Rep. 375 — 
 Cro. Jac.400. Bridgeman, 91. 
 IVlo, 849. 3 EuUlr. 62. I 
 
 Bulftr. 122, 123. Brownlow, 
 112. Yclv. 203. Cro. Jac. 277- 
 The cafes of Sallows v. Gir- 
 ling, and Berrie v. Perrie.
 
 THE SUBMISSION. 29 
 
 The reader, perhaps, anticipates the obfcrvation, 
 that a mind unacquainted with tlic hillory of Jegal 
 chicane, will hardly be able to conceive that a doubt 
 could be raifed on the fubje6l. 
 
 Where there is a repugnancy in the words of any 
 part of the fubmiffion, the latter Ihall be rcjefted, and 
 the former ftand : as if the condition of a bond, dated 
 the 1 6th of March, be to Hand to an award, with a 
 provifo that it be made on or before the laft day of 
 ** this inflant" montli of " April ;" here, as no month 
 can anfwer to the dcfcription of this " inftant month," 
 but that in which the words are ufed, namely March, 
 the words " of April" fhall be rejefted ; for there is 
 nothing to determine them to the next April, any more 
 than to the April of any other year : therefore, if the 
 award be not made till the laft day of April, or indeed 
 at any time after the hift of March, it will be made 
 at a time out of the fubmiffion, and therefore of no 
 efFeft ; 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 Ihould have been 
 taken to mean, the April of the fame ycar.^ 
 
 All kind of authority is in its nature 
 
 . Ill Sitbmijfwn may 
 
 revocable, though made irrevocable by ex- / 
 
 ° . , be revokd. 
 
 prefs words ; therefore, if one of the par- 
 ties, before the making of the award, or before the 
 expiration of the time for making it, revoke the au- 
 thority of the arbitrators, the latter cannot proceed ; 
 or if they do, the party revoking is not bound to per- 
 form their award, but may plead the revocation in bar 
 
 f Sherry V. Richardfon. Popham, !-, i&.
 
 30 
 
 THE SUBMISSIOy. 
 
 of an a£lion on the award itfelf; or he may himfelf 
 recover againil: the. other, in an aftion for the original 
 caufe of difpute -J — and, in this refpeft, our law cor- 
 refponds with the civil law.^ But if one on one fide, 
 and two on the other, fubmit, one of the two cannot 
 revoke the authority of the arbitrator without the 
 other ;, for being jointly given, it mull be jointly tak^n 
 away.' 
 
 If the fubmiffion be merely verbal, the revocation 
 may be fo too ; " I difcharge you from proceeding any 
 further," faid to the arbitrators, will be fufficient. 
 But if the fubmiffion was by deed, fo alfo muft the 
 revocation be,' according to that general principle of 
 law, that every power, authority, or obligation^ mull 
 be difcharged with the fame folemnities with which It 
 was conflituted.- 
 
 This principle, however, applies only to the cafe 
 of an exprefs revocation ; it does not extend to that 
 which muft neccffarily be implied by conftruftion of 
 lav/, from another a6l of the party ; for a collateral aft 
 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 m.arriage is a revocation ^ becaufe, by 
 that, all the perfonal property of the wife, and a per- 
 
 7 Ff. 1. 4. t. 5 f. 27. V. fin. 
 
 » 5 Ed. 4. 3. b. S Co. 82. a. 
 Bv. A . j5. 21 H. 6. 30. a. 
 23 H 6. 6. b. 6 H. 7. 10. 2S 
 H. 6. 6. 4iii::. 51. a. Br. 44. 
 k 
 
 9 Barker v. Lees. 2 Keb. 
 
 64, 79. 
 
 ■ 43 E. 3. 9. Fitzh. 52. b. 
 vid. S Co. 80, b. 
 
 ^ Unumquodque difTolvitur 
 eo ligamine quo ligatur.
 
 THE SUBMISSION. 
 
 3« 
 
 manent intcreft in her real property, which would be 
 bound by the award, vefts in the hufband.^ 
 
 So, where a man brought an ejeftment againfl 
 ^mother, to recover a mill of which the latter was in 
 pofTeffion, the defendant fufFered judgment to l^e en- 
 tered by *' nil dicit ;" but afterwards they agreed to 
 refer the queftion, " Who fliould have it," and other 
 matters which were in difference between them, to 
 arbitration by bond. The plaintiff, in the eje£lment, 
 before the expiration of the time limited for making 
 the award, fued out an " habere facias pofleffionem" 
 on the judgment, and had the mill delivered to him ; 
 and on an aftion of debt being brought on the fub- 
 mifTion bond, it was held, that by taking away the 
 fubjeft of the arbitration, he had taken away the pof- 
 fibility of making the award.-* 
 
 In the year books, a diflindion is taken between 
 a fubmifiion by obligation, and a fubmiflion without 
 obligation. 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 otlier- 
 wife.^ Lord C. J. Coke explains this diflindlion in this 
 way ; that in both cafes the authority of the arbitrator 
 may indeed be revoked ; but that where the fubmiflion 
 is without obligation, the party revoking lofes nothing; 
 whereas, in the other cafe, he forfeits the penalty of 
 his bond : for by countermanding the a' thority of the 
 arbitrators, he has not fulfilled the condition, by land- 
 ing to, and abiding by their award ; and becaufe, when 
 ^ man, by his own ad, renders the condition of the 
 
 3 Wm. Jones, 388. 3 Keb. 9, 
 * Green v. Taylor. Sir T. Jones, 134. '5 Ed, 4. 3 b.
 
 3* 
 
 THE SUBMISSION. 
 
 bond impoffiblc, the bond becomes lingle, as if no 
 condition had been annexed.'^ 
 
 This difference in the cffeft of a revocation in the 
 two cafes, was certainly good Jaw at the time, when 
 it was held, that no a6lion could be maintained on an 
 award of a coHateral thing made in confequcnce of a 
 parol fubmiffion ; but now that it is held, that an 
 aftion 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 expreffed, whether all being 
 by parol, the plaintiff could maintain that adlion, or 
 have any other remedy ; but that is evidently nothing 
 more than a loofc note of the reporter, and the plead- 
 ings are there very inaccurately ftated.^ In the other 
 book,* the cafe is reported at length, and the manner 
 of the pleadings diftinilly given ; the breach being 
 affigned in a difcharge by the defendant of the arbitrj^- 
 tors from m.aking anv award ; and the judgment of the 
 court, without much hefitation, in favour of the plaintiff. 
 
 The rule of the civil law is, that when the arbitrator 
 is difcharged by one of the parties, or prevented by 
 his aft from making his award, then, if a penalty was 
 added to the fubmiffion, the oppofite party Ihould have 
 a remedy fimilar to our adion on the cafe,^ 
 
 * Vynior's cafe, 8Co. 8i.a. 
 Brownlow 62. 2d part 290. 
 
 ^ Newgate v. Degeldcr, 18 
 Car 12. 1 Sid. 281. 
 
 ^ 2 Keb. 10, 20, 24. 
 
 ' Si quis Utigatoriim defu- 
 trit : quia per eum faclum eft, 
 quo minus arbitretur, pcrna 
 committetur. Et li quis pre- 
 
 fens arbitrum fententiam di- 
 cere prohibuit, poena commit- 
 tetur. Sed fi poena ndn fuif- 
 fet adjecta compromiflTo, fed 
 fimpiiciter JenteuUa: Jiari quis 
 promiferit : incerti adverhis 
 eum forei a6tio. — Ff. 1. 4; to 8, 
 f. 2-.
 
 THE SUBMISSION'. 
 
 33 
 
 If one of the parties firft revoke the authority of 
 the arbitrators, and afterwards requeft them to make 
 an award, that will not favc the forfeiture. But where 
 the fubmiffion limits no time for the making of the 
 award, that fliall be undcrftood to be within convenient 
 time ; and if in fuch a cafe the party requeft them, and 
 they do not, a revocation afterwards will be no breach 
 of the fubmiffion.^ 
 
 One party may alfo revoke with confent of the 
 other ; but confent after the revocation will not favc 
 the penalty of the bond.^ 
 
 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 encourage the oppolitc party in fulng 
 for the forfeiture.^ 
 
 There may be fcveral a6ls done by cither of the 
 parties before the award made, which, though they 
 cannot properly be called a revocation, yet amount to 
 a breach of the fubmiffion. Thus, where a man fub- 
 mitted to pay fuch cofts as fliould be ftatcd by arbi- 
 trators chofen indifferently by the parties, it was held 
 to be a breach in him not to have carried in his bill to 
 the arbitrators, becaufe he was the caufc that no award 
 was made.** 
 
 Whether the parties may revoke, when the fub- 
 miffion is by rule of court, by confent at nlji prius, or 
 in purfuance of the ftatute of William, it is immaterial 
 formally to lay down. It has been fcen, that, in the 
 latter cafe, the courts have made the fubmiffion a rule 
 
 ! z Keb. lo, 20. - Noble v. Harris. 3 Keb. 745. s 3 Keb. 9» 
 4 Baldway v. Oufton. i Vent. 71.
 
 34 
 
 THE SUBMISSION. 
 
 "of court, notwithflanding the oppofition of the parties; 
 and, in both cafes, they will punifh as a contempt any 
 aft by which the arbitrators are difturbcd or hindered 
 from making their award. ^ Thus where a matter was 
 referred by confent at niji prlus to the three foremen of 
 the 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 Hiew caufe why an attach- 
 ment Ihould not go againft hlm.^ 
 
 In the civil law the better opinion fccms to have 
 been, that if the party to a fubmiffion, while the matter 
 was before the arbitrator, appealed to the ordinary 
 courts, he forfeited the penalty.^ 
 
 5 Vid. iCromp. Praft. 261. 
 
 ^ Davila v. Almanza. i 
 Salk. 73. 
 
 ' Si quis rem, de qua com- 
 proniilTura fit, in judicium de- 
 ducat; quidam dicunt, pra?- 
 torem non intervenire ad co- 
 •gendum arbitrum fententiam 
 diccre : quia jam poena non 
 pctcft eife, atquc fi folutum 
 
 eft compromiflum. Sed fi hoc 
 obtinuerit ; futurum eft, ut 
 in poteftate ejus quern pcEni- 
 tet compromififie, fit compro- 
 miirum eluderc. Ergoadver- 
 fus eum poena commictenda 
 eft, lite apud judicem fuo or- 
 dine peragenda. Ff. I. 4, t. S, 
 f. ^0.
 
 THE PARTIES. 
 
 3S 
 
 CHAP. II. 
 
 The Parties. 
 
 IT Is a general rule, that every one who is 
 capable of making a difpofition of his ^^^'"^"yf"^' 
 property, or a rcleafe of his right, may 
 make a fubmiffion to an award : but no one can, who 
 is either under a natural or civil incapacity of con- 
 tracing. ^ Therefore a married woman cannot be party 
 to a fubmiffion, whatever may be the fubje£l of dif- 
 pute, whether arifing before or after her marriage : but 
 the hufband may fubmit for himfelf and his wife.^ 
 
 On the principle that an infant cannot bind himfelf 
 for any thing but neceflaries, it is clear he cannot be 
 party to a fubmiffion, 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 ;^ or an injury done 
 by him to another. The laft cafe, however, was not 
 always confidered as clear law ; and it has been infifted 
 that he might fubmit a trefpafs committed by himfelf, 
 becaufe that might be for his benefit ; and if he could 
 
 ' Com. Dig. Arbitrament. D. 2. ' Sti. 351. 
 
 *xoH. 6.14. Fhbt. si.a. 13 H. 4. 12. Dub, Rol. Arb, 2 A. i. 
 Rol. Arb. 3 A. 2, fays cont. 10 H. 6. 14. 
 E 2
 
 THE PARTIES. 
 
 not, inftcatl of being favoured by the law, he would be 
 in a worfe condition than other men : but that rcafon 
 fails ; for though it may be for his benefit, it may as 
 probably be otherwife ; for the arbitrator may award a 
 greater fatisfaftion 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 refpeft to an 
 infant is, that he cannot bind himfelf to 'any thing 
 which, by poffibility, may be to his difadvantagc. It 
 has alfo been faid, that the infant ought to have an 
 eleftion, whether he will perform the award or not, 
 and that therefore an award made, in confequcnce of 
 a fubmiffion by him, is not abfolutely void, but voidable 
 only : "* but this is contrary to the very intention of a 
 reference to arbitrators, which is to put a final period 
 to difputcs. 
 
 And as the infant himfelf cannot be bound by a fub- 
 cnifTion to arbitration, fo it has alfo been decided, that 
 if another enter into a bond, conditioned, that an infant 
 fhall perform an award, this is alfo void, and the 
 obligor could not be fued upon it. But this, it is to be 
 obferved, was without any ai-gumcnt applicable to this 
 particular cafe, but only taken as an immediate con- 
 clufion, from the principle that the infant himfelf could 
 not be bound.^ 
 
 Lord Chancellor Nottingham, however, appears to 
 have afted on this principle in the following cafe. A 
 caufe depending in Chancery, where an infant by his 
 guardian feems to have been a parly, the matters in 
 
 4 Rudflon V. Yates. March iii, 141. » Id. ibid-
 
 THE PARTIES. 
 
 37 
 
 difference were, by confent and order of court, fubmit- 
 ted to arbitration ; and the arbitrators, among other 
 things, awarded that a bond fhould be given by the 
 guardian that the infant at his full age Ihould convey 
 the lands in queftion. On one fide an application was 
 made that the award fhould be fet afide, and on the 
 other that it Ihould be enforced by the decree of the 
 court. The Lord Chancellor, premifing as a general 
 principle, that the court would not decree the execution 
 of an award made in confequencc of a reference by 
 order of the court, where the award appeared inequi- 
 table, applied this principle to the prefent cafe, and 
 faid it was unreafonable that the guardian fliould give 
 fuch a bond, as the infant might die before age, or if 
 he lived to attain his age might refufe to convey, and 
 therefore he would not decree performance : he faid 
 further, that he would never decree an award to bind 
 an infant.^ Yet it feems to be carrying the indulgence 
 to an infant by much too far, and to be contrary to the 
 analogy of law in other cafes, that a bond given by a 
 perfon of full age, for the performance of an award by 
 an infant, fhould not be enforced. It is in fa£l faying, 
 that in all cafes, where an infant cannot bind himfelf, 
 no one elfe can be bound for him ; which cannot be 
 pretended to be true. The infant himfelf indeed can- 
 not be compelled to perform the award, neither is it in 
 the power of his fecijrity to force him ; but it is by 
 no means a fingular thing that a man fliall forfeit his 
 bond, though it be not in his own power to fave the 
 penalty, by performing the condition. There is, in- 
 
 * Cavendifli v. . i Ch. Ca. 279. I Eq. Ca. Abr. 49.
 
 THE PARTIES. 
 
 deed, an implied exception in the cafe of fubmiffion to 
 an award ; that if the award itfelf be void, he fhall not 
 forfeit his bond by non-performance.^ But this ex- 
 ception extends only to the cafe where the objeftion 
 appears on the award itfelf; and, if this be good, there 
 ■appears not the fhadow of a reafon why the fecurity 
 for the infant's performance fliould not forfeit his bond 
 on the infant's default. 
 
 The fame point was again agitated in another cafe — 
 the fame argument urged in avoidance of the award : 
 " The fubmiffion on behalf of an infant is void, the 
 award therefore is void, depending on a void fubmiffion, 
 and a bond for performance of a void award is necef- 
 farily void ; therefore the fecurity cannot forfeit his 
 bond." The fame kind of anfwer was given as is fug- 
 gefted above ; and though the opinions of the court are 
 not flated in very decifivc language, yet, on the whole, 
 their inclination feemed to be, that the fecurity for- 
 feited his bond if the infant did not perform the award. 
 In this cafe, indeed, the aftion was brought by the 
 infant, and her fecurity, for non-performance by the 
 other party ; but as the defendant's objeflions were 
 founded on the fuppolition that the infant was not 
 bound to perform her part, and that therefore there 
 would be no reciprocity, the general principle is the 
 fame, whether the fecurity for the infant be plaintiiF 
 or defendant.* 
 
 The fame queflion was again agitated, but no decifive 
 opinion given ; becaufe it appeared that the father had 
 been bound for himfelf and his infant fon \ and it was 
 
 ? Vid, Jenk. ii6. ? Stone v. Knight. Latch 207.
 
 THE PARTIES." 
 
 59 
 
 held, that whatever might be the cafe with lelpecl to 
 the father's being bound for hisyow, yet his fubmiiTion. 
 was good as to himfeif, and judgment was accordingly 
 given for the plaintiff.^ 
 
 But it w^as afterwards exprcfily decided, againll the 
 authority of the cafe' on which the doubt had at fiift 
 been raifcd, that the guardian may fubmit for the infant, 
 and bind himfelf that he Ihall perform the award." 
 
 Thus wc have at length adopted the good fenfc of 
 the Roman law, by which it was held, that an infant 
 himfelf 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.-* 
 
 An executor, or adminiftrator, may fubmit a matter 
 in difputc between another and himfelf, in right of his 
 tcftator or inteftate. Therefore, when the executor of 
 a parfon fubmitted to arbitration a difpute between the 
 prefent incumbent and himfelf, as executor of the lall, 
 on account of fome dilapidations of the parfonagc, 
 alleged to have been permitted by the default of the 
 teftator, and in his life, no objeftion was made to the 
 want of power in the executor to fubmit:** but if the 
 arbitrator do not give him the fame meafure of jullice 
 as he would be entitled to at law, the executor, or 
 adminiflrator, muft account for the deficiency to thofe 
 
 9 Bowyer V, Blorkfidge, 33. 
 Car. 2. 3 Lev, 17. Gill v. 
 Ruffell. Hil, 1673. Freem. 
 62, 139. 
 
 ' Rudfton V. Yates, ante, 
 p. 36. 
 
 ' Roberts v. Newbold, 6 
 W.^. Comb. 318. 
 
 ^ Si pupillus fine tutoris 
 
 auftoritatc compromifent,non 
 eft arbiter cogendus pronun- 
 ciare, quia, fi contra eum 
 pronuncietur, pcena non te- 
 nctur ; prseterqiiam fi Me- 
 jufTorem dederit, a quo poena 
 peti point. Ff. 1. 4, t. 8, f. 35, 
 
 ■» Dyer, 216. b, 217. a. 
 
 E4
 
 40 THE PARTIES. 
 
 who are intereftcd in the cffefts of the tell:ator or 
 inteftate.^ As, if an executor fubmit to arbitrament, 
 and it be awarded, that for 70I. he releafe an obligation 
 given to his teilator in lool. for performance of cove- 
 nants which were broken by the obh'gor, the lOol. fhall 
 be a/Tets, for the fubmiffion is his own aft.^ 
 
 If a man in the charafter of executor or adminiftra- 
 tor expreffly bind himfelf, his heirs, executors, or ad- 
 miniftrators, to perform an award to be made on the 
 fubjeft of difputes between his teflator or inteftate and 
 another, and the arbitrator award generally that as 
 executor or adminiftrator he fhall pay a certain fum, 
 he cannot to an aftion on the bond avail himfelf of a 
 plea, " that he had fully adminiflered, and that he 
 had no affcts of his teftator or inteftate at the time of 
 the fubmiffion or fince :" Such a plea is inapplicable to 
 the cafe ; for the party by fuch a fubmiffion, enters 
 into a perfonal engagement to pay whatever the arbi- 
 trator fhall diredl, without regard to the queflion of 
 affi:ts.' But the mere adl of fubmiffion is not an 
 (idmijjion of affets, and if the arbitrator flmply declare 
 a debt due from the teftator or inteftate, fpecifying the 
 amount, the executor or adminiftrator is not precluded 
 from the plea of " fully adminiftered :" And the 
 plaintiffs, in an aftion of afTumpfit againft him in that 
 charafter, cannot give evidence of a perfonal promife 
 to pay whatever fliall be found due ; becaufe, in the 
 firfl place, the adlion feeks to recover the demand out 
 
 * Off". Exr. 229, cited Com. Dig. Adminiftration (I. i.) 
 
 « R. 3 Leon. 53. 
 Barry v. Rufli. i Term Rep. 691, et vid. 5 Term Rep. %
 
 THE PARTIES. ^j 
 
 of the -tcftator's or inteftate's efFefts, and if there be 
 no aflets, the peribnal promife by the reprefentative 
 is a nudum paflum.^ 
 
 So, the aflignees of a bankrupt may fubmit to arbi- 
 tration, any difputes between their bankrupt and others, 
 provided they purfue the direftions of the ftatute, which 
 cnafls, " that the affignee, or affignees, of any bank- 
 " rupt's eftate and efFeds, with the confent of the 
 *' major part in value of the bankrupt's creditors, who 
 " fhall have duly proved their debts under the com- 
 ♦* miffion, and who fhall be prefent at any meeting of 
 *' the faid creditors, purfuant to notice to be for that 
 ♦' purpofe given in the London Gazette, to fubmit any 
 ** difference or difpute between fuch affignee or af- 
 *' fignces ; and any perfon or perfons whacfoever, for 
 *' or on account, or by reafon or means of any matter, 
 *' caufe or thing whatfoever, relating to the bankrupt, 
 *' his eftate or effefts, to the final end and determina- 
 ♦' tion 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 
 *' fhall have fuch difference, and to perform the award 
 ** of fuch arbitrators — and the fame fhall be binding on 
 *' all the creditors of the bankrupt."' 
 
 By virtue of the authority of this ftatute, the credi- 
 tors prefent at a meeting cannot give a general power 
 to the affignees to refer matters to arbitration according 
 to their own difcretion; there muft be a particular 
 
 ! Pearfon et al' Aflignees of Scott, v. Henry, Adminiftrator of 
 Henry. 5 Term Rep. 6. 
 
 9 S G, a.c. 30. f'34.
 
 4i 
 
 .THE PARTIES. 
 
 meeting, on notice for that particular piirpofc, in the 
 London Gazette, to confider of each particular cafe.' 
 
 It is a general rule, that thofe only 
 Who jitaii he hound ^^^^^ are parties to the fubmiffion fhall 
 
 by an Aivard. i i i i 
 
 be bound by the award. 
 
 Thus, if a man fubmit, for himfelf and partner, all 
 matters in difference between the partnerfhip and 
 another, the partner fubmitting fhall be bound to per- 
 form the award ; but the other Ihall not, becaufe he is 
 a ftranger to the fubmiffion.^ 
 
 So, if the parfon on the one hand, and fome of the 
 parilhioners on the other, in behalf of themfelves and 
 the reft of the inhabitants of the parifli, but without 
 the authority of the reft, fubmit to arbitration by bond, 
 the parilhioners fubmitting fhall alone be anfwerable 
 for a "breach of the award by any of the other pa- 
 riiliioners.^ 
 
 So, in general, a man is bound by an award to 
 which he fubmits for another.'^ 
 
 But, 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 fubmlffion is 
 binding on the principal alone ; and it is no oBjedlion 
 that the agent had no interefl in the fubje^ of the 
 difpute. 5 
 
 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 
 
 ' Ex parte Whitchurch, i 
 Atk. 91. 
 
 * Strangford v. Green. 2 
 Mod. 228. 
 
 3 Mudy V. Ofam. Litt. jo. 
 '^ Alfop V. Senior. 2 Keb. 
 707, 718. 
 5 Dyer, 216. b. 217*
 
 THE PARTIES. 43 
 
 numerous party enter into a bond to perform the 
 award, the award Ihall 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 rcprifal : A and B entered into a bond, and 
 C and D into another, to perform the award ; and the 
 arbitrator awarded, that the merchants fhould 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 aftion of 
 debt againft them on the award, becaufe they were all 
 parties to the fubmiffion, 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 fnould have 
 was not pointed out, yet, as they had jointly fubmitted, 
 the award might be to pay them jointly ; and although 
 (the award, in faft, being to pay to C and D, for their 
 own uCe, and that of others) it was on that account 
 objeftedjv. that the refidue of the part owners and 
 mariners had no remedy to have their fhare but by 
 aftion, yet, notwithftanding that, it was held they 
 were bound by the award : and this cafe was affimilated 
 to that of an award that one party ftiould 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 
 adion ; and the reft of the part ovvners might have 
 their remedy, at leaft, in Chancery, againft C and D, 
 as truftees for them, if not at common law. And 
 now that the liberality of the courts of common law
 
 44 
 
 THE PARTIES. 
 
 has fo greatly favoured the aftion for money had and 
 received, there is no doubt, but that if a certain pro- 
 portion of prize-money had been agreed on for each 
 individual, before the adventure ; or if their refpeftivc 
 rights could be afcertained, each individual of the 
 remaining number might maintain an aftion againft 
 C and D for fo much money had and received to his 
 ufe.** 
 
 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 diftind parts to be done by each, both 
 ihall be bound to performance of the whole, and an 
 aftion 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, fubmitted 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 B and C, unv/illing to be bound the one for the 
 other, entering into feveral bonds of lOOol. 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 confideration of this, B and C fhould pay 
 300I. to A. On an aftion of debt brought by A againft 
 B, on this bond, for non-performance of the award, 
 and a breach affigncd, that neither B nor C had pai4 
 the 300I, at the time lirpited by the award, it was held, 
 
 * Wood et al. v. Thomfon et Clements. M. »4 Car. B. R. Rol, 
 Arb. F. II.
 
 THE PARTIES. 
 
 45 
 
 that each was bound to the performance of the whole 
 award ; for they had jointly fubmitted, though by 
 feveral obligations.' 
 
 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 exprefs authority of his 
 principal, enter into a bond to a third pcrfon, under a 
 condition to be void on performance of the award by 
 the principal, otherwife to be in full force, this fhall 
 bind the attorney, and not the principal.^ 
 
 Yet, it is the common underftanding, that the aflenl 
 of the attorney in a caufc, to a reference by a rule of 
 nijt prlus, will bind the client : and the reafon of the 
 difference fcems to be this, that in the iirft cafe the 
 general charafter of attorney dees not imply a com- 
 miffipn from the principal to do any thing fo much 
 out of the ordinary courfe of the bufinefs of a general 
 attorney, as to refer a matter to arbitration ; but the 
 employment as attorney in a particular fuit, implies 
 the client's alTent that he may do everything which the 
 court may approve in the progrcfs of the caufe. 
 
 But it has been held in Chancery, that the affent of 
 a folicitor to a reference by a rule of court does net 
 bind the client; though in the very fame cafe it is 
 admitted, that in the courts of law that of the attorney 
 docs ; and that if the decree be made to perform the 
 award, and there appear in the decree only the alTcnt 
 of the folicitor, it is not incumbent on the plaintiff, in 
 
 ' Hayes v. Hayes. H. ii 
 Car. B. R. Rol. Arb. E. 9. 
 Cro. Car. 434, 
 
 ^ Bacon v. Dubarry. i Lord 
 Raym. 246. 12 Mod. 129. 
 Comb. 439. I Salk. 79.
 
 46 'I HE PARTIKS. 
 
 a bill of review for the reverfal of the decree, to fliew 
 the want of aflent in the principal ; and that even the 
 attendance of the folicitor, with counfcl, before the 
 arbitrator, on behalf of his client, will not bind the 
 latter without his aftual aflent.** 
 
 It may well be doubted, however, how far the au- 
 thority of this cafe would be recognized at prefent: 
 the charafter of folicitor is equally known to the law 
 as that of an attorney : their duty and their privileges 
 are the fame — the confidence repofed in them the 
 fame : they only differ in name, and praftife in dif- 
 ferent courts. 
 
 If the hufband fubmit to arbitration any thjng of 
 which he might difpofe in right of his wife, the wife 
 fhall, after his death, be bound by the award. As if 
 the hufband and wife be poiTeffed of a term in the 
 right of the wife, as executrix of her former hufband ; 
 and the prefent hufband, and a ftranger, who claims 
 title to it, fubmit the intereft and title of the leafe to 
 the award 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, fliall be 
 bound by this award.* 
 
 So, under a fubmiflion of ail matters between a 
 married man and another, the arbitrator may com^^ 
 prebend in his award a matter in diiputc in the right 
 of the wife. As if a woman be indebted to J. S. in a 
 fum of money, as adminiftratrix to j. D. and then 
 marry : if the hufband and J. S. fubmit all matters 
 
 9 CoUvclI V. Child. I Rep. Ch. 104. i Ca. Ch. 86. 
 ' Did. z. El Rol. Arb. D. i. with a qufere.
 
 THE PARTIES. 
 
 47 
 
 between them, an award, comprehending the debt 
 due by the hufband and wife, though in the right of 
 the wife and as adminiftratrix, fhall bind the hufband, 
 if the wife had afTets ; for in that cafe he is chargeable 
 by the marriage.^ 
 
 Under a limilar fubmiffion, an award, comprehend- 
 ing 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.^ 
 
 But where a fubmiffion by the hufband refpeds any 
 property of the wife, which the hufband by his own adl 
 cannot alien, an award which gives that property to 
 another, it would feem, would not be confidered as 
 binding on the wife: as if tlieliufband, among other 
 things, fubmit the right of a manor, and the arbitrators 
 award that the hufband fliall give up to the other party 
 a deed, by which an annuity is fecured to the wife out 
 of the manor ; this award cannot be enforced, becaufe 
 the right of the hufb)and extends only to the accruing 
 arrears of the annuity, and not to the annuity itfelf. 
 But if the fubmiflion were jointly by the hufband and 
 wife, it feems not to be queflioned in the book in 
 which this cafe is reported, that both the hufband and 
 wife w^ould be bound by this aw'ard -^ yet fome doubt 
 might be raifed, from the confideration, that the only 
 mode by which the freehold intcrefl: of the wife can 
 be transferred, is by the folemnity of a line. 'The 
 
 2 Lumlcy V. Hutton, M. 
 15. Jac. li. R. M. 13. Jac, 
 B. R. S. C. I Ro]. Rep. 26S. 
 Rol. Arb. D. 2. Cro. Jac. 447. 
 ^lorfc V. Surry, i pt. Ca. Law 
 
 and Eq. 212. 
 
 3 21 H. 7. 29. 6. cited 
 Bridg. 91. Rol. Arb. D. 3. 
 
 < Vid. 21 H. 6. 19. and i 
 Rol, Rep. z6().
 
 THE TARTIES. 
 
 aflignees of a bankrupt, fucceeding only to the right 
 of the bankrupt, muft, it is evident, be bound by an 
 award made before the bankruptcy, in confequence of 
 a fubmiffion by him. 
 
 It was formerly thought, that an aftion of debt 
 could not be maintained againft an adminiilrator on an 
 award made between the plaintiff and the intellatc, 
 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 this, 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.^ 
 
 But this opinion has been iince over-ruled ; and it 
 has been held, that an award creates a duty, which 
 furvives to the executor or adminiilrator, and that they 
 fhall be compelled to perform the thing awarded to be 
 done on the part of their teilator or inteflate.^ 
 
 Whether, by the Roman law, the reprefentative 
 of the deceafed was bound by an award made in the 
 life-time of his predeceffor, does not appear very 
 clearly, though the faireft interpretation of the law is, 
 that he was.' 
 
 It may fafely be laid down as a general 
 
 JTho may take ■' . ■' 
 
 advantage of T^i^s, that all thofc who would bc bound by 
 an^wurd. an award mav take advantage of it, if made 
 
 5 Bowyer V. Garland. Cr. 
 El. 600. 
 
 6 2 W. and M. Dawney v. 
 Vefey. 2 Ventr. 249. Vid. i 
 L. Raym. 24S. 
 
 ' Nee utimur Labeonis fen- 
 
 tentia, qui exiftimavit, fi ar- 
 biter, aliquem pecuniam dare 
 jufTerit, et is decefferit ante- 
 quam daret, poenara com- 
 mitti, licet hcres ejus paratus 
 fitofferre. Ff. I. 4, t.8» f. 27,
 
 THE PARTIES. 45 
 
 in their favour, or in the favour of thofe in whofe right 
 they would be bound. 
 
 Therefore the aflignecs of a bankrupt may take 
 advantage of an award made in favour of the bankrupt 
 before his bankruptcy. 
 
 And for the fame reafon executors or adminiftrators 
 may take advantage of an award made in favour of 
 their teftator or inteftate before his death,
 
 50 THE SUBJKCT OT REf'ERE>fCE. 
 
 CHAP. IIL 
 
 Tlie Subject it/" Reference, 
 
 THOUGH at all times the courts have manifeiled 
 a general difpofition to give efficacy to awards, 
 yet there are lome cafes in v^hich they have refufed 
 them their proteftion ; becaufe the fubjefts, on which 
 they were made, were not the proper obje£ls of a 
 reference to a domeftic tribunal. 
 
 It Is therefore effentlal, diftin£i:ly to point out what 
 fubjecls of controvcrfy the law permits to be referred, 
 and to what others it refufes that privilege. The 
 general anfwer to this queflion will be beft 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 exadtly apply to all the cafes 
 that may occur: fome of them can only be explained 
 by the affiflance of technical reafons. 
 
 1'he only motive which can Influence a man to refer 
 any fLibjeft of difpute to the declfion of an aibitrary 
 judge, is to Irave an amicable and eafy fettlcment 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
 
 THE SUBJECT OF REFERENCE. 
 
 of the one upon the other were either certain in its 
 original creation, or fubfequently afcertained by any 
 other means, an arbitrator would do manifefl injuftice 
 were he to order, either that more fhould be given, or 
 that lels fhould be received, in fatisfaftion. It would 
 therefore be nugatory to refer that to the decifion of an 
 arbitrator, in which the law, following the diftates of 
 juftice, 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 funi 
 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 ;* 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 aftion of account.^ Nor of damages 
 recovered by a judgment;' for in all thefe cafes the 
 demand is afcertained. 
 
 ® lo H. 7. 4. 4 H. 6. 17. 
 Rol. Arb. R. 2. 5. Blake's 
 cafe, 6 Co. 43, 44. 
 
 9 4H. 6. 17. 6 H. 4. 6. a. 
 Fitzh. Abr. 51. a. b. Rol. 
 Arb. R. I. 6. f. I. I Lev. 292. 
 At common law, before 
 either the ftamte of Marie- 
 bridge or Weftminfter the 
 ftcond, there were two me- 
 thods of proceeding againft an 
 accountant : one by which the 
 party to whom he was ac- 
 countable, called, in the lan- 
 guage of thofe times, his 
 mafter, might, by the confent 
 
 of the accountant, either take 
 the account himfelf, or affign 
 an auditor or auditors to take 
 it, and then have his afticn of 
 debt for the arrears. Or he 
 might, in the firft inflancc, 
 have a writ of account, on 
 which, after judgment, quod 
 computet, auditors were af- 
 figned by the court, and final 
 judgment pronounced on their 
 report. The report of the 
 auditors, in both cafes, was 
 confidercd as matter of record. 
 
 ' Gould/I;. Qi. 01. 
 
 F 2
 
 THE SUBJECT OF REFERENCE. 
 
 It fccms to be on the fame principles that a fub- 
 miffion cannot be made of a queftion relative to the 
 detention of the title deeds of an eftate, nor of the 
 demand of an annuity; for, in the firft cafe, the 
 writings only are to be recovered ; and, in the other, 
 the annuity itfelf and the arrears. In fome of the old 
 books, however, reafons more technical, but lefs fatis- 
 fa<^ory, are affigned for thefe cafes : that in the a£tion 
 of detinue of charters, neither the wager of law, nor 
 outlawry, lies ; and that it concerns land, and com- 
 prehends a warranty in itfelf, which is an inheritance ; 
 and that a writ of annuity is an a6tion mlxt with the 
 realty.- 
 
 BuT an afllon of account may be fubmitted ; for, 
 till the account be taken, the fum remains uncertain.^ 
 So alfo a trefpafs for taking away the charter^ of an 
 eftate ; fur there uncertain damages are to be recovered 
 for the injury of taking them away, though in detinue 
 the recovery is only of the charters themfelvcs. 
 
 And, in general, where the party complaining could 
 recovel* by action only uncertain damages, the fubjeft 
 of complaint may be the obje£l of a reference to arbi- 
 tration : as any demand not afcertained by the agree- 
 ment or contraft of the parties, though the claimant 
 demands a fum certain ; as a claim of 5I. for different 
 expences in the fervice of the other party."^ 
 
 So, debt arifing on a fmiple contraft \^ a demand of 
 rent for ufe and occupation f a complaint of flanderr 
 
 = 9 II. 6. 60. Fitzb. 51. 3. 
 Rol. Arb. V. I. A.6. V.3. 
 J Rol. Arb. R. 4. 
 ♦ Sower V. Bradfield. Cro. 
 
 El. 42 2. 
 
 5 4-, Ed. 3. 16. a. b. 
 * 4 H. 6. 17. b. Rol. Arc. 
 V. S. 
 
 7 I Kcb. 848.
 
 THE SUBJECT OK REFERRVCE. 
 
 S? 
 
 trcfpafs of every kind, whether perfonal or on the 
 land of the complainant;^ 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 docs not 
 include an offence againft the public manners." 
 
 There is alfo a diftinftion with refped to demands 
 arifing on a deed. Where the demand is wholly 
 afccrtained by the deed at the time of makino- it, as 
 it is by covenant, bill or bond, to pay a fum of money ; 
 there this certain demand cannot be avoided, but by 
 iriatter 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 fub- 
 fequent, 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 fo^ a 
 breach, may be fubmitted/ 
 
 On the fame principle, an aftion on the old ftatutes, 
 for enticing away the plaintiff's fervant, might have 
 been anfwered by a lubmifTion of that injury, and an 
 award in confequence of it ; becaufe the a6lion was 
 not grounded merely on the ftatute, but alfo on the 
 departure of the fervant, which was matter of fa6l,- 
 
 MosT of thofe cafes too, which cannot be fubmitted 
 by themfelves, may, when joined with other things of 
 
 ' 13 R. 2. 
 
 9 Vid. infra. 
 
 ' Blake's cafe. 6 Co. 43, 
 44- Cro. Jac. 99. Rol. Arb. 
 T- l> i> 3> 4? 5> 6" 
 
 » Rol. Arb. S. 2. Vid.fta- 
 tute of labourers, 23 Ed. 3, 
 11. I, and the other old fta- 
 tutes on that fubjeft. 
 
 f 3
 
 54 
 
 THE SUBJECT OF REFERENCE. 
 
 an uncertain nature ; becaufe then there is an uncer- 
 tainty in the whole of the difputes ;^ as debt on a bond, 
 v/hether fingle or with condition ;"* debt for arrears 
 of rent afcertained by a leafe for years ;^ damages 
 recovered by verdi6V and judgment.^ 
 
 But it was determined, in very early times, that 
 the arrears of an account taken before auditors, affigned 
 by the mailer of the accountant, cannot be referred 
 even amongft other things ; becaufe, fay all the juftices, 
 an award is not of fo high a nature, as debt found 
 "before auditors, the latter being matter of record ;^ 
 and they certainly would have faid the fame thing, 
 had the cafe been that of debt found before auditors 
 affigned by the court. 
 
 The fame reafon, however, applies, even in a fu- 
 pcrior degree, to the cafe of damages recovered by 
 verdift 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 
 rece"ved a different determination. 
 
 However, in all cafes where the demand arifes on 
 a deed, it would feem the fubmiffion mufl alfo be by 
 deed ; becaufe a fpecialty cannot be anfwered but by 
 a fpecialty.* 
 
 3 Fhbt. 51. b. 6 H. 4. 6. a. 
 b. Rol. Arb. R. 3.Tr. 22 Car. 
 Faver v. Bates. S. C. Al. 4. 
 Morris v. Creech. 7. Keb. 
 623, 659. 
 
 4 Lumley v. Button. M. 
 13 Jac. B. R. H. 15 Jac. B. 
 R. Rol. Arb. B. 8. Coxal v. 
 Sharp. I Keb. 937. 
 
 5 10 H. 7. 4. Rol. Arb. 
 R. 5. 
 
 * Gouldfb. 91, 92. 
 
 7 6 H. 4. 6. a. 4 H. 6. 17, 
 18. Fhbt. 51. a. b. Rol. 
 Arb. R.I. 6. S. i. vid. 1 Lev. 
 292. 
 
 "^ 3 H 4. I. Brooke, 44.4
 
 TUE SUBJECT OF REFHRENCE. 
 
 •ss 
 
 Therefore, where A was indebted to B in 2cl, 
 by a finglc bond, and they fubm,itted all matters be- 
 tween them, by parol, and it was awarded, that A 
 fliouid pay to B a lefs fum in fatisfadion ; it was de- 
 termined, 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 
 iiad been by bond, by which each bound himfelf to 
 perform the award, A would have been obliged to pay 
 the money awarded, otherwife he muft have forfeited 
 his bond of fubmifTion ; and if he had paid it, or ten- 
 dered payment, B would alfo have forfeited Jus bond of 
 fubmiflion, by bringing an aftion on the lingle bond.*^ 
 
 Much doubt and uncertainty feem anciently to have 
 prevailed on the queftion, " How far a difpute con- 
 cerning land could be referred to the decilion of an 
 arbitrator ; and how far, on an adual reference, the 
 parties were bound by his award." 
 
 Thus, we are told, in one book,* that *' it was faid 
 " by Grevill and Pollard, that land in variance, on the 
 " title, right, and pofleffion fubmittcd 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 aw-ard is void ; and fo a bond, with con- 
 " dition to obey fuch award, is void." The reporter, 
 however, adds a querc, for that *^ others think clearly 
 " the contrary, if there be fuch words as fubmit title 
 " and pofieflion: alfo they think," continues he, " that 
 
 Lutnley v. Hutton, H, 15 Jac. B. R. M. 13 Jac, B. R. Rol 
 Arb.B. 8. Coxal v. Sharpe. i Keb. 937. ' Keilway, 99, b. 
 F 4
 
 56 
 
 THE SUBJECT OF REFERENCE. 
 
 • « if I and another fubmit to an award of all demandsy 
 " 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 fubmitted 
 *' 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."" 
 
 Again, " a man cannot have a remedy to enforce 
 ** an award of frank-tenement, unlefs he has bond for 
 " performance." ^ " Ihe rig/it of freehold cannot be 
 *' the fubjeft of a reference ; but the arbitrator may 
 *' award, that the one party fliall infeoff the other 
 *< in fatisfaftion."-* " An award that one fhall infeofF 
 *' another in an acre of land, and immediately after 
 *' deliver up the charters, is good."^ But Rolle fays, 
 " that arbitrators cannot m.ake an award of freehold, 
 " though the fubmiffion be by deed, or even by deed 
 *' indented ;" but his authorities^ 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 interefl and eftate of 
 •• one fhall be transferred to the other, becaufe," fays 
 
 ' 14 H. 4. 18, 19. Brooke, 
 44. b. 
 
 ' 9 E. 6. 16. Brooke, 53. 
 ■» Dia.perMcyle, cent, per 
 
 Littleton. M. 9. E. 4. 44- 
 5 18 Ed. 4. 21, cited Rol 
 
 Arb. E. II. 2. 
 
 «9E. 4. 44. X4H. 4. 19.
 
 THE SUBJECT OF REFERKKCE. 57 
 
 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 arbitra- 
 tion. But he cites no authority, nor does he make 
 any diftinftion, whether the arbitrator cannot do this 
 at all, or only that he cannot do it unlefs it be within 
 the fubmilTion. 
 
 He alfo lays it down for law,^ " that there cannot 
 *' be partition by an award ;" but his reafon feenis only 
 to extend to the manner in which the award of par- 
 tition is expreiTed : it is, " that freehold does not pafs 
 *' but by livery," which was true, before the intro- 
 duftion of the m.odern fornis of conveyancing ; and 
 therefore an award, in fuch words as thefe, " The 
 *' one fhall have one moiety of the lands in queflion, 
 " and the other the other moiety," would not have 
 been effedlual. 
 
 But it appears, by a number of cafes, adjudged even 
 while thefe doubts v;ere conilantly expreued, that the 
 real -difficulty was how to cnforre an award made on a 
 reference of a difuute concerning land ; for whenever 
 the fubmiffion was by bond, it was almoft univerfally 
 held, that the party who did not pciform the award 
 forfeited the bond. 
 
 Thus, it is faid, "if two, by bond, fubmit the title 
 *' of certain land to the arbitrament of a third perlon, 
 *' who awards, that the one fliail levy a hne to the 
 " other of that land, he muft do it, otherwife he will 
 "' forfeit his bond."^ 
 
 7 I Rol. 142. ]. 16. cites r. I Jac. B. Horton v. Horton. 
 ^ Ivcilway, 43, a. b. 45. b.
 
 jS THE SUBJECT OF REFERENCE. 
 
 So, " where two bound themfelves in mutual obli- 
 " gations to ftand to the award of certain perfons, on 
 *' the right, title, and poflefiion of 20 acres of land ; 
 " and the award was, that one of them fliould enter 
 " and have polTeflion of 10 acres to him and his heirs, 
 <' and that the other Ihould have the remaining 10 
 " acres for life : " though an objection was taken to 
 this award, as being only of ■parcel of the things fub- 
 mitted, yet that was overruled, and no objeftion taken 
 to the fubmiffion, as being of freehold, nor to the 
 award on any other account.^ 
 
 In another place,' it is faid, " that if the condition 
 *' of a bond be that the parties fhall ftand to the award 
 *' of J. S. concerning the title of certain land, and the 
 " arbitrator award, that the one fhall give a releafe to 
 *' the other of his right, and that the latter fhall give 
 *' to the former 20I. in lieu of it ; this is a good award." 
 And Rolie,^ citing the fame cafe, fays that " though 
 *■' fuch an award be void to determine the right, and to 
 " change the eflate, becaufe it is real, yet being within 
 *' the fubmiffion, 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 
 coiifideration of money paid him by the other, fliould 
 releafe to the latter all his right in the copyhold, at u 
 certain day ; and three years afterwards make further 
 adurance ; no objection was made to th.Q.fuhjefi of the 
 award, though fcveral were made to the award itfelf.^ 
 
 9 19 H. 6. 6. b, 
 
 • 9 E. 4. 44, 
 
 ^ Rol. Arb. B. 14, 
 
 -J Markham v. Jennings.— 
 H. 4. Jac. B. R. RoJ. Arb. 
 K.15.
 
 THE SUBJECT OF REFERENCE. 59 
 
 Yet, the idea of there being fomething in the nature 
 of real property, which rendered it an improper fubjedt 
 of reference, continued long to be entertained : " If an 
 *' award be made, fays Coke, of a real thing, although 
 " that be no bar in the aftion for the thing, yet if this 
 " be performed, the bond is forfeited;"* by which, I 
 fuppofe, he means, ' the bond of the party, who, not- 
 ' withftanding the award, and performance by the ot'ier, 
 ' fues on the original caufe of aftion, is f /rfeited by 
 ' his fo fuing ; unlefs, it muft be fuppofed, that the 
 ' word " not" is omitted before the word " performed," 
 ' and then the meaning will be, that the party not pcr- 
 ^ forming the award will forfeit hh bond.' 
 
 And fo late as the time of William the third, it is 
 obferved, by one of the judges,^ " that it is a queftion, 
 " whether the title to land is fubmiffible, fincc it is in 
 ♦< the realty ; " and he is anfwered by the Chief Juf- 
 tice,*^ " that things in the realty may be fubmitted, as 
 *' well as things in the perfonalty; but that they could 
 " not be recovered on the award. ^ 
 
 There feems to be fomething Angularly abfurd in 
 the manner in which, in many cafes, this opinion of 
 the inarbitrable nature of real property is exprefied : 
 *' any thing concering 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;" 
 and yet, in the next fentcnce, it is frequently added, 
 *' but, if there be a bond to fland to the award, the 
 " party who does not perform it forfeits the penalty ; " 
 
 ■♦ I Rol. Rep. 270. 
 5 Powell, 
 « Treby. 
 
 7 Marks V, Marriot. i Ld. 
 Raym. 115.
 
 6o 
 
 THE SUBJECT OF RF.IERENCK. 
 
 which is contrary to the principle which univerfally 
 governs every other cafe on this fubjed: ; for in all 
 other cafes it is held, that'if the award be void, tht- 
 bond is not forfeited by non-performance.^ 
 
 In none of the books, which I have had an oppor- 
 tunity of confulting, is there any reafon given for this 
 opinion ; perhaps the principle on which it was 
 founded had ceafed to operate before any regifter was 
 kept of the proceedings of the courts ; it probably had 
 its rife fi-om the feudal reftraints on the alienation of 
 real property ; at a time when the lord had an intereft 
 in the perfon of his vafTal, who could not be changed 
 without his confent ; when the vaiTal had a reciprocal 
 reflraint on the change of his lord ; and when the an- 
 ceftor could not difinherit his heir ; it was perfeftly 
 confonant to reafon, that the polTeflbr of land ihould 
 not be permitted, by a reference to an arbitrary tri- 
 bunal, to infringe on thefe collateral rights ; and when, 
 by the removal of the reftraints on alienation, the prin- 
 ciple Oil which the opinion was founded no longer 
 exifled, and was forgotten, the opinion itfelf ftiil con- 
 tinued to be favoured. 
 
 Ix the Roman law, there is no queftion but that real 
 proj^erty might be referred, and the parties bound by 
 an award concerning it ; ' and indeed tliere appears to 
 
 « 2i H. 6. 46. 
 
 9 Inter Caftcllianum ct 
 Seium, controverfia de finibus 
 orta eft, et arbit«;r electus 
 eft; ut arbi train ejus res tei- 
 tninetuf ; ipfe fententiam 
 dixit, praefentibus partibus, 
 et terminos pofuit ; qusluuni 
 
 tft, an, fi ex parte Caftelliani 
 arbitro paritum non elTet, 
 pcEna ex compromiffb com- 
 mififa eft r Refpondi fi arbitro 
 paritum non cfTet in co, quod 
 iitroque prefente arbitratus 
 elTet, pocnam commiffam. — . 
 Ff. I. 4. t. 8. f. 44.
 
 THE srBjECT OF REFEREKCE. 6l 
 
 be nothing in the nature of real property iti'elf which 
 makes it an unfit fubjeft of arbitration, where no ad- 
 ventitious reafon prevails to render it fo. 
 
 It may therefore fafcly be confidered as law, that 
 where the parties might, by their own a£V, transfer real 
 property, or excrcife any aft of ownerfliip with refpeft 
 to it ; they may refer any difpute concerning it to the 
 decifion of a third perfon, who may order the fame 
 ncls 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 partition cannot be by an av>-ard ; v^e 
 are to imderftand thefe cxpreffions to mean no more 
 than that land cannot be transferred, or a divifion made 
 of it, by the mere magic of the w'ords of the award ; 
 but that it is necefiary that the award fhould order 
 fuch a£ts 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 fubmiffion were joint tenants of 
 certain land, and the award ordered that they fhould 
 make partition by mutual conveyances, no objeftion 
 was taken to the power of the arbitrator to order par- 
 tition to be made ; but to the uncertainty of the man- 
 ner In whicli it was ordered, it not being pointed out 
 what moiety or part the one Ihould have, and what the 
 other : but even this objeftion v,-as o^'er-ruled, and it 
 was rcfolved, that, vrhereas they were joint-tenants be- 
 fore, they would now become tenants in common.* 
 
 < Kn'ght r. Burton. 3 Anne. 6 Mod. 231-
 
 62 THE SUBJF.CT OF REFERENCE. 
 
 And where the law did not require any particular 
 folemnities, to transfer the pofleflion from one to 
 another, the words of the award alone have been held 
 fufRcient for that purpofe ; as where a controverfy arofe 
 between two, concerning a leafe of lands, and they fub- 
 mitted to the award of a third perfon, who awarded, 
 that one of them fhould have the lands ; this was held 
 in evidence before a jury to be a good gift of the inte- 
 reft of the term ; but it was likevvife held, that, had it 
 been, that the one fliould permit the other to enjoy 
 the term ; this would not have given an intereft in it.* 
 And in another book,^ where the fame cafe is cited, 
 and the diilin£lion here taken recognized, it is faid, 
 that if the arbitrators award that the pojfejjlr Jliall 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 pofleffion in the other 
 cafe. I confefs I do not fee any thing material in thefe 
 diftin£lions ; and I apprehend, that fince the ftatute of 
 frauds,* fuch an award would not be fufficient to bind 
 the parties, but that it mufl order a transfer of the 
 poirelTion, or a releafe of the right, by a written in- 
 llrument. 
 
 As real property cannot be transferred by the parties 
 themfelves, without deed, except by the old folemnities 
 of a feoifment on the land, it feems to be a neceflary 
 confequence that, where 'that makes a part of the 
 difpute, the fubmiffion, as well as the award, where 
 the fubmiffion is by the adl of the parties, mufl alfo 
 be by deed. 
 
 = Trufloe v. Afcwre- Cro. El. 223. 
 Dy. 183, in marg. •♦ 29 Car. 2, c. 3. f. i-
 
 THE SUBJECT OF REFERENCE. 63 
 
 r 'm ■ '^^ 1 "' i~" ii^^=sssas 
 
 It has been faid, that all kinds of perfonal wrong 
 may be fubmitted to arbitration, 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. 
 
 This exception was not originally dictated by any 
 thing which had appeared in our books ; it arofe from 
 that principle appearing in the civil law ; but as it is 
 founded in reafon and good fenfe, it was fuppofed 
 there could be no doubt that, if the queftion fnould 
 ever occur in our courts, it would receive a limilar 
 determination. 
 
 As arbitrators, fay the waiters on the civil law,^ 
 have no power, but that which thfe parties can give 
 them, we cannot fubmit to arbitration certain caufes 
 which the laws and good manners do not fuffer to be 
 expofed to any other event, but that which the natural 
 authority of juflice gives them, and which cannot 
 be brought before other judges than thofe who are 
 cloathed with public authority. Thus we cannot fub- 
 mit accufations of crimes, fuch as murder, robbery, 
 facrilege, adultery, forgery, and others of the like 
 nature ; for on the one lide the public interell is con- 
 cerned, to have thefe crimes punifhed 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 jullice ; and it would be contrary to good manners, 
 and ufelefs for the accufed, to fubmit voluntarily to 
 juftify his innocence before arbitrators, who havmg 
 
 5 Domat. 1 vol. is5.
 
 64 
 
 THE SUBJECT OF REFERENCE. 
 
 no fharc in the adminiftration of jiiftice, could neither 
 juftify nor condemn him.'^ 
 
 In Ealler term, 1797, a cafe occurred in the court 
 of King's Bench, in which this principle was exprelTly 
 recognized. — One James Rant and others had, at the 
 felTion for the county of Middlefex, held in the month 
 of Odober preceding, preferred a bill of indiftment 
 for a riot and alTault againft one Hannah Coombs and 
 others, who at the fame feffion preferred a fimilar bill 
 againft Rant, and his party ; both bills were found, 
 aud were called on for trial at the feffion held in 
 December following ; but by the confent of the parties 
 on both fides, all matters in difpute between them 
 were referred to arbitration : mutual bonds of arbitra- 
 tion were executed, which contained a provifo that 
 the fubmiffion fhould be made a rule of the court of 
 King's Bench ; no award was made within the time 
 originally limited by the bonds ; the time was enlarged, 
 as the fuccefsful parties alleged, by mutual confent ; 
 an award was made within the enlarged time : the 
 unfuccefsful parties having procured the fubmiffion to 
 be made a rule of court, moved to have the award fet 
 afkle on an affidavit, which, among other things, ftated 
 that they had neither by themfelves, nor their at- 
 torney, confented to the enlargement of the time : 
 the counfcl,^ who was inftrucled to Ihew caufe, though 
 
 '^ Julianus indiftinfte fcri- 
 bit ; fi per errorcm dc famof'o 
 dLli6lo ad arbitrum itum eft, 
 vcl de ea re de qua publicum 
 judicium fit conftitutum, vc- 
 iuti de adulteriis, ficariis et 
 
 fimilibus ; vetare debet prjE- 
 tor, fenteniiam dicere, nee 
 dare di<5tae executionem. Ff. 
 1.4. t. S.f. 32. vv. 6. 
 
 7 The autUor of the pre- 
 fent work.
 
 THE SUBJECT OF REFEREKCE. 
 
 H 
 
 of opinion that, for feveral reafons, the award could 
 never by any mode of proceeding be enforced, yet 
 thought he could fuccefsfully oppofe the prefcnt rule, 
 on two grounds : ift, That it appeared from the affi- 
 davit on which it was obtained, that the court had no 
 jurifdiftion over the fubjefV, as the confent to enlarge 
 the time was denied.* adly, That a criminal profecu- 
 tion could not be rnade the fubjeft of reference.— He 
 had hardly flated the fa6l of the fubmiffion by bond, 
 when the court exprefled a confiderable degree of fur- 
 prize that a criminal profecution fliould be fo fubmit- 
 ted ; they obferved that it was ufual, indeed, in profecu- 
 tions of this kind, before a verdift was given, or after 
 verdift of conviftion, and before fentencc, for the 
 parties to talk together by the recommendation of the 
 court, and if they agreed, the court fet a nominal fine ; 
 but the whole was done under the infpeftion of the 
 court, and t/uir fentence formally followed. — The rule 
 was difcharged.** 
 
 It is to be obferved here that the objeftion to the 
 propriety of the reference, arofe not fo much from the 
 nature of the complaint, as from the form of the pro- 
 fecution ; for there can be no doubt that a perfonal 
 
 ' Had the jMcefsf-J party 
 procured the fubmiffion to be 
 iTiade a rule of court, and 
 then moved to enforce the a- 
 ward by attachment, the de- 
 nial of this confent would 
 have been a proper anfwer to 
 that application ; but it feems 
 hardly reconciieable to com- 
 mon fenfe to procure a fub- 
 miffion to be made a rule of 
 
 court, and then to move to 
 fet afide an award, made 
 under the authority of that 
 fubmiffion, on the denial of 
 its exigence. 
 
 * The King v. Coombs et 
 a!, on the profecution of 
 Rant, and the King v. Rant 
 et a!, on the proffcu:ion of 
 Coomb?,
 
 66 'THE SUBJECT OF RKFERENTCE. 
 
 aflault may in itfelf be the fubje£l of arbitration, as 
 well as any other trefpafs ; and where it is made the 
 fubjeft of an aftion, inilead of an indiftment, it may 
 with propriety be referred. 
 
 Notwithstanding this ready recognition of the 
 principle in queftion, in the cafe juft flated, it feeras in 
 the following to have been forgotten or overlooked. 
 
 Some confiderable time previous to the year 1795, 
 Stephen Phillips purchafed of Lord Vifcount Falkland, 
 Henry Speed, and Delves Broughton, feveral annuities, 
 the payment of which was oftenfibly fccured to him 
 by affignnients of feveral fuppofcd eftates alleged to 
 be the property of thofe three perfons. — Some time 
 after the purchafe, applications were made to the 
 court of King's Bench to fet the annuities afide, on 
 affidavits fworn by Lord Falkland, John King, who in 
 fome part of the tranfaftion had afted as the agent of 
 the grantors, and one Alexander Li-vingftone : thefe 
 applications, however, were unfuccefsful, and Mr. 
 Phillips having afterwards, as was alleged, difcovered 
 that all or the greater part of the eflates affigned as 
 a fecurity, either had no exiftence, or did not belong 
 to the parties who had taken upon themfelves to affign 
 them, inftituted a profecution by indiftment againft 
 Lord Falkland, Mr. Speed, and Mr. King, for a con- 
 fpiracy to cheat him of his money by falfely reprefent- 
 ino- the three perfons before mentioned as the owners 
 of the fuppofed eflates ; three feveral indiftments were 
 alfo found on the profecution of Mr. Phillips, againfl: 
 Lord Falkland, King, and Livingllone, for perjury 
 affigned to have been committed in the affidavits before 
 mentioned. — Thefe four indiftments flood for trial 
 before Lord Kenyon at the fittings at Weflminfler after 
 Hilary term in the year 1795.— On the indidlment for
 
 THE SUBJECT OF REFERENCE. 67 
 
 the confpiracy, the defendants were acquitted, whether 
 on the real merits of the cafe, or on account of fome 
 defed in the indiftmcnt, or from want of fafficicnt 
 evidence on the part of the profecution, is immaterial 
 for the prcfent purpofe ; a propofition was then made 
 from the bar that the fubjefts of difpute between the 
 profecutor and the feveral defendants fhould be re- 
 ferred to arbitration ; this receiving the acquiefcence 
 of Lord Kenyon, and the confent of the parties, ver- 
 dids of acquittal, by his Lordfhip's direftion, were 
 entered on the three indiftments for perjury. — Rules 
 were then drawn up in all the four indiiStments, which 
 flated, that " It was ordered by the court, by and 
 ** with the confent of the profecutor and the feveral 
 «' defendants, their counfel, and attornies, that it fhould 
 " be referred to a perfon there named as arbitrator, 
 *« to fettle all matters in difference between Stephen 
 *' Phillips, the profecutor, and the faid feveral de- 
 " fendantSy in the fa'id indiftments^ and to fettle and. 
 " afcertain what fum Of money ought to be fecured to 
 *« the faid Stephen Phillips by the faid defendants Lord 
 •' Vifcount Falkland, Henry Speed, Efq. and Delves 
 " Broughton, Efq. and that it fhould be in the power 
 " and judgment of the faid arbitrator to fettle and 
 *' determine the nature of fuch fccurity to be given ; 
 " and alfo to order and determine what he fhould 
 " think fit to be done by the parties refpefting the 
 «' matters in difference between them, and that the 
 " court of King's Bench might be prayed that this 
 " order might be made a rule of court."' 
 
 9 The King on the profecution of Stephen Phillips v. Lord Falks 
 
 land, John King, and Alexander Livingftone. 
 
 G 2
 
 68 THE SUBJECT OF REFERENCE. 
 
 Had the defendants been acquitted of the criminal 
 charges on the merits, but it had appeared in the 
 courfe of the invelligation that there were fubjefts of 
 difference between them and the profecutor, which 
 might give rife to future litigation, thofe differences 
 might have been referred to the decifion of an arbitra- 
 tor, by the recommendation of the judge and counfel, 
 without violation of the principle which is now the 
 fubjeft of difcufhon ; even then, however, it would 
 have been improper in point of form that the reference 
 fhould be by rule of court alleged to be made in the 
 indiaments ; thefe were at an end by the acquittal of 
 the defendants, and the court could have no authority 
 to interpofe in any difputes ftill fubfifting between the 
 parties :— But here, when the propofition to refer was 
 made and accepted, the defendants remained charged 
 with a grofs crime, in profecution of which the public 
 interefl was materially concerned, and no evidence 
 had been offered of their guilt or innocence : in that 
 fituation, therefore, the reference, in fubftance as well 
 as in form, has the appearance of a compromife of 
 public juflice under the fan6lion of a court ; and if 
 what was done in this cafe were to be coniidered as 
 legally correft, it is apprehended it might be cited as 
 an authority, not only that a criminal profecution, but a 
 public cr'me, might legally be referred to arbitration. 
 
 It is further laid down by the writers on the civil 
 law, that caufes which relate to the ftatc of perfons 
 cannot be fubmitted to a private tribunal ; as if the 
 queflion were to know, whether a man were legitimate 
 or a baflard — whether a gentleman of a plebeian. Nor 
 can fuch caufes be fubmitted to arbitration, the confe- 
 quence of which may intcreft our honour or dignity
 
 THE SUBJECT OF REFERENCE. 
 
 69 
 
 in fuch a way, that good manners do not allow us to 
 fubmit the event of them, or to chool'e judges for 
 deciding them.' 
 
 ' Domat. I vol. 2J5. De Hbe- 
 rali caufa compromiffo fafto, 
 refte non compelletur arbiter 
 fentcntiam dicere : quia favor 
 libertatis eft, ut majores ju- 
 diccs habere debeat ; eadem 
 dicenda funt, five de inge- 
 
 nuitate, five de libertinitatc 
 quaeftio fit : et fi ex fideicom- 
 mifli caufa, libertas deberi 
 dicatur. Idem dicendum eft 
 in popular! aftione. Ff. 1. 4. 
 t. 8. f. 32. n, 7. 
 
 c 3
 
 TO THE ARBITRATOR AND UMPTKE. 
 
 CHAP. IV. 
 
 T/ie Arbitrator and Umpire. 
 
 EVERY one whom the law fuppof\*s ca- 
 pable of judging, w :.tever may be his 
 charatler tor integrity or wiloom, may be 
 an arbitrator or umpire ; bccaufe he is is appointed by 
 the choice of the parties themfelves, and it is tl:eir 
 foliy to choofe an improper perfon^^ but a perfon 
 cannot be an arbitrator, who, by nature or accKcnt, 
 has not difcretion ; as one of non-fane memory, or one 
 who is deaf and dumb, becaufe being deprived of the 
 ufe of thofe fenfes, which are more pecuHarly the 
 medium through which knowledge is conveyed to the 
 mind, he cannot be fuppofed capable of judging; nor an 
 infant, nor a perfoii who is under the controui of ano- 
 ther: as a married woman, a flave among the Romans, 
 or a viilein in the times of villeinage ; neither can a 
 man attainted of treafon or felony.^ But with us an 
 
 2 Com, Dig. Arbitrament. 
 B. — parvi rtfen, ingenuus 
 quis, an libertinus fit j in- 
 tcgrae famse quis fit arbiter, 
 an ignominiofas. Ff. 1. 4. t. 
 S. f, 7. 
 
 3 Com. Dig. Arb. C— In 
 fisivum Labeo compromitti 
 non poffe fcribit ; et eft vc- 
 rum. Ff. 1. 4. r. 8. f. 7. Scd 
 neque in pupillum, neque ia 
 furiofum, aut furdum aut
 
 THE ARBITRATOR AND UMPIRE. 
 
 unmarried woman may be an arbitratrix,'^ though by 
 the civil law Ihe could not, it being contrary to the 
 proper charadcr of the fex, according to the ideas of 
 Juftinian, to intermeddle with the office of a judge.^ 
 
 It is a general rule of law, founded on the firft prin- 
 ciples of natural juftice, that a man cannot be judge in 
 his own caufe ; and on this foundation the Roman law 
 has exprefslv provided, that if a man be conllituted ar- 
 bitrator in a difpute to which he is himfelf a party, he 
 cannot pronounce an award ; adding this fatisfa£lory 
 reafon, that he muil, from the nature of the thing, 
 either order himfelf to do fomething, or prohibit him- 
 felf from alTertiiig fome claim ; and that no man can 
 either impofe a command or a prohibition on himfelf.* 
 There are, however, one or two cafes mentioned in 
 our books of reports, which feem to infringe on this 
 
 mutum compromittetur, f. 9. 
 Cum lege Julia cautum Lt, 
 Ne Minor "viginii annis judicare 
 cogaiur, nemini licere mino- 
 rem viginti annis compro- 
 ir.iffariiitn judicem eligere : 
 ideoque oocna ex fenter.tia 
 ejus nullo modo committitur. 
 Majori tanien viginti annis, fi 
 minor viginti quinque fit, ex 
 hac caufa luccurrendam, fi 
 temere auditorium rccepcrit, 
 multi dixerunt — f. 41. 
 
 4 Vid. the Duchefs of Suf- 
 folk's cafe. 8 E. 4. i. Br. 37. 
 
 * Sancimus, giulieres, fux 
 pudicitiae metnores et operum 
 quse eis natura permifit, et a 
 quibus eas juifit abftinere. 
 
 licet fummse atque optimse 
 opinionis conftitutae, in fe ar- 
 bitrium fufceperint, vel fi fu- 
 erint patronae, etiamfi inter 
 libertos, fuam interpofuerint 
 audientiam, ab omni judiciali 
 agmine feparari, ut ex earum 
 eleftione nulla poena, nulla 
 paiSli exceptio adverfus juftos 
 earum contemptores habca- 
 tur. Cod. 1. 2. t. 56. f. 6. 
 
 * Si de re fu^ quis arbiter 
 faftus fit, fentcntiam dicere 
 non poteft : quia fe facerc ju- 
 beat, aut petcre prohibeat ; 
 neque autem imperari fibi ne- 
 que fe prohibere quifquam 
 poteft. Ff. 1. 4. t. i. f. 51. 
 
 - 4
 
 m 
 
 THE ARBITRATOR AN'D CMPIRE. 
 
 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 bailiff of the archbifliop of Canterbury, for which 
 the archbifhop brought his adlion, and that coming to 
 a trial at the affizes 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 above mentioned ; 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 queilion applies only to the cafe where a man takes 
 on himfelf to judge in his own caufe, without the con- 
 fent of the oppofite party. However this may be, it 
 is certain, that on the authority of this cafe, cited from 
 recolleftion by one of the judges,^ and reported by him 
 to have been approved of by Lord Chief Juflice Hale, 
 a fubfequent cafe received a fimilar decifion, though 
 the circumflances are not mentioned,^ 
 
 Another cafe is reported' of a fubmlflion by two 
 on each fide, to feveral arbitrators, of whom one of the 
 two on one fide was one, and an objeftion taken to 
 the award on that account by his partner, when made 
 defendant to an aftion on the bond of fubmiffion ; and 
 the objeftion was fupported by another obfervation, 
 «' That it was a principal challenge to a juror, that he 
 
 7 Dolben J. 
 
 ^ Matthew v. Ollerton, — 
 5 \V. and M. B. R. Comb. 
 
 2iS. 4 Mod. 226. 
 
 5 Hunter v. Bennifon. 
 Hardr. 43.
 
 THE ARBITRATOR AND UMPIRE- 
 
 73 
 
 had been an arbitrator between the parties in the 
 caufe : " but it does not appear that the court gave any 
 attention to this obfervation ; probably becaufe they 
 thought it inapplicable to the cafe in queilion. The 
 circumftance of having been an arbitrator between the 
 parties in the fame caufe is an obje£lion to the juror, 
 becaufe he may be already prejudiced in the difpatt ; 
 and the obligation under which the party was bound to 
 Hand to his award is at an end, before the caufe can 
 again be brought to trial by a jury, and does not eftop 
 him from objefting to the juror on account of a pre- 
 judice fo naturally implied ; but, by fubmitting to have 
 his partner in the difpute one of the arbitrators, he 
 had waved all fubfequent obje£tion, on that account, 
 to his award. 
 
 The Roman law recognizes two kinds of arbitrators, 
 thofe who are appointed by a formal fubmiffion, and 
 aft in the capacity of a judge, and thofe to whom It is 
 {imply referred to fet a price on any thing which is the 
 fubjeft of fale ; to eflimate the value of a rent, to 
 decide on the quality of a piece of workmanfliip, to 
 fettle the fnares of gain and lofs between partners, or 
 to determine any queftion of a nature fimilar to thefe.i 
 Arbitrators of the firfl kind had an uncontroulable au- 
 thority, from which there was no appeal, where they 
 kept within its limits, whether their award was an 
 
 ' Atbitrorum genera funt 
 duo : unum ejufmodi, ut five 
 i;quum fit, five iniquum, pa- 
 rere dcbeamus; quod obfer- 
 vatur, cum ex comprovnjfu ad 
 arbitrum itum eft: alterum 
 ejufmodi, ut ad boni viri ar- 
 
 bitrium redigi debeat, et fi 
 rominatim fit comprehenla 
 perfona, cujus arbitratu fiat; 
 veluti cum lege locationis 
 comprehenfum eft, ut opus 
 arbitrio locatoiis fiat. Fr". 1. 
 17. t. i. f. 76, 77.
 
 74 
 
 THe ARBITRATOR AWD TJMFIRE. 
 
 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 fhould be referred to the judgment 
 of perfons of probity and fkill in the particular fubje£t, 
 who were not permitted to exceed the bounds of 
 reafon and equity ; and if they did, their decifion was 
 void:* in this cafe, therefore, there was no incon- 
 venience in permitting one of the parties, by the con- 
 fent of the other, to be an arbitrator of the difpute ; 
 and accordingly fuch a reference was frequently made.' 
 
 ' Ea mens eft perfonam 
 arbitrio fubftituentium, iit 
 quia fperent eum re6te arbi- 
 traturum id faciant, non quia 
 vel immodice obligari velint. 
 Doraat. I vol. 44, Si in lege 
 locationis comprehenfura fit, 
 M arbiiratu domini opus adpro- 
 betur, perinde habetiir, ac fi 
 viri boni arbitrium compre- 
 henfum fuiffet : idemque fer- 
 vatur, fi alterius cKJiiJltbet ar- 
 bitrium comprehenfum fir, 
 nam fides bona exigit, ut ar- 
 bitrium tale praeftetur quale 
 viro bono con venit. Ff. 1. 19. 
 t. 2. f. 24. 
 
 ^ Si focietatem mecum 
 coieris, ea conditione, ut partes 
 focietaiis conjlitueres, ad boni 
 viri arbitrium ea res redi- 
 genda eft : et conveniens eft 
 viri boni arbitrio, ut non uti- 
 que ex aequis partibus fccii 
 fimus, veluti fi alter plus 
 
 operae, induftriae, pecuniae in 
 fiacietatem collaturus fit. Ff. 
 1. 17. t. 2. f. 6, Societatem 
 mecum coifti, ea conditione 
 ;// Nerva aviiats communis partes 
 focietaiis conjiitueret : Nerva con- 
 ft i t u i t , ut tu ex triente focius ejfcs, 
 ego ex bejfe: quseris, utrum, 
 ratum id jure focietatis fit, an 
 nihilominus ex sequis partibus 
 focii fimus ? exiftimo autem 
 melius te quaefiturum fuiffe, 
 utrum ex his partibus focii 
 effemus, quas is conftituiflet, 
 an ex his, quas virum bonum 
 confticuere oportuiflet : — ar- 
 bitrium boni viri exiftimo fe- 
 quendum e(Te : eo magis, quod 
 judicium pro focio, bonse fidei 
 eft. Unde fi Nervae arbitrium 
 ita pravum eft ut manifefta 
 iniquitas ejus appareat corrigi 
 poteft per judicium bonse fidei. 
 Quid enim fi Nerva confti- 
 tuiflet, ut alter ex miliefima 
 parte, ulter ex duabus mille-
 
 THE ARBITRATOR AND UMPIRE. 
 
 7$ 
 
 The cafe of Serjeant Hards, and others of the fame 
 kind, would, in the Roman law, have been confidered 
 as more properly belonging to the latter ciafs. 
 
 It is highlv improper, however common it may be, 
 for a perfon nominated as an arbitrator, to confider 
 himfelf as the agent of the perfon on whofe behalf he 
 was nominated.'* 
 
 It appears, however, to be no objeftion to an arbi- 
 trator, that be is related to one of the parties, or ron- 
 nefted with him in any other way, which might raife 
 a prefumption of an inclination in his favour; for by 
 confentlag to the nomination of fuch a perfon, the 
 other party has fhewn his opinion, that fuch an incli- 
 nation will not afFed the juftice of his determination.* 
 
 When a fub.niffijn is made to the award 
 of two or more, it is frequently thought 
 prudent, in order to provide a remedy for the cafe of 
 their finally differing, or not making an award at all, 
 to infert a claufe of agreement, that in fuch cafe the 
 queflion ihall be referred to the decifion of a third 
 perfon, who is called an umpire. 
 
 The nomination of this perfon is frequently made 
 by the parties themfelves at the time of the fubmiflion, 
 and frequently left to the difcretion of the arbitrators. 
 In the latter cafe, the Englifh law differs eflentially 
 from that which was conceived to be law by the 
 
 Umfire. 
 
 fimis focius elTet: illud poteft 
 conveniens elTe viri bonl ar- 
 bini", ut non utique ex sequis 
 partibus focii fimus, veluti fi 
 alter plus nptrae, 'nduftria?, 
 gratise, pecuniae, in focietateni 
 coUaturus erat. Ff. 1. 17.1. z. 
 
 f. 76, 78» 79» 80. 
 
 4 I Vez. Jun. 226. 
 
 5 Quinetiam de re patris 
 dicitur filium familias arbi- 
 trum efle : nam et judiccm 
 eum efTe pofle plerifque placet. 
 Ff. 1.4. t.S.f.*.
 
 •■6 
 
 .THE ARBITRATOR AND L^fPlRS. 
 
 opinion mofl prevalent among the Roman lawyers ; 
 for though they acknowlege it to have been a com- 
 mon pradtice to refer any thing to the decifion of t-ujo 
 arbitrators, yet they fay, that " a fubmiffion to two, 
 with a provifion, that, in cafe of difference in opinion, 
 they fhall nominate a third," is not vaHd, becaufe they 
 may alfo differ in the objeft of their nomination : but 
 at the fame time they admit, that in cafe of a fubmif- 
 fion to two without fuch provifion, the praetor, when 
 they cannot agree in an award, ought to compel them 
 to nominate a third perfon to decide between them.^ 
 
 The Englifh law expreffes no fuch anxiety for the 
 poffible difference of opinion in the choice of an 
 umpire ; and, in fa£l, 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, liaving 
 fuch power by the fubmiflion, did not make an award 
 within the time limited, and could not agree in the 
 choice of an umpire, but threw crofs and pyk w'hich of 
 their nominees fhould prevail, this was thought by the 
 Mafter of the Rolls a fufficient reafon for fetting afide 
 the umpirage made by the fuccefsful nominee ; becaufe 
 an eledlion, he faid, was an aft of the will and under^ 
 
 5 Si in duos fuerit fie com- 
 promiCTum, zc/ Ji dijfentirent, 
 teriium adjumanl, puto tale 
 com prom iiTum non valere, 
 nam in adfumendo poffunt 
 dilTentire. Sed fi ita fit, ut eis 
 tertius adfumeretur Sempronius, 
 valet compromifTum: quoniam 
 
 in adfumendo difTentirc non 
 poiTunr. Sed ufitatum eft, 
 etiam in duos compromitti, ct 
 debet praetor cogere arbitros, 
 fi non confentiant, tertiam 
 certam eligere perfonam, cujus 
 au6toritati pareatur. Ff. 1. 4. 
 I. S.f. 17. n. 5, 6.
 
 THE ARBITRATOR AND UMPIRE. 
 
 landing, but the ail)itrators in this cafe had followed 
 neither, but had tiuflcd the matter to chance/' 
 
 There is no part of the law relative to awards, in 
 which fo much uncertainty and confufion appear in the 
 reported cafes, or on which fo many contradiftory 
 judgments have been given, as on this refpefting 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 eifeft of his 
 nomination, have, each in its turn, proved to be 
 queftions of fufficient magnitude to exercife and diflraft 
 the genius of Weftminfter-Hall. The beft way to 
 difcover fome glimmering of light through tliis chaos 
 of opinion will be, to coniider minutely the different 
 forms of fubmiffion by wliich the appointment of an 
 umpire is regulated. It has already been obferved, 
 that he is either appointed 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 diftinftions. In each, the time limited for 
 the umpire to make his umpirage has foraetimes been 
 the fame with that limited for the arbitrators to make 
 their award : in each, it is moil ufual, and fccms moft 
 correft, to prolong the time beyond that period. 
 
 In the cafe of a prolongation of time, when the 
 umpire has been either appointed by the parties, or 
 nominated by the arbitrators, in confequence of a 
 power given them for that purpofc in the fubmiffion, 
 the authority of the latter is determined, and that of 
 
 f Harris v. Mitchell. 2 Vcrn. 4S5.
 
 78 THE ARBITRATOR AKD UMPIRE. 
 
 the former immediately begins on the expiration of 
 the time allowed to the latter. Thus, if the fubmiffion 
 be to certain arbitrators, and if they cannot agree, or 
 be not ready to deliver the award, in writing, before 
 the f.rft of May, it be provided, that then J. S. Ihall be 
 umpire, and make his umpirage by a certain day after ; 
 though the arbitrators newcv /peak of the matter, fo that 
 there can be no difagrccmcnt between them, yet, if 
 they make no award before the firft of May, the um- 
 pire has authority, by his fubmiflion, to make his um- 
 pirage ; for the words, " if they camtot agree," are not 
 to be taken literally, but in the fame fenfe as " if they 
 do not agree," or " if they make no award." ' 
 
 But the point on which, in all the forms of fub- 
 miffion, the greatefl difficulty has been felt, has been, 
 to decide whether any condu£l of the arbitrators, be- 
 fore 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 ftand to the award 
 of J. S. and J. D. fo as the award were made and de- 
 livered on the next day ; and if they could not then 
 agree, then to {land to the umpirage 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 Rolle held, that if it had been al- 
 leged, 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 
 
 1 Lumley v. Hutton, on demurrer. H. 15 Jac. B. R. Rol- 
 ArbiP. t. « Per. Twifden. i Mod. *7S»
 
 THE ARBITRATOR AND UMPIRE. 
 
 79 
 
 make his umpirage on the next day, the time limited 
 for the arbitrators. But the judge, wlio cites this 
 opinion, does it with difapprobation ; and obferves, 
 that Rolle muft himfelf have altered his opinion, be- 
 caufe he reports his own judgment otherwife ; which 
 he certainly does, for he fays, " that in fuch a cafe, 
 though it be alleged that the arbitrators could not agree 
 on any awarcj, and that they had altogether refufed 
 and neglefted 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 
 tJmi agree," imply, that they have to the lafl moment 
 of the day, and it is a condition precedent to the 
 power of the umpire extending to the whole day, and 
 no a£l of the arbitrators can haften 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 uiould prevail.'* 
 
 According to this opinion, if in fuch a cafe no 
 further time had been gi\^n to the umpire, his ap- 
 pointment would have been void. And accordingly, 
 where the fubmiffion was " to the award of certain 
 arbitrators, and if they difagree, then to the umpirage 
 of J. S. fo that the award or umpirage were made before 
 the firft of May ;" in this cafe it was held, that the 
 umpire could make no award, 'till a final difagreement 
 between the arbiti-ators, and that, as they had time to 
 
 ' Barnard v. King, on demurrer. Rol. Arb. P. 6.
 
 8o 
 
 THE ARBITRATOR AND UMPIRE. 
 
 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 circum- 
 ftanccs, 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 
 fubmilfion, if no further time was given to him than to 
 the arbitrators, his nomination was a mere nullity, and 
 he could, under no circumftances, make 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 ; a fubmiffion was to 
 arbitrators, with a provifo, ** that their award fhould 
 be made on or before the 29th of July ; otherwife to 
 an umpire, provided he fliould make his umpirage 
 before the 2d of Auguft." The arbitrators refufing to 
 make an award, the umpire 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 authority of the 
 arbitrators ftill fubiifted ; yet Chief Juftice Keeling faid, 
 hypothctically, that had the fubmiffion been to A, 
 ♦' provided he made his award on or before the firll of 
 May ; but if he declined it, then to B, as umpire, 
 provided he fhould make his umpirage the fame day;'* 
 
 ' Barber v. Giles, Rol. 
 Arb. P. 2. S. P. 2 Vern. 
 
 100. 
 
 ' Copping V. Hurnsrd. t 
 Sid. 4i8, 454. Sr. T. Raym. 
 1S7. 2 Keb. 46z, 619. 2 
 Saund. 131.
 
 THE ARBITRATOR AND UMPIRE. 8l 
 
 an umpirage made on that day would have been good, 
 on an averment of refufal by the arbitrator.^ 
 
 And in that report of one of the former cafes/ 
 which feems to be the fulleft and moft accurate, the 
 judgment of the majority of the court is faid to have 
 proceeded rather on the defeftive manner of pleading, 
 than on any decided opinion of the umpire having 
 afted without authority. — The fubmiffion was to the 
 award of two, provided it fliould be made before Mi- 
 chaelmas, and if they could not agree then to the um- 
 pirage of a third, who fhould decide within the fame 
 time. Tlic plaintiiF declared, that the arbitrators made 
 no award, but that tlie umpire had made an umpirage, 
 which was fet forth ; but becaufe it appeared to have 
 been rnade within the time appointed by the arbitrators, 
 judgment was given for the defendant, after a confide- 
 ration 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 
 fufficient, and that, tho' the arbitrators had not at the 
 time of the umpriage made any award, yet they might 
 have done it afterwards ; and therefore the umpire had 
 afted before it came to his turn ; that the averment, 
 that the arbitrators could not make any award, was 
 idle, for nothing appeared to the court againft the 
 poffibility of their maldng an award, if they had been 
 willing ; but that, had any fad been laid before the 
 court, from which it muft neceflarily have appeared 
 that the arbitrators could make no award, as if it had 
 
 ^ Luih V. Crabbe. 19 and co Car. 2. 2 Keb. 263, 23i-' 
 "' Copping V, Herauldj or Hurnard. 2 Saund. 1^9, 
 
 H
 
 82 THE ARBITRATOR AND UMPIRE. 
 
 been fliewn that one of them Was dead, it might have 
 been otherwife ; and the wiiole court, except Twilden, 
 were of opinion, that, if it had been averred that the 
 arbitrators had difagrecd as to the terms of their award, 
 and had declared they would intermeddle no further 
 with the fubjetH:, the umpire might have proceeded 
 within the time. 
 
 And in a fubfcquent cafe,^ 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 unfatisfadlory : for it was faid, if 
 the arbitrators did in fad make an award within the 
 time allowed to them, that ihould be confidered as the 
 real award ; and if they made none, then the umpirage 
 fliould take place : and there was no confufion as to 
 the concurrence of authority with refpeft to the time. 
 The umpire had no concurrence abfolutely, but only 
 conditionally if the arbitratoi's made no award within 
 their time. — This was meant to apply equally to the 
 cafe where the umpire was confined to the 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 
 arbitrators, it feems'' anciently to have been the pre- 
 vailing opinion, tl:at they could not proceed to this 
 nomination before the laft moment of the day when 
 their own authority expired. AVhilc that 0})inion pre- 
 vailed, unqueflionably the power given them in the 
 fubmiffion, to nominate an umpire, when the latter 
 
 5 Chafe V. Dare. P. 33. Car. 2. SirT. Jones 16S. 
 '^ Vitl. the cafes cited infra.
 
 THE ARBITRATOR AND UMPIRE, 85 
 
 was cxprcffly limited to the fame time, mull have been 
 a mere nullity; and where further time was given him, 
 an award could not poiTibly be made by him before 
 the expiration of the time allowed the arbitrators, and 
 therefore no qucftion could be raifed on the fubjeft. — 
 This opinion however was relinquifned about the time 
 of James the firft ; and a nomination of an umpire 
 before the expiration of the time allowed to the arbi- 
 trators, was fn-fl fupported in favour of thofe fubinif- 
 iions where no additional time was given to the umpire ; 
 therefore where the fubmiirion was to two, with this 
 claufe, " Neverthelefs if they do not end it within ten 
 days, they fhall nominate another, who fliall end it 
 within the ten days," it was held, that if they thought 
 tliey could not agree within the ten days, they might 
 appoint another, who might make an umpirage zvith'm 
 the ten days.' 
 
 The fame indulgence was afterwards extended to 
 the cafe, where further time was given to the umpire, 
 as to the power of the arbitrators to nominate him 
 before the expiration of their own time ; thus where A 
 and B fubmitted to the award of J. S. provided his award 
 fhould be made on or l^efore the lall day of May next 
 enfuing ; and if he made no award on or before that 
 day, then they Ihould lland to the award of fucli 
 perfon as fliould 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 
 
 7 Fyall V. Varier. M. 11. 
 Jac. B. Godbolc. 241 Rol. 
 Arb. P. 3.— S. P. Twifleton 
 
 V. Travers. i Lev. 174. cited 
 I Ld. Raym. 671. 12 Med. 
 512. 
 
 n 2
 
 84 
 
 THE AIIBITRATOR AN'D VMPlRg. 
 
 award before the tenth of June, and this was held to be 
 good ; though it was objefted, that the arbitrator had 
 the whole of the laft day of May to make his award 
 in ; ^ but the rcafon given for the determination in 
 thefe cafes is, that by the nomination of an umpire, 
 the authority of the arbitrators is at an end, and that 
 the rcafon which induced them to make the nomina- 
 tion, might be, that they felt themfelves unable to 
 make an award within the time. — Tlie judgment in 
 this cafe has been fince confirmed by fimilar refolu- 
 tions ; but the reafon is fomething different, being 
 merely, that the arbitrators having made no award 
 within the tim.e, the umpirage fliall be good."* - 
 
 Sometime before this laft cafe, occurred that of 
 Jennings and Vandeput, of which the circumftances 
 were thefe : ' 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 
 following. The arbitrators made no award, on or 
 before the 20th of July ; but thre;e 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 2 ill. — The 
 umpire made his umpirage before the 25th, according 
 to the provifo in the fubmiffion ; an adlion being 
 
 * M'atTon y. Clement. M. 
 14 Car. B. R. Rol. Arb.P. 5. 
 
 9 Elliot V. Cheval. Lutw, 
 5^.1, 544. Tr. L-i W. 5- 
 • Cro. Car. 263. T. a. Car.
 
 TH« ARniTRATOR AND UMPItAt. 8^ 
 
 bixju^rht on the award, and a verdicl given for the 
 plaintiff, it was moved in arreft of judgment, that the 
 nomination of the umpire, before the 20th of July, 
 was void ; for that the arbitrators had the whole 2cth 
 day in which to make their award, and that they could 
 not nominate an umpire till afterwards; but the objec- 
 tion was over-ruled, becaufe there was no complcat 
 nomination until the agreement of the fourth arbitrator 
 with the other three, and the writing was not to liave 
 effed till that time. But it was alfo obfervcd, that if 
 the nomination of the umpire had been complcat, 
 before the expiration of the time for making their 
 award, yet it would have been good, as no award was 
 made by them within the time. 
 
 On the authority of this latter obfervation, Twifden 
 J. held^ that where the arbitrators have authority to 
 nominate an umpire, they may do it before the expi- 
 ration of the time for making their award, and that 
 fuch nomination does not extinguifli their authority. 
 But, at the fame time, he feems to have conli-dered it 
 as a neceflary confequence of the continuance of their 
 authority, that the umpire has no power to interfere, 
 notwithftanding any refufal of the arbitrators to decide 
 the queftion, till the time allowed to them be expired : 
 and he went fo far as to aflcrt, that if fuch a power 
 were given to the umpire by the fubmiffion, it was 
 void in its conftruftion, for the fame reafon as had 
 been given in fome of the preceding cafes, " that two 
 could not have a feveral jurifdiftion at the fjime time ; 
 
 ? In Dchiva! v. Mafchall. 29 Car. 2. i. MoJ. 274. Sr. T. Raym. 
 20^. J Lev. ^^5. there called Denovan v. Maftall 
 
 K 3
 
 86 THE ARBITRATOR AND UMPIRE. 
 
 and that the arbitrators, though they had once dech'ned 
 their office, might refume it whenever they pleafed 
 within their time." 
 
 In the cafe before the court, the condition of a 
 bond was to fland to the award of two, who were 
 to make their award on or before the nineteenth of 
 February, with a provifo in thefc words, " and if they 
 do not make an award before the nineteenth of February, 
 then I impower them to choofe an umpire ; and by 
 thefe prefents bind myfelf to perform his award." The 
 umpire chofen according to this power made his um- 
 pirage on the nineteenth of February, and the other 
 judges then prefent^ alTenting to the principles laid 
 down by Twifdcn, concurred with him in deciding, 
 that the umpirage was void. 
 
 FIowEvER, notwithftanding this cafe of Twifden's, 
 the idea ftill continued for a coniiderable time, that by 
 elefting an umpire, before the expiration of their own 
 time, the arbitrators gave up their authority to make 
 an award. — The following cafe occurred late in the 
 reign of William the third : '^ A fubmiffion was " to 
 iland to the award of two, provided it fliould be made 
 on or before the twenty-ninth of June, and if they 
 made no award, then to the umpirage of fuch perfon 
 as they fhoiild choofe," without limiting any time for 
 the umpirage. The arbitrators chufe an umpire on 
 the 29Lh of June, who then made his award : it was 
 objeftcd, in the terms of former cafes, that the arbi- 
 trators had chofen the umpire too foon, bccaufe they 
 
 3 Rainsford and Morton. 
 Mitchcl V.Harris. 13 W. 3. iSalk. 71. i Ld. Raym. 671. 
 i: j\'k'd. 5ii.
 
 THE AKfilTRATOR AND UMPIRE. 8*7 
 
 had chofcn him before the determination of their own 
 authority, they having the whole of the day, in which 
 they might make their award ; and that, notwith- 
 ftancHng their having chofen an umpire, they might 
 ftill make an award, before the expiration of the time 
 allowed to them. 
 
 But it was anfvvered and refolved, by the Chief 
 Tuftice, with the concurrence of the reft of the comt, 
 that by the fubmiffion, the arbitrators had an eleftioii 
 to make an award, or to choofe an umpire by fuch a 
 day, and that by doing the latter they had determined 
 their eleftion, and, together with that, their authority. 
 But he diftinguifhed between this cafe, and that where 
 the umpire is named in the fubmiffion ; for that, in the 
 latter, the umpire could not niakc an award before the 
 expiration 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 au- 
 thority ceafes, though the time for making their aw^ard 
 be not expired. 5 
 
 It is now however finally determined, that arbitra- 
 tors may nominate an umpire before they proceed to 
 confider the fubjed referred to them ; and that this is 
 fo far from putting an end to their authority, that it is 
 the faircfl way of choofing an umpire.^ And it is in 
 fad not unufual for the parties to make it a condition 
 
 » Rep. Prsa. in C. B. ii6. Pafch. 8 G. z. Danes v. Monfay, 
 
 cited Viti. Abr. Arbit. P. i8. 
 
 f 2 Term Rep. 645 
 
 H4
 
 THE ARBITRATOR, AND UMPIRE. 
 
 in the fubmiflion that the umpire lliall be chofen by 
 the arbitrators, before they do any other aft. 
 
 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 before the time limited for 
 Jiim.^ 
 
 Considering the intention of the parties, as the 
 proper criterion on this fubjeft, independently of de- 
 cided 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 fub- 
 milTion, or the choice of him be left to the arbitrators : 
 it feems to be afting againft the very policy of the law, 
 in recognizing thefe domeftic jurifdiftions, to confider 
 that as nugatory which the parties have manifeflly 
 fliewn to be their intention, unlefs that intention be 
 contrary to fome eftablifhed maxim of law plainly 
 applicable to the fubjeft, or repugnant .to common 
 fenfe : what maxim of law is contradifted by a wifli 
 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 fenfe it will hardly 
 be afferted. 
 
 The conclufion from the whole of the cafes taker? 
 to,gether, feems to be in favour of fuch a fubmiffion? 
 and of an umpirage made according to it. 
 
 ^ Burdet v. Harris. 3 Keb. 387- Freem. 37S. Adams v. 
 Adams, 2 Mod. i5g.
 
 THE ARBITRAT,OR AMD UMPIRR. «g 
 
 While the opinion prevailed that, by nominating 
 an umpire the arbitrators renounced their of^ce, and 
 could not afterwards make an av/ard, there was feme 
 foundation for a diftinftion between the cafe of an 
 umpire expreffly named in the fubmiflion, and that 
 where his nomination was left to the aibiirators, when 
 a further time was given to the former beyond that 
 which was limited to the latter. — In the fecond cafe 
 there could be no ap:reIieniion from that concurrence; 
 of authority fo much dreaded in the lirfl, and no 
 inconvenience could arife from fupporting an umpirage 
 made before the expiration of the time allowed to the 
 arbitrators ; but now that that opinion is exploded, the 
 diftinftion which was founded on it neceflarily fails ; 
 that which is law in the one cafe rouft be conlidered 
 as law in the other. It has been feen, that in the cafe 
 where the umpire is expreffly named in the fubmiffion, 
 the old opinion, that the umpire couhl 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 cafes, has not been diredly contradided ; 
 but the general current of decifions, lince that time, 
 has rather tended to coniirm it. There does not 
 appear any direft authority that, where the nomination 
 of an umpire is left to tlie arbitrators, and a further 
 time given him, he may, when nominated before the 
 expiration of that t"me, make his umpirage within it. 
 But there is a cafe which fliews, that, had that quellion 
 been decided, it would probably have been decided 
 that he might. 
 H plaintiff and defendant had, in the beginning 
 
 cf December, entered into bonds of arbitration, with
 
 «(0 THE ARBITRATOri AKD UIMPTRE. 
 
 a provifo, tliat the arbitrators fnould make their award 
 by the 17th of January following, and if they iliould 
 not, then the parties bound themfelves to fland to the 
 umpirage of fuch perfon as the arbitrators fhould in- 
 differently choofe, provided it lliould be made by the 
 iirfl of February. They chofc an umpire on the 24th 
 of December, wlio made his umpirage on the 14th of 
 January. The counfel for the defendant, who im- 
 peached the umpirage, confeiTed, that a cafe between 
 Ogel and Cogdel, which in circumflances exaftly re- 
 fembled this, had been lately decided in the Common 
 Pleas, and that the court had fliewn 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 
 which the application was founded for enforcing the 
 award : the court thought the exception fata!, and 
 therefore faid they did not think it necefTary to declare 
 any final opinion on the point of law ; yet, they faid, 
 they had not much doubt but the umpirage might be 
 maintained.^ 
 
 Upon the whole, there feems to be little reafon 
 to doubt, that in all cafes Avhere an umpire is intro- 
 duced into the fubmiffion, whether he be there ex- 
 prefsly named, or his nomination be left to the arbi- 
 trators ; 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 reflrained by exprefs 
 words, or by plain implication, make his umpirage 
 
 ? Cowel V. Waller. Trin. 5 Geo. 2. 2 Barnard. K. B. 154.
 
 Tlin ARBITRATOR. AXD UMPIRF. «|I 
 
 before the expiratlun of the time allowed to the ar- 
 bitrators. 
 
 The only remaining qucflion on this point is, 
 whether, in an a6tion, or on a fumraary application to 
 enforce this umpirage, it mull not be Ihewn exprcfsly 
 to the court, that the arbitrators, before the umpire 
 aftually undertook the bufinefs, ncglefted, or refufcd, 
 to proceed, or exprefsly renounced their authority : 
 unlcfs this was in fadl the cafe, it is manifefl the um- 
 pire could not take upon himfelf to decide, the mean- 
 ing of the parties being clearly to have recourfe to an 
 umpire, only in cafe of default in the arbitrators. — ■ 
 But it would fcem, that the very circumflance of no 
 award having been made by the arbitrators within their 
 time, is a foundation for prefumption, that they had 
 actually declined making a decifion on the fubjecl, and 
 that therefore an allegation, that they had in fadl made 
 no award, is fufficient. And this opinion is apparently 
 juft ified by the terms in which the judgment of th& 
 court is given, in the cafe of Chafe and Dare, the 
 leading cafe on this point. 
 
 From the opinion that the arbitrators, having once 
 elcded an umpire, had executed tlieir authority, it has 
 been thought to follow as a neceiTary confequence, 
 that if they elefted one who rcfufed to undertake the 
 buiinefs, they could not eleft another. In the cafe of 
 Trippet and Eyre,'' which occurred in tlie Comm.on 
 Pleas, in the iirft of William and Mary, this opinion 
 was flrenuoufly maintained by the Chief Jufticc,' in 
 
 sTr'ppetv. Eyre, i W. and M. in C. B. 3 Lev. 163. 2 Vent. 
 113.' ' Pollexfcn.
 
 9^ 
 
 THE ARBITRATOR AN'D UMPIRE 
 
 oppof.tion to the reft of the court, who fupported the 
 •contrary poGtion. The rcafons on which he founded 
 his opinion were thefe: firft, he faid, the nature of an 
 authority was fLich, that, when once executed, it was 
 determined, and the parties to whom it \\'as given had 
 no further power: the arbitrators, therefore, having 
 once named an umpire, could not name another, 
 though the firft refufed ; becaufe, fecondly, the perfon 
 iirft named, though he had refufed, might llill have 
 proceeded if he' had pleafed ; for no cafe could be put 
 of a man, vefted with a bare authority, being con- 
 cluded, by his refufal, from afterwards executing it ; 
 and, therefore, if the fecond were to be confidered as 
 well nominated, there would be a concurrence of au- 
 thority 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 permit. 
 
 These arguments were anfwered by the other three 
 judges in this manner: that they were to confider the 
 penning of the condition of the bond, which was, " to 
 Hand 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 efFeftual nomination, by the perfon 
 named accepting of the office ; and his refufal made it 
 amount to no more than a bare propofal to him, which 
 did not conclude the arbitrators from naming another. 
 It was tiue, that an authority once fully executed was 
 determined, and could not be executed again ; but the 
 condition to ftand to the award of fuch perfon as the 
 arbitrators fhould name, could not, they faid, be with 
 propriety called an authprity ; the terms imported 
 rather a defcription or qualification of the perfon who
 
 THE ARBITRATOR AN'D UMPIRE. ^3 
 
 was ,to make the award, than an authority conferred 
 on the arbitrators ; yet, admitting the condition to 
 amount to an authority, there was no complete exe- 
 cution ; and if the perfon authorifed make a void, 
 or inefFeftual execution of his authority, he may exe- 
 cute 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 authority, that 
 would not conclude him from delivering feifin after- 
 wards upon the land : a writ of polTeffion was executed 
 by the flieriff in delivering poiTeiTion of a houfe, and 
 afterwards it was difcovered that a perfon was hidden 
 in a room of the houfe, on which he was turned out, 
 and the fheriff delivered polTeffion again, which was 
 refoived to be well.^ 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 
 Ihould be concluded from naming another. 
 
 With refpedt to the opinion, that the perfon firft 
 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 effectual nomination of 
 another, yet it was clear he could not have accepted 
 tlie office of umpire, after fuch efFedual nomination : 
 a fecond nomination took away the effeft of the lirfl ; 
 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. 
 
 ' Palm, 239.
 
 54 THE ARBITRATOR AXD U.MPIRE. 
 
 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 
 apoly to the prcfent ; and had, befides, been exprcllly 
 ever-ruled by that of Chafe and Dare. But, where the 
 nomination was left to the arbitrators, without further 
 time given to the umpire, it had been decided, accord- 
 ing to the beft report of the cafe,^ that, on an allegation 
 that the arbitrators rcfufed to make any award, the 
 umpirage would have been good — On thefe grounds 
 judgment was given for the plaintiff — Yet, notwith- 
 flanding the good fenfe apparent in the rcafoning of 
 the three jufticcs. Lord Chief Jullice 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 hrll:. refufed, 
 unlefs the nomination was under a condition that he 
 fliould accept, for then he was no umpire 'till the 
 condition was fulhllcd : but juftice Rokeby doubted 
 the foundnefs of this diftinftion ; becaufe, he faid, 
 every eleftion implied a condition that the office fhould 
 be accepted.-^ Is it necelTary to add, that good fenfo 
 •on the prefent queftion, is at variance with the opinion 
 of the two Chief Juftices ? That the feliifhnefs of 
 parties, and their defue to defer the payment of a juft 
 demand, Ihould prompt them to bring fuch a queftion 
 before a court, is not furprifing ; the wonder is, that 
 grave and learned judges fhould be able to perfuade 
 themfelves that there was any ground for raiftng it. 
 
 5 Copping V. Hurnard. 2 Saund. 129. 
 
 * Reynolds v. Gray. 9 Will. 3. i Salk. 70. i Ld. Raym. 222* 
 
 12 Mod. no.
 
 THE ARBITRATOR AND UMPIRK. ^> 
 
 When the perfon to whom the parties 
 have agreed to refer the matters in difputc ^"'""^'"i' h 
 between them has conlented to undertake 
 the office, he ought to appoint a time and place for 
 examining the matter, and to give notice of fuch ap- 
 pointment to the parties, or to their attornics: if the 
 fubmiffion be by rule of reference at n'lji prius, the 
 refpeftive attornics fliould fet down the names of the 
 witnefTes propofed 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 neglefted, both witnefTes and 
 parties mull be fworn before a judge. It is ufual for 
 the plaintiff's attorney to obtain the order of reference 
 from the affociate or clerk at niji py'ius, and attend tiie 
 reference to have an appointment ; and that being 
 obtained," to fubfcribe it to a copy of the order of 
 reference, and ferve it on the defendant or his attorney: 
 but if he fail in thefe rcfpefts, the defendant's attorney 
 may take the fame fteps which he ought to have done: 
 and this frequently becomes neceifary, when the 
 plaintiff, by the circumftances appearing at tlie trial, 
 begins to apprehend that the matter may go againll 
 him. 
 
 The parties muft attend according to the appoint- 
 ment, cither in perfon or by attorney, with fuch wit- 
 neffes, and fuch documents, as they may think neccf- 
 fary to fubftantiate their refpeftive cliiims. The arbi- 
 trator is then to examine thofe witnefles and documents, 
 as far. as he may lifid fuch examination neceffary or 
 proper, to enable him to form a decided opinion on 
 the merits of the cafe : he niav alfo examine the parties
 
 THE ARBITRATOR AND rMPIRE. 
 
 themfclves, or either of thera, if he fee good reafon 
 for fo doing ; or he may call for any other information 
 he may jud^e necci'ary. 
 
 If the matter be long or intr'cate, or if he cannot 
 fatisfy himfelf with refpe^l to the dccilion he ought to 
 gi e, he may adjourn the matter from time to time, 
 givng notice, as at firft, of the time and place of every 
 fubfequent meeting ;5 provided, that when a time is 
 limiled in the fubmiffion, he make his award within 
 that time. — Where no time is limited, he may, by the 
 F.nglifh law, take what time he pleases, unlefs either 
 of the part'es fpecially requeft him to make an award 
 within a rea<bn^ble time, and, in cafe of refufal, revoke 
 his fubmiffion ; for the parties will not be bound by an 
 award, after ft ch revocation.^ Where a time is limited, 
 he cannot make an award after that time, unlefs it be 
 prolonged. When the fubmiffion is by the aft of the 
 pa'tics. without the intervention of a court, that pro- 
 longation can only be by their mutual confent. If the 
 fubmiffion v/as by bond, conditioned to be made a rule 
 of court, according to the ftatute, or by reference at 
 n'lfi prius ; the fubmiffion, or the rule of reference, may 
 firft be made a rule of court ; and then, if the parties 
 cojifent to have the time enlarged, the court will grant 
 leave for the enlargement, as of courfe: when it is not 
 fufpefsed by the party who undei takes to make the 
 a])plication, that there will be any oppofition from the 
 other, it is fufficient to give notice to him of his inten- 
 
 ' Diem profcrre vcl prefcns, vel per nuncuim, vel per epillijlam 
 
 poteft. Ff. 1.4. t. 8. f. 27. 
 
 ^ Yid. ante, p. 32, 33,
 
 THE SUBJECT OF REFERENCE. 
 
 97 
 
 tion ; and, on an affidavit of that notice, the court will 
 grant the rule ; at leafl, if the other party confent by 
 counfel, as is ufually the cafe. — But if any oppofition 
 be apprehended, the bcft way of proceeding for the 
 party who wiflies to enlarge the time, will be to apply, 
 on an affidavit, ftating the circumftances on which he 
 conceives the time ought to be enlarged, for a rule on 
 the other party, calling on him to fhew caufe why it 
 Ihould not : if the rule be ultimately granted, the party, 
 on whofe motion it was, muft have it drawn up with 
 the proper officer, and ferve a copy of it on the arbi- 
 trator; and, on procuring from him an appointment of 
 another time for hearing the parties, ferve the rule, 
 Avith a copy of the appointment on it, on the oppolite 
 fide. 
 
 In the Roman law, it v/as not unufual, for a claufe 
 to be inferted in the fubmiffion, giving the arbitrator a 
 power, in cafe of neceffity, to prolong the time ; and 
 then he might do it without a new authority from the 
 parties ; but where no fuch claufe was inferted he could 
 not do it without their confent.' The provifions of 
 
 ' Si arbiter, cum in cora- 
 promiffb cautum effet — ut 
 poflet diem proferre, diem 
 protulit, Lal)eo ait, valere 
 
 prolationem. Hsec autem 
 
 claufula, diem coviproviijjl pro- 
 ferre nullam aliam dat arbitro 
 facuhatem, quam diem pro- 
 rogandi : et ideo conditionem 
 primi compromiffi neque mi- 
 nuere, neqne immutarc po- 
 teft. Ff. 1. 4. t. S. f. Z5.— 
 Arbiter ita fiunptus ex com- 
 
 promilTo, vt et diem prof cm 
 pojjit, hoc quidcm facere po- 
 tcft : referre aiuem contradi- 
 centibiis iiiigatoribus ncn po- 
 ted. S.33. — Arbiter ex com- 
 promiiTo fumptus, cum ante 
 diem, qui confiitutus com- 
 promifTo erat, fententiam di- 
 cere non pofTtt, diem com- 
 promiffi proferri jufferat'; al- 
 ter ex licigatoribus didto au- 
 diens non fucrat: confuleba- 
 tur, poiTetnc ab co pccunia
 
 9« 
 
 THE ARBITRATOR AN'D VMPIRE. 
 
 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 
 fubmiffion, by an unnecefTary and unreafonable delay ; 
 for every man who took upon himfelf the office of 
 arbitrator, might in general be compelled by the prstor 
 to decide between the parties within a reafonable time ; 
 unlefs he was fomc fuperior magiftrate actually in 
 office, or unlefs he could lliew fome fatisfaftory reafon 
 why he ought not to be compelled : as if he would 
 fwear that he had not yet been able to form a decifive 
 opinion on the fubjeft ; 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 
 prevented by the infirmities of age ; or by ill health 
 fince he had undertaken the office ; or that he was 
 prevented by the prefTure of his own affairs, or his 
 neceflary attendance on the duties of fome public 
 employment ; if no time was limited by the fubmiffion, 
 he might at any time be compelled to fix a day, by 
 the confeut of the parties, for taking the matter into' 
 confideration. — If he excufed himfelf on account of 
 attendance on public duty, his excufe would have been 
 admitted, if there was no claufe in the fubmiffion 
 empowering him to prolong the time, but if there was, 
 then he might be compelled to prolong it. And even 
 if there was no claufe of that kind, yet if the time 
 
 ex compromiffo peti ' Re- 
 ipondi non poITe : ideo quod 
 non eflet aibitro compro- 
 ra iffum, id id haberet. S. 50. 
 '—Arbiter nihil extra com- 
 
 promiffum facerc poteft et 
 ideo neceffarium eft adjici de. 
 die compromiffi proferenda. 
 Cseterum impune jubenti nca 
 parebitur. 34. n. 21,
 
 THE ARBITRATOR AND UMPIRE. 
 
 99 
 
 limited was nearly expired, and the parties agreed to 
 continue their fubmiffion to him, he could not other- 
 wife be excufed, on account of a public office, than by 
 confenting to decide under a frelh fubmiffion. — If the 
 time was expired, without any award made, and the 
 parties again agreed to refer the matter to the fame 
 perfon, then, if he could not fhew, that it was not 
 owing to any default of his, that the matter was not 
 decided, he was obliged to undertake it anew ; if he 
 could, he was of courfe excufed.^ 
 
 * Et qulJem arbltrum cu- 
 jufcunque dignitatis, PrEetor 
 cogct officio, quod fufceperit, 
 perfungi : etiamfi fit confu- 
 laris : nifi forte fit in aliquo 
 niagiftratu pofitus, vel potef- 
 tate, Conful forte vel praetor : 
 quoniani in hoc imperium non 
 habet. Ff. 1. 4. t. 8. f. i.n. 3. 
 Nam magiftratus fuperiore, 
 aut pari imperio, nuUo modo 
 poflTunt cogi : nee intereft 
 ante, an ipfo magiftratu ar- 
 bitrium fufceperint. Inferi- 
 ores poffunt cogi. S. 4. — 
 Proinde fi forte urgeatur a 
 Prsetore ad fententiam dicen- 
 dam : sequiffimum erit, fi 
 juret Jil>i de caufa nondum li- 
 quere., fpacium ei ad pronun- 
 ciandum dari. S. 13. n. 4. — 
 Licet Praetor diftrifte edicat, 
 fententiam fe arbiirum dicere 
 coaSiiintm, attamen interdum 
 rationetn ejus habere debet, 
 et excufationeni rcciperecau- 
 fii cognita : utputa fi fuerit 
 ^infaraitus a liii^atoribus : aut 
 
 fi Inlmicitise capitales inter 
 eum et litigatores, aut alte- 
 rum ex litigatoribus intercef- 
 ferint ; aut fi aetas, aut vale- 
 tudo, quae poftea contigit, xi. 
 ei munus remittat, aut occu-^ 
 patio negotiorum propriorum, 
 vel profeftio urgens, aut mu- 
 nus aliquod reipublicae. S. 15. 
 Et fiqua alia incommoditas ei 
 poft arbitrium fulceptum in- 
 cidat. S. 16, — Si compromif- 
 fum fine die confeftum eft : 
 necefie eft arbitro omnimodo 
 dies ftatuere, partibus fcilicet 
 confentientibus, et ita cau- 
 fam difceptari. Quod fi hoc 
 prffitermiferit, omni tempore 
 cogendus eft fententiam di- 
 cere. S. 14. — Arbiter judicii 
 fuL nomine, quod publicum 
 aut privatum habet excufatus 
 efTe debet a compromiffb : 
 utique fi dies compromiffi 
 proferri non poteft. Quod fi 
 potcft, quare non cogat eum, 
 cum poteft, proferre, quod 
 fine ulla diftriiSione ipfiii* in- 
 
 I 2
 
 THE ARBITRATOR AND UMPIRE. 
 
 The Englifli law has made no fimilar provifions 
 againft the negled of duty in the arbitrator ; but it has 
 fecured each of the parties againft the vohintary ])ro- 
 craftination of the other, by permitting the arbitrator, 
 on due notice given, to proceed without his attend- 
 ance;' and if the arbitrator, from the" nature of the 
 cafe, fliould iind that inconvenient, it enables the 
 willing party, in the cafe of a reference by rule of n'lji 
 prius, 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 fhould not attend the arbi- 
 trator, or why the latter fliould not be direfted to make 
 his award, without fuch attendance. Thus, where on 
 a trial at mji prius it appeared, that the demand of the 
 plaintiff arofe on a long and intricate account, which 
 in almoft every article was impeached by the defendant, 
 "ivho alfo fet up a counter demand of the fame nature 
 by way of fet-ofF; it was referred by confent, and, the 
 plaintiff neglecting to carry in his vouchers to the 
 arbitrator, before the time limited for making the 
 award, the time was feveral times enlarged, till at 
 length the defendant, after upwards of fix months 
 
 tcrdam futurum eft ? fi tamen 
 uterque velit eum fententiam 
 dicere, quamvis cautum non 
 fit de die proferenda, non 
 alias impeti^t, quia judicium 
 habeat, ne cogatur, quam fi 
 confentiat denuo in it com- 
 promitti : Hsc, fcilicet, fi dies 
 cxitura eft. 9. i6. — Si, cum 
 dies compromiHi finiretur, 
 prolate die, litigatores dsnuo 
 
 in eum compromiferint, nee 
 lecundicompromiffi arbitrium 
 receperit : non effe cogendum 
 rccipere, fi ipfis in mora non 
 fuerit, quo minus partibus 
 fuis fungeretur. Quod fi per 
 eum faftum, eft aequiffimum 
 efTe, cogi eum a praetore fe- 
 quens recipere. S. 2r.n.5. 
 
 9 Waller v. King. Ca, in 
 Law and Eq. z pt. 63,
 
 THE ARBITRATOR AND UMPIRE. 101 
 
 delay on the part of the plaintiff, made an application 
 to the court, on an affidavit, Hating thefe circumftances, 
 for a rule to Ihew caul'c why the plaintiff lliould not 
 carry in his vouchers within a certain day, and why 
 the time Ihould not be further enlarged, or why, on 
 the plaintiff's further default, the arbitrator Ihould not 
 be direfted to proceed on hearing the defendant alone ; 
 the rule was granted without hefitation, and the plain- 
 tiff, inftead of fhewing caufe againfl it, peremptorily 
 undertook to deliver in his vouchers within the time 
 fpecified.' 
 
 In this refpcd the Roman law is fomething fimilar 
 to ours, for the party by not attending, and thereby 
 preventing the arbitrator from making his award, for- 
 feited the penalty of his fubmiffion."" 
 
 Where an umpire is appointed, and he has occafioa 
 to interfere, his duty is the fame as that of the arbi- 
 trators, and therefore it has been held, that he cannot 
 proceed on their report, but muft hear the whole 
 matter from the parties themfelves, or at leafl, by 
 proper notice, give them an opportunity of being 
 heard, in the fame manner, as if the arbitrators had 
 never examined the matter, or as if he himfelf had 
 been originally appointed fole arbitrator.^ And it the 
 fubmiffion be in the common form, the arbitrators 
 cannot decide on one part of the cafe and leave the 
 reft to the umpire ; for he has the whole authority 
 
 ' Hetley v. Hetley, in the 
 Kxchequer. M. 1789. 
 
 - Siquis litigatorum defu- 
 tritj quia per eum faftum 
 
 eft, quo minus arbitretur, 
 poena committetur. Ff. 1. 4* 
 t. 8. f. 27. n.4. 
 
 39H.6.9. Rol.Arb.P.7.
 
 lOi THE ARBITRATOR. AND UMPIRE. 
 
 which they had:* thus, where the arbitrators deter- 
 mined the whole of the matters referred to them, 
 except one fingle point, which related to an account of 
 intercll ; and, in order to fettle that, nominated an 
 umpire, according to the power given them by the 
 fubmiffion ; the umpire took the fafts to be as the 
 arbitrators reported them, and made his umpirage on 
 the intereft account only ; and on both thefe accounts, 
 the court fet the umpirage afide.^ 
 
 The authority of this cafe, however, from the cha- 
 r^fter of the reporter, as well as from 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 ; and the reafons given for the 
 decifion are not very fatisfaflory. Where the arbitra- 
 tors have agreed on the fafts, and only differ on a 
 lingle point, either with refpe£t to the law arifing on 
 thofe fa6ls, or the extent of the recompence to be 
 made by one party to the other ; or even where they 
 agree on fome fa£ls, but differ with refpeft to others, 
 unconnefted 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 fubjeft of 
 difpute, where the arbitrators cannot do it ; and by 
 adopting their opinion, as far as they agree, and incor- 
 porating it with his own on the other points, he 
 effeftually makes that final determination ; in fa6l, it is 
 not unconimon for an umpire to a6l in this mannei;". 
 
 4 39 H. 6. ii.b. perPrlfot. Rol, Arb. P,8. 
 s Tafkcr v. Keary. 2 Barnard. 317.
 
 THE ARBITRATOR AND UMPIRE. 103 
 
 Let this praftice, hov/cver, be right or wrong, yet, 
 as the whole authority, both of the arbitrators and 
 umpire, is regulated by the fubmiffion, and depends 
 entirely upon it ; if that be of feveral diftind matter?, 
 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 fliall have power, in the 
 refpeftive cafes, to make an award of the whole, or of 
 the remainder. On fuch a fubmiffion, it has been faid, 
 that if the arbitrators make an award of part, and not 
 ©f the reft, then the umpire may make an award of 
 the reft ; the whole put together fliall be conlidered as 
 one award, and good, if not inconfiftent in its feveral 
 parts, or at leaft fliall have the fame efFed as if the 
 whole had been made by one ; becaufe it was made 
 according to the authority given by the fubmiffion.^ 
 
 A CASE of more recent date confirms this reafoning. 
 The parties had referred all matters in difference to 
 two perfons as arbitrators, or, in cafe of their difagree- 
 ment, to another as umpire ; the arbitrators regularly 
 heard all the evidence ; but difagreeing in their con- 
 clufion, ftated the evidence to the umpire, on which 
 he made his award without re-examining the witneflxss ; 
 after he had made the award, the party againft whom 
 it was made applied to him to hear the evidence 
 himfelf, and on his refufing, moved the court of King's- 
 Bench to fet the award alide : but the court thought 
 that as no application had been made to the umpire to 
 examine the witnelTes before he had made his award, 
 the rule flrould be difcharged with cofts,' 
 
 *39H.6. II b.pcrPrifot. Rol.Arb.P.S. 
 ' Hall V, Lawrence. 4 Term Rep. 589.
 
 104 
 
 THE ARBITRATOR AND UMPIRE. 
 
 Thouc;h the words in the fubmiffion, which regulate 
 the appointment of an umpire, be not perfeftly correct, 
 but might, from the grammatical order in which they 
 fland, feem to imply, that thofe named as arbitrators, 
 and he who is named as umpire, fliould all join together 
 to make an award, yet an award made by the firft, 
 without the participation of the latter, will be con- 
 lidered as fatisfying the terms of the fubmiflion. 
 
 The condition of an obligation was, to fland to the 
 agreement of A and B, " being arbitrators chofen for 
 that purpofc, 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 ap- 
 peared at ^rft fight uncertain, yet, as it was the com- 
 mon pradtice, it was faid, to appoint an umpire to 
 make an end of the matter, if the arbitrators could not 
 agree, this fhould be fo taken, and the words " J. S. 
 being umpire," fliould be taken as an affirmative nomi- 
 nation of him as umpire. 
 
 The condition of a bond was, to perform the award 
 which four, named as arbitrators, with the umpirage 
 of a fifth, fliould 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 objeftion was taken to the condition, that 
 it was repugnant in itfelf ; that an umpire was a judge 
 by himfelf, and could not be joined with the arbitra- 
 tors, their authority being diflind. Whether this ob- 
 
 8 M. liCar. B.R. Ofborn 
 v.Roydon, on a writ of error 
 on fuch judgment in the court 
 
 of Kingflon upon Thames. 
 Rol. Arb. P. 6.
 
 THE ARBITRATOR AND UMPIRE. 
 
 10$ 
 
 jcftion was confidered as having any weight does not 
 appear ; 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 perfeftly imm^aterial, whether the parties formed an 
 accurate idea of the diilinft offices of an arbitrator and 
 an umpire, their meaning having been clearly, that the 
 firft four, witl\ the aihllance and approbation of the 
 fifth, fhould make an award, and tliat, being made by 
 all five, fatiefies their intention.^ 
 
 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 a fifth," the live cannot join to 
 make one award ; though it was, at the fame time, 
 admitted, that " if the fubmiffion be to four, and the 
 umpirage of a fifth," an av/ard made jointly by the five 
 will be good.' But this cafe has lince been held to be 
 abfurd, and that the joining of the arbitrators with the 
 umpire is but furplufage ; their approbation, which is 
 fliewn by joining with him, does not render the infiru- 
 nient, purporting to be his umpirage, in any degree 
 lefs the aft of his judgment.^ 
 
 By the Roman law, where there was an unequal 
 number of arbitrators, it was not necelTary that all 
 fliould concur in the award ; the judgment of a majority . 
 was fufficient to fatisfy the terms of fubmiffion, though 
 no exprefs provifion was made to guard againfl a dif- 
 ference of opinion. That precaution was feldom taken, 
 but in the cafe of a fubmiffion to two, and then it was 
 
 9 Hunter v. Bennifon. — 
 Hardr. 43. 
 « I Bulft. 184. 
 
 2 SouKby V. Hodgfon. i 
 Bl. Rep. 463. Eaft. 4 G. 3. 
 K-. B.
 
 io6 
 
 tHE ARBITRATOR AND T7MFJRK. 
 
 not unufual to exprefs it in the alternative, to fland to 
 the award of the one or the other : but it was held, 
 that, in the common cafe of a fubmifTion to three, two 
 could not make an award in the abfence of the third ; 
 becaufc the latter, had he been prefent, might have 
 drawn over the others to his opinion.^ 
 
 In this refpeft the law of England is fomewhat dif- 
 ferent : for unlcfs it be expreflly provided in the fub- 
 milTion, that a lefs number than all the arbitrators 
 named may make the award, the concurrehce of all is 
 BCCclTarv ; and where fuch a provifo is made, all mull 
 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; objedting, 
 that two had not a jurifdidion without the third. On 
 
 3 In imparl niimero idcirco 
 Con-ipromifiTumadmittitur, non 
 quoniam confentire omnes 
 facile eft, fed quia etfi diifen- 
 tiant, invenitiir pars major, 
 cujus arbitrio ftabitur. Ff. J. 
 4. t. 3. f. 17. n. 6. Si, in tres 
 fucrit compromiflTum, fufficere 
 quidem duorum confenfiun, 
 fi prefens fuerit et tcrtius: 
 alioquin, abfente eo, licet duo 
 confentiant, arbitrium non 
 valere; quia in plures fuit 
 compromiflTum, et potuit prae- 
 fentia ejus trahere cos in ejus 
 fjententiam, n. 7. Sed fi ita 
 fit compromilTum, arbitraiu 
 
 Tiin ant Seii^ni : Pom pen i us 
 fcribit et nos putamus, com- 
 promiffum valere, n. 4. St 
 plures arbitri fuerint, et di- 
 verfas fententias dixerint ; — 
 licebit fententise eorum non 
 ftari, fed fi major pars con- 
 fentiat, ea ftabitur, alioquin 
 poena committetur : inde qux- 
 ritur, fi ex tribus arbitris unus 
 quindecim, alius decern, ter- 
 tiu« quinque condemncnt cui 
 fententiaB ftetur ? et Julianus 
 fcribit quinque debere prae- 
 ftari ; quia in banc fummum 
 omncs confenferunt, f. 27. 
 n. 3.
 
 THE ARBITRATOR AND UMPIRE, jq? 
 
 fhewing caufe againfl this motion, it appeared, that 
 the third arbitrator had fufficient notice of the meetings 
 of the other two, and might have attended if he would. 
 The court obferved, that it was ageed by both fides, 
 that if the third had attended, two might have made 
 an award: two had a jurifdiftion, but their meetino-s 
 ought to be according to the rules of law. If the third 
 had been prefent, his reafons might have altered the 
 opinion of the other two ; he was not therefore to be 
 excluded by fraud ; nor were the two to aft without 
 the third's having an opportunity to be prefent ; but 
 where the third had fufficient notice, as in the prefent 
 cafe, and would not attend, the meeting of the two 
 was regular, and their authority fufficient.* 
 
 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 of Edward the fourth this queftion was agitated, 
 in a cafe remarkable 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, 
 bethought improper to ftate the circumilaixes of the 
 cafe, and give a fummary of the arguments, that it 
 may appear with what difficulty many points have been 
 ^ftabliflicd, which afterwards appear fo plain, that we 
 
 * Dalling v. Matchett.— Barnes 57.
 
 jo8 THE ARBITRATOR AND UMPIRK. 
 
 arc at a lofs to conceive how the mind could ever have 
 entertained a doubt upon the fubjedl. 
 
 The dutchefs of Suffolk brought an aclion of debt 
 on bond, to which the defendant pleaded, that the 
 condition of the bond was, that if he, the defendant, 
 fhould ft and to the award of the dutchefs concerning 
 all matters in difference between him and one B. II, 
 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 faft, on 
 the fifth of January the dutchefs awarded, that the de- 
 fendant fliould pay to B, on the fourth of March then 
 following, 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 infiftcd that he 
 ouffht to be excufed of that, becaufc he had not notice. 
 Againft the plea, it was argued, that it would be againft 
 reafon that the arbitrators fliould be driven to give 
 notice to the parties, becaufe they had no advantage, 
 but only a trouble ; that it was the bulincfs of the par- 
 ties to be conftantly attendant on the arbitrators, and 
 to know when the award was made ; that if it was a 
 hardfhip, the defendant fliould forfeit his obligation, 
 by not performing that which he did not know ; it was 
 his folly to bind himfelf in that manner : that a man 
 might be bound by his own deed to take notice, at his 
 peril, of many things to which reafon and the law
 
 TfiE ARBITRATOR AIID UMPIRE. 
 
 109 
 
 would not compel him : that if a man were bound by- 
 obligation to make amends to another for all trefpaffes 
 committed by him, it was not necelTary for that othei- 
 to give him notice of them, he muft 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 notice 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 appear on a particular day before 
 the King himfelf, wherever !^e fhould be in England, 
 which means to appear in the King's Trench, which is 
 ambulatory, and attendant on the King, he muft be on 
 that day wherever the court lliall 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 wcaknefs 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 re- 
 build it : that if I command my fervant to buy certain 
 goods for me, or conftitute a man my fa£lor for that 
 purpofe, in fuch a cafe I fliall be charged for whatever 
 goods they buy, though they never come to my hands, 
 and though I have no notice of the 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 leftee fliall 
 have an aftion of trefpafs againft me, though I had no 
 notice that it was let : fo, if a man were bound to pay 
 a certain lum to another after the death of his father, 
 and the father fhould die in a defcrt, without the 
 knowiege of the fon, yet the latter muft take notice
 
 JtO THE ARBITRATOR AND UiMPIRE. 
 
 of It, and pay the money, otherwife the bond will be 
 forfeited : fo, it was faid, if a man were arrefted, and 
 found ba-1 to the fherifF for his appearance on the day 
 of the reliirn of the writ, in that cafe, if the defendant 
 became fick, fo that he could not have him at the 
 day, yet they fliould not be excufed to the IherifF. 
 
 Beside thefe arguments, from the analogy of other 
 cafes it was urged, that an award was, by common 
 intendment, a matter of notoriety, of which the party 
 mufl, at his peril, take notice ; and if that were not fo, 
 then any one, when he perceived that 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 prefence of the parties ; it was there- 
 fore 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 fliewn that he 
 abfented himfelf for the purpofe : and vidth refpeft to 
 the aiiertion, that he was bound by his own aft 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 trefpaffes committed by 
 him, cannot infift on notice of any trefpafs, becaufc 
 they mull neceflarily be within his own knowledge.— 
 He who was bound to attend another every day he 
 fliould 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,
 
 THE ARBITRATOR AND liMPIRE. 
 
 in the prefent cafe, the arbitrator rrlight maice his 
 award, and put it in his pocket. 
 
 As to the recognizance in the King's Bench, every 
 man might ealily 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 faUing down had no analogy to this, for it 
 could not poffibly fall down without the tenant's know- 
 lege. Thofe of the fervant, the faftor, and the bailiiF, 
 admitted of one anfwer : he who adls by another a&:s 
 by himfelf, and therefore he mull: 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 againfl himfelf: 
 but, in the prefent cafe, the obligation could not be 
 forfeited before 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 flierifF, it was fald, 
 that if the defendant \vere lick, they were excufed, for 
 that his death before the return was clearly a difcharge 
 of the bond : it was, however, denied on the other fide, 
 that the cafe of ficknefs w^as like that of death. It 
 might, however, have been faid, that they might Hill 
 have brought him into qourt, notwithllanding he wa» 
 lick; and now that it is underilood, that nothing but 
 entering bail above will fatisfy the bond for appearance, 
 they may enter an appearance though the defendant be 
 lick. 
 
 Beside anfwering thefe cafes,, feveral were inhfted 
 on as being more analugous to the prefent queftion,
 
 THE ARBITRATOR AKD UMPIRE. 
 
 which all tended to fhew, that a man fhall not be bound 
 by any thing of which he had not notice, nor to do a 
 thing impoffible ; "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 
 v/as compared to the cafe of an award of money to be 
 paid on a day before the fubmiffion, which it was con- 
 fcflcd was void. That cafe, however, is clearly dif- 
 tinguifhable from the prefent; for there the thing is 
 impoffible 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 
 feems to depend more on principles of general reafon- 
 ing, than on any analogy it -may bear to cafes cited on 
 the one fide or on the other. 
 
 The impoffibility of performance for want of notice 
 feems altogether out of the queftion, for the defendant, 
 by a conftant application to the arbitrator, might have 
 known vjhen the award was made, if the latter had 
 been willing to inform him ; and if, in faft, llie 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 expreffied 
 in the fubmiffion ; or whether the parties themfelves 
 muft, at all events, take notice of the time when he 
 makes the award ; and confidering the fubje£l in this 
 light, thefe obfervations feem to have weidit. 
 
 The duty of the arbitrator, we have feen, is to give 
 notice to the parties at what time and place he will fit 
 to hear their complaints, and that it is their duty to
 
 THE ARBITRATOR AND UMPIRE. 113 
 
 attend him on fuch notice ; but it is abfurd to fuppofe 
 that they arc to go of their own accord every day to 
 know when he will be attended, or whether he has 
 yet made his award. When, indeed, the day appointed 
 in the fubmiffion is come, it may be reafonable that 
 they fhould 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 diftinftion, 
 therefore, feems to be this, ih-it if the award be made 
 before the day limited in the fubmiffion, the party 
 Ihall not be bound by any thing awarde'd to be done 
 before that day, unlefs he has notice, but that he muft 
 take notice, at his peril, of any thing ordered at the 
 day.^ And there is an aflertion of counfel, to which 
 the court affcnt, that though the arbitrator make his 
 award before the day, yet, if he give no notice of it to 
 the party, it is void.^ 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 notiiied to the parties ; but it had not 
 its efFeft, becaufe the want of notice was not properly 
 pleaded, the defendant having, in his plea, denied that 
 any award was made before the day appointed ; and, 
 on an award made before that day being fct forth in the 
 replication, having rejoined that he had no notice of the 
 award before 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 jullices, " that v/here an 
 award is made, the parties muft take notice of it at 
 
 5 8 E. 4. I, Br. 37, ' Keilway, 175.
 
 174 
 
 TKE AP.nfTRATOR AND CMPTRE. 
 
 their peril, and that this had been before adjudged in 
 the King's Bench in the fame King's rcign."^ It is 
 true, that in the firft of Henry the fcvcnth, to an 
 a(ftioa on a bond, the defendant fliev/ing the condition 
 to have been to fland to an award, provided it were 
 made before z 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 perform the 
 award, he was bound to take notice of it," and that 
 they diftinguilhcd between this cafe and that where a 
 provifo was added to the condition of the bond, that 
 the award fhould be made ; for " that then fuch a plea 
 would have been good."^ 
 
 It is alfo true, that Lord Coke adds the authority of 
 his name to thefe cafes, and fays, " that fo is the law 
 without quellion ;" but he is clearly miftaken when he 
 fays, " that this is againft a fudden opinion in the 
 eighth of Edward the fourth :"^ no decided opinion was 
 in fa6t given at that time, notwithflanding the number 
 of times the cafe was argued, and the variety and 
 extent of the arguments. 
 
 The fame doftrine is alfo confidered as eftablifhed 
 law in many other books;' but that may well be ad- 
 mitted without impeaching the foundnefs of the dif- 
 tin£lion before made. The cafes in which the point is 
 decided feem, from the manner of pleading, to have 
 related to a breach of the award in fome thing awarded 
 
 7 Brian, Vavifor, and Ca- 
 tefby. i8 Ed. 4. i8' a. 
 « .H.7. 5- 
 
 9 8 Co. gi. b. 
 
 ' Vid. Cro. EI. 97. Cr©, 
 Car. 132, I3J«
 
 THE ARBITRATOR AND UMPIRE. IIJ 
 
 to be done after the day appointed for making it ; and 
 the other books, in which the doflrinc is recognized, 
 only mention it as eflablilhed Liw, without reference 
 to any particular cafe. 
 
 The Roman law did not impofc fuch a hardfliip on 
 the parties, for the arbitrators were not only obliged 
 to give Lhem notice of the time when they intended 
 to make their award, but to pronounce it in their 
 prefence ; and, if on notice given for that purpofe, 
 either of the parties did not attend, he forfeited the 
 penalty of the fubmiffion, but no award could be made,* 
 unlefs it had been fpecially exprelTed in the fubmiffion, 
 that fentence might be pronounced in the abfence of 
 one or of both of the parties. 
 
 Where the fubmiffion is not by bond, there can be 
 no queftion but the arbitrators muft give notice of their 
 award, otherwife the parties are not bound to per- 
 formance ; and indeed this feems, by the whole tenor 
 of the arguments in the cafe of a fubmiffion by bond, 
 to be taken for granted : and where the fubmiffion is by 
 bond, it has long been the praftice to guard againll the 
 confequences of want of notice, by inferting a provifo 
 in the condition, not only that the aw'ard fJTall be made, 
 but that it fliall be delivered to the parties by a certain 
 day ; and then the bond will not be forfeited by non- 
 
 * Si quis litigatorum de- 
 fuerir ; quia per eum fa£lum 
 eft, quo minus arbitretur, poe- 
 na committetur. Proindc 
 fententia quidem difta non 
 coram litigatoribus non va- 
 lebit ; nifi in compromiflis hoc 
 
 fpecialitcr cxpreffum fir, ut 
 vel uno, vel utroque abfcnte, 
 fententia promatur: poen-inx 
 autem is quidefu!C,committir, 
 quia per eum faftum eft, quo 
 minus arbitretur. Ff. 1. 4, 
 t. S. f. 27. n. 4. 
 
 K 2
 
 ii6 
 
 THE ARBITRATOR AND UMPIRE. 
 
 performance, unlefs the party not performing had 
 notice : and if fuch a fubmiflion be made by the plain- 
 tiff on one fide, and two defendants on the other ; if 
 the award be made before the day, and delivered to 
 the plainfiff und one of the defendants, but not to the 
 other, this will not be fufficient : fo, neither, it is faid, 
 will it be fufiicient, whele 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 ])arty is to be intended of the 
 whole party." ^ 
 
 But it has been adjudged, that <' a provifo that the 
 award fhould be delivered by a certain day is fatisfied 
 by the pronouncing of a parol award, unlefs it was alfo 
 provided, that it fnould be in writing. Thus, in Dyer,'* 
 a cafe is reported where the fubmiifion was in thefe 
 words, " fo that the award ■ be made and delivered 
 before a certain day:" to an aftion on the bond, the 
 defendant protefting that no award was made, pleaded 
 that the arbitrators did not deliver in writing any 
 award ; but judgment was given againft him, becaufe 
 he had not denied that a parol award was pronounced ; 
 for tliC court held, that a parol delivery was 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 qucllicn 
 of more difficulty. 
 
 3 Hungate's cafe. 5 Co. 
 10,^. Cro. El. 885. Mo. 642. 
 pi. SS5. 
 
 + 21S. b. Tafch. 3 El. Rot, 
 
 917. The record of this cafe 
 is faid to be in the new book 
 of entries, tit. Delt. p!. 10. 
 fol. I2(s.
 
 THE ARBITRATOR AND UMPIRE. 
 
 il7 
 
 An aftion was brought on a bond for performance of 
 an award, in the condition of which it was provided, 
 that it Ihould be made and ready to be delivered to tlie 
 parties, or fuch of them as fliould be ready to receive 
 it : the defendant pleaded that no award was made ; the 
 plaintiff replied, and fet forth ?i -parol award, averrin?^, 
 that it was ready to be delivered according to the terms 
 of the condition : to this the defendant demurred, in- 
 fifting, that the words *' ready to be delivered," nccef- 
 farily 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,^ and infilled much on 
 Hungate's cafe before mentioned from Coke. On the 
 other fide it was urged, tliat the word " delivery" was 
 to be underftood according to the fubjeft to which it 
 was applied ; that in common language a meiTage was 
 faid to be delivered, and a man was faid to deliver 
 himfelf well, when he exprelTed his thoughts with 
 elegance and grace ; that if the provifo had been, that 
 the award fnould be made in writing, the delivery mull 
 have been manual ; but no fuch reflraint being impofed 
 in the prefent cafe, an oral delivery was fufiicient, and 
 in fupport of this was cited tlij cafe in Dyer, which, it 
 was faid, was full in point. 
 
 It may be obferved, however, that that cafe is not 
 fo dircftly in point as was here alleged, the provifo 
 there being, that the award Ihould be delivered, not 
 that it ihould be ready to be delivered. The court, at 
 ^rfl, feemed inclined to think, that a parol awarc^ 
 
 ' Wood V. Ardift. Tr. i Ann, 
 K 3
 
 n8 THE ARBITRATOR AND UMTIRR. 
 
 could not properly be the obje6l of delivery, but that 
 the words mail be underflood of a delivery in writing : 
 afterwards, however. Lord Chief Juftice Holt, having 
 looked into the cafe in Dyer, and the record of it in 
 Coke's Entries, faid they were very flrong authorities 
 for the plaintiff; that the award might have been made 
 in the abfcnce of the parties, and delivered, or pro- 
 nounced over again in their prefence ; and if fo, what 
 jnay be delivered, may be ready to be delivered. Powell 
 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 iffue had been 
 taken on the readinefs of delivery, how it fliould have 
 been tried ? Holt agreed that he fhould have been of 
 the fame opinion with Powell, if the queftion had been 
 new ; but faid, that finding fo clear an authority, and 
 fame reafon 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 Common Pleas, and no 
 judgment was given.^ 
 
 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 diftinftion, 
 that where the fcntence pronounced, from the nature 
 of it, and the terms in which it was conceived, amounted 
 to an abfolute determination of the whole fubjeft of 
 difpute, he could not alter it, though he afterwards 
 found reafon to believe he had erred, becaufe, by pro- 
 
 * Gates V. Bromell, 6 Mod. i6©.
 
 THE ARBITRATOR AND UMPIRE. 
 
 119 
 
 nouncing fuch a fentence, he liad executed his oilicc, 
 and ceafed to be arbitrator ; but if it comprehended 
 only fome interlocutory matter, he might alter it, 
 becaufe his authority ftiH continued.' 
 
 And where the fubmiffion comprehended different- 
 fubjefts of controverfy, diftinft and independent of one 
 another, his power to change a fentence pronounced 
 with refpeft to one of them, without having yet decided 
 on the others, was held to depend on the form of the 
 fubmiffion ; if by that it was provided, that he fhould, 
 pronounce fentence on all the fubjedls together, then 
 he might change his opinion given only on one, becaufe 
 he had not, in faft, yet decided the whole queftion 
 fubmitted to him ; but if it was provided that he fhould, 
 give his opinion feparately, then he could not change 
 it, becaufe this was the fame thing as if there had been, 
 feveral fubmiffions.^ 
 
 7 Dicere fententiam exiftima- 
 tnus eum, qui ea menre quid 
 pronunciar, ut fecundum id 
 difcedere eos a tota contro- 
 verfia velit. Sed fi de pluri- 
 bus rebus fit arbitrium re- 
 ceptum : nifi omnes contro- 
 verfias finierit, non videtur 
 difta fententia ; fed adhuc erit 
 a prsetore cogendus. Undo 
 videndum erit, aa muiare 
 fententiam poffit ? et alias 
 quidem eft agitatum, fii arbiter 
 juffit dari, mox vetuit : utrum 
 eo, quod juffit, an eo quod 
 vetuit, ftari debeat ? et Sibi- 
 pus quidem putavit, poflTe. 
 (Jalfius feQteptiara Magiflri 
 
 fui bene excufat : et ait, Sa- 
 binum non de ea fentiffe fi:n- 
 tentia quse arbitrium finiat, 
 fed de prsparatione caufae ; 
 ut puta f\ juffit litigatores 
 Calendis adelTe, mox Idibus 
 jubeat, nam mutare eum diem 
 pofle : caeterum, fi condemna^ 
 vit, vel abfolvit, dum arbiter 
 effe defierit, mutare fenten- 
 tiam non poflTe. Quia arbiter, 
 etfi erraverit in fententia dir 
 cenda, corrigere eam non po- 
 teft. Ff. 1.4. t.S.f, 19, 20. 
 
 8 Quid tamcn fi de pluribus 
 controverfiis fumptus eft nihil 
 fibi communibus, et de una 
 fententiam dixit; de aliis noa> 
 
 K 4
 
 THE ARBITRATOR AND UMPiRE. 
 
 Something limilar to this queftlon appears in our 
 books, though it be not flated exaftly in the fame 
 form. — If two fubmit'to the award of feveral, con- 
 cerning all manner of debts, trefpaffes, demands, and 
 difputes, provided that it be made by a certain day, 
 and the arbitrators make their award on one day with 
 refpedl to the debts, on another with refpecl to the 
 trcfpafTes, and on a third with refpeft to the other 
 things ; the parties are not bound to perform any part 
 but the firft, fay all the juftices but Moyle, and not 
 even that, fays Prifot.'' And Rolle, in abridging the 
 cafe, adopts the latter opinion.' 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 any 
 part before the reft.^ 
 
 Unless, however, it muft be undcrftood, 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 dillinftion unfupported by 
 any elTcntial difference ; for if the arbitrators have in 
 fa£l made up their minds on one point, one day, and 
 
 dum ? nonquid defiit effe ar- 
 biter ; videamus igitur an in 
 prima controverfia, poffit, mu- 
 tare fententiam de qua jam 
 dixerat ? et multum intereft, 
 de omnibus fimul ut dicat 
 fententiam, compromifTum eft, 
 an non. Nam i\ de omnibus, 
 poterit mutare : nondum enim 
 dixit fcntenuam, quod fi et 
 
 fcparatim, qusfi plura font 
 compromifTa: et idee, quan- 
 tum ad illam controverfiam 
 pertinet, arbiter effe defierat. 
 Ff. 1.4. t. 8. f. 2 1. 
 
 9 39 H. 6. 12. 
 
 • Rol. Arb.H. i. 2. 
 
 ' 39 H. 6. i2.Bro. Arb. pi, 
 29. Rol. Arb.H. 3.
 
 THE ARBITRATOR AND UMPIRE. 
 
 on another, another day, it is in effeft 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 muft be taken to have 
 effeft only from the time when the whole award is 
 iiniflied. I'he only good reafon that can be alleged 
 againft their making one part at one time, and another, 
 at another time, is, that on hearing the whole, they 
 may fee reafon to alter their opinion on fome of the 
 parts. If in faft they fee fuch reafon, they may change 
 their award on the particular parts ; and if they make 
 no alteration, it is a proof they are fatisiied with their 
 firfl determination on eacii particular point. 
 But that which bears the nearcft refem- 
 blance to this qucftion in the Roman law, M"^^'''" <>/ 
 
 , , _ . . , „ . ~ thtir Autho- 
 
 is the doctrine relative to the relervation or 
 
 rity. 
 
 authority. The objeft 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 inconiiftent 
 with that objeft : and therefore it is eftablifhed as a 
 general rule, that'fuch a refervation is void ;^ as if tho 
 arbitrators order that one of the parties fliall give fe- 
 curity to the other for the payment of a fum of money, 
 but referve to themfelvcs the power of confidering the 
 propriety of that fecurity ; or if they referve to them- 
 felves the power of explaining any doubt that may arifc 
 on the meaning of any part of the award."* So, it has 
 been icfolved, though not till after many arguments, 
 
 ? 19 E. 4. I. Rol. Arb. IT. 4. vid. Seiby \\ RuiTcI. i; Mod. 139. 
 •» i Rol. Rep. ZI4, z 13.
 
 re*- THE ARBITRATOR AND UMPIRE. 
 
 that, if they referve to themfelves the power of altering 
 the whole, or part of the award, this is clearly void.* 
 
 It was awarded, that one of the parties fliould pay 
 fo much money to the other, and that if more Ihould 
 appear to be due to the latter, and due proof made of 
 it within a month, then he fliould alfo pay that. The 
 fubmiflion 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, becaufc it is 
 not hnal. But he adds a doubt, " the ifilie being, that 
 the arbitrators made no award, and that found in favour 
 of the plaintiff; that the judgment in the Common 
 Pleas was confirmed " on the words of the fubmxiffion, 
 admitting that part to be void, becaufe it was not 
 averred, that there was any doubt about it before the 
 fubmifhon,'* What was the judgment of the Common 
 Pleas does not very diflinftly appear by this account, 
 nor what is meant by " admitting that part of the 
 award to be void :" but it is moft probably meant to 
 be expreffed, 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 Submission refpefted the privilege of cutting 
 down trees in a certain wood, and it was awarded, as 
 to part, that the defendant fliould leave fo many of 
 the trees to the plaintiff for houfebote and hedgebote : 
 as the arbitrators, on advice with counfel at the affizes. 
 
 » 2 Rol. Rep. 189, 214. Palmer no, 146. 
 f RoI.Arb. -'H. 13.
 
 THE ARBITRATOR AND UMPIRE, 
 
 I2J 
 
 fliould appoint; it was held, that this was a refervation 
 
 of authoritv, and therefore void.' 
 
 But an award, " that one of the parties fliall pay 
 to the other 105I. on a certain day; and if he do not 
 pay it then, that he Ihali pay at a future day iiol. 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 arbitrators.' 
 
 A Submission to an award contained a provifo, that 
 it fhouid be made before Michaelmas, and the arbi- 
 trators awarded, that the one fhouid pay 5I. to the 
 other for ten loads of hay, and feveral other furas for 
 other things ; and further awarded, that if he who was 
 to pay fliould difprovc the receipt of the commodities, 
 or Ihouid give better proof of the payment of fome 
 fums of money, before the arbitrators, or one of them, 
 before the faid feaft of Michaelmas ; then fo much as 
 fnould be fo proved, fnould not be paid at that feaft.* 
 In two reports, both apparently of this cafe, it is 
 agreed, that this is a refervation of authority ; but they 
 do not agree in ftating the cfFeft 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 de- 
 termined." But Hobart fays, that the court took time 
 to advife, " whether this refervation Ihould fruftrate all 
 reaching to the award, or whether the award fliould 
 ftand, and the refervation be void." 
 
 7 Thinnc v. Rigby. Cro. 
 Jac. 315. 
 
 * Royfton V. Ryall. a Jac. 
 Rol. Arb. H. S. 
 
 9 Beck with v. Warley. i( 
 Jac. Rol. Arb. H. 9. Warley 
 V. Beckwith. Hob. 21S.
 
 124 THE ARBITRATOR A.VD UMPIRE. 
 
 If it be a rule in the coniliu£lion of awards, that 
 they fhall be certain and definite, it would feem in this 
 cafe, that the refervation rendered the whole award 
 void, becaufe it renders it aUogether uncertain ; and 
 this Is confonant to what is laid down in another book,^ 
 as a general diftinftion, " that where the arbitrator re- 
 fcrves a power over any thing fubmitted, the award is 
 not iinal, and therefore it is void ; but where the thing 
 over which he rcfcrves the power is not within the 
 fubmiffion, the power is void, and the award, as far as 
 that extends, void aifo ; but in the thing fubmitted, the 
 award is iinal and peremptory." 
 
 The following feems an e:jample of the application 
 of tlie firft part of this diflin£tion : a queftion, relative 
 to certain currants, 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 cur- 
 rants were delivered to the plaintiff, then the arbi- 
 trators would make a further award within fourteen 
 days after, if they could agree ; otherwife, that J. S. as 
 i;mpire, fliould conclude it in feven days after ; that 
 the plaintiff and defendant fhould Hand 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, fhould fhew 
 no fuch proof, it was, in that cafe, awarded, tluit the 
 plaintiff fhould not pay for the currants, but fliould be 
 free from any further claim on that account ; and it 
 was further awarded, that the defendant fhould pay to 
 the phiintifF 19I. 123. before the firil day of January 
 
 ' Palmer, no, 146.
 
 TnE BRBITRAtOR AND UMPIKB. 
 
 125 
 
 after, if no award fhould be made before that time for 
 the currants. — This award was held to be altogether 
 void, for that the firfl: part was void, being partly a rc- 
 fcrvation, and partly a delegation of authority ; and if 
 an award had been made, according to the power re- 
 ferved or delegated, it was not intended that the de- 
 fendant fhould pay to the plaintiff the 19!. 12s. and the 
 lat'cr claufc depending on the iirfl, which was void, 
 mufl alfo be void.^ 
 
 A DISTINCTION is alfo made between the refer- 
 vation of a further min'iJJerial aft, and oi vl judicial one ; 
 the former, it is faid, may be referved, the latter can- 
 not; all the judicial authority of the arbitrators deter- 
 mines with the time limitted for them to make their 
 award ; but they may referve a further mlnijlerial aft to 
 be done either by themfelves ov by a ftranger, at any 
 fubfequent point. — However well founded this dif- 
 tinftion may be, it is not always very fuccefsfuljy 
 exemplified by the cafes in the books. It is faid, if 
 one of the parties afiert, that he has a receipt 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 difcharged of that debt ; but if he cannot 
 produce it by that day, then he fhall pay the money ; " 
 for that this is only the rcfervation of a miniftcrial aft. 
 But, with deference to the authority of the book, it is 
 neither the refervation of a minifterial nor of a judicial 
 aft, but an award, of which the final determination 
 depends on a future contingency, and therefore ths 
 
 » Brown v. Dalton. M. 9 Car. B. R. Rol. Atb. H. la.
 
 THE ARBITRATOR AND UMPIRE. 
 
 queftion, whether it be good or bad, depends on 
 another principle, which requires, that all av/ards 
 fhould be final and certain. — On the fame diflinftion 
 it is endeavoured to fupport the authority of a cafe, 
 cited from the year books,^ but which is not to be 
 found there. This was the cafe of a uibmiffion of a 
 difpute concerning a horfe ; one of the parties infilled, 
 before the arbitrator, 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 fiiould pay to the other 20I. if 
 lol. then only lol. and this, it is faid, was held to be 
 a good award, as being only the refervation of a minif- 
 terial adt ; had there been other fubjefts of difpute, 
 and the arbitrator, in order to fatisfy his own mind 
 about the amount of damages to be given, had referred 
 to J. D. to fet a value on the horfe, this might have 
 been confidered only as a miniflerial aft ; but as the 
 cafe is here fi:ated, the only queftion referred to his 
 decifion appears to have been, to fettle the value of 
 the horfe, and by referring to the judgment of J. D. he 
 delegated his whole authority, which he had not power 
 to do.'^ 
 
 Neither have the courts been always unanimous in 
 their opinion of what fhould be confidered as a judicial, 
 and what as a miniflerial a6t. — An umpire ordered that 
 the defendant fhould deliver to the plaintiff certain 
 goods particularly fpccified ; and that the plaintiiF 
 fhould deliver to the defendant certain other goods alfo 
 by name : but that if any of the goods, on either fide 
 
 3 30 H. 6. tit. Arbit. 
 * Vid. for thefe two cafes, 2 Rol. Rep. 189, 214.
 
 THE ARBITRATOR AND UMPIRE. 
 
 rif 
 
 awarded to be delivered up, fhould be loft or miflaid, 
 then the party, on whofe fide the deficiency fhould be 
 found, fliould 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 minifteral aft. Trevor, 
 Chief Juftice, and Blencow, Juftice, were of opinion, 
 that it was the former ; Powell, Juftice, that it was 
 the latter.^ If the valuation of the horfe, in the laft 
 cafe, could be confidered as a minifterial aft, furely 
 this appraifement ought to have been fo too. 
 
 A Submission was, of difputes concerning certain 
 ^and, and it was awarded, that one of the parties 
 liiould 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 minif- 
 terial aft, to afcertain the quantity of the land.^ 
 
 The fubmiflion by the litigating parties, j^,j,^^,;,„ ,^ 
 to the decifion of an individual, arifes from //wv ^«/>55. 
 the confidence which they repofe in his in- '^"J- 
 tegrity and fkill, and is merely perfonal to him ; it is 
 therefore inconfiftent with the implied intention of the 
 fubmiflion, that the arbitrators or umpire fliould dele- 
 gate 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 
 eftablifhed as a gci-fral rule, both in the civil and the 
 Englifh law, that a delegation of authority is void.'' 
 
 * Cockfon V. Ogle. 13 W. 
 3. C.B. L tw. 550. 
 
 ^Huaterv.Bennifon. Hardr. 
 43- 
 
 7 Puto vere non committi, 
 fi dicat ad judicem de hoc eun- 
 duTTiy I'elfe i-el alium : infe vel 
 'H alium compromittcndum. Nam
 
 tiS 
 
 THE ARBITRATOk A WD UMPIRE. 
 
 Therefore, if inftead of deciding the matters fubmitted 
 to him, the arbitrator dircft that the parties fhall fland 
 to the award of a third perfon, this is void.^ So, if he 
 award, that the defendant fliall account before fuch 
 auditors as the plaintiff Ihall affign, and that if he be 
 found in arrears, he Ihall pay the fum found, and that 
 each fliall then go quit againft the other." And the 
 fame rule prevails where the delegation is necefliirily 
 implied, as where it is expreffed ; and therefore if the 
 arbitrators leave the matter incomplete, the dcfeS: 
 cannot be fuplied ; as if they award, that one of the 
 parties fhall give a bond to the other without mention- 
 ing in what fum, the award is nugatory, becaufe neither 
 the plaintiff nor the defendant can determine the fum/ 
 
 So, where it was awarded, as to part, that the de- 
 fendant, at fuch a time and place as the plaintiff fhould 
 appoint, lliould make a public confeffion of his offence 
 for the battery of the plaintiff: this was held to be 
 void, becaufe the arbitrator ought to have determined 
 the time and place, and not to have left their appoint- 
 ment to another, more efpecially to the plaintiff, who 
 
 et Julianus impune non pareri, 
 fi jubeat ad alium arhitrum ire, 
 ne finis non ^\x. — ne propagen- 
 tur arbitria, aut in alios intcr- 
 dum inimicos ageniium iranf- 
 ferantur, fua iententifi finem 
 coniroverfiiE imponcre cum 
 oportet : non autem finiri ton- 
 troverfiam, cum aut diffcratur 
 aibitiium aut in alium tranf- 
 feratur ; — idque delegari non 
 pofTe nifi ad hoc compromif- 
 luni fit, ut arbiter lldtucrct, 
 
 cujus arbitratu fatifdaretur. 
 Ff. 1. 4. t. 8. f. 32. n. 16. In 
 compromilFis arbitrium per- 
 fonae infertum, perfonam non 
 egreditur. S. 45. 
 
 8 M. 8 Ed. 4. 27 Ed. 3. 
 20 Brooke 44. b, Jenk. 129 
 H.37 El.inter Lower et Lower 
 Rol. Alb. B. 20 H. II. 
 
 930H.6. Fhbt. 52. b.RoI. 
 Arb. L 9. 
 
 ' Samon's cafe. Cro. EI. 
 432. 560. 7?-
 
 The arbitrator and UMPiRfi. 
 
 iz^ 
 
 thereby became judge in his own caufe ; for though in 
 general, time and place are but circumftances, yet in 
 luch a fatisfaiStion as this, they make the moft con- 
 liderable part." 
 
 But where arbitrators award the fubftance of the 
 thing, and ]eave only the form to be fettled by another, 
 or tlie amount of a funi to be calculated, this is not 
 fuch a delegation of their authority as to vitiate the 
 award ; for the fame diftindion between a judicial and 
 a minifterial a6l prevails with refped to the delegation 
 as the refervation of authority. — Thus, an award, " that 
 one fliall pay lol. to the other, and, for fecurity of 
 payment, ihall be bound in an obligation, by the advice 
 ofcounfel," is good, for it is incident to the award, 
 that counfel fhould make the payment fure.^ So, if it 
 be awarded, that on payment of lol. by the one, the 
 other fliall give a general releafe, as fully and bene- 
 ficially as counfel Ihall advife, this is good ; for it gives 
 no power to the counfel to do a judicial aft ; their 
 authority is only minifterial. The arbitrator has di- 
 refted 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 effeft:.'^ So, if in order to decide 
 the title to certain land between the parties, the arbi- 
 trators award, that an aftion lliould be conceived by 
 the advice of certain counfel ; for this is not referring 
 the matter to their judgment on the fubftance, but 
 
 * GIoverv.Barric. loW. 3. 
 C. B. Lutw. 1597. iSalk.yi. 
 
 ^ 19 Ed. 4. I Rol. Arb. 
 H. 5. 
 
 4 Tr. 1650, Cater V. Startnt 
 on demurrer. Rol. Atb.H.7. 
 Style 217, 218.
 
 i?o 
 
 THE ARBITRATOR AND UMPIRE. 
 
 on the form.^ But a diftinftion in thefe cafes feems 
 formerly to have been made between fuch a reference 
 to counfel, and to a ftranger. When made to the 
 latter, it was faid to be the delegation of a judicial aft, 
 and therefore void ;^ but this feems to be a diflindion 
 without any foundation.' 
 
 On this point there is fome uncertainty in the Roman 
 law ; fome holding, that a reference to another to fettle 
 the form which Ihould give effeft to the fubllance of 
 the award, was generally valid ; while others held, that 
 it was void, unlefs it was made in confequence of a 
 power given for that purpofe in the fubmiffion.^ 
 
 That arbitrators, where they award the fubftance 
 of the thing to be done, may refer it to another to 
 fettle the manner in which it fhall be put in execution, 
 is now fully fettled by a determination of Lord Hard- 
 vvicke's. 
 
 By the confent of plaintiff and defendant in feveral 
 caufes, depending in Chancery, refpe£ling partnerfhip 
 tranfaftions, an order was made, that all matters in 
 difference between them, relating to their joint dealings, 
 or otherwife, Ihould be referred to arbitration. The. 
 
 s 8 Ed. 4. 1 1, a, Brooke 37. 
 
 ^ 19 Ed. 4. I. Rol. Arb. 
 H. 6. Emery v. Emery. Cro. 
 El. 726. 
 
 ' Jenk. 128. 
 
 * Quod fi hoc modo dixerir, 
 ■ut arbitrio Publii Msvii fun- 
 dus traderetur, aut fatifdatio 
 detur: puto parendum eJTe 
 fentetitiae. Idem Pedius pro- 
 bat — finem controverfise im» 
 
 ponere oportet ; non autera 
 fiairi controverfiam cum arbi- 
 trium in alium transferatur, 
 parleraque fententise effe, 
 quemadmodum fatifdetur, 
 quibus fidcjufiToribus ; idque 
 dclcgari non potTc, nifi ad hoc 
 compromilVum fit, ut arbiter 
 ftatueret, cujus arbitratu fatif- 
 daretur. Ff. I. 4- t. 8. f. IZ, 
 n. 16,
 
 THE ARBITRATOR AND UMPIRE. 13I 
 
 arbitrators made an award, and the plaintiff iilcd a bill 
 againil the arbitrators and the defendant, to have an 
 infpeftion 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 partnerfhip 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 things, contained the following 
 orders: Having given, in a fchedule to their award, 
 an account of feveral debts and effefts owing to the 
 partnerfhip, to the amount of 5094I. 14s. 2d. they 
 awarded, that thefe debts and fccurities fliould belong 
 in moieties to the plaintiff and defendant, and, that 
 they might be the better colledled, they recommended 
 to the parties to confent, that an order fhould be made 
 by the court, for the appointment of a proper perfon, 
 converfant in mercantile affairs, to coUeft in the fame 
 for their joint ufe ; and, in cafe either of the parties 
 Ihould refufe their confent, the arbitrators made it their 
 humble requefl to the court to order the fame, as being 
 the moft probable means of preventing future litigations 
 between the parties. 
 
 They aAvarded and declared that, exclufively of the 
 above matters, there was then due, from the plaintiff 
 to the defendant, the fum of 9194I. 19s. 6d. on a fair 
 balance, which they awarded to be paid by inftalments 
 pf 2000I. at a time, with intereft at 4!. per cent. 
 
 And laftly they awarded that, on payment of the 
 
 9194I. 19s. 6d. by the plaintiff, his executors, &.c. to 
 
 the defendant, his executors, &c. they, the faid plaintiff, 
 
 and defendant, their refpeftive executors and adn;ii- 
 
 L 2,
 
 l^j THE ARBITRATOR AND UMPIRE. 
 
 niftrators, fhould mutually execute and deliver to each 
 other refpeclively a good and fufficient releafe and dil- 
 char"-e, by which the faid parties fhould refpeftively 
 releafe to each other all matters in difference between 
 them, relating to their joint dealings; and that the form 
 of the releafe fliould be previoufly fettled by one of the 
 mailers of the court, in cafe the court fhould be pleafed 
 to give diredions for that purpofe. 
 
 1 o the firft part of this award, it was objefted, that 
 the recommendation of the arbitrators to the parties to 
 confent, that an order fliould be made by the court for 
 the appointment of a proper pcrfon to colled the debts 
 due to the partnerfhip, was a deputation to a third 
 perfon to do an a£l which ought to have been done by 
 themfelves, and that therefore they had not properly 
 exercifed their own judgment. To the fecond part it 
 was objefted, that the arbitrators ought to have fettled 
 the releafe themfelves, and not to have left it to be 
 done by a mailer under the order of the court. 
 
 With refpeft to the firfl objeflion, Lord Hardwicke 
 faid, he had entertained great doubts ; but as tlie juflicc 
 of the determination 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 
 objedions of this kind, h had been fliid, that the 
 recommendation to the parties by the arbitrators, to 
 confent that an order fhould be made by the court for 
 the appointment of a receiver, and m cafe of the 
 parties rcfufal, the requefl to the court to make fuch 
 an order, was a delegation of their power. If it were
 
 THE AR-BITRATOR AND ITMPIRE. 
 
 »33 
 
 indeed a delegation of their power, the award was void 
 for the whole ; but it had been anfwered, that what 
 tlie arbitrators had done in this refpeft was, at moft, 
 but furpkifage ; yet his Lordfliip obferved,if it affected 
 the jullicc of the cafe, with rcfpe£l to the things fub- 
 mitted, it would not be merely furplufage. But it 
 feemed to hiai, that this recommendation was not 
 compulfory on the parties, but left them at large ; and 
 if they did not approve of the fcheme, it was furplufage 
 only, and not a delegation of their power. 
 
 The true queftion v/as, whether the award, that the 
 debts due to the partnerfliip, when received, fliould be 
 divided in moieties between the parties, was fufficient ? 
 and he was of opinion it was, for the arbitrators had 
 no controul over the debtors themfelves, Vv^ho might, if 
 they pleafed, pay the whole to one of the partners. 
 • To lay it down as a general rule, he faid, that arbi- 
 trators muft particulary point out the method in which 
 their award fhould be carried into execution, would be 
 too nice, and fuch a rale would overturn a great num- 
 ber 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 aftion, or bill, to 
 have the award carried into execution, and then no 
 award could ever be effeftual to linilli difputes between 
 •contending parties. 
 
 In the prefent cafe, lie could think of no other 
 method the arbitrators could have purfued : it had 
 indeed been faid, that they might have diefted the 
 parties to give fuch perfon, as they fliould appoint, a 
 letter of attorney to get in the debts ; but this would 
 not have been advifablc, becaufe if the perfon fo de^ 
 
 ^ 3
 
 134- THE ARBITRATOR AKD UMPrKE. 
 
 puted had proved infolvent, it would have been doubtful 
 whether the arbitrators themfelves would not have been 
 liable. 
 
 As to the hfl objeftion, he fald, the award had fully 
 and completely defcribcd what the parties fliould do, 
 with refpeft to giving releafes, and then followed the 
 reference to the mailer to fettle the form. If the award 
 had faid, that the releafe fliould be fettled by the court 
 firft, ar,d then the arbitrators would conlider whether 
 they fliould order a releafe between the parties, this 
 would have been very different, and he Ihould 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 direftions to a 
 mafter to fettle the form ; and it would be very ex- 
 traordinary, when he thought the arbitrators had done 
 all that was neceffary, and when there was no occalion 
 for the court to interfere, yet, becaufe they had faid 
 they left it to the court, therefore he nmft interpofe 
 merely for the fake of making that a bad award, which, 
 without his interpofition, would have been good.^ 
 
 After the introduclion of references at nlji prius^ 
 there could be no quellion but the arbitrator had a 
 jurifdiftion over the cofts of the aftion, as well as over 
 the fubjcft of the aftion itfelf, unlefs it was provided 
 by the form of the fubmiffion that the cofts fliould 
 abide the event, or that each party fhould pay his own 
 cofts ; or unlefs there was fome other reftridion with 
 refpeft to the cofts: becaufe unlefs there was fomc 
 Tcftridtion, the cofts accruing before the reference was 
 
 9 Lingood v. Eade. a Atk. 501. (515)'
 
 THE ARBITRATOR AND UMPIRE. 135 
 
 within the fubmiffion ; and in this cafe, if the arbitrator 
 incorporate the colls with the damages, the court 
 cannot interfere ; neither can they interfere when they 
 are given feparately, unlefs they are exceffive, and then 
 only by conlidering their excefs as an evidence of 
 undue praftice/ 
 
 It afterwards became a queftion, however, whether 
 the arbitrator, inftead of afcertaining the cofts himfelf, 
 could refer it to the proper officer of the court to tax 
 the cofts ; and it was fettled, on debate, that he might, 
 the courts comparing awards to judgments at law, to 
 which, though certainty be requilite, yet the officers 
 always tax the cofts ; and therefore, where the arbi- 
 trator gives fuch direftions, this does not defeat the 
 award.^ Where the arbitrator awards cofts of fuit to 
 be taxed, without faying by whom, it mull be under- 
 Hood that they are to be taxed by the proper officer of 
 the court, that being the fettled mode of taxing colls 
 by the law of the land.^ If he award limply that one 
 of the parties Ihall pay colls, without fpecifying the 
 fum, or faying " to be taxed," the court will fupply it, 
 by ordering them to be taxed by the proper officer.* 
 But if he award coHs of the fuit, and of the reference, 
 the court will order only the colls of fuit to be taxed, 
 becaufe the officer cannot judge of the colls of the 
 reference.^ 
 
 ' Shephard V. Brand. B.R. 
 H. 54. 
 
 * D. per Ld.Hardwicke. 2 
 Atk. 519. (504). Winter v. 
 Garlick. i Salk. 75. 6 Mod. 
 195- a Keb. sji. Nutt v. 
 
 Long. B.R. H. i8i. 
 
 3 Barnes, 56.vid.i Sid. 358. 
 
 4 Dudley v.Netdefcrd. Scr. 
 737. Thorn linlon v. Arri&in. 
 Comyns. 330. 
 
 5 Barnes, 58, 
 
 L 4
 
 156 THE ARBITRATOR AND UMPIRE. 
 
 But the arbitrator cannot refer the fettlcment of 
 cofts to any perfon who is not the proper officer of the 
 eourt, bccaufe the coarl; have no controul over any 
 other perfon. In an a6>ion on an arbitration bond, the 
 plaintiff, in his replication, fet forth an award, " which, 
 among other things, ordered, that the defendant fliould 
 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 niafters in Chancery," and averred, that the 
 faid 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 affigned 
 a breach in the non-payment of that fum. To this the 
 defendant demurred, and the demurrer was held good; 
 for though fcveral 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 fame thing ; 
 that this was reafonable enough, bccaufe the reference 
 to the proper officer made an end of the matter, as he 
 was fubjeft to the authority of the court, who, if he 
 erred, could amend his errors furamarily ; but they 
 had no controul over a ftranger. And it having been 
 argued, that this taxation was a minifterial, not a ju- 
 dicial a£l, and that arbitrators might delegate a minify 
 terial a£l ; it was anfwered, that this was not merely a 
 minifterial aft, and appeared not to be fo, from the 
 terms in which the award was penned ; for the referees 
 were direfted to have regard to fuch cofts as the mafter 
 would allow, which was an aft of judgment: reference 
 to an officer was merely minifterial, to a ftranger 
 judicial.^ 
 
 * Kutt V. Long. B. R. II. iSi. Str. 1025.
 
 THE ARBITRATOR AND UMPIRE. 
 
 >37 
 
 Neither can the arbitrator award a fum of money 
 h\ certain, and alfo the cofts of fuit depending in an 
 inferior court, becauie, favs the book, there is no 
 mode of afcertaining them ; in this cafe, therefore, he 
 muil necelfarily afcertain them himfeif.^ 
 
 If, in any point, the arbitrators order that the parties 
 fhall {land to the award already made on that fiibje£t 
 by former arbitrators, this is not fuch a delegation as to 
 defeat the award ; for it only exprefies their approbation 
 of what others have done, and has the fame effe^l as if 
 they had repeated the former award as from them- 
 ielves, in fo many words.*^ 
 
 So, an award, *' that one before made by another 
 arbitrator fhall {land in all other refpedls, except, that 
 whereas in the former award one was to pay loh at 
 Michaelmas, he {liall have 'till Chri{lmas to pay it,'* 
 IS good ; for this is the fame thing as if, without re- 
 ferring to the former award, they had repeated it witli 
 this alteration.'' 
 
 ^Vhen by the fubmiihon a time is limited 
 ^t W.at time f^^. ^laking the award, it feems hardly ne- 
 
 i/iey may make ^_, . ^ 111 1 -i-.n 
 
 . ceiiary that it Ihould have been judicially 
 
 decided that it might be made on the day 
 of the fubmiffion, yet a decifion to that purpofe is 
 gravely reported.' It has alfo been found neccifarv 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 tliey do it 
 before midnight.^ 
 
 7 6 Mo J. 195. Salk.75. 
 ' 39 H. 6. 1 1, a. per Prifof. 
 9 Semb. fed quaere. Car. 
 Rol. Arb. H. 12. Tr. 3 Jac. 
 
 dubitatur. 
 
 ' Latch. 14. 
 
 2 Withers v. Drew. 
 EI. 676.
 
 «5» 
 
 THE ARBITRATOR AND UMPIRE. 
 
 Where it is provided in the fubmiiTion that the 
 award fhall be made on or before a particular day, and 
 the time is afterwards enlarged by confent until a fub- 
 fequcnt day, the award may be made on the latter. 
 
 Thus where the provifo was, " that the award Ihould 
 be made on or before the firft day of Michaelmas term,'* 
 and the time was enlarged on motion by confent " Will 
 the iirft day of Hilary term ;" the award was made on. 
 the firft day of Hilary term, and an application being 
 made to fet it afidc, on the ground of its having been 
 made out of time, the Lord Chancellor^ faid he thought 
 it impoiTiblc to impeach it on this foundation ; that this 
 was an enlargement of the time in fatu quo, and mufl, 
 therefore, include the firft day of Hilary term, which, it 
 was manifellly meant, fliould be fuhftituted inftead of 
 the firft day of Michaelmas term -, and being fatislied 
 with the award on the circumftances of the cafe, he 
 ordered it to ftand.* 
 
 Where a queflion arifes as to the extent of the 
 matters atlually fubmitted to the decifion of the arbi- 
 trator, the latter may be admitted as a witnefs to prove 
 what matters were or were not laid before him.^ 
 
 3 Thurlow. 
 
 4 Knox V. Simmonds, 3 
 Brown. Ch. Rep. 358. 
 
 ^ Vid. Ravee v. Farmer, 4> 
 Term Rep. 146.
 
 THE AWARD OR L'MPrRAGE. 
 
 i^9 
 
 CHAP. V. 
 
 T/ie Award or Umpirage. 
 
 EVERY award in writing, in order to be enforced 
 by law, muft be on a fuitable flarap ; and the 
 Court of King's Bench has lately decided, that if it be 
 under feal it muft be on a c/eed ftamp, the fealing, as 
 they held, conftituting it a deed.' But if it fhould 
 happen to be on an improper ftamp, the court will not 
 on that account fet it allde, but leave the party in 
 whofe favour it is made at hberty to procure the pro- 
 per ftamp to it, by paying the penalty.^ 
 
 It has been laid down as a general rule, that the 
 arbitrator is a judge, from whofe fentence there is no 
 appeal, and that no other tribunal can inquire into the 
 equity of his decifton.^ This is equally the general 
 dodrine of the civil and the Engliih law ; but in both 
 
 ' I do not find ihe cafe re- 
 ported, nor do I recolleft the 
 name of it. 
 
 ' Prefton v. Eaflwood, 7 
 Term Rep. 95. 
 
 3 Arbitrorum genera funt 
 duo*, unum ejufmodi, ut five 
 aequum fit five iniquum, pa- 
 rere debeamus ; quod obfer- 
 
 vatur cum ex compromiffb ad 
 arbitratum itum eft. Ff. 1. 17. 
 t. 2. f. 76, 77, ante page 73. 
 — Qualem autem fertentiam. 
 dicat arbiter, ad Prarorem 
 non pertinere, Labeo ait dum- 
 modo dicat quod ipfi vidcttir. 
 Ff.1.4. t. 8. f. 19.
 
 %40 
 
 THE AWARD OR UMPIRAGE. 
 
 it is guarded with particular reftridions, derived from 
 the nature of the authority conferred on the arbitrators, 
 and the implied engagement under which the con- 
 tending parties bind themfelves by their fubmilTion.'* — 
 'llic chief of thofe reflriftions is that which requires 
 that the award fhould be conliftent with the terms of 
 the fubmiihon, the whole authority of the arbitrators 
 being derived from thence.' 
 
 The principal diftinftion in the Roman 
 law is that between what is called a full 
 and what is called an incomplete fubmillion. 
 A full fubmifhon was that which compre- 
 hended all kinds of controverfy, and every 
 fubjeft of difpute between the parties ; an incomplete 
 fubmiffion extended only to fome particular matter ; 
 yet, if the meaning of the parties v.^as to confine the 
 authority of the arbitrator to one fubje£l, though by 
 inadvertency the fubmifiion was full, the intention of 
 the parties prevailed over the ftrift form of the fub- 
 mifiion, and they were not concluded, by a general 
 award, from fuing one another, on all thofe caufes of 
 adion which were not intended to be fubmitted.° It 
 
 The j'l'ward 
 inuft be ac- 
 cording to 
 ihc Suh- 
 mi/Tion, 
 
 ^ Vid. ante page 4, Quaefi- 
 tum eft de fententia dicenda ? 
 et diftum, non quamlibei: licet 
 de quibiifdam variatum fit. 
 Ff. 1.4., t. 8. f. 32. n. 16. 
 
 ^ De officio Arbitri tra<5lanti- 
 bus fciendum eft, omnem 
 traftafum ex ipfocompromiftb 
 fumendum : nee enim aliud 
 ijli licebit, quam quod ibi, ut 
 efficere poffit, cautum eft. — 
 JMon ergo quodlibtt ftatuere 
 
 arbiter poterit, nee in re qua- 
 libet; nifi de qua re compro- 
 mifTum eft ; et t^uatenus c'om- 
 promiiTum eft. Ff. 1.4.1. 8. 
 f. 32. n. 15. 
 
 ^ Plenum compromifTuni 
 appellatur, quod de rebus con- 
 trcverjiifve co:vpofiium eft : nam 
 ad omnes controverfias perti- 
 net. Sed fi forte de una re 
 fit difputatio, licet pleno com* 
 promiffo aftum fit, tamen ex
 
 THE AWARD OR UMPIRAGE. 
 
 '4J. 
 
 was alfo a rule, that though the fubmilfion was full, 
 yet it comprehended only thofe drfputes which exillcd 
 at the time of the fubmiffion, and that the arbitrator 
 could not decide on any thing which had fubfequently 
 arifen.' 
 
 The fame diftinftion between a full and a particular 
 fubmifTjon is alfo recognized in the Engliih law ; but 
 that is far from being alone fufficient to explain the 
 great multiplicity of cafes that occur : it will therefore 
 be neceflary to compare the terms of the award with 
 • that of the fubmiffion under which it is made, arrang- 
 ing the cafes according to the particular branches of 
 the general rule to which they immediately refer. 
 
 The firft branch of the general 
 rule is, that the award muft not ex- ^"f' "" '^^'""^ '" ""^ 
 
 , Matter beyond the SiiL- 
 
 tend to any matter not compre- 
 
 ^ ^ vi:JJion. 
 
 bended within the fubmiffion. 
 
 Thus, if the fubmiffion be confined to a /)-'7r//V«/ar 
 fubjeft of difpute, while there are other things in con- 
 troverfy between the parties, an award which extends 
 to any of thefe other things is void, as far as it refpe6ls 
 them.^ 
 
 By a fubmiffion of all«^/i;«i perfonal, the arbitrators 
 have no power to make an award of any thing in which 
 the parties have only a caufc of aftion. Thus, in cafe 
 
 caeteris caufis afticmes fuper- 
 efTe : id enim venit in com- 
 promiffum, de quo aftum eft 
 ut veniret, Scd eft tutius fi 
 quis dc ccrta re compramif- 
 fum fafturus fit, de ea fola 
 cxprimi re in compromifib. 
 Ff. 1.4. t.8. f. 2 1. n. 6< 
 
 7 De his rebus et rationibus 
 et controverfiis judicare arbi- 
 ter poteft, qua ab initio fuif- 
 fent inter eos, qui compro- 
 mifcrunt, non qus puHca 
 fupervenerunt. Ff. I. 4. t. 3. 
 f. 46. 
 
 ? Vid. 2 Mod. 309.
 
 t^; THE AWARD OH UMPIRAGE. 
 
 of fuch a fubmiffion, an award " that one of the par- 
 ties fhall convey E, the fcrvant of the other, to Lon- 
 don," is void, unlefs it appear that an adtion was de- 
 pending relative to this fervant.'' 
 
 But had the fubmilTion been of all aftions and com- 
 plaints, this would have comprehended caufes of aftion ; 
 and the award, with refpett to the conveyance of the 
 fervant, would have been within it. 
 
 If the fubmiffion be of all aftions perfonal, fuits and 
 complaints, the word " perfonal" extends to fuits and 
 complaints, and confequently an award of all aftions 
 real is beyond the fubmiffion ; but if it be of all adions 
 perfonal, and fuits and complaints, the word perfonal 
 does not extend to the latter pait, and an award on 
 fuch a fubmiffion may comprehend adtions real. 
 
 Yet, where the fubmiffion is only of things real, 
 the av/ard may order a fum of money to be given in 
 fatisfaftion. The fubmiffion was concerning the right 
 and poffieffion of a manor ; it was awarded, that one 
 of the parties fhouid releafe his right in the manor to 
 the other, and that the other fhouid pay him tv/enty 
 pounds : it was held, that though the fubmiffion was 
 only of things real, yet the award of the twenty pounds 
 was good.- 
 
 It feems alfo to have been the prevailing opinion in 
 the fame cafe, that where the fubmiffion is of things 
 perfonal, yet the arbitrator might award fomcthing in 
 the realty in fatisfadion ; this may perhaps be well 
 
 9 36 H. 6. II b. Bro. Arb. 
 pi. 27, 50. 
 I 9 Ed. 4. 44. a. Fhbt. 51. a. 
 
 Rol. Arb. D. 6. 7, 
 ^ Id. ibid.
 
 THE AWARD OR UMPIRAGE. i^j 
 
 founded, where the party to whom the thing in the 
 realty is awarded in fatisfuftion is ordered to give up 
 fome perfonal demand, to which otherwife he appears 
 to be intitled ; 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 awzid of money in 
 fatisfaftion of any injury is good, bccaufe money is the 
 univerfal flandard by which damages are eftimated and 
 property valued : but it feems to be altogether un- 
 reafonablc to permit an arbitrator, to order, without 
 reflriflion, the transfer of any property, or the per- 
 formance of any particular ad, unlefs that article of 
 property, or that particular a£l, have an immediate 
 connexion with the fubjeft of difputc. Thus, where; 
 the fubmlffion relates merely to a trefpafs, or to a 
 claim of any fpecific kind, it would be highly unrea- 
 fonable to leave it to the caprice of an arbitrator to 
 order one of the parties to deliver to the other a par- 
 ticular horfe, or a particular article of drefs, or to re- 
 leafe his right in a certain piece of land, which were 
 feverally unconnedled with the difpute fubmitted to 
 him.' 
 
 There are, however, one or two cafes v/hich feem 
 to convey an idea that, in modern times, an award of 
 fomething elfe than money, in fatisfadlion of a tref- 
 pafs, would be confidered as valid. 
 
 I'o an adion of trefpafs, the defendant pleaded a 
 fubmiffion by himfelf and the plaintiif to the award of 
 J. S. who ordered that the defendant Hiould provide ii 
 
 s Vid, 9 Ed.4. 44« Rol Arb.B. ji, £)i(St.C(}nt.per Moyle,
 
 *4+ TItE AWARD OR UMPIRAGE'. 
 
 couple of fowls, at his m infion-houfe in Old Bedlam, 
 to be eaten by the plaintiff and his friends, on Wed- 
 ncfday or Thurfday in a certain week, in fatisfadion 
 of a trcfpafs ; he averred that he had, on Thurfday in 
 the week appointed, provided tv^o fowls, but that the 
 
 plaintiff and his friends had not come to cat them. 
 
 No objcftion was made to this aw^ard, bccaufc it or- 
 dered fomcthing to be done which had no relation to 
 the fubjeft of the fubmiffion ; but it was objefted, that 
 being an award of a collateral thing, it could not be a 
 good bar without execution ; the word " collateral" 
 being here ufed in contradiftinftion to the payment of 
 money; and that therefore the defendant ought to 
 have given notice to the plaintiff on which of the days, 
 and at what hour he would provide the fowls. But the 
 court thinking the matter of too ludicrous a nature to 
 defcrve a folemn decifion gave no judgment, but re- 
 commended that it fhould be compromifed.-* 
 
 In another cafe it is faid, that, by the better opinion, 
 an award, " that the defendant fliould make a fub-* 
 miffion before the mayor of a town, for an injury done 
 to the plaintiff," is good ; but this was not the point 
 direftly in queilion ; for the arbitrator had awarded, 
 that the defendant fliould make this fubmiffion at any 
 time and place, at the difcrction of the plaintiff, which 
 the court held to be clearly bad, becaufe it made the 
 plaintiff judge of the fatisfaftion to be given to himfclf; 
 time and place in fuch a cafe making a principal cir- 
 cumflance.^ 
 
 * Purflow V. Baily. 6. Mod. zai. 2 Ld. Raym. 1039. * Salk. 7G, 
 * I Sid. 12.
 
 THE AWARD OR UMPIRAGE. 
 
 H$ 
 
 Notwithstanding the conclufion which might he 
 drawn from thcfe cafes, it is conceived, that an award 
 of any thing, not conncftcd with the fubjeft of difpute, 
 is not binding on the parties. 
 
 If tw^o fubmit to the award of a third perfon, all 
 demands between them, without more ; the word " de- 
 mand " implies all matters between them, concerning 
 the lands of both parlies, which are the fubjeft of 
 variance.^ 
 
 If the fubmiffion be, " of all caufes of aftion, fuits, 
 debts, reckonings, accounts, funis of money, claims, 
 and demands;" an award " to releafe all bonds, fpe- 
 cialties, judgntents, executions, and extents," is within 
 the fubmiffion ; fr - as all debts are fubmitted, the ar- 
 bitrators have power to make their award concerning 
 the debts themfelves, and of courfe to award a releafe 
 of every thing by which they are fecurcd.^ 
 
 Where the fubmiffion is " of all debts, trefpafTes, 
 and injuries," an award " to releafe all aftions, debts, 
 duties, and demands," does not exceed the fubmiffion ; 
 for the word " injuries" is fufficiently comprchenfive 
 to imply all *' demands."^ 
 
 If the fubmiffion be, <' of the right and title of a 
 m.anor, and other lands and tenements, and of all 
 manner of aftions and demands," an award, " that one 
 of the parties Ihall deliver to the other a deed of an- 
 nuity, by which forty fhillings a year were granted to 
 the wife of the former, to be taken out of the manor," 
 
 * Keihvay 99. vij. i. Ld. Raym. 115 ace. 
 ' Roberts V. Marrlot, z Saund. 190. « 3 Buldr. 312 
 
 M
 
 uS 
 
 THE AWARD OR UMPIRAGE. 
 
 is binding on tbe hufband, becaufe, it is faid, he is in- 
 titled to it in right of his wife.^ 
 
 If the fubmiffion be, " of all fuits and anions de-- 
 pending between A and B," the arbitrator cannot make 
 an award of an aftion which B and his wife have de- 
 pending againfl A, becaufe that is out of the fubmifiion, 
 the action between B and his wife, and A, not being 
 an aftion depending between A and B.' 
 
 If the fubmiffion be " of controverfies between the 
 plaintiff iind defendant, for divers funis of money laid 
 out for the defendant's wife, at her requefl, while flie 
 "was fole," an award, " that the defendant fliall pay to 
 the plaintiff a fpecific fum, for all funis of money laid 
 out by the plaintiff for the wife of the defendant while 
 Ihe 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 with- 
 out her requeft. This is reported to have been ad- 
 judged on a Vv^rit of error, and the judgment of the 
 court below reverfed.'^ But, it may well be doubted, 
 whether, at this day, it would not be prefumed in fa- 
 vour of the award, that the whole had been laid out at 
 her requefl. 
 
 The rule, " that an award of any thing beyond the 
 fubmiffion is void," is not lb llriftly interpreted as to 
 extend to every thing literally beyond it; if the award 
 be of any thing depending on the principal, it is good.^ 
 
 9 2 1 II. 6. 19. Br. 45 a. PI. 
 ai. ftd qujere, ev vid. page 47. 
 
 ' H.38 El.B. R. Brockas 
 T. Savage. P.cl. Arb. D.4. 
 
 ' Waters v. Bridges. Cro. 
 Jac. 639, 640. 
 
 3 S H. 6. iS. b. Rol. Arb, 
 B. 2. C.4. 5.6.
 
 THE AWARD OR UMPIRAGE. 147 
 
 As if the fubmiffion be of all trefpalfcs, and in ad- 
 dition to the awiird of fatisfa6tron for the trefpaffes, the 
 arbitrator order the parties to put their feals to the 
 award, this is good, for it is only an appendage to tlv^ 
 principal. 
 
 So, if the fubmiffion be of all trefpafTcs, and the 
 award be, " that one fliall pay to the other lol. and 
 that he fhall enter into a bond to him for that fum: " 
 this is good, becaufe it only renders the award more 
 effe£lual. 
 
 On this principle, it would feem that, ' if the fub- 
 miffion be of all aftions pcrfonal, fuits, and complaints, 
 and the award, " reciting that the defendant had com- 
 mitted feveral trefpalTes on the plaintiif, and that the 
 plaintiff was fcifed of a certain houfe in his demefne as 
 of fee," order that the defendant fliall releafe to the 
 plaintiff all his right in that houfe, and deliver the 
 deed of releafe in fatisfaftion of the trefpafTes ; this is 
 a good award, for though the fubmiffion, in. this cafe, 
 be of aftions perfonal only, and the av/ard of a thing 
 conne£led with the realty ; yet there feems to be a 
 natural connexion between a releafe of a man's righf^ 
 to a houfe, and trefpaffes committed by him with re- 
 fpe£t to it, - The Juflices, however, are not reported to 
 have been unanimous in this opinion ; "^ and Rolle, in 
 abridging the cafe, gives it as decided the other way, 
 with the exception of Moyle.^ 
 
 The fubmiffion vi/as concerning a term of years, and 
 every thing depending on it ; the award included rent 
 to become due at Michaelmas next after the date of 
 
 4 9 Ed. 4 44. Rol. Arb. B. 13. 
 
 M 2
 
 THE AWARD OR UMPIRAGE. 
 
 the award ; this was held to be beyond the fubmlffion, 
 becaufc the rent might be extinguifhed by furrender, 
 eviction, or otherwife, before Mic hachnas.^ The fame 
 thing was held at a much later period, where the 
 award, made on the 23d of June, ordered fo much rent 
 to be paid, which, by the award itfelf, appeared not to 
 be due till the 24th of June.''' 
 
 A and B fubmitteu to the award of J. S. a fuit de- 
 pending between them in cjcilionc firrme. J. S. on tlia/ 
 fubmiffion, made an award relative to the land for 
 which the aftion was brought ; \v an adlion on the cafe 
 for not performing this award, after a verdift for thg 
 pluiutiif, it was adjudged, in arrefh of judgment, that 
 the award was beyond the fubmiffion.*^ 
 
 There v/as a difpute between a parfon and one of 
 his parilhioners, whether the tythes fliould be paid in 
 kind or not ; and they, reciting the fubjeft of the dif- 
 pute, fubmitted to the award of J. S. concerning all 
 matters, as well fpiritual as temporal, from the begin- 
 ning of the world to the day of the date of the fub- 
 miliion. The arbitrator aw^arded, that the parfon 
 Ihould have 7I. for the tythes due before the fubmiffion, 
 and that the parifliioner Ihould pay 4I., annually for the 
 tythes which fhould afterwards become due. This 
 was held to be a good award for the future tythes ; 
 becaufe the fubmiffion comprehended not only a dif- 
 pute concerning the tythes then due, but a queflion 
 concerning a future right. ^ 
 
 ^ Inter Gray et Wicker. 
 Rol. Arb. B. 3. 
 
 ' Barnardillou v. Foulyer. 
 10 Mod. 204. 
 
 ' Taylor v. Waltam. P. 10. 
 Car. B. R. 
 
 sBeckingham v. Hunter. H. 
 4j.El.B.R.RoI.Arb. D.8.
 
 THK AWARD OR tiMPlRAGE. 149 
 
 . If two partners refer all matters in difference be- 
 tween them, the arbitrator may dilTolve the partncr- 
 lliip. At a trial at niji prlus a juror was withdrawn, 
 and all matters in difference between the plaintiff and 
 defendant, who were partners, were referred in the 
 common form ; and after the rule of reference was 
 drawn up, the plaintiff openly declared, he would not 
 have it underftood that the arbitrator fhould have a 
 power to diffolve the partnerlliip. The arbitrator did 
 order the partnerfliip to be dilTblved. The plaintiff 
 applied to the court to have the award fet aiide on 
 this account, alleging, that the arbitrator had ex- 
 ceeded his authority. The court held that, under fuch 
 a general reference, the arbitrator had clearly a right 
 to diffolve the partnerfliip ; and added, that if a dif- 
 ference between a mafter and his apprentice was re- 
 ferred, the arbitrator had a power to order the inden- 
 tures to be delivered up. With refpcf!: to the plain- 
 tiff's declaration, that he would not have it underfcood 
 that the partnerfliip fliould be diffolved. Lord Alans - 
 field obferved, this was evidence out of his own mouth, 
 that the diffolution of partnerfliip was then a matter of 
 difputc.^ 
 
 Where the fubmiffion is by reference at n'ljl p-'ius, 
 the order in which the words are placed in the rule of 
 reference gives rife to a material diflinftion with re- 
 fpe6t to the power of the arbitrator — 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 
 
 f Green V. Waring, i. Bl. Rep. 475. 
 JM 3
 
 THE AWARD OR UMPIRAGE. 
 
 matters in diifercnce between the parties in the fuit,"# 
 his power is not confined to the fubjeft of that particu- 
 lar caufc, but extends to every matter in difpute be- 
 tween them, though there be crofs demands, and 
 though the defendant has not pleaded his demand 
 againft the plaintiff, by w^ay of fet-off ; and a provifo, 
 that the coils Ihall abide the event, makes no diffe- 
 rence.^ 
 
 An award " that both fliall pay the reckoning con- 
 tracted at the houfc where the award was made, is laid 
 to be void, becaufe it extends to a time beyond the 
 fubmiffion;^ fuch an award indeed feems perfectly 
 nugatory, becaufe the landlord of the houfe may re- 
 cover againfl them for the reckoning ; but inflead of 
 being confidefed as void, becaufe it extends beyond the 
 fubmiffion, it w-ould be more correft to confider it as an 
 award, that, to a certain extent, the expences of the 
 arbitration fliould be equally defrayed by the parties. 
 
 On the fame principle, " of being beyond the fub- 
 miffion," an obje£lion has been made to an award, 
 «' that land, the fubjeft of difpute, lliould be meafured 
 at the expence of both parties ;" "^ though, inflead of 
 an award relative to fome fubjeft not within the fub- 
 miffion, it is rather to be confidcred as an order for the 
 performance of a future aft, which is clearly within the 
 power of the arbitrator. 
 
 It appears too, that though the arbitrator order a 
 claim of one party againll the other, which has accrued 
 fince the fubmiffion and before the award, to be given 
 
 2 Vicl. 2. Bl. Rep. 1118, 2 n 3 Hall v. MalTey. Rol. Arb. 
 Term Rep. 644, 5. 3 Term K. 14. 
 
 Rep. 6^6. j ^ Hardres 45.
 
 THE AWARD OR UMl'IRAGE. 
 
 im ill fatisfaftion of the balance of claims fubmitcd to 
 him ; this fliould not be confidered as an ufuipation of 
 a jurifdi<f^ion' over fomcthing not within his authority, 
 but as an award to do a fpcific future a6t, for the con- 
 clufion of the differences between them. This feems 
 to have been the principle which prevailed in a cafe, 
 where two fubmitted to the award of J. S. concerning 
 all matters between them, till the fubmiffion, and each 
 affumed to the other to perform the award. J. S. re- 
 citing that one of them was bound to the other in an. 
 obligation made fince the fubmiffion, and before the 
 award, ordered the obligee to deliver up the obligation 
 to the other, in full fatisfaftion of all matters between 
 them : this was adjudged a good award. ^ Rolle, how- 
 ever, doubts of the propriety of this decifion, obferving, 
 that though this was in fatisfa(^ion of all matters vjithhi 
 the fubmiffion, yet the obligation being itfelf (?«/ of the 
 fubmiffion, and a thing in aftion between the parties, 
 it would feem that it is void. 
 
 An opinion long prevailed, that under a fubmiffion 
 in the common form an arbitrator had no power with 
 refped to the cofls of the arbitration, becaufe they 
 were fomething which had arifen fince the time of the 
 fubmiffion.^ The only way, therefore, by which he 
 could fecure any recompence for his trorible, v.^as to 
 keep the award in his own hands 'till he w^?s paid for 
 it. Thisj however, might be fubjeft to th^s incon- 
 
 5 Nicklas v. Thomas, ad- 
 judged good. T. i5jac. B.R. 
 Rol. Arb. B. lo. Reporter, 
 quaere ceo. 
 
 ^ Vid. Bufliiicid V. BuMeld. 
 
 Cro. Jac. 577, 578. Capcl v. 
 Allen, Hil.22Car. B. R. AI. 
 10. Rol. Arb. H 13. Berry v. 
 Perry, Bridgeraan 90, 91. 
 
 JNI 4
 
 152 
 
 THE AWARD OR UMPIRAGK. 
 
 venience, that if the parties would not pay for it, and 
 there was a provifo, that it fliould be delivered within 
 a certain time, an objeftion might be made to the per- 
 formance for want of delivery according to that provifo : 
 it became, therefore, a matter of prudence in thofe, 
 who might be propofed as arbitrators, to refufe the 
 office, unlefs a claufe were infertcd in the fubmiffion, 
 that the colls of the reference fliould be according to 
 their difcretion. The judges, however, did once go 
 the length of faying, that where it was part of the con- 
 dition in the fubmilfion that the av/ard fliould be in 
 writing, payment for the writings was intended.^ And 
 it is now determined, that the power of awarding cofls 
 of the arbitration is neceffarily 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 cofls fhall 
 abide the event of the award, is, that the arbitrator may 
 not have it in his power to withliold cofls from the 
 party who is in the right ; and that therefore fuch a 
 provifion is to be confidered as the reftriftion of a 
 power which the arbitrator would otherwife neceffarily 
 have.* 
 
 7 Pinkney v. Bullock. 2 
 Keb. 832. vid. iQ Mod. 201. 
 
 ^ 2 Term Rep. 645. 
 
 N. B. In an opinion which 
 I have lately feen from a very 
 refpeftable authority, it is 
 ftill infilled, " that the arbi- 
 trator has no power over the 
 cofts of the arbitration •■," and 
 jt is fuggelled " that the rule 
 
 here laid down is not war- 
 ranted by the cafe cited in 
 fupport of it : " " becaufe," 
 fays that authority, " the re- 
 ference in that cafe having 
 been by rule of court, the cofts 
 in queftion mull have been 
 the cofts of the aflio7i, not the 
 cofts of the arbitration -y — It 
 is true the report (a X« E.*
 
 THE AWARD OR UMPTRAGE. 
 
 153 
 
 When a caufe is referred at liiji prhis, and it is in- 
 ferted in the order, that the coils Ihall abide the events 
 which is the ufual form, the event is taken to mean the 
 Ic^al event, and therefore the party in whofe favour the 
 award is made will not be entitled to any more colls 
 than he would have been had the trial gone on, and he 
 had had a verdift in his favour. 
 
 A CAUSE, in which the plaintiiTs were executors, was 
 referred at wji pr'ius, with the ufual provifo with refpcft 
 to the colls abiding the event. The arbitrator awarded, 
 that there was nothing due from the defendant to the 
 plaintiffs ; in confequence of which the mailer taxed 
 the defendant his colls. An application being made to 
 rellrain the defendant from proceeding to enforce the 
 payment of thefe, on the ground that the plaintiffs 
 were executors, and therefore not liable to pay colls, 
 the court held the meaning of the rule to be that which 
 
 6+5) ftates the award to have 
 been made in a caufe referred 
 to arbitration by rule of court; 
 and it is not diftinftly dated, 
 whether the cofts, to the award 
 of which the objeftion was 
 madcj were the cofts in the 
 caufe, or the cofts of the ar- 
 bitration ; the reafons, how- 
 ever, for fuppofing them to 
 have been the /a//i?r, are ftrong: 
 In the firft place, the power 
 of the arbitrator over the 
 firfner, when there is no exprefs 
 rcftri£tion, has been long un- 
 djfputed. Vid. ante p. 134 et 
 feq. and in the next place, 
 the authority (i Rol. Abr. 
 
 254) cited in funport of the 
 objeftion to the power of the 
 arbitrator over the cofts, refers 
 to the cofts of the arbilration 
 only, and could refer to no 
 other, as there is not a cafe, 
 to be found in the books, of 
 a reference by rule of nifi 
 prius, till fome time after the 
 date of that authority : — la 
 faft, I was prefent in court 
 when the cafe in z T. R. 645 
 was agitated, and from my 
 own recoUeftion, I can take 
 upon myfelf to fay, the cofts 
 of the reference only, were ia 
 queftiun.
 
 i;4 
 
 THE AWARD OR UMPIRAGE. 
 
 is ftatcd above ; and ^^^^^' ^^ ^^ was clear, that if a ve^" 
 dift had been given againft the plaintifFs, or they had 
 been nonruiled at the trial, they would not have been 
 liable to pay coils, they were confequently not liable 
 to this order. ^ 
 
 On a fimilar reference the arbitrators found, that 
 the plaintiff's original demand was under 40s. awarding 
 that the defendant fliould pay the plaintiiF only 37s. — • 
 An application being made to the court to have it re- 
 ferred to the mafter to tax the defendant his cofts of 
 the a6lion, it was contended on his behalf that the 
 plaintiff was not intitled to cofts any more than he 
 would have been if, on a trial, he had recovered under 
 40s. but that on a fuggeilion to be entered, by leave of 
 the court, the defendant would be intitled to coils. — 
 The court were of this opinion, and made the rule 
 
 abfolute.' 
 
 The plaintiff brought an a6lion of trefpafs againfl 
 
 the defendants, for pulling down the plaintiff's gates 
 and aifaulting him. The defendants juflified to all the 
 counts, except one, under different rights of way, and 
 pleaded not guilty to the whole : the caufe was re- 
 ferred at n'lfi prlus^ the rule of reference reflri'fting the 
 coils of the a&ion to a"bidc the event : The arbitrator 
 awarded a right of way to the defendants different 
 from any of thofe under wiiich they juftified, and gave 
 5s. damages to the plaintiff for the airault, as having 
 
 » Highnam ct al. v. HafTcl. 
 H. 14. G. 3. cited 3. TerrTi 
 Rep. 139. 
 
 ' But'er V. Grubb. H. 23. 
 G. 3- cited 3 Term kcp. 139. 
 
 This muft have been a cafe 
 where the demand arofe 
 within the jurifdidion of a 
 
 court of confcience. ■
 
 THE AWARD OR UMPIRACr. 
 
 155 
 
 been committed when the defendants were attempting 
 to cxercife a right of way negatived by the arbitrator. 
 It was held, on the authoiity of the two preceding 
 cafes, that the plaintilf could recover no more cofts than 
 damages ; and further, that the arbitrator's award was 
 not equivalent to a judge's certificate under the 22d 
 and 23d Car. 2. c. 9.^ 
 
 As it is the profelTed piirpofe of parties fubmiliing 
 their difputes to arbitration to have them fin;;;! ly fettled, 
 fp there is no method more effeftual to anfwer that 
 purpofe than the award of mutual releafes, after the 
 execution of other parts of the award ; there are, ac- 
 cordingly, very few of the cafes reported in the ancient 
 books which do not, among other things, include a 
 releafe : but as the arbitrator could not always be aware 
 of every nice objeflion to his award, it is very fcldom 
 that the period to which the releafe fhall extend is con- 
 fined to the date of the fubmiiTion. It is fometimes 
 ordered to the date of the award, fometimes to a period 
 long fubfcquent, and pofiierior to the time appointed 
 for the execution of all the other parts, and fometimes 
 generally v/ithout any limitation of the time to which 
 it is to operate. In all taefe cafes it has been con- 
 flantly objecled, that, by awarding fuch a releafe, the 
 arbitrator has exceeded his authority: the objedlion 
 has as conilantly been fuilained, fo far as to determine 
 the award of the releafe to be void for any thing arifing 
 fubfequcntly to the fubraifiion. But many cafes have 
 gone further, and the award has been frequently con- 
 fidered as altogether void, on account of fo trivial au 
 
 ' Swinglchurft v. Altlura ct a!. 3 Term Rep. 138.
 
 ^^4 THE AWARD OR UMPIRAGE. 
 
 inadvertency in the award of the releafe. The hiftory 
 of thefe cafes is confufed and complicated, and involves 
 a part of the fubjeft, which w^ill make a diftindl article 
 very conliderable in itfelf.^ 
 
 The next branch of the general rule is, that the 
 award muft not extend to any one who is a llranger to 
 the fubmiffion. 
 
 Thus it has been- held, that where the fubmiffion is 
 between two, and it is ordered by the award that one 
 of them Ihall convey certain land to the other and 
 his wife, this is void as to the wife, becaufe fhe is a 
 ilranger to the fubmiffion/ 
 
 So, if it be awarded that a third perfon be ready to 
 feal and deliver 15 bonds for the pa5mient of a certain 
 fum to one of the parties, and that he fhall do his 
 endeavour that no advantage be taken of a forfeiture 
 committed by that party, all this is void.^ 
 
 So, if two fubmit to the arbitration of certain perfons 
 concerning 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 procurement, fhall make to the 
 other fuch alTurance of the land as the other fhall 
 require, this is void ; becaufe the wife and fon are 
 ftrangers to the fubmiffion.*^ 
 
 So, it is faid, that if the condition of a fubmiffion 
 bond be to fland to the award of A and B, who award 
 
 » Vid. poft, " Where an 
 award fhall be good in part 
 though void in parr," and, 
 " how awards fiiall be cpn- 
 ftrued." 
 
 ^ Samon's cafe. 5 Co. 77. b, 
 78. a. Rol. Arb. B."?. 
 
 5 loCo. 131. a. b. Rol. Arb. 
 B. 5. vid. 3 Leon. 6z. Mo. 
 359. pi. 489. 
 
 * Rol. Arb. N, 9.
 
 THE AWARD OR UMPIRAOE. 
 
 »5f 
 
 tliat one of the parties fhall pay 2cs. to a third perfon : 
 this, fays Coke, is a void award, and the bond of no 
 i'oYcc, notwithftanding an opinion to the contrary, 
 which he fays is ill reported. ^ 
 
 So, where it appeared that the plaintiff, in the airier! 
 then before the court, had formerly brought another 
 aftion in the King's Bench againft the prefent defendant ^ 
 and one j. P. and that the plaintiff and this J. P. had 
 fubmitted all manner of trefpafs and actions betweea 
 them two, and all other trcfpaffes 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 loos. 
 which J. P. had paid. This was held to be a void 
 award, becaufe the defendant was not a party to the 
 fubmifTion. 
 
 Where the fubmiflion was between three on one 
 fide, and one on the other, of all aclions ahd demands 
 between tlicm, it was faid by three juftices in tlie 
 Exchequer Chamber, that the arbitrators had an au- 
 thority to make an award of all joint matters between 
 the three and the one, and alfo of all matters feverally 
 between the one and any one of the three ; and that 
 therefore if he awarded that any one of the three 
 Ihould pay fo much to the fingle party on the other 
 fide, and that the other two fliould go quit ; or that 
 the fingle party fhould pay fo much to any one of the 
 other three, the award in thefe feveral cafes was good.* 
 And Brooke, in abridging the cafe, fays this is good 
 
 ' lo.Co. iji.b. Rol. Arb. 
 B. 6. E. 5. vid.2z H.6. 46. b. 
 and Brooke fays quod mirum, 
 
 fpeaking of the opinion to th« 
 contrary. 
 » 2 R.3. l8.
 
 ,5S 
 
 TBE AWARD OR UMPIRAGE. 
 
 ]aw; 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 thrce.^ 
 
 It is in general laid down, that the award of pay- 
 ment of money to a ftranger is void :' but this niuft be 
 underftood to hold only when fuch payment can be of 
 no benefit to the other party ; for an award that one of 
 the parties Ihall pay fo much to a creditor of the otlier 
 in difchargc of a debt due by the other to that creditor^ 
 is unqueftionably good.^ 
 
 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 plaintiif's benefit.^ 
 
 So, where it was awarded that the defendant fliould 
 pay a fum of money for the plaintiff's benefit, to fuch 
 perfon as the plaintiff fhould appoint to receive it, it 
 ■was faid in argument, and afTented to by the court, 
 that it would hardly be contended that fuch an award 
 was not good.'* 
 
 So, if at my requcfr, and tliat of W. N. two others 
 arc bound in 20I. and, on a difputc ariling between 
 W. N. and me, on this qucftion, among other matters, 
 *' which of us fliall pay tbe 20I." we fubmit all matters 
 in controverfy, and the arbitrator award that I fhall 
 pay to the obligee the half, v/ith interefl, and W. N, 
 t!ie other half; this is a good award, though the pay- 
 ment of the money be awarded to a perfon who is a 
 
 9 Br. Arb.pl.44. 
 
 ' Godbolt. 12, 13. 
 
 ' R. ace. I Lord Raym. 123. 
 Doddcriilgc fcmb. P. 16 Jac. 
 B. R, Buckhurft and Mayo's 
 
 cafe. Rol. Arb. E.5. 
 
 3 I Lord Raym. 123. M.S. 
 W. 3. Bedam v.Clerkfon. 
 
 4 Dale V. Mottram. z Bar- 
 nard. 291. 6 G. 2.
 
 THE AWARD OR UMPIRAGE. 1^9 
 
 ftrano-cr to the fubmiffion, becaufc it appears to be an 
 advantage to both parties. ^ 
 
 If the award be, that the one fliall acquit the other 
 of a bond, in which they are both bound to a third 
 peribn for the payment of a fum of money, this is 
 good ; for though he cannot compel the third pcrfon, 
 who is a llranger, to deUver up the bond, or to make 
 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, which will 
 alfo acquit the other ; or, on fatisfa6iion given, he may 
 compel the obligee to deliver up the bond in a coi;rt of 
 equity, or to give a releafe.'^ So now, fincc the flatutc 
 for the amendment of the law, on an aftion brought for 
 the penalty after forfeiture, he may pay the principal, 
 intereft, and cofts, which wnll alfo acquit the other party. 
 
 It having been awarded, that the plaintiff and de- 
 fendant, who were brothers, Ihould pay a certain fum 
 yearly for the ufe of their mother ; this was held a good 
 award by Powell J. bccaufe he thought it muft be pre- 
 furaed 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 general award of the payment of money to a 
 llranger was good, becaufc it was to be prcfumed that 
 the parties fubmitting were bound as truilees, or were 
 by fome means liable, and that the payment Ihould be 
 intended for their benefit, unlefs the contrary appeared.' 
 
 5 Gray V.Gray. P. i6 Jac. 11 vid.Becket v. Taylor, i jNTod. 
 B.R. Rol. Arb. E. 6. F. S. ' 9. S. P. z Keb. 5+6. S. C. 
 
 6 Barfey v. Clipfliam. Rol. {j ' Bird v. Bird. I Salk. 74. 
 Arb.E. ii.S.C.Cro.Car.54i.
 
 l6o THE AWARD OR UMPIRAGE. 
 
 And, in general, a diftinftion is taken between the 
 cafe of an a6t awarded to be done by a flrangcr, and 
 tliat of an a£l awarded to be done to the ftranger, by 
 a party to the fubmiffion : in the latter cafe the award 
 is faid to be good ; and if the ftranger will not accept 
 the money awarded to be paid to hira, the party's ob- 
 ligation is faved.'^ 
 
 If the pcrfons comprehended in the award were in 
 contemplation of the fubmiffion, though they were not 
 direftly parties to it, yet the award is good ; as if it be 
 awarded that all fuits fhall ceafe bct^veen the parties, 
 or any others in their behalf.'' So, if the fubmiffion be 
 by two, concerning a matter which arofe between one 
 of them and the wife of the other when ffie was fole, 
 an award " that the other fliall pay to the married man 
 and his wife lol." is good, becaufe it was on her ac- 
 count that the difpute arofe. ^ 
 
 A DISPUTE arifing between A and B on one iide, 
 and C, D, and E on the other ; C, in coniideration of 
 lixpence given to him by A and B, fabmitted the mat- 
 ter for himfelf and D and E, and affiimed 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, fhould pay a certain fum 
 to A and B in fatisfa6lion of the controverfy : this was 
 held to be a good award, and C adjudged to perform it, 
 though it concerned two ilransrers to the fubmiffion.^ 
 
 * Norwich V, Norwich. 3 
 Leon. 62. 
 
 9 Onyons v. Cheefe. to W, 
 3. Lutw, 530. 
 
 Gatvvood, adjudged H. 14 
 Jac. and on a writ of error 
 judgment affirmed. RoI.Arb. 
 B. 18. vid. 22 E.4. 25, I Bar- 
 
 ' March, 78. I nardifton. B. R. 85. i Keb, 
 
 » Bullock r. Dalbie and jj 790, S65.
 
 THE AWARD OR UMPIRAGE. itl 
 
 A BOND was given by the defendant Clemence to 
 Lvnch and Templeman, of which the condition was, 
 that Clemence, the obligor, fhould perform the award 
 of arbitrators indifferent! V named, as well on the part 
 and behalf of Clemence as of Lynch, without naming 
 Tefiiplcman, " to arbitrate and determine all matters 
 in controvcrfy between the faid parties or either of them.'* 
 The award, " reciting that there were feveral diffe- 
 rences between the plaintiffs Lynch and Templeman on 
 the one part, and the defendant Clemence on the 
 other, and that they had all fubmitted by feveral bonds ; 
 reciting alio, that the defendant was bound to Elizabeth 
 Templeman,r.iiow the wife of the plaintiff Lynch : that 
 the bond w^is in truft for the plaintiff Templeman, and 
 that 117J. was due on that bond," ordered that the de- 
 fendant fhould pay to the plaintiff Templeman 83I. in 
 part fatisfaflion of the 117I. and for fatisfaftion of the 
 refidue Ihould affign to the fame Templeman a certain 
 debt of 34I. due to Clemence by one Henry Eeelley of 
 London, and fl-iould execute and deliver to the fame 
 Templeman fufficient authority to fue for and recover 
 the faid debt, with covenants to be inferted in that au- 
 thority ; that he fhould not revoke it, nor receive the 
 money from Beelley, but that he fhould aid and aflill 
 Templeman to recover it ; that he fhould alio make 
 an affidavit in writing before a mailer in Chancery, 
 that the fum of 34I. before mentioned, was really and 
 JLiflly due to him from Beefley ; and that in cafe 
 Clemence fhould fail to execute fuch authorit}', and 
 take fuch oath, he fhould, within the Ipace of two 
 months from the date of tlic award, pay to Templeman 
 the further fum of 34I. And that the plaintiff Tem-
 
 t6l THE AWARD OR UMPIRAGE. 
 
 pieman, on performance, fhould deliver to the de- 
 fendant the bond in which he was bound to Elizabeth 
 Templeman, and that the plaintiff Lynch fliould exe- 
 cute a general releafe to the defendant. 
 
 The objedion on which the defendant principally 
 refted his defence was, that Templeman not having 
 been named in the condition of the fubmiflion bond, 
 he was a ftranger to the fubmiffion, and that therefore 
 the award of payment to him was void ; but it wa$ 
 anfwered, that he was fo far from being a mere ftranger, 
 that he was in faft the perfon principally in contem- 
 plation of the fubmiflion ; he was party to the bond, 
 and the fubmiflion was of a thing, in which his interefl 
 was concerned. The wife of Lynch, before her mar- 
 riage, was truftee for Templeman, and by the marriage 
 the hufband became the truftee ; when, therefore, 
 Templeman joined with Lynch in taking the fubmiflion 
 bond, it was manifeft he had agreed that the matters 
 in controverfy relative to the bond, taken by him in 
 the name of Elizabeth Templeman, fhould be deter- 
 mined by the arbitrators, which amounted to a fub- 
 miflion 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 
 prefume that it was fo, and the parties to the fubmifTion 
 bond were eftopped to fay the contrary : it was not 
 abfolutely neceflary that the fubmiflion fhould appear 
 by exprefs words in the condition of the bond on which 
 the fuit was founded ; it might appear by the bond 
 made by Templeman to the defendant, for the per- 
 formance of the award : but in the prefent cafe, without 
 having recourfe to extrinlic circumftances, the condition
 
 THE AWARD OR UMPIRAGE. ifij 
 
 itfclf implied that Templeman was a party to it, and 
 the omifTion of his name was evidently the miftake of 
 the perfon who drew the conditon, for it was to arbi- 
 trate between the faid parties, or either of them, where 
 the latter words, " or either of them," would be abfurd 
 and infignificant, if there were not two pcrfons on one 
 lide. As to the award 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, v/hich was in efFeft the fame thing as 
 if it had been awarded to be paid to Lynch ; for had it 
 been fo, it muft at laft 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 adtion of debt on the bond given to Elizabeth 
 Templeman. By the payment to the plaintiff Tem- 
 pleman, the defendant'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 his benefit ; fo that each of the parties would have 
 a fuitable benefit by this award. ^ 
 
 The condition of a fubmiffion bond recited, that a 
 replevin was depending between Baily, one of the par- 
 ties to the fubmiffion, and one Webb, who made 
 conufance, as bailiff to Ifaac Shelf, the other party, 
 and Margaret his wife, and then ftated, that the plain- 
 tiff Shelf, and the defendant Baily, were to Hand to 
 the award of arbitrators, on provifo, that the award 
 
 3 Lynch V. Clemence. iiW. 3. Lutw. 571. 
 N 2
 
 J 64 THE AWARD OR UMPIRAGE. 
 
 vvere made concerning the premifes, by a certain day. 
 The award recited that Baily liad brought a replevin, 
 for taking his cattle, againfl Webb, to which Webb 
 had made conufancc, as bailiff to Shelf and Margaret 
 his wife, and, after ftating the proceedings in that a£lion, 
 awarded, " of and upon th6 premifes, and of all mat- 
 ters in difference between the parties;" that all pro- 
 ceedings in the replevin fliould ceafc ; that Baily fliould 
 pay 7I. los. for the rent in arrear to Shelf, and loL 
 €ofls; and that Shelf fliould give him a general releafc. 
 In avoidance of this award, it was argued, that Webb 
 was a flranger to the fubmiffion, and that by it the 
 a£lion between Baily and him was to ceafe ; that fo 
 much was to be paid to Shelf, who was to give a releafe, 
 which would not difcharge Baily from the claim of 
 Webb, who was intitled to coils, if the plaintiff in 
 replevin did not proceed ; it was anfwered, that Shelf 
 was the party concerned in intereft, and that a perfon 
 mi<^ht fubmit to an award for another. — And the court 
 cxprefTed the inclination of their opinion to be, tJiat if 
 one fubmittcd on the behalf of another, his bond was 
 forfeited if the flranger 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.-* 
 However, as in this cafe. Shelf was the principal in 
 the avowry, and Webb only an agent, the award 
 appears to be conclufive againfl Webb, and might have 
 been fet up as a defence to any claim of colls by 
 him againfl Baily. 
 
 ♦ Shelf V. Baily in C. B. 8 Ann. Comyns Rep. i8?>
 
 THE AWARD OR UMPIRAGE. 165 
 
 It has been feen, that a iTum is bound by an award 
 to which he fubmits for another ; ' and that if an at- 
 torney, without the cxprcfs authority of the principal, 
 enier Into a bond to a third perfon, under a condition 
 to be void on performance of the award by the princi=- 
 pal, otherwife to be in full force ; this fhall bind the 
 attorney and not the principal.*' It has alio been faid, 
 that if a man authorize another on his behalf to refer a 
 difpute between the principal and another, an award 
 made in confcquence of fuch a fubmiffion is binding on 
 the principal alone. ^ But, by a modern cale,^ it ap- 
 pears, that the latter aiTertion is true only when the 
 agent does not bind himfelf for the performance of the 
 principal ; .or if he does, not only the principal who 
 authorized him but the agent himfelf is bound by the 
 ;award. 
 
 The bond was given by one George Fitzgerald, the 
 defendant, who was authorized by John Fitzgerald to 
 fubmit all matters between the latter and Cayhill, the 
 plaintiff. The condition reciting, that there were dif- 
 ferences between John Fitzgerald and the plaintiff, con- 
 cerning 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 award as ar- 
 bitrators Ihould make, on or before a certain day, be- 
 tween the plaintiff and John Fitzgerald, then the bond 
 /liould be void. The arbitrators awarded, that George 
 
 * Ante, page 42. * Ante, page 45. - Page 42. 
 
 P Cayhill v. Fitzgerald. B. R. 17 G. 4. 1743. i Wilf. 28, 58. 
 
 N 3
 
 l66 THE AWARD OR VMPIRAGF. 
 
 F. the defendant, fhould pay 298I. 9s. 6d. that the 
 plaintifF lliould receive it in full of all demands, and 
 that they fliould execute releafes. 
 
 Among other objeftions to the award, this was 
 taken, that it was not made between the parties to the 
 fubmifiion ; for thc't, inftead of ordering G. F. the de- 
 fendant, to pay, it ought to have ordered]. F. who 
 was the real party to the fubmiffion. The court feemed 
 at firll: to think the award was bad, but afterwards Lee, 
 C. J. delivered the opinion of the court in fiivour of the 
 award : at firfl he faid, that on reading Carthew's re- 
 port of the cafe of Bacon and Dubiirry," 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 feen a manufcript report of it, he was now 
 clearly of opinion that the award was good, and that 
 the prefcnt cafe was not to be diftinguifhed from that ; 
 for that it appeared by the pleadings in that cafe,^ 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 pre- 
 mifes," in the condition of the bond, for it Vv'as ex- 
 prefsly averred to be fo in the replication. 
 
 Where the ftranger is only an inftrument tQ thci 
 performance of the award, no objc6lion ihall be aU 
 lowed on that account : as if it be, that one of the 
 parties fhall furrendcr his copyhold into the hands of 
 
 5 Ante page 45. ' In 2 Salk.
 
 THE AWARD OR UMPIRAGE. 167 
 
 two tenants of the nnanor, who fhall prcfent the fur- 
 render; this is good, though it he awarded, that the 
 furrender fhall be made to ftrangers, who cannot be 
 compelled to accept, becaufe they are only to be iifed 
 as inllruments.- 
 
 FoR the fame reafon it is a good award, that one of 
 the parties fhall make a deed of feoffment, with a letter 
 of attorney to J. S. to make livery.^ Or that the de- 
 fendant fliall pay as the plaintiff and his attorney by a 
 bill and oath fhall make appear, for the attorney is only 
 an inflrument to afcertain the fum."* 
 
 As an award of a thing, out of the fubmifHon, can- 
 not be enforced by an action at law, fo neither fhall a 
 man by fuch an award be precluded from claiming his 
 right in equity. This appears clearly from the cafe of 
 Warren and Warren, plaintiffs, and Green, Hurtnall, and 
 others, defendants. Mary Warren, the mother of the 
 defendants, being poilefled 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 herfelf, and afterwards to the ufe of the plain- 
 tiff John Warren, her fon : lire afterwards intermanicd 
 with the defendant Thomas Green, and then Hurtnall, 
 contrary to his trufl, delivered up the fettlement, and 
 the original leafc, to Green ; Mary was likewife feifed 
 in fee of a moiety of other lands, and died fo feifed ; 
 and after her death, Green continued in pofleflion of 
 the lands and houfes j fome differences arifing between., 
 
 » Coote v. Pooley. Rol. Arb. E. 7. 
 3 Rol. Arb. E. 8. 4 Rous v. Lun. i Keb. 5(9 , 
 
 N 4
 
 i6S 
 
 THE AWARD OR VMPIKAGE. 
 
 him and John, one of the plaintiffs, concerning the 
 fum of 81. and other tritiing matters, they were fub- 
 mitted to the arbitration of Murtnall, both parties 
 entering into bonds for that purpofe: Hurtnall awarded, 
 that all fuits between them Ihould ceafe, and that 
 before the end of Trinity term following Warren Ihould 
 fufficiently convey and affure to Green, his heirs and 
 afTigns, all his right and title to the moiety of the faid 
 lands, and fhould procure his wife to join wjlh him in 
 a fine before the end of the faid term, in order to 
 perfeft the conveyance ; and fhould fufficiently grant, 
 convey, furrender, and affign to Green, all his right to 
 the houfes in Erirtol ; and that, 'till fuch conveyance 
 made. Green fhould continue in polTeffion, and fliould 
 pay to Warren fome fmall fums, amounting to 200I. 
 whereas the premifes were worth more than loool. and 
 that they fliould feal mutual releafes to one another. 
 
 The plaintiff Warren exhibited his bill to have a 
 re-conveyance of the premifes in BriiT:ol, and an ac- 
 count of the profits fince the death of his mother, and 
 to have the award fet afide, as comprehending fubjefts 
 not within the fubmifHon.- 
 
 The court decreed, that Hurtnall and the other 
 defendants, the truftees, Ihould re-convey the premifes; 
 that Green fhould account for the profits, and that the 
 bonds of fubmiffion fhould be brought before the mailer 
 and cancelled.* 
 
 ' John and Richard Warren 
 V. Green, Hurtnall, et al. 
 Ca. Temp. Finch 141. This 
 
 Jtemi to be the effence of the 
 decree, for the report is not 
 accurate.
 
 THEi AWARD OR UMVTRAGF.. 169 
 
 Neither fliall an awaid afFeft the rights of pcrfons 
 not parties to the fubmilTion. Thomas Brown, on the 
 tlay before his marriage with Mary his intended wife, 
 entered into a bond to truftees for Mary, in the penalty 
 of io,oool. conditioned, that if Mary ihould 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 
 affic^n the fame, together with fome other property, to 
 her, then the bond iTiould be void. After the marriage, 
 the truftees 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 purchafe of the land. Brown had 
 feveral fuits with the truftees, which were referred to 
 arbitration; general releafes were awarded between 
 Brown and the truftees, but the bond was not con- 
 cerned in the difputes, nor was any recompence made 
 or intended to be made to the wife by the award in 
 fatisfadtion of the bond. 
 
 A BILL being filed by the widow againft the execu- 
 tors of Brown, and thefe, with other circumftances, 
 appearing in the caufe, the court confidering the award, 
 and the releafes given in confequence of it, to have no 
 relation to the bond, decreed, that the widow Ihould 
 have the fame fatisfaftion, and the fame benefit out 
 of her hufband's eftate, as if the bond had not been 
 cancelled, and the award had never exifted.^ 
 
 * Mary Brown, widow, v. Will. Savage et al. executors of her 
 hufband. Ca. Temp. Finch 184. et vid. Id. iSo, 441.
 
 no 
 
 THE AWARD OR UMPIRAGE. 
 
 The adherence to the rule, " that the award fhould 
 not go beyond the fubmiffion," has not been fo Hterally 
 Urift, as to overturn the award merely becaufe the 
 words might feem too comprehenfive ; but if it might 
 reafonably be prefumcd that nothing was in reality 
 awarded beyond the fubmiffion, it has in general been 
 fupported. 
 
 Thus, antiently, " where the fubmiffion was of all 
 matters between the parties at the time of the fubmif- 
 fion, and it was awarded that one of them Ihould relcafe 
 to the other all demands to a day fubfequent," it was 
 held that this was void, becaufe a demand might have 
 accrued fince the day of the fubmiffion, which the 
 arbitrator had no authority to order to be releafed.' 
 Yet, if in the fubmiffion there was a claufe running 
 thus, " fo that the award be made concerning the 
 premifes," or fomething equivalent, and if the award 
 was made with reference to that claufe, this Ihould 
 controul the conftruftion of the award, and confine the 
 operation of the awarded releafc to differences exifling 
 at the time of the fubmiffion.* 
 
 So, where the fubmiffion is of a. particular difference , 
 when there are other matters in controverfy, though an 
 award of a general relcafe would have been void ; yet 
 the burthen of fhewing the exillence of thefe was 
 thrown on the party objefting to the award on that 
 account.' 
 
 T Moor V. Bedel. Gould/b. 
 51, 92, cited 10 Co. 131. 2. 
 Jenk.264. Rol. Arb.B.4. 
 
 " Vanlore v. Tribb. Rol. 
 Arb. 21. Vid. 6 Mod. 232. 
 
 '2 Mod. 309. Vid, Rous V. 
 Nun. I Sid. 154. Alablafter 
 V. Clifford. Rol. Arb. B. 23. 
 Vid. Hob. 190. GolTe v. 
 Browne.
 
 THE AWARD OR UMFIRAGE. 
 
 The fubmiffion was, *' of all fulLs and controvci-fics 
 between the parties concerning the tythes of corn and 
 hay in a certain parifh. The arbitrator awarded, that 
 the defendant fliould pay to the plaintiff 40I. before a 
 certain day, in confidcration of which the latter fhould 
 permit all fuits and controversies depending between 
 the parties to ccafe, and that they fhould be no further 
 profecuted. The plaintiff having fct forth this award, 
 averred, that diere were not any other fuits depending 
 between them for the tythes of the parifh. The de- 
 fendant 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 firft came before the court, they thought the 
 award bad, as extending to fubjefts beyond the fub- 
 miflion; on a further hearing, hov^-ever, 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 
 fhould ceafe," fhould be confined to fuits relating to 
 the tythes, and void only for the refidue.' 
 
 Another branch of the general rule, Mufimthcof 
 *' that the award mufl be according to the T"'''' ""'y 'f '''' 
 
 -,._,,. , . ,, , , thingijubmitted. 
 
 lubmmion, is, " tliat it muft compreliend 
 every thing fubmitted, and muft not be of parcel only.* 
 The purpofe of the parties in fubmitting is, to have 
 a final determination of every matter comprehended 
 within their fubmiffion : that purpofe is not obtained 
 when the award only comprehends a part. 
 
 ' Ingram v. Webb, i Rol. 
 Rep. 362. 2 Rol. Rep. 19a. 
 Cro. Jac. 663. 
 
 * 19 H. 6. 6. Fhbt.Abr. 51. 
 a. 39 H. 6. n. b. fcmb. cont, 
 Brooke Arb. z^.
 
 t7i 
 
 THE AWARD OR 'JMriRACK. 
 
 This, however, iniifl be undcrftood with a con- 
 fideraVle degree of limitation ; for though the words of 
 the fubmiffion be more comprehcnfivc than thofe of 
 the award, yet if it do not appear that any thing elfe 
 was in difputc between the parties, beiide what is 
 comprehended in the award, the award will be good, 
 As if the fubmiffion be of all aftions real and perfonal ; 
 and the award be only of aftions perfonal ; it fliall be 
 prcfumed that no aftions real were depending between 
 the parties.^ 
 
 So, it will be fufficient if the tiling awarded necef- 
 farily includes the other things mentioned in the fub- 
 million. A?., where the fubmiffion was of the rig/it, 
 title, and poffcffion of 20 acres of land, and the arbitra- 
 toi-s awarded that one of the parties Ihould enter into 
 10 acres, and have them to him and his heirs, and the 
 other ihould have the other 10 acres for term of his 
 life ; this deciding apparently only the poiTeffion, yet 
 in fubftance comprehending the right and title, is a 
 good award. '^ 
 
 And where by a reference to fometliing which the 
 arbitrators fuppofe done, but which is in faft not done, 
 it turns out, that of one particular point they have 
 made no award, this lliall not render the whole award 
 void. 
 
 As where they awarded, that on one thing fubmitted 
 to them the parties fhould perform the award made by 
 former arbitrators, who had in faft made np award. ^ 
 
 3 Vid. 8 Co. 98. 19 H. 6. 
 6.b. Rol.Arb. L. 5. 
 
 4 ioH.6.6. Ftibt. Abr. ;i. 
 a. Brooke 44, 45. Rol. Arb. 
 
 51. a. 
 
 i 39 H. 6. 9. b. 3rooki 
 Arb. 29.
 
 THF A\VaRD or umpirage. 
 
 »7i 
 
 So alio, if the fubmiffion be of all the prcmifes, or 
 of any parcel of them, in this cafe the arbitrator may 
 make an award of parcel only.'* 
 
 If the fubmiffion be of all matters between the par- 
 ties, and the award be made of all except a bond, and 
 of this the award be that it fliall ftand, the award is 
 good for the whole ; for the arbitrator is not bound to 
 difcharge the bond without caufe, and it fhall be pre- 
 fumcd that there was no caufc.^ 
 
 The condition of an arbitration bond w^as vfith a 
 provifo that it fhould be made concerning the dilapida- 
 tions of the parfonage of S. being and remaining in 
 decay and ruin by the default and after the death of 
 A. B. clerk, whole executor, one of the parties, was 
 late parfon there ; and alfo of and upon all and lingular 
 actions, fuits, quarrels, debates, and llrifes, had, moved 
 or depending in variance between the parties. 
 
 The award was, that the defendant, the executor, 
 before a certain day, fhould repair the dilapidations at 
 his own cofls ; but, in the award, the arbitrator pro- 
 tcfted that he would not meddle with any other adions, 
 &c. befides. It was objefted, that by this protcflation 
 the arbitrator had difabfcd himielf to judge between 
 the parties ; for that this differed from the cafe " of a 
 fimple fubmifiion, in words which, in their natural 
 meaning, might extend to tzvo things, and an award of 
 one of them;" for there, in favour of the av/ard, it 
 
 6 39 H. 6. u.b. Rol.Arb. 
 L. 6. 
 
 7 H. i4jac. Berrie V. Per- 
 rin, at Serjeant's Inn, judg- 
 ment affirmed on a writ of 
 
 error. Cro.Jac. 400. BriJgc- 
 man,9i. Rol. i\rb. M. 2. S.P. 
 refolved in Sallows v. Girling. 
 Cro.Jac. «::.
 
 J 74 
 
 THE AWARD OR UMPIRAGE. 
 
 was to be prefumed 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 
 difpute befide the dilapidations, and he had not awarded 
 according to the fubmiflion by refufing to take cogni- 
 zance of thefe. In the report of this cafe in Dyer, it 
 does not appear whether the objeftion 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.* 
 
 But in another report of the fame cafe judgment is 
 iaid to have been given for the defendant, the award 
 being void.^ And on another occalion it was held 
 clearly by the court, that if arbitrators award for one 
 one thing, and fay that they Vv'ill not meddle with the 
 reft, all is void, becaufe they have not purfued their 
 authority.^ 
 
 With refpcft to the award being void or not, when 
 it is made only of part of the fubjefts comprehended 
 within the fubmiffion, there is a diftinftion arifing from 
 the form of the fubmiffion itfelf, which runs through 
 all the books.^ 
 
 The fubmiffion is fomctimes general of all matters 
 in difference between the parties, without fpecification 
 of any particular fubjeft of difpute. Sometimes it 
 fpecifically enumerates the particulars. 
 
 * Dyer, 216, 217. 
 9 Bcnl, 107. 
 
 » Dift, Barnes v.Greenwell. 
 Cro. El. 858. 
 ' Vid. Cro. Jac. 200, 354. 
 
 Hob. 49. 4Leon.49. 2Saund. 
 292. 2 Lev. 3. 2 Keb. 759. 
 3 Lev, 413. Cro. Car. 383. 
 2 Vent. 242,243. Salk. 75. 
 pi. 16. Lutvv. 552.
 
 THE AWAKD OR UMPIRAGE. 
 
 »7$ 
 
 Both forms are fometimes without any particular 
 claufe providing for the arbitrators deciding on the 
 whole ; and fometimes, to each, fuch a conditional 
 claufe is added, which, from the firfl words of it, when 
 all legal 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 premifes,'' before fuch 
 a particular day." But it is not abfolutely neceflary, 
 that, to produce its proper efFeft, this claufe fliould 
 exaftly run in thefe words : " of and upon the premifes" 
 may be fupplied by other words equivalent ; " fo as 
 the fame award be made and delivered by a particular 
 day" admit of a limilar conftrudtion, the " fame" hav- 
 ing a reference to every thing before mentioned.^ 
 
 A PROVISO, that the aw^ard be made on or before a 
 certain day, implies a provifo that it be made of the 
 preraifes, though that be not exprelTed, and therefore 
 all the qualities neceflary to conftitute a good award, 
 where the provifo is full, are equally necelTary in the 
 other cafe.* 
 
 And where a provifion is made for the appointment 
 of an umpire, in cafe of a want of decifion by the ar- 
 bitrators, it is fufficient that the claufe of ita quod be 
 inferted with refpeft to the arbitrators, though it be 
 not repeated with refpeft to the umpire; for the 
 refence to the umpire is only an addition of time, and 
 not the conflitution of a diftinft power.^ 
 
 3 Cro. El. 838. pi. 14. vid. 
 
 Al. 52. 
 ■♦ Lee r. Elkin. 13 W. 3- 
 
 LutW. 202. 
 
 ^ I Keb. 791, 865. I Ler. 
 140.
 
 176 
 
 frtE A^^'ARD OR VMriRAGE. 
 
 Where the fubmiffion is of certain things fpecifically 
 named, with this ptovifional claufe, the arbitrator ought 
 to make his award of all, otherwife it will be void.* 
 
 But where the fubmillion is general of all matters 
 in difference between the parties, though there fhould 
 happen to be many fubjefts of controverfy between 
 them, if only one be figniiied 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 is to 
 determine according to what is alleged and proved. 
 It is the bufinefs of the parties grieved, who know their 
 own particular grievances, to fignify their caufes of 
 controverfy to the arbitrcitor ; for he is a flranger, and 
 cannot know any tiling of their difputes but what is 
 laid before him. If any other principle prevailed, 
 many awards might be avoided, fays the fame autlior ; 
 for one might conceal a trefpafs committed, or other 
 fecret caufe of a£lion, which he had againfi: the other, 
 and fo avoid the award, which would counteraft the 
 very principle on which thefe domellic judgments are 
 recognized by the law.^ 
 
 And if, in the cafe of fuch a general fubmiffion, an 
 award concerning one thing only be m.ade, it fhall be 
 prefumed till the contrary be fliewn, that nothing elfe 
 was referred to the arbitrator.^ 
 
 « 8 Co. 9S. Bafpole's cafe. 
 
 5. P. Hammond v. Hatch. 
 Goldft). 125. pi. 14. 19 H. 6. 
 
 6, Fhbt. Abr. 51. a. Rol. 
 Arb. L. 9. 
 
 7 S Co. 98. b. cited Hob. 
 
 49. Rol. Arb.I. 7.S. Brownl. 
 63. 2 pt. 309. 
 
 8 Vid. all thefe points ad- 
 judged. Middletcnv. Weeks. 
 Cro. Jac. 200. Ormlade v. 
 Coke. Cro. Jac. 355.
 
 THE AWARD OR UMPIRAGE. I'j-f 
 
 Pending an aiftion of trcfpafs, the parties referred 
 the matter to arbitration. The fubmifTion was, in 
 general terms, of ail adions, controverlics, 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 expcnce on both fides ; 
 and it being left to me to make an end of it, I deter- 
 mine that they Ihall each of them pay his own charges 
 at law ; and that tlic defendant pay the plaintiff five 
 fhillings for his making the firfl breach in the law." 
 The defendant, by confent of the plaintiff and leave of 
 the court, pleaded this award, in bar of the aftion ; 
 one objeftiQn made to it was, that the fubmiffion pur- 
 ported to be of feveral matters, and the award was of 
 one ; but the court held unanimoufly, that as it ap- 
 peared, that this particular fuit was depending between 
 the parties, and the arbitrator had decided on it, and 
 the parties had not deiired to be heard on any more 
 than this one ; there was no probable prefumption that 
 any other fubfifled between them.^ 
 
 And notwithflanding the provifional claufe inferted 
 in a general fubmiffion, it fliali not be prefumed, tliat 
 any other difference appeared between the parties than 
 thofe included in the award, unlcfs it be fhcwn by the 
 party objefting to it on that account. — Thus, where the 
 fubmiffion was of all matters depending to the 29th of 
 January," fo that. Sec." and the arbitrators 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 w-as held 
 
 « Vid, the Coblei's Award. 1 Bur. 274 et feq. 
 o
 
 I7S 
 
 THE AWARD OR UMPIRAGE. 
 
 good, becaufc it did not appear that any matter was 
 depending on the 29th which was not depending before 
 the 28th, and becaufe, without fpecial matter Ihewn, 
 it fliould be intended a good award, with the averment* 
 that it was made " of and upon the premifes." ' 
 
 The fame determination has been given in many 
 other fimilar cafes,^ and in one it was faid by the court, 
 that there was no occafion for an averment, that thefe 
 were all the matters depending at the time of the fub- 
 million ; " now depending " could not be, unlefs they 
 had been in fuit before the 29lh ; becaufe " a fult 
 cannot be faid to be begun and depending all on the 
 fame day." — I cannot, however, fubfcribe to the ac- 
 curacy of this obfervation, nor can it at all apply to 
 any other cafe, where the diflance of tmie betweea 
 that mentioned in the award, and the date of the fub- 
 miffion, is more than one day. 
 
 Though the provilional claufc be inferted in a. 
 general fubmiffion, yet it will be no objeftion to the 
 award, that the arbitrator had notice of a demand of a- 
 certain finii by one party againll the other, and that 
 he made no award of that, if in other refpefts the 
 award be good. Thus, where the award was, that the 
 defendant fhould pay to the plaintiff feveral particular 
 fums, on fo many dillinft accounts, and that on the 
 payment of fuch fums, they fhould give to each other 
 general releafes ; the defendant pleaded, that the 
 plaintiff was indebted to him for fees and diiburfements 
 
 ' T.7 Car. B.R. Ward v. 
 Unwin. Rol. Arb.B. ^4. Cro. 
 Car. 216. 
 
 = Bufsacldv.Buf:field. Cro. 
 
 Jac. 577. Ley V. Paynes. H. 
 15 Jac. ct eod. term. Maye 
 V. Saviiuel. Rol. Arb. M. 5. 
 Hob S.C. 258.
 
 THE AWARD OR UMPIRAGE. T79 
 
 as an attorney in the fum of 4I. 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 allow him that in the award ; but that the 
 arbitrator made his award as fet forth by the plaintiff, 
 without any allowance made, or conlideration had ot 
 the faid 4I. notwithftanding the notice ; but it was held, 
 that this was no objeftion to the award, becaufe the 
 arbitrator was not bound to make the allowance, as he 
 might coniider it as not a jufl claim ; he was the proper 
 judge whether it ought to be allowed or not, and he had 
 given his judgment by ordering general releafes.^ 
 
 Where the reference is general " of all matters in 
 difference between the parties," yet if one of them 
 omit to affert any particular claim, and the arbitrator 
 of courfe make his award without confidering that 
 demand, the party is not bound by the aAvard from 
 afterwards enforcing the claim omitted by a fuit in the 
 ordinary courts, 
 
 In an aftion of covenant the defendant, among other 
 things, pleaded that in a former term an aftion \vas 
 brought againft him by the piaintiff for fome other 
 matter, on which " all matters in difference between 
 them" had been referred to arbitration; that the arbi- 
 trator had ordered feveral fums to be paid to the 
 plaintiff by the defendant, and that the parties fhould 
 give each other general releafes ; and that the de- 
 fendant had paid the money, and that general releafes 
 were given ; the plaintiff replied, that the matters 
 which were the fubjed" of the prefent a£tion were not 
 
 * Birks Y, Trippet. i Saund. 32, 3?. 
 O 2
 
 THE AWARD OR, UMTIRAGK. 
 
 before the arbitrator : the defendant demurred ; and 
 after argument Lord Mansfield faid the only queftion 
 was, whether a fubmilTion of all matters " in differenee" 
 was a fubmifiion of matters " ?/5M'n difference;" and 
 judgment was given for the plaintiff.'* 
 
 In a fubfequent a£lion for money had and received 
 by the defendant to the ufc of the plaintiff for eighteen 
 bags of red Dutch clover, the defendant pleaded, among 
 other things, an award ; the plaintiff replied that the 
 fubjeft of the prefent aftion was not included in the 
 matters referred : iffue being joined on this, a trial was 
 had before Lord Kenyon ; the plaintiff called one of 
 the arbitrators to prove that this matter had never been 
 laid before them, and that confequently they had not 
 taken it into their confideration, in forming their award ; 
 objeftion was taken to this evidence on behalf of the 
 defendant, on the ground that the fubmiff on included 
 *' all matters indifference;" his Lordfliip thought he 
 was bound by the terms of the reference to rejedl the. 
 witnefs ; and non-fuitcd the plaintiff: an application 
 being made to the court to fet afide the non-fuit, Mr. 
 Juftice Duller referred to the cafe immediately pre- 
 ceding as having decided the point ; a new trial was 
 had ; the witnefs was admitted, and the plaintiff' had a 
 verdift : a motion was made to have this verdift fet 
 afide and a new trial granted, on the ground that the 
 reference being of " all matters in difference," the 
 award was conclufive on the parties as to all caufes of 
 adlion fubfifling between them previoufly to the fub- 
 
 3 Golightly V. Jellicoe. Hil. q G. 5. B. R. 4 Term Rep. 147 in 
 the Notes.
 
 THE AWARD OR CMPIRAGE. 
 
 l8[ 
 
 n)iflioii. The court held there was no colour for tlic 
 motion, for that the plaintiff might undoubtedly Ihew 
 that the fubjeft of the prcfcnt aftion was not a matter 
 in difference between him and the defendant at the 
 time of the fubmiffion, nor was referred by them to 
 the arbitrators. 5 
 
 These dccifions are in perfeft conformity with the 
 rule of the civil law.^ 
 
 An award of one particular thing, for the ending of 
 a hundred matters in difference, is fufficient : as, where 
 the fubmiffion was of all matters in controvcrfy, and 
 the award, taking notice of feveral matters, ordered the 
 defendant to pay to the plaintiff four pounds, for 
 arrearages of rent, and towards the repair of the houfc ; 
 this was held fufficient.'' 
 
 In the cafe of a fubmiffion of fpcciiic fubjc£ls of 
 difference, if no condition be annexed that the award 
 fhall be made " of and concerning the premifes," it is 
 faid the arbitrator may make his award of any of them, 
 without confldering the others.* This, however, ap- 
 pears to be a hard meafure of juftice, unlefs it be 
 accompanied with the {qualification allowed in tlie cafe 
 
 5 Ravee V. Farmer. 4 Term 
 Rep. 146. 
 
 * De rebus controverfiifque 
 omnibus compromKTum in ar- 
 bitrum a Lucio Titio et 
 Moevio Sempronio faftum 
 eft, fed crrore qusedam fpecies 
 in petitionem a Lucio Titio 
 deduftse non funt, nee arbiter 
 de his quicquam pronuncia- 
 vit : quaefitum eft an fpecies 
 omiflspeti poifint ? Refpondi, 
 
 peti pofTe nee pccnam ex com- 
 prominTo committi ; quod (i 
 maligne hoc fecit, petere qui- 
 dem poteft, fed poenae lub- 
 jugabitur. — Ff. I.4. t. 8. f. 43. 
 
 7 Hopper V. Hacker. i 
 Keb. 738. I Lev. 132, 133, 
 
 « 8 Co. 98. a. M. 5 Jac. 
 Middleton v. Weeks. Rol. 
 Arb. L. 2. 3. Dift. pr. May- 
 nard. 2 Vern. jqo.
 
 iSi 
 
 THE AWARD OR UMPIRAGK 
 
 of a general fubmiffion, that the party may notwith- 
 ftanding the award bring his aftion for the fubjed 
 omitted. And indeed there is a cafe reported, in 
 modern times, which, as far as a decifioa at n'lji ■pr'niSy 
 reported by one whofe authority is not the moil 
 refpefted in Weflminfter Hall, can be confidered as an 
 authority, direftly contradicts the general principle 
 here bid down.'' This was an aftion of debt, on a 
 bond conditioned 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 parties which had been laid before 
 them, though there was no provifional claufe of " Ita 
 qiiody And the arbitrators having overlooked forae 
 matters that had been laid before them in the prefent 
 cafe, a verdi£l was given for the defendant. 
 
 As it is of feveral particular things, fays Lord Coke,* 
 fo it is of feveral particular perfons, and therefore, if 
 two on one fide and one on the other fubmit, the ar- 
 bitrator 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.- . 
 
 Therefore where the fubmiflion was by two 
 plaintiffs on one fide, and defendant and his wife of 
 the other, of all matters and controverfies between 
 them, " or any of them ;" the award was held good, 
 though nothing was awarded concerning the defendant's 
 
 9 King V. Hammerton. z 
 Geo.2. I Barnard. K.B. 316. 
 ' 8 Co. 98. a. 
 - Vid. z R. 3. i8. Brooke 
 
 4.4, cited Plowd. 2S9. I Keb, 
 885, contra. i Lev. 140. 
 Bean v. Newbury. 16 Car. 
 2. B, R.
 
 THE AWARD OR UMPIRAGE. l8^ 
 
 , . , ^ . 
 
 wife, on account of the words, *' between them, or any 
 of them." ^ 
 
 So, if A and B on one fuk, and C on the other, fubniit 
 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 fubmiffion fliall be taken diftributively, 
 and perhaps tliere was no matter between B and C/ 
 
 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 therefore, on fuch a fubmiffion, 
 an award of a fum to be paid by one of the two to the 
 fingle party is good ; though it was objefted, that the 
 fubmiifion muft be undertlood of joint demands, and 
 that therefore an award of a feparatc debt was not 
 within it.^ 
 
 But if, in fuch a cafe, it appear in the fubmiflion, 
 that there were differences between the perfon on one 
 fide, and all the parties on the other, and the fub- 
 miffion be wnth the provilional claufe, the award muft 
 comprehend all the parties, becaufe the fubmiflion is 
 under a condition that it fliall do fo.^ 
 
 This diftinftion, "with refpeft to the fubmiflion 
 being conditional or not," is faid not to hold in the cafe 
 of a reference by a rule by confent of parties in a court 
 of equity; for there, it is faid, unlefs the award com- 
 prehend all matters referred, it will be fet aflde, as not 
 being a determination purfuant to the terms of refe- 
 
 5 Hardres 399. 
 
 4 Arnold v. Pole. Rol. Arb. 
 D. 5. Carter v. Carter, i 
 ■\'ern. :^o. 
 
 / Ahhelftone v. Moonc et 
 Willis. Comyns 5^7. 
 
 ® Harris v. Paynter. Rol, 
 Arb. O. 5. cited Lunv. i6;S 
 
 o 4.
 
 r84 THE AWARD OR UMPTRAGE. 
 
 rence.^ Perhaps fomething like a reafon may be given 
 for this apparent difFerence in the clo6lrine held on the 
 two different fides pf the hall. — And perhaps the dif- 
 ference is more in appearance than in reality. — In the 
 conditions of fubmiffion bonds, though there may in 
 fadl be but one fubjed of difpute between the parties, 
 yet a great variety of general and comprehenfive words 
 is frequently inferted, which would, if in fa£t there 
 were ever fo many fubjefis referred, include them all ; 
 but the infertion of which does not imply the exiflence 
 of more than one. The courts of law, therefore, do 
 wifely in impofing, on the party objefting to the award 
 for this caufe, the burthen of Ihewing that in fad a 
 greater number of things were laid before the arbitrator 
 than he has determined : but when a reference is by 
 rule of a court of equity, a greater precifenefs is pro- 
 bably obferved in the defcription of the fubjeds re- 
 ferred, and, by omitting to decide on any one in par- 
 ticular, the arbitrator does not fulfil the intention of 
 the court, which is to have as final a determination by 
 his award as would have been made by a decree. 
 
 Or if the rule be drawn up in general terms, it can- 
 not be lefs neceffary in a court of equity than in a 
 court of law, for the party objefting to the award, be- 
 caufe it is lefs comprehenfive than it ovight to have 
 been, to fliew accurately that fomething was in reality 
 in difpute which is not comprehended in the award. 
 
 If an award be of any thing wdiich is 
 uj ,!ot 'v^g^^j^-^ }2^y^ it is void, and the parties not 
 
 any Thing 
 
 . „ r bound to perform it.'* As by the Roman 
 law no penalty was incurred by non per- 
 
 " Hide V. Petit, x Cz. Cli. i86. Colwel v. Child. Id. 87. 
 « 19E. 4. J. Rol.Arb. G.
 
 THE AWARD OR UMIMRACE. 
 
 18: 
 
 formaiice of any thing awarded which was diflionour- 
 ablc.'' 
 
 And it was once held, that an award of a recom- 
 pence for an injury, for which no damages are re- 
 coverable at law, was void : thus an award, " tbat the 
 defendant fhould pay the cofts of a fuit, inllituted 
 againil him for w^ords," was held to be void, if the 
 words were not a£tionable ; and for that reafon it v/as 
 adjudged, that the words ought to appear in the award, 
 that the court might determine whether they v/cre 
 aftionable or not/ 
 
 But this Iras fince been denied to be law, and it has 
 been held, that the plaintiff is not bound to Ihew that 
 there was caufe of aftion, that being left to the arbi- 
 trators to determine who have power to award damages, 
 though, in point of law, there was no caufe of action, 
 becaufc the parties have made tlie arbitrators their 
 judges.^ 
 
 An award of a thing which is not phyli- 
 cally or morally in the power of the party ^ "/ "" " v 
 to perform, is void ; as that he mail deliver ^.,^^/^ 
 up a deed which is in the cuftody or power 
 of a perfon over whom he has no controul;^ that he 
 fhall procure a ftranger 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 Ihall procure 
 the juijices of the Common Pleas to fit, in order that 
 
 9 Non debcnt autem obtcm- 
 perare litigatores, fi arbiter 
 aliqiiid non lioneftum jufTcrit. 
 Ff. 1.4. t. 8. f. II, n. 7. 
 
 • ViJ. I Sid. 11. 
 ' Hanfon v. Liverfec^ge. t 
 \V. and Mary. 2 Vtnc. 243. 
 ' 11 Mod. 535.
 
 tS6 
 
 TH-E AWARD OR UMPIKACF. 
 
 he may levy a fine ;■* or that he fhall procure the lord 
 of a manor to grant a copyhold, or a flrangcr to make 
 a roleafc or confirmation of an eftate ; ^ or to pav a 
 fum of money at a day which was paft at the time of 
 the award ;^ but in this cafe he ought to pay the 
 money, the payment bein.g the effence of the award, 
 and not the payment on a particular day : that he Ihall 
 enter into an obligation to tlie otlier immediately after 
 the avvard ; for f(">me time is neceffary.^ Yet perhaps 
 at the prefent day " immediately" would be conilrued 
 *' within a reafonable time." An award, however, that 
 the one party fliall infeoff the other in an acre of land, 
 and immediately after deliver rip the title deeds ; or enter 
 into. a bond, and immediately after pay the mioney, 
 would be good, becaufe neither of them is impofliblc.^ 
 
 BiTT an award, that the defendant flia 11 be bound 
 ,witli furcties, fuch as the plaintiit Ihall approve, is void; 
 for it may be impoITible to force the approbation of the 
 plaintiff.^ 
 
 So, we arc told, an award is void which orders the 
 party to do fomcthing which has been already done, or 
 which, if it were done, would not be effeftual to anfwcr 
 the purpofe intended : as if it be awarded, that A fliall 
 relcafe to B the furety of the peace which he has againft 
 him in the King's Bench, when, in fa6l, before that, 
 B has purchafed a fuperfedeas out of Chancery, dire^ed 
 to the iuflices to difchargc the furetics in the King's 
 
 4 19 Ed. 41. 1. Rol. Arb. 
 F. .. 3. 4. 
 
 5 28 H.6. Mo. 3.PI.3. 
 
 « 8 Ed. 4. 21. Rol.B. 17, 
 7 18 Ed. 4. I. Rol. Arb. E. 
 
 II. I, 
 
 8 ,8 Ed. 4. 21. R9I. Arb. 
 E. II. 2, 
 
 5 3 Mod. 172, Z73.
 
 THE AWARD OR UMPIRAGE. 187 
 
 Bench, becaufe he had found fureties in Chancery, and 
 the JLifticcs have accordingly difcharged them. — Or if it 
 be awarded, that he fliall rcleafe his fuit againft B, 
 when in fad; he liad no fuit againft him ; or that he 
 fhall releafe all his right in a certain manor, when in 
 fad: there is no fuch manor, or he has no right in it.' 
 
 And in general, in this refpeft, a diftindion 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 performance : but the duty of 
 an arbitrator is to judge reafonably and impartially 
 between the parUes, and he departs from that principle, 
 when he orders any thing which it is not phyfically or 
 morally in the power of the parties to do.^ 
 
 But it is no objeftion to the award, that it is difficult 
 for the party to perform it, from the accidental nar- 
 rownefs of his circumftances ; as if it 'be to pay 20I. 
 when he is not worth a groat, or to give 20 tons of 
 wine when he has not one.^ 
 
 And, if the party's doing that which is awarded will 
 have weight with the court to give effed to it, he ought 
 to do it ; as in the cafe of releafing the other from 
 fureties of the peace, where he is bound to keep the 
 peace towards the releafor and all the king's fubjeds ; 
 though, by his releafe, he cannot difcharge the party 
 fo bound, becaufe every fubjed has an intereft in the 
 recognizance : ^ yet he ought to releafe, becaufe his 
 
 ' aiEd.4. 38. 39. Br. Arb. || 3 id. ibid. cont. iS Ed. 4. 
 40. I iRol.Arb. E.U.z. F. 2. 
 
 ' 19 Ed. 4. I. Rol. Arb, t zi Ed. 4. 40, 41.
 
 iS5 
 
 THE AWARD OR U M P I R A G F . 
 
 releafe fhewn to the court -will be an inducement to 
 them to difcharge the recognizance. ^ 
 
 In the cafe, too, of an award that one of the parties 
 fhall procure a ftranger to do a thing, a diftinflion is 
 taken between the cafe, where lie has no power over the 
 ftrangcr to compel him, and that where he has power, 
 cither by the common law, or by bill in equity. In 
 the former cafe the award is void, for fo much as 
 concerns the flranger. In the latter it is good ; as if a 
 Ilranger to the fubmiffion be feifed to the ufe of one of 
 the parties, and the arbitrator award, that the latter 
 fliall caufe the feoffee to ufes to give a releafe to the 
 other who is in pofTeffion ; this is good, becaufc the 
 crjluy que ufe has fuch intereft and power over the 
 feoffee, that by fubpoena out of Chancery he can 
 compel him to releafe.* 
 
 So, if it be awarded that one fhall pay a fum of 
 money to the other, and that in conlideration of that 
 he fliall acquit him of a bond in which they are both 
 bound to a third perfon ; here, though a third perfoii 
 be in fome meafure to concur, yet it is held, that the 
 award is good ; for if the penalty of the bond be not 
 incurred, he may difcharge the principal fum at the 
 day ; if the penalty be forfeited, he may pay, and 
 compel the obligee in equity to deliver up the bond.^ 
 The fame obfervation applies to an award that one of 
 the parlies fhall difcharge the other of his undertaking 
 
 5 2 Hawk. Leach. 257, 
 Qn-TS. et vid. as to the releafe 
 of fureties of the peace, Jenk. 
 
 * 17 Ed. 4. 5.b. Ro!. Arb. 
 
 F. 1. 
 
 'Darfey v.Clip(ham.March, 
 18. I Rol. Arb. page 248. n. 
 II, vid. ante page.
 
 THE AWARD OR UMPIRAGE. 
 
 IS.) 
 
 to pay a debt to a third pcrfon.^ On the fame prin- 
 ciple, it is faid, that, admitting no ohjeftlon will hold 
 to an award of a dilconti nuance, or of a nonfuit, on 
 account of its not being final, fuch an award is good ; 
 though there muft be an a6t of the court, for it is in 
 the power of the party, fays Rollc, to make default, 
 or to deny the action." 
 
 Muji h: reafcn. \^ an award mull not be of a thing im-. 
 "^■'" poflible, fo neither mull it be of a thing 
 nnrcaionable. Therefore an award, that the one party 
 Ihall ferve the other for any period of time, is void ; 
 for It is unreafonable, as being contrary to the fiiil 
 principles of civil liberty/ On the fame principle, an 
 award is void which orders tlie party to do a thing, in 
 ihe performance of which he may fubjcft himfclf to 
 an a£lion from another : thus, in the times of ancient 
 nicety, an award was corifidercd as void, which ordered 
 the party to pay money " in" the houfe of a flranger, 
 becaufe he could not enter the houfe of a llranger 
 without committing a trefpafs. But, that he flioukl 
 pay the money " at" or " near" the houfe, was held 
 good, becaufe he might go to the houfe w^ithout en- 
 tering it and committing a trefpafs:^ unlcfs the owner 
 of the houfe has land adjoining to it, fo that the party 
 cannot come to the houfe without trefpaffing on the 
 land, for then the award was confidered as void.'' But 
 
 * Bcckct V. Taylor, i 
 Mod. g. 
 
 9 Rol.Arb. F. <;. 6. 
 
 ' 9 E. 4. 44 Rol. Arb. B, 
 it. 
 
 » Rol. Arb. E. 2. where 
 
 many cafes are cited. Linfey 
 V. Afliton. iBuIft.jg. Anon. 
 I Kcb. ()i. Rol. Alb. F. 10. 
 I Rol. Rep. 6. 
 
 ' Taverner v. Ski.i^lcy. 
 Rol, Arb. K. 3.
 
 T90 THE AWAKD OR UMPIRAGE. 
 
 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.-* And now an award to 
 pay at or in the houfe receives the fame conilrudion, 
 and is taken to imply a licence to go to the houfe ;5 
 efpecially, if it be in the houfe of the arbitrator him- 
 fclf, for there a licence fhall be prcfumed.'' Or at Icaft 
 flie party may pay at the door of the houfe, if he 
 cannot obtain permiffion of the mafter to pay it in the 
 houfe.' It is on the principle of being unreafonable, 
 tliat 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 face of the award that more was really 
 duc.^ But where it does not appear by the award that 
 a larger fum is really due. but that it is only in de- 
 mand, an award of a lefs fum is good. And if the fub- 
 milTion be of all matters in difference, though the ar- 
 bitrator do not direclly take 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 
 tlie whole, that nothing more was due than he has 
 given. Thus, where to debt on bond for performance 
 of an avv'ard, the defendant pleaded " no award made ;'* 
 and the plaintiff in reply fet forth an award, in v^rhich 
 the arbitrators took notice of 72I. being in conlroverfy 
 for rent due, and awarded 50I. in full f:rtisfaftion and 
 geneial relcafcs to be given ; but it did not appear by 
 
 -» S. C. Cro. Car. — G. 
 5 Alley V. Cox. 2,7 Car. 2, 
 ? Keb. 479. 
 '' Freem. 205. 
 " Holland v.HeUvis. 3 Lev, 
 
 153. 
 
 * Cont. 45 Ed. 3. 16. where 
 it is by fimple contraft. Br. 
 44. b. 3CC. RoJ. Arb. J.4.
 
 THE AWARD OR UMriRACE. I9I 
 
 the award that any other matter had been in contro- 
 vcrfv, though the fubmiillon was general. "J he court 
 were of ophiion that the award was good ; and further 
 remarked, - that it was fingular the objeftion fliould 
 come from tlie defendant, in whofc favour the award 
 was; for by his objeftion he infilled on paving 72!. in- 
 ilcad of 50I. The llrength of the objeftion, however, 
 muft have been, that the award for a lefs fura was void, 
 becaufe payment of the lefs fum in purfuance of it, if 
 the award was not good, would not be a bar to the 
 plaintiff in another aftion for the original debt.^ 
 
 On me fame principle, of being unjuft and unrcafon- 
 able, it has been held, that, where the qucflion m dif- 
 pute was the taking away of the plaintiff's goods, an 
 award, *' that he fhould have part of them returned, 
 and that the defendant fhould retain the reft," is void/ 
 But if it had appeared that there was a difpute about 
 the property of the goods, an award " that the plaintiff 
 fliould have part, and the defendant fliould rctaiji the 
 reft," might have lieen fuftained ; for then it mufl have 
 been underftood, that the arbitrator adjudged the pro- 
 perty -of fo much as he ordered to be retained, to have, 
 been in the defendant. 
 
 An award muft not be of a thing which 
 is merely nugatory, without anv advantage 
 to the parties ; therefore an award that one 
 of them fhall go to Rome, or to St. Paul's, is void, for 
 it can be of no fevvice to the other.* So if a man and 
 
 9 Godfrey V. Godfrey, 2 11 44. b. Ace. Rol.. Arb. J. 5. 
 Mod. 304-. - 9 VA. 4. 44- R«!- Arb. 
 
 1 Conr.M. 4< E. 3. 16. Br. 'i T.ii.
 
 19^ 
 
 THE AWARD OR UMPIRAGE. 
 
 woman fubmit to arbitration, and it be awarded that 
 they fliall intermarry, this is not binding; for one rea- 
 fon, among others, that it cannot be prefumed to be 
 advantageous to them.^ So it is not a good award that 
 one Ihall give a releafe to the other of land in fatis- 
 faclion of an aftion, if he to whom the releafe 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 fubmiffion, 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 fubmiffion of a'l 
 matters, the arbitrator had awarded that he fliould de- 
 liver up all the evidences concerning the land, in fatis- 
 faftion of a certain aftion ; 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 aftion.'^ 
 
 Mutual releafes are advantageous, and therefore 
 an award of them is good ; and the condition of a bond 
 to iland to an award will be broken, by not giving 
 them, though there be no other means of compelling 
 performance than by an a£tion on the bond.^ 
 
 5 Id.ibid.etRoI, Arb. J- »o. 
 
 ♦ Vid. all thcfc points id- 
 
 fuJgcd, 9 E. 4. 44. a, b. Rol. 
 
 Arb. J. 10, II, la, 13, 15- 
 5 Id. iliJ. ct vid. Freeir.
 
 THK AWARD OR UiMPIRAGE. I (j j 
 
 But the courts formerly went further than merely 
 to require that an award fliould be advantageous ; they 
 required that it Ihould give fometliing which appeared 
 exprellly to be a recompence to the plaintiff againft 
 whom it was pleaded. On this principle, it is held in 
 many places,^ that an award that each party fliall be 
 quit againfl the other of the trefpaifes committed on 
 one another, becaufc thefe trefpafles were equal, is 
 not a bar to an adion by one of them for the original 
 trefpafTes, becaufe, fay the books, one mull have a 
 recompence. In other places,^ however, fuch an award 
 is held to be good, as indeed there feems no rational 
 objedlion to it. On the principle of a recompence 
 being neccflary, an award " that the plaintiff fliall have 
 his goods again, which had been taken by the defend- 
 ant," it is faid, is not good, becaufe it gives no fatis- 
 faftion for the taking and detention ; ^ but, that if it 
 be added that they fhall be carried to fuch a place at 
 the expence of the defendant, this is a fatisfaction : 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 4CS. 
 the one fliall go quit againft the other is good, becaufe 
 it is a fufficient fatisfadion.' 
 
 * 43 Ed, 3. j8. b. 29, a. 
 Brooke, 44. b. Rol. Arb. J. i. 
 21 H.6. 21 H. 6. 39 a. 9 Ed. 
 4- 44. Fhbt. 51. b. 
 
 7 10 H. 6. 14. Br. 43. 19 
 Ed. 4. 8. Br. 38. Rol. Arb. 
 
 J- 7. 
 
 8 12 H. 7. 14, 15. Vid. 45 
 Ed. 3. i6. Rol. Arb. J. 3. 
 Br. 3^. 
 
 9 19 H. a. 37. b. Rol. Arb. 
 J. 6,
 
 194 
 
 THE AWAKn OR UMPIRAGE. 
 
 JVf!v/? Le certain. 
 
 If on a fubmillion of a trefpafs, it is faid, the arbi- 
 trator award, that if the defendant will fvvear that he 
 is not guilty, he fliall go quit, and he accordingly 
 fwear, this is not a good award, and cannot be pleaded 
 to an aftion of trefpafs, becaufc, fays the book,^ 
 nothing is awarded to be paid ; or rather, fays Rolle,^ 
 it cannot be intended to be the fame trefpafs of which 
 he waged his law. 
 
 As the intention of parties in fubmitting 
 their difputes to aibitration, is to have 
 fomething afccrtained which was uncertain before, it 
 IS a general rule that the award ought to be fo plainly 
 exprefled, that there may be no uncertainty in what 
 manner the parlies are to put it in execution, but that 
 they may certainly know what it is they are ordered to 
 do. It is to no purpofe, fays the civil law,^ that tlie 
 arbitrator fliould pronounce an uncertain award ; and 
 the Englilh law has, in this refpeft, adopted the fame 
 language.^ Therefore an award, " that one of the 
 parties fliali pay the other for certain tafk work and 
 days work, without mentioning the fum," is void.^ 
 
 The plaintiff and defendant having certain difputes 
 concerning a piece of land, fubmltted them to arbitra- 
 tion* The arbitrator awarded, amongft other things, 
 
 ' 46 Ed. 3. t7- Fhbt. 5^. 
 b. Brooke, 44. b. vid, Rol. 
 Arb. I. z. 
 
 ' Rol. Arb. X. 7- 
 
 3 Pomponiiis ait, inutilitcr 
 arbitrum incertam fcntentiam 
 dicerej inputa, qunnlum ei 
 elik'i udde, divifioni veftrae 
 
 ftari placet, pro ea parte, quam 
 creditoribus tuis folvifti, ac- 
 cipe. Ff. 1.4. t. 8. f. 2 1. n. 3. 
 
 ^ 10 Ed. 3. i3. 5 Co. 77. 
 b. 7S. a. 
 
 5 Pope V. Brett. 2 Saund. 
 291, 293.
 
 THE AWARD OR UMPIRAGE. I95 
 
 that tlic defen.-^ant fliould enter into a bond to the 
 plaintiff, that the plaintiff and his wife fliould enjoy 
 the land; this was held to be void,becaufe the arbi- 
 trator had fixed no certain funi for the penalty of the 
 bond ; and there was no means by which the fum 
 could be afcertained ; for it was held, that this did not 
 referable 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 exprelTed in the covenant, it is 
 implied that the penalty fhall be equal to the amount 
 of the land.* 
 
 Two fubmitted all matters in contr^verfy between 
 them, and it was av^arded that the one Ihould pay to 
 J. S. the one half, ard 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 againft one ^ held the 
 award was bad, for uncertainty in not having men- 
 tioned th'c fum. But one ^ of the two thought that this 
 might have been aided, by an averment that the two 
 ftrangers were bound to J. S. in no other obligation 
 but this." 
 
 The fubmiflion was " of all controverfies concerning 
 the right, title, and pofleffion of 200 acres of land, 
 called Kcljlorne Linge\ it was awarded, that in the 
 
 5 Samon's cafe. 5 Co. 77, 
 78. Rol.Arb.Q^i.4. Cro.El. 
 43Z. pi. 40. Mo. 359. pi. 489. 
 
 7 Dodcridge and Houghton, 
 Montague e contra. 
 
 3 Houghton. 
 
 9 Gray V.Gray. Rol. Arb. 
 0^2.3. Cro. Jac. 525. Godb. 
 275- 
 
 P 2
 
 196 THE AWARD OR UMl'IRAGE. 
 
 vjcijlc lands of the vill of Kelftoine, the one fhould have 
 the brakes growing there during his life, paying to the 
 other 2s. per annum, but in the award no name was 
 given to the land where the brakes grew ; and for this 
 rcafon the award was 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 Kelftorne Linge in the fubmiflion, and no other 
 nor diverfe:" becaufe they faid they could not expound 
 the intent of the arbitrators/ 
 
 1'he condition of a bond being to perform the award 
 of J. S. made between A. and B. of all controvcrfics and 
 demands between them, it was awarded, " of and con- 
 cerning the premifes," that A. fliould permit B. to 
 enjoy certain leafes of certain lands then in his pof- 
 feffion, 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. Ihould pay the 
 arrears of rent due to A. after his purchafe : notwith- 
 ilandlng an averment that there were two fliillings of 
 the arrears of rent then due, the award> as to the pay- 
 ment of the arrears, was held void for uncertainty, 
 becaufe it did not appear by the award, at ivhat time 
 after the purchafe, the rent became due ; for that B. 
 the lefTee, could not know at what time A. the plaintiff, 
 purchafed the reverfion of W. S. nor had he any means 
 of knowing it, unlefs A. or W. S. would inform him, 
 which he could not compel them to do.- 
 
 Perhaps, in the three lafl cafes, the courts appear 
 to have been abundantly nice ; the fame obfervation 
 
 ' D. 8 El. 242. 52. per curiam. Rol. Aib. Q. 5. 
 * Mafl'oy V, Aubrey, after verdift for the plaintiff. Rol. Arb.Q. 9.
 
 THE AWARD OR UMPIRAGE. 
 
 it)7 
 
 dv)cs not apply in an equal degree to fome of tliofe 
 which follow. 
 
 To an aftion on the cafe for the value of a quantity 
 of malt, the defendant pleaded a fuhmiilion to arbitra- 
 tion, and an award that he Ihould pay to the plaintiff 
 fo much for each quarter as a quarter of malt was then 
 fold for ; the award was held to be void for uncertainty, 
 becaufe it was not mentioned in what place the price 
 was to be taken, and perhaps in one market it might oe 
 fold for a greater price than in another.^ 
 
 An aw'ard, " that the defendant fhall deliver certain 
 goods particularly named, and three boxes, ^.n^iL feveral 
 books, without naming the books," is liable to the 
 fame objeftion of uncertainty : the books fhould have 
 been particularly defcribcd, unlefs it had been faid that 
 the books were within the boxes, by which they would 
 have been fufficlently afcertained."^ So, an award, 
 < that one of the parties fhall deliver up to the other a 
 certain 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 was obtained.* 
 
 The fame tiling has been faid of an award " that 
 one of the parties fliould give fecurity for the payment 
 of a fum of money," either in one grofs fum, or at 
 different fpccific times, or annually for life ; becaufe, 
 it is faid, he cannot tell what kind of fecurity is meant, 
 whether by bond or othcrwife.^ 
 
 ^ Hurft V. Bambridge. ^ol. 
 Arb. 0^7. 
 
 "Cockfonv. Ogle. 13W.3. 
 Lutw. 550. 
 
 ^ Bcdam V. Clerkfon. i Ld. 
 
 Ra3-m. 114. 
 
 * Duport.v. Wildgonfe. 2 
 Bulftr.z6o. Thynne v.Rigby. 
 Cro. Jac. 314. Tipping v 
 Smiih. z Str. 1024.
 
 IgS THE AWARD OR UMPIRAGE. 
 
 It was awarded, that " one party fhould pay a 
 certain fiim to the other, by different payments at 
 feveral days, the lafc of which payments fhould be two 
 years after the award, and that on the laft payment, 
 the payee fhould give a releafe of all anions to the day 
 of the date of the releafe ; it was much debated, whether 
 the objeftion of uncertainty fliould prevail againfl this 
 award. I'he judges who argued in favour of the ex- 
 ception, and who compofed the majority,^ argued in 
 this way : It is uncertain what 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, bccaufe 
 many caufes of aftion may have accrued fmce the time 
 of the fubmlffion ; and if it mull be left to the eleftlon 
 of the party hinifelf to give fuch a releafe as will be 
 good, that is, with a date at the day of the fubmiffion, 
 he may eled to give it any other date, as before the 
 fubmiffion, which would not be fufficlent. — The judge 
 who argued in favour of the award,^ faid, it muft be 
 taken to be fuch a releafe as would be good, if exprefily 
 awarded, and then it raufl be antedated to the time of- 
 the fubmiffion, and the antedate could deceive nobody.^ 
 In fuch a cafe, the judgment of a court would, at this 
 day, probably coincide with the latter opinion. 
 
 If that, to which the objeftion of uncertainty is 
 made, can be afcertaincd either by the context of the 
 award, or from the nature of the thing awarded', or by 
 a manifeft reference to fomething connucled with it, 
 the objection will not prevail 
 
 7 Coke et Dodcridgc. 
 ^ Hoiishton. 9 Lumley V. Hutton. i RoI.Rep. 171.
 
 THE AWARD OR UMPIRAGE, 199 
 
 On a fubmilTion by bond, *' the condition of which 
 recited fevcial difFercnces between the plahitifFand the 
 defendant concerning a piece of ground fituated fu uth 
 of the plaintiff's houfe, adjoining to the river Thames, 
 and ufed as a wharf, and the cre£lion of feveral piles 
 of boards and fcaffolds on it, of whicli the phiintiff 
 complained as being a nuifance to his houfe ;" an award 
 was made, adjudging that the defendant y//o«/i^ enjoy the 
 piece of ground as a wharf, and that the fcafrolds_//(j/^/^ 
 be pulled down and removed. An aftion being brought 
 on the bond, and on the plea of " no award," this 
 being fet forth by the plaintiff, and a breach affigned 
 in the defendant's not having pulled down the piles of 
 boards and fcaffolds, the defendant demurred to it as 
 wanting certainty, becaufe it did not order by ivhorti 
 they fliould 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 trefpaffor ; 
 for it was only ordered, that he ihould ufe the ground 
 as a wharf, which rather imported that it was before 
 difputed whether it w^as his property or not ; and the 
 award, that he fliould 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 nuifance ; every 
 nuifance being abateablc by him to whom it is one ; 
 and if it were in fa£l no nuifance, yet the arbitrators, 
 by awarding that the plaintiff fliould pull it down, migh 
 have enabled him to do it without being a trefpaffor . 
 and it being left indefinite, whether the plaintiff or 
 defendant fhould pull it down, the award was void for 
 uncertainty. If any one be ready to exclaim that this 
 
 p 4
 
 2C0 
 
 THE AWARD OR UMPIRAGE. 
 
 mode of reafoning is too technical and puerile to have 
 ferioufly attradled the attention of a court, let hinn 
 treat it with more refpeft when he is told, that it is 
 the reafoning of Lord Chief Juflice Holt. — It received, 
 liowever, this anfwer from the other three judges,* that 
 the ground mull ncccflarily be confidered as belonging 
 to the defendant ; for it could not be fuppofed that the 
 arbitrators would have awarded that he Ihould ufe it as 
 a wharf, if they had not confidered it to have been his 
 ground, and by declaring the ercftion of the deals and 
 fcaffolding to be a nuifancc, and ordering it to be 
 pulled down, they could only mean that it fliould be 
 pulled down by him on whofe ground it was ere£ted. 
 The cafe was the fame as if a debtor or a creditor fub- 
 mittcd to an award, and the arbitrators fhould award 
 that the debt iliould be paid, or that it lliould be 
 releafed ; where it was manifcft that it muft be paid by 
 the debtor, or releafed by the creditor. And it was 
 compared to a cafe which had occurred in the reign of 
 Edward the fourth;- where the condition of an obliga- 
 tion was, that the great bell of Milden Hall fhould be 
 carried to the houfe of the obligee in N, at the cofls of 
 the men of M, and there weighed and melted down ; 
 and the obligee fliould make of it a tenor, kc. though 
 it was not faid who fliould weigh the bell, yet it was 
 adjudged that the obligee, who was a brazier, fliould 
 weigh it, bccaufe it belonged to his occupation to do it. 
 A writ of error, however, was brought on the judgment, 
 
 » Powell, Powis, and Gould. 
 
 * 9 Ed. 4. 3. b. Ainote v. 
 
 Breame. 6 JMod= 244. But 
 
 more fully reported in z Ld^ 
 Raynu 1076.
 
 THE AWARD OR UMPIRAGE. 
 
 which was in favour of the plaintiff, in the Exchequer 
 Chamber, but before argument the parties agreed. 
 
 It was 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 delivery, and that if any thing wus 
 ordered to be done at a certain time after the date, 
 that time fhould 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 fliould be reckoned from the 9th of OAober, 
 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 fhall acquit the 
 other of a bond of 200I. or " thereabout," in which 
 they were bound to B, for payment of 105I. or 
 *' thereabout," is fufficiently certain ; for being of a 
 bond given to a p:irticular perfon, and with a penalty, 
 and for the payment of a fum nearly afcertained, it Ihall 
 not be prefamed that there arc any more than one 
 which will anfwcr the defcription in all thefe refpefls,' 
 An award, " that the one fliall feal and deliver a 
 demife to the other, or his affigns," is certain enough; 
 it Iball be underllood, '' to himfclf."-* 
 
 An award, ** that the plaintiff (hall pay the defend- 
 ant a certain fum on a particular day, and that then the 
 defendant fhall re-affign the land mortgaged to him by 
 the plaintiff," is fufficiently certain, though it do not 
 
 3 Barfcy v. CUpfiiam on demurrer. Rol. Arb. Q. 3. 
 ♦ l^eb. 335.
 
 THE AWARD OR UMPIRAGE. 
 
 fay for what term the reaffignment fliall be, whether 
 for years, for Hfe, or in fee ; it Ihail be undcrllood to 
 be for the whole interefl mortgaged. ^ 
 
 Where the fubmiffion was of all controverfies, 
 rcfpedling a voyage, and it was awarded that, one 
 ihould pay his part of the expenccs of the voyage, and 
 allow, on account, his proportion of the lofs which 
 Ihould happen to the fliip during the voyage ;- this was 
 ^eld good, becaufc the expenccs and the lofs might be 
 afcertalned by calculation.^ 
 
 " To pay the charges of a fuit" is fufficient ; for 
 tliefe may be afcertained by the attorney's bill.^ So, 
 *' that the one Ihall pay to the other all fuch moneys 
 as he had expended about the profecution of a fuit ;" 
 for that may^be afcertained by fhewing what was in 
 faiSV laid out.'^ So, " that the defendant fhall pay as 
 the plaintiff and his attorney, by a bill and oath Ihall 
 make appear.' 
 
 So it might be fuppofed, an award between execu^ 
 tors, *' that the one fhould pay the tcftator's charges, 
 debts, &c. in the Spiritual Court, as far as his alTets 
 went," would be good, becaufe both the charges and 
 the aflels might be afcertained.' 
 
 So, it might be fuppofed, " an award of a fum, 
 provided the party to whom it is awarded make affidavit 
 of it before a magillrate," might be fupported ; but an 
 
 * RofTe V. HoJges. i Lord 
 Raym. 23 ?. 
 
 * Bealev.Bealeondemurrer. 
 Ro!. Arb. H. 24. 
 
 7 Cro. Car. 3S3. 
 
 ^ Hanfon v. Liverfedge. 2 
 
 W. and M. 2 Vent. 242. 
 
 9 Rous V. Lun. i Keb. 569. 
 et vid. ace. Linfield v. Feme. 
 3 Lev. 18 et ante p, 135. 
 
 ' Scmb. conr. MefTenger v. 
 Freeman. 3 Keb. 508,
 
 THE AWARD OR UMPIRAGE. 
 
 20J 
 
 award that he fhall make fiich an affidavit as llie oilier 
 party fhall require, is bad for the uncertainty of what 
 affidavit he will require.^ 
 
 It is no objection to an award, that it is conditional, 
 as that one of the parties fiiall enjoy a houfe for three 
 years and a half, and fliall pay his rent every half year ; 
 and that if he fail in payment, the award for the en- 
 joyment of the houfe fhall be void.^ So that he fhall 
 pay the other lol. on condition that each fhail acquit 
 the other ; for it fhall be taken as a pofitive injundion 
 that i\\cj J/;a 1 1 acquit one another."* 
 
 So it may be made with a penalty, to attach on the 
 non-performance of a preceding part; as to pay 12I. 
 on two fcvei'al days, and on default of payment the 
 lirfl day, to pay the whole 12I. immediately after,* 
 
 And, where it is left to a fubftquent event to afcer- 
 tain preeifely the thing awarded, it will be fiifScicnt if 
 that event mufc neceffarily happen ; as if the fubmiffion 
 be with refpeft 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 Icfs by a 
 certain fum, and if not, a certain fum raore.^ 
 
 An award in the alternative, that the party fhall do 
 one thing or another, is not fubjedl to tlie objeflion for 
 uncertainty ; for, when he has don'." one of the tilings, 
 he has performed the award ; as if the award be, tliat 
 
 » Backwell v. Knipe. 3 
 Keb. 293. 
 
 ^ Fuifer and Bond v.Prowd. 
 Cro. Jac. 423. 
 
 ■^ Linfieldv.Fcrne.s Lev. i3. 
 
 5 Kockill V, Wethcrel. '3. 
 Keb. 838. 
 * Collet V. Powell. 2 Keb. 
 
 6-0.
 
 204 THE AWARD OR UMPIRAGE. 
 
 he fhall deliver up to the other party a certain deed, 
 or pay him 50I. this is fufficiently certain; and fuch an 
 award in the alternative fcems to be the befl mode of 
 compelling a party to exert himfelf to procure the 
 performance of what is not ftridly within his own 
 power ; as in the cafe before mentioned, if the deed 
 were in the cuflody or pofTeffion of another over whom 
 he had no controul, the award would be void, if it 
 limply ordered that he fhould deliver up the deed, 
 becaufe it might not be in his power to obtain it from 
 the perfon, in whofe poflefTion it was : but the alterna- 
 tive of delivering the deed, or paying 50I. will be a 
 motive for him to ufe his endeavour to have the deed 
 delivered up ; and if he cannot, the 50I. will be fome 
 fort of recompence to the other for the want of it : 
 perhaps, in juftice, the other is intitled to have the 
 deed, and it is withheld from him in conlequence of 
 fome mifconduft of the firfl ; it is therefore but juftice, 
 that, if he cannot have the deed itfelf, he fhould have 
 a penalty equivalent to the damage he may fuftain by 
 the lofs of it. 7 
 
 Lord Chief Juftice Coke is faid to have applauded 
 the wifdom of Chief Baron Manwood, in adopting this 
 expedient of an alternative award, to enforce the per- 
 formance of fomething, for which, had it been aw^ardcd 
 fnnply, the award, according to fome rules of con- 
 ftruftion, would have been void. 
 
 No objection can be taken to an award for want of 
 certainty, becaufe it appoints no time or place for the 
 payment of a fum of money, though it be in the power 
 
 Vid. Lee v. Elkiss. li Mod. ;S5, 586. Lutw. 545.
 
 THE AWARb OR UMPIRAGE. 
 
 205 
 
 of the arbitrator to appoint a time for payment, or for 
 doing any collateral a£l; bccaufe the award fhall have 
 a reafonable conflruftion ; the party fhali have a rea- 
 fonable time to pay the money ; a demand within a 
 reafonable time Ihall be fufficicnt to entitle the oppofite 
 party to recover : and the place is perfcftly immaterial.* 
 In this refpe£l the Englifh law exaftly correfponds with 
 the civil." 
 
 An averment, in fome cafes, may be ,.„ .. 
 admitted to fupport an award which has f„;„fy „,ay bt 
 an appearance of being uncertain.^ Thus, ^'^!p^d iy an 
 wherever, from the nature of the thing, ^^^■''"•■'"^ '" 
 
 1 1 r • 1 1 lilcading, 
 
 the award may be alcertamed by a re- 
 ference to fomething elfe, 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 ex- 
 pended," will fupport it.^ 
 
 So, wliere the defcription of a matter in difpute, is 
 not exactly the fame in the award as it is in the fub- 
 miffion, an averment in pleading " that the thing fo 
 differently defcvibed, is the fame thing," wnll be fuf- 
 ficient to fupport the award ; thus, where the fubmiflion 
 
 « 2 Brownl. 311. iKeb.92. 
 et vid. Philips v. Knightly. 
 Str. 903. 1 Barnard. 84. 151. 
 463. 
 
 s Solutioni diem pofTe fta- 
 tuere arbicrum puto : et ita et 
 Trebatius videtur fcntirc. 
 Ff. 1. 4. t. 8. f. 21. n. 2. Intra 
 quantum autem temporis, nid 
 detur quod arbiter jufferit, 
 committatur ftipulatio, vidcn- 
 
 dum eft. Et, fi quidem dies 
 adjeftus non fit, Cclfus fcri- 
 bit, inelTe quoddam modicum 
 tempus : quod ubi prseterierit, 
 pcena ftatim pcti poteft et 
 tamen fidederitante acceptum 
 judicium, agi ex ftipulatu nun 
 poterit. n. 12. 
 
 ' Dift. per Gould. J. i 
 Lord Raym. 6iz. 
 
 * Vide ante page 202.
 
 206 
 
 tKF. ATVARD OR TTStFIRAGE- 
 
 was concerning an enclofure between Barton Down and 
 North Down, and the award purported to be an en^ 
 clofure, between tbe defendant' s 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 want of fuch an 
 averment, the plaintiff failed in his aftion.^ 
 
 But if there be no means by which the thing, un- 
 certainly awarded, can be reafonably afcertained, no 
 averment of the party will make it good. — Thus, if it 
 be awarded " that'the one party Ihail pay to the other 
 fo much money as fliall in confcicnce be due," fuch 
 an award cannot be fupported by an averment, " that 
 any particular fum is due in confcicnce." It was the 
 exprefs buSncfs of the arbitrator to afcertain the fum."* 
 
 So, an award, " that the defendant fliail pay tlic 
 plaintilF for certain talk work, and days work, without 
 fixing a value," cannot be aided by an averment, " that 
 the work was worth fo much and no morc.^ 
 
 Where it does not appear from the award itfelf, 
 that it was made " of and upon the premifes," an 
 averment in pleading, " that it was," it is faid, will 
 not help it: as where money w^as awarded to be paid 
 by one party to the other, but it was not faid, on what 
 account, nor was it profefled to be made " of and upon 
 the premifes:" the allegation of the party that it was 
 fo made, was held not fufficicnt to fupport the award 
 
 3 Withers v. Drew. Cro. 
 EI. 676. pi- 5. 
 
 -» Watfon V. Waifon. Sty. 
 
 2S. T. 3. Car. B. R. 
 
 5 Pope V. Brett, z Saimd, 
 291.
 
 THE AWARD OR, UMPIRAGE. 
 
 207 
 
 in this part.^ Yet it fcems difficult to conceive a rcafon, 
 why it fhould not have been prefumcd to have been 
 made " of and upon the premifes," rather than other- 
 wile. — However, it is laid down in the more ancient 
 reports, as a thing not to be difputed, that, where the 
 award is not referred by the arbitrators to the fubjeft 
 in fubmiffion, or is not any generah'ty comprehending 
 it, the averment of the party that it is all one, cannot 
 expound the intent of the arbitrators.^ As if the fub- 
 miffion be of a manor, and an award be made of an 
 acre, and it docs not appear by the award itfclf, tliat 
 this is parcel of the manor ; it cannot be made good 
 by an averment that it is.^ 
 
 So, where it was awarded, that the defendant fliould 
 pay to the plaintiff 3I. ics. 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, tliat, if an aftion were brought for the trefpafs, 
 no doubt this award might be pleaded with an aver- 
 ment. • 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 en- 
 forced, feems to require fome explanation. 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 tlic cafe, to be clearly de- 
 cided, and the reft concurred, yet there was fome 
 
 * Bacon v. Dubarry. i Ld. 
 Raym. 346. 12 Mod. 129. 
 
 7 Dyer 242. b.pl. 52. M. 7 
 and S Eliz. 
 
 * Per Co. Ch. J. conccfTLim 
 per Doderidgc, butHoughtoa 
 doubted : but Coke faid this 
 is Over's cafe.
 
 208 
 
 THE AWARD OR UMPIRAGE- 
 
 varying afterwards, and fo it hung, and he thinks it 
 was compounded, for he heard no more of it." ^ 
 MaBh ft ^^ ^^ principal objeft which parties 
 
 have in view, when tliey fubmit to arbi- 
 tration, is to prevent any future litigation on the fubjeft 
 of the fubmiffion, no rule is better founded than that 
 which requires that an award fhould be final.' 
 
 It is on this principle that it has been uniformly 
 held, that an award that each party fliall be nonfuitcd 
 in the aftion which he has brought againfl the other, 
 is not good, becaufe a nonfuit does not bar them from 
 bringing a new aftion.'' 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 inflift a penalty on him who docs not per- 
 form it; and it ought to be fuch, that performance 
 may be com.pelled by the law : an award of a nonfuit, 
 continues he, is deficient in all thefe refpc<^s : it is not 
 final, and the party is not perpetually bound by it, 
 becaufe he may bring another aftion ; and he cannot 
 be compelled by the law to be nonfuited. — What is 
 meant by the requifition " that the award fhould inflidl 
 a penalty on him who will not perform it," does not 
 appear very intelligible ; it cannot be fuppofed that it 
 is meant, that every award fliould be in the alternative, 
 *' do this, or fuffer a forfeiture on failure of perform- 
 ance," for very few awards are fo penned : neither can 
 it be fuppofed, tliat it is intended that the thing itfclf 
 
 9 Hob. 49, 50, Nichols v. 
 Grunnion. 
 
 ' Non difFerendarum litium 
 caufA, fed tollendarum ad 
 
 arbitrum i:ur. Ff. 1. 4. t. S. 
 f-37. 
 
 = 19 H. 6. 36. Fhbt. 51. a. 
 b. Brooke. 45. a.
 
 •THE AWARD OR UMPIRAGE. 
 
 209 
 
 which is awarded, fhould contain any myftic virtue, 
 Vv'hich fhould deter the party from difobedience. The 
 laft reqaifite clearly refers to that diflinftion which was 
 antiently taken between an award for money, and an 
 award of any thing " collateral ; " the word " collateral" 
 being technically ufed to contradiflinguifli money from 
 every thing clfe : for in thofc times, an award for any 
 " collateral" thing could not be enforced, unlefs there 
 was a bond for performance ; if, however, there was 
 a bond for performance, the party might forfeit the 
 penalty of his bond by not being nonfuited as well as 
 by not doing any other fpecific thing. Another ob- 
 jedion is indeed made to an award of a nonfuit, " that 
 the party cannot be nonfuited without a judgment, and 
 that, therefore, the nonfuit is in part the aft of the 
 court. But this objeftion would extend to the award 
 of every aft, to the accompliiliment of which the con- 
 currence of-the court, or of a third perfon, is necelTary ■ 
 yet, in the very fame place where this objeftion is taken 
 to the award of a nonfuit, it is laid down that an award 
 " that one of the parties fhall levy a fine" is good 
 though a fine cannot be levied without the aft of the 
 court. ^ The only well-founded objeftion, therefore 
 that can apply peculiarly to the award of a nonfuit, is 
 this, tliat it is not final, bccaufe it docs not bar the 
 party from bringing another aftion. Had the queflion, 
 indeed, remained yet undecided, it might have been 
 faid, in analogy to the conflruftion put on other cafes, 
 that lie, who fuffered a nonfuit, but afterv/arda brou^-ht 
 another aftion, nominally performed the award, but 
 
 ^ 5 H. 7- 12. Fhbt. ei. b.
 
 THE AW.ARD OR rMPIRAGE. 
 
 in fubftance was guilty of a breach : however, the word 
 *' nonluit" feems to be lb peculiarly appropriated to 
 cxprefs one particular idea, that its meaning cannot be 
 ib far extended, as to imply a breach of fuch an award, 
 in bringing another aftion : for " that an award of a 
 nonfuit is not iinal," has been uniformly held from the 
 time of the year books, to the prefent day."* 
 
 It was formerly doubted, whether an award " of a 
 difcontinuance of an aftion," was not equally liable to 
 the objeftion of not being final, as that of a nonfuit, 
 becaufe the party is not bound by a difcontinuance 
 from bringing another adlion.^ It was foon, however, 
 diilinguilhed from the cafe of the nonfuit, by obferving 
 that the difcontinuance was altogether the a6l of the 
 party, namely, the making default and not profecuting 
 his aftion ; how little this diftinftion afFedls the quef- 
 tion, may be conceived, by what has been obferved a 
 little above. — However, Rollc tells us that, " if it be 
 awarded, that each lliall difcontinue the adions which 
 he has againft the other," this is good : but his opinion 
 feems not to be founded on the principle of fuch an 
 award being final ; for he immediately adds : '* but it 
 is othcrwife, when one is ordered to difcontinue, and 
 the other to give a relcafe, becaufe then the parties have 
 not an equal advantaged ^ 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 
 
 4 Vid. the places before 
 cited, and Rol. Arb. T. 15. 
 16. 17. F. 9. 7. 6 Mod. 132. 
 I Barnard. K. B. 463. 
 
 ' Vid. the places above 
 cited. 
 
 « Dift. t Rol. Rep. 362, 
 cites 19 H. 5. 36.
 
 THE AWARD OR UMPIRAGE. 
 
 power of the party to do it or not: ' and now it fecms 
 to be taken for granted, that no objeftion can be taken 
 to fuch an award.* 
 
 An award, " that the party fliall enter a retraxit in a 
 fuit which he has depending, is clearly final, becaufe, 
 after a retraxit, the plaintiff cannot bring another aftion 
 for the fame caufe."* 
 
 An award, " that all fults fhall ccafe," is final : it 
 fhall be taken as if it had been faid that all fuits fliall 
 ceafe for ever ; no new fuit can be brought, while thofc 
 ordered to ceafe are depending, becaufe they may be 
 pleaded in abatement to the others, nor can thcfe be 
 profecuted becaufe of the award ; that operates as a 
 releafe, and confequcntly extinguiflies the right ; for if 
 a man releafe his adion, and have no other remedy 
 for his right but the aftion, that difcharges the right ; 
 in the fame manner determining the fuit, determines 
 the right of the thing, becaufe he has no other remedy 
 but by fuit, and therefore the award is final.' 
 
 So, an award, " that a bill in Chancery fliall be 
 difmiffed," is final : it fliall be taken to mean, " that 
 the fuit fhall ceafe for ever;" that alone being a fub- 
 ftantial difmiffion." 
 
 So, " that what is awarded on one fide, fliall be in 
 full of all debts and demands on the other," will aid 
 
 ' Per G. Crokc, in the cafe 
 ©f Gray. Godbolt. 276. 
 
 * Vid. I Barnardifton. 463. 
 
 9 ■; H. 7. ii. Fhbt. 52. b. 
 Brooke Arb. 31. Rol. Arb. 
 F. 7. 
 
 ' Squire v.Greville. 6M0J. 
 
 33. 2 Ld. Raym. 961, 964. 
 I Salli. 74. vid. Tipping v. 
 Sinith. 2 Srr. 1024, which 
 leenis contra. 
 
 - Knight V. Burton. 6 Med. 
 232. I Salk. 75, 
 
 CL2
 
 THE AV/AUD OR VMPIRACE. 
 
 the award, fa far as what is awarded on the other is not 
 completely final ; for the word " demands" extends to 
 every thing wdiich the one has a right to demand os 
 exaft from the other at the time of the fubmiflion.^ 
 
 An award, " that the plaintiff in an a6lion fliall not 
 
 profccute nor proceed in the fame term," is good.*- 
 
 But it is faid that an award " that each party fhall bear 
 
 his own expences in fuits depending between them," 
 
 though not liable to the objection of not being mutua!> 
 
 is bad for want of being final, without the addition 
 
 «* that the fuits fliall ceafc."^ Now, however, it is 
 
 apprehended, it would be prefumed, that it was the 
 
 intent of the arbitrators that the fuits Ihould ceafe. 
 
 And this opinion is fupported by the judgment in the 
 
 following cafe. To an aftion of 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 fiiall each of them pay 
 
 their own charges at law ; and that the defendant pay 
 
 the plaintiff five IhlUings, for his making the firft breach 
 
 in the law." The couit were unanimoufly of opinion^ 
 
 that this was a fair and reafonablc award, and that it 
 
 muft neceflarily be prefumed the fuits were to ceafe, 
 
 and the five fhillings to be paid by the defendant, to be 
 
 taken as a difcharge,^ 
 
 3 Knight V. Burton. 6 Mod. 
 232. I Salk. T$. 
 * Gray v. Gray. Cro. Jac, 
 
 s Farmer v. Durant. z 
 Keb. 351. 
 
 « I Bur. 274. Hawkins v. 
 Colclougli, vid. ante page 177.
 
 THE AWARD OR VMPIRAGK- 
 
 -1 J 
 
 By the civil law, if the arbitrator declared " that the 
 one party owed nothing to the other," tliough he did 
 not prohibit the latter to fue, yet, if he did, notvvith- 
 ftanding, fue, he forfeited the penalty of his fubmllfion.' 
 And with us, at this day, if there have been fuits 
 depending between the parties before the fubmiirion, 
 though the arbitrator take no notice of the cofts, yet if 
 he award mutual releafcs, it Ihall be prefumed that he 
 meant each Ihould pay his own coils.'* And without 
 fuch relcafes the fame prcfumption would very probably 
 be made if there were no other objedion to the award. 
 
 With refpeft to a bond which the one partv had 
 againft the other, it was awarded, " that the obligee 
 fhould not profecute, nor caufe to be profecuted, any 
 fuit againfl the obligor on the faid bond;" this was 
 held to be fufficiently final ; it was objected, indeed, 
 that the award did not extinguifh the duty, by merely 
 ordering that he fhould not fue ; it was however 
 anfwered that this Ihould be taken according to the 
 4ffc^ of the words, which was to extinguifh the duty.^ 
 
 If the award be as final as the nature of the thing 
 will admit, that is fufficient. Alarfhall, at the inftiga- 
 tion of Knightly, brought a qui tarn aftion againft 
 Philipps, on behalf of himfelf and the poor of a parifh : 
 Philipps, for himfelf, and Knightly, on behalf of 
 Marihall, fubmittcd, by bond, all matters in difference 
 
 ' Si Arbiter prcniinciaflfcr, 
 " Nihil videri Titium tlebere 
 Scio;" tametli Seium non 
 vctuilTet pctcre, tamen, fi quid 
 petiiffet, videri contra arbitri 
 fententiam fecifTe. Ff. 1. 4. 
 
 t. 8. f. 11. n. I. 
 
 ** Dia. per Bulier J. Hii. 
 1791. 
 
 9 Milwood V. Stokes, RqI. 
 Arb. O. 7. 
 
 0^3
 
 SI4 THE AWARD OR UMPIRAGK. 
 
 between the parties, to arbitration. It was awarded, 
 that Knightly fliouid execute a covenant to indemnify 
 Philipps againftall cofts, damages, and expences which 
 might happen by means of any further proceedings in 
 the qui tam a£tion: an adtion on the fubmiffion bond 
 being brought, and after " no award" pleaded by the 
 defendant, this award being fet forth in the replication, 
 one objedlion was taken to it, as not being iinal, not 
 putting an end to the fuit, but only giving a new aftion 
 of covenant; it was indeed allowed, by the judge,^ 
 who fupported this objeftion, that if a bond had been 
 awarded to the plaintiff, to indemnify 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 fubfifled as effeftual a 
 remedy on the bond awarded to be executed, 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 theVe 
 was only a remedy on the covenant left in its Head, 
 which was a fatisfadtion in damages to be afcertained 
 by a jury. — But the other judges thought that the 
 award was fufhciently final, and that at any rate, it 
 was not competent to the defendant to make this ob- 
 jeftion ; the arbitrators had in this cafe done every 
 thing they poifibly could do to render their award final ; 
 they could not have awarded that Marlhall Ihould dif- 
 
 Page J.
 
 THE AWARD OR U M P rR A G K . 
 
 i» ^ 
 
 Cvontinue the fuit, which he had brought on behalf of 
 hirafclf and the poor of the parilh, for that would have 
 been to diveft an intcrcft out of the poor which was 
 vcflcd in them by the commencement of the action : 
 and Uiere was no difference between the award to exe- 
 cute a bond or to execute a covenant, the remedy was 
 by aftion in both cafes. ^ 
 
 If the award be of a thing to be done at a future 
 day, it is final, if it mufl then be abfolutely done, as 
 if it be to pay money at three fcveral days to comc.^ 
 So, to give a note or a bond, for the payment of money 
 at a future day.'* But if it depend on a condition 
 whether it mufl be executed or not, then it is not final ; 
 as if it be, that money fhall be refunded if it appear 
 afterwards that the party was not intilled to retain it.* 
 
 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 i61. 
 per ton ; and that if the other, within ten days, fliould 
 make oath that he received the two tons of freight at 
 lol. per ton, and not more, then that the firft fhall pay 
 him 12I. more than was awarded to him in the former 
 part of the award, being the difference on two tons at 
 1 61. and lol. per ton." The inclination of the court 
 
 = Philipps V. Knightly. Sir. 
 <)0j. I Barnard. 84, 151, 
 3S7, 457. 463. Fitzg. 54, 
 168, 270, but in the latter 
 book, h fecms the qui /am had 
 been brought by the plaintiff 
 in the prelent aftion, and that 
 it was he who was awarded to 
 convcnant to imdemnlfy, in 
 
 return for which the defend- 
 ant in the prefent aftion was 
 to pay him a fum of money. 
 
 ^ Per Dodderidge. Palm. 
 no. 
 
 t Booth V. Garnett. 2 Str. 
 1082. 
 
 5 Palm. 110. 
 
 Q.4
 
 :l6 
 
 THE AWARD OR U M P I R A f, E . 
 
 feemed to be to conlider this award as void, becaufe it 
 was not final at the time of making it.^ 
 
 The fame opinion was held where it was awarded 
 that the one fliould pay fo much money to the other, 
 and the latter fliould give him a releafe, provided that 
 if the firfl fliould be difchargcd of any arrears due to 
 foldiers by an ad of indemnity, then the award fliould 
 be void.^ So, an award " that, if the plaintiff, on 
 account, prove certain articles againft the defendant, 
 then he fliall pay fo much money as the plaintiff was 
 damnified therefore," is not final. ^ 
 
 So, alfo, " that if the defendant make out, upon oath 
 before a judge, any difburfements made out on account 
 of the plaintiff, then the plaintiff fliall pay them ; 
 but in cafe the defendant do not prove thefe matters 
 within a certain time limited, then the parties fliall 
 give general releafes ;"^ this is not final. 
 
 Where the firfl part of an award is final, and a 
 provifo is afterwards added, giving a power to either of 
 the parties to render it void, by an acl to be doije 
 within a limited time after that appointed for the per- 
 formance of that which makes it final, the provifo is 
 repugnant to the former, and will be rejefted, — Thus, 
 if it be awarded, " that each of the parties fliall, within 
 four days after the award, releafe to the other, al| 
 aftions, fuits, and demands, before the date of the 
 fubmiflion bond, with a provifo, that if either of the 
 parties fliall be dilcontented with the award, or any 
 
 « Dighton V. Whiting. 6 
 \\' . 3. Lutw. 51. 
 
 7 Kinge V, Fines, i Sid. 59. 
 
 " Sc!by V. Ruffel. Comb. 
 456. 
 '^ Id. ib:d.
 
 THEAWARDORUMPIRAGE. 217 
 
 part of it, then, if witiiin twenty days after the day 
 for making the releafes, the party thinking himfelf 
 aggrieved fhall pay los. to the other, the award fhall 
 be void, and either of them be at Hberty againft tlie 
 other as before the award :" this provifo being repug- 
 nant to that which was to be executed before, fhall be 
 rejeded, and the fvyiiner part of it fliall be valid ; for 
 every award ought to be reafonablc 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 confidcr the award as totally void, and to 
 fet the parties at liberty, the one againft the other, 
 when they had made mutual releafes ; or to permit 
 the one, when the other had rclcafcd, to dilTolve the 
 award, by means of the provifo. — And it v»'ould be 
 abfurd to conlider the fubmilhon-bond as forfeited, as 
 it muft be, by not making the releafe within the four 
 days, and afterwards to conlider it as becoming not 
 forfeited, by the diffolution of the award, in confe- 
 quenee of the provifo.' 
 
 But where the provifo is not merely repugnant to 
 the other part of the award, but fo connected with it, 
 that, on the conftrudlion of the whole, the award is 
 not final, there the whole award is void. — As if in. the 
 Lift cafe the provifo had been, " that either of the 
 parties might render the award void, by paying the 
 los. within the four days limited for the making of the 
 releafes ; " for here the award is not final, it being left 
 to the parties to determine whether it fhall be fo or 
 not. — So, if the provifo had been, " that within twenty 
 
 Di£l. arg. by the court in Sherry v. Richardfon. Poph. 15, 16.
 
 i\% THE AWARD OR VMPIRAGK. 
 
 "days after the award 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 
 tim.e within the twenty, and the party not bound to 
 make the releafes, becaufe, before the expiration of 
 the time within which they were to be made, that 
 would have been done which the arbitrator intended 
 iliould render the award void ; and therefore the award 
 not being final at the time when it was made cannot 
 be fupported.' 
 ThcAwardmufi "The laft ruic to be obferved in the 
 
 be mutual, conflitution of an award is, that it iliall be 
 mutual ; that it fliall not give an advantage to one 
 party, without an equivalent to the other. 7'his rule 
 feems to have arifen from an idea of jullice raifapplicd: 
 underftood in the general fenfe which the words of it 
 convey, it fuppofes, that it is impoffible for two parties, 
 who fiibmit to arbitration, not to have committed mu- 
 tual injuries ; and that it is e(]ually impoifible for a man 
 to make a groundlefs complaint againil: 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 tref- 
 pafTes, and the arbitrators award, " that the one fhall 
 make amends to the other, but award nothing that he 
 fliall 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 impoffible for the injuries 
 not to have been mutual. 
 
 If it be awarded, it is faid, " that one fliall go quit 
 of all aftions had by the other againfl him, and nothing 
 
 == Di(5t. arg. by jjjc court in Sh»rry v. Richardfon. Poph. 15, 16.
 
 THE AWARD OR U M P I R A G F. . 
 
 ill) 
 
 be faid of the aftions which the other has againft him," 
 this is void. If the defendant plead, ' that the plain- 
 tiff and he fubmitted all complaints between them to 
 arbitrators, who awarded, " that the defendant ihould 
 go (piit of all actions and complaints had by the plain- 
 tiff againft him, without faying any thing of the actions 
 and complaints which the defendant had againft; him," 
 the plea is bad,' becaufe, adds the court, the one 
 fhould be difchargcd of all aftions, and the other would 
 receive nothing in fatisfaclion : here they would not 
 prefume that the defendant had no adion or complaint 
 againft the plaintiff", nor that the complaint of the latter 
 againft the former was, in the opinion of the arbitrator, 
 without foundation. 
 
 They do, however, admit, that if it be expreffed 
 by the award, that the injuries were mutual, and equal, 
 and that therefore nothing is given on either fide, this 
 will be good. — Thus, if the award recite that the 
 plaintiff had committed a trefpafs againft the defend- 
 ant, and that the defendant had committed a trefpafs 
 againft the plaintiff, and for that reafon order, " that 
 the one fnall be quit againft the other, and the other 
 againft him : " this they fay is a good award, becaufe 
 it is mutual.^ 
 
 The principal requifite, however, to form that mu- 
 tuality, about which fo much is faid in all the cafes 
 ufually clafTcd under this rule, is nothing more than 
 that the thing awarded to be done, Ihould be a ilnal 
 difcharge of all future claim by the party in whofe 
 favour the award is made, againft the other for the 
 
 7 H. 6. 41. 2 1 H. 6. 9. 22 H. 6. 39. Br. Arbit. pi. 23 cites 
 fame cafe.
 
 THE AWARD OR UMPIRAGE. 
 
 caufe fubmitted ; and therefore the prefent rule amounts 
 to nothing more than a different form of exprcffion of 
 the cafe, which requires 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 fliall pay to the other a certain fum of 
 money, in cmfuieration of a debt long duCy'' is good: and 
 the rcafon given is, that the party paying the money 
 fhall be difcharged of the debt, which is a fufBcient 
 reciprocity to fupport the award.'* 
 
 The moft frequent complaint againll awards for the 
 want of mutality is that when fomething is awarded on 
 one lide, there is no releafe awarded to the other in 
 return -, for it is uniformly held that a rclcafe would^ 
 render the award mutual ; but the releafe mull operate 
 to the benefit of the principal in the fubmiffion, and 
 not be confined to his attorney, who fubmits for him ; 
 at ieaft this is the conclufion to be drawn from a cafe, 
 the authority of which has not yet been overruled. 
 An attorney, on behalf of his client, fubmitted by bond 
 to perform an award : it was awarded that the attorney 
 fhouid pay to the other party 345I. and that the at- 
 torney and the other party fhould give mutual releafes, 
 namely, that the other parly fhould fign 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 cxprefsly awarded to the ufe of the 
 latter, Kit to that of the attorney: and then the award 
 
 ■♦ 8 Co. 98.2. Rol. Arb. K. <.
 
 THK AWARD OR UMPIRAGE. 
 
 being only that the attorney fhould pay the money, 
 without faying on what account, it is not good without 
 the releafes ; but it was admitted, that if the releafe 
 had been to the ufe of the client inllead of the attor- 
 ney, tlie award would have been mutual, and therefore 
 good.* The place of the releafe, however, may fre- 
 quently be fupplied, by words from which it mud reu- 
 fonably be concluded that the arbitrator meant tlie 
 party, againft whom the award is made, fliould be dif- 
 charged on performance of it. Thus, in the cafe pre- 
 ceding, it was admitted in argument, that if the money 
 had been awarded to be paid by the attorney, " in fa- 
 tisfadion of all accounts," or " for all money due " 
 from the client ; or if the award had purported to be 
 made, " of and upon the premifes ;" the award would, 
 in any of thefc cafes, have been good without the 
 releafes, bccaufe then the payment of the money would 
 of itfelf have been a good difcharge to the client. 
 
 So, it has been admitted that an award " that all fuits 
 fhould ceafe" was equivalent to an award of a releafe.* 
 
 So, that all " controveriics " Ihall ceafe, and that the 
 one fhall pay lod. to the other, although the other 
 have nothing given to him ; for perhaps, fay the books, 
 he had committed the greater trefpafs.' 
 
 An award was made " of and upon the premifes," 
 that one fhould pay to the other lol. at a certain day, and 
 that the parties aforefaid fhould continue in love and 
 friendfliip as formerly ; it was held to be an award on 
 
 5 Bacon v. Dubarry. Comb, 
 439. I Ld. Raym. 246. 
 
 * Strangford v. Green. 2 
 Mod. 22S, 
 
 7 Cole's cafe 8 Jac.RoI. Arb. 
 K. 10. S. P. Harris v. Knipe. 
 13 and 14 Car. a. i Lev. $3.
 
 2ii 
 
 THE AWARD OR umpirage: 
 
 both ficks, and that it Ihould be Intended in fatisfaftion 
 of all matters between the partico, move efpccially as it 
 was laid, that the parties iliould be friends as formerly.^ 
 
 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 fliall 
 pay 40I. to the other ; it is faid, this is a good award on 
 both fides, for being made concerning the premifes it 
 cannot be intended to have been made but in fatis- 
 faftion of all matters within the fubmiffion, and cannot 
 be taken to have been for any ether caufe.^ 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 fliall depart from his 
 houfe, and remove his hay, and pay to the other 3I. 
 this was an award only on one fide, becaufe it was not 
 made of the premifes generally, but in manner and form 
 folloivirg.^ Yet this is exadly in the fame terms as the 
 introduction of the award in the cafe immediately pre- 
 ceding. 
 
 As an award " that money fliall be paid in fatis- 
 faftion " is good, fo other words may fometimes have 
 tlie fame effeft ; thus, it is a good avrard " that the one 
 fliall pay lol. to the other /or a trefpafs' ; " the word 
 " for" implies that it is to be in fatisfadion of the tref- 
 
 * Raymond v. Poplcy, and 
 on the fame award Popley v. 
 Popley in the fame term. T. 
 8 Car. on demurrer in debt 
 on the bond, and a breach 
 afligned in non-payment. — 
 Rul. Arb. K. 12. vid. etiam 
 Id.O. I. a. 
 
 9 Mawc V. Samuel, i R(^ 
 Rep. 1.2. Rol.Arb. F. 6. 
 
 ' M. 13 Jar. Nichols v. 
 Grunwin. Rol. Arb. K. i r. 
 .Brownl. 58, S. C. Hob. 49. 
 in which Jaft place it is faidi 
 that no judgment was given.
 
 THE AWARD OR t'MPja<AGE. 
 
 223 
 
 pafs.^ Or "to pay fo much for arrears of rent;" for 
 tliat fliall be taken " in fatisfadtion of all arrears, and 
 the party difchargcd by payment."^ So, " for having 
 made the firft breach in the law," implies that the fum 
 awarded fhall be taken in fatisfaftion.*^ Yet, where the 
 fubmiffion was of all fuits dcjicnding between the 
 plaintiff and defendant in the Spiritual Court " for 
 tythes ; " and it was awarded, that the defendant fliould 
 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 defen- 
 dant, as that he fliould be free of fuits, or fomething 
 equivalent : it may be obfervcd, however, that the 
 award, being of 40s. " for the tythes," it muft necef- 
 farily be implied, that the 40s. were intended to be in 
 fatisfaftion.' 
 
 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 fhould pay to the plaintiff the 40I. 
 It was held, that the recital of the dealings between the 
 parties, and of the payment by the plaintiff of all that 
 was due on his part, implied that the payment of the 
 40I. by the defendant was intended to be in full fatis- 
 faftion of the debt."^ 
 
 - Ormlade v. Coke. Cro. 
 Jac. 354. S. P. Hob. 49. 
 Freem. 203. 266. 
 
 s Hopper y. Hacketr. i 
 Lev. 134. 
 
 ♦ I Bur. 277. ante p. 177. 
 212. 
 
 5 Colfton V. Hairis. 
 
 * Elliott V. Cheval. Lutw.. 
 541.
 
 224 
 
 ■fHE AWARD OR UMPIRAGE. 
 
 It was awarded that the defendant fliould pay to the 
 plaintiffs 15I. on or before a certain day, which the ar- 
 bitrators adjudged to them for the cofis and damages 
 they had fuitained by reafon of a fuit commenced 
 againft them without caufe by the defendant, and that 
 all fuits and differences Ihould ceafe which were be- 
 tween the parties before the date of the fubmiffion 
 bond: it was objcfted that the award was not mutual, 
 becaufe it was no beneiit to the defendant to ftay his 
 own fuit and pay I5h cofts ; but the objedion was 
 confidered to be without foundation ; as indeed nothing 
 but the grofTell mifconception of the real meaning of 
 the rule, which requires awards to be mutual, could 
 have given rife to fucli an objeftion.' 
 
 In the more ancient reports, however, the rule feems 
 to have been fo underflood. that either the thing which 
 was awarded muft of itfelf imply a difcharge to the 
 party againft whom the award was made, or fome 
 pofitivc terms muft have been added which flrewed the 
 arbitrator's intention that a difcharge Ihould be the 
 confequence;* for otherwlfe, it was thought, it could 
 not be known for what caufe the thing awarded was to 
 be done, and therefore nothing could be prcfumed to 
 be difcharged by it. 
 
 If it had been awarded that the obligor, in a fingie^ 
 bond, ftiould pay the debt, if it was not added that he 
 fhould thereupon be difcharged, the award was held 
 not binding for want of mutuality, becaufe the payment 
 
 7 Watmough v. Holgate. 
 ijVcnt. 221. 222. S. P. Comb. 
 : 12. 
 
 ®Mayv. Samuel. Rol.Arb. 
 F, 3. Kirby V. Pigot. 25 Car. 
 
 1. 3 Keb. 140. 
 
 ' It may not be altogether 
 ufelcfs to obferve here, tbat 
 a fmgh bond means a bond 
 Avitliout a penalty.
 
 THE AWARD OR UMPIRAGE. 
 
 of the money due by a fingle bond could not be 
 pleaded to an aftion on the bond, without a releafe,' 
 But this reafon, fince the llatute for the amendment of 
 the hiw,^ has no longer any weight. 
 
 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 confidered as rendering the award 
 iufficicntly mutual, without any words of difchargc. 
 
 An award ' reciting the fubmiflion to have been of 
 all differenees between the parties : reciting alfo, that 
 thcfe differences being undcrflood by the arbitrators, 
 who were fatisfied that certain allegations, made in a 
 bill exhibited by the plaintiff in the Star-chamber 
 againfl: 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 re- 
 verfe an outlawry againft the plaintiff, but had not re- 
 verfed it ; that he had taken of the plaintiff 2cs, more 
 as a fee pretended to be due to him on an execution 
 for 261. fued againft the plaintiff; neither the defen- 
 dant, who was then under-fherilf of Dorfet, nor any 
 one for him, having ever enforced the execution ; that 
 the plaintiff had been imprifoned, by means of the de- 
 fendant, by one J. S. who had arrcfted him without any 
 warrant direfted to him, and that the plaintiff had been 
 compelled by J. S. to pay 20s. for this unjuft arreft, be- 
 fore he was permitted to go at large : " reciting further, 
 that the plaintiff was an honeft man and of good repu- 
 tation, and a tradefman, having a wife and fix children, 
 
 Hob. 49. Biownl. 5S. ' 4 Ann. c. 16. f, 12.
 
 226 
 
 THK AWARD OR UMPIRAGE. 
 
 and that by reafon of the ch-curaftanccs before recited 
 he had fuftauied great damage, fcandal, and difcredit : ' 
 ordered the defendant to pay to the plaintiff 500I. by 
 different payments, on certain fpecific days. — It was 
 objefled to this award, that it was not mutual, becaufc 
 the 500I. were not awarded to be paid in fatisfaftion of 
 the wrongs recited, nor in confideration of them, nor 
 for 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 
 neceffarily be intended to be as a fatisfadlion for the 
 wrongs.^ 
 
 And it may, now, be fafely laid down, that it is not 
 necelTary that the award itfelf fhould exprefs that a fum 
 awarded to be paid, or an a£l to be done in favour of 
 one of the parties fhall be in fatisfadlion ; or that it 
 Ihould contain any equivalent terms : a difcharge to the 
 other muft neceflarily be prefumed from the payment 
 of the fum or the performance of the aft. — Thus, the 
 defendant having pleaded to an aftion of trefpafs, that 
 the plaintiff and he had fubmitted the trefpafs aforefaid 
 to arbitrators, who had awarded that the defendant 
 ihould 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 fubmifTion having been after an im- 
 parlance : this was held to be good, though no releafes 
 were awarded, nor any words of fatisfadlion were ufed."* 
 
 ■) i6Car. B.R. Burbidge v. 
 Raymond in a writ of error 
 on a judgment in C. B. where 
 it had been adjudged a void 
 award on demurrer. But B. 
 R. affirmed the jadgment for 
 
 a clear dcfeft in the manner 
 of pleading, though they 
 thought the award good. — 
 Rol. Arb. K. 17. 
 
 ♦ Tomlinfon v. Arifkin. 
 Ccmyns 328.
 
 THE AWARD OR UMPIRAGE. 217 
 
 It fcems indeed a little extraordinary that the plaintiff, 
 in whole favour the award was made, lliould have ob- 
 jected to it, for fo lingular a reafon as that the money 
 to be paid to him by the defendant was not awarded 
 to be in fatisfaftion or dlfcharge of any thing, and that 
 nothing was awarded to be done to the defendant or 
 for his benefit: the objeftion can be reconciled to 
 common fenfe on no other principle than a fuppofition 
 that had the plaintiff fued on the award the defendant 
 might have objefted to it for the rcafons now affigncd 
 by the plaintiff. 
 
 To an aftion on a bond, conditioned for the per- 
 formance of an award, the defendant pleaded that no 
 awai-d was made : the plaintiff" in his replication fet 
 forth an award, " that the defendant fliould 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, becaufc it fliould 
 be prcfumed, that the pofleffion which by the award 
 the plaintiff appeared to have of the mare and colt was 
 legal, as by diflrefs for damage feafant, by bailment, or 
 other means by which the plaintiff miglit have juflified 
 the detention. 5 
 
 These two cafes feem fully to jullify the obfervation 
 which immediately precedes them. The firfl is indeed 
 the cafe of a parol award, and it does not appear 
 whether the fecond v/as by parol or in writing: the 
 condition of the bond enabled the arbitrator to make 
 his award in either way, and the replication only flates 
 tliat he made and publifhed his award within the time 
 
 Cooper v.Hirft. Lutw. 539. 
 R 2
 
 il3 THE AWARD OR UMPIRAGE. 
 
 limitted, but does not allege in what manner : there 
 fecms, however, to be no good reafon for making any 
 diftin£lion, in this refpeft, 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 
 Kiles, yet it is good for the remainder. And there are 
 alfo a great many cafes in which the circumllances of 
 its being void for part renders it void for the whole : 
 but in order to confider this part of the fubje£l with ad- 
 vantage, it feeras proper to colleft what is to be found 
 in the books with refpeft to the conftruftion of awards. 
 In former times, the courts confidcred 
 9w awar s ^^^^.jg^ -with refpcdl to their conftruftion, 
 
 yia/I be con- . - , . 
 
 . . m a very different manner from that in 
 
 Jirued. ■' 
 
 which they confidered deeds and wills: the 
 latter, they held, ought to be conilrued according to 
 the intent of the parties, and the meaning of the words 
 to be collcdcd from the w^hole of the inflrument put 
 together ; but an award they confidcred to be in the 
 nature of a judgment, which ought to be plain and 
 correft, and that therefore there ought to be no nc- 
 ceffity to col left the meaning of the arbitrators ; for 
 that fuch a colleftion would not be their judgment, but 
 the conjcfture of another of what they had intended to 
 decide.* 
 
 The adherence of the courts to this rule was in 
 many inftances fo rigorous and llri£l, that the power 
 
 * Biownl. 92. Yelv. 98.
 
 THE AWARD OR UMPIRAGE. 229 
 
 of referring dlfputes to arbitration, inftead of being a 
 benefit to the parties, often well merited that reflection 
 which a learned judge once made with rcfpeft to refe- 
 rences at n'lji priusy that he never knew any good to 
 arife from them. 
 
 In- thofc times, even a miflakc in the recital of a 
 day mentioned in the former part of an award, was 
 thought fufficient to render the award void, though it 
 would otherwife have been good. Thus where, on a 
 fubmiffion of the title of copyhold land, the arbitrator, 
 after awarding the payment of a fmall fum of money 
 by one of the parties, on the " twenty" firft day of 
 May, ordered the other to releafe to him on the afore- 
 faid firft day, omitting the word " twenty," all his 
 right to the copyhold land, and that three years after he 
 Ihould make further afTurance : the award w^as held to 
 be void, on account of the omiffion of the word 
 " twenty," becaufe there being no fuch day before 
 mentioned as the firfl: of May, there was no day from 
 which the three years could be calculated, and confe- 
 quently no further afTurance could be made.^ The 
 court thought they were not at liberty either to fupply 
 the word " twenty," which would have given efFeft to 
 the intention of the arbitrator, or to rejefl the word 
 *' aforefaid," which, though a little deviating from 
 his meaning, would have n;ade the award completely 
 certain. 
 
 TowAPvDs the end of the reign of James the firft 
 however, the judges laid down more liberal rules to be 
 
 Markham V. Jennings. Rol. Arb. K. 15. Q^ 6. Cro. Jac. 149 
 Yelv. 97. 98. 
 
 ^ 3
 
 2jO THE AWARD OR TJMFIRAGE. 
 
 obferved in the conflrLi£lion of awards ; holding, that 
 they flioiild he interpreted, as deeds, according to the 
 intention of the arbitrators ; that they ftould be con- 
 ^fidered, with the fame favour as the " arbitrium boni 
 viri," in the civil law : that therefore they Ihould not 
 be taken flriftly, but liberally, according to the intent 
 of the parties fubmitting, and according to the power 
 given to the arbitrators: that " all adions" mentioned 
 in the award fliould be taken to mean " all aftions over 
 which the arbitrators have power by the fubmiffion ; " 
 and that if there were any contradidion in the words 
 of an award, fp that the one part could not ftand con- 
 fidently with the other, the lirft part fhould fiand, 
 and the latter be rejefted : but that if the latter were 
 only an explanation of the former, both parts fhould 
 ftand.^ 
 
 So, it was held, that if an award were made generally 
 in fatisfadlion of all controveriies, without any limita- 
 tion, this fliould be conftrucd to extend only to fuch 
 controverfies as are within the fubmiffion.'' 
 
 If, by manifcft implication, that appear, which, if 
 pofitivcly exprelTcd, would render the award good, that 
 is fufficient to fupport it. 
 
 The fubmiffion was of all controverfies between the 
 parties, and it was awarded, " that the one ffiould pay 
 to the other lol. on a particular day, and that the 
 other, on the receipt of the lol. ffiould give to the 
 firft a general releafc." It was obiefted, that if he to 
 whom the lol. were to be paid refufed to receive it, he 
 
 « Dift. per Doderidj^e, Palm. loS. 3 BrJflr. 66, 67. 
 9 Brown's cafe, cited Hiitton, 9,
 
 THE AWARD OR UMPIRAGE. 
 
 was not bound to give the relcafe, and the award, for 
 that rcafon, was only on one iidc, and therefore void : 
 but the objeftion was oveirulcd, and the award held 
 to be good ; bccaufc, when it is awarded that the one 
 Ihali pay lol. to the other, it is, by necclTary impUca- 
 ti(.n, awarded that the other fliall receive it : in the 
 fame manner as if it had been awarded that the pay- 
 ment Ihould be in fatisfadion of all controverfies be- 
 tween them, in which cafe it muft have been implied 
 that the other iliould receive it in fatisfaftion : in the 
 prefcnt times it will appear ftrange that there fhould 
 have been any neceflity for the judgment of a court 
 in this cafe, but in the reign of Charles the firft, the 
 matter was fo far from being clear, that the unfuccefs- 
 ful party not being fatisfied v/ith the judgment of the 
 court below, appealed to parliament in a writ of error, 
 •where the judgment was confirmed by the opinion of 
 all the judges.' 
 
 An award " that the one fhall keep and enjoy the 
 goods in difpute, " paying" fo much money to the 
 other," muft be conftrued in the fame manner as if 
 it had been exprefled imperatively, " that he fhould 
 pay."^ 
 
 It was awarded " that the defendant fhould pay loh 
 to the plaintiff, and fetch away his mare and colt ; " it 
 was objefted, that it was not awarded that the plaintiff 
 fliould deliver the mare and colt : it was adjudged, that 
 that muft neceftarily be implied.^ 
 
 ' M. 22 Car.B.R. Linnen 
 V. Williamfon. Rol. Arb. 
 K. i6. cited 6 Mod, 35. 2 Ld. 
 Raym. 965, 
 
 R 4 
 
 > Stiles v.Trifte. i Sid. ;4. 
 5 Hooper v. Hirft. Lutw. 
 559, cited J Ld. Raym, 6x2.
 
 l^i 
 
 THE AWARD OR UMPIRAGE. 
 
 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 Ihip," there could have been no. 
 harm in implying that the defendant fliould *'givc" 
 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 have it, unlefs the other 
 was bound to give it^ 
 
 On the fame principle, it would feem that an award, 
 ^ that the plaintiffs fliould 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 fliould be bound to 
 procure the delivery of the goods.^ 
 
 It was awarded " that the defendant fliould enjoy a 
 lioufe of which the plaintiff was leffee for vears, during^ 
 the term, paying to the plaintiff 2cs. yearly ;" this was 
 conftrued not to be merely a condition annexed to the 
 award of the defendant's enjoyment of the houfe, but 
 it was confidered to be a part of the award itfelf, that 
 being evidently the intention of the arbitrators : and it 
 was held, that an aftion of debt on the bond, would 
 lie for the non-payment of the 20s.^ 
 
 The fubmiliion was of certain controvcrfics rcfpeft- 
 ing a wine licence, and the arrears of rent ilfuing out 
 of certain land ; the award was in fuch terms as thcfe, 
 '' that whereas it appeared to the arbitrators that 15I. 
 
 < Disalitervifum. Clapcott 
 V.Davy, i Ld. Raym. 612. 
 
 5 But fcmb. ccntr. Dighton 
 V WhitinfT- Lutw. 51. 
 
 Parfons v. Parfons. Cro. 
 El. 211. S.P.M.iSandiQEl. 
 inter TrefiTam elRoDins.
 
 THE AWARD OR UMPIRAGE. 
 
 2?J 
 
 remained due to the plaintiff, tliey ordered that the 
 defendant fhould pay him 7I. 10s. in fatisfaftfon of fo 
 much of the 15I. and fhouid afUgn to him the wine 
 licence:" it was held, in the firfl place, that though it 
 was not expreffed on what account the defendant was 
 indebted to the plaintiff, it fhould be prefumcd to be 
 for no other caufe than for the rent ; and fecondly, 
 though it was not faid that the wine licence fhould be 
 affigncd in fatisfaftion of the refidue of the 15I. the 
 better opinion was that it fhould be lb prefumed.' 
 
 Where the words of an award have any ambiguity 
 in them, they are always to be conftrucd in fuch a 
 manner as to give effeft to the award. — Thus, if money 
 be awarded to be paid "in full of all demands;" thefe 
 words fhall be conftrued to mean "in full of all de- 
 mands up to the time of the fubmiffion only, not to the 
 time of the award, or to the time of payment.* 
 
 On a fubmiffion by the parfon and part of his pa- 
 rilhioners on behalf of themfelves and the refl, with 
 rcfpcd to tythes, it was awarded, that each of the 
 pariihioners ihould give the parfon notice, when he 
 intended to fliear his fheep ; in anfwer to an objeaion 
 that the avv^ard was unreafonable, becaufe the parifh- 
 ioner mufl follow the parfon wherever he might be, in 
 order to give him notice, it was held, that the award 
 mufl be conflrued to mean that the notice fhould be 
 given at the parfonage-houfe.' 
 
 It was awarded that the defendant fliould pay to the 
 plaintiff fo much money on the flrfl of April, and fo 
 much on the firft of May , and that the parties fliould 
 
 'AI. 51. « Per Powell J. 6 Mod. 35. « L tt. 30.
 
 2J4 THE AWARD OR UMPIRAGE. 
 
 pay il. 5s. each to the arbitrators for their trouble ; and 
 that " on payment of the money aforefaid" on the firft 
 of May, they fliould give mutual releafcs : here the 
 words " on payment of the money aforefaid," coming 
 after the award of the money to the arbitrators, it was 
 contended they Ihould 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 which then prevailed, the 
 award being void as to the former, becaufc performance 
 of it could not be compelled, and the releafes not be- 
 ing awarded to be given till performance, it was in- 
 lifted the award was void for want of mutuality : but 
 the court held that thefe words, " the money afore- 
 faid," fliould be referred only to thofe fums with re- 
 fpccl to which the award was good, and not to the 
 money awarded to be paid to the arbitrator.' 
 
 An award, reciting that fo much money had been 
 difburfed by one party, as was alleged^ ordered that 
 money to be paid by the other : in favour of the award, 
 the court held that this Ihould be underftood as al- 
 leged, and not controverted or difproved : and that it 
 fhould net be fuppofed that the arbitrators did not in- 
 quire into the matter, or that they av.'arded payment 
 from the mere allegation of the dilburfement.^ 
 
 It was awarded, that the defendant fliould pay to 
 tlie plaintiiF 81. on the 14th of April, " and that he 
 fliould deliver to the plaintiiF a certain writing obli- 
 gatory, or a certain bill obligatory, which he had bc- 
 
 ' Abrahat v. Brandon. 10 Mod. ;or. 
 ' Knight V. Burton. 6 Mod. 23 2.
 
 THE AWARD OB. UMPIRAGE. 
 
 *3S 
 
 fore," and that then the one fhould make to the other 
 general rcleafes. In favour of the award, the court 
 lield, that the word then fliould be referred to the 14th 
 of April, and not to the delivery of the bond to the 
 plaintiff, that the objeftion to the uncertainty of the 
 intervening phrafe might not excufe the payment of 
 tlic money.^ 
 
 A MisREciTAL of thc fubmiffion fliall not avoid the 
 award : thus, where it appeared by fpccial verdift tliat 
 the fubmiffion bond of the plaintiff was dated on tlie 
 22d of February, and that of the defendant oh the 9th 
 of March ; but thc award recited the latter to have 
 been on the fame day with the former; this was held 
 not to be material.** So where the fubmiffion was dated 
 on the loth of February, and the award recited as of 
 the 7th. 5 
 
 Nor is it any objection that money is awarded to be 
 paid at a place bv name with the addition of the word 
 " aforefaid," though the place has not been mentioned 
 before; the word " aforefaid," in fucli a cafe, is to be 
 rejefted as furplufage.'^ 
 
 If thc lubmiffiion be " fo that the award be made on 
 or before a particular day, or that the arbitrators ffiall 
 chobfe an umpire," and the umpire fo chofen make an 
 award, reciting that the parties had bound themfelves 
 to Hand to his award ; though compared to the words 
 of the fubmiffion, this be not Hterally true, yet an 
 
 ^ Raym. 123. 
 
 + Al. 85. 87. 
 
 5 Toll V. Dawfon. 1 Vent. 
 
 3 Bedam v. Clcrkfon. i Ld. 
 
 1S4. 
 
 * Lambard v. Kingsford. 
 Lutw. 55S.
 
 tlS THE AWARD OR UMPIRAGE. 
 
 objedlon on that account will not be allowed, becaufe 
 it is but recital. ■^ 
 
 Where the fubmiffion contains the claufe of " ita 
 quod," and the award is made with reference to that 
 ciaufe, this fliall controul the conftru£lion of the award 
 in fuch a manner as to fupport it, though the words in 
 their natural fignification be more comprehenfive than 
 the fubmiflion, and it fhall be intended that nothinfi^ 
 was in controverfy but what was comprehended in tlie 
 fubmiflion, unlefs the contrary be fliewn : and on the 
 contrary, if the words of the award be not fo compre- 
 henfive as thofe of the fubmiflion, yet, unlefs the con- 
 trary be alfo fliewn, it fliall not be intended that any 
 thing more was in controverfy than what is compre- 
 hended in the award. ^ 
 
 The fubmiflion was by bond conditioned to fland to 
 the award of J. S. fo that it were made " of and upon 
 the premifes;" the award referring to that claufe, or- 
 dered that one of the parties fliould pay to the other 
 lol. two months after the award, and that on fuch 
 payment each fliould make to the other a general 
 releafe up to the time of the payment, though the 
 releafe comprehended a time beyond the fubmiflion, 
 and though it was obje£ted that the bond or promife of 
 fubmiflion v/ould be releafed : this was held to be a 
 good award, for by the payment of the money the 
 fubmiflion was at an end, and every thing depending 
 on it; and, on account of the claufe of " ita quod," 
 
 7 Adams v. Adams, z Mod. 169. 
 * 6 Mod. 2 3 2.
 
 THE AWAKD OR UMPIRAGE. 
 
 237 
 
 tlic rcleafe fliould be taken to extend only to the 
 things fubmitted.'* 
 
 On a iimilar fubmiflion, it was awarded that the one 
 party fliould pay to the other lol. in fatisfadlion of all 
 adions, fuits, and accounts which he might have 
 againfl him for any matter to the time of the award 
 made, and that all fuits then depending, or which 
 afterwards fhould be depending between them, for any 
 matter, from the beginning of the world to the time of 
 the award made, ihould ceafe ; this was held good, 
 though it comprehended a time beyond the fubmiffion, 
 becaufe it mull be prefumed, without being fhewn, that 
 nothing had arifen between the time of the fubmiffion 
 and the award/ 
 
 The fubmiffion was of all aflions perfonal, " fo that 
 the award were made of and upon the premifes," 
 before Eafter: the award, made before Eafter, and 
 profefTing to be made " of and upon the 'premifes," 
 ordered that the one fliould pay to the other 20I. at 
 Midfummer next enfuing, and that then the other 
 fhould releafe to him all aftions perfonal, in fatisfaftion 
 of all matters perfonal between them ; this being made 
 *' of and upon the premifes," it was held, that it muft 
 bc intended that the releafe was to be of anions only 
 till the time of the fubmiffion, and not till Midfummer." 
 
 9 Dubitatur M. I4 Car. B, 
 R. Atnoke v. Orwell, moved 
 in arreft of judgment and the 
 Pojlea ftay fur ceo. Rol. Arb. 
 0.4. Vid. ace. 2 Mod. 170. 
 
 ' 23 Car. E.R. Lerwyn v. 
 
 Hills on demurrer. Rol. Arb. 
 O. 5. S. C. Al. 26. there called 
 Gurman v. Hill. 
 
 2 5 Jac. GolTe v. Brown. 
 Rol. Arb. M. i. Hob. 25S. 
 S.C. cited MC.S85. pi. 1242.
 
 4?^ 
 
 TKF. AWARD OR ITMPrKACE. 
 
 So, where an award was made " of and upon the 
 prcmifcs," that all adlions and controvcrfics between 
 the parties fliould ceafc ; it was held that, though the 
 latter words, in ftrift grammatical propriety, applied 
 to all matters and controvei-fies at the time when they 
 were ufed, that is, at the time of the award, yet the 
 words, " of and upon the prcmifes," fhould controul 
 the meaning, and refer it only to coniroverfies at the 
 time of the fubmiffion.' 
 
 There is no doubt but that at prefent, without th? 
 help of this controuling claufc, the fame conflruftion 
 would prevail in all cafes fimilar to the preceding; even 
 in thofe times of nicety, it was held that an award of a 
 fum of money now in controverfy, was good, for that 
 it fliould he underllood to have been in controverfy at 
 the time of the fubmiffion as well as at the time of the 
 award. "^ 
 
 Much difficulty, it has been obferved, occurs in all 
 the more ancient reports, on the conftruflion that 
 ought to be put on the award of a releafc : that which 
 was naturally adopted as the moft probable mode of 
 putting an end to litigation, between the contending 
 parties, has, in almoft numberlefs inftances, been 
 the great obflacle to the accomplifliment of that 
 purpofe. — It has not been without an obflinate flrug- 
 gle, that an award of a "general" releafe,. unac- 
 companied with any words from which an unfavourable 
 conftrudion might, with any fliew of reafon, be put 
 
 3 Cro. EI. 86 1. Goodman v. Fountain, 
 •♦ Bafpole V. Freeman. Cro. Jac. 285.
 
 THE AWARb OR UMPIRAGE. 
 
 *39 
 
 upon it, has-been admitted to be good ; thouglrfo cr,r]y 
 liS the reign of Charles the fecond a diftindion was 
 made between the award of a " general releafe, ' 
 without additional words, and of a " general releafe to 
 the time of the award ;"* yet, fo late as the feventeenth 
 of George the third, an objeftion was ferioufly taken 
 to an award bccaufe it ordered a " general releafe." 
 On a reference at n'lfi prim of all matters in qucftion 
 in the caufe, the arbitrators had at firft ordered the 
 parties to give general mutual relcafes; but afterwards 
 obferving that the reference was not of all matters 
 between the parties, they thought they had exceeded 
 their authority, and therefore they made another award, 
 in every other refpeft the fame as the former, but 
 inflead of general releafes, ordered fpecial releafes of 
 matters in difference in that caufe. An application 
 was made to the court to have both awards fet alide, 
 the fnfl becaufe of the general releafes, and the fecond, 
 becaufe it was made after the arbitrators had executed 
 their authority. The court however held that the firft 
 award might be fupported, either by conftruing the 
 releafe to be fo far good as it fell within the authority 
 of the arbitrators, or if it mull be fuppol'ed to be one 
 intire thing, by rejeaing it altogether.^ 
 
 The leading cafe on this fubjeft is that of Vanlore 
 and Tribb, as given in Rolle's Abridgment : ^ the fub- 
 milTion was made on the firft of May, of all contro- 
 
 s Vafque v. Daniel. 25 
 Car. 2. 3 Keb. ?53. 
 
 6 Pickering v.Watfon. 2 Bl. 
 Rep.1117. M.17 G.j.C.B. 
 
 T^RoI. Arb. N. 1. vid. Mawe 
 V. Samuel. 2R0I. Rep. 2, the 
 fame do£trine. Kynafton v. 
 Jones. Rol. Alb. N.2.
 
 J40 THE A'sVARD OR UMPIRAGE. 
 
 I 
 
 verfies between the parties : the award was made on 
 the fourth of May, and ordered that one fhould give a 
 general releafe to the time of the award : this was held 
 to be altogether void, becaufe, comprehending a time 
 out of the fubmiffion, and extending to controverfies 
 that might have arifen between the ini\: and the fourth 
 of May, it was void as to thcfe, and being an intire 
 thing it mufl be confidered as void in the whole. 
 
 But the principal reafon given by the court for this 
 determination was, that by this releafe, the bond or 
 aifumpfit, by which the oppofite party was 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 feveral days, and that feveral 
 releafes fliould be gwQn prefently: the court held this 
 was void, becaufe the releafe would difcharge both the 
 arbitration bond and the money awarded to the plain- 
 tiff.* Here the court mufl have proceeded on the idea 
 that the releafe was an intire aft, and that a releafe to 
 the time of the fubmifhon would not have been per- 
 formance. 
 
 The fubmifTion bond was dated the ad of July : the 
 award was that the defendant fhould execute a general 
 .releafe to the plaintiff to the 12th of Auguft following, 
 and that then the plaintiff' fhould give a general releafe 
 to the defendant: to this it was objedcd, that as the 
 defendant was to give the firfl releafe, if the plaintiff 
 afterwards refufed to give his in return, the defendant 
 would have no remedy ; for, if, on fuch lefufal, the 
 
 • Adams V. Adams. 2 Mod. 169.
 
 THE AWARD OR UMPIRAGE. " 241 
 
 defendant fliould fue on the fubmilTion bond, and affigii 
 the breach in this, that the plaintiff had not executed 
 the releafe on his part, he might plead the prefent 
 defendant's releafe in bar of this aftion on the bond. — 
 And here a diftinftion was made by Powell, J. between 
 an award of releafes generally, and an award of releafcs 
 to be executed to the time of the award made :^ in the 
 former cafe, he faid, the releafe ibould be underllood 
 to relate only to the time of the fubmiffion ; but in the 
 latter, fuch a conll:ru6tion could not be admitted, be- 
 caufe, going exprcflly beyond the time of the fubmif- 
 lion, it would releafe the bond of fubmiffion itfelf, and 
 all intermediate a6ts. But Treby, C. J. faid that it had 
 been held in fuch a cafe, that the fubmiffion bond 
 Ihould be excepted.' And it certainly had been fo 
 held, about fcvcn years before, in the following cafe. 
 To debt on a bond conditioned to perform an award, 
 the defendant pleaded " no award." The plaintiff, in 
 his replication, fct forth an award, *' that the defend- 
 ant Ihould pay 5I. to the plaintiff prefently, and give 
 bond for the payment of lol. more on the 29th ot 
 November following, and that the parties Ihould 
 " now" lign general releafes; on demurrer, this was 
 argued to be a void award, becaufe mutual 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 re- 
 Icvifcs fliould difcharge fuch matters only as were de- 
 pending at the time of the fubmiffion.' 
 
 9 See this dil^indlon 3 Lev. 
 188, 344. I Show. 272. 
 ' Marks V. Harriot, i Ld, 
 
 Raym. 115, 116. M. S. W. 3. 
 = Rees V. Phelps, M. i \V. 
 and M. 3 Mod. 264.
 
 24* THE AWARD OR tKlPIRAGEr 
 
 Chief Julllcc Trevor, however, afterwards^ flip- 
 ported the diilui£lioii takcir by Powell, faying that 
 *' to hold that a tender of a releafe to the time of the 
 fubmifTion was a fufficient performance, where the 
 arbitrators had awarded a releafe to the time of the 
 award," would be to make an award, and not to declare- 
 the law upon it, and then farewell all awards. 
 
 It is now, however, clearly fettled, that an award 
 of rcleafes up to the time of making the award, is not 
 altogether void, but that it fhall be conflrued fo as to- 
 fupport the award, and that for two reafons : the firft, 
 that it fhall be intended that no difFerenee has arifen 
 fince the time of the fubmiflion, unlefs it be Ihewn- 
 fpecially that there has ; the feconxl, that a releafe to 
 the time of the fubmifliort is a good performance of aii 
 award ordering a releafe to the time of the awaud ; not 
 becaufe the meaning of the arbitrators is fo, but 
 becaufe their meaning muft be controuled fo far as it is 
 void, by conflruftion of law.'* 
 
 I SHALL conclude this part of the fubjeft with one 
 general obfervation ; that though an award muft poilcfs 
 all the qualities which have been defcribed as necef- 
 farily belonging to it, yet the courts, in modern times, 
 have repeatedly declared tliat they difapproved of the 
 ftrii^nefs with which they were formerly conftrued, 
 and that they will always adopt a liberal conftruftion, 
 in order that awards may anfwer tlie piirpofe far which. 
 
 3 M. rj W. 3. Lee v. Elkias. 
 Mod. 590. Lutw. 545. 
 
 < Abrahat v. Brandon-. 10 
 Mod. zor. Squire v. Grevill, 
 
 6 Mod. 33. 35. r Ld. Raym. 
 964, 5. Cooper V. Pierce. 
 rLd.Raym. 116. vid. 11 Mod, 
 B16. Godb. 164, 5. xKeb.43.v
 
 THE AWARD OR UMPIRAGE. I45 
 
 - - ' '- 
 
 tl'ey are intended.* Lord Hardwickc too, on one oc- 
 caiion, declared, that as courts of law had relaxed 
 confiderably from the rigour formerly obfervcd, it might 
 polfibly be of confequence to confider, whether courts 
 of equity might not ftill take greater latitude ; but he 
 faid he was unwilling to do this, becaufe it would in- 
 troduce confufion and uncertainty, rendering awards a 
 mixed cafe, partly determined by arbitrators, and partly 
 by the authority of courts of equity, and therefore he 
 chofe rather to confine himfelf to one rule.^ 
 In early times, if one part of an 
 
 "' '^ tVhen an ^ward, 
 
 award was void, the whole was con- i,;,,,^^ ^^,,j j-,, 
 lidercd as void: but in the reign of part, /id// Lc good 
 Queen Elizabeth, Holt fays,^ in the /" "''' "'J'- 
 reign of King James the firft, it began to be the rule of 
 the courts, in many cafes, to enforce the performance 
 of that which, had it ftood by itfelf, would have been 
 good, notwithftanding another part might be bad : but 
 the adoption of this rule without reftri£tion, it wasi 
 foon difcovered, would, in many inftances, be pro- 
 dudlive of injuilicc. It became therefore neceflajy to 
 diftinguifh in what cafes the rule iliould be adopted, 
 and in what it Ihould be rcjefted. The principles by 
 which the application of the rule fliall be dire£ted are 
 not very accurately explained in the books ; but, from 
 a general purview of the cafes, I will venture to 
 exprefs them in general terms, and give under each 
 the cafes which feem to juflify my affertions. 
 
 * Per Ld. Mansfield, i Bur. 277. 
 
 « Atk. 504. (519.) ' i» Mod. 534.. 
 
 S 2
 
 2 44 
 
 THE AWARD OR UMPIRAGE. 
 
 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 
 reft, it is not competent to him who is ordered to per- 
 form it to objeft to the whole, on account of the part 
 which is void ; but he muft perform the part for which 
 the award is good, as if it ftood by itfelf ; unlefs the 
 oppofite party could objeft to the performance of his 
 part, on account of the want of remedy to enforce 
 performance of the part which is void on the other.^ 
 
 Thus, if the fubmiftion be of a particular thing, and 
 the award made of that which is fubmittcd, and alfo of 
 fomething elfe to be done by the fame party, though 
 with refpeft to the latter the award be void, yet he 
 fliall be bound to perform the reft." 
 
 As, if the fubmiffion be of all matters depending, 
 and the award be that one of the parties fhall not pro- 
 lecute any aftion depending or arifen at the time ot the 
 award made, where there are aftions depending be- 
 tween the time of the fubmiffion and the award, in 
 which cafe the award is void as to them, yet the award 
 being good for thofc which were depending at the time 
 of the fubmiffion, muft be fo far performed.' 
 
 If it be awarded that one Ihall pay fo much to the 
 other, and that he fhall give bond with two fureties for 
 that fum, though this be void as to the fureties, yet he 
 muft give a bond himfelf.^ 
 
 So, " that the defendant fhall pay the plaintiff" 150I. 
 and find three fureties for the payment of a further 
 
 « Vid.RoI. Arb. N. 6. 
 
 5 Tomkins v. Webb. 2 
 Rol. Rep. 46. 
 
 ' 18 Jac. Sayer v. Saycr. 
 Rol. Alb. N.5. 
 
 ' Vicl. 19E.4. 1. 18 Etl.4. 
 23. cited Cro. EI. 432. Rol. 
 Arb. N. 7. I Rol. Rep. 270. 
 2 Lev. 6. 3 Leon. 62.
 
 THE AWARD OR UMPfRACE. 241; 
 
 Ajm," though void with rcfpcft to the fuvctics, lie miift 
 pay the 150I. and be bound himfelf for the further 
 fuin, if no olijecStion can be taken to any other part of 
 the award. ^ 
 
 So, if it be awarded that the one fliall make af- 
 furance of certain land, within the fubmiffion, to the 
 other and his wife, though this be void as to the wife, 
 who is a ftranger to the fubmiffion, yet it is good for 
 the reft, and he mufl convey the land to the other 
 party himfelf-* 
 
 So, if the award be that one of the 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, otherwifc he will forfeit his bond.^ — 
 So, if the aw'ard be that he Iball make an eflate of cer- 
 tain lands to the plaintiff for life, with remainder to a 
 firanger in fee, this is good for the eftate to the plain- 
 tiff for life, and for fo much mufl be performed, though 
 it be void for the reft.* 
 
 So, when it was held that the arbitrator had no 
 power over the cofls of the arbitration, yet " an award 
 that one of the parties ihould pay a fum of money to 
 the other, and fo much for writing the award," muft 
 have been performed with rcfpcft to the monev to be 
 paid to the other party." ^ 
 
 The fubmiffion was by bond, conditioned to Hand to 
 M\ award of ij.ll controvcrfies ^ind doubts, had, made, 
 
 3 Id. 
 
 ■• M. 37, 38 El. Samon v. 
 Pitt. Rol.Arb. N. 8. 
 
 * Keilw. 43. a. b. 45 b, 2 
 Keb, 490, 
 
 * Bretton V.Pratt. Cro. EI. 
 75S. pi. 27. 
 
 7 Perrvn v. Barry. Bridge- 
 man 90, 91. Pinckney V. Bul- 
 lock. 2 Keb. 739. 2 Lev. 3.
 
 *4^ THR AWARD OR TJMFIRACK. 
 
 moved or flivred l^etwcen the parties from the beginning 
 of the world till the day of the date of the bond : it 
 was awarded that the one fliould pay to the other lol. 
 which appeared by his confeffion to have been re- 
 ceived by him ; and if it fhould appear in a month, and 
 due proof flioiild be made that he had received more 
 than he had confeiTed, then he fliould pay that alfo. — 
 It was objected that all doubts were referred, and the 
 condition contained a provifo that the award fliould be 
 made of the premifes, yet the arbitrators had 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 averred that there was any doubt moved 
 or flirred between the parties at the time of the fub- 
 miflion, it fliould be prefunied that this doubt arofe in 
 the minds of the arbitrators after the fubmiflion, and 
 that they added this refervation only by w^ay of greater 
 caution on their own part : and though fuch a refer- 
 vation was void, yet the award was good for the pay- 
 ment of the lol." 
 
 If that part of the award which is void be fo con- 
 nefted wnth the reft as to affeft the juftice of the cafe 
 between the parties, the award is void for the whole. 
 Thus, where it was awarded " that the defendant 
 (hould pay to the plaintiff 40I. by inftalmcnts, namely, 
 |ol. at Michaelmas, 20I. at Chriflmas, and lol. at the 
 Annunciation ; and, if before the laft payment it fhould 
 fecm to the arbitrator that the defendant waij engaged 
 for the plaintiff in any debt not fatisfied, he fliould re- 
 
 8 Jeanes v.Fourthe on a writ of error from C. B. and judgment 
 affirmed in B. R. 9. }o Car. Rol. Kx\\. M. 6.
 
 THE AWARD OR UMPIRAGE. 147 
 
 pay him fo much as the debt not futisfied amounted to; 
 and that the parties Ihould give mutual relcafcs ; " it 
 was held, that that part witli vefpeft to the reimburfe- 
 raent being void, and affcfting the v^hole of the awar<J, 
 the whole was void.'' 
 
 I HAVE ventured to aflcrt that it is not neccffary that 
 .an award fliould be mutual, in the feni'e in which the 
 rule is cxpiefled, and in which it is commonly under- 
 ilood, namely, that fomething muft be awarded in fd- 
 vour of each party: however, when from the tenor of 
 the award it appears that the arbitrator has intended 
 that his award Ihould 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 conftitution 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 preferved. 
 
 Thus, where the difpute related to tire title of a 
 copyhold tenement, and it was awarded that the de- 
 fendant fhould pay 61. to the plaintiff ou the tvventy- 
 firfl of May, and that tlien the plaintiff fhould rcleafe 
 all his right to the copyhold, and three months after 
 the aforefaid firft of May fliould make further affurance 
 to the defendant ; at a time when the courts would not 
 fupply the word " twenty," but for want of it held all 
 that part of the award to be void ; it was perfe6lly con- 
 fonant to rcafon and juflicc that they fhould hold the 
 award void for the whole, and not force the defendant 
 
 9 Winch and Grave v. Saunders. Cro. Jac. ^i^. 
 s 4
 
 248 
 
 THE AWARD OR UMPIRAGE. 
 
 to pay the 61. when he could not liave that in return 
 which was intended by the arbitrator as a confideration 
 for it.' 
 
 So, when it was held that the arbitrator had no 
 power over the colls of the reference, if it had been 
 awarded that one of the parties fliould pay the other 
 lol. and that the latter Ihould pay the cofls of refe- 
 rence ; the latter part being void, and intended as a re- 
 compcnce or equivalent for the other, it was reafonable 
 to confider the whole award as void.^ 
 
 So, where A. and B. fubmitted, to certain arbitrators, 
 the title of certain land, who awarded that all contro- 
 verfies fliould ceafc concerning the land, and that B. 
 fliould pay to A. 81. and that A. his wife and fon and 
 heir apparent, by the procurement of A. fliould pafs to 
 B. fuch aflTurance of the land as B. fliould require; this 
 was held to be void for the whole; A. could not compel 
 his wife and fon, who were ftrangers to the fubmiffion, 
 to make the aiTurance, and perhaps the wife and fon 
 had the eftate of the land in them, and their pafling 
 the eftate was the confideration for which the 81. were 
 awarded to be paid by B. to A.^ 
 
 It was awarded that the defendant fhould pav and 
 fatisfy the plaintiff for tafk work, and days work done 
 by the latter for the former, and that then the plaintiff 
 fliould pay to the defendant 25I. and give him a general 
 rcleafc of all controverfies : this was held to be void 
 
 • Yel. 98. Markham v. 
 Jennings. Rol. Arb. K. 15. 
 Brownl. 92. 
 
 -Rol. Arb. K. 13. 14. Cro. 
 
 Jac. 577, S. Al. TO. loMod. 
 201. 
 
 5 Barney v. Faierchilde. 
 Rol. Arb. N. 9.
 
 THE AWARD OR UMPIRAGE. 
 
 449 
 
 for the whole, becaufe being void for that awarded to 
 he done by the defendant on account of the uncertainty 
 of liow much he was to pay to the phiintiff for the tafk 
 work and days work, the reconipcncc intended for tlie 
 plaintiff was gone* 
 
 If one intirc aft awarded to he done on one fide 
 comprehend fevcral things, for fomc of which it would 
 be good, and for others not, the award is bad for the 
 whole, becaufe the adt cannot be divided. — As if an 
 aggregate fum be awarded to be paid to one of the 
 parties for confiderations exprcfled in the award, fome 
 of whicli are within the fubmiffion, and others out of it, 
 this is void for the whole, becaufe it is impolTible to dif- 
 tinguifh how much was intended for the confidcrations 
 witliin the fubmilfions.— Thus, where the fubmiffion 
 was of all controvcrfies between the plaintiff and de- 
 fendant, and the wife of the latter, tor divers funis of 
 money laid out for the wife by the plaintiff at her 
 requejl when Ihe was fole : an award " that the de- 
 fendant fhould pay to the plaintiff a certain fum of 
 moncv, for all fums laid out by him for the wife while 
 fole, without the addition of its being at her rcqucjiy^ 
 was held void, in thoie times when the courts were 
 unwilling to prefume any 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 cal'e, had any thing been awarded on the other 
 fide, the award would have been totally void, becaufe 
 it would liave wanted that mutuality which the arbi- 
 li-ators had intended to prevail in their award. ^ 
 
 < 2 Saund. 193. 
 * Waters v. Bridges, adjudged on a writ of error. Cro. Jac. 639.
 
 150 THE AWARD OP. VMTIT.\GZ. 
 
 When it was held that a releafe extending to a time 
 beyond the fubmilfion, was void for the whole, and 
 that the execution of a releafe to the time of the fub- 
 miflion was not a good performance of an award which 
 ordered a releafe to the time of the award ; and when 
 it was held that, williout a releafe, no fatisfadion 
 could be prefumed, unlcfs fome words were ufed which 
 neceflarily implied a fatisfa£tion : in thofe times, if 
 money had been ordered to be paid, and then a releafe 
 from the other to a time beyond the fubmilhon, the 
 latter part being void, the whole award would have 
 been vold.^ — ^This is the doftrine of Rolle in hi» 
 abridgment of the cafe of Vanlore and Tribb, from 
 his uwn reports ; and from this cafe, as given in the 
 abridgment, all the difficulties with refpeft to releafes 
 have arifen. 
 
 The cafe, as given in his reports, by no means juf^ 
 tifics his conclufion here : in thefe the award is Hated 
 to have been, " that one of the parties fhould pay fo 
 much to the other in fatisfaftion of all duties which 
 *' he" (the latter as it would feem) had againft " him" 
 (the former apparently) as adminiftrator to J. S. and 
 that " he" (it appears doubtful which of the two is 
 here meant) fhould make a releafe to " him " (here 
 the fame doubt prevails) of all a£lions to the day of 
 the award : " the breach affigaed was the non-payment 
 of the money, and the rueftion was, whether, as the 
 award was confeiTedly void as to the releafe, " he" 
 fnould be bound to perfol-m the remainder, that is, tQ 
 
 * Vanlorc v. Tribb. Rol. Arb. N. r. cites his own reports.
 
 THK AWARD OR UMPIRAGE. l^i 
 
 pay the money. — ^The doubt with rcfpcft to the award 
 as here ftated 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 confcquence of the 
 payment J if we are to underfland the former to have 
 been the cafe, as feems ncccffiirily to be implied from 
 the manner of reafoning both of the court and counfcl, 
 there could be no queftion but he was bound to pay 
 the money, for that was altogether independent of the 
 releafe. — 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 per- 
 form that which is good, though part be void ; this is 
 adopted by the court, and judgment given accordingly 
 for the plaintiff.^ Had the releafe been awarded to be 
 given by the other party on payment of the money to 
 him, then the queftion could not have been diredly 
 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 refpeft to 
 the releafe itfelf ; and according to the principles which 
 then prevailed, the award with refpe£l to the releafe 
 would have been confidered as void, and therefore, that 
 being the recompence for the payment of the money, 
 the award would have been of one fide only, and 
 therefore void for the whole, according to the dodrine 
 of the abridgment. 
 
 The next cafe in the abrijigment, is one of a fub- 
 milfion on the firft of May of *all matters between the 
 
 7 I Rol. Rep. 437. §. C. Bridgemsn, 59.
 
 THE AWARD OR T'MPIR. A OK. 
 
 parties, and an award that the one fliould pay to the 
 other 20S. in fatisfaftion of all matters between them 
 to the time of making the award, which was on the 
 fourth of May. — Though this comprehends more time 
 than the fubmiflion, fays the abridgment, ftating the 
 words of the coiiit, yet becaufe it fhall not be intended 
 that there were any matters between them, from the 
 time of the fubmillion to that of the award, if it be 
 not fliewn on the other fide, the award is good.^ RoUe 
 adds his own opinion, that this cafe feems to be good 
 law, but that the reafon on which the court relies, is 
 not the true reafon, becaufe" it crojfcs the reafon given 
 for the judgment in the cafe before ; for there the 
 award was held to be void, becaufe there might have 
 been other difputcs between the time of the fubmiffion 
 and the award : but he fays, it feems the reafon of the 
 prefent cafe is, that thongh there zvere other matters 
 between the fubmiffion and the award, and fo the 
 award void for thefe, yet here there is not one intirc 
 a£l to be done, as in the cafe before of the releafe ; 
 but the 2CS. fhall continue a good fatisfaftion for the 
 other matters fubmittcd ; and all the inconvenience is 
 that perhaps the money to be paid was increafed by 
 reafoii of the intervening matters, and fo he may fuftain 
 fome prejudice, but no prejudice can be fuftained on 
 the other fide. — The reafon of the court, however, is 
 more confonant to the principles of juftice than that of 
 Kolle— by prcfuming that there were no matters bcr 
 twcen the parties, from the time of the fubmiffion to 
 
 « M.24 Car. B.R. KynaRon v.Jones. H. 15 Jac. Ley v.Payne. 
 
 Ilutt. 9, Mo. S85. pi. i24J.
 
 THE AWARD OR UMPIRAGE. 253 
 
 that of the making of the award, the court fuppofc that 
 tlic arbitrator had not in contemplation any injury for 
 wliich he was to give a fulisfaftion, but thofe whic li 
 were within the fubmiffion, and that the words feeming 
 to comprehend fomething more, mull be confidcied 
 only as an inaccurate exprcirion. — But the reafon fug- 
 gcfted by Rollc, is againft the juftice of the cafe ; for 
 if in truth the arbitrator, by confidering other injuries 
 than thofe fubmitted to him, had increafed the I'atis- 
 faftion, bcvond that which he would otherwifc have 
 given ; and if the party notwithllanding that incrcafc of 
 damages, be not precluded from fuing his opponent for 
 thofc 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 
 exprelTed their real meaning with perfeft accuracy, that 
 the following and many other fimilar cafes can be fup- 
 ported, with a due regard to juftice. 
 
 '1'he fubmiffion was by A. and B. of all fuits between 
 them, concerning certain tithes ; the award was that 
 
 A. Ihould pay to B. a certain fum of money, and that 
 
 B. fhould fuffer all fuits which he had againll A. to be 
 difcontinued, when in faft he had other anions againll 
 A. which did not concern the tithes : the court held 
 that the award, though void as to the diicontinuance 
 of the actions which did not concern the tithes, was 
 yet good for the reft, " becaufe the fuifcring, fays 
 RoUe, of the actions to difcontinue, is not an intirc 
 a(5l like the execution of a relcafc.'"^ But the onlv fair 
 
 9 Tr. iS Jac. B. R. Ingram v. Webb. Rol. Arb. N. 4, 2 Rol 
 Rep. i6i. Cro. Jac. 663, 6C4. Palm. 107-
 
 454 THE AWARD OR UMPIRAGE. 
 
 reafon mull be that the arbitrator had no other aftions 
 in contemplation than tl ofe concerning the tithes. 
 
 It is indeed laid down by Lord Coke, in general, 
 unequivocal terms, " that though feveral things be 
 awarded to be done in fatisfaftion of another, and fome 
 are within the fubmiflion, and fome out of it and 
 therefore void ; 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 fubmiffion, the award is good, though it 
 appear to have been the intent of the arbitrators, that 
 that which is within the fubmiffion, without the reft, 
 Ihould not be a plenary fatisfaftion for the thing to be 
 done by the other party.' — But Jullice Powell mentions 
 this opinion of Lord Coke in terms of difapprobation, 
 and fays, that the judgment in the cafe which Coke 
 had then in contemplation was afterwards rcverfed on 
 a writ of error,^ It well dcferved his difapprobation ; 
 for if it were to prevail, the inadvertence or the blunder 
 of an illiterate arbitrator might in many inflances be 
 converted into an inftrument of the grofTell injuftice. 
 
 However, when it appears that both parties have 
 the full effeft of what was intended them by the arbi- 
 trator, though fomething be awarded which is void; 
 yet the award fhall fland for the reft. 
 
 Thus, if it'be awarded that the one fliall pay the 
 other 40s. in fatisfadion of all matters between them, 
 and that the latter (hall give the former a releafe of all 
 
 ' 10 Co. 131. b. I3Z. b Rol. Arb. b. 22. 
 * I Leon. 170. Vid. 12 Mod. 587.
 
 TRK AWARD OR UMVIRACE. 255 
 
 matters up to the time of the award, though the award 
 be void as to the releafe, yet it Ihall ftand as to the 
 icft, becaufc without the rclcafc, the rautuality in- 
 tended by the arbitrator remains complete.^ 
 
 So, an award, " that the plaintiff fhall have and 
 enjoy a certain horfe which was in controverfy between 
 the parties, and that the defendant fhould pay him 3L 
 before Michaehnas, towards his charges, and that they 
 Ihall 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 he confidered 
 as valid for th6 reft.* 
 
 So, an award " to pay lol. in fatisfaftion of trcfpafles, 
 and that both parties Ihail give mutual releafes to the 
 time of the award," is good as to the lol. becaufe, by 
 being in fatisfadion of the trcfpafs, the mutuality is 
 complete without the releafe.^ 
 
 The fubmiffion was by bond in the penalty of 2000I. 
 the bond of the plaintiffs was dated on the tvventy- 
 fecond of February, that of the defendant on the ninth 
 of March ; the award ordered that the defendant fliould 
 pay to the plaintiffs 1200L at four payments ; that on. 
 the fourth of May he fhould enter into four bonds for 
 the payment on the days appointed, and fliould then 
 pay to the plaintiffs 30I. towards their cofls and charges 
 expended ; that all aftions and controverlies between 
 the plaintiffs and the defendant fhould ceafe and deterr 
 mine ; and that thev fhould fcal and deliver to each 
 
 J Rol. Arb. M. 4. K. 9. 
 
 * Held contra formerly. Stain v. Wild. Cro. Jac. 352, 35;.» 
 
 ^ Freem. 26c.
 
 15(5 THE AWARD OR UMPIRAGE. 
 
 Other general releafes of all controverfies, fuits, and 
 demands, to the eighth day of March. — The objeftiou 
 made to this award was that the releafes being ordered 
 to the eighth of March, the plaintiff's bond of fub- 
 miilion, which was dated on the twcnty-fccond of 
 February preceding, would be difcharged by the de- 
 fendant's releafe : but in this cafe the court thought 
 that the queflion, whether the award as to the releafes 
 was void, was immaterial ; becaufe, it being awarded 
 that all fuits fhould ceafe, the award was reciprocal, 
 and a fufficient fatisfaftion for the money ordered to 
 be paid by the defendant.'^ 
 
 It was awarded that the plaintlfF fliould pay 30I. to 
 the defendant, and that the latter, on the payment,. 
 Ihould furrender to the former the poireffion of a 
 houfe in which the defendant lived, and deliver to the 
 plaintiff a deed, by which the houfe was intailed to 
 the plaintiff, and deliver up all bonds which he had 
 againft him, and execute a general releafe to him, to 
 the 1 2th of Auguftj the fubmiifion bond being dated 
 the 2d of July preceding, and that the plaintiff Ihould 
 then give a general releafe to the defendant. — It was 
 objcfted that the award was not mutual, becauie the 
 defendant being ordered to give his releafe firfl, the 
 plaintiff might refufc to give that awarded on his part, 
 and the defendant had no remedy to enforce it ; becauie 
 if he brought an aftion on the lubmilfion bond, the 
 plaintiff might plead the defendant's releafe in bar: 
 but it was held that whatever might be the effeft of 
 
 Kynafton and Spencer v. Jones. Al. 87. RoL Arb. N. 5.
 
 tHE AWARD OR UMPIRAGE. 257 
 
 luch a pica, the award was mutual without the relcafcs, 
 and no defeft with refpeft to them fhould vitiate it.' 
 
 An award confifted of the following diftinft particu- 
 lars. 1. That the defendant Ihould pay all his own 
 colls till the day of the fubmiffion. 2. That he fhould 
 execute a general releafe to the plaintiff, of all aftions, 
 &c. unto or upon the fame day. 3. That he fliould 
 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 fliould pay to the plaintiff 
 50I. 5. That the defendant fliould procure double 
 iixpenny ftamps to certain indentures relating to the 
 premifes. 6. That the defendant fliould pay to the 
 plaintiff ill. for the cofls in the fuit recited in the 
 award, on or before the fccond day of May following, 
 and give a bond in the penalty of 74I. with a condition 
 to pay the faid ill. and that the plaintiff on the per- 
 formance thereof fliould execute a releafe to the de- 
 fendant of all adlions unto or upon the day of the 
 fub million. 
 
 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 fubmiffion bond ; yet they were all of 
 opinion that the award was good, bccaufe it amounted 
 to a particular fatisfaftion, and mutual recompence as 
 to each particular matter awarded.** 
 
 By an umpirage, it was ordered that all adions 
 fliould ceafe. 2. That the defendant fhould pay to 
 
 Marks v. Marriot. i Ld. Raym. 114, 5, 6. 
 ^ Leev.Elkin. 13 W. 3. C. B. Lutw, 545. 
 T
 
 25? THE AWARD OR UMPIRAGE. 
 
 the plaintiff 12I. 15s. 30!. 3. That the defendant fhould 
 deliver to the plaintiff certain goods particularly men- 
 tioned, and three boxes, and feveral books, without 
 naming them ; and that the plaintiff ihould deliver to 
 the defendant feveral articles by name ; but that, if 
 any of the goods fliould be miflaid or loft, then the 
 parties lliould pay the value of them, to be appraifed 
 by the umpire and the arbitrators, and that the parties 
 fnould execute mutual releafes. — In an aftion on the 
 bond for performing this award, the breach was affigned 
 in the nonpayment of the 12I. 15s. 3d. 
 
 That part of the award, rcfpefting the three boxes 
 zna feveral books, was 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 miflaid or loft, by the umpire 
 and arbitrators, doubts were entertained ; fome'' holding 
 that it was a judicial a6l, Powell that it was a minifterial 
 aft. — With refpcft to the releafes awarded to be exe- 
 cuted on both fides, it was refolved, that, although no 
 time was limited for the execution, nor was it faid, 
 that it ihould be done, on or after the performance of 
 the other parts of the award ; yet the award being void, 
 with refpcft to the delivery of the goods, neither the 
 one nor the other was obh'ged to give the releafe, for 
 then the goods would be releafed without any fatisfac- 
 tion, which, as was faid by one of the judges, would 
 be abfurd. 
 
 It was alfo held, that the fubmiffion in this cafe 
 .containing the provlfional claufe of" Ita quod," if the 
 
 "* Trevor, C. J. and Blencow, J,
 
 THE AWARD OR UMPIRAGE. 259 
 
 award was void fur 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.' 
 
 The proper way, however, of confidering the cafe, 
 feems to be this : that part of the award which gives 
 12I. 15s. 3d. to the plaintiff, and orders the delivery 
 to the plaintiff of certain goods particulary mentioned, 
 and three boxes, with feveral books, without par- 
 ticularifing them, is altogether the confideration in- 
 tended by the umpire for the delivery of the goods by 
 the plaintiff to the defendant, and part of that con- 
 lideration being void, the plaintiff could not be com- 
 pelled to perform his part ; confequently if the defend- 
 ant had been held to the payment of the 12I. 15s. 3d. 
 he could not have had that equivalent which the arbi- 
 trator intended him. But had the plaintiff alleged that 
 he had delivered the goods awarded to be delivered on 
 his part, it is conceived, no objeftion could have arifen 
 on the part of the defendant on account of the releafes, 
 bccaufe without them the award would then, in every 
 refpeft, have been mutual. 
 
 In all the cafes in which objeftions are made to the 
 award, as wanting mutuality, on account of one part 
 being void, the arguments are founded on the fuppoli- 
 tion that the defendant, on performance of his part, 
 has no means of enforcing performance from the 
 plaintiff of the part awarded to be performed by him 
 in return ; this flrongly favours the argument, that 
 wheie that objeftion is removed by an aftual previous 
 performance on the part of the plaintiff, the defendant 
 
 ' Cockfon V. Ogle. 13 W. 3. Lutw. 350. 
 
 T 2
 
 56o THE AWARD OR UMPIRAGE, 
 
 lliall be bound to pevforna liis, where there is no reafon 
 to impeach the validity of tl^at. — This opinion is con- 
 firmed by the reafoning of the judges in the cafe of 
 I.ec and Elkins.- — Powell, J. fays there is a diverlity to 
 be obferved ; where an award confifts of fcveral things, 
 for one of whi(h it is void, and it is cxprcfTly faid, that 
 on performance of that which is void, the other party 
 Ihall do fomc particular thing, there the performance 
 of that, for which the award is void, is a condition 
 precedent, and muft be averred before the action againll 
 the other for not doing his part, can be maintained. — 
 But when there are feveral things in an awarcl, for 
 fome of which it is good, and for others not, and it is 
 further faid, that on performance of the premifes, the 
 other party Iball do fomcthing in return, there the 
 W'Ords " on performance of the premifes," Ihall 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 to have been conformable to that 
 of Powell. The award was that the defendant I'hould 
 pay to the plaintiff lol. and that the plaintiff fhould 
 pay to the defendant the expences to the making of 
 the award, and that tkcti, each Ihould give to the other 
 a mutual releafe ; the breach being afUgned in the 
 non-payment of the lol. by the defendant, it was ob- 
 jefted that the award was not mutual, bccaufe 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 
 
 ' 12 Med. ^SS.
 
 HE AWARD OR UMPIRAGE. 26t 
 
 uas good, the rcleafc ought to be given. ^ — But this 
 diftin6lion was, on good reafon, denied by Chief Juflicc 
 Trevor, who faid, that in the hitter cafe mentioned by 
 Powell, as well as in the former, if it appeared that tlic 
 arbitrators defigned that fuch illegal part fhoukl be part 
 of the confidcration, in refpeft of which the other wi;s 
 to perform, that illegal part mull in fad be performed, 
 otherwifc the oppofite party would not have that ad- 
 vantage which was defigned for liim ; and he would be 
 injured by being forced to pay for a consideration, of 
 which he had not the benefit. — Thus, if fevcral things 
 were awarded to be done on the part of tho defendant, 
 againft which no objeftion could be taken, and alfo 
 tliat he fiiould give the plaintiff a general releafe, 
 ** unto and upon the day of the arbitration bond," and 
 that then the plaintiff fhould give h'lm a like general 
 releafe; though, by the Chief Juilice, it was held that 
 the releafe was void, as extending to the day of the 
 fubmiffion, and fij going beyond the iubmilfion, yet he 
 held that the plaintiff was not bound to give the releciie 
 on his part, independently of the fame objedtion to its 
 legality, unlefs the defendant firfl gave his releafe ; but 
 if the plaintiff averred performance on his own part, 
 the defendant could not excufe himfelf from the per- 
 formance of what was awarded to be done by him, 
 merely on account of the illegality of the part to be 
 performed by the plaintiff. 
 
 Whep.e the fubmiffion is verbal, without 
 ,a provifo that the award fhould be made in . " /"' 
 Vvriting, a verbal award is fufficient.-* 
 
 3 Pinkney v. Hall, i Lev. 3. 23 Car. 2. 
 * Cable V. Rogers. 3 Bulftr. 31?,.
 
 a6i 
 
 THE AWARD OR UMPIRAGE. 
 
 If the fubmiflion be by bond, and the condition 
 contain a provifo that the award ]hali be made and 
 jcady to be delivered, either in writing or by word of 
 mouth ; a parol award is in this cafe alfo fufficient.^ 
 And where the provifo is merely that the award Ihall 
 be made and delivered, it feems that it may be made 
 without writing;^ at leaft it is not neceflary for the 
 plaintiff to fhew that it was in writing. — If the provifo 
 be that the award be made in writing or by word of 
 mouth before two witneffes, a verbal award alone will 
 not fatisfy the provifo, it muft alfo be pronounced 
 before two witnelfes.^ 
 
 If the provifo be that the award fhall be made and 
 delivered under the hands and fcals of the arbitrators, 
 the award mufl be aftually fubfcribed by them ; fealing 
 alone will not be fufficient.^ But if the arbitrator make 
 his mark, that is fufficient fubfcription.'' 
 
 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 fufficient for the party pleading the award, 
 to allege that he has it in court fealed with the feal 
 of the arbitrators, he muft fhew that it w^as fealed at 
 the time of the delivery.' — But though, in the be- 
 ginning of the replication, it be only faid, that the 
 arbitrators, by their writing fealed with their feals, 
 awarded ; yet if it be afterwards faid, that it was ready 
 
 5 Hanfon v. Liverfedge. 2 
 Vent. 240, 2^2. 
 
 ' Rous V. Nun. i Sid. 155. 
 tid. ante 116, 1 17 ace. 
 
 » Wilfonv.Conftable, Lutw. 
 336. 
 
 8 Thaire v. Thaire. Palm. 
 >09, 1 12, 121. 
 
 9 3 Salk. 44. 
 
 ' Palm. 121. Jenkinfon v. 
 Allenfon, 3 K.cb. 513.
 
 THE AWARD OR UMPiRACF. 
 
 263 
 
 to be delivered under their hands and fcals, it will be 
 fiifficicnt to fatisfy the provifo.^ 
 
 It was formerly held that a provifo " that the award 
 fliOLild be made by deed indented," was not fatisfied 
 by an award made in writing without lieing indented, 
 and that even the acceptance of it by the parties 
 iinindcnted, would not alter the cafe.-^ — It was further 
 held that an averment *' that it was made according t-o 
 the efFeft and form of the condition would not aid it, 
 becaufe that relates to the delivery to the parties, and 
 fo, it is faid, it hath been often adju-igcd^ But the good 
 fcnfe of later times, has confidcrcd this objedlion as 
 altogether immaterial, and of not more confcquence 
 than if the fubmiffion required the award to be made- 
 on gilt papcr.5 
 
 Where there is a provifo that tlic award be made, 
 *' of and upon the prcn:iifcs," it is not neceffary that 
 the award fliould exprcflly 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 Icaft, feems flie true conclufion from two cafes re- 
 ported : where the fubmiffion contained that provifo, 
 and if the arbitrators did not make their award within 
 the time, then an umpire fhould decide; the arbitia- 
 tors did not make any award within the time, but the 
 umpire did without profeffing to make it " of and 
 uppn the premifes : " it was held that the provifo cx» 
 
 ^ Lambard v, Kingsford. 
 jLutw. 558. 
 
 i Dift. per Hale in EI- 
 borough V. Yates. 3 Keb. 
 JZ5. aclj. in Hinton v- Cray. 
 
 3 Keb. 512. 
 
 + Burges v. Pleycr- Freem. 
 467. 
 
 ^ Barnes 56. 
 
 T 4
 
 264 THE AWARD OR UMPIRAGE. 
 
 tended to the umpire, as well as to the arbitrators ; but 
 that though he had not profelFed to make his award 
 *^ of and upon the premifes," it was fufficient.^ 
 
 „ , It is not in all cafes abfolutely necefTary 
 
 Terjo- mance ' •' 
 
 •LL-hat jhaii he. ^^^^ pcrformancc fhould be exa£tly accord- 
 ing to the words of the award ; if it be 
 fubilantially and efFeftually conformable, it is fufficient. 
 Thus, if it be awarded that one of the parties ihould 
 deliver, to the other, the lafl will and tc {lament of his 
 tcllator, it is fufficient to allege a delivery of letters 
 teftamentary, becaufe thefe are in cffeft the fame 
 tiling.^ Where it was awarded that one of the parties 
 Ihould " withdraw" his a6lion, it was much debated 
 whether his fufFering a difcontinuance would fatisfy the 
 award : the report of the cafe is far from being clear,^ 
 but the prevailing opinion feems to have been that it 
 fliould not ; for by this award, it was faid, the party 
 mufl do an a£l ; he muft come into court before the 
 day which was given for the continuance, or before 
 tlie return of the writ, and fay that he will no further 
 proceed in his aftion, on which the entry on the record 
 L=;, " that the plaintiff comes in his proper perfon and 
 fays that he will no further proceed in this plea." 
 
 A DISCONTINUANCE, howcvcr, fccms a fufficient 
 performance of fuch an award, becaufe it has the fame 
 cffe£l as a retraxit ; for though a retraxit be a bar to 
 another a£tion, which a difcontinuance is not, yet by 
 bringing anotlicr action after an award of a difcontinu- 
 ance, the party as much difobeys the award, as if he 
 did the fame after an award of a retraxit. 
 
 « I Keb. 790. 865, 
 17 Ed. 4. 3. cited 3 Bulftr. 67. ^ 21 Ed. 4. 38, tt feq.
 
 THE AWARD OR UiMPIRACE. 
 
 i6$ 
 
 AV'here the award orders a releafe to a time beyond 
 the fubmiflion, a releafe to the time of the fubmillion 
 is fufiicicnt performance.'' 
 
 PERFOP-MANCE by tlio attorney is equivalent to 
 performance by the principal ; as if tlie award be that 
 the party fliall difcontinuc his fuit, a difcontinuance 
 by his attorney is fufficient/ 
 
 If it be awarded that one of the parties fliall pav a 
 fum of money to a ftranger and his alTigns before a cer- 
 tain day, and before the day, the flrangcr die, the party 
 mull: 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.* 
 
 Where the concurrence and prcfence of both 
 parties is not abfolutcly necelTary to the performance, 
 jeach ought to perform his part without requcfl: from 
 ihe othcT.^ Thus, where the award was, that the 
 defendant fhould rcaffign to the plaintiff certain pve- 
 iniles mortgaged to him by the latter, it was held, he 
 was bound to reaffign without the prefence or concur- 
 rence of the plaintiff, and if the mortgage had been of 
 a fee, the reailignment might be done by leale and 
 releafe. Had the award been that he Ihould reinfeoffe 
 the plaintiff, he could not have performed it without 
 
 9 Godb. 164, 5. I Sid. 365. 
 6 Mod. 34, 35. 12 Mod. 8, 
 117, 5b'9. et vid. ante page 
 
 ' Jcnk. 136. dift. contra of 
 » retraxit. 
 
 ' 3 Leon. 212. 
 
 3 Nihil aliud efle, fententlx 
 ftare, qaam id agere, quantum 
 in ipfo fit, ut arbitri parcattir 
 fentenii*. Ff. 1. 4. t. 8, f. 23. 
 n. :.
 
 a66 THE AWARD OR I'MriRAGE. 
 
 the prefence of the plaintiff or fome one on his behalf 
 to take livery.'* 
 
 Where an adt is awarded which may be done two- 
 ways, but by the one, it cannot by law be done before 
 a diftant day, and by the other it may be done imme- 
 diately, the party muft do it in that way in which he 
 may do it immediately, unlcfs he has a time by the 
 award, Avhich goes beyond the dillant day. Thus 
 where the award was that one of the parties fliould 
 grant the reverfion of an eftate held for term of life, 
 this, before the ftatutc 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 
 line could not be levied before term, the reverfion 
 mufl therefore have been granted by deed, which might 
 be done immediately ; however, it mull be obferved, 
 that, before that Hatutc, the conveyance would not 
 have been complete without the attornment of the 
 tenant, which could not be compelled but by " per 
 qu;v fcrvitia," or " quern redditum rcddat;" and thcfe 
 could not be profecutcd with effeft '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. ^ 
 
 It may fometimes be a qucfllon, when mutual things 
 are awarded, who fhall do the firll ad. On a fubmif- 
 iion of a battery committed by one of the parties 
 ygainll the other, if it be awarded that the offender 
 iliall pay a fum of money, and the other give him 9 
 
 * Roffc V. Hodges. 1 Ld. Raym. 233, -34. 
 ' 21 Ed. 4. 40— 43- quaere, for the report is very inaccurate,
 
 THE AWARD OR UMPIRAGE. 167 
 
 releafc of all a£lions, or a releaie fimply, there the 
 payment of the money muft precede the rcleafe, 
 becaufe, according to the old do6trine, fuch a releafe 
 would have extended to the money awarded in fatis- 
 fadlion. But if the award be that the one lliall pay 
 money, and the other give him a releafe of " the" 
 a£tion, 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 releafc, 
 there is no precedency required, and the offender may 
 fue on the award, and affign a breach in not executing 
 the releafe without fliewing that he has paid the 
 money, nor will he be barred, by the other party's 
 alleging the non-payment, in his pica.** 
 
 If the party, in whofe favour the award is made, 
 accept of a performance differing in circumflanccs from 
 the exadl letter of the award, that is fufFxcicnt : — thus, 
 if it be av.-arded that the one ihall 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 exadly witiiin the words.'' So, if 
 the award be, that the defendant fhall conduft the 
 fervant of the plaintiff to London, and the defendant, 
 by the direction of the plaintiff, deliver him to A. B. 
 at Saliibury to be conduced to London, this is fufficient. 
 But where the fubmiflion bond was to a flranger, and 
 
 f Bilford V. Flint. 2 Bulilr. 117. vid. 2 Keb. 163. 403, 3 Kcb. 
 
 608. Sir T. R?.ym. 169. 
 
 7 36 H,6. cited 3 Bulftr. 67.
 
 i63 
 
 THE AWARD OR T.'MFIRAGE. 
 
 not to the party in whofe favour the award was made, 
 it was held tliat fuch a performance would not fave the 
 penalty of the bond, bccaufe, by the law relative to 
 bonds, he was bound to a ftridl and literal performance.^ 
 It was afterwards, however, decided on folemn argu- 
 ment, 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, bccaufe when a bond is given to A. by 
 Y). conditioned to ftand to A.'s award between B. and 
 C. there is fufficient privity between the two latter to 
 make the default of C. in whofe favour the award is 
 made, excufe B.'^ 
 
 But, without having rccourfe to that privity, it may 
 be obfcrved that in this refpeft the cafe of an award is 
 different from a common bond, for by a bond to fland 
 to an award, the obligor is only bound to perform the 
 award in a reafonable m.anner, and it would be too 
 much to fay it was reafonable he (hould compel the 
 other party to accept performance. 
 
 If the award be to pay on or before a particular day, 
 payment before tlic day is equivalent to payment on 
 the day,' and fo one might fuppofe if the award were 
 to pay on the day, without the word '* before." " 
 
 If no day be limited for the payment of money 
 awarded, it mufl be paid within a reafonable time, and 
 
 «36 H. 6. cited 3 Bulftr. 67. 
 
 9 22 Ed. 4. z7. Brooke Arb. 
 pi. 41. 
 
 ' Hinton v. Crane. 3 Keb. 
 675, 6. 
 
 ' Si arbiter, me tibi ccrio 
 die fccmiam dare juffcrit, tu 
 
 accipere noluifti : — pofTe de.. 
 fendi, ipfo jure pa-nam non 
 committi. Scd fi poflea 114 
 panuurus fis accipere : im- 
 punc me non daturum ; non 
 enim ante feceram. Ff. I. ^, 
 t. 8. f. 23. n. 3. f. 2-)..
 
 THE A W A R D OR. U M P I R A C ; 
 
 269 
 
 tlic party to whom it Is to be paid, is not bound lo 
 niatic a rcqucft before he bring his adlion for the 
 recovery of it.^ But it fecms rather a itrift conflru£\ion, 
 that if the party who is to pay the money let a con- 
 liderable time clapfc, the other fliould be at liberty to 
 refufe it when offered, and be permitted, notwith- 
 flanding fuch tender and refufal, to fuc on the fubmif- 
 iion bond. — Sueh flriftnefs, however, was formerly 
 adopted. — Money was ordered to be paid, by an award 
 dated on the firft of Mav. The plaintiff brought his 
 iiftion, 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 clapfed was too long.* — There is no doubt, how- 
 ever, at prefent, but that if the tender is adually before 
 the commencement of the aftion, it is fufficient ; and 
 this is conformable to the civil law on the fame 
 fubjea.s 
 
 ^ 21 Ed. 4. 38 et feq. 
 t Jtnk. 136, 
 
 ^ Si dies adjeftus non fit, 
 ineft quoddam modicum tem- 
 pus, quod ubi prseterierit, 
 poena ftatim peti poteft ; et 
 tamen fi dcderit ante acceptum 
 judicium, agi ex ftipulatu non 
 poterit. Ff. 1. 4. t. 8. r. 21. n. 
 12. Utique nifi ejus inter- 
 fucrit, tunc foivi. f. 22. Ceifus 
 ait, fi arbiter intra Kalendas 
 Septembres dari julTurit, ncc 
 datum erit : licet poftea of- 
 feratur, attamen fomel com- 
 millam poenam compromilii 
 r.on evan^fcere : quoiiiam I'em- 
 pcr verum clh iutra Ralendas, 
 datum non cfi'e, Siti aiitem 
 tiblacum acccpit, pccnam pc- 
 
 tere non poteft, doli exccptione 
 removendus; contra, ubi dun- 
 taxat (/are juffus eft. Idem 
 ait, fijulTerit me t'lbi Jure, at 
 valetudine fis impeditus, quo 
 minus accipias, aut alia julH 
 ex caufa : Proculum exifti- 
 marc, poenam non commiiti 
 nee fi, poft Kalendas, te pa- 
 rato accipere, non dem. Scd 
 ipfe refte putat duo eflc arbi- 
 tri prsecepta ; unwxn ^ pecu>i:am 
 dari, aliud, intra Kak-! das dari. 
 Licet igitur, in pccnam non 
 committas quod intra Kalen- 
 das non dedetis, quoniam per 
 le non ftetit : tamen com- 
 mittis in cam partcmi ciuod 
 non das. f . : 3
 
 210 THE AWARD OK UMPIRAGE. 
 
 A CONSIDERABLE iiuinbcr of years having clapfcd 
 llnce the making of the award, is no objeftion to the 
 parties being called upon to perform it. 
 
 A TESTATOR left his fon and brother executors; 
 the teftator was poiTcfTcd of a confidcrable pcrfonal 
 eftate : the brother podefTed himfelf of it, promifuig 
 to give a iuft account, and that the fon fliould have his 
 Ihare of it; but difputes ariling between them, thcfc 
 were referred to arbitrators, and mutual bonds given 
 to {land to the award : The arbitrators awarded that 
 the perfonal eftate Ihould be equally divided between 
 them, and that each fhoold give the other a general 
 releafe. The brother having the greateft part of the 
 eilate in his hands, promifed to fliare it with the fon, 
 according to the award ; the fon relying on that pro- 
 mife, gave his uncle a general releafe, and wifhing to 
 have his fliare, to enable him to difcharge fome debts 
 which he had contradlcd, applied to his uncle, Avho 
 pretending that he had not money, borrowed 20bl. of 
 one Uodv, 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 tcflator's cftatt- 
 according to the award. — When the fon tendered to 
 his uncle the 53CI. with intention to have his mortgage 
 delivered up, the latter declared that on a jufl and fair 
 account there would be nothing due, and that therefore 
 he Ihould have his mortgage delivered up to be can- 
 celled. — The brother made his will, appointing his 
 wife executrix, and died. The viridow proved the will, 
 and the fon exhibited his bill agalnfl her, praying that 
 he miqht have his ihare of his father's efiate as award«^
 
 THE AWARD OR UMPIRAGE. 
 
 to him : the defendant confcflTcd the charge in the bill, 
 but faid flic believed her hulband had performed the 
 award, and infifted tliat fhe ought not, either as execu- 
 trix of her hufband, or othcrwife, to be drawn into 
 account ; for that her hufl"»and Hved twelve years after 
 the award made : and faid, that though Ilody's debt 
 was paid, yet Ihe had been fucd for Holland's, and had 
 paid it, and that on payment of that and other funis ex- 
 pended by her, ihc was willing to aflign the mortgage. 
 
 'I'liE court decreed an account and diftribution of 
 what was awarded, as well as a redemption of the 
 mortgage, but that the account of the mortgage fliould 
 be taken apart and not attend the account on the award. 
 — That the mafter fhould compute what money was 
 due to the defendant, and on payment of that Ihe 
 Ihould 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 Ihould be anfwcrable in fuch manner 
 as the mafler fhould appoint.^ 
 
 irhatjhaiihe If tuc arbitrators award that a fuit dc- 
 « Breach, oj the pending in Chancery between the parties, 
 Award. j]jjjjj ceafe ; it is no breach if the plaintiff 
 
 in the bill file another in the fame caufe, if he do not 
 fue out proccis on it ; for it is faid, till proccfs be fued 
 out, a fuit is not properly depending, and till that time 
 the defendant cannot be faid to be molellcd : tliat this 
 refembles the cafe of a counterbond from the principal 
 obligor in an original bond to favc his furety harmlefs; 
 where, though the original bond be forfeited, yet this 
 in itfeif is no damnification, and the counterbond i? 
 
 « Sweet V. Hole. Ca. Temp. Finch, i%a-
 
 2-^t 
 
 THF. AWARD OR VMPIRAGK. 
 
 not forfeited till fonic adlual damage happen to the 
 furety.' 
 
 If an award order that the defendant fliall reaflign 
 to the plaintiff certain mortgaged premifes, it will be a 
 breach if he do not reaffign without requeft.* 
 
 An ?ward that all fuits fhall ceafe between A. and 
 B. does not extend to fuits, between A. on one fide, 
 and B. and a tliird perfon on the other, and confe- 
 quently the profecution of a fuit between fuch parties 
 is not a breach of the award.' 
 
 A CONTINUANCE from term to term is no breach of 
 an award that the plaintiff in an aftion fliall not profe- 
 cute or proceed during the fame term.' 
 
 It was awarded that the defendant fhould pay to the 
 plaintiff 81. or 3I. and coils of fuit in an aftion of tref- 
 pafs between the plaintiff and defendant, as fhould 
 appear bv a note under the attorney's hand, " at the 
 pleafurc of the defendant." — The (^ueAion was wiiether 
 the defendant was bound to procure the note of the 
 attorney, and to make his eleftion, or the plaintiff was 
 bound to tender him the note, before he could bring 
 his a6lion and affign a breach in the non-payment of 
 the one or the other. This qucftion, it was argued, 
 depended on another, which was this ; whether, in 
 the prcfent cafe, the attorney was to be confidcrcd as 
 a ftranger to the plaintiff; for if he wns, it was not 
 incumbent on the plaintiff to give notice to the de- 
 
 ' Freeman v. Sbcene. i 
 Biilftr. 98. 1 Rol. Rep. 7, 8. 
 Cro. Jac. 340 Brownl. iz;. 
 
 • I LcJ. Raym. :34.. 
 
 ' BsrnnrJifton v. Fowlycr. 
 10 Mod. 204, 5. 
 
 ' Gray V.Gray. Cro.Jac 
 5^5-
 
 THE AWARD OR VMPIRACE. 473 
 
 fciKhint of llie fuin due by the note, but the latter was, 
 at his peril, to procure it from the attorney; but, if the 
 attorney was to be coniidcrcd as the fervant of the 
 plaintiff, und it was in his power to compel him to 
 deliver the note, then the defendant was not bound to 
 make his election till that was delivered to him. — The 
 judges were at a lofs how to determine, 2nd the court 
 not being full, tlie queflion was adjourned. — But after- 
 wards the fubjeft was refumcd, 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 knowlcge of the plaintiff, to what the fum 
 amounted, and he could not compel the attorney to 
 make the notc.^ But this judgment is open to fome 
 obfervation. — Mufl not the attorney be confidered as 
 the agent of the plaintiff? and, if he had refufed to 
 make the note, at his requefl, might he not have been 
 compelled, by an application to the court for that 
 purpofe ^ 
 
 If, by an award made in the middle of a term, it be 
 ordered that one of the parties fhall ceafe a certain fuit 
 which he has againfl the other ; it may appear trifling 
 to lay it down, as an important point, that it will be a 
 breach in the plaintiff in the fuit to profecute it to 
 iudgment afterwards in the fame term: but it was, in 
 truth, ferioufly argued that this was no breach of fuch 
 an award ; becaufe, by hftion of law, the judgment 
 relates to the firfl day of the term, and therefore tl;e 
 award being made in the middle of the term, was of a 
 
 ^ March. 109. 157/ 
 u
 
 i74 THE AWARD OR CMPIR AGE. 
 
 thing which it was impofiiblc for the parly to perform; 
 the fuit having ceafcd by the judgment, by relation, 
 before the award was made. — And fuch is the im- 
 becility of the human mind, when its views are con- 
 tracted by the technical dogmas of a lingle fcience, that 
 the judges, inflead of rcjedting this as mere jargon and 
 abfurd nonfenfe, very gravely obfervcd, that though, 
 by fidlion of law, every judgment related to the firft 
 day of the term, yet as the plaintiff had in his declara- 
 tion expreffly averred that the defendant, after the time 
 of the award 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.^ 
 
 If an award be that the one fliall make a leafe for a 
 term of years to the other rendering rent, and the leafe 
 be accordingly made, and the tenant do not afterwards 
 pay the rent, this is no breach of the award on the part 
 of the tenant, nor is his fubmiffion 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 com- 
 pletely performed by his acceptance of the leafe with 
 the rent referved."^ 
 
 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 ot 
 the award, and by non-payment at the day, he will 
 forfeit only the bond awarded, not the bond of fub- 
 miffion.^ 
 
 •^ Huys V.Wright, i Jac. Yeh-erton 35. 
 
 ^ Bcnl. 13.pl. 16. 27 Hen. 8. More, 3. pi. 8. there faid to he 
 
 28 Hen. 8. 
 
 ^ Str. 903. I Barnard. 463,
 
 THE AWARD On VMriRACE. 
 
 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, and tlie plaintiff mufl on non- 
 payment be confined to his aftion on the note.*^ 
 
 If an award be made between the grantee of a rent 
 and the terre-tenant of the land out of which the rent 
 ifrues, " that the grantor fliall fland acquitted of the 
 rent," the grantee is not bound by this to give the 
 tenant a releafc'; it is fufficient if he never purfue 
 any remedy for the recovery of the rent, by aftion or 
 diftrefs.7 
 
 * Booth v.Garnett. Str. 10S2. ^ z Bulftr. 96. 
 
 U 2
 
 ::6 THE REMEDY 
 
 CHAP. VI. 
 
 The Remedy to compel Performance, vohen the 
 Award or Umpirage is properly made. 
 
 IN the Roman law, the only remedy which cither 
 party could have agairiil the other for difobedience 
 of the award was to fue for the penalty cxprefled in 
 the fubmiffion.^ But with us the remedy is various, 
 according to the various yorw^ of the fubmiffion. 
 
 Though the fubmiffion be verbal, it has been fccn," 
 that in all cafes an action may be maintained on the 
 award, whether it be for the payment of money, or 
 for the performance of a collateral a£t ; where it was 
 of the latter kind, however, it was not but by /low 
 degrees that it was held that the aft of fubmiffion im- 
 plied in itfelf a promife to perform the award ; before 
 the courts went fo far, they held that the promife was 
 collateral to the fubmiffion, and that where it was laid 
 to have been made at the fame time with the fubmiffion, 
 proof of the latter might have been confidered by the 
 jury as a foundation for prcfuming the former : but if 
 the promife had been laid to have been made at any 
 other time, though on the fame day with the fubmif- 
 
 » Vid. p. 8. 9.
 
 TO COMPEL PKRFORMAN-CE. 
 
 277 
 
 fion, then in an adion on the cafe, proof mull have 
 been given of an a6lual promife.' 
 
 AVhere the award, on a parol fiibmiiTion, is for the 
 payment of money, the a(^ion on the award mav be 
 an action of debt, as well as where tlic fui)mifrion is by 
 deed, and as well where the award is verbal, as where 
 it is in writing.* It may alfo be an adlion of ajj'umpjtt : 
 in all other cafes on a parol fubmiflion, an affumpjit is 
 the only fpecies of adtion that will lie. 
 
 When the courts would not fupport an aftion on an 
 award of a collateral thing, where the fubmiffion was 
 verbal, unlefs there were adually mutual promifos to 
 fland to the award, on confideration of a certain fpecitic 
 fum, it was, of courfe, neccffary that the declaration 
 Ihould run in fome fuch form as this : " Whereas cer- 
 tain differences fubfifted between the plaintiff and the 
 defendant, and they had fubmitted thcmfclves to the 
 award of J. S. concerning the premifes, and in con- 
 fideration of 6d. given by the one to the other, the 
 one alTumed to the other to ftand to his award," that 
 alfumption being flated in the terms of it.^ When 
 mutual promifes only were held to be a fuflScient 
 foundation for this adion, it was no longer neceflary 
 to flatc any confideration for them in the declaration - 
 
 » Vid. Read v. Palmer. P. 
 24 Car. Al. 69, 70. 
 
 - I do not find any dircft 
 authority for this, but the 
 general tenor of the cafes 
 fcems to juftify the conclufion. 
 Smith V. Kirfoot. i Leon. 72. 
 and Ormlade v. Coke. Cro. 
 
 Jac. 354, are anions of debt 
 on the award, but it does not 
 ^ppear whether either the 
 fubniiirion or the award was 
 Verbal or in writing. 
 
 3 Vid. Goodman v. Foun- 
 tain. Cro. El. S61. Colfton 
 V. Harris. Id. ^24. 
 
 ^' 3
 
 175 THE REMEDY 
 
 when the aft of fubminiou was of itfelf confidercd as 
 an implied promife to perform the award, it became 
 of courfe fufficient to Hate the fubmiirion. 
 
 In all aftions on the award, however, whether debt 
 or afTumpfit, it mufl neceffarily be ihewn that the 
 parties fubmitted, before the award can be properly 
 introduced ; and that fubmiffion mufl be fhewn in 
 dire£l, unequivocal terms ; * that the arbitrator was 
 nominated " on behalf" of the defendant,' is not fuf- 
 ficient ; it mufl appear that he was in efFcft nominated 
 ly the defendant, which the former expreffion, it is 
 faid, does not fufficiently import, for the nomination 
 may have been by fome friend, to which the defendant 
 might not have confented.-* 
 
 It is alfo faid, that it mull appear for what caufe the 
 parties fubmitted ;5 perhaps the reafon maybe, that 
 it ought to appear whether the award be according to 
 the terms of the fubmiflion. 
 
 The fubmiffion, too, mufl be fo flated as to cor- 
 refpond with the award and fupport it ; otherwife the 
 plaintiff cannot have judgment; therefore, where the 
 declaration recited ' that certain difrercnces had arifen 
 between the plaintiff and the defendant, and that they 
 had fubmitted to the arbitration of J. S. who had 
 awarded, " of and upon the premifes," that the de- 
 fendant fliould pay to the plaintiff 30I. in fatisfaftion of 
 all funis due to him out of the eflate of one Woolly,' 
 and the breach was afligned in the non-payment of this 
 money ; though a verdifl was gif en for the plaintiff, 
 
 ■• Dilly V. Pclhill. 2 Str. 923. 
 ':- Brooke Arb.pl. 34, cites 5 Ed. 4. i. which feems a wrong citation.
 
 TO COMPEL PERFORMA.VCF:. 279 
 
 vet the judgment was arrcfted, becaufe it did not 
 appear by tlic fubmifTion as recited, that the defendant 
 was executor, adminiftrator, or truftce for Woolly, 
 or that he had any thing of his, or had fubmittcd on 
 his behalf.^ 
 
 When the aftion is on a mutual alTumpfit to pay a 
 certain fum on requefl, if the defendant fliould not 
 ftand to the award, an aftual requefl to pay that fum, 
 before the adion brought, muft be ftated , for in a cafe 
 like this the rcqueft is an elTential thing to intitle the 
 plaintiff to his action ; and there is a difference between 
 a mere duty and a collateral fum ; in the tirft cafe, as 
 where there is a promife to pay on requeft all funis 
 lent to the defendant, no aftual requeft is neceffary ; 
 the bringing of the aftion is a requeft ; but in the latter 
 cafe, an adlual requeft is neceffary, becaufe the promife 
 of payment on requeft is as a penalty, and collateral.' 
 — And the averment " that though requefted he had 
 not paid," is not a fufficient allegation of the requeft 
 made; it muft be fliewn, by pofitive affirmation, to 
 have been made before the action brought.^ 
 
 In an adion on the affumplit to perform the award, 
 the plaintiff may affign feveral breaches ; this cafe is 
 not like that of a penal obligation, in an adtion on 
 which, at common law, one breach only could be af- 
 figned, that being fuffxicnt to forfeit the obligation ; 
 but, in the affumplit, only damages are recoverable 
 
 •' Adams v. Statham. z Lev, 
 235. 2 Show. 6 1. 
 
 1 Birks v.Trippet. \ Saund, 
 53. % K,eb. 126. 
 
 « Semb. for in tlic cafe here 
 cited the words " tho' rsn 
 (juetled" v.-ere inferted. 
 
 U 4
 
 •8o THE REMEDY 
 
 according to the extent of the lofs fuftaincd 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 affigned in non-performanee 
 of a part of the award which is void, and intire damages 
 be given, the judgment will be arrefted : thus, when an 
 award of a releafe to a time beyond the fubmiffion was 
 held to be void, if it had been awarded that the de- 
 fendant fhould pay 15I. to the plaintiff in fatisfaftion 
 of a judgment, and that he fliould alfo relcafc to him 
 all demands to the time of the award ; and in an af- 
 fumpiit on this award, the breach had been affigned in 
 non-payment of the money, and in not giving the 
 releafe, if then intire damages had been given, a judg- 
 ment on that verdift would have been erroneous.'^ 
 
 When the fubmiffion is by bond, if the award be 
 for the payment of money, an aftion of debt on the 
 award lies, as well as an aftion on the bond ; ' but the 
 latter is the adion moll ufually brought, in which the 
 order of pleading commonly obferved is, that the 
 plaintiff declares on the bond as in ordinary cafes of 
 aftions 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 alleging that they did, 
 but fetting forth the award at large, and affigning the 
 breach by the defendant, and on that the whole quef- 
 tion arifes as on an original declaration. The defendant 
 
 9 Jenk. 164. vid. Yelv. 35 a diftum which feems contra, with 
 refpeft to the intirety of the damages. 
 
 i Vid. Str. 913' Freem. 410, 415.
 
 TO COMPEL PERFORMANCE. 
 
 281 
 
 then either rejohis that they made " no fuc/i award,'* 
 on which the plaintiff takes ifTue — or, he demurs, and 
 the plaintiff joins in demurrer.^ 
 
 Where, by the condition of the bond, the award 
 mufl be made before a certain day, the defendant, 
 inllcad of pleading limply that no award was made, 
 may plead that no award was made before that day, 
 becaufe he is not bound to perform an award made 
 after it; then the plaintiff in his replication muft allege 
 the award, which he fets forth, to have been made 
 before the day.^ 
 
 The plaintiff muft indeed fhew that the award was 
 made within the time limited, whether the defendant 
 plead in this manner or not ; for without that, his right 
 of aftion will not be completely ftated.'' — But an al- 
 legation under a "videlicet" will be fufheient : thus, 
 f^ 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 fufiicient. And 
 a diilinftion is taken, between a cafe, where the words 
 under the " videlicet" are repugnant to the preceding 
 matter, and where they are not ; in the former they 
 are merely furplufage, and muft be rejefled; in the 
 latter, they are an affirmation fufhciently poiitive that 
 the award was made, on the day mentioned after the 
 " videlicet," and no other day can be prefumed * 
 
 To this the defendant cannot rejoin, by faying that 
 the arbitrators gave him np notice before the day, of 
 
 ' 'j Ed. 4. loS, Erooke, 
 pi. 33. 
 
 •^ 31 H. 8. Brooke Arb. 
 pi. 42. 
 
 4 1 Sid. 370. 
 
 5 I Saund. i6g. 2 Keb. 
 361, 3S8. 3 Bur. I729> i73<^-
 
 THK REMEDY 
 
 any award made ; for independently of any objeftion 
 that might be made to the fubflance of the rejoinder, 
 on account of the arbitrators not being bound to give 
 notice of the award,^ it is a departure from his plea, 
 by which he had denied the exillence of any award at 
 all, before the day. ^ — In one book, wc are told, that 
 if the defendant wiih to avail himfelf of want of notice, 
 he mull fet the award forth in his plea, and then avey 
 that he had no notice of it before the day.* This, 
 however, feems an inconliflency ; for how can he fet 
 forth that of which he had no notice ? and if in faft he 
 be enabled, at the time of his plea, to fet forth the 
 award, he will flill, in many cafes, be bound to per- 
 form it, though he had no notice on the day when it 
 was made. The plaintiff too, might take iffue on the 
 fa6t, whether the defendant knew of the award before 
 the commencement of the aftion. — And it appears, by 
 fubfequent refolutions, that, where the condition of 
 the bond contains a provifo, " that the award fhouid 
 be made and delivered to the parties, on or before a 
 particular day," by whicii a delivery accordingly be- 
 comes effential to bind the parties, the defendant 
 *' protefting that no award was made," may allege 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, fpecined in the 
 condition of tiie bond.^ 
 
 If the plaintiff can contradift this plea, it is faid, 
 that he muff do it in direct terms, alleging exprelDy 
 
 Vid. p. 107, ct feq. "^ Keihv. 175. a. ' Id. ibid* 
 
 » Bendl. 39. Benl. Jo8. 2 Keb. 402.
 
 TO COMPEL PERFORMANCE. 283 
 
 that the arbitrators made their award, fetting it forth 
 with certainty, and that they delivered it to the parties 
 in writing within the time Hmited. — It will not be fuf- 
 ficient, it is faid in fome places,' to allege the delivery, 
 ]w 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 writing, 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 juflices 
 argued againil the plaintiiF, but no judgment was given. 
 In another book,^ it is adjudged that the allegation of 
 delivery in this manner by inducement is fufficient. 
 
 The provifo contained in the condition of the fab- 
 miffion bond was, that the award fliould be made and 
 ready to be delivered 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 day aforefaid, in the condition aforefaid, 
 fpecified : it was objetled that this plea was uncertain, 
 becaufe there w^ere 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 ex- 
 ception, if the plaintiff had demurred for this caufe, 
 but as he had replied, the objedion was not now open 
 
 to him.^ 
 
 ' Dyer 243. b. ^ Cro. Jac. 283. 
 
 ^ Bedam V. Clerkfon. iLd.Raym. 1235 124.
 
 z?4 
 
 IHE REMEDY 
 
 Every thing necclfary to fhcw that the award was 
 made according to the terms of the fubmiiTion, mull 
 be ftatcd by the plaintiff; as, if the fubmiffion contain 
 a provifo tliat the award be made in writing or ore tcnus 
 before two witnefTes, it is not fufficient to fet forth an 
 award alleging it to have been made ore tcnus ; it muft 
 alfo be faid to have been made before two witneflcs.^ 
 
 So, formerly, if the provifo had been that the award 
 fliouid be by deed indented, the plaintiff mufl have 
 alleged it to have been fo ; otherwife it was thought, 
 it would not have appeared that the arbitrators had 
 purfued their authority.^ 
 
 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 
 made under hand and feal, and not under feal only.^ — 
 But, when the provifo requires that the award fhall be 
 ready to be delivered, it is not neceiTary to allege that 
 it was ready ; it is fufficient to fay that it was made ; 
 the allegation of the latter implies the former.' 
 
 But where the provifo was, that the award fhould 
 be made and ready to be delivered on or before a cer- 
 tain day, at a certain fhop in London ; and the plaintiff 
 fhewed an award made at York, faying that it was 
 ready to be delivered at the fhop in London, this was 
 adjudged to be a void publication and delivery, becaufe 
 
 ♦ Wilfon v.Conftable. Lutw. 
 536. 
 
 ^ 2 Keb. 156. but fee page 
 263. 
 
 * J Bular. Scot V. Scot. 
 
 Traire V. Traire. zRol.Rep. 
 243. Sallows V. Girling. Cro. 
 Jac. 278. 2 Mod. 77, 78. 
 
 7 I Keb. 739. I Lev. 13;;. 
 6 Mod. 82. 2Ld. Raym.gSg.
 
 TO COMPEL PERFONMANCE. 
 
 2g: 
 
 a particular place \vas appointed, where the parties 
 were to expe£l it, and not elfewhere.* It has alio 
 been held that, in this cafe, an *' averment that the 
 award was ready to be delivered according to the form 
 of the condition," was not fufficient, for that it muft 
 be faid at the very place ; and that a delivery at another 
 place would not be fufficient, notwithflanding the 
 party's acceptance, though it was obferved that the 
 infertion of a particular place in the provifo, was only 
 that the parties might go there to fee the award.' 
 
 It is not neceflary to ftate the date of the award ; if 
 it be alleged 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 haye no date, and fhall be 
 confidered as binding from the day of the delivery.* 
 
 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 iffiiable, and matter of 
 fubftance ; - however, it is allowed to be fufficient, if 
 the place appear by way of recital.^ 
 
 In introducing the award, after having ftated that 
 the parties fubmitted to the award of the arbitrators by 
 name, it will be fufficient afterwards to fay, that the 
 aforefaid arbitrators, without repeating their names, 
 proceeded to confider the matters, and made their 
 
 sVid.Hardres 399. i Show, 
 98,242. Carch.158. 3 Mod. 
 330. Ld. Raym. 1 15. Freem. 
 416, 2 Rol. Rep. 193, 194. 
 Cro. Jac. 573. 
 
 9 Elborough v. Yates. 2 
 KcQ. S74. 3 Keb. 6g, 125. 
 But the judgmen: is reported 
 
 contra in 2 Lev. 68. 
 
 ' 6 Mod. 244. 2Ld.Raym. 
 1076. Salk.76,498. 3 Bulftr. 
 312. 
 
 ^ Vid.Cro. El. 7;8. 2 Vent. 
 72. et vid. 9 H. 6. 5. and Cro. 
 El. 56. 
 
 • 2 Keb. 390.
 
 286 
 
 THE REMEDY 
 
 award ; becaiifc the vvDid " aforciaid " refers to the 
 arbitrators mentioned before ; 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 namC^ But if the name be millaken in any 
 part, that, it is faid, will render the pleading bad. In 
 fetting forth the condition, it was expreflcd to be, to 
 ftand to the award of two by name, and if they made 
 no award, then to the umpirage of " Randolfe " 
 Wulley ; the defendant pleaded, that neither the afore- 
 faid 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 " aforcfaid" prefixed to Ranulf was not fufficient 
 to remove fo weighty a difficulty in the opinion of two 
 of the judges ; ^ though another^ took a diflinftion 
 between the making of the award itfelf, and the man- 
 ner of pleading it, obferving, that where the fubmiffion 
 was to Randolfe, and the award was made by Ranulf, 
 this was another man, but it feemed otherwife in 
 pleading, for here the word aforefaid afcertained Ranulf 
 to be the fame man as Randolfe. 
 
 It was anciently held, that the plaintiff, after fetting 
 forth the award, mufh fhew that he had himfelf per- 
 formed that part which he was ordered to perform, 
 unlcfs by the terms of the award the performance on 
 the part of the defendant was to precede the perfor- 
 mance by the plaintifF.^ 
 
 4 Lumley v.Hutton. i Rol, 
 Rep. 271. 
 
 5 Coke and Houghton. 
 ^ Dodderidge. 
 
 ' Vid. Brooke 45. pi. 22. 
 verf. finem and the year 
 books pafiim.
 
 TO COMPEL PERFORMANCE. 2S7 
 
 But now there arc only two cafes in which the 
 plaintiff muft even fiiggcft 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 
 lie avers performance, the defendant may objeft to 
 the whole award for want of mutuality.^ 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 mull Ihew 
 that he has done every thing nccedliry to intitle him to 
 call on the oppoiitc party. But tender })y the plaintiff, 
 and refufal by the defendant, will be fuflicient, unlefs 
 the thing to be done by the plaintiff can be done with- 
 out the concurrence of the other. 
 
 Thus, where the fubmiflion was concerning certaiii 
 lands, and the arbitrators awarded that the plaintiff 
 ihould, on the fecond of March then next following, 
 pay to the defendant 7I. los. for every acre of the 
 land, to be mcafured by an able meafurer, in the pre- 
 lence 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, bis heirs or afligns, 
 Ihould pafs, convey, or furrender to the plaintiff or his 
 heirs, or fuch as he Ihould appoint, all the faid lands, 
 with warrantry againft 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 re- 
 leafe of all his claim to the faid lands, and every part, 
 of them, and a general releafe of all anions, fuits, and 
 demands: the plaintiff having ilated this award, averred 
 
 s Vid. ante p. 218. et feq.
 
 iSS THF. REMEDY 
 
 that it had been tendered to the defendant on the day 
 limited for the making of it by the fubmillion, ac- 
 cording to the efFeft of the condition -, he alfo averred 
 an admeafurement made the fame day, according to 
 the effeft of the award, on which the lands were found 
 to contain 12 acres, at the rate of feven yards to the 
 pole, and Sol. were the fum to be paid, which he had 
 tendered accordingly, but which the defendant had 
 refufed to receive, and tliat the plaintiff had requeued 
 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 DISTINCTION is takcn with refpeil to the manner 
 of declaring in an aftion of debt on the award itfelf, 
 and the manner of fetting forth the award in the repli- 
 cation in an aftion on the fubmiflion bond ; a dif- 
 tinftion which, when it was iniifted on that every 
 award fhould appear on the face of it to be mutual, was 
 of more importance than it is at this time. 
 
 In declaring on the award it is not nccefiary to fct 
 forth any more of it than is fufficient to fupport the 
 plaintiff's claim to the money awarded : it was not nc- 
 cefiary, even in former times, in this aftion, to fhew 
 an award that was mutual ; if the defendant wifhed to 
 impeach it, by Ihewing that it was not mutual, or that 
 there was any thing by way of condition precedent to 
 the payment of the money, he might do it by pleading.' 
 But in an adion on the bond the award mull have ap- 
 
 9 Hunter v. Bcnnifon. Hardies. 43, 44. 
 
 » Smith V. Kirfoor. i Leon. 72. Leake v. Butler. Litt. 3 12, 3 1 3.. 
 
 cited I Bur. 281. \id. 1 Rol. Rep. 437.
 
 TO COMPEL PERFORMANCE. 289 
 
 pearcd to be mutual, as fct forth by the plaintiff. In 
 an adtion on the award too, the plaintiff might declare, 
 that among other things it was awarded : whereas on ti;c 
 bond, " among other things" would have vitiated tlic 
 replication.' Farther than this the diflinftion does not 
 appear to be very effential ; for, in every other refpcft, 
 the mode of taking advantage of any variance between 
 the award fet forth and the real award is the fame ; as 
 is alfo the cffe6l of that variance, whether it be ma- 
 terial or not. 
 
 •If the plaintiff fct forth the award with ^ profert in 
 curia, the defendant craves oyer, and demurs for the 
 variance ; if the plaintiff fet forth the award without 
 the profert, the defendant anfwers " no fuch award," 
 on which iffue 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 fct forth differ ma- 
 terially from that given in evidence, the judge will 
 direft the jury to find for the defendant ; if there be no 
 material variance, in the one ca^e judgment, and in the 
 other a verdia, will be given in favour of the plaintiffs 
 In the cafe of a general vcrdidl in his favour, it muft 
 be prefumed, that there was no material variance ; if 
 at the trial it be doubted whether the variance be ma- 
 terial or not, a fpecial verdiil may be taken, and the 
 queftion argued in court, as on a demurrer,^ 
 
 ' Vid. Litt. 312, 313. 1 
 Mod. 36. Comyns. Tit. Arbi- 
 trament. I. z. I. 5. 
 
 •3 Foreland v. Marygold. 
 
 I Salk. 72. S. C. Foreland v, 
 Hornigold. i Ld. Raym. 71 ;. 
 Perry v. Nicholfon. x Eur. 
 273.
 
 ;9® 
 
 THE REMEDY 
 
 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 neceffary.'' 
 That writ, however, is very far from juftifying the 
 aflcition. It is a writ in trefpafs on the cafe, fued by 
 the party againft whom the av/ard is made for the pay- 
 ment of money to the other at a future day, againft 
 that other for having fued for the money before the 
 day appointed.* 
 
 There is a diftinftion better founded, with refpeft 
 to the defendant's plea, that he did not fubmit. In 
 the adlion on the award, there is nothing which can 
 preclude the defendant from the beneiit of this plea : 
 before he can plead at all, the plaintiff muft have 
 Hiewn every thing necelTary to maintain his adion, and 
 the defendant does not contradift himfelf by pleading 
 that he did not fubmit ; but in an action on the bond, 
 fuch a plea is not good. The plaintiff, in his declara- 
 tion, only fets forth the bond, from wliich it does not 
 appear from what caufe it was given; the defendant can- 
 not therefore, at that period, immediately plead that he 
 
 ■» Per Ld. Mansfield, i Bur. 
 iSo. and in Litt. 312, 313. 
 
 ^ — Oftenfurus quare cum 
 lidem B. et C. pro certis de- 
 batis inter ipfos motis, in ar- 
 bltrium T. et E. ad hoc per 
 ipfos B. et C. eleftorum in 
 omnibus fe pofuiffcnt et fub- 
 mififfent, et licet iidem ar- 
 bitratores prsefatum B. ad 
 decern libras folvendas eidem 
 C. 4d certos terminos non- 
 
 dum clapibs arbitrati fuif. 
 font et adjudicalTent : prae- 
 diftus tamcn C. pro debito 
 prsedifto verfus pr:Efatum B. 
 coram praefatis juftitiariis 
 profequitur, ct ipfum B. ca 
 occafione laboribus variis et 
 expenfis plurimis multiplici- 
 ter fatigat et inquietat minus 
 juftc, in ipfuis B. damnum 
 non modicum et gravamen ut 
 dicit, &c. Reg. iii, a.
 
 TO COMPEL PERFORMANCE. 29I 
 
 did not fubmit, becaufc by fo doing he will Ihew that 
 he knows the condition of the bond to contain his fub- 
 miffion : when he prays oyer of the condition, and that 
 is confequcntly given ; he cannot then plead that he did 
 not fubmit, becaufe the condition impUes that he did: 
 if he wiilies to have the effeft of fuch a plea, he muft 
 plead -that it is not his decd.*^ 
 
 More exaftnefs is required in fetting forth a written 
 than a verbal award ; the former muft be ftated more 
 particularly, every reference being to fome particular 
 part of the award itfelf, and not to any thing alleged 
 by inducement. But it is not neceflary that a verbal 
 award fhould be fo exaftly Ihewn, becaufe it may be 
 very difficult to prove the precife words ; the effeft and 
 fubftance is fufficient : thus, where the plaintiff, by- 
 inducement, alleged that, at the time of the fubmiffion, 
 there was a certain fuit depending between him and 
 the defendant, and then ftated that the arbitrators 
 having undertaken the burthen of the aw^ard, 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 aftion 
 mentioned by inducement.^ 
 
 Where the fubmiffion is to arbitrators, and in their 
 default to an umpire, the defendant, after oyer of the 
 bond and condition, muft not nierely fay that the arbi- 
 trators made no award, but that neither they nor the 
 
 « Keind v. Carter. 2 Keb. 73. i Sid. 290. Vid. 2 Str. 923. 
 
 7 Hanfon v. Liverfcdge. 2 Vent. 242. Vid. the pleadings in 
 
 that cafe. 
 
 X 2
 
 igi THE RKMF.DY 
 
 umpire made any, otherwife his plea will be incom- 
 plete, and the plaintiff may demur to it: but if, inftead 
 of demurring, he choofe to reply, it is not ncceffary 
 for him to take any notice of the arbitrators, but he 
 may immediately fet forth an award made by the 
 umpire.* 
 
 After ftating the award, the plaintiff mull afiign a 
 breach by the defendant ; for the breach is the caufe 
 of aflion itfelf, and unlefs that be afligned the defend- 
 ant may demur to the replication ; the plea of " no 
 award " is a total denial of all caufe of aftion, and 
 therefore the plaintiff does not anfwer it without lliew- 
 ing a breach.^ And if the defendant, inflead of de- 
 jnurring, rejoin that the award let forth is not the deed 
 of the arbitrators named, or that they made " no fuch 
 award;" though the fa£t be found in favour of the 
 plaintiff, yet he fliall not have judgment, becaufc on 
 the whole of the record, no caufe of action appears.' 
 
 If after fetting forth the whole award, the plaintiff 
 afHgn the breach in a part which is void, the effcft will 
 be the fame as if he affigned no breach at all ; but 
 though part of the award fet forth be void, yet if, 
 notwithllanding that, the remainder be good, an affign- 
 ment of a breach in any part of the latter will maintain 
 the aftion. Thus if the av/ard be, that the defendant 
 and another fliall enter into a bond to the plaintiff; 
 tins being void as to the ftrangcr, the breach muft not 
 be afhgned, " that the defendant and the flranger did 
 
 * Hinton v. Crane. 3 Keb. 675. 
 » VVvnche. 121. Yelr. i4> tS. ' Barret v. Fletcher. Yelv. 1$:,.
 
 TO COMPLL PERFORMANCE. 29J 
 
 not enter into the bond," but *' that the defendant 
 himl'elf did not enter into it."^ 
 
 Where money is awarded to be paid, on or before 
 a particular day, it has been held that, in affigning the 
 breach, it muft not be merely faid, that it was not 
 paid on the day ; it muft be added tliat it was not paid 
 before the day ; and this is faid to be the neateft way 
 of afTigning the breach in this cafc.^ But in another 
 cafe, where an objeftion of this kind fcemcd to be that 
 which moll affeftcd the manner of pleading, it was 
 held that an allegation of non-payment on the day 
 implied that it was not paid before the day/ Perhaps 
 a diftinftion may be made, between an allegation of 
 payment on the day, in the aftive or in the paffive 
 voice ; if it be laid that " he did not pay" on the day, 
 that applies to the fimple faft of payment at that par- 
 ticular time, and does 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 unpaid. — 
 However, without adverting to fuch a diftinftion, it has 
 fince been held that though "jmyment before the day 
 will be good evidence of payment on the day, wherq 
 payment on the day is pleaded ; yet, in pleading, parties 
 ought to purfue the words of the condition. ^ By the 
 latter words, I fuppofe, it is meant that the plaintiff in 
 affigning the breach Ihould follow the very words of 
 the award, however, the breach will be fufficjently 
 
 = Godb. 165. 3 Bulftr. 313. 
 
 I Keb. 601. 1 Ld. Raym. 
 114, 123, 234. 2 Mod. 309. 
 
 II Mod. 5S5. 
 
 3 12 Mod. 5S5, 6, 
 
 4 Bridg. 91. 
 
 * a Veijt. 22 1. 3 Lev. 293.
 
 ^94 T5IE REilEDV 
 
 affigned by alleging that the defendant did not pay- 
 according to the form and effeft of the award aforefaid ; 
 the rule of pleading, in fuch a cafe, being that where 
 the day of payment or performance appears before on 
 the record, there, iA averring performance, or in affign- 
 ing a breach for the want of it, the day needs not be 
 fpecifically mentioned, but it rnay be afceitaincd by a 
 reference to a former part of the record/' 
 
 If the award fet forth, be that the defendant, at 'a 
 certain place, and between certain hours, fliall pay the 
 plaintiff a fum of money ; in affigning a breach for 
 non-payment, the plaintiff muft not only 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 prefumed, till the contrary be fliewn, that he 
 continued there till the laft moment ; for the defendant 
 has no opportunity of fhewing the contrary by a re- 
 joinder, becaufe that would be a departure from his 
 plea of " no award made."^ 
 
 It was awarded that the defendant, on the delivery 
 of the award, fliould pay the plaintiff 22I. 2s. lofd. 
 In an a£lion on the fubmiffion 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 v/as infifted on his behalf that the 
 breach was not well affigned, becaufe, though it was 
 erdered that the dcfc/idant fliould pay the money on 
 
 * Lutw. 545. 12 Mod. 586, 
 ' Fitzgib. 54, 55. I Barnard. K. B. 151
 
 TO COMPEL PERFORMANCE. 
 
 295 
 
 the delivery of the award, yet the law, by a rcafonable 
 conftruftion, would allow him a convenient time for 
 payment : the award might have been delivered to him 
 on his journey on the highway, at a great diftance from 
 his habitation, when it could not be prcfumcd he had 
 money to pay ; and if this conflrudion were allowed, 
 then the breach was affigncd too ftridly : it ought to 
 have been that the money was not paid on the delivery 
 of the award, nor at any time after. But the majority 
 of the court were of opinion that the breach was well 
 affigned, and that it Ihould not be intended that the 
 money was paid after ; and if, in fa£l, it had been paid, 
 within a rcafonable time after, it ought to have been 
 fo pleaded by the defendant.^ 
 
 If the award be that the defendant fliall pay a fum 
 of money to the plaintiff, when he fliall be requefted ; 
 in the affignment of the breach in non-payment, a 
 requeft muft be direftly Hated, becaufc, by the award, 
 tlie money is not due, but on fpecial demand ; there 
 being a difference in this refpeft between a debt due 
 on bond or on contraft, where no demand is neceffary, 
 and the cafe 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.^ 
 
 The breach muft always be affigned with fuch pre- 
 cifion, as to fhew that the award w^as made of the thing 
 in which the breach is alleged ; therefore, where the 
 
 ^ Strong V. Saunders. Lutw. 389. 
 
 5 Waters v. Bridges. Cro. Jac. 640. vid. Rodham v. Strohcr. 
 
 3 Keb, S30. 
 
 >: 4
 
 296 THE REMEDY 
 
 plaintiiF, in his replication, alleged that the defendant 
 had filed a certain bill in Chancery againft him, fctting 
 it forth in the words of the bill, and that afterwards 
 they had fubmittted to arbitrators, who awarded that a 
 *' certain" fuit which was depending in Chancery be- 
 tween them fliould ceafe, and then fliewcd that the 
 defendant had fince filed anotlicr 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 firft bill, as the de- 
 fendant might have fcveral bills in Chancery againft the 
 plaintiff,' But it was admitted that if he had faid, that 
 the arbitrators had awarded that the " faid" fuit fhould 
 ceafe, this would have fliewn that the award related to 
 the particular bill fet forth. 
 
 If the award be to pay the rent mentioned in a cer- 
 tain indenture, in affigning the breach, it is not necef- 
 fary to fet forth the indenture at large — but if it be that 
 the rent fhall be paid in fuch manner and at fuch times 
 as is exprefied in tlie indenture, then the indenture 
 miift he fet forth at length, or the manner and time 
 particularly defcribed." 
 
 Where the award is in the alternative that the 
 defendant fliall do one thing or another ; in afiigning 
 the breach upon this, the plantiff mufl fay that he has 
 neither done the one nor the other, becaufe if he has 
 done either, he has obeyed the award,^ 
 
 » Freeman v. Shcene. i Rol. Rpp. S. Cro. Jac. 339. Brownl. izz, 
 z Bulftr. 93. 
 2 Anon. I Vent. 87. 
 Serab. contra. Sav. no, where one of the things is void.
 
 TO COMPEL PERFORMANCE. 
 
 297 
 
 Where feveral things are ordered to be done by 
 the defendant, the plaintiff, it is faid, can aflign a 
 breach only in the non-performance of one where the 
 action is on the bond, becaufe an affignment of two 
 breaches will be liable to the objcftion of double 
 pleading."^ — In a cafe, however, which occurred in the 
 fixth of the prefcnt king, it is only faid that it is not 
 ncceflary to aflign 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 
 afligned in one point, for which the award is good, the 
 plaintiff muft have judgment on demurrer for the whole 
 penalty of the bond, and when he has once recovered 
 that, he can never maintain another aftion, on the 
 fame bond, to recover the penalty again, on a feccnd 
 breach.^ 
 
 Where the award is for the payment of money, 
 and the plaintiff brings his adlion on the fubmillion 
 bond, but does not properly affign the breach, the 
 court, it is faid, will not in general grant him leave 
 to difcontinue, unlefs under peculiar circumflances, 
 becaufe he may have his remedy on the award itfelf.* 
 It appears, therefore, that judgment againfl the plain- 
 tiff, in one form of aftion, ariling from miftake in the 
 pleadings, is no bar to another. 
 
 If the defendant, inflead of pleading the ufual plea, 
 " that the arbitrators made no award," plead fome 
 
 4 21 IJ. 6. 18. b. Comyns 
 Dig. Arbit. I. 6. The St. 8 
 and 9 W. 3. c. II. f. 8. with 
 refpeft to the affignment of 
 feveral breaches in aftions on 
 bonds for the performance of 
 
 covenants, &c. does not feem 
 to apply to the cafe of awards. 
 
 5 Fox V. Smith. 2 Wilf. 
 267, 9. vid. Addifon v. Gray 
 S.P. Id. 293. 
 
 ' Frccm. 410, 415,
 
 298 THE REMEDY 
 
 collateral matter, which, if true, would be a bar to the 
 a£lion on the award, the plaintiff, without fetting forth 
 the award, or afligning a breach of it, may take iffue 
 on the plea, and go to trial on that faft ; or if he doubt 
 the effeft on the plea, he may admit the truth of it 
 by demurring, and put the whole of the caufe on its 
 validity.^ 
 
 The ftatute of limitations^ cannot be pleaded to an 
 aftion of debt on an award under the hand and fcal of 
 the arbitrators ; the words of the llatute, as applicable 
 to adions of debt, are " all actions of debt groujrded 
 on any lending or contraft without fpecialty," and 
 though perhaps, in ftriftnefs, an award, under the 
 hand and feal of the arbitrator, may not, to all pur- 
 poses, be coniidercd 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 confidercd as partaking of the 
 nature of a fpecialty, as to be within the meaninp- of 
 the flatute ; the purpofe of that ftatute was to limit the 
 time for bringing aftions on a fimple contraft without 
 writing under hand and feal, the prosecution of which 
 a long time after the caufe of them had accrued, was 
 often the occafion of perjury in witneffes who took 
 upon them to fwear to circumftances of which from 
 the length of time they mull be fuppofcd to have an 
 imperfeft remembrance : but this reafon can never 
 apply to a cafe which may be fo eafily afcertained as 
 an award under the hand arid feal of an arbitrator: the 
 words of the ftatute are applicable to debt of another 
 
 7YeIv. 25. 79. Cro. Jac. 300. * 21 Jac. c. 16. f. 3.
 
 TO COMPEL PERFORMANCE. 299 
 
 kind, and the decifions given on thefe words alfo favour 
 this coLirfe of argument. — The ftatutc fays, it fhall 
 extend to all aftions of debt for arrearages of rent ; but 
 on thefe words, it has been determined, that it was 
 only an a6tion of debt for arreaKxges of rent on a parol 
 ]eafe whieh could be barred by the length of time, and 
 that they did not extend to rent refcrvcd on a leafc 
 under hand and fcal.— On thefe grounds the vrhole 
 court, except Keeling, C. J. held that an aftion of debt 
 on an award, though not a fpecialty, was not barred 
 by the ftatute ; the words not being, " all actions of 
 debt without fpecialty generally," but, " all actions of 
 debt without fpecialty, which are grounded on any 
 lending or cofitraft ; " this a£lion was clearly not 
 grounded' on lending; neither could it with propriety 
 be faid to be grounded on fuch contra6l as was intended 
 by the ftatutc ; it was true indeed, all aftions of debt 
 were founded on contraft either exprefs, or implied by 
 the law, and this was a contraft implied, but had the 
 ftatute meant to extend to fuch coiitrafts, the words 
 *' founded on lending orcontraft" would have been 
 fuper'fluous and ufelefs ; and it clearly appeared what 
 kind of contra£ts were meant, by coupling the word 
 contract with lending ; and if the more extenfive con- 
 ftrudlion of the act were adopted, it would extend to 
 all actions of debt without fpecialty whatever.'' 
 
 Where the defendant pleads the common plea of 
 " no award," he cannot in general, after the replica- 
 tion, rejoin any thing eife than that there was " no 
 
 9 Hodfen v. Harridge. 2 Saund. 64. S. C. very inaccurately 
 reported. 2 Kcb. 464, 497, 533, 536.
 
 300 
 
 THE REMEDY 
 
 fuch award:" if the award be void, lie mufl demur, 
 becaufe a void award is as no ?ward, and the bond 
 is not forfeited by non-pcrfoimance." lie mufl not 
 rejoin that the award is void, becaufe that is a depar- 
 ture from his plea.^ Nor can he allege pavmcnt or 
 performance of the thing, in which the breach was 
 alfigned, for that will alfo be a departure. ^ So, if the 
 award fet forth in the rcplic ation order general releafes 
 to the time of the award, he cannot rejoin that a new 
 caufe of aftion arofc, between the time of the fubmif- 
 fion and the av/ard.-* But if the av/ard was made by an 
 umpire, and the defendant had only pleaded that the 
 arbitrators made no award, he may, on the umpirage 
 being fet forth, rejoin performance ; fo.r that does not 
 contradift his plea.* 
 
 So, if the fubmiiTion be general of all matters in 
 controverfy between the parties, with a provifo that 
 the award be made of the premifcs ; the defendant 
 may plead, that the arbitrators made no award of the 
 premifes, and if the award fet forth in the replication 
 do not comprehend all the fubjefts that were in con- 
 troverfy, he may rejoin that there were other things in 
 controverfy of which the arbitrators had notice, and of 
 which they made no award, concluding " that therefore 
 they made no award of the premifcs" — which is fo far 
 from a departure from his plea, that it is a confirmatioa 
 of it.^ 
 
 ' Jenk. I j6. 
 
 ' I Keb. 414. pi. 12. 678. 
 pi. 72. 2 Kcb. 156. 
 
 3 Comyns Dig. Arbit. I. 6. 
 Pleader, F. 7. 
 
 •« 1 Keb. 434. contra Frcem. 
 266. 
 
 5 Hil. 1791. B. R. 
 
 «MiddIeton v. Weeks. Cro. 
 Jac. 200. vid. Farrer v. Gate. 
 Palm. 511. .
 
 TO CO.MPKL I'F.nPORMAN'CF. 
 
 ?01 
 
 If the defendant conceive the award to be bad, 
 inftead of pleading " no award," and" then demurring 
 to the award fet out in the rcpHcation, he may himfelf 
 fel forth the award, averring that the arbitrators made 
 
 r 
 
 no other, without alleging performance. — Then the 
 plaintiff demurs, and the qucftion comes before the 
 court on the validity of the award.' 
 
 If the defendant has performed the award, he may 
 after fetting it forth in his plea allege performance. 
 But it is faid, that he cannot plead limply that he has 
 performed, but mufl Ihcw in what manner." But it is 
 conceived that this applies only to the cafe of an award 
 in the alternative, where in order to difchargc himfelf 
 he mufl fliew, which of the two things he has done.^ — 
 and he needs only Ihew performance, in words adapted 
 to thofe of the award itfelf. Thus if an award be 
 " that a fuit which the defendant had againft the plain- 
 tiff fliall ceafc," it is fuffi<:ient to fay that the pluintifi* 
 flood acquitted of that fuit ; it is not necelTar j to fay 
 tliat he gave him a releafe.' 
 
 Where the award is void, with rcfpeft to any thin^- 
 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 conceives to be bad.^ 
 
 An averment of tender and refufal, is fufficient, but 
 the better opinion feems to be that it mufl be accom- 
 
 ' Vid. Rifclcn v. Inglct. 
 Cro. El. 83S, 
 
 8 zS H.8. Mo. 3 pi. 9. Barn- 
 field V. Bamfield. 2 Keb. 238. 
 i6 H.6. 27H.6. I. Fhbt. 
 51. a. 
 
 Freeman v. Sheenc. ' 1 
 
 Rol. Rep, 7, 8. Cro. Jac. 
 339- 2 Bulftr. 93. vid. 36 
 H. 6. 8. 39 H. 6. II. b. 
 
 ' 36 H. 6. 12. Brooke 27. 
 39. 51. 19 E. 4. I. 17 E.4. 5. 
 iS E. 4. 23. Rol. Arb. F. 2. 
 AI. 86. 3 Leon. 61.
 
 THE REMEDY! 
 
 panied with an averment that he is llili ready to 
 perform.^ 
 
 Where it appears by the award that the plaintiff is 
 to do the iirft aft, 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 phiintiff" does his. Thus, 
 if the award be that the plaintiff fliall prepare an 
 obligation fealed with wax, and carry it to the defend- 
 ant, who fliall put his feal to it, in fatisfaftion 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 fhall be offered."* 
 
 If the defendant fet forth the award and allege per- 
 formance generally, and then on a breach being affigncd 
 in the replication, he rejoin and fliew a fpecial per- 
 formance, this will be a departure. In an aftion on a 
 fubmiffion bond, the defendant after oyer of the con- 
 dition, fet forth this award, ' that whereas the defend- 
 ant had lent the plaintiff 30I. for fecuring of which 
 the plaintiff had mortgaged certain lands to the defend- 
 ant, and whereas there was a controverfy between 
 them concerning that matter, it was awarded that the 
 plaintiff ihould pay to the defendant 35I. before a par- 
 ticular day, and that in the mean time he fhould permit 
 the defendant to enjoy the poffeflion of the mortgaged 
 lands, and that on payment of the faid 35I. the de- 
 fendant fliould account to the plaintiff for the mefne 
 profits, and deliver over to him the mortgaged deed, 
 and reaffign to him the mortgaged lands, and that they 
 
 3 22 H. 6, 39. b, vid. Morgan's Precedents, 525. 
 * M, 5 ?.. 4. 7. a. Fhbt, 52. a. Brooke, Arb. 36. Rol. Arb. Z. C.
 
 TO COMPEL PERFORMANCE. 
 
 30J 
 
 fhould give mutual relcafcs ; ' then he alleged jier- 
 foimance generally: the plaintiff replied that he had 
 paid the 35I. before the day appointed, but that the 
 defendant had not reafligncd ; the defendant rejoined 
 tliat 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 rc- 
 folved that this rejoinder was a departure from the 
 plea, becaufe there he had pleaded performance gene- 
 rally, and here he had only Ihewn a Ipeeial per- 
 formance.* 
 
 It has fovoral times happened that the defendant, 
 l)y fctting forth an award partially, has impofed con- 
 fiderable diffi-cuity on the plaintiff how to anfwer him. 
 The firll: cafe of that kind which occurs is that of Veal 
 and Warner — in which the defendant fet forth an award 
 that he flnould pay the plaintiff 3 lool. and give him a 
 general releafe, which was confidered as an award of 
 one fide, and therefore void ; and he averred that he 
 had paid the money ; the plaintiff took ilfue on the 
 payment ; the defendant, inftead of joining iifue, re- 
 joined that the plaintiff was not at liberty to fay he 
 had not paid the money, becaufe he had, by his certain 
 writing, acknowleged the receipt of it. To this the 
 plaintiff demurred, as he well might, becaufe the re- 
 joinder was a departure from the plea: the defendant 
 joined in demurrer, and would have had judgment in 
 his favour, becaufe, notwithftanding his allegation of 
 perforniaiice, it was of no confequence whether he had 
 performed it or not, the award being only on one fde. 
 
 * RolTc V. Hodges, 1 Ld. Raym. 124.
 
 304 THE REMF.DV 
 
 and therefore void. But on application from the plain- 
 tiff, leave v\7as granted to dilcontiniic, bccaufe it ap- 
 peared that the award was alfo that the plaintiff lliould 
 releafe all aftions to the defendant, w^hich made it mu- 
 tual ; 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 
 praftice of Saunders the defendant's counfel.^ But 
 Saunders excufes himfelf 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 fadl 
 the plaintiff was in the debt of the defendant, and the 
 arbitrators had been in collulion with the plaintiff. — 
 And further that a bill being afterwards filed in the 
 Exchequer againfl the plaintiff procured the defendant 
 relief. 
 
 The defendant on oyer fet forth an award that he 
 fhould pay to the plaintiff 12I. los.- and averred per- 
 formance : the plaintiff replied that true it was the 
 arbitrator had awarded that the defendant fliould pay 
 to the plaintiff 12I. los. in full fatisfadtion of ail dif~ 
 ferences between them, and tendered iffue on the non- 
 performance. Ihe defendant demurred, becaufe the 
 plaintiff had concluded to the country, having alleged 
 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 
 opinion were Jones, C. J. and Charlton, J. afier two 
 
 * Veal V. Warner, 2 Keb, 568. i Saund. 326.
 
 TO COMPEL PERFORMANCE. 305 
 
 arguments at the bar. But Windham and Levinz were 
 of a contrary opinion, becaul'e the defendant had ad- 
 mitted the award to be good, and taken upon him to 
 plead performance ; and when tiie plaintiff had fhewn 
 that matter which proved 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 fatisfaftion of all matters, and fo only on one 
 fide, he ought to have pleaded "no award;" but 
 when he had pleaded it as a good award, and by the 
 replication it appeared to be fo, he fliould not be ad- 
 mitted a traverfe to prove it bad, for that would be a 
 departure from his plea, and equivalent to faying in 
 the latter that there was an award made, and in his 
 rejoinder that there was not.'' 
 
 In the cafe of Strike and Benflcy a queftion of the 
 fame kind occurred, but remained ftill undecided. — On 
 oyer of the condition, it appeared to be, of a fub- 
 miffion to perform the award of four arbitrators, w^ith 
 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 made on or before 
 the twenty-third of February. — The defendant pleaded 
 that before the 15th two of the arbitrators made no 
 award, but that the umpire on the 23d awarded that 
 the defendant fliould pay to the plaintiff 61. and fhould 
 afterwards rcleafe to him, and that he fhould permit 
 the plaintiff to enjoy a particular clofe. The defen- 
 dant averred that he had paid the 61. that he was al- 
 ways ready to execute a releafe, and that he had not 
 
 7 Seal V. Crowe. 3 Lev. 165, 
 y
 
 306 THE REMEDY 
 
 difturbed the plaintifF in the enjoyment of the faid 
 clofe. — The plaintiff in his rcplicaiion confefTed that 
 the faid two arbitrators did not make any award, and 
 that the umpire had awarded as pleaded by the defen- 
 dant, but averred that he had further awarded, that 
 the plaintifF on payment of the faid 61. fliould execute 
 a releafe to the defendant ; then he averred that the 
 defendant had not paid the faid 61. but did not take 
 ilFue on it, but traverfed that the umpire had awarded 
 only as the defendant had alleged. — On demurrer the 
 cafe was argued feveral times ; the principal objeftion 
 made by the defendant's counfcl was that no fufficient 
 breach was alleged in the replication ; for the defen- 
 dant having fhewn an award by the umpire that the 
 defendant fliould pay to the plaintiff 61. and the plaintiff 
 having replied that the defendant had not paid it, he 
 ought to have taken iffue on it, and not to have con- 
 cluded with a verification. — To this it was anfwercd 
 that though the replication might be faulty in not 
 having taken iffue on the payment, and alfo, bccaufe 
 the plaintiff by the traverfe in the replication had pre- 
 vented the defendant from rejoining: yet the plea was 
 faulty, bccaufe by the award the defendant was to feal 
 and execute to the plaintiff a general releafe ; and he 
 had only faid that he was always ready to do it, 
 whereas he ought to have exprcfsly averred that h© 
 had done it ; or that he had tendered a releafe which 
 had been rcfufcd ; that therefore no replication was 
 neceffary, and the firfl fault being in the plea, that in 
 the replication was not material.— Trcby, C. J. was of 
 opinion, that in this cafe it was not necciTary to fhew 
 any breach, bccaufe the bar was merely idle and im- 
 pertinent, for it did not appear that the umpire had 
 
 4
 
 TO COMPEL PERFORi\TAN'CE. 307 
 
 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 the arbitrators might have made it, for 
 it was faid that two of them had not made any award 
 before the 15th of February, whereas by the fubmif- 
 fion, 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 replication, the plaintiff might take 
 advantage of the imperfcflion of the plea, the tirft 
 fault being in that. — He admitted, how^cvcr, that if 
 the defendant had pleaded " no award," a breach 
 ought to have been fufficiently affgned. — Powell, J. 
 was of a contrary opinion. He faid, that though it 
 was a general rule of pleading that judgment fhould be 
 given againft 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 
 neceffary 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 
 liad leave to difcontinue.*^ 
 
 In fuch a cafe as this, if the plaintiff demand oyer 
 of the award, and have it fet forth at full length, 
 
 ? Scrike v. Benfley. Lutw. ji?, 
 Y 2
 
 303 THE REMEDY 
 
 affigning a brcacli in the fame manner as if the de- 
 fendant had pleaded " no award," he will be fecurc 
 againft any objection from the manner of pleading. — 
 To an adion of dc])t on a bond, after oyer of the con- 
 dition, whicli was to perform an award, fo that it were 
 made on or before the 21ft of May, otherwife to per- 
 form the umpirage of a third perfon to be nominated 
 by the arbitrators, the defendant 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 aStli 
 of May by writing awarded the defendant to pay the 
 plaintiff 40I. on the nth of June next, which he had 
 paid : the plaintiff craved oyer of the award, which 
 recited that there had been confiderable dealings be- 
 tween the plaintiff and the defendant, and that the 
 plaintiff had paid the defendant all his demands, and 
 that 4oi. were due to the plaintiff; and therefore it 
 ordered the payment of the faid 4GI. to the plaintiff. — 
 The plaintiff then afligned a breach in the non-payment 
 of the 40I. — The defendant demurred, and on many 
 objedlions being taken to the award, the plaintiff had 
 judgment, no objedtion being taken to the manner of 
 pleading.^ 
 
 If, on an award partially fet forth and performance 
 pleaded by the defendant, the plaintiff in his repli- 
 cation lliew that the arbitrators awarded fomething 
 more bcfide that which was fet forth by the defendant, 
 and ihew a breach in non-performance of that, " with- 
 out this that they awarded only as the defendant had 
 fet forth:" he will be fecure againft any objedlion to 
 
 9 Elliot V. Cheval. Lutw. 40 
 4
 
 TO COMPF.I, TERFORilANCE. 301) 
 
 he form of his replication. — The defendant fet forth 
 an award, that he fliould caufe all fuits to ceafc which 
 he had againft the plaintiff, and averred that he had 
 caufed all fuits to ceafe. The plaintiff replied that it was 
 awarded befides that the defendant lliould pay him 15I. 
 which he had not paid, without this that the arbitrators 
 had awarded only as the defendant alleged : it was ob- 
 je£led on the part of the defendant, that this repli- 
 cation was not good, becaufe it traverfed that which 
 was not alleged by the plea, and it was a rule that 
 nothing fhould be traverfed but wliat was exprefsly 
 alleged. The plea had not alleged tliat the arbitrators 
 had awarded only as was therein fet 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 
 Ihould ceafe, this mufl be underllood to be the whole 
 of the award, and when the plaintiff replied that they 
 had awarded more, he might v;ell take a traverfe.' 
 
 In fuch a cafe the defendant cannot rejoin, alleging 
 tliat the additional part of the award fet forth by the 
 plaintiff was accompanied by another circumftancc 
 which rendered it void for that part. — In the cafe im- 
 mediately preceding, he had rejoined that the arbitra- 
 tors had awarded that he fliould pay the 15I. at the 
 houfe of J. D. a flranger, and that for this the plaintiff 
 was to releafe all adlions to the day of the releafe. He 
 did this, on the fuppofition that the award of payment 
 at the houfe of J. D. was void, as expofing him to an 
 uclion of trcfpafs, and thai therefore he was not bound 
 
 ' Linfey v. Aftiton. Godb. 255. i Rol. Rep. 6.
 
 3T9 THE REMEDY 
 
 to perform It. The plaintiff demurred, and infilled that 
 this was a departure from the plea ; for when the de- 
 fendant had pleaded an award in bar, it mull be under- 
 llood to be the whole award, and he had contradided 
 that intendment by afterwards fetting forth another 
 part — and of this opinion was the court. 
 
 If, in truth, from the default of the defendant, no 
 award has 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 au- 
 thority of the arbitrators, and it is not neceffary to Hate 
 that the arbitrators had notice of the revocation, for 
 fuch notice is implied in the very word revoked ; but 
 he mull fhew that the countermand was before the day 
 appointed for making and publilliing the award, for 
 otherwife there Is no forfeiture of the bond.- 
 
 In debt on a bond conditioned to pay fuch colls as 
 fnould be Hated by two arbitrators chofen by the 
 parties : the defendant pleaded that none were Hated, 
 which was in effeft 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 alhgned In the defendant, 
 the plaintiff ought to have fhcwn the appointment of 
 an arbitrator by himfelf ^ 
 
 Where the fubmilTion is by bond, the condition 
 containing a provifo that the award ihall be made 
 within a Hmited time ; if that time elapfe without any 
 
 » 8 Co. 8i. 
 » Baldway V. Oufton. j Vent. 71. a Keb, 62^
 
 TO COMPr.L PERFOR.M ANCE. 31I 
 
 award being made, and the parties, by mutual confcnt, 
 enlarge the time ; though the award be made within 
 this enlarged time, the party in whofe favour it is 
 made cannot maintain an aftion on the bond to recover 
 the penalty for non-performance : the defendant has 
 bound himfclf in a penalty, to abide by an award, if 
 made within a given time ; but that cannot extend the 
 penalty to an award made after that time under a new 
 agreement;'* and where the agreement to enlarge the 
 time is in writing, it mull be on a frefh ftamp.^ 
 
 After the pra£lice began of referring matters to 
 arbitration under a rule of nijl prlus, application was of 
 courfc made in the name of the party in whofe favour 
 the award was made, to enforce performance by an 
 attachment as for a contempt in difobeying an order of 
 the court. — The courts of law, however, for a con- 
 liderable time lillcned with much reluftancc to fuch 
 applications. They faid it was then a matter of the 
 firft impreffion; that no attachment lay for noa- 
 pcrformance of an award, under thefc references ; that 
 it was a novel praftice, thus to imprifun the body of a 
 a man, without his being heard ; that the defendant 
 might deny that any award was made ; that they would 
 not try fuch ilfue upon affidavits ; that if fuch applica- 
 tions were encouraged, all awards might be affirmed a? 
 good, how void foever they might be — but that the 
 fucccfsful party might have his aftion on the award, 
 and then the validity of It might be difculTcd.'^ 
 
 * Brown v. Goodman. 
 Term Rep. 59Z. n, 
 ^ Vid. ante, p. 139. 
 
 » I Keb. 130, 138, 559. I 
 Sid. 452, 3130. SirT.Raym, 
 35) I5?-- » Keb. 2?; 64;, 
 
 Y 4
 
 JIZ THE REMEDY 
 
 And at firft, a diftin£lion was made between the 
 cafe, where the party, after having, by rule o^ 7nji pr'msy 
 confcnted to fubmit, afterwards withdrew his fubmiffion 
 before any award was made, and the cafe where, con- 
 tinuing his fubmiflion, he afterwards rcfufed to perform 
 the award. In the former cafe the attachment was 
 generally granted ; in the latter it was refufed, becaufe 
 in the former there was no other remedy; in the latter 
 the oppoiitc party might have his remedy on the 
 award. ^ 
 
 Sometimes the objeftion was only to the manner 
 in which the application for an attachment was made ; 
 it having been declared that an attachment fhould not 
 be granted on a general fiiggeftion of a breach of the 
 award without notice to the party againft whom it was 
 moved ; but that he who would have an attachment 
 muft fuggeft a breach by " affidavit," and then the 
 defendant might come in and fliew caufe why an at- 
 tachment fhould not ilTue, and fo the matter might 
 come in debate.^ 
 
 While the courts of law, however, were fo un- 
 willing to enforce obedience to an award by procefs of 
 contempt ; the courts of equity made no difficulty in 
 doing it, where the fubmiffion was under one of their 
 rules.'' 
 
 In fuch a cafe, it has lately been decided, that where 
 an order has been made that the award fhall fland, but 
 no writ of execution of the order has been ferved on 
 the party againft whom the award is made, the proper 
 
 T zKeb.22. 3 Kcb.844. SiKeb, 634. 
 
 5 Hidev.Pettit. zzCar. 2. 1 Ca.Ch.
 
 TO COMPEL PERFORMANCE. 
 
 3»3 
 
 motion is " that he fliall ftand committed for non- 
 performance ;" not that an attachment may ifflic againfl 
 him : " and the fcrvice of notice of this motion muft 
 be perfonal, not on the party's clerk in court, and the 
 reafon given for requiring this perfonal fervice is that, 
 by the reference, the caufe is out of court: — but where 
 a writ of execution of the order has been fcrvcd on 
 the party, a motion for an attachment may be made, 
 though the fuhm'ijjion did not contain any exprefs un- 
 dertaking to perform the award, or has not been made 
 a rule of court.' 
 
 Afterwards the courts of law ran into the con- 
 trary extreme, and in all cafes granted an attachment, 
 wliethcr the award was void or not in point of law, 
 obferving that the reference being by rule of court by 
 confent of counfel in the caufe, there ought to be a 
 rule for performance, for the abufe to the court ; 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 fubmif- 
 fion, or that ought not to be elufory.^ 
 
 But now the courfe of proceeding to obtain an at- 
 tachment is this ; the award mull 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 tender 
 and refufal, muft be made, and on that an application 
 made to the court to have the order of mji prlus made 
 
 ■ Knox V. Sitnmonds. 3 [I the report, which is fomewhat 
 Brown. Ch. Rep. 361. — This I confufed. 
 feems to be the meaning of 1| 'sKeb. 164, 4*46, Cetiib.303,
 
 iI4 THL REMEDV 
 
 a rule of court ; then a copy of this rule muft be ferved 
 on the party refufing to accept the award ; if he ftill 
 refufe to accept it, an affidavit muft be made of per- 
 fonal fervice of the rule, and of the difobedience to it; 
 and then on application, grounded on that affidavit, an 
 attachment will be ordered ofcourfe.^ 
 
 When the award is accepted, but the money being 
 demanded is not paid, an athdavit 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 
 unftampcd, is a fufficient authority to a third perfon 
 to demand the money awarded ; it is not neceffary 
 that there fhou'd be a warrant of attorney for that 
 purpofe,"* 
 
 On references at nifi pr'ius, it is not unufual for the 
 plaintiff to take a verdift by confent, for fecurity. And 
 if the award be made i)i his favour, he mav, at his 
 election, either enter up judgment on the verdift, 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 •,^ and to 
 obtain that, it is as neceliary to produce an affidavit of 
 the due execution of the award, and the demand of the 
 money awarded, as it is, to obtain an attachment.'^ 
 
 Vv^HERE the fubmiifion is by bond with confent to 
 have the " award" made a rule of court, it is faid, tha^ 
 the court will not grant its interpofition ; and it is 
 certain, that the words of the ftatute do not extend to 
 that cafe ; they provide only for the cafe of a confent 
 
 3 I Crompton's Praiflice, 264. ♦ z Bl. Rep. 990, 991^ 
 
 ' X Saik. 84. t Barnes, ^8.
 
 TO COMPEL PERFORMANCE. 
 
 3H 
 
 to have the " fubmilTion " made a rule of court. ^ But 
 where the fubmiflion has been made a rule of court, it 
 is not neccflary there fhould be another appHcation to 
 have the award made a rule of court, in order to 
 ground an attachment: that will be granted without 
 fuch application.* 
 
 The party in whofc favour an award is made, when 
 the fubmiffion is according to the flatute, may have 
 his remedy by attachment, though he may have ob- 
 tained judgment in an adlion on the bond, or on the 
 award ; for he may perhaps think, an attachment a 
 more expeditious and efFedVual procefs than fuing out 
 execution on the judgment.^ 
 
 And though the defendant may be in cuftody on an 
 attachment, the court will not flay proceedings in an 
 aftion of debt on the bond, or on the award, bccaufe 
 if the defendant die in execution on the attachment 
 that execution is at an end, and cannot be revived 
 againft his heirs or executors ; for the ftatute fays, that 
 the attachment fhall be profecuted as in the cafe of a 
 contempt in other cafes : and a contempt dies with the 
 perfon, and cannot be profecuted againft his rcpre- 
 fentatives;' but if he die in execution on a judgment, 
 the plaintiff may ftill have an execution on his goods.* 
 But, if the defendant be taken in execution on the 
 judgment, the attachment will be difcharged.^ And if 
 
 7 Vid. Harrifon v. Grundy. 
 zStr. 1178. Anon. 2 Barnard. 
 B. R. 163. 
 
 8 Salk. 71. 
 
 9 I Salk. 73. 10 Mod. 333. 
 ' Determined by the Judges 
 
 in Webfter v. Bilhop. Prec. 
 
 inCh. 223. zVern. 444. 
 
 = Paterfon v.Grofs. z Bar- 
 nard. B. R. 227. 
 
 3 Vid. Richardfon V. Chan- 
 cey. I Barnard. 386. citcci 
 B.R.H. J07.
 
 3i6 
 
 THE REMEDY 
 
 an aftion be brought before an application is made for 
 an attachment, it will be rcfufed, during the pendency 
 of the adtion, unlefs fomc very particular reafon appear 
 to the court for granting it. — ^This cafe was compared 
 to the cafe of the feveral remedies which are allowed 
 on a mortgage, a bill for forcclofure, an aftion on the 
 bond, and an ejcdment to obtain the polTeffion, which 
 are allowed to be all ufed at once. But Lord Hardwicke 
 anfwered, that thefe feveral remedies were for different 
 purpofes, 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 
 objeft, 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.'^— In a late 
 cafe, where an aclion had been brought on an award in 
 the King's Bench, and the plaintiff applied to the court 
 of common picas for an attachment, offering to dif- 
 continue his action, the court refufed it, on the ground 
 that he had made his eleftion.^ 
 
 If the time limited for making the award expire 
 without any award made, there muft be a fecond ap- 
 plication for making the fabmiffion to a fecond arbi- 
 trator a rule of court, or elfe the court cannot grant an 
 attachment for non-performance of the fecond arbitra- 
 tor's award.^ And the fubmiffion mufl be made by 
 the parties on the record : therefore, an attachment 
 
 4 Stock and Huggins v. De 
 Smith. B, R. H. io6. vid. 
 Hutchins v. Hutchins. Andr. 
 J97. Anon. id. 299. 
 
 ' Badley v. Loveday. Puller 
 
 and Bofanquct's Rep. in Com. 
 Pleas, 81. 
 
 * Owen V. Hurd. ; Term 
 Rep. 643, 4.
 
 TO COMPEL PERFORMANCE. 317 
 
 was rcfufed, where it appeared that a fuhmiirion to an 
 award between 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 fccond arbitrator, b/ 
 B. and C. who were the real parties, without an appli- 
 cation to make this fubmifllon a rule of court. — And the 
 court would not go into the merits, though the defend- 
 ant offered to wave the objeftion, bccaufe they had no 
 jurifdidion.'' 
 
 When the fubmilfion is made a rule of court ac- 
 cording to the ftatute, the affidavits, to ground an 
 attachment, need not be intitled in any caufe, for till 
 the rule for the attachment is granted, there is no pro- 
 ceeding in court. — But the affidavits in anfwer mufl be 
 intitled.^ 
 
 In both forms of fubmiffion, it is difcretionary in 
 the court, to enforce the award by attachment or not. 
 — The plaintiff had brought an aftion againft the de- 
 fendant for diverting a water-courfe ; the matter was 
 referred to arbitrators, who awarded that the defendant 
 fliould fill up a canal, reftore the flrcam to its former 
 courfe, and do fevcral other matters relating to the 
 water-works. The plaintiff afterwards applied to the 
 court for an attachment for non-performance of the 
 ^ward, and read feveral aflidavits to found his applica- 
 tion. The defendant in anfwer read feveral affidavits 
 to prove his compliance with the directions of the 
 award. The court therefore refufed an attachment, on 
 account of the contrariety of evidence, and left the 
 plaintiff to his remedy by ailion.^ 
 
 7 Owen V. Hurd. 2 Term Rep 643. 
 
 * Bevan v. Bevan. 3 Term Rep. Szi. 
 
 ' Six Thomas Hales v. Taylcr. i S:r. 69*.
 
 3iS 
 
 THE REMEDY 
 
 They may alfo refufe to enforce an award by at- 
 tachment, when it appears to be a hard cafe upon the 
 defendant, though they cannot for that rcafon fet the 
 award afide/ 
 
 An attachment for non-performance of an award is 
 only in the nature of a civil execution, and therefore a 
 party cannot be arreiled on it, on a Sunday.* 
 
 When the award is for the payment of money, the 
 only remedies to enforce performance arc thofe which 
 have hitherto been coniidered - — But when it is for the 
 performance of any collateral aft, 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 fecms to be 
 a reafonable concluiion, from the tenor of all the cafes 
 on that fubjeft, that a bill will generally lie for a fpe- 
 cific performance : but when the fubmiflion is merely 
 voluntary, without the interpofition of a court of equity, 
 fuch a bill will not lie, unlcfs there has been fome 
 acquiefcence in the award by the parties to the fubmif- 
 lion, or an agreement afterwards to have it executed.'* 
 
 But if, in the cafe of fuch a fubmiffion, the plaintifi-, 
 who fecks by his bill to enforce the performance on 
 the part of the defendant, has himfelf performed his 
 part, a court of equity will decree a performance by 
 
 • Vid. B.R.H. ic6, and i 
 Sur. Z78, 
 
 I Term Rep. 266. denies 
 X Atk. 58. to be law. 
 
 3 3 P. Wm. 189, 190. 
 
 4 Dift. per Lord Hard- 
 wicke. I Atk. 74. (62) Bifhop 
 V. Webfter. Abr. Eq. Ca. 5 i. 
 Vid. 2 Rep. in Ch. 18 fo. ed. 
 Scmb. contra Id. 16.
 
 TO COMPEL PERFORMANCE. 
 
 3»S> 
 
 the defendant,^ even where the defendant fhevvs that 
 the plaintiff has put the fubmiflion bond in fuit in a 
 court of law ; unlefs the award order fomething 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 
 d«fendant was feifed to him and his heirs male with 
 the fee expe«^ant of feveral lands in Henfield, and the 
 plaintiff conceiving 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 
 himfclf ; tliat differences arifing about the eftate tail, 
 Mr. Jufticc Croke, who had been chofen arbitrator 
 between the plaintiff and the defendant, had awarded 
 that the defendant Ihould enjoy a former eflate tail 
 fettled by their father, on him and his heirs male, and 
 that the plaintiff fhould confirm the faid eflate tail at 
 the charge of the defendant, and that the defendant 
 fhould do no aft to bar or difcontinue the faid eflate 
 tail, or the remainder of the plaintiff, without the 
 confent of the latter, except it were for a jointure for 
 his wife ; the Lord Chancellor, though he held that 
 the defendant Ihould anfwer as to other parts of the 
 award, declared that as it was abfolutely againfl the 
 conllant courfe of the court to decree a perpetuity, or 
 give any relief in that calc, he would allow the dc- 
 rcndant's demurrer as to this part of the bill.' 
 
 ' Pcwle V. t'ipe. i8 Car. *, pr. Hyde Chancellor. 3 Re|y 
 in Chan. io. 
 
 * Bilhop V. Bifliop. I Rep. in Chanc,
 
 THE REMEDY 
 
 On a fubraiirion by bond, it was awarded that the 
 plahitifF, in the bill, fliould pay the defendant 900I. 
 and feal a releafe to the defendant ; that the defendant 
 fliould affign feveral fecurities which he had from the 
 plaintiff. The bill ftated that the plaintiff had fold 
 fome lands to raife the 900I. expefting the defendant 
 would accept it, as he had intimated he would, and 
 tendered him the 900I. and a releafe executed accord- 
 ing to the award : though there was no other execution 
 on the part of the plaintiff, and though it was con- 
 ceived, that the award was extrajudicial^ and not good in 
 Jiric'Inefs of law, yet the Lord Chancellor decreed that 
 it fliould be fpecifically performed.'' 
 
 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, who were brother 
 and lifter, had a difpute about the fee fimple of a fmall 
 parcel of land under the father's will ; they entered into 
 a bond in the penalty of 2Col. to ftand to the award of 
 arbitrators with refpedl to the difpute. The arbitrators 
 awarded that the plaintiff flio*uld pay lol. to the de- 
 fendant on a particular day, and 30I. on a future day ; 
 and that on this the defendant fhould procure his wife 
 to join with him in a fine and deed of ufes, and thereby 
 convey the premifes to the plaintiff and her heirs. The 
 plaintiff paid the defendant the lol. on the day on 
 which it was awarded to be paid ; fhe afterwards ten- 
 dered the remaining 30I. on the day on which that v/as 
 awarded to be paid, and the defendant was willing to 
 take the money, but would not execute the fine and 
 
 ^ Norton V. Manfcll, 2 Vern. 24. S. C. z Rep. in Chan 304.
 
 TO COMPEL PERFORMANCE. 321 
 
 deed of ufes. On the opening of the cafe, the Maftcr 
 of the Rolls faid he thought this a ftrange bill, for 
 which he knew no precedent ; and that the plaintiff 
 muft fue her bond. 1 he plaintiff's counfel urged that 
 the defendant, having accepted the lol. had thereby 
 undertaken to perform the award, and cited the cafe 
 immediately preceding, where he faid the court had 
 decreed a fpccific performance, though the award had 
 not been executed, and though, in flriftnefs of law, it 
 was void. The Mafler of the Rolls replied, that, in 
 that cafe, the award not being good in law, there might 
 be reafon to decree a fpcciiic performance of it. But 
 he defired to know what the defendant's counfel could 
 fay as to the defendant's having accepted part of the 
 money. It was contended that it was fufficient, that, 
 unlefs in very extraordinary circumllances, there was 
 no inftancc of a bill being brought for a fpecific per- 
 formance of an award : that befides, this was an un- 
 reafonable award, that the hulband lliould procure his 
 wife to join with him in a fme, which it might not be 
 in his power to do ; and therefore the court ought not 
 to oblige him to it. His Honour anfwered that there 
 were a hundred precedents, where, if the hulband, for 
 a valuable confideration, covenant that his wife fhall 
 ]oin with him in a line, the court had decreed that the 
 hulband Ihould do it. In the prefent cafe the defend- 
 ant, by his acceptance of part of the money awarded, 
 had undertaken fpecifically to perform the award. His 
 Honour therefore . decreed, that on payment of the 
 relidue of the money awarded, the defendant fhould 
 perform the award, and that he fhould pay coHs ; it 
 being contrary to good confcience to take the money
 
 JtS THE REMEDY 
 
 awarded, and yet rcfufe to perform his part of the 
 award. ^ 
 
 Though an award made in confequence of a volun- 
 tary reference be defeftive 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 diflurbed by 
 a fuit at law. 
 
 In a bill filed in Chancery by one Scot againfl one 
 Wrav, it appeared that fome differences having for- 
 merly arifen between one Roger Whittcy and the 
 defendant Wray, rcfpefting certain lands, the decifion 
 was referred to arbitrators, who awarded that Whittcy 
 (hould have the lands ; and there was a provifo in the 
 uward, that if any doubts fliould arife upon it, the 
 arbitrators fhould expound them : the defendant Wray 
 had found a defeat 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 infifted that Whittey fliould have them but for life; 
 on which three of the four arbitrators then furviving, 
 by a writing under their hands and feals, declared they 
 meant that Whittey fliould have the lands to him and 
 his heirs for ever, and that the latter words were left 
 out by miflake : it appeared further, that Whittey, 
 being in polTeffion, had conveyed the lands to Scot, the 
 prefent plaintiif, and his heirs ; and that the defendant, 
 claiming under an old deed of entail, fought to eject 
 the plaintiff out of the premifes. 
 
 The Chancellor, on perufal of the award, and of 
 the explanation of it, and alfo of the depofitions of the 
 
 7 Hall V. Hardy. 3 P. Wms. 187.
 
 TO r O M P K L PERFORMANCE. 
 
 323 
 
 two arbitrators who were alone furviving of the four, 
 and vvliich dcpofitions corrcfpondcd with the fornjcr 
 exphi nation, coiifidcring that the award had been long 
 fince made and executed on both fnics, and adopting 
 the opinion of two judges whom he had called to his 
 afliftance, declared, that notwithftanding it had been 
 made on a voluntary reference, without the direftion 
 of the court, it ought in juftice and equity to be ratified 
 and confirmed, and he accordingly decreed that Scot 
 and his heirs Ihould enjoy the land againft the de- 
 fendant, and all claiming under him, according to the 
 aw^ard and explanation.'' 
 
 On the fame principle the court refufed to reverfe a 
 decree on a bill of review^ which had been made fixteen 
 years, in confequence of a reference to fettle the dif- 
 ferences between the parties ; though the plaintiff, in 
 tlie bill of review, afligned for error, that the cauie 
 had been referred to four commilfioners, and onlv three 
 certified, and that the leafe on which he now inllllied 
 was not then in iffue, and that he had never alTentcd to 
 the certificate.'* 
 
 If the plaintiff in the bill was limited to a time for 
 the performance of his part, and does not perform it 
 within that time, the defendant fliall not be bound by 
 the award ; yet if, fubfequently to the time, he has 
 accepted of part performance, he fhall be bound for fo 
 much as that is an equivalent for. 
 
 In a bill filed^ by Sufan Ewes and William Reeve 
 againft Edward and William Blackwall, the circum- 
 ftanccs of the cafe appeared to be thefe. 
 
 « Scot V. Wray, i Rep. in Chan. 46. 
 
 ? Id. Goddard v. Goddard. 15 Car. 
 
 z 2
 
 THE REMEDY 
 
 The plaintifF Reeve being feifed of a certain manor 
 and lands, in part freehold and part copyhold, mort- 
 gaged tliem to the defendants, on condition to have 
 them retonveycd to the plaintifF Reeve and his heirs, 
 on pavmcnt of fome money due to them : fome dif- 
 fei enccs afterwards arofe between the parties about the 
 amount of thofe fums, and fuits being commenced by 
 the plaintiffs for a new redemption, a reference was 
 propofed, and accordingly, by agreement, all matters 
 were referred to two perfons, who made an award that 
 Reeve ftiould pay to Edward Bhickwall, as due to him, 
 the fum of 6543I. 13s, ()d. and to William Blackwall 
 3500I. as due to him : but that if Reeve fliould procure 
 bonds or bills under hand and feal, by which the faid 
 Edward Blackwall flood bound to any perfon or perfons 
 for his own juil debts, which with intereft fhould 
 amount to the debts aforcfaid, and the faid bonds and 
 bills fliould be delivered up to the faid Edward within 
 five weeks from the date of the award, then the de- 
 fendants fhould accept them in full difcharge of their 
 debts, and then reconvey to Reeve, his heirs and 
 affigns, all the lands which w^ere by him mortgaged to 
 them, difcharged of all incumbrances incurred by them, 
 or any claiming under them, with all deeds and evi- 
 dences concerning the fame, and difcharge all bonds 
 and fecurities whatever, which they had againfl Reeve 
 or his eflate ; but if Reeve fliould fail in the perform- 
 ance of what was awarded, then the defendants fhould 
 have the full benefit of their fecurities for the whole 
 imney flated to be due to them as before mentioned. 
 
 The bill further flated, that within the time limited 
 for pavmcnt of the faid money, there was a great 
 quantity of grafs fit to be cut off the eftate, which i^ 
 
 4
 
 TO COMPr. I. PF.RFORMANCE. ^ZJ 
 
 was agreed the defendant Edward fliould 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 nfc : 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 Blackwall, by the hands 
 of Henry Johnfon, Efq. but not within the live weeks 
 from the date of the award ; and farther paid to him, 
 by the fame hand, the fum of 6543]. by delivering up 
 feveral bonds, in which Edward ftood bound to fcveral 
 perfons for his own debts ; and that in confcquence of 
 this the faid Edward and the plaintiff Reeve conveyed 
 the lands in the bill nicnlioned, or the greateft part of 
 them, to Henry Johnfon and his heirs. 
 
 That, in further purfuancc of the av;ard, the plain- 
 tiff Reeve paid the defendants, or one of them, in 
 money or in bonds, or llatutcs, in which the faid 
 Edward and John Blackwall, or one of them, were 
 bound, the fum of 2058I, 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 Blackwall, 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 refidue of the faid fum of 3500I. and required the 
 defendant to accept the fame, and that the faid Wiiiiam 
 Blackwall Ihould furrender the copyhold lands to the 
 plaintiff Sufan Ewes and her heirs, and convey the 
 freehold lands to the plaintiff Reeve and his heirs,
 
 3.i6 THE REMEDY TO COMPEL, 8cC. 
 
 difcharged of all incumbrances, and perform the award 
 fpecificaily, and account for the value of the hay, 
 
 On hearing, the court difmifled the bill as to the 
 hay, and decreed that the money paid and " accepted" 
 by bonds or othcrwife, was well paid, and fliould go 
 towards the fatisfadion of the debt due to William 
 Blackwall, as well on bond as on mortgage, fo far as 
 the fame would reach ; and that the award, in tlie bill 
 fet forth, not being performed by the plaintiff within 
 the time, ought not to be concluiive and binding to the 
 faid William Blackwall, to cut off any part of his juft 
 debt, and that therefore the award fliould Hand diffolved 
 from that tin-;c. That the mailer fliould compute what 
 was due to William Blackwall for principal and intercft 
 by bond or mortgage, beyond what had been already 
 pa'd by bonds or in money, and that on payment ot 
 that balance, at a time to be appointed by the mailer, 
 the defendant fhould reconvey and furrender the mort- 
 gaged premifes to th.c plaintiff, or to his appointment, 
 difcharged of all incumbrances, as the mafter ihould 
 direft, and then deliver up the mortgages and bonds, 
 and other writings, and in default of payment the de- 
 fendants fhould take the benciit of their fecurities.' 
 
 However far a court of equity may affiil a plaintiff 
 to procure the execution of an award, it will not 
 compel a defendant to difcovcr a breach, by which 
 he may charge himfelf w^ith the penalty of a fubmiffion 
 bond.' 
 
 ' Sufan E\vcs and Wm. Reeve v. Ed. and Wm. Blackwall. 
 
 Rep. temp. Finch, 22. 
 
 ' Bifhop V. Bifhop, 25 Car. 1 Rep. in Ch.
 
 THE MEAN'S OK I'ROCURINC RELIEF. 327 
 
 CHAP. VII. 
 
 Pic Means of procuring Reliff againjl an Award 
 when improperly made. 
 
 WHERE the objeftion taken to the award Is, that 
 it is contrary to fome of thoie rules, which 
 tlie law has prefcribed to be obfcrved in the conftitur 
 tion of an award, that objedlion may be taken when 
 the award is put in fuit. This is equally applicable to 
 the cafe of a fubmiffion by the mere a£l of the parties, 
 and to that where the mere aft of the parties is ac- 
 companied by the interpolation of a court. And where 
 the objeft is merely to fet afide an award from legal 
 objeftions appearing on the face of it, this can be 
 efFefted only in a court of law : a court of equity will 
 not in fuch a cafe lend its affiftance.^ 
 
 But when the fubmiirion is by the mere aft of the 
 parties, then, in order to be relieved againft the award 
 on account of any extrinfic circumftances, the defendant 
 cannot make thefe a defence to the aftion on the award 
 pr on the fubmiflion boad : he cannot give in evidence 
 
 3 Vid. Champion v. Wenham. Ambl. 245, 
 z 4
 
 3^8 
 
 THE MEANS OF PROCURING RELIEF 
 
 any thing to impeach the conduft of the arbitrators ; 
 the award is a determination of judges chofen by the 
 aft of the party himfelf, and nothing extrinfic to that 
 judgment can be offered in evidence to overturn it ; if 
 fuch evidence were admitted, the plaintiff would come 
 entirely unprepared : to fupport his aftion he has only 
 to prove the fubmiffion and the award ; the corruption 
 or partiahty of the arbitrators, it is faid, may be wholly 
 vnknow^n to him ; it concerns only the arbitrators 
 themfelves : there is no precedent at law of any ivrit 
 to fct afide an award ; corruption or partiality has never 
 been pleaded, and the ftatute of William the third 
 Ihews that an award at law mufl ftand, where there is 
 no objeftion to the terms of it ; for, as to awards made 
 under that ftalute, it fays they mufl: ftand, unlefs con- 
 troverted and fet alide in two terms,'* 
 
 In this refpedl the Roman law is fomewhat different 
 from ours ; for though it provides no diredl method, 
 by which the party againft whom the award is made 
 can impeach the conduft 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 plaintiff's adlion for the penalty 
 expreffed in the fubmiffion.^ 
 
 ^Vid. I Saund.327. 2 Vefey, 
 315. Wills V. Maccarmick, 
 C. B. 2 Wiif. 149. 
 
 5 Cum quidain arbiter ex 
 aliis caufis inimicus maniftfte 
 apparuilTetjteftationibus etiam 
 convent us,;?^ fgntentiam dicer et, 
 nihilominus millo cogente di- 
 cere perfeveraiTet : libello 
 cujufdam id querentis, Im- 
 pcrator Antoninus fubfcripfu, 
 
 fojfe eitm uti deli mall exceptlone. 
 Et idem cum a judice con- 
 fuleretur a pud quern poena 
 peiebatur, refcripfit, etlamji 
 appellarl non potefl, doll mall 
 exceptionem In pauts pciitione 
 ohjlaiitram. Per banc ergo ex- 
 ceptionem quaedem appellandi 
 Ipecies eft, cum liceat retrac- 
 tare de fententia arbitri. — Ff, 
 1.4. t. S. f. 32. n. 14.
 
 WHEN THE AWARD IS IMPROPERLY MADE. 329 
 
 With us, in fuch a cafe, the only relief is in equity, 
 which often fets afiue a\vards, and gives that kind of 
 relief, which feems naturally to arile out of the cir- 
 cumflaiiccs ; as by directing accounts, or granting in- 
 junftions to ftay all legal proceedings which had been 
 purfued, on the foundation of the award being good. 
 Though bills of this fort are received with fome preju- 
 dice, becaufe arbitrators are judges of the party's own 
 nomination, yet, if on partiality a court of equity Ihould 
 not relieve, arbitrators would have too great a power, 
 and might abufe it from corrupt motives.'^ 
 
 In a bill iiled to have an award fct alide, it was 
 alleged by the plaintiff, that he had been arrefted at 
 the fuit of the defendant, on which both parties fub- 
 niitted 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 36I. to be paid 
 by the plaintiff in the bill to the defendant, and as was 
 fuggefted in the bill, v.-ithout 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 deliver him up the 
 leafe, in order to proteft it againft his creditors ; but 
 the plaintiff abufing his truft, had infifled the goods 
 were his own by an abfolute furrender ; that this being 
 the greateft fubjeft 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 
 
 * 2 Vefey, 315. 2 Wilf. 149.
 
 33° THE MEANS OF PROCURING RF.LIEF 
 
 in the caufc that the plaintiff had goods of the defend- 
 ant only to the amount of 7I. los. but that he might 
 have been heard, if he had pleafed. The court thought 
 the award ought not to be fet aiide for anv fuppofcd 
 hardship in the cafe, as the umpire had exercifed his 
 judgment in the recompenrc he had given to the de- 
 fendant for the injuiy he had fuftaincd, and the bill 
 was difmiflcd with cofts.' 
 
 The fame rule applies to the cafe of an award made 
 in confcquence of a reference at n'lfi prius ; 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 Ids firft, &c. fons, remainder to 
 the defendant in tail, had committed wafle for which 
 the defendant had brought his affion, and at n'lfi py'ius^ 
 by confent of the parties, the matter was referred to 
 two of the jury, under a provifo that they Ihould make 
 their award by Michaelmas, otherwife that an umpire 
 fhould decide : no award was made by the arbitrators, 
 but the umpire gave the plaintiff in the aftion, the 
 defendant in the bill, 384I. damages. The bill was 
 exhibited to pray relief; i. Againft thcfe damages, as 
 excefTive ; 2. For mifconduft in the umpire, bccaufc 
 he had declared before the umpirage made, that lie 
 would not meddle in the matter, and afterwards that 
 lie had made it for fear he fhould be arreftcd, from 
 whence the plaintiff's counfel inferred that he had been 
 menaced ; and laflly, bccaufe after the fubmiffion the 
 plaintiff had repaired the premifes, and proved repairs 
 done, and that 40s. would complete them, 
 
 7 Waller V.King. 2 pt. Ca, in Law and Eq. 63, 64. Vid.Geenhill 
 V. Church. 3 P.cp. in Ch. 49, to the fame point.
 
 WHK.V THE AWARD IS I.M P RO P F. R I. Y MADE. 3] I 
 
 The defendant infiftcd that the umpirage ought not 
 to be fct afide without fraud or partiality proved ; that 
 the time when the umpire had faid he would not 
 meddle in the bufincfs, was in Auguil, before the time 
 lu' was to make his umpirage, as the truth really was; 
 and that the plaintiff had notice given him by the 
 umpire to attend, which he did not, fo that the umpire 
 had no notice of the repairs, and if he liad, that was 
 not material to avoid the award.* In another report of 
 the fame cafe,'' it appears, that the tenant for life had 
 no iliuc ; that the value of the eftatc was 70I. per 
 annum, and that the tenant for life, who had fuffered 
 fome mills and houfes, of which the cftate confiftcd, 
 to go greatly out of repair, had, before the umpirage 
 made, repaired all the walle to within 4CS. and for- 
 bidden 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 rctufcd to hear 
 the plaintiff; but of that no other proof was given than 
 that he had faid, the plaintiff might bring what wit- 
 neffes he would, he would not believe them, bccaufe 
 he knew the premifes himfclf, and was well latisfied 
 about the value of the repairs. With refped to the 
 outrageoufnefs of the damages, it was faid, that the 
 defendant had but a remote remainder after an eilate 
 tail, and yet he had as much given him, as if he had 
 been to come immediately to the eilate : it was an- 
 fwercd. that the damages were not to be meatured by 
 
 ' Brown v. Brown, i Ca. Ch. 140. 
 ' 1 Vern. 157.
 
 THF. MKANS OF PROCURIKG REI I F. F 
 
 the quantity of the tenant's eftate, but by the injury 
 done to the inheritance ; that were it necclTary to con- 
 iider the excclTivenefs of the damages, they might have 
 been given for the treble vahie ; and that no fraud or 
 collufion being proved, the court could not fet the 
 award afide, unlefs there were a manifcft 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, 
 unlefs the parties be reftrifted from fo doing by the 
 terms of the fubmiffion ; ' the arbitrators, it is faid, 
 may plead the award in bar, but they mull fupport 
 their plea, by Ihewing thcmfelves impartial, or the 
 court will give a party a remedy, by making them pay 
 cofls.- 
 
 But in order to avoid the inconvenience of having 
 a bill filed againft them, it is not unufual for the arbi- 
 trators to infift on its being made a condition of their 
 acceptance of the office, that no bill in equity fliall be 
 brought againfl them: in which 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 
 immediately ordered.^ 
 
 A BILL will not lie to compel the arbitrator to dif- 
 cover the grounds on which he made his avvard ; it is 
 unreafonable that he ftiould be put to fo much trouble 
 and expence : if there be any palpable miftake made 
 by the arbitrator, or a mifcalculalion in an account that 
 had been laid before him, the party aggrieved may 
 
 » Ca.temp. Finch, 131. = 2Atk. 396, (412) 
 
 •3 Id. 396, 397, (412, 4I3-)
 
 WHEN' THE AWARD IS IMPROPF.RLV MADE. 
 
 33? 
 
 bring his biU* againft the party, in whofc favour the 
 award is made, to have it rctflified.'* 
 
 When a cafe is referred at n'lfi prlus, it is ufual to 
 infert in the order of reference a condition that the 
 parties fhall file no bill in equity, either againft the 
 arbitrators or againft each other : if notwithftanding 
 this condition, a bill in equity be filed, the plaintiif 
 incurs the danger of being attached for a contempt, by 
 the court of which the order of reference was made a 
 rule : but it is in the difcretion of that court to grant 
 an attachment or not according to the circumftances of 
 the cafe : and in a cafe which lately occurred in the 
 common picas, it was aftually refufed.* 
 
 The ufual infertion of this condition in the order of 
 reference at mji prius, has been confidered as a tacit 
 admiftion tbat a court of equity has a difcretion to 
 entertain a bill for fetting afide an award for partiality 
 or corruption, though made under fuch a reference, 
 and though no application for redrefs had previouflv 
 been made to a court of law, and refufed : on this 
 principle Lord Loughborough over-ruled a general de- 
 murrer to a bill filed to fet afide an award for partiality 
 and corruption, made under an order of reference at 
 mfi prius in the court of King's Bench, though no ap- 
 plication had been made xo that court, and though two 
 years had elapfed from tlie time when the award was 
 made, before the filing of the bill.'' — And where an 
 application has been made to the court of law, but 
 
 ■t 3 Atk. 644. (609.) 
 
 5 Burton v. Petrie, cited by 
 
 Lord Loughborough. 2 Vez. 
 
 Junr. 542- 
 
 « Lonfdale v. Littledale. 
 2 Vez. Junr. 451. vid. 2 k'.k- 
 155, (162.) Bunb. 265, : 
 Barnard. 132.
 
 3J4 THE MEANS OF PROCL'RING RELIEF 
 
 without fuccefs, the party may ftih have rccourfe to a 
 court of CM^uity againil partiality and corruption : the 
 proceeding under the authority of the court of law 
 may be altogether incompetent ; for that which would 
 fubvert the award, may arife out of the anfwer in 
 equity only ; where the mode of compelling a difcovery 
 in anfwer to pointed interrogatories has much the ad- 
 vantage of that by affidavits in a court of law.^ 
 
 Where the llibmiffion is according to the ftatute, 
 and application l\as been made in the court of which 
 the fubmilTion is a rule, for an attachment for non- 
 performance, by one party, and to have the award fet 
 afide, by the other ; and both applications have been 
 unfuccefsful, then a bill will lie to obtain relief againft 
 the corruption or partiality of the arbitrators. 
 
 The cafe of Mr. Ward of Hackney is' a very re- 
 markable inflance of this kind. It came twice before 
 the court of Chancery ; it was a bill to fet afide an 
 award made by Walker and Floyd, two arbitrators 
 out of three, in confequence of a reference to put an 
 end to a caule of long ftanding, in which an account 
 was before a mafrcr : the fubmiffion was made a rule 
 of the court of King's Bench. The party, againft whom 
 the award was made, obtained a rule to fhew caufe, 
 why it fhould not be fet afide, on account of partiality 
 and milbehaviour in the arbitrators. 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 
 
 ' Vid. all the authorities laft before cited.
 
 UHEK THE AWARD IS IMPROPKRI.y MADE. 3.35. 
 
 was ilill equally divided, and of courfc no attaclimcnt 
 was granted. The party in whofc favour the award 
 was made, having no advantage from the fubmiflion 
 Ijeing made a rule of court, brought a common adion 
 on the fubmilfion-bond. AVard, the party againft 
 whom the award was made and the defendant in the 
 adion, filed his bill in Chancery merely to be relieved 
 againft the award, only praying general relief. The 
 defendant to the bill, by his anfwer, infifted that the 
 King's Bench had determined, and therefore the award 
 ought not to be fet afide. The caufe was heard by 
 Lord Macclesfield,^ who was a little doubtful on account 
 of the proceedings in the King's Bench, as the award 
 was by virtue of a fubmifilon by rule of that court, withiiv 
 the aft of Parliament ; he therefore hefitated whether 
 he fhould give relief, as the whole matter was fubjeft 
 to the jurifdiftion 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 maftcr 
 to ftate what the King's Bench had done ; and the 
 maftcr ftated the cafe as above.— Lord Macclesfield v/as 
 then of opinion that the King's Bench had not deter- 
 mined either way, not having thought fit to fet afide 
 or to confirm the award, becaufe they had refufed the 
 only procefs to carry it into execution ; and therefore 
 he held, with reafon according to the opinion of Lord 
 Hardwicke, that the cafe Ihould be confidered as an 
 award by fubmifilon, without a rule of court, and that 
 if a court of common law, which had this fummary 
 iurifdidtion, refufed to cxercife it, and left the party on 
 
 * 2ift April, ,1719.
 
 336 THE MEANS OF PROCURING RELIEF 
 
 one Me to his aftion, it left the other to feck relief by 
 a bill in equity.^ 
 
 How far a court of equity will interpofe to grant 
 relief againft partiality or corruption in the cafe of an 
 award made in purfuance of the flatute, either when 
 no application to fet the award afidc on that account 
 has been made to the court of which the fubmiflion 
 has been made a rule, within the time limited by the 
 ftatute, or when fuch application has been made without 
 fuccefs, but no application has been made on the other 
 fide for an attachment, appears to have been till lately 
 by no means a fettled point. 
 
 The words of the flatute fo far as they afFeft this 
 queflion are thefe : " in cafe of difobedience to fuch 
 arbitration or umpirage, the party neglefting or refufing 
 to perform and execute the fame, or any part thereof, 
 fhall be fubjeft 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 fhall ifTue procefs 
 accordingly, which procefs fhall not be flopped or 
 dejayed in its execution by any order, rule, command, 
 or procefs of any court, either of law or equity, unlefs 
 it fhall be made appear on oath to fuc/i court, that the 
 arbitrators or umpire mifbehaved themfelves, and that 
 fuch award, arbitration, or umpirage, was procured by 
 corruption or other undue means. And any arbitration 
 or umpirage procured by corruption or undue means, 
 fhall be judged and efleemed void and of no efl^eft, and 
 accordingly be fet afide by any court of law or equity, 
 
 9 Ward v.Pcriam, cited 2 Atk. 155, (i6i,) 396, (412O 2 Vefey, 
 Z16, 317.
 
 WHEN THE AWARD IS IMPROPERLY MADE. 337 
 
 fo as complaint of fuch corruption or undue pradtice 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 pubiilhed to the parties; any thing in this a6l 
 contained, to the contrary notwithftanding." 
 
 1 FIND but one cafe reported till very lately relative 
 to this queflion, and that is by no means conclufive or 
 fatisfadory. It is- reported in two books, with a little 
 variation : in the one,' it appears that an application 
 had been made without fuccefs in the court of King's 
 Bench, to have the award fet afide, before the filing 
 of the bill ; in the other,^ it is faid that no application 
 had been made to that court. 
 
 The bill was filed to have fatisfaftion on a note of 
 hand for 3184I. given to one Richardfon by Cambel, 
 one of the defendants to the bill, and party to the 
 fubmiffion, which had come to the hands of the plain- 
 tiffs by mefne afiignmcnts, and to fet afide an award 
 which ordered that note to be delivered up by the 
 plaintiffs: the bill charged that the note had never 
 been produced to the umpire ; that one of the plaintiffs 
 informed the umpire that Alardice, the other plaintiff, 
 was gone to Scotland, to inquire whether the defendant 
 Cambel had paid this note to feveral lliipowners there, 
 as he pretended ; that Alardice was the only perfon 
 who knew any thing of the affair, and therefore the 
 other plaintiff defired the umpire to wait for his return, 
 which he promii'ed to do, but afterwards made the 
 umpirage before Alardice's return ; that both the umpire 
 
 " 1 BArnard. K. E. 75, 152. ' Bunb. 265, 
 
 A a
 
 338 THK MEAfTS OF PROCURING RELIEF 
 
 and Cambel piomifed the award ihould be only con- 
 ditional, and that Alardice fliould be heard after his 
 return from Scotland : a«d there were other charges in 
 the bill of undue prafticc in making tV:^ award. — One 
 report ^ ftates, that the defendants pleaded the fubmif- 
 fion to the award, the eleftion of the umpire, and the 
 award within the time ; that the fubmiflion had been 
 made a rule of the court of King's Bench ; 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 "^ ftates, that Cambel pleaded that the 
 umpire made an abfo'lute and impartial award, accord- 
 ing to the bed of Cambel's belief, but that it had been 
 delivered above two terms before the filing of the bill, 
 fo 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 circumftances. — By both reports it appears that 
 the defendants gave no anfwers to the exprefs charges 
 in the bill, verifying their plea only in general terms, 
 and denving combination. 
 
 The principal queftion being, whether courts of 
 equity, as well as the court of law, of which the fub- 
 miffion had been made a rule, were not confined by 
 the flatute to the time thereby prelcribed, for the al- 
 lowance of exceptions to the award ; the Chief Baron 
 is reported to have been of opinion that they were not. 
 He obferved that before this flatute, agreements made 
 in any caufe depending in courts of law, and after- 
 
 Bunb. * Barnard.
 
 WHEN THE AWARD IS IMPROPERLY MADE. 3^9 
 
 wards made rules of tliofc courts, had equally the ad- 
 vantage of that fpcedy remedy, which now all extra- 
 iudicial agreements may have on this a6l of Parlia- 
 ment. They were, however, open to the infpeition 
 of courts of equity, who might examine into any cir- 
 cumftances of fraud or milbehaviour : as the law then 
 flood, if courts of law had enforced fuch agreements 
 by attachments, for proper reafons courts of equity 
 might have granted injunftions. This ftatute had in- 
 deed confined the courts of equity in cafes of fub- 
 miirions under the provifions of it ; it faid in general 
 that no injun£tion fliould lie upon fuch attachment: 
 but a bill to difcover Avhcther there was partiality or 
 not, he faid, was left as it was before, and would not 
 affeft the proceedings on the attachment. On the 
 whole, he thought the plea ought to be overruled ; but 
 that if the rcfl of the Barons thought it as well that the 
 plea fhould fland for an anfwer, he would not oppofe 
 it. Hale and Comyns agreed with the Chief Baion as 
 to the principal point ; Carter differed from them : but 
 they all agreed that the plea fhould fland for an anfwer, 
 with liberty to except. * 
 
 In a late cafe Lord Chancellor Loughborough in- 
 timated an opinion that the jurifdiiflion of a court of 
 equity was not excluded by a reference under the 
 flatute ; and faid it had never been fo received.* And 
 I fuppofe his Lordfhip, had the queflion been diredly 
 before him, would have decided that the jurifdidion of 
 a court of equity is in all cafes as little excluded by a 
 
 * Alardicc v. Cambel in the Exchequer. 1 Barnard. 75, 15: 
 Bunb. 265. 
 * Lord Londfdale v. Littledale, 2 Vcz. Junr. 453. 
 A a 2
 
 34.0 THE MEANS OF PROCURING RELTF.F 
 
 fubmifllon under the ftatutc, as by a reference at yuf. 
 prius. 
 
 When the praflice of referring caiifes at niJI prius 
 was but new, and the courts had juft overcome their 
 rehifl-ancc to enforce, by attachment, awards made in 
 confe(juencc of fuch references ; it was a matter of 
 fomc difficulty, to procure reHef againft the corruption 
 or mifconduft of the arbitrators. Holt is reported to 
 have maintained, with even indecent warmth, that an 
 award fl.ould not be impeached for any fuch mifcon- 
 duft, and for no better reafon than that it was contrary 
 to all praftice within his experience ; which was that 
 the integrity of the arbitrators, v/hom the parties, by 
 confeut, had chofen to be their judges, fliould never 
 be arraigned any more than the integrity of any other 
 judge. The other three judges,' however, cotild not 
 adopt the fentimcnts of the Chief, with refpeft to this 
 vniLiipeachablc integrity of arbitrators ; they fuppofed 
 it polTib'e, that they might be influenced by corrupt 
 inoti%cs, and faid, it was abominable to countenance 
 them in fuch proceedings, and they ought to be 
 punifhicd for having abufed the office of a judge. Ac- 
 cordingly an application being made to have an award 
 fet aflde, which had been made by arbitrators, chofen 
 by the confent of parties, under a rule of mji prius, 
 which had afterwards been made a rule of the court 
 of King's Bench, and affidavits being produced of the 
 mircondud of the arbitrators, they were ordered to 
 attend, and all their proceedings being examined, one' 
 
 7 Powell, Powys, and Gould. 
 8 Morris v. Sir Richard Reynolds, z Ld.Rnym. 857.
 
 WHEN THE AWARD IS IMPROPERLY MADE. 341 
 
 report of the cafe fays, great mifconduft appeared ; 
 but another ' fays the award was examined and con- 
 firmed ; that the plaintiff moved for an attachment for 
 non-performance \ but that the court held that the 
 non -performance, while the matter was under exami- 
 nation, was no contempt. 
 
 When the fubmiiTion is by reference at nifi prius, 
 there is no time limited for making an application to 
 fet afide an award for any caufe, whether for corrup- 
 tion or for an objeftion appearing on the face of the 
 award ; and the defendant has the fame advantage in 
 Ihewing caufe againft an attachment being granted on 
 the application of the plaintiff.* 
 
 When the fubmiflion is by confent to have it made 
 a rule of court according to the ilatute, no application 
 can be made to have the award fet afide till the fub- 
 million be aftually made a rule of court ;^ but it is not 
 neceffary, as fuggefted in one book,^ that the fubmiHion 
 be made a rule of court before the award made ; that 
 may frequently be impoffible, becaufe the award may 
 be made in the vacation, before any term arrives after 
 the fubmilfion.-* 
 
 By the words of the flatute, however, the complaint 
 mufl be made before the end of the next term after 
 making the award; and it is faid,^ that nothing is a 
 ground within that flatute for fetting afide an award 
 but the mifcondudl of the arbitrators : and accordingly 
 
 9 S.C. I Salk. 73, 
 
 ' Vid. 2 Atk. 155, (162.) 
 and a Diftum of Lord Mac- 
 clesfitl'd's. I Barnard. 461. 
 Str: 301. z Bur. 701. 
 
 ^ I Str. 301. 2 Vc.''. 317. 
 
 Str. 1 17S. 
 
 ^ 3 P.W. 36;. 
 
 * Vid. I Birnard. 1 33. 
 
 ^ I Str. 301. 
 
 A a
 
 341 
 
 THE MEAN'S OF PROCURING RELIEF 
 
 the court will not grant a motion to fet afide an award 
 for an obicdtion appearing on the face of it; though 
 that will be a good reafon for refufmg an attachment 
 to enforce it.^ But as that ftatutc was made to put 
 awards made according to the directions of it, on the 
 fame footing with awards made in confequence of 
 references at nijl prius, and is declaratory of what the 
 law was with rcfpeft to them, any other objedlion 
 may be made to an award founded on a fuhmiffion 
 of the former kind, which might be made to one 
 founded on a fubmillion of the latter;' and where 
 the objeftion arifes on the face of the award, it may 
 be made at any time, on Ihewing caufe againft an 
 attachment, though it be after the time allowed by the 
 llatute for complaining againft corruption.* 
 
 Where the fubmiflion was by confent under an 
 order of a court of equity in a caufe depending there, 
 it was formerly held that exceptions might be made 
 to the award, as to a maftcr's report. And when the 
 party complaining of the award alleged that the arbi- 
 trators had not confidercd certain particulars, which 
 were in iffue in the caufe, it was ulfo held the court 
 would order the arbitrators to certify whether they had 
 conlidercd them, and would examine into the merits 
 of the award ; and if it were found unjuft, performance 
 would not be decreed, even though it were expreffed 
 \n the order of reference, that the award to be made 
 
 * Vid.Huteliins v. Hutchins. 
 Andr. 297. Pedley v. God- 
 dard. 7 Term Rep. 73, 
 ' Vid. 2 Bur. 701. 
 
 8 Barnes, 57. Id. 55 contra. 
 Vid. Pedley v. Goddard. 7. 
 Tcrna.Rep. 73 ace.
 
 WHEN THE AWARD IS IMPROPERLY MADE. 343 
 
 Ihould be final, and confirmed by a decree of the court 
 without exception or appeal.^ 
 
 But this doftrine, lb far as it relates to exceptions 
 being taken to an award, has been ilnce in a great 
 mealure overruled. — In one cafe ' Lord Thurlow is 
 reported to have faid in general terms, that where a 
 matter in a caufe had gone to a reference, a party 
 could not except to the award, but that the queilion of 
 its validity mull come on upon further direAions. 
 
 In a fubfcquent cafe, exceptions having been taken 
 to an award, a motion was made to difcharge the order 
 for filing them, on the ground that the award being 
 made by perfons appointed Judges by the parties theni- 
 felves, was final and conclufive. — The Lord Chancellor- 
 faid ' if it remained open to exceptions it feemcd to 
 be rather a reference than an award ; that it was in- 
 tended in the prefent cafe that the whole matter fliould 
 be referred to the arbitrators in exclufion of the court, 
 except as to the cofls ; that the proper motion would 
 be " to fet afide the award," and the topics in the 
 exceptions might be difculTed on fuch a motion : ' and 
 he exprefTed his difapprobatlon of the cafes, in which 
 the former doftrinc had been maintained.^ 
 
 In another cafe the prefent Chancellor-* declared 
 that if parties litigating confented to fubftitute arbitra- 
 tors inftead of a mailer, they might ; but if they agreed 
 
 9 I Ch. Ca. i86. 1 Vern. 
 469, 470J 2 Vern. 109. 
 
 • Woodbridee v. Hilton. 
 I Brown. Ch. Rep. 389. 
 
 - Thurlow. 
 Rice V.Williams. 3 Brown. 
 Ch. Rep. 163. The fame 
 
 cafe, but in a fubfcquent flage 
 feeins to be reported in 1 Vez. 
 Junr. 365. under the name of 
 Price V. Williams. 
 
 •♦ Lord Loughborough, in 
 Morgan v. Mather. 2 Vez. 
 Junr. 22. 
 
 A a
 
 344 THE MEANS OF PROCURING RELIEF 
 
 to refer the zvhole matter to judges of their own choice, 
 HE could not corred the error of their judgment on 
 the fa£ls. 
 
 In two crofs fuits depending in Chancery between 
 Dick and MilHgan, and Milligan and Dick, an order 
 was made by confent, by which it was referred to the 
 Mailer to take the accounts. A reference to arbitrators 
 afterwards took place ; and by the order of reference 
 the arbitrators were to take an account of all dealings 
 and tranfaftions, in like manner, as if the fame had 
 been referred to the Mafler , and it was ordered that 
 the parties fhould be bound and concluded by the 
 award, and fhould obferve the fame ; and further di- 
 rections were referved : — when the award was made, 
 Dick was very much dlflatisfied with it, though no 
 corruption or mifconduft was imputed to the arbitra- 
 tors ; after a great deal of difcuffion, however, he ob- 
 tained leave to file exceptions to it ; and the right to 
 hie them weiS fu;)ported on thefe grounds : that the 
 prcfcnt reference differed from a general reference of 
 all m.atters between the parties ; that the arbitrators in 
 this cafe were only to make an inquiry in the character 
 of the Muflcr, in order to pave the way for the dccifion 
 of the court ; that by the terms of the order of 
 reference, they were to take the accounts in the fame 
 manner as the Mafter, and t'uit therefore they were 
 under the controul of the court. — A diftinc^ion was 
 admitted between a reference to an iirbitiator to find 
 only a particular fafi, and a general reference of all 
 matters Vv^here the award was to be final : but here the 
 courts were all clearly of opinion, that though it \^as 
 
 s Lord: Ccmmifiioners Eyre, Afuluirft, and Wilfcii.
 
 WHEN THE AWARD IS IMPROPERLY MADE. 34$ 
 
 cxpreiTed that the accounts Ihoultl be taken i.s before 
 a Mailer, yet this was controuled by the latter words 
 of tlie order, which provided that the parties (hould be 
 concluded and bound by the award. It was alfo ad- 
 mitted by the court, that where there was any thing 
 on the face of the award, which, being compared with 
 the proceedings in the caufe, it appeared ought not to 
 be there, or fomcthing omitted which ought to be in 
 it, that was proper matter of exception, but that ex- 
 ceptions' ought to be confined to matter appearing on 
 the face of the award, compared to matter appearing 
 in the pleadings and the orders in the caufe. With 
 regard to matters of fa£l, however, there was an 
 ellential difference between a reference to a Mafter 
 and a reference to an arbitrator ; the latter was con- 
 ftituted judge of the fads without appeal, the former 
 was only a minifler to prepare fomcthing for the court, 
 which was really the judge: In the other cafe the ar- 
 bitrator was the judge and not the couit, which, by the 
 reference, had diveiled itfelf of all judgement. This 
 was the cafe of all arbitrations in courts of law ; and 
 there was no diflinftion as to that point between arbi- 
 trations in courts of law and in courts of equity. Why 
 ought fuch diftin£tioa to be made ? becaufe, it was faid, 
 a court of equity has fomcthing to do upon further 
 direftions. This was an appearance of argument, that 
 it was proper an award in a court of equity fhould be 
 more particular than in a court of law ; but when the 
 reference was general, and the award was to be final, 
 the court had nothing further to difpofc of but the 
 coils.^ 
 
 * Dick V. Milligan, ct e conv. 4 Brown. Chan. Rep. 117, 536, 
 2 Vez. Jun. 23.
 
 .46 TflF. MKANS OF PROCURING RELIEF 
 
 The moft frequent fubjeft of complaint 
 
 Fi' -tu-hat catijci _ , ■ r r r • 1 
 
 A , aeamit an award arilcs rroni lomc imputed 
 wav \ye ftt niifconduft of the arbitrators , but neither 
 iijide. this nor any thing elfc extrinfic of the award 
 
 itfelf can be ihcwn for caufc againft an attachment; it 
 muft be made the fubje(5l of a fpecific motion to fct the 
 award afidc.' li the fubmiffion be to three, or any 
 two of them, and two, by any undue means, exclude 
 the third, that alone is fufficient to caufe the aw^ard to 
 be fet afide.^ 
 
 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 fct it afide." 
 
 Where an umpire was chofen by the arbitrators 
 by throwing crofs and pyle, this was thought fufficient 
 rcafon to fct alide the umpirage.' 
 
 So, where the fervant of the perfon chofen umpire 
 had, before the award made, given out that he was 
 fure his maftcr would award 150L and it appeared that 
 the arbitrators had differed, the one confcnting to give 
 35I. and the other infifting on 95I. and that the umpire 
 coming in had given 150I. — thefe circumftances the 
 court confidercd as an evidence of fraud and corruption, 
 and therefore decreed the arbitration bond to be 
 given up." 
 
 So, where the arbitrators promifcd to hear witneffes, 
 but afterwards made their award without hearing any,^ 
 
 ' Vid. Anon. Aiidr. 299. I! '•' Id. ibid. 
 
 J^olland V. Rrock-. 5 Term 
 * 2 Vcrn. Ji ;. 
 
 ' Id. 485. 
 =■ Id. lot. 
 ' Id. 2:1.
 
 WHEN THE AWARD TS IMPROPRRIY MADT. 347 
 
 -> ■ i ■■ = 
 
 So, where they promilcd not to make their award 'till 
 one of the parlies who was not well, fhouid come 
 abroad, but they made it before.'* 
 
 There were feveral ilated accounts between the 
 plaintiff and the defendant, by which confidcrable 
 fums were due from the defendant, to the plaintiff, but 
 the arbitrator, without regarding anv of thefe ftated 
 accounts, made up an account in his own way, bring- 
 ing in the plaintiff indebted to the defendant 25L and 
 intended to award the former to allign over to the latter 
 a mortgage which he had on the other's cflate, on 
 which mutual releales w^ere to be given. The plaintiff 
 underftanding what award the arbitrator was about to 
 make, fent a mcffciiger about two or three days before 
 the time for making the award was expired, to inform 
 him that the plaintiff delired him to defer making his 
 award until he fhouid talk witih him about his demands 
 to fupport the ftated accounts, and know wdiat ob- 
 je£lions were made againfi: them. The arbitrator, 
 however, would not defer making his award. The 
 Lord Chancellor, on a bill filed by the plaintiff to have 
 the award fet afide, faid that it was ading unduly to 
 proceed in making the award, when the plaintiff had 
 defired to be heard againfi the arbitrators determining 
 in contradiction to fo many flated accounts. And 
 though it was anfwered 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 fhouid be made ; and though it did not 
 appear that the plaintiff was ready to be heard within 
 
 4 Id. ibid.
 
 348 THt MEAVS OF PROCURING RELIEF 
 
 the time, yet as there feemed to be jufl: ground for the 
 plaintiff to dciire to be heard, and it was difficult to 
 aflign a reafon for rejefting fo many flated accounts fo 
 recently allowed and pafTed between both the fub- 
 mitting parties, the court fet aflde the award with 
 cofts.* In the cafe of Ward, before mentioned, 
 Walker, one of the arbitrators, had faid he would 
 make Ward pay colts ; Lord Macclesfield thought this 
 fuch ii declaration, that though Floyd, the other arbi- 
 trator, joined in the award, he decreed fatisfaflion to 
 be acknowledged on the judgment on the bond of fub- 
 miffion, and inverted Walker's threats by making him 
 pay cofls.* 
 
 Lord Hardwicke approved of this decree, and on 
 the authority of it made a fimilar one in the cafe of 
 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 con- 
 ference to convice the others, or be convinced. It 
 appeared in evidence, that at one of their meetings 
 Vine faying he fhould confider and judge on plain 
 fafts, G. replied, he fhould not mind fa£ls, that being 
 convinced Mr. Letellier had mifufed the Lequefnes, 
 and having it now in his power he would mul£l his 
 reprefentativcs. Lord Hardwicke declared, that if 
 thefe were words of warmth only, they were a decla- 
 ration made by a perfon who was to aft the part of a 
 judge; and if he carried that heat and paffion into 
 execution, the award ought not to be fuffcred to fl:and. 
 If it was tlie rcfult of his judgment on the merits, it 
 
 J 3 P. W, 362. Spettigue V. Carpenter. 
 « 1 Vef. 317.
 
 WHEN THE AWARD IS IMPROPERLY MADE. 
 
 34» 
 
 was a partial refult ; his Lordfhip tlicrcforc ordered 
 that G. and M. fhould be examined on intcrrogatoiies 
 before the mailer, Vine having been examined before ; 
 and if it Ihould come out that G. did make tlut decla- 
 ration, he would follow the precedent, and make him 
 pay cofts.' 
 
 Arbitrators had infilled on three guineas a piece 
 to be paid them by each of the parties, before making 
 their award, for their trouble and expenccs. The de- 
 fendant 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 
 dangerous, that they fet alide the award on that ac- 
 count, becaufe if it lliould be fuffcred, it would be hard 
 to dillinguifh what was corruption.^ 
 
 It has been thought that the circumllance of tlie 
 arbitrator's employing the attorney, of the party in 
 whofe favour the award was made, to draw it up, was 
 a proof of corruption : but there is no cafe to that 
 purpofe, nor does it at all appear a fufficient reafon for 
 fetting alide an award : the arbitrator employs the 
 party's attorney as his own : and if this obje£lion were 
 good, it is apprehended a great many awards might 
 be fet afide which are perfe£lly fair." 
 
 If the arbitrators appear to have an interefl in tlie 
 fubjefl of the reference, a court of equity will confider 
 this as a fufficient ground for fetting afide the award. — 
 Therefore, where it appeared that the award related 
 to a cargo, in which the arbitrators were interelled, 
 and that five days after the award made they attached 
 
 ' a VcC zi6— ai8. 8 b. R. H. 54. 2 Barnard. 463. 
 
 * Vid. I Barnard. 4<o.
 
 J'.o 
 
 THE MEANS OV PROCURING RELIEF 
 
 the money awuvdcd for debts owcn to them by the 
 party in whole favour they had awarded, the court fct 
 afide the aw.ird, prefuming that the arbitrators might 
 have fet too great a vahie on the cargo, from the in- 
 tcreft they had in the fubjeft ' 
 
 It is reported to have been faid by Lord Hardwickc, 
 that arbitrators arc not bound to give notice to the 
 parties of the time when, and of the particular place 
 where, they intend to meet: ^ it is not eafy, however, 
 to fee the reafon or jufticc of this obfcrvation. 
 
 In the fame cafe his Lordfhip is reported to have 
 faid, " that the only ground to impeach an award is 
 «' collufion, or grofs mifbehaviour in the arbitrators:" 
 This propofition is certainly not corre<Sl^.^ Without 
 collufion or grofs miiLchaviour, a material miflake in 
 point of fad, an erroneous ftatement of an account, 
 even a plain miflake in point of Jaw, coupled with 
 other circumftances, are grounds for an examination 
 in a court of equity, from the rcfult of which the 
 award may be partially affeftcd in a greater or a lefs 
 degree, and fometimes totally fct afide."^ 
 
 Thus, though a court of equity, where the only 
 objeft of the bill is to fet afide an award, will not per- 
 mit the plaintiiT to difcufs legal objeftions to it, but 
 will confine him to thofc for partiality and corruption ; 
 yet if the bill, belidc praying to fet afide the award, 
 
 « 2 Vern. 251. 
 ' Tittcnfon v. Peat. 3 
 Atk. 497, (ssc-)- 
 
 3 Vid. S. S. Company v. 
 
 Eumftcad. Vin. Aih. 140. 
 
 pl- 39- 
 t Cornforth v. Green, z 
 
 Vern. 750. cited in Ridout v. 
 
 Pain. 3 Atk, 462, (494)-
 
 WIIKN THK AWARD IS IMPROrERLV MADE. 
 
 pray alfo for an account, he will be pcrmiltcd to make 
 legal objcftions in order to let in fuch an account.^ 
 
 If indeed the arbitrators appear to be miftaken in a 
 doubtful point of law, the awariJ may be permitted to 
 Hand, though the court, after great deliberation, fhould 
 be of a different opinion.^ 
 
 And in a late cafe, where no lawyer could doubt 
 upon the point of law, this diftindtion was laid down 
 by the Court of King's Bench : That where the arbi- 
 trators, meaning to follow the law in their determi- 
 nation, happen to miftake it, this is a good reafon for 
 fetting afide their award, fo far as it is affefted by that 
 miftake : but, where knowing what the law is, or 
 laying it intirely out of their confideration, they make 
 what they conceive, under all the circumftances of the 
 cafe, to be an equitable decifion, it is no objcftion to 
 the award that in fome particular point it is manifestly 
 againft law. 
 
 A MAN, having rive grand-children by a deceafed 
 daughter, and a daughter living who had two children, 
 by his will gave to his eldeft grand-Ion, by his deceafed 
 daughter, a legacy of two thoufand pounds, to one ot 
 his grand-daughters by his deceafed daughter two thou- 
 fand pounds, to each of the other three children of 
 his deceafed daughter, and to each of the two children 
 of his living daughter, one thoufand pounds, and to 
 his living daughter a pecuniary legacy, about which it 
 was difputed whether it was intended by the teflator 
 
 > Vid. Champion v. Wcnham. Ambler 245- 
 * Difil. pi Ld. Hardwicke. 3 A:h. 462, (495O
 
 351 THE MEANS OF PROCURING RF.LIEr 
 
 to be one, two, or three thoufand pounds : to his 
 daughter, and to feveral of his grand-children, he gave 
 feveral real cftates, in words which conveyed only an 
 eftate for life to each of the vcfpeclive devifees. There 
 were other bequefts, about which there was no difpute ; 
 and of the refidue of his perfonal property, confifting 
 of various particulars, and amounting in the whole to 
 about twelve thoufand pounds, he made no diipofition. 
 He made his two fons-in-law executors. His eldeft 
 grand-fon by his deceafed daughter claimed the half of 
 the book debts, and a confiderable fum befides, as 
 partner in his trade. The executors refifled this claim ; 
 in confeqacnce of which a general fubmiffion was 
 made to the award of three gentlemen, who were fup- 
 pofed to have been well acquainted with the intentions 
 of the deceafed. The parties to the fubmiffion were 
 the executors of the firft part ; the eldeft grand-fon by 
 the deceafed daughter of the fecond part ; and the fame 
 grand-fon, the hulband of the living daughter, and the 
 reft of the grand-children, and the hulbands of fuch of 
 them as were females and married, of the third part. — 
 The arbitrators, by their award, among other things, 
 for which the award was not impeached, direfled that 
 the feveral devifees of the real eftate fliould hold the 
 feveral parts refpeftiveiy devifed to them, in fee- 
 fmiple ; that the executors fliould pay to the eldeft fon 
 of the deceafed daughter a confiderable fum, as the 
 balance due to him as partner with the teftator ; that 
 they fliould alfo pay him another fum, being the 
 moiety of the book debts due to the partnerlliip ; and 
 that the remainder of the book debts, together with 
 all the refdue of the perfonal property, fliould be 
 equally divided among the fevcn grand-children of the
 
 WHKK THE AWARD IS IMPROPERLY MADE. 
 
 tcftator.^ The fiibmifTion to this award was made a 
 vulc of the Court of King's Bench, under the flatutc. — 
 On the part of the huiband of the deccafed daughter 
 an application was made to the court to fet afidc this 
 award, on thefe objections : — ilrfl, that the arbitrators 
 had declared the cldell grand-fon by the deceafed 
 daughter of the teftator to have been a partner in his 
 trade, whereas, in faiSl, he never had been fiich partner, 
 and the qucftion of partncrlhip had never been dif- 
 culTed by the arbitrators in the prefcncc of the appH- 
 cant ; and, feeondly, that the arbitrators had, in two 
 particulars, taken upon thcmlclves to make a will for 
 the teflator, inflead of explaining what he had made ; 
 firft, that they had given to the fcvcral devifees of tJie 
 real eflates, eftates in fee-iimple, whereas the teftator 
 had given them only eftates for life ; the confequence 
 of which was that the rcvcrfion in fee belonged to the 
 living daughter and to the cldeft fon of the deceafed 
 daughter in coparcenery ; and, feeondly, that they had 
 directed the refiduc of the pcrfonal property to be 
 divided equally among the /even grand-children of the 
 deceafed ; whereas, by the ftatute of dillributions, it 
 belonged, in equal moieties, to the living daughter, 
 and to the Jive grand-children by the deceafed da-Ughtar. 
 The firft objeftion was fully anfwered by the affi- 
 davits of the arbitrators, and of the eldeft grand-fon of 
 the teftator by his deceafed daughter ; and by the fame 
 affidavits it appeared, that with refpetfl to the real 
 eftates the award had only confirmed fome agreements 
 which had been made among the parties themfelvei. 
 
 f Vid. this award in the Appendix, 
 Bb
 
 354 I'HE MEAKS OF PROCURING RELIEF 
 
 With refpeft to the objcdion to the manner in which 
 the aibitr;itois had difpofed of the refiduc of the pcr- 
 fonal property, the court fuggefting the diftinftion 
 above-ilatcd, diredted that the arbitrators fliould make 
 an additional affidavit, and ftate whether they had in- 
 tended to follow the ftatute of diftributions, or had laid 
 it intirely out of their confidcration, and decided on 
 equitable circumftanccs. 
 
 The arbitrators made fuch additional affidavit, in 
 which they ftated, " that in difpoling of the refidue 
 " among the fevcn grand-children they did not con- 
 " ceive they were making any diftribution of it ac- 
 " cording to any fixed rules of law upon the fubjeft, 
 " but that they were dealing out to the feveral parties 
 *' interefted what appeared to them to be, according to 
 " the beft of their judgment, under all the circum- 
 " fiances of the cafe, ilrid and impartial jufbicc, 
 *' agreeably to what they believed to have been the 
 " intention of the teftator." 
 ' The court thought this a fufficient anfwer to the 
 &bje6tion, and difchargcd the rulc.^ 
 
 Where any circumftance is fupprefled by either of 
 the parties, or concealed from one of the arbitrators, 
 and if the arbitrator declare that had he known that 
 circumftance he would not have made fuch an award, 
 that will be a fufficient reafon for fetting alidc the 
 
 8 Ainfley v. GofF. Hilary 
 Term, 1799. — In this cafe the 
 court afted as a court of 
 equity. It might have been 
 taken as a preliminary ob- 
 jeftion to the application that 
 
 the court could not under the 
 ilatute enter into legal objec- 
 tions to the award in this 
 ftage ; but that obje£i:ion was 
 not ftarted. — Vid.ante p. 341, 
 342.
 
 WHEN' THE AWARD IS IMPROPERLY MADE. 355 
 
 award. Thus where certain marriage articles were 
 Ihcwn only to one of tlie arbitrators, and the other 
 after the award made declared that, had he fcen the 
 articles, he would not have confented to the award — ■ 
 Lord Hardwicke fet the award afide.' 
 
 On a fubmiffion at nlfi prius of all matters in diffe- 
 rence between the parties, the arbitrator, on fettling all 
 articles of account, found one of them indebted to the 
 other in a fum of 50I. but that the party fo indebted 
 was fecurity for the other in a bond; he therefore 
 awarded that the party indebted fhould pay the 50L 
 but not until the other had either difcharged the bond 
 or indemnified the fecurity againft it. At the time of 
 the reference the party indebted was in Ireland, and 
 the matter was conducted on his behalf by his attorney, 
 who was not acquainted with any other circumftance 
 than thofe laid before the arbitrator ; the party to 
 whom the money was awarded indemnified the other 
 againfl the bond or difcharged it, and then brought an 
 aftion for the 50I. holding the other to bail: it was 
 then difcovered that the defendant was bound as a 
 fecurity for the plaintiff, in another bond to a confide- 
 rable amount ; a circumflance which was within the 
 plaintiff's knowledge at the time of the referenc^^ ]?ut 
 which he had concealed. The arbitrator now ivvore 
 that had this circumflance of the other bond been laid 
 before him, he would not have awarded the 50I. with- 
 out providing that the plaintiff fhould either difcharge 
 the fecond bond, or indemnify the defendant againfl it. 
 (Jn thefc circumflances being ftated to the court, they 
 
 9 I Atk. 77, (64-) 
 B b 2
 
 !56 THE MEANS OF VROCURING RELIEF. 
 
 granted a rule to ilicw cauie : but the event I have not 
 heard/ 
 
 In the two cafes immediately preceding, it was al- 
 leged, that the arbitrator had declared, " that had he 
 been acquainted with the fads concealed he would 
 have made a different award." The two following 
 cafes, however, fhew that fuch an allegation is not 
 necciTary, and that it is fufficient " that, from the 
 nature of the fa6ts concealed, it may be rcafonabJy 
 fuppofed his award would have been different." 
 
 In the time of Lord Talbot a bill was hied in Chan- 
 cery for an account againft the defendant, as Super- 
 targo of the South Sea Company. At the hearing all 
 matters were referred, an award was made, and mu- 
 tual releafes executed. The plaintiffs exhibited a new 
 bill, fuggefting, that fince the award they had received 
 information of cffefts to the value of 119,000 dollars, 
 concealed by the defendant from the arbitrators. 7'he 
 defendant pleaded the award and releafes, and an- 
 fwered that the account taken by the arbitrators was 
 fair and juft, but did not anfwer to the concealment 
 particularly mentioned in the bill. Lord Talbot, after 
 remarking that by the exprefs v.'ords of tlic ftatute 
 aw' ^'h were to be fet afide only for partiality or cor- 
 ruption in the arbitrators, declared that this rule was 
 too confined to be applied to a bill filed in a court of 
 equity, and that there were other reafons equally co- 
 gent — fuch were fraud and concealment in either of 
 the parties. It was true, he faid, that arbitrators were 
 ill the nature of judges, and in fome refpefts had a 
 
 M. 1790. B. R.
 
 \vHK>f thp: award is improperly Made. 357 
 
 <^rcatcr latitude, not being toniinod within the rules of 
 a couit of hivv or equity, and therefore might make 
 fuch allowances as could not he admitted in the courts 
 of judicature: but, as at law, where a judgment is ob- 
 tained by fraud or furprize, nothing was more commoa 
 than to fet the judgment afide ; and, as upon decrees, 
 bills of review were daily brought in this court, where 
 evidence had arifen, which could not be obtained at 
 the time of the decree ; fo there was the fame rcafon 
 in tlie cafe of awards. In the prefent cafe it could not 
 be imagined that the defendant had accounted for the 
 matters in queftion, and that this mull have occafioncd 
 a confiderable difference in the award. For thefe 
 rcafons the plea was overruled, and the defendant 
 ordered to anfwer.- 
 
 An annuity had been granted, payable out of certain 
 eftates, of which part came afterwards to the plaintiff 
 and part to the defendant. Difputes having arifen re- 
 fpcfting the proportions in which this annuity was to 
 be paid, a bill was filed in the Court of Exchequer, 
 praying a decree for the apportionment of the pay- 
 ments ; the parties fubmitted to have the queflion 
 referred, by order of the court, to arbitration ; the 
 appointment was of courfc to be regulated by the re- 
 fpeftivc values of the parts of the eftate in the hands 
 of the parties. An award was made : a bill was after- 
 wards filed by the plaintiff, charging that the defen- 
 dant, in the account he had laid before the arbitrators 
 of the particulars of the eftate in his hands, had fup- 
 prefTed feveral parcels, and wilfully mifreprefented its 
 
 9 Southfea Company v. BumpfteaU. 2 Eq. Ca. Abr, So, 
 B b 3
 
 ;58 
 
 THE MEANS OF PROCURING RELIEF 
 
 extent and value. The bill further charged that the 
 plaintifF had not till lately difcovered the fraud, and 
 prayed to have the matter opened. One menTber of 
 the court,^ obferving that the plaintifF alleged a ma- 
 terial part of the circumilances of the cafe to have been 
 unknown to him till after the award, faid it might well 
 be queftioned whether this alone would have been fuf- 
 ficlent to let in further inquiry; but they all agreed 
 that the fubfequent charge of wilful concealment by 
 the defendant ought to preclude him from having any 
 benefit from the award ; that the fuggeftion was, that, 
 according to the principle of decifion aftually adopted 
 by the arbitrator, he muft have drawn a difi'crcnt con- 
 clufion if he had not been deceived, and therefore 
 they thought that the fact of the concealment lliould 
 have been inveftigatcd.-* 
 
 One cafe is reported where a court of equity fct 
 afide an award, principally on the ground of exceiTive 
 damage. The plaintifF in the bill had called the de- 
 fendant, who was a butcher, a bankrupt knave ; the 
 matter was fubmitted to arbitration, and the arbitrators 
 gave tine butcher 49 5I. to. repair his honour. The 
 Court of Chancery thought this exceiTive, and let afide 
 tlie award,, and direftcd a trial at law, and the jury 
 (rave him lol.^ One of the bdoks,^ however, in which 
 tliis cafe is mentioned, fays that the court did not fet 
 afide the award merely for exceffive damages, but be- 
 caufe it appeared that one of the referees was the 
 
 ' Mr. Baron Thomnfon. 
 
 4 Gartfule v. Gartfidc. 3 
 Anftr. Rep. Exch. 735. 
 
 5 Butchcir of Croydon's 
 
 cafe. 3 Chan. Rep. 76. 2 
 Vern. 251. i Eq. Ca. Abr, 
 49. ("io.) 
 ^ Vern. 254.
 
 WHEN THE AWARD IS IMPROPERLY MADE. 
 
 359 
 
 butcher's coufin : yet it muft be obferved, that the cx- 
 ccfs of damages muft have been the principal rcafon, 
 becaufe it is certain the relationfhip of the arbitrator 
 to the party is not a rcafon for impeaching an award. 
 
 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 arc the foundations of relict in our courts,'' 
 
 ^Vhere the fubmiffion is under the ftatute or by 
 reference at niji prlusy the court will liften to an appli- 
 cation to have the award fcnt back to the arbitrator to 
 rcconlider it, on the fuggeftion that he had not fuf- 
 ficicnt materials before him ; and perhaps too, to 
 reftify any tritiing or apparent miftakc : but when the 
 fubmiirion is according to the ftatute, fuch application 
 muft be made, within the time thereby prefcribed, 
 though no mifcondud be imputed to the arbitrator.^ 
 
 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 
 
 ■ Ita demum autem com- 
 mittetur ftipulatio, cum ad- 
 verfus earn quid fit, fi fine 
 dolo malo ftipulaniis factum 
 eft : fub hac enim coaditione 
 committitur ftipulatio, ne quis 
 doU iui praemiiim ferat. Sed 
 fiquidem com prom iiro adjici- 
 atur, Squill dolo in ea re fadum 
 Jit: ex ftipulatu coaveniii, 
 qui dolo fecit, poteft. Et 
 idco, fi arbitruin quis corrupit 
 vel pecunia, vel ambit ione, 
 vel advocatum diverfa: partis, 
 vel aliquem ex his quibus 
 caufam fuam commiferatj vel 
 
 fi adverfarium callide circum- 
 venit. Et omnino fi in hbc 
 lite dolole verfatus eft : locum 
 habebit ex ftipulatu aftio. Et 
 ideo, fi velit de dolo adionem 
 exercere adverfarius : non de- 
 bebit cum habeat ex ftipulatu 
 aftionem. Quod fi hujufmodi 
 claul'ula in compromifTo ad- 
 fcripta non eft, tunc de dolo 
 a6lio, vel exceptio locum ha- 
 bebit. Hoc autem compro- 
 milTum plenum eft, quod et 
 doli claufulffi habet ni'.n- 
 tionem. — Ff. I.4. t. 8. f. 3 i. 
 ® 2 Tcim. Rep. 781. 
 
 E b 4
 
 THE MEAN'S OF PROCURINT, RELIEF 
 
 for fuch a court to fet it afidc ; as if it concern an 
 
 infant, to whom a fum of money is awarded ; and it is 
 
 alfo awarded <hat the guardian (hall give a bond that 
 
 the infant fhall, at his full age, convey certain land in 
 
 difpute: for this, it has been faid, is inequitable, 
 
 bccaufe the infant may die, or if he live to full age, 
 
 may refufe to convey.'* 
 
 How fur an In OUT books mcntion is frequently made 
 
 .-iiunid may witli approbation of a maxim adopted from 
 
 be jtieaded to ^j-jg ^ivil law, " that, that againft which 
 
 /"■' ^' ii I'clief is prayed cannot be pleaded in bar 
 fit it aj'ide. ^ •' '■ 
 
 " of fuch relief." ' Yet there are two 
 
 cafes to which this maxim feems peculiarly applicable, 
 
 but in which it has feldom prevailed ; 1 mean tlie cafe 
 
 of an award, and the cafe of a releafe. 
 
 The learned author of " a treatife of the pleadings 
 
 by Engliih Bill," following the authority of decided 
 
 .cafes,* has without any comment expreflive of difap- 
 
 probation, laid down, ift, " That an award may be 
 
 '' pleaded to a bill to fet afide the award, and open the 
 
 *' account ; and that it is not only good to the micrits 
 
 " of the cafe, but likewife to the difcovery fqught by 
 
 «• the bill. But that if fraud or partiality be charged 
 
 " againft the arbitrators, thofe charges muft not only 
 
 " be denied by way of averment in the plea, but the 
 
 " plea muft be fupported by an anfwer Ihewing the 
 
 " arbitrators to have been incorrupt and impartial." — 
 
 2dly, " Tliat if the plaintiff has relcafed the fubjecl of 
 
 '' I Ca. Ch. i79, iSo, 
 Non compet"?: cxceptio cjufdem rci, cujus petitur diffbluiio, 
 - ?, Atk. 39:;, '^01.
 
 WHEM THE AWARD IS IMPKOPFULY MADF.. 361 
 
 «' his demand, the defendant may plead the rclcafc ia 
 *' bar of the bill which prayed that the releafe might 
 " be fet ahdc, notwithftanding the objection that a plea 
 ♦' of the releafe is in inch a cafe exceptio c'jufdem rcl 
 " cii'jus petitur dijj'olutio.'" ^ 
 
 Having, without fuccefs, taken a great deal of 
 pains to reconcile this doftrinc to my own notions of 
 propriety and conliflency in pleading, I will detail the 
 moft remarkable of the cafes 1 have been able to lind 
 on the fubicil, and fubmit a few remarks to the con- 
 fidcration of the reader. 
 
 A. and li. partners in a concern of buying and felling 
 diauionds in France in the year 17 19, having fome 
 difputcs, fubmitted them to arbitration ; the arbitrators 
 made their award, with which A. not being fatisfied, 
 iiled a bill in chancery againfl B. and the arbitrators 
 for an account, and to have the award fet afide : B. as 
 to the account pleaded the award ; and the arbitrators, 
 as to a difcovcry of fevcral particulars prayed by tlic 
 bill, and as to any relief againft t/^em, pleaded the 
 fubmiflion, and that by confcnt, it was made an order 
 of this court. — The Lord Chancellor allowed B.'s plea 
 as to the account, but over-ruled the plea of the arbi- 
 trators as covering too much, that is to fay, fcveral 
 particulars, which might tend to fhew a partiality in 
 their proceedings.^ 
 
 Had the bill taken no notice of the award, but 
 prayed merely for an account, I can fee the good fenfe 
 
 3 Mitford 109. 
 
 4 Godfrey v. Boucher, 4 G. 2. 3 Vin. Arb. 139, p!. 33. cited ; 
 
 Efj. Ca. Abr. 92. pi. 4,
 
 •»62 THE MEANS OF PROCURING RELIEF 
 
 of allowing the former to be pleaded in bar of the 
 latter, provided the former cannot be impeached on 
 any of the grounds on which an award may be im- 
 peached : but here the bill Hates the award, v/ith 
 reafons of complaint againft it, and prays that it may 
 be fet afide as a preliminary ftcp towards taking the 
 account. — I cannot underftand how the award itfclf, 
 the very objcft of complaint, fliould be fct up as an 
 obftacle to relief againft that complaint. 
 
 In 1)30 a bill was filed by the South Sea Company 
 
 againft Bumftcad, one of their fupercargos : at the 
 
 hearing all matters were referred ; an award was made, 
 
 and mutual rcleafes were executed. — The Company 
 
 l>rought a new bill, fuggcfting that fince the award, 
 
 they had received information of cfrefts to the value 
 
 119,000 dollars, concealed by the defendant from the 
 
 arbitrators. The defendant pleaded the award and 
 
 releafes, and anfwered that the account taken by the 
 
 arbitrators was fair and juft, but did not anfwcr to the 
 
 concealment particularly mentioned in the bill.— Lord 
 
 Chancellor Talbot faid, " It is a rule, and fo are the 
 
 *' exprefs w^ords of the ftatute, that awards made 
 
 *' between parties Ihall not be fet afide but for cor- 
 
 " ruption or partiality in the arbitrators ; but there arp 
 
 *' other reafons equally mifchievous and proper for 
 
 " relief in this court ; as where there is fraud or con- 
 
 *' cealment in either of the parties. It is true arbi- 
 
 *' trators are in the nature of judges, and in fome 
 
 *' refpefts have a greater latitude, not being confined 
 
 " within the rules of law or ccniity, and therefore may 
 
 " make fuch allowances as could not be admitted in 
 
 'f courts of judicature ; but as at law, where judgments 
 
 " are obtained by fraud or furprizc, nothing is more
 
 rHF.N THE AWARD IS IMPROPERLY MADE. 
 
 363 
 
 '' common than to fct the judgment afide ; fo upon 
 " decrees, bills of review are daily brought in this 
 " court, where evidence arifes which could not be 
 *' obtained at the time of the decree : there is the fame 
 " reafon in the cafe of awards ; and in this cafe, it 
 <' cannot be imagined that the defendant had accounted 
 " for thcfe matters, fuppofing the fa£l to be true, for 
 " this would have occafioned a confiderable difference 
 " in the award:" for this reafon the plea was over- 
 ruled, and the defendant ordered to anfwer.^ 
 
 The plea, therefore, was over-ruled ; not bccaufe it 
 was confidercd as improper in itfelf, but becaufe it was 
 not fupportcd by an anfvver to the charge ot conceal- 
 ment. Had thit charge been anfwered, the plea would 
 have been fuftained : but it may be remarked that had 
 anfwered, the charge been the plea would have been 
 unnecelTary. 
 
 Sir Edward Defbouvrie, a freeman of London, pof- 
 fcifed of a very great perfonal eftate, had a wife, a fon, 
 and a daughter. He compounded with his w^ife as to 
 her cuflomary fliare, and made his will, by which he 
 gave to his daughter io,oool. upon condition that flie 
 fhould relcafe her orphanage part, together with all 
 her claim or right to his perfonal eftate by virtue of 
 the cuftom of the city of London, or otherwife, and 
 made his fon executor, his daughter being about 
 twenty-three years of age. 
 
 After the death of the teftator, the daughter 
 agreed with her brother to accept the legacy on the 
 
 s South Sea Company v. 
 Bumftead, i; March, 1734. 
 2 Eq. Ca. Abr. 80. pi. 8. 3 
 Viii. Arb. 140. p. 39. not fo 
 
 diftinftly reported in the lat- 
 ter book as in the former. 
 Vid. this cafe ante, p. 356.
 
 564 THE MEAN'S OF PROCURING RELIEF 
 
 terms on which it was given her by her father's will : 
 a relcafe was accordingly prepared, and before fhe 
 executed it, her brother informed her, that flie had it 
 in her eleftion, to have an account of her father's 
 pcrfonal eftate, and to claim her orphanage part. — 
 She declared fhe would accept of the legacy, that being 
 a fufficient provifion for any young woman ; fhe exe- 
 cuted the releafe, and her brother paid to her the 
 lo,oool. with interefl. — She afterwards married an 
 attorney, who filed a bill to have this releafe fet afidc, 
 charging that the pcrfonal eflate of which the father 
 died poffefTed, was much above ioo,oool. the daughter's 
 Ibare of which bv the cuflom would, under all the 
 cireumflanccs of the cafe, amount to upwards of 
 40,0001. 
 
 'J'he brother, the defendant, pleaded this releafe. 
 
 On behalf of the plaintiff it was argued, that as the 
 bill was filed for the purpofe of having this releafe fet 
 afidc, the defendant ought not to be admitted to plead 
 it in bar, the rule being " non potcft adduci exceptio 
 ** ejufdem rei cujus petitur difTolutio." But the Lord 
 Chancellor interrupted the counfel, faying, this was 
 every dyy's pradfice ; and that otherwife " no releafe 
 " or award could be pleaded to a bill that was brought 
 *' to fet afide the famc."^ — The maxim being adopted, 
 the confequence is inevitable, " that no releafe or 
 award can be pleaded to a bill brought to fet them 
 afide:" and T think it is againfl good fcnfe to permit 
 them to be fo pleaded. 
 
 ^ Pufey V. Sir Edward Deftouvrie, 3 P. Wms, 315, 316-.
 
 W HEV THE AWARD IS IMPROPERLY JIADE. 36c 
 
 LiNGooD and Eadc had been partners in trade; 
 upon the diffokition of the partnerfhip, Ionic difpuLes 
 ariling, a fuit in ehancery was for lonie time carried 
 on between them ; in the couvfc of which a propofal 
 was made and accepted, of rcferriug all matters in 
 controverfy, and the fubmiffion was made an order of 
 that court : one condition was that the arbitrators 
 Ihoqld be reilralned from bringing a bill in equity 
 againft tlie arbitrators: they awarded that 9150I. were 
 due to Eade on the balance of accounts: Lingood 
 brought a bill againil the arbitrators and Kadc, charoinor 
 corruption and partiality, and praying that they might 
 fet forth the general accounts between the plaintiff and 
 the defendant Eadc relating to the partnerlhip. — To fo 
 much and fuch part of the bill as fought a general 
 account the defendants refufed to make dlfcovery, and 
 pleaded the award in bar. 
 
 The bill further prayed a difcovcry on what account 
 or accounts of the parties the arbitrators founded their 
 award. 
 
 To this part alfo, they refufed to difcovcr, and 
 pleaded the award itfelf in bar. 
 
 Lord Hardvvickc is reported to have faid : " llicrc 
 " are many inftances in this court, where arbitrators, 
 *' to a bill charging corruption and partiality, may 
 *' plead the award in bar to the difcovcry ; but then it 
 *' is incumbent upon them to fupport their plea, by 
 ** fhewing tliemfelves incorrupt and impartial, or other- 
 *' wife the court will give a party a remedy, by making 
 ♦' arbi'.rators pay cofts." 
 
 *' The great doubt with me is, as this award fecms 
 *' executory and not fjnai, whether it is a good award
 
 365 
 
 THE MEANS OF PROCURIN'G RELIEF 
 
 ** at law, then how can the arl^itrators plead it in bar 
 " to the difcovcry, prayed by the hill ? " ^ 
 
 Here it may be remarked, that an award can onlv 
 be impeached cither from objeftions appearing on the 
 face of it, or from extrinlic circumllances, fiich as 
 improper conduft in the arbitrators, or concealment in 
 one of the parties : if the plaintiff feck to' fct alide the 
 award from any alleged intrinfic defeft, he will, of 
 ncceffity, expofe fuch dcfe£l by his bill : if in doing 
 this he fet out the vjJloIc award fairly, it fecms altogether 
 irreconcileable to common fenfe, that the defendant 
 fliould be permitted to anfwer the complaint againft 
 the award, by pleading the award itfelf with all its 
 alleged defers. — In fuch a cafe, if the defendant think 
 he can fupport the award on its intrinfic merits, the 
 proper mode of doing this feems to be, to demur to 
 the bill. — If the plaintiff fct out the award partially, 
 ilating only fuch parts as he fuppofcs, taken by them- 
 felve's, would render the award void, this may fome- 
 times be anfwcrcd by the defendant, by flating fuch 
 other parts as, coupled with the apparently faulty parts 
 flated in the bill, would render the whole valid : but 
 I apprehend this might as well be done by anfwer as 
 by plea.^ 
 
 When the ground of impeaching the av/ard arifcs 
 from extrinfic circumllances flated in the bill, the 
 above didum admits that the mere ftatement of the 
 
 7 Lingcod v. Crouchcr. 2 
 Atk. 395, (411-) 
 
 8 This reafoning proceeds 
 on the affumption that a bill 
 will lie to fet afide an award 
 
 merely fr^m objeftions ap- 
 pearing on the face of it, 
 which however, it has been 
 feen, is not the cafe, — Vid. 
 ante, p. 327.
 
 WHEN THE AWARD IS I M V R O I'F. R I. Y MADE. 
 
 367 
 
 award by way of plea is not fuflicicnt without a denial 
 of thofe extrinfic circumflances in fupport of it. As 
 the complaint againft the award arifes from thofe ex- 
 tn'rtfic circiimftanccs only, 1 apprehend the mere denial 
 of them, zvithout a plea, would be -a fiifficient anfwcp 
 to the bill. 
 
 LiNGooD had preferred his petition to fet afide the 
 award in the matter between him and Eade;'' this 
 petition was difmiffed, but without prcjudiee to his 
 bringing a bill for the fame purpofe : he brought a bill 
 accordingly againil: the arbitratoi-s and'Eade, by which 
 he prayed that he might have infpeftion of all the 
 accounts, from \x\\\c\\ the arbitrators framed their 
 award ; that the award might be fet afidc, and that the 
 defendant Eade might account generally for all tranf- 
 aftions during his partncrfliip with the plaintiff. 
 
 Eade pleaded, that in former caufes between him 
 and the plaintiff in this court, an order was made the 
 1 8th of November 1740, at the requeft and by the 
 confent of the parties, that all matters in difference be- 
 tween them relating to their joint dealings, or otherwife, 
 fhould be referred to certain perfons whom he nam^d 
 in his plea, the award to be made on the firft day of 
 May then next; that by a fubfequent order of court, 
 with the confent of the plaintiff's counfel, the time 
 for making the award was enlarged till the firfl of 
 "Movembcr, and by a third order till the firff of Febru- 
 ary ; that the arbitrator^ met 45 times, the plaintiff 
 
 9 The reference muft, 
 therefore, have been made 
 under an order of the court, 
 in the courfc of a caufe 
 
 depending, otherwife the 
 court could not have cnicr- 
 taincd this petition.
 
 368 THE MEAKS OF PROCtTRrKG RELIEF 
 
 and defendant being prefcnt at the greateft number of 
 
 the meetings, and having fully heard and examined 
 
 the plaintiff and the defendant, and their feveral wit- 
 
 nefTes, made their award within the time limited : and 
 
 among other things declatcd that they had taken an 
 
 account of the outftanding debts due to or owing by 
 
 or from the complainant and the defendant, or either 
 
 of them, on account of their joint dealings, and they 
 
 awarded that each fliould pay and difcharge one equal 
 
 moiety of the feveral debts therein mentioned ; that is 
 
 to fay, to Samuel Torin 92I. los. c^d. to Slingfby 
 
 Bethel 82I. 18s. 2d. and to John Hide 15I. which the 
 
 faid arbitrators found to be then remaining due from 
 
 the complainant or defendant, or one of them, on their 
 
 joint accounts, be the fame more or lefs than as above 
 
 mentioned. 
 
 That tlic arbitrators have fet forth in a fchedule to 
 
 their award, an account of fundry debts and effcfts 
 owing to the partnerfliip, amounting to 5094I. 14s. 2d. 
 
 which debts and fecurities they awarded to belong in 
 moieties to the plaintiff and the defendant ; and for 
 tl;-e better getting in the fame, the arbitrators recom- 
 mended to the defendant and complainant to confent 
 that an order might be made by this court for the 
 appointment of a proper perfon, converfant in mer- 
 cantile affairs, to colleft in the fame for their joint 
 ufe ; and in cafe either of the parlies fhould refufe to 
 confent thereto, the arbitrators did make it their hum- 
 ble requeft to this court to order the fame, as the mofl 
 probable means of preventing future litigation between 
 the parties. 
 
 That the ' arbitrators did award and declare, that 
 exclufively of the above matters, there was then due
 
 WIIF.N THE AWARD IS I M P U PF. R I, V iMADE. 369 
 
 from the plaintiff to the defendant the fum of 
 9194I. 19s 6d. on a jufl balance, which they awarded 
 to be paid by the plaintiff to the defendant by inftal- 
 nients of 2000L on each payment, with inteieft at 4I. 
 per cent, from the fccond of the fame February. 
 
 That lallly they did award, that upon payment of 
 tlie faid fum of 9194!. 19s. 6d. the plaintiff and de- 
 fendant fhould mutually execute and deliver to each 
 other refpeftively a good and fufficient releafe and 
 difchargc, (the form to be fettled by one of the maflcrs 
 of this court, in cafe this court fhould be pleafed to 
 give diredlions for the fettling thereof ), wliereby the 
 faid parties fliould rcfpcclivcly releafe to each other 
 all matters in difference between them relating to their 
 joint dealings, &c. 
 
 " The defendant for pica further faith, that all the 
 "faid particulars fo awarded are fair and jull:; all 
 *' which matters and things he pleads in bar to the 
 " plaintiff's bill, and fubmits to the court, whether he 
 " is obliged to make anv other or further anfvvcr." 
 
 The validity of tlxis ])lea being argued before Lord 
 Hardwickc, on the validity of the award, his Lordfhip 
 exprelTed himfelf thus : " Though the bill is brought 
 *' for two purpofes, yet one is confequential to the 
 " other. I irft to fet afidc the award. Secondly fur a 
 '* general account. 
 
 '- The prayer of the bill to fet afidc the award mull 
 *' be founded upon the fraud, corruption, or miflse- 
 " haviour of the arbitrators ; for it v^ould be improper 
 " to come into this court to fet it afide merely for an 
 *' objeftion in point of form. The other part of the 
 " bill is the original right the party had before the 
 *' award." 
 
 c c
 
 370 THE MEANS OF PROCURIKG RELIEF 
 
 " I MUST confider the plea as it is pleaded to the 
 " latter part of the bill, the general account. For to 
 ♦' be fure, the plaintifF is inlitled to an account, uniefs 
 " the award is a bar ; and therefore the court muft 
 " enter into all the legal objc^lions againfl the award, 
 " which a court of law would have done, as it is in- 
 " lifted on by the plea to prevent the general account." 
 
 That the bill was brought for two purpofcs ; to fet 
 afide the award, and for a general account ; and that 
 the latter was confequential to the former : that the 
 prayer of the bill to fet afide the award muft be 
 founded on the fraud, &c. of the arbitrators ; that it 
 would be improper to go into a court of equity to fet 
 afide an award merely for an objeftion in point of 
 form ; and that the other part of the bill is the original 
 right the plaintiff had before the award : all this I 
 underftand. — 
 
 Had the bill been brought to have an account on 
 the mere ftatement of the original tranfiidtions without 
 taking any notice of the award, and had the defendant 
 pleaded the award in bar of that account, then I could 
 have underftood that the whole queftion before the 
 court was the legal validity of the award : and the 
 award being pleaded to a bill feeking to fet afide the 
 award, and to have an account, I can alfo underftand, 
 that unlefs that award be proof againft all legal objec- 
 tions, it fhall not be admitted as a plea in bar of the 
 account : but admitting the award thus pleaded to be 
 ever fo valid in point of law, I canws/ underftand why 
 it JJiould be admitted as a plea in bar of the account, 
 when the very foundation of the complaint againft it 
 is not its legal invalidity, but fome extrinfic circumftance 
 which renders it inequitable that the plaintiff fliould be 
 bouad by it.
 
 WHEN' THE AWARD IS IMPROPERLY MADE. 371 
 
 Lord Hardwicke himfelf, indeed, feems in a con- 
 fiderablc degree to have confidered the fubjeft in the 
 fame Hght ; for, though after having minutely ex- 
 amined all the legal obje6lions to ti.e award, he faid 
 ** he was of opinion it was good to a common intent, 
 " and that the plea confequently mufl be allowed 
 *' ag.iinft the general account ; " yet he added, *' that 
 " the plaintiff was not precluded at the hearing of the 
 *' caufe from objecting to the award for fraud or par- 
 *' tiality in the arbitrators :" which was in effeft ad- 
 mitting that the plea of the award fhould not ftand in 
 the way of the plaintiff's having a general account, 
 if he could effeftually impeach it from extrinfic cir- 
 ciimflanccs.' 
 
 In a fubfequent cafe,* reported by the fame re- 
 porter, from whom the two cafes immediately preced- 
 ing are taken, the nature of the bill is not ftated ; it is 
 limply alleged that the defendant pleaded an award. 
 
 The Lord Chancellor fays, " a plea of an award is 
 " not only good to the merits of tlie cafe but to the 
 *' difcovery ; for a defendant to the bill is not obliged 
 ♦' to fct out the whole account between him and the 
 " plaintiff, after an award in his favour, in relation to 
 *' that very account, for that is conclufive to all the 
 •' parties, till an error is fhewn in taking the account, 
 " or partiality and improper behaviour in the arbitra- 
 *' tors ; and if any particular error is pretended, the 
 " plaintiff ought to charge it with all its circumflances, 
 " nor is he precluded from moving it now if he has 
 *■' evidence that will amount to it." 
 
 pB^ « Lingood V. Eade. 2 Atk. 501, (515.) 
 
 ' Tit:enfon v. Peat. 3 Atk. 496, (519-) 
 C C 2
 
 3'^-i' HE MEANS OF PROCURING RF.LIEK 
 
 To all tliefe obiervations, taken as independent pro- 
 portions, 1 can eafiiy affent ; and if the bill had been 
 merely for an account, without taking any notice of the 
 award, I think they would have been properly ufed in 
 fupport of the plea : but Lord Hardwicke's obfer- 
 vations in another part of the cafe, with refpeft to the 
 grounds on which an award may be impeached, fliew 
 tliat the bill was to fet afide an award as well as for an 
 account. 
 
 On the fuppofition that an aw'ard may be pleaded to 
 a bill filed for the purpofc of having it fet afide, it has 
 been qucflioned how far fuch a plea is proper without 
 containing averments, denying the charges in the bill, 
 of circumftances extrinfic to the award. 
 
 In a cafe at the Rolls, June 1786,^ it appeared, that 
 to fet afide an award on the ground of coilufion, and 
 want of notice to the plaintiff to attend at the making 
 of the award, the defendant pleaded the award, and 
 that the plaintiff had full notice ; that an agent from 
 him attended, and there was a full difcuffion before 
 the award was made. There was alfo an anfwer con- 
 taining fimiUiT averments of the fairn(?fs of the tranf- 
 aftions. It was objedled that it was improper thefe 
 averments Ihould be both in th<? anfwer and plea ; but 
 his Honour overruled the objection, obferving that an 
 award nakedly pleaded would be " exceptio cjufdcm 
 rei cujus petitur dilfolutio," and is no full bar to the 
 demand without denial of collullon and partiality. 
 
 A BILL filed to open an occount for fraud ftated par- 
 ticular inflances of error and fraud in the account, and 
 
 3 Butcher Y. Cole, before Sir Lloyd Kenyon, cited x Anftr. Re^^: 
 ia the Exchequer. 99.
 
 WHEN THE AWARD IS IMPnoPKULY MADE. 37J 
 
 that there had been a reference and an award, but 
 charged that there would not liavc been fuch an award 
 if papers had been produced which had been withheld 
 by the defendant. 
 
 To this bill the defendant pleaded the award, and in 
 the plea alfo ftated a rcleafe of the mutters contained 
 in the bill. 
 
 The Lord Chancellor* allowed the plea.* 
 
 A BILL filed in the Exchequer for an account fct 
 forth an award, and charged that it was obtained cor- 
 ruptly, fpecifying the corrupt tranfadlion. The defen- 
 dant pleatled the award, denying corruption and all the 
 particular inftances fpccially, by way of averment ; and 
 alio put in an anfwer to the fame points, as the fpecial 
 averments in the plea. 
 
 An objeftion was taken by the Lord Chief Baron,*' 
 that the anfwer overruled the plea. It was argued, 
 that it was neceflary that the plea fhould be a complete 
 bar, and alfo that it fhould be fupported by an anfwer 
 denying the fpecial charge of corruption ; and at all 
 events, if thefe averments in the plea were not ne- 
 cefTary, they were to be rejefted as furplufage. 
 
 To this the court obferved, that the meaning of a 
 » plea is to let the party ftand upon a fingle point, 
 which bars the whole demand, without going into an 
 anfwer as to the reft of the bill ; but that this intent 
 would be totally defeated if the plea were allowed ta 
 contain averments denying the whole charges of the 
 bill, tending to impeach the award. ^ 
 
 4 Lord Thurlow. 
 AS Burton V. Ellertoa. 3 BrownCha. Rep. 196. 16 Jan. 1791. 
 * Eyre. ^ Pope v.Bufli. i Anftr, 59. 
 
 c c 3
 
 374 THE MEANS OF PROCCRIKG RELIEF 
 
 I APPREHEND this to be the corre£l defcription of a 
 plea ; but the true confequence feems to be, not that 
 an award pleaded nakedly is a proper plea to fuch a 
 bill, but that the award ought not in any fliape to be 
 pleaded to a bill filed to fet it afide. 
 
 A BILL filed to fet afide an award, and open tranf- 
 a6Vions, flated many circumftances of improper con- 
 duft in the arbitrators. The defendant pleaded the 
 award, and in his plea denied colkifion, and all the 
 charges of mifconduft. To this pica there was joined 
 an anfwer denying fpecificaily all the fame charges, and 
 flating the fame things contained in the averments 'n-\ 
 the pica. 
 
 In obje6tion to this plea, the cafe immediately pre- 
 ceding was cited as an authority; and in favour of it 
 the counfel for the defendant relied on the cafe at the 
 Rolls. 
 
 The court confidered themfelves bound by their 
 own decifion to hold that the award muft be pleaded 
 nakedly, but declared they did not mean to extend 
 this rule beyond the cafe of awards ; and thinking it 
 would be too much to overrule a plea on this objeftion, 
 therefore gave the defendant leave to amend, if the 
 plaintiff Ihould infift upon it, otherwife to be good by 
 confent.^ 
 
 A BILL was filed to fet afide an agreement and re- 
 ieafe, flating circumllances of impofition and equitable 
 durefs in obtaining them. The defendant pleaded to 
 the whole, the agreement and releafe : there was no 
 anfwer, nor was the fraud or durefs denied in the plea. 
 
 • Edmunfoa v. Hartley, i Anftr. 97,
 
 WHKN THE AWARD IS IMPROPERLY MADE. 371; 
 
 The court overruled the plea, and leave being 
 prayed to amend they refufed it, faying it was a prac- 
 tice not be encouraged.'' 
 
 The defendant put in a new plea, of the relcafe 
 alone, to fo much of the bill as fought difcovery of 
 tranfa^ions prior to the agreement, and to the whole 
 relief fought, accompanied by an anfwer denying the 
 whole equity charged as to the manner of obtaining the 
 agreement and releafe.' 
 
 Here it may be remarked, that in the firft cafe tlie 
 court, by overruling the plea, fcem to have a6ted com- 
 pletely on the maxim " baud competit exceptio ejuf- 
 dem rci cujus petitur diffolutio;" and that in the fe- 
 cond, the plea of the releafe in bar of the difcovery of 
 tranfadl'ions prior to the agreement did not contradift 
 that maxim, becaufe it was not pleaded as a reafon why 
 the releafe itfclf fliould not be fet aiide, nor in bar of 
 the difcovery of the circumftances under which that 
 and the agreement had been obtained. The court, 
 however, did not enter into the validity of the plea : 
 but a motion being made that this fccond plea and 
 anfwer might be taken off the file, as being irregular, 
 and contrary to the former order of the court in over- 
 ruling the firft plea, the Chief Baron expretfed his ap- 
 probation of the motion ; and the reft of the court 
 doubting, the cafe ftood over, and was never mentioned 
 again. 
 
 A Bill filed ^n the Exchequer to fet afide an award 
 ftated that the plaintiff and defendant were partners in 
 
 9 Freeland v. Johnfon. : Anflr. 276. 
 » Cafe between the fame parties, z Anftr. 40" 
 
 C C 4
 
 TTIE MMAVS of procuring RELIEF 
 
 trade, and agreed to dilT^olvc their partncrfhip, and that 
 to fettle accounts amicably they fixed upon two arbi- 
 trators. Their award appointed certain ptrfons to 
 colleft the effcfts and pay all the debts, and to pay 
 over the fiirplus equally between the plaintiff and the 
 defendant. The bill then ftated that the receiver had 
 colle6led the effe£l:s, but that there was (lill a de- 
 ficiency, the debts not being all difcharged ; and that 
 feveral demands liad been enforced againfl: the plaintiff, 
 for which hp called upon the defendant to contribute, 
 *' The bill alfo prayed that an account might be taken 
 f' of the effects of the partnerfliip and of the debts." 
 
 To the bill the defendant pleaded the award. 
 
 To this plea it was objefted that the award fuppofcd 
 a balance \n favour of the partnerihip, whereas a de- 
 ficiency had taken place ; that the arbitrators had not 
 provided for this contingency, and of courfe the award 
 was not final ; and that the plaintiff had been called 
 upon by the creditors, and ought to be reimburfed. 
 
 The court thought that the bill ought to have 
 fpecijifd the objcftions to the award, as a final fettle- 
 ment of the account : that it ought to have fet forth 
 the deficiency, and what debts in particular the plain- 
 tiff had been called upon to difcharge ; and that, till 
 thefe fpecific objeftions were made to the award, it 
 muff he confidered as final. Ihe plea was for the prc- 
 fcnt allowed, but was fet down for rcrhearing.^ When 
 it came on to be heard again, in addition to the former 
 ilatement, it appeared, that by the award the arbi- 
 trj^tors dircded that the partnerfliip fnould, as between 
 
 i Routh V. Peach, z Anflr. 519.
 
 WHEN THE AWARD IS IMPROPERLY MADE. 377 
 
 the partners, be confidered as having ended at a day 
 then pafled, and that the phiintifF Ihould be at the 
 rifk of all debts incurred llibfequently to that day.— 
 The bill Hated that the debts difchargcd by the plain- 
 tiff, and for a contribution to which this bill was filed, 
 Were incurred by the partnerfhip. 
 
 The court thought that this might apply to debts in- 
 curred after the day fixed by the award, after which 
 the phiintifF was to fland to the rifk of debts : from 
 that dav, as between the parties, the partncrfliip was 
 confulered as difiblved, but as between them and their 
 creditors it flill fubfilled. The arbitrators had pro- 
 ceeded on a fuppofition tliat the partnerfhip effefts 
 were fufhcicnt to pay all demands up to that time, and 
 the court would prefume that the fuppofition was well 
 founded until it was exprefsly negatived. The order 
 for allowing the plea was affirmed.^ 
 
 Here, it may he obferved that the court decided not 
 on the ground of the propriety of the plea, but on the 
 defeft of allegation in the bill, v/hich might have been 
 the foundation of a demurrer. 
 
 An annuity had been granted by A. B. payable out 
 pf certain cfl.ites, part of v;h:ch came afterwards to tho 
 plaintiff and part to the defendant. Difputes arifing 
 about the proportions in which the annuity was to be 
 paid, a bill was filed in the Court of Exchequer : in 
 the progrefs of the f uit the parties fubmitted to have 
 the matter referred to arbitration-, under an order of 
 the court — and an award was made. Another bill was 
 filed, charging that the defendant, in giving in to the 
 
 3 Routh V. Peach. 3 Anftr. 637.
 
 378 THE MEANS OF PROCURING RELIEF 
 
 arbitrator the particulars of the eftate in his hands, 
 wilfully mifreprefented its extent and value, by fup- 
 prcffing feveral parcels, the proportion which each was 
 to pay depending on the relative values of the parcels 
 in their hands. The bill further charged that the 
 plaintiff had not till lately difcovcred the fraud, and 
 prayed to have the matter opened. 
 
 The defendant pleaded the award alone, and did 
 not put in any anfwer. 
 
 The qucflion turned upon the validity of this plea, 
 and cafes were cited on both fides. On the behalf of 
 the plaintiff it was obferved, " that it was a mere con- 
 *' fufion of terms to fuppofe that an award is a bar to 
 " any inquiry concerning the mode in which the award 
 *' itfelf was obtained ; that it only barred inquiry into 
 " all the matters fubmitted to the arbitrator, while the 
 *' award remained good, but that even if all was fairly 
 " fubmitted to him, yet grofs and apparent errors in 
 *' the award may be fet right by a court of equity." 
 
 The court thought the charge of concealment ought 
 to be anfwered ; and Mr. Baron Perryn, in particular, 
 faid, that the award could not preclude the invefli- 
 gation of that charge — it was exa£lly " exceptio ejus- 
 " dem rei cujus petitur diffolutio." "* 
 
 It feems then to be now fettled, that where a bill is 
 filed to have an award fet aflde, on the ground of ex- 
 trinfic circumflances, the award cannot alone be pleaded 
 in bar of that prayer without denying the charge of 
 thofe circumflances, either in the pleu or in a dilHnft 
 anfwer ; but it does not feem now to be confidered a? 
 material whether it be by the one or by the other, o? 
 by both. 
 
 < Gartfide v. Gartfide, 3 Anftr. 735^
 
 WHEN THE AWARD IS IMPROPERLY MADE. 379 
 
 I CAN difcovcr nothing in any of the above cafes, 
 or in all of them taken together, which fliews the 
 neccflity or the propriety of pleading the award at all 
 in bar to a bill filed to have it fot afidc. The charges 
 on which the award is impcaclied mujl be anfwered, 
 and the denial of them is Tifufficlcnt anl\vcr ; the plea, 
 therefore, of the award cannot be ncceJJ'ury ; and I 
 think, if the nature and office of a plea be confidered 
 it will be manifeft sXmifuch a plea is not proper. 
 
 " The form of making defence varies according to 
 *' the foundation on which it is made, aad the extent 
 *' in which it fubmits to the judgment of the court, — 
 " If, on the foundation of new matter offered, it de- 
 *' mands the judgment of the court whether the de- 
 •' fendant fhall be compelled to anfwer farther, it is 
 *' termed a plea^ 
 
 " A plea is intended to prevent further proceeding 
 " at large, by relling on fome point founded on mat- 
 " ter ftated in the plea ; and as it fefls on that point 
 " merely, it admits, for the purpofes of the plea, the 
 " truth of the fa£ls contained in the bill, fo far as they 
 " are not controverted by fa£ts ftated in the plea." 
 
 *' The defence proper for a plea is fuch as reduces 
 " the caufe, or fome part of it, to a fingle point, and 
 " from thence creates a bar to the fuit." 
 
 *' The end of a plea is to reduce the caufe, or the 
 •* part of it covered by the plea, to a lingle point, in 
 ** order to fave expence to the parties, or to proteifl 
 ♦' the defendant from a difcovery which he ought not 
 •' to be compelled to make." ^ 
 
 Mijford's Treatife on the Pleadings in Equity, 14, 15, 177, 234.
 
 tSa 
 
 THE MUANS OF PROCURING REtlEF.ScC. 
 
 A BILL filed to have an award fet afide necelTanly 
 fets out at Icaft the fubjlance of the award ; to plead the 
 award itfelf, therefore, is not " to demand the judg- 
 ** ment of the court, on the foundation of 7tew matter 
 *' offered : " and as the defendant tnuj} anfwcr the 
 charges in the bill, on the foundation of which the 
 plainliff feeks to be relieved againft the award ; as the 
 plaintiff may, notwithftanding the fulleft denial of thofe 
 charges by the defendant, ftill proceed to prove them 
 at the hearing of the caufe ; ^ and as, in cafe he be 
 fuccefsful, the inevitable confequence is that the award 
 will be fet afide, and the parties put in the fame 
 fituation in which they were before the fubmilTion to 
 arbitration : " The caufe is not, by the plea, reduced 
 " to a fingle point ; no expence is faved to the parties ; 
 ** nor is the defendant protefted from a difcovery from 
 " which it was the objeft of the plea to protect him." 
 
 ' Vid. 2 Atk. 521, (sc6.)
 
 THE EFFECT OF THE AWAro, $^c. 
 
 CHAP. IX. 
 
 T/ie Effect of the Award in precluding the Parties 
 from filing on the original Cause of Action, vjhich 
 luas the Subject of the Referenck. 
 
 AS the objeft of every reference to arbitrators is to 
 have an end put, by the decifion of a domeflic 
 tribunal, to all controverfy refpefting the fubjeft re- 
 ferred, no rule is more confonant to good fenfe than 
 that which precludes the one party from harrafTing the 
 other with an aftion on the original fubjeft of difpute. 
 The ancient law, accordingly, provided a remedy by 
 a£tion for him who was lb harraflcd ; for as foon as 
 he was fued on the original caufe of aftion he might 
 fuc out a fpeclal writ of trefpafs on the cafe, which is 
 to be found in the Regifler,' by the name of Breve de 
 Arbitratloyie faBa^ on which he might recover damages 
 for the vexation ; and it were good, fays Lord Coke, 
 that fome one would fue that writ.^ The wifdom of 
 his Lordlhip's obfervation is, however, very queftion- 
 able, as the defendant has a much lefs expenflve, and 
 
 ' Reg. Br. Orig. in. a. .» 3 Bulftr. 63, (66.)
 
 3gi THE EFFECT OF THE AWARD 
 
 a much more fpeedy remedy, in the privilege of plead- 
 ing the award in bar of the plaintiff's aftion. 
 
 To what a£lion an award may be pleaded in bar it is 
 not neceflary here to point out ; that qucflion will be 
 fufficiently anfwered by a pcrufal of the chapter on the 
 fubje£l of reference,^ an award being pleadable in bar 
 to every a£tion brought on a queilion which may be 
 referred to arbitration. 
 
 The queftion, what award may be pleaded in bar 
 admits in general of an anfwer equally fliort ; it mull 
 have all the qualities ncceffary to conftitute a good 
 award, and mufl be fuch, if it be pleaded without per- 
 formance, that the plaintiff may have a remedy to 
 compel performance : but, if performance be alleged, a 
 void award may frequently be a good bar. An award, 
 however, which is in itfelf uncertain, and cannot be 
 afccrtained by averment, cannot be pleaded in bar. — 
 To an aftion of affumpfit for work and labour done, 
 the defendant pleaded an award " that the plaintiff 
 fhould be fatisfied for the days work and talk work he 
 had done for the defendant ; but no value w^as put, by 
 the arbitrator, on the work •, and that then the plaintiff 
 Ihould pay to the defendant 25I. and give him a general 
 releafe of all controverfics : " the defendant then aver- 
 red that the talk work and days work were worth 
 12I. los. and no more, and that he had paid and fatis- 
 fied the plaintiff that fum. But the plea was over- 
 ruled, becaufe the arbitrator himfcif had not valued 
 the work."* 
 
 3 Cap. 3. page 50 et fcq. 
 
 « Pope V.Brett, a Saund. 292. 2 Keb. 736- vid. i Keb, 754- 
 
 Dudley v. Cole.
 
 l.SJ PRECLUDING THK PARTIES, &C. 383 
 
 Where 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 adtion on that which was referred, the award is a 
 good bar to that adion : but where the award does not 
 create a now duty, but only extinguifhes the old by 
 releafe, the award is no bar to an adion on the original 
 demand. On this principle, where an aflion of af- 
 fumpfit was brought on an agreement for the delivery 
 of a certain quantity of hops, and the defendant pleaded 
 a fubmilfion to arbitration, and an award that each 
 Ihould give to the other general relcafes, and (hewing 
 that he had always been ready, and Hill was, to fign 
 and feal a releafe ; this was held to be no bar, becaufe 
 nothing, it was faid, was awarded in fatisfaftion.' 
 
 On the fame principle, it has been faid, an award 
 *' that all fuits fhall ceafe," though good to make the 
 party forfeit his bond, if he proceed in the fuit, yet is 
 not a good plea to the original 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 perform- 
 ance of it.^ Both this and the cafe immediately pre- 
 ceding, however, feem altogether irreconcileable with 
 good fenfe. What reafon can be given, why an award 
 (liould be confidered as good, for the purpofe of making 
 the party forfeit his bond by a breach of it, and yet 
 that he (liould not be permitted to plead it in bar of an 
 aftion for the original caufe ? While indeed it was 
 held that no aftion could be maintained on an award 
 
 * Freeman v. Bernard, i Ld. Raym, 248. it Mod. 130 
 Comb. 440. -i Salk. 69. ' Lutw. 56, 57. 
 
 4
 
 384. THE ZTTtcr oy tm awaro 
 
 —^——— — - ■■■--■ ' _»^ 
 
 to do a collateral thing, imlefs the fubmiflion was by 
 bond, it was perfedtly confiftent with reafon that fuch 
 an award flioukl be no bar to the original action, unlefs 
 performance of" it were fliewn on the part of the de- 
 fendant who pleaded it : the purpofe of the fubmiirion 
 was to decide,.whcthcr either of the parties was entitled 
 to complain againfl the other, to give him a recom- 
 pence, to zu/iom the arbitrator thought it was due, and 
 by that recompence to put an end to the diiputes fub- 
 mittcd : if therefore performance could not be com- 
 pelled, it was reafonable, the plaintiff fliould not be 
 precluded from profecuting his adion for the original 
 complaint. But, after it came to be held that there 
 was a remedy on an award of a collateral thing, thougli 
 the fubmilTion was not by bond, it feems altogether 
 Inconceivable, why any cafe fliould be excepted, in 
 which the award fhould not be a good plea. If the 
 party, on an award that all fuits- fliall ceafe, muft 
 forfeit his bond, by going on with his aftion, or where 
 it is that he fliall give a releiife, by not giving that 
 relcafe accordingly ; or if, where the fubmiilion is 
 verbal, an aftion may be maintained on the fubmiffion, 
 for a breach in continuing the adion, or not giving 
 the releafc ; why Ihould not the award of the one or 
 of the other be a good plea to an adion for the original 
 caufe ? 
 
 An award, which does not extend to the whole of 
 the thing demanded, is not a good plea to an aftion 
 ou the demand.^ 
 
 To an " indebitatus affumpfit," and " quantum 
 meruit" for work done, and goods fold and delivered, 
 
 7 Farrer v. Bates. Al. 5.
 
 IN rRECLUDIKO TUE PARTIES, &;c. 3S5 
 
 the defendant pleaded an award, by which, it was 
 ordered that the plaintiff, or 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 fliould give each to 
 the other a general rcleafe ; among other exceptions to 
 this award as a plea, one was that, nothing being award- 
 ed for the goods fold and delivered, the award did not 
 give a fatisfaftion for the vohole demand ; for that, ac- 
 cording to a former cafe, the general releafe was not 
 of itfelf a fatisfacStion. But had the bill of fale, it was 
 faid, been awarded iji full of all demands, then the 
 award would have been a good plea to the whole, be- 
 caufe it would have been in fatisfaftion of all demands.^ 
 
 Where the plaintiff lays feveral counts in his de- 
 claration, and the award, from the terms of it, can 
 only be a bar to one of them ; if, in reahty, they are 
 all for the fame caufe, the beft way of pleading feems 
 to be, to plead the award to that count, to which, in 
 terms, it is an anfwer, and the general ifTue to the reft. 
 Thus, in the hift cafe, the award might have been 
 pleaded to the count for work and labour, and the 
 general iifuc to that for the goods fold and dehv'ered.^ 
 
 In an adtion of account the plaintifls declared againft 
 the defendant, as bailiff, charging him with feveral 
 parcels of goods, which he had received for merchan- 
 dizing : the defendant pleaded that the plaintiffs and 
 he had fubmitted to arbitrators, willi a fubmiffion over 
 to an umpire ; that the arbitrators made no award \ 
 
 Clapcott V. Davy, i Ld. Raym. 61: 
 9 Scm. Lcl. Raym. ibid. 
 
 D d
 
 536 THE EFFECT OF THE AWARD 
 
 but that the umpire had awarded that all fuits fliould 
 ceafc ; that the plaintiffs Ihould pay the defendant 30L 
 and (hould receive their goods left in the hands of one 
 Warren for their ufe ; that if one of the plaintiffs 
 fliould, within four months after the date of the award, 
 make oath that he had difchargcd two tons freight at 
 i6l. per ton, then the defendant fliould have no more 
 money than the 30I. unlefs, within ten days after the 
 four months, he fhould make oath that he took the 
 two tons only at lol. per ton ; and then the plaintiffs, 
 or fome of them, Ihould pay him 12I. more ; and 
 laftly, that the parties Ihould give mutual releafes. 
 The plaintiffs demurred, and the defendant joined in 
 demurrer. The Chief Juftice' pronounced judgment 
 in favour of the plaintiffs, but without ftating his 
 leafons ; but the reporter^ has thought proper to give 
 us his own argument in favour of the plaintiff's. It was 
 acknowleged, he fays, that as to the ceaiing 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, tlie 
 award for thefe would not alone have been a fufiiicient 
 plea: it was alfo objefted that the part which related 
 to the two tons' freight was apparently abfurd and 
 unreafonable, and that therefore the award in that 
 particular was void. But the principal objeftion was 
 to that part which direfted 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 30I, and if there was 
 
 ? Treb/. * Lutwyche.
 
 IN' PRKCLUDIN"0 THE PARTIES, I'tc. 387 
 
 any foundation for what was alleged on this head, that 
 llic 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 
 compel the delivery of them, or to procure fatisfaftion 
 for the non-delivery, undoubtedly the award ought not 
 to have been a bar to the aftion 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 fatisfaftion for their demand : but if, in 
 truth, the award, " that the plaintiff fliould receive 
 the goods," ought to have been conftrued that tbe 
 defendant fliould deliver them, or procure them to be 
 delivered, and if an aftion on the award in which the 
 breach might have been affigned in the non-delivery, 
 could have been maintained againfl the defendant, 
 there feems to have been no good rcafon for the 
 judgment.^ 
 
 A DEFENDANT, t9 an aftion of trefpafs, may fome- 
 tlmes plead an award made on fubmiffion by the plain- 
 tiff and a flranger. Thus, to an aftion of trefpafs for 
 trampling down the plaintiff's grafs with cattle, the 
 defendant pleaded that at the time of the trefpafs com- 
 mitted, the cattle were in the cuftody of a flranger, 
 and that the plaintiff and that Granger had fubmitted 
 to the award of a certain perfon, who ordered the 
 ffranger to pay the plaintiff a certain fum, in fatisfac- 
 tion of the trefpafs, which he had accordingly done ; 
 and this was held to be a good bar to the adion.'* 
 
 3 Dighton et al. v. Whiting. Lutw. 51. 
 
 "» 7 n. 4. 31. b. Brooke, 44 b. pi. 48. Rol. Arb. 2 B. i- 
 
 D d 2
 
 388 THE EFFECT OF THE AWARD 
 
 The defendant may alfo plead that the trefpafs, of 
 which the plaintiff complains, was committed by the 
 defendant and another ; and that the matter was after- 
 wards fubmittcd to arbitration, by the plaintiff, the 
 defendant, and the other trefpafler. 
 
 The plaintiff declared in trefpafs for taking away 
 and detaining his wife for four months againft his con- 
 fent, 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 refidue, that the " 
 trefpafs of which the plaintiff complained, was com- 
 mitted as well by tlie defendant as by one H. Martin, 
 and that after the trefpafs aforcfaid, and fince the laft 
 continuance, particularizing the day, the plaintiff, the 
 defendant, and H. Martin, fubmltted to the arbitration 
 of three perfons the trefpafs aforefaid, between the 
 plaintiff, and the fame defendant and H. Martin, and 
 divers fuits then depending between them ; that the 
 arbitrators had awarded that the defendant and H. 
 Martin fliould pay to the plaintiff, or tender to his 
 ufe, 7I, on the third of June, and two intire third parls 
 of all the cofts 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 plaintiff had rcfufcd it, and that no bill of the 
 cofts had hitherto been produced. On demurrer, this 
 was held a good plea, though it was objefled that the 
 declaration had charged the defendant for a particular 
 fa£l of his own, namely, the taking away of the plain- 
 ilff's wife and the detention of her for" four months j 
 that the detainer by the defendant could not be com- 
 mitted by H. Martin, i^rid therefore the fait againft the 
 riefendant for that fadi could not be a fuit depending
 
 IN PRECLUDIN'G THE PARTIES, Scc. 3S9 
 
 between the plaintiff and the defendant and H. Martin: 
 but the objeftion was overruled, for this reafon, that 
 the fubmiflion was to be conftrued of all aftions be- 
 tween them or any of them. ^ 
 
 To an adion brought after the fubmiffion, and before 
 the award made, the defendant may plead that fubmif- 
 fion, and that the arbitrators have not yet made any 
 award ; 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.^ 
 
 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 aftion of trefpafs againfl C. P. he 
 pleaded that the plaintiff had formerly brought another 
 aftion againfl the prefent defendant and one J. P. on 
 which the plaintiff and the faid J. P. had fubmitted all 
 manner of trefpaffes and aftions between them, and 
 alfo all other trefpaffes committed between the plaintiff 
 and the prefent defendant ; that the arbitrators awarded, 
 that as well for the trefpafs of the prefent defendant as 
 that of J. P. there fliould 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 fub- 
 miffion of the defendant, and therefore he was not 
 bound by it : but it was held that it would have been a 
 bar to the action, if pleaded as an agreement of the 
 plaintiff.^ 
 
 In pleading an award, the defendant, it is faid, muft 
 fliew the place where the fubmiflion was made, and 
 
 ' Thomlinfon V. Arrifkin. Comyns, 32S. 
 13 R. ;. 'zoH. 6. 41. Fhbt, ci.b. 
 
 D d -:
 
 390 
 
 THE KFFKCr OF T H F, AWARD 
 
 the names of ihc avbitrators, but that it is not ncccfTaiy, 
 in averring the payment of money in purfuancc of an 
 award, to ftate at what place nor at what time it was 
 paid;^ nor at wiiat time the award was made.^ A 
 difference is made in the old books, in the manner of 
 pleading an award in a declaration, and in a plea. — In 
 the firft cafe, the plaintiff muff fliew for what eaufc 
 they fubmitted, but in the fecond, it is fufficient for the. 
 defendant to allege the fubmillion generally.' But it 
 feems at Icafl: neceffary that it fliould appear by the 
 plea, that the fubmiflion comprehended the fubjc^l on 
 which the action is brought, otherwife it can be no 
 pica to that aftion. 
 
 There were formerly fome diftinftions in tiie man- 
 ner of pleading an award, with rcfpcft to the neccffity 
 of alleging performance of the things awarded, which, 
 though of importance then, arc not now effential, 
 
 The moll: general diftinftion, was between the cafe 
 where the party in whofe favour the award was made, 
 had a remedy to compel performance, and that where 
 he had not. In the former the award itfelf was con- 
 fldered as a iiifficicnt anfwer to an aflion on the lubjeft 
 fubmitted ; but in the latter, it was ncccifary that he 
 fhould alfo Ihew performance on his part r becaufe it 
 was confidered that if there was no remedy for the 
 thing awarded, it remained in the power of the de- 
 fendant whether he would fatisfy the plaintiff or not.^ 
 
 » S H. 6. 25. b. 9 H. 6. 5. 
 Brooke, 44. a. 
 
 5 Per Briggcs, 21 E. 4. 41. 
 b. ad quod non fuit refponfum. 
 
 ' Br. 34. cites 5 E.4. i. 
 
 "■ 43 E. 3. 33. 45 E. 3. j6. 
 
 b. 13 H. 4. 12. 9 H. 6. 50. b, 
 19 H. 6. 36. 9 E. 4- 44- 
 Fhbt. 52. b. Br. 45. a. Rol, 
 Arb. X. 3- 6. 
 
 o 6 Mod. 22 1.
 
 IN PRTCLUDIN'G THE P.VRTIKS, ?CC. 39I 
 
 There was, however, one exception from this cafe, 
 which was, that, when tlie thing, awarded to be done 
 on the part of the defendant, was to foll<JW the per- 
 formance of fomething on the part of the plaintiff, it 
 was fufficient for the defendant to allege a default on 
 the plaintiff's part, and to fay that on performance by 
 him, he was ready to perform his part,"* 
 
 This dillin^lion principally prevailed between the 
 cafes of a verbal fubmiffion, and a fubmiflion by bond. 
 In the latter the plaintiff had always the means of 
 compelling performance of the award, by luing for 
 the penalty of the bond : but in the former, uiilcfs the 
 award was for the payment of money, the plaintiff had 
 no remedy on the award, and, therefore, it was rea- 
 fonable that the defendant in pleading the award and 
 fubmilTion fhould Ihew performance.* 
 
 In the cafe of an award for the payment of money 
 on a parol fubmiffion, there was alio a difference in the 
 manner of pleading, whe-n the money was ordered to 
 be paid on a particular day, and when there was no 
 lime limited for the payment. 
 
 In the latter cafe it was neceffary for the defendant 
 to allege at Icaft that he always had been, and ftill was 
 ready to pay ; and there are fome cafes reported, from 
 which it might be concluded that an allegation of aftual 
 payment was neceffary ; but that feems to have been 
 carrying the point too far, becaufe the plaintiff might 
 at any time have had his remedy on the award.*^ 
 
 •• io H. 6. 18, 19. Br. 44. a. 36 H. 6. 15. Brooke Arb. pi. 2S 
 
 5 9 E. 4. 44. V'id. I Ld. Raym. 24S. 
 
 ' ^'id. tlic places before cited. 
 
 D d 4
 
 392 
 
 THE EFFECT OF THE AWARD 
 
 ^\'HERE the award was for the payment of money 
 at a certain day ; in pleading this award, it was fuf- 
 iicicnt to allege that the day was not comc.^ But even 
 in this cafe, if the day was paft, he mull have fhewn 
 that on or before the day he had paid the money, or 
 that he had tendered, but that the plaintiff had refufed 
 it ; for, it was faid, though the plaintiff might have 
 debt on the award, yet the defendant could not compel 
 the plaintiff to have rccourfe to that aftion, and be 
 barred of his adlion for the original caufe : it was his 
 own default that he had not paid the money at the 
 time appointed.^ 
 
 But thefe difllnftions hardly any longer exift ; for 
 lince it has been held that an aftion will lie on the 
 mere fubmifiion, it is in no cafe necefTary for the de- 
 fendant, in pleading an award in bar of an adion, to 
 allege performance of the thing awarded, unlefs where 
 the aw^ard is void, and confequently the plaintiff could 
 not enforce it.^ 
 
 SUCH is the general Syftem of the Law of Awards ; 
 a fyftem which, in many inftances, with much diffi- 
 culty purified fi-om the unintelligible jargon of technical 
 argumentation, has been, in modern times, eftabhfhed 
 
 ' zz H. 6. 52. b. 5 E. 4. 7- 
 Rol. Arb, Z. 3. 4.6 E. 3.17. b. 
 Rol. Arb. X. 5. 
 
 8 49 E. 3. 3. 21 E. 4. At. 
 b. Rol. Arb. Z. i. iKeb.S48. 
 
 _Vid. all thefe diftinaions 
 pointed out, Lutw. 28 1, RuITel 
 V. Williams. 
 
 9 Vid. I Ld.Raym. 122.
 
 IN FRECLUDIS8 THE PARTIES, StC. 395 
 
 on the principles of fober rcafon and found fcnfc ; a 
 fyftcm, which, were the parties fubmitting ahvays cer- 
 tain of appealing to a judge of pcrfeft wifdom and 
 incorruptible integrity, would be highly beneficial to 
 the focicty: but which, from the weakncfs and de- 
 pravity of men, frequently becomes the inftrument of 
 the moft flagrant injufticc, and the moil: ferious op- 
 preffion. From the manner in which arbitrations arc 
 often condu£led, the parties, inllead of obtaining a 
 fpeedy determination to their difputes at an eafy ex- 
 pence, are frequently altogether difappointed, by hav- 
 ing no determination at all, and frequently involved in 
 a moft expenlive and tedious litigation, which miglit 
 have been avoided, had they chofen at firft to have 
 recourfe to the ordinary tribunals of the country. The 
 only fubjefts, 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 
 whole favour the decifion may be given, provided, at 
 all events, there be a decifion ; and quefl:ions on which 
 the evidence is fo uncertain, that it is much better to 
 have a decifion, whether right or wrong, than that the 
 parties fliould be involved in continued litigation.
 
 394- Al'PENDIX. 
 
 APPENDIX. 
 
 INCE the greater part of the preceding work was 
 prmted I have feen a munufcript report of a cafe 
 in the Common Pleas, in the time of Lord C. J. Willes, 
 in which it was determined, on the authority of feveral 
 old cafes, that in the cafe of a fubmiffion by bond the 
 arbitrators cannot award the cofts of reference unlefs 
 power be exprefsly given to them for that purpofe. 
 
 John Chandler v. John Fuller, Hil. 1 1 G. 2. — If this 
 be Hill conlidered to be the law, then what is faid in 
 pages 152, 153, muft be conlidered as erroneous. — > 
 Withing to afcertain what is generally underftood on this 
 fubjeft, I have looked for decifions of a more modern 
 date. I have found none, where the fubmiffion has been 
 by bond ; but I have found two where the reference 
 has been by rule of court or under the order of a judge, 
 The firfl is the cafe of Brown v. Marfden and others in 
 the'Common Pleas, May 18, 1789. i H. Black. 223. 
 The caufe being at ilTue, the parties fubmitted to arbi- 
 tration. The arbitrator awarded to the plaintiff 24I. 
 damages, and the " cojis hy himjujiahicd in the [aid a^ion^ 
 to be taxed by the proper officer." — ;The prothonotary 
 rcfufed to allow anv other cofls than thofe of ija©
 
 APPENDIX. 35; 
 
 aftion as between party and party ; an application was 
 made to the court for a rule to fhew caufe, why the 
 prothonotary fliould not be directed to tax and allow 
 the cofts of the reference, together with the cofts of the 
 a£lion, as between attorney and client. — But the court 
 faid there was no precedent for the cofts of the re- 
 ference being included in an oivard of cofts of the 
 a£tion, and on examining the award, finding the words 
 to be as above ftated, held they were confined to the 
 cofts of the aftion, and therefore refufed the rule. 
 
 Here it is to be obferved, that it does not appear 
 in the report, whether, by the rule of reference, any 
 power was cxprelTly given to the arbitrator over the 
 cofts of the reference, or whether having been expreflly 
 given, he had not ufed it : if the former was the cafe, 
 this dccifion is almoft an authority that the arbitrator 
 has impliedly a power over fuch cofts ; for the court 
 made no queftion as to the exiftence of that power, 
 but inquired merely whether he had excrcifed it. 
 
 The fecond is the cafe of Bradley v. Tunftow, May 
 20, 1797, reported in Puller and Bofanquet's Term 
 Rep. of the Common Pleas, p. 34. — By an order of the 
 Chief Juftice, made with the confent of the parties, it 
 was ordered, " that the debt for which the a£lion was 
 " brought fhould be referred to F. C. Efq. to fettle and 
 " determine how much, or whether any and what fum 
 '« was due to the plaintiff^ from the defendant, and that 
 * " for what fum he lliould find due, the plaintiff fhould 
 "be at liberty to enter up his judgment, and //e out 
 «' execution for fuch fum fo found due, together with 
 *' his cojls, provided the faid debt fo to be fettled and 
 *' afccrtaincd Ihould amount to 4CS."
 
 396 APPENDIX. 
 
 The arbitrator awarded 40I. 14s. for the debt, and 
 cojls to be taxed by the prothonotary. His taxation 
 included the colls of the reference; the plaintiff entered 
 up judgment on "Cdi^ allocatur \ the plaintiff applied to 
 the prothonotary to ftrike out the cofls of the reference, 
 who, on reconfidering the matter, accordingly difal- 
 iowed them. — On the part of the defendant, an appli- 
 cation was made to the court, to have the judgment 
 fet afide as irregular, in confcqucnce of this difallow- 
 ance. — To this application, it was anfwered, that where 
 a caufe was referred to arbitration, the coils of the 
 caufe to abide the event, and nothing faid in the rule 
 about the cofts of the reference, thefe became part of 
 the cofls of the caufe, and that fuch was underllood to 
 be the pra£lice of the court of King's Bench. 
 
 The C. Juflice ' faid the whole difficulty arofe from 
 XYiefuppofed praftice of that court. If that court had 
 fanflioned the practice of including the cofts of re- 
 ference under a condition in the rule, relating to cofls 
 generally, he did not feel himfelf at liberty to fpeculate 
 upon the point : it appeared however to him, that a 
 reference being made for the convenience of lotJi par- 
 ties, the expences ought to be fuflained by both. A 
 provifion for the cofls of reference being generally 
 made in the rules, but omitted in the prefent inilance, 
 was a flrong argument to fliew that they were not here 
 intended to abide the event of the arbitration. 
 
 BuLLER J. obferved that the general praftice in. 
 drawing up thefe rules was to diftinguilh between the 
 cofls of the reference and the cofls of the caife \ that the 
 
 ' Eyre.
 
 APPENDIX. 397 
 
 latter ufually abided the event of the arbitration, the 
 former not. Here that difl:in6tion was omitted ; it was 
 referred to the arbitrators to determine the fum due 
 between the parties, and the cofts were to follow the 
 event of his award : he was inclined to think the 
 practice of the court of King's Bench as fuggellcd, was 
 right. Did the term ro/Zi mean ^// cofts ? He did not 
 fee how to diftinguifli between the cofls of the caufe 
 and thofe which arofe in the frogrefs of the caufe. — 
 But as thefc cofts of reference amounted fometimes to 
 very hard fums, it might perhaps not be for&ign to the 
 purpofe to fuppofc, that they were purpofely omittted 
 in this rule to avoid the pofiibility of fuch expence ; if 
 there were any authorities on the fubjeft, he thought 
 the court muft be bound by them. 
 
 TriE prothonotary being defired to inquire concern- 
 ing the pradicc of the King's Bench, afterwards re- 
 ported that he had been informed by the Mafter that 
 though no cafe had occurred within his knowlege, 
 where this queftion had arifcn under the order of 
 a judge ; yet it was generally underllood that an ar- 
 bitrator had no power to give the cofls of the award, 
 unlefs under a provifion inferted in the order of n'ljl 
 prius. 
 
 In confequence of this report, the court directed that 
 the plaintiff fhould move to reform his judgment by 
 confcnt, and reduce it to the proper amount. 
 
 Here again it may be remarked, that the real quef- 
 tion ariling out of the cafe was not o« i/ie power of the 
 arbitrator over the cojls of the reference, iv\en nothing on 
 that fuhjed zvas fa'id in the rule, for he had in fa£t exer- 
 cifed no jurifdiftion on the queftion: but whether, 
 when the rule mentioned cofts generally, without dii-
 
 A r P K N" D 1 X . 
 
 tine;uiniing between the cofts of the caufe and the coils 
 of the reference, the latter were nccefTarilv included as 
 well as the former ; and it might have been decided 
 that they were not, without prejudice to the power of 
 the arbitrator over them, if he chofe,to excrcilc it: 
 but, if what the prothonotary reported from the Mufler 
 of the King's Bench be correftly ftated, he went 
 beyond the queftion fubmitted to him : and if he be 
 right, the necelTary conclufion is, that the arbitrator 
 cannot give the cofts to cither party unlefs a power be 
 exprcflly given him for that purpofc in the rule. 
 
 PRECEDENTS. 
 
 Common Bond o/Arbitration. 
 
 KNOW all men by thefe prefents that I A. B, 
 of C. in the parifli of, 6cc. in the county of, 
 &;c. gentleman, am held and lirmly bound 
 to E. F. of G. in the city of London, mer- 
 chant, in the fum of 500I. of good and 
 lawful money of Great Britain, to be paid 
 to the faid E. F. or to his certain attorney, 
 executors, adminiftrators, or afTigns, for 
 w^hich payment, to be well and faithfully 
 made, I bind myfelf, my heirs, executors, 
 and adminiftrators firmly by thefe prefents, 
 fealed with my feal, dated the 
 day of in the year of the
 
 AVTtSDlX. 299 
 
 reign of our Sovereign Lord George the 
 Third, by the grace of God of Great 
 Britain, France, and Ireland, King, De- 
 fender of the Faith ; and in the year of our 
 Lord one ihoufand fcvcn hundred and 
 ninety-nine. 
 
 The condition of this obligation is fuch, that if 
 the above bounden A. B. his heirs, executors, and 
 adminiflrators, on his or their parts and behalfs, 
 fliall and do in all things well and truly ftand to, 
 obey, abide by, perform, fultil, and keep the 
 award, order, arbitrament, and final determination 
 of M. N. of, &c. and P. Q. of, 8cc. arbitrators, in- 
 differently elefted and named, as well on the part 
 and behalf of the above bounden A. B. as of the 
 above named E. F. to arbitrate, award, order, 
 judge, and determine of and concerning all and all 
 manner of aftion and adlions, caufe and caufes of 
 aftion, fuits, bills, bonds, fpccialties, judgments, 
 executions, extents, quarrels, controverfies, trcf- 
 paiTes, damages, and demands whatfoever, at any 
 time heretofore had, made, moved, brought, com- 
 menced, fued, profccutcd, done, fuffcred, com- 
 mitted, or depending by and between the faid 
 parties, fo as the faid award be made in writing, 
 under the hands of the faid M. N. and P. Q. and 
 ready to be delivered to the faid parties in dif- 
 ference, or fuch of them as (hall defire the fame, 
 on or before the day of then this obli- 
 
 gation to be void, or elfe to remain in full force. 
 
 Sealed and delivered, being firfl 
 duly ftamped, in the prefence of
 
 40O 
 
 APPENDIX. 
 
 Condition of an ApvBitration Bond for fettling 
 the accounts of executors ; obligation to he from E. the 
 executor of B. to D. widoiv of A. and to A. the fan of 
 A. and D. in 20Co/, 
 
 WHEREAS the above named A. the father, deceafcd, 
 by his lall will and teftament in writing duly executed, 
 
 bearing date on or about did, among other things, 
 
 make and appoint the above named B. together with 
 C. Efquire, executors and truftees of his faid will, 
 during the minority of the above named A. his fon, for 
 the intent, and purpofcs therein mentioned and ex- 
 preited, as by the faid will by them the faid executors 
 may appear ; by virtue of which wall and executorfhip 
 they the faid B. and C. feverally poficlTed themfelves 
 of great part of the perfonal eflate late of the faid A. 
 the father, and alfo received great part of the rents of 
 his real eftates, and have fince refpeftively paid, ap 
 plied, and difpofed of great part of the faid eftate fo 
 by them received, upon the trufts of and according to 
 his faid will. AND WHEREAS the faid A. the fon, 
 having attained his age of 21 years, an account of what 
 was by him the faid C. received, and which remained 
 in his hands of the real and perfonal eftates late of the 
 laid A. the tcflator, having been then ftated, fettled, 
 and allowed by and between them the above named D. 
 A. her fon, and the faid C. and he the faid C. having 
 accounted for and paid what was by him fo received 
 and remaining in his hands to them the faid D. and A. 
 according to the true intent of the faid will, they the 
 faid D. and A. her fon, have given a full releafe and 
 difcharge to the faid C. of all their demands, relating 
 to his afting in the faid cxecuturfliip and trufcs, by the
 
 APPENDIX. 40 1 
 
 iuid will ill him vcpofcd: yVND WHEREAS the fa Id 
 D. fomctimc iincc (icpmlcd this life, having firft made 
 >.>nd duly executed his hift will and teflament in writing, 
 and thereof appointed the above bound E. executor, 
 as by the fame will by liini duly proved may appear ; 
 AND WHEREAS the faid !">. in his life time, as being 
 the other executor of the faid A. the father, did re- 
 ceive, pay, and apply fome part of the real and pcrfona! 
 eilate of the faid A. the father, purfiiant to the trulls 
 in the faid will contained ; .but he the faid B. dying in 
 the minority of the faid A. the fon, and no account 
 liaving been made and fettled as to what was by him 
 the faid B. fo received and paid out of the faid eftates ; 
 and he the faid E. as executor and reprcfcntative of the 
 faid B. being now liable to make up fuch account, and 
 to anfwer and pay the balance thereof, unto them the 
 faid D. and A. her i^on (if any fuch fhall appear due), 
 and fuch account having been by him the faid E. deli- 
 vered to them the faid D. and A. her fon, and fomc 
 difputcs and differences having arifcn between them, 
 touching fome articles and vouchers in the faid account 
 mentioned and contained : they the faid E. and the 
 faid D. and A. her fon, for the ending and preventing 
 of all further and future difputcs, controverfics, adions, 
 and fuits, touching the fame account, have mutually 
 agreed to refer the fame to the arbitrament and deter- 
 mination of F. of, &c. (a pcrfon chofen by, for, and on 
 the behalf of the faid E.) and to G. of, &c. (a perfon 
 chofen by, for, and on the behalf of them the faid D. 
 and A. her fon) ; and in cafe the faid arbitrators cannot 
 determine the fame, that then the fame fhall be fully 
 ended and determined by a third pcrfon, to be by them 
 chofen as an umpire, in fuch manner as hereinafter is 
 
 E c
 
 40J APPEN'DIX. 
 
 in that behalf mcnlioncd and cxprcflcd ; NOW THE 
 CONDITION, ^c. that if the fa id E. his heirs, 
 executors, and adminiftrators, and every of them, fhall 
 and do, for and on his and their parts, in all things 
 Hand to, obey, abide by, perform, fulfil, and keep the 
 award, arbitrament, order, determination, and judg- 
 ment, which fhall by them the faid F. and G. be made 
 of and concerning the faid account of him the faid E. fo 
 delivered as aforcfaid, and of and for all and every the 
 articles, vouchers, and things therein contained, and of 
 all difputes, differences, actions, fuits, claims, and de- 
 mands whatfoever, touching or concerning the fame, 
 fo as fuch award, arbitrament, determination, and judg- 
 ment of the faid arbitrators, of and in the fame pre- 
 mifes, be by them made in writing under their hands 
 and feals, ready to be delivered to all the parties in 
 controvcrfy within one month next enfuing the date 
 hereof: AND if they the faid arbitrators cannot agree, 
 and determine the fame premifes within the faid one 
 month, that then if the faid E. his heirs, executors, 
 and adminiftrators, and every of them, fhall and do, 
 for and on his and their parts, in and by all things, 
 Hand to, obey, abide by, perform,. fulfil, and keep the 
 award, arbitrament, and umpirage of fuch third pcrfon 
 and umpire, as they the faid arbitrators Ihall indif- 
 ferently name, eleft, and ehoofe for the ending and 
 determining of the fame premifes, fo as fuch award, 
 umpirage, and judgment of the faid umpire of and in 
 the fame be by him fo made in writing under his hand 
 and feal, ready to be delivered to each of the faid 
 parties in controvcrfy within — davs next after the end 
 of the faid one month, the faid obligation Ihall be void 
 and of no effcft ; otherwife the fame fliall remain in 
 full force and virtue. WOOD.
 
 APPENDIX. 40 J 
 
 Bond from J. H. — ^J, M. ^^^Jane /lis Wife, J. S. and 
 C. H. Spinjier, to T. H. Ycommt, in the Penal Sum cf 
 1000/. 
 
 CONDITION. 
 
 WHEREAS divers difFerences, difpiites, and contro- 
 veifics have arifen between the above-bounden ]. H. — 
 J. M. and Jane his wife, j. S. and C. H. and the above 
 named T. H. as to their fevcral and refpe£Vive claims 
 and interefts under the feveral and refpedlive wills of 
 T. T. late of, he. deceafcd, G. H. late of, &c. de- 
 ceafed, and Jofeph 11. late of, &c. dcccafed, and they 
 have fcverally and refpeflively agreed to fubmit the 
 fame to the arbitrament and final determination of 
 R. G. of, &c. D. R. M. of, &c. and P. S. of, &c. and 
 that their award, or the award of any two of them, 
 fhall be final and conclufive both at law and in equity, 
 as well on the part and behalf of the above bounden 
 J. H.— J. M. and Jane his wife, J. H. and C. H. their 
 heirs, executors, and adminflrators, as on the part and 
 behalf of the above named T. H. his heirs, executors, 
 and adminifaators : NOW THE CONDITION of the 
 above written .obligation is fuch, that if the above 
 bounden J. H. — ^J. M. and Jane his wife, J. S. and C. H. 
 their executors and adminiftrators refpeftively do and 
 fhall, on his, her, and their feveral and refpe£live parts 
 and behalfs, in all things well and truly fland to, abide 
 by, obferve, perform, fulfil, and keep the award, order, 
 arbitrament, and final determination of the faid R. G. 
 D. R. M. and P. S. or of any two of them, arbitrators, 
 indifferently chofen, eleded, and named, as well by and 
 on the part and behalf of the faid J. H.— J. M. and 
 Jane his wife, J. S. and C. H. as on the behalf of the 
 
 E e 2
 
 404 APPKNPIX. 
 
 above named T. H. to arbitrate, award, judge, and 
 finally determine concerning all and all manner of 
 claim and claims, which they, or any, or cither of 
 them, have, or pretend to have, by, from, or under the 
 above-mentioned wills, or any or cither of them, fo as 
 the award of the faid arbitrators, or of any two of 
 them, be made in writing, indented under their hands 
 and fcals, or under the hands and fcals of any two of 
 tliem, ready to be delivered to the faid parties in dif- 
 ference, on or before the firft day of March now next 
 enfuing, vnlefs they, or feme or one of them, fliall be 
 prevented from fo doing by ficknefs or fome other un- 
 avoidable event ; but if the faid arbitrators, or any or 
 either of them, ihall be prevented, by ficknefs or any 
 other unavoidable event, from making fuch their award 
 by the time aforefaid, then, if the above bounden J. H. 
 J. M. and Jane his v/ife, j. S. and C. H. their heirs, 
 executors, and adminiflrators, fhall refpeftively well 
 and truly Hand to, abide by, obev, perform, fulfil, and 
 keep the award, arbitrament, and final determination of 
 the faid R. G. — D. R. M. and P. S. or of any two of 
 them, of and concerning the premifes, fo as they the 
 faid arbitrators, or any two of them, make their award 
 in writing, indented under their hands and feals, ready 
 to be delivered to the faid parties in difference within 
 the time or fpace of two calendar months from the faid 
 firfl day of March, then the above-v^-rittcn bond or 
 obligation to be void, otherwife to be and remain in 
 full force and virtue. And it is hereby agreed, by and 
 between all the faid parties in difference, that thefe 
 prefents, and this fubmifiion hereby made of the faid 
 matters in controverly, Ihall be made a rule of his 
 Majelly's Court of King's Bench, to the end that tlie
 
 API'EN'DIX. 405 
 
 faid parties in difFcrcncc may be finally coiuiudcd hy 
 the faid arbitration by thefe prefcnts intended, pur- 
 fuant to the ftatute in I'ueli cafe made and provided.— 
 IX MITNESS, &e. 
 
 I'lME enlarged by Endorsement. 
 
 Know all men by thcfe prcfents, that wc the within 
 named J. M. — ^^[ane M. — ^^f. S. — C. \\. and T. H. have, 
 for ourlelves feparatcly, feverally, and refpedively, and 
 for our heirs, executors, and adminilhators refpe£livcly, 
 mutually given and granted, and by thefe prefents DO, 
 for ourfelves feparately, feverally, and refpeftively, and 
 for om- refpcflive heirs, executors, and adminifrrators, 
 mutually give and grant unto the within named R. G. 
 D. R. M. and P. S. the arbitrators within named, fur- 
 ther time for niaking their award of and concerning the 
 feveral matters within referred to them until the 8th 
 day of November now next enfuing, fo that they, or 
 two of them, make their award in writing, under their 
 hands and feals refpeftivelv, ready to be delivered to 
 the parties in difference on or before the faid 8th day 
 of November now next enfuing : and wc do hereby 
 further agree that thefe prefents, as well as the within- 
 written bond, and the fubmilfion thereby and hereby 
 made of the matters in controverfy, Ihall be made a 
 rule of his Majefty's Court of King's Beach, &c. IN 
 WITNESS, &c. 
 
 E c 3
 
 4o5 APPEKDrx. 
 
 Award made on the -fore going Submission. 
 
 TO ALL TO WHOM thcfc prcfents fhall come. 
 We, R. G. of, he. in the county of, &c. Efq. D. R. M. 
 of, &:c. in the county of, &c. Efq. and P. S. of, &c. 
 Efq. SEND greeting: WHEREAS J. H. of, &c. in 
 the county of, &c. cooper, J. M. of, &c. in the faid 
 county of, he. bookfeller, claiming in right of his 
 wife, J. M. late J. H. fpinfter ; the Rev. J. S. of, he. 
 in^ the county of, &c. clerk, claiming in right of his 
 late wife, C. S. formerly C. H. fpinfter, now deceafed, 
 and C. H. of, he. aforefaid, fpinfler, by a certain 
 bond or obligation, bearing date the day of 
 
 in the year became bound to 
 
 T. H. of, &c. in the faid county of, he yeoman, in 
 the penal fum of one thoufand pounds, and the faid 
 T. H. by another bond or obligation, bearing even 
 date therewith, became bound to the faid J. \l. — ^J. M. 
 and Jane his wife, J. S. and C. H. in the like penal fum, 
 with conditions written under the faid feveral bonds, 
 that they the faid J, H. — J. M. and Jane his wife, J. S. 
 and C. H. and the faid T. H. refpeftively, fliould ftand 
 to, obey, abide by, obferve, perform, fulfil, and keep 
 the award, order, arbitrament, final end, and deter- 
 mination of us the faid R. G.— D. R. M. and P. S. 
 arbitrators, indifferently chofcn, elefted, and named, 
 as well by and on the part and behalf of the faid J. H. 
 J. M, and Jane his wife, J. S. and C. H. as on the 
 part and behalf of the faid T. H. to arbitrate, award, 
 judge, determine, and agree for, upon, touching and
 
 APPENDIX. 407 
 
 ■A T • ' ■ — . 
 
 concerning all and all manner of claim and claims, 
 which they, or any, or cither of them, had or pre- 
 tended to have by, from, or under the feveral wills 
 of T. T. long llnce deceafed, G. II. deceafcd, and 
 J. H. alfo deceafed, rcfpcaively ; AND WHEREAS 
 by endorfement in writing on the back of each of the 
 faid feveral bonds, under the hands and feals of the 
 faid J. II.— J. M. and Jane his wife, J. S. and C. H. 
 and of the faid T. II. bearing date ref})e6lively the 
 
 day of in the year 
 
 Ihc time for us the faid arbitrators, making our award 
 in manner aforcfaid, is enlarged until the eighth day 
 of November then next enfuing: NOW KNOW YE 
 that we the faid R. G.— D. R. M. and P. S. having taken 
 upon ourfclvcs the burthen of the faid arbitration, and 
 having heard, and duly and maturely weighed and 
 conlidered the feveral allegations, vouchers, and proofs 
 brought before us by and on behalf of the faid parties 
 in difference refpeftively, and having fully examined 
 into their feveral alleged claims and intcrcfts under 
 the feveral and refpeftive wills of the faid T. T. — G. H. 
 and J. II. deceafed, DO FIND that the faid T. T. by 
 his faid will, among other Ipccific legacies, gave and 
 bequeathed to his nephew J. T. v,'ho is yet living, the 
 yearly interefl of two hundred pounds, at the rate of 
 four pounds ten fliillings for one hundred pounds for a 
 year, for and during the term of his natural life, and 
 that after the dcceafe of the faid J. T. the faid teftator 
 gave and bequeathed the faid principal fum of two 
 hundred pounds, unto and amongfl all and every the 
 child and children of his faid nephew J, T. that ihould 
 be living at the time of the deceafe of the faid teftator, 
 to be equally divided between them, Ihare and Iharr 
 E c 4
 
 4o8 APPENDIX. 
 
 alike, and tliat the faid 'I". T. l)y his iaid will, gave, 
 deviled, and bequeathed all the reft and rcfklue ot' 
 his cftate, both real and jierlbnal, fubjcft neverthelel's 
 to the payment of his debts, legacies, and funeral ex- 
 peaces, with whicli he charged, as well his real, as his 
 perfonal eftate, to the faid G. II. his heirs, executors, 
 and adminlftrators, wh.oni he appointed fole executor 
 of his faid will. AND \V¥. the faid R. G.— D. R. iM, 
 and \\ S. do further find that the cftate of the faid 
 1\ I , which came to the hands and pofteftion of 
 the faid G. H. dcceafed, was fully fufficient to fatisfy 
 and difchargc all the debts and legacies and funeral 
 expcnces of the faid i\ T. and the expences attending 
 the execution of his faid will ; and that a certain 
 hcehold lioufe, with a clofe of land adjoining and 
 thereto belonging, with the appurtenances, fituate, 
 lyhig, and being at, &c. in the faid county of, kc. 
 now in the pofteirion or occupation of the faid 
 C. H. was part of the cftate of the faid T. '1'' 
 charged by him, in and bv his faid will, with the 
 payment of his debts, legacies, and funeral expences 
 as aforefaid, and remains fubjccl to and chargeable 
 with the bequeft, hereinbefore mentioned, to the faid 
 ]. T. and his children ; AND FURTHER that the faid 
 T. H, as furviving executor of the will of the faid G. II. 
 is entitled to the fum of one hundred pounds, fccured 
 by mortgage on a certain freehold houfe, with the 
 appurtenances, fituate at, kc. aforefaid, and known 
 bv the fign of the White Lion, in the tenure or occu- 
 pation of ^V . K. AND AVE DO further nnd that all 
 claim, intcreft, and demand, which the faid J. H. 
 lane M. or the faid J. M. in her right, and the faid 
 J. S. in right of his faid late wife, or either of them,
 
 AITENDIX. 409 
 
 ever had in or upon the eftatc or cfFecls, or under or 
 by virtue of the wills of the faid 'J\ T. — G. H. and 
 ]. H. or of either of them, have been fully fatislied and 
 (lifchargcd: AM) W'K the faid R. G. -D. R. M. and 
 P. S. do hereby award, order, and- adjudge that the faid 
 C. H. her heirs, executors, or admin'ijlrators, fhall, within 
 one ealendar month from the day of the date hereof, 
 deliver into the hands of the faid'l'. lb or of his ecrtain 
 attorney, his executors, or adminiftrators, all deeds 
 and other writings iii her cuflody, poflelTion, or power, 
 relating to or in any way affeding the faid freehold 
 houfe, with the appurtenances, known by the lign of 
 the \\'hile Lion, and Jliall, alfo, ivlthln one month from 
 the day of the date hereof, convey by good and fuffiaent 
 conveyance and affurayicc in the law, and deliver poffeffion 
 of the fiiid freehold houfe and clofc, with the ap- 
 purtenances, lituate at, 6cc. aforefaid, and all deeds 
 and other writings relating to or in any way affefting 
 the fame, or the title thereof, to the faid T. H. 
 or his certain attorney, or his heirs: AND WE DO 
 further award that the faid C. H. flia'l retain for her 
 own ufc and benefit all other the efFeds which 
 came or which may hereafter come to her hands or 
 polIelTion, as executrix of the laft will and teftament 
 of the faid J. H. (favc and except any rents ivhich fic 
 may have received Jince the deceafe of the faid J. H. 
 fr or on account of the faid efi ate at, i£c. aforefaid), in 
 full fatisfaftion of all claim, intereft, and demand 
 • which Ibe has or ever had in or upon tlie eftate and 
 efFc£ts, or under or by virtue of the faid feveral wills 
 of the faid T, T.— G. H. and J. H. or of cither of them : 
 AND WE DO hereby further award that the faid T. H. 
 iball, out of the laid mortgage on the faid houfe, with
 
 •f »o 
 
 > r p I N D I y . 
 
 the appurtenances, at, kc. called the White Lion, and 
 out of the faid freehold houic and clofc at, &c. pay, 
 fatisfy, and difcharge the bcqucft to the faid J. T. 
 and his children, according to the dircflion of the faid 
 will of the faid T. T. AND WE DO further award 
 and order that the faid C. H. Jhall account for and pay 
 to the faid T. H. his executors, or adminifirators, within 
 one month from the date hereof, all rents ivhich fJie way 
 have received, for or on account of either of the eflates at, 
 l^c. and, i^c. aforefaid, fince the deccafe of her faid 
 brother J. H. AND WE DO alfo award and order 
 that the faid T. H. fliall pay and refund to the faid 
 C. H. her executors, or adminifirators, all fum and 
 fums of money which flic may have advanced or paid 
 the faid J. T. for and on account of the intercfl of the 
 faid fum of two hundred pounds mentioned in the will 
 of the faid T. T. fmce the deceafe of her faid brother 
 J. H. AND WE DO likewifc award, order, and direft 
 that the faid T. H. fhall, within one month from the 
 date hereof, pay or caufe to be paid to the faid C. II. 
 the fum of twelve pounds twelve fliillings for and in 
 full confideration of all expenccs which Ihe has been at 
 in the repairs of the faid houfes at, &:c. and, he. afore- 
 faid, or otherwife howfocver : AND WE DO further 
 award that the faid C. II. Ihall feal and execute to the 
 faid T. H. a releafe of all demands, for or on account 
 of any claim or interert in or upon the eilate and 
 efFefts, or under or by virtue of the wills of the faid 
 T. T.— G. H. and J. H. or of either of them : And 
 further that the faid C. II. do and flmll, within one 
 calendar month from the date hereof, deliver unto the 
 faid T. H. his executors, or adminifirators, all books, 
 agcompts, difcbarges, reicafes, and Nvritings whatfocvcr,
 
 ArrEN'Dix. 411 
 
 refpcfting only the eftatcs of the faid T. T. and G. H. 
 deceafcd, or cither of them, and which are now in her 
 cuftody, poirefhon, or power ; and that when the faid 
 C. H. Ihall have fully comphcd wiili this our award, in 
 all things hereby ordered to be done by her, then the 
 faidT. H. fliall fcal and execute to her a funilar releafe ; 
 and that the faid J. H. and J. M. in right of liis fiiid 
 wife, and tlie faid J. S. in right of his faid late wife, 
 fliall fri'l and execute fimilar reieafes to the faid 
 T. H. and C H. AND WE DO alfo award and 
 order that the faidT. II. do and fhall execute to the 
 faid C. H. a bond in the penal funi of eight hundred 
 pounds, under a condition to indemnify her the faid 
 
 C. H. againfl all demands of the faid J. T. and his 
 children w'ho were hving at the time of tlie deceafc 
 of the faid T. T. or any perfon or pcrfuns claiming 
 through tJiem, and alfo againil all and every other 
 perfon or perfons whomfoever claiming under the will 
 and wills of the faid T. T. and G. H. deceafcd, or either 
 of them: 'AND LASTLY, we do hereby award and 
 order that the faid T. H. fhall pay or caufe to be paid 
 all charges and expences attending the prefent arbitra- 
 tion. IN WITNESS whereof we the faid R. G. 
 
 D. R. M. and P. S. have hereunto let our hands and 
 feals refpedlively, the day of in the 
 year of our Lord 
 
 (Signed) R. G, L. S. 
 
 D. R. M. L. S. 
 
 P. S. L. S. 
 
 Signed, fealed, and delivered, N 
 (being tirft duly (lamped) > 
 JQ tlic prcfence of J 
 
 (Signed) R. R. Not. Pui>,
 
 ^■ii APPENDIX. 
 
 Bo's D fro fft J. S. to 1\. S. in the Penal Sum of looo/. 
 
 THE CONDITION of tins obligation is fuch that 
 if the above boundcn J. S. his heirs, exeeiitors, and ad- 
 rainillrators, for and on In's and their parts and behalves, 
 do in all things well and truly ftand to, obey, abide, 
 perform, fulfil, and keep the award, order, arbitra- 
 ment, final end, and determination of K. H. of, he. in 
 the county of, 8:c. gentleman, and W. A, of, &:c. in 
 the faid county, gentleman, arbitrators, indifferently 
 nimcd, eleftcd, and chofen, as well on the part and 
 behalf of the above-boundcn J. S. as of the above- 
 named R. S. to arbitrate, award, judge, and determine, 
 of and concerning all and all manner of adion and 
 actions, caufe and caufcs of aftion, fuits, bills, bonds, 
 deeds, fpecialties, judgments, executions, extents, quar- 
 rels, controvcrfies, trefpaffes, damages, and demands 
 whatfocver, at anytime or tijnes heretofore had, made, 
 moved, brought, commenced, fued, profccuted, done, 
 fuffered, committed, or depending, by or between the 
 faid parties, or either of them, fo as the fame award be 
 made in writing, under the hands and fcals of the laid 
 arbitrators, on or before the day of 
 
 next enfuing: But if the faid arbitrators do not make 
 fuch their award of and concerning the premifes by the 
 time aforcfaid, then, if the faid j. S. his heirs, execu- 
 tors, and adminiftrators, for and on his and their parts 
 and behalves, do in all things well and truly fland to, 
 obey, abide, perform, fulfil, and keep the award, order, 
 arbitrament, umpirage, final end, and determination of 
 fuch pcrfon as the faid arbitrators fliall appoint as an
 
 APPF.VDrX- 41^ 
 
 iinipirc between the faid parties of and concerning the 
 prcinifcs, io as the faid umpire do make his award or 
 umpirage, of and conctrning the preniifcs, on or before 
 the day of next enfuing, then 
 
 this obhgation to be void, or clfc to remain in full 
 force : And the faid J. S. doth confcnt and agree that 
 his fubmilhon to the award or umpirage above men- 
 tioned ihali and may be made a rule of his Majefly's 
 Court of King's Bench, at Weftminfler. And it is 
 hereby further agreed, that the laid parties and their 
 witnelles Ihall be examined upon oath before the faid 
 arbitrators and umpire, being firfl duly fworn for that 
 purpofc before the Lord Chief Juftice, or one of the 
 other ludgcs of his Majcfty's Court of King's Bench, at 
 Wcftminrtcr : a\nd that notliing herein contained fliall 
 extend, or be conftrucd to extend, to diflolve an in- 
 junftion obtained by the faid J. S. in his Majcfty's 
 Court of Chancery, veftraining the faid R. S. from pro- 
 ceeding at law againft the faid J. S. touching the mat- 
 ters in the faid injundlion mentioned or referred to ; 
 but the faid arbitrators or umpire are to be at liberty 
 to order the faid injunftion to be dilTolved if they think 
 proper. 
 
 J. S. L. S. 
 
 Sealed and delivered (being firft 
 duly llamped) in the prefcnce 
 of' 
 
 H. R. 
 
 WE the above named E. II. and W. A. do appoint, 
 and the above named J. S. and R. S. do hereby con- 
 fcnt, that S. K. of, 6tc. Efq. Barrifler at Law, Ihall be
 
 414 APPENDIX. 
 
 the umpire between the laid arbitrators. Wltiicfs our 
 hands this day of one thoufund 
 
 feven hundred and 
 
 W. II. 
 Witncfs, E. II. 
 
 J. H. J. S. 
 
 R. S. 
 
 The Award. 
 
 TO ALL TO WHOM thefe prefents Hiall come, I, 
 S. K. barriftcr at law, of, &c. Efq. fend greeting: 
 WHEREAS J. S. late of, &c. in the parifli of, 6cc. 
 in the county of, &:c. but now of, &;c. in the faid 
 county. Gentleman, being poffefTed of a certain farm 
 lituate in the neighbourhood of, &:c. in the county of, 
 &c. by virtue of a certain indenture of Icafe thereof 
 to him granted by A. R. Efq. for a certain term of 
 years therein mentioned, and being indebted to R. S. 
 of, &c. in the faid county of, &c. mercer, did, by a 
 certain indenture of mortgage, bearing date the 
 day of in the year and made between 
 
 the faid j. S. of the one part, and the faid R. S. of the 
 other part, ccmvey to the faid R. S. the faid indenture 
 of leafe, and the premifes thereby demifed, to fccure to 
 the faid R. S. the payment of the fum of five hundred 
 pounds, with lawful intercft, from the day of the date 
 of the faid indenture of mortgage ; in which faid 
 indenture of mortgage is contained a provifo for re- 
 demption of the faid indenture of leafe, and the pre- 
 mifes thereby demifed, on the payment by the faid 
 J. S. his executors, adminiftrators, or alTigns, to the
 
 APPEXDIX. 
 
 4M 
 
 faid R. S. his executors, adminiflrators, or afligns, with 
 intereft therein as aforcfaid, on the day of 
 
 in the year AND WHEREAS 
 
 neither the faid fiim of five hundred pounds, nor any 
 part thereof, nor any intercfl thereon, was paid on the 
 faid day of whereby the faid mortgage 
 
 became abfolutc at law ; and the faid R. S. took pof- 
 felTion of the faid farm on or about the day of 
 
 in the year and hath ever fincc 
 
 continued in polTcfiion thereof, and in receipt of the 
 profits imd proceeds thereof: AND WHEREAS various 
 other tranfaftions and matters of account have for 
 fcveral years paft taken place between the faid parties- 
 and the faid J. S. hath hitcly filed a bill in the High 
 Court of Chancery againll the faid R. S. and divers 
 difputes, animofities, and contentions, have taken place 
 between the faid parties ; for the appcafing, pacifying, 
 ordering, and determining whereof, the faid R. S. and 
 J. S. have fubraitted themfelves, and are become bound 
 each to the other by their feveral obligations, bearing 
 date the day of in tlie year 
 
 of the reign of our Sovereign Lord George the Third, 
 by the grace of God of Great-Britain, France, and 
 Ireland, King, Defender of the Faith, and in the year 
 of our Lord ^ in the penal fum of one thoufand 
 
 pounds of good and lawful money of Great-Britain, 
 with conditions thereunder written, to Hand to, obey, 
 abide by, perform, fulfil, and keep the award of W. A. 
 of in the county of gentleman, and 
 
 E. H. of in the faid county, gentleman, arbi- 
 
 trators, indifferently chofcn, as well on the part and 
 behalf of the faid R. S. as of the faid J. S. to arbitrate, 
 award, order, judge, and determine of and concerning
 
 4i6 AP^-ENDIX. 
 
 all and all manner of a^^ion and aclions, caui'c and 
 caufcs of action, fuits, bills, bonds, fpecialties, judg- 
 ments, executions, extents, quarrels, controvcrllcs, trel- 
 paffcs, damages, and demands whatfoever, at any time 
 or times theretofore had, made, moved, brought, com- 
 menced, fucd, profcrutcd, done, fufFcrcd, committed, 
 or depending by or between the faid ])artics, or either 
 of them, fo as the fame award were made in writing, 
 under the hands and fcals of them the faid \V. A. and 
 E. H. on or before the day of 
 
 then next cnfuing: but if they the faid W. A. and V.. 
 H. fliouid not make fuch their award on or before the 
 faid day of then that they the faid 
 
 parties fliould fland to, obey, abide bv, perform, fidfil, 
 and keep the award, order, arbitrament, umpirage, iinal 
 end, and determination, of fuch pcrfon as the faid ar- 
 bitrators fliould appoint as an umpire l)etween the faid 
 parties, of and concerning the premifes, lo as the laid 
 umpire Ihould make his award or umpirage, of and 
 concerning the premifes, on or before the 
 day of then next enfuing: AND WMKREAS 
 
 the faid W. A. and E. H. did, by a note in writing, 
 under their hands, bearing date the day of 
 
 written under the condition annexed 
 to the faid b(.^ds, appoint me the faid S. K. to be the 
 umpire between them: AND WHKRl'.AS the faid 
 W. A. and E. H. did not make any award of and con- 
 cerning the premifes on or before the faid 
 day of NOW KNOW YE, that I the faid 
 
 S. K. appointed umpire as aforcfaid, having taken upon 
 myfelf the charge of the faid umpirage ; and having 
 deliberately, and at large, heard, examined, and con- 
 fidcred the allegations, witneircs, and evidences of
 
 APPENDIX. 417 
 
 botli the faid parties concerning the premifcs, DO 
 thereupon make tliis my umpirage and final dctc nni- 
 nation, in writing, between tlie faid parties, of and 
 concerning the premifes, in manner and form follow- 
 ing, that is to fay, that all proceedings on the faid 
 Bill in Chancery HkiU ccafe and be from hcrcforth con- 
 fidercd as null and void, and of no effe£l, as if the faid 
 Bill had been difmiffed by an order of the faid Court : 
 and I do hereby adjudge, that, after giving the faid 
 J. S. credit for the produce of the crop of hay and 
 beans now remaining undifpofed of on the faid farm, 
 and for the value of the after-grafs up to the 
 day of laft, there remained due to the faid 
 
 R. S. from the faid J. S. on the faid day of 
 
 on the faid mortgage, the fum of two 
 hundred and feventy-two pounds fixteen fhillings and 
 lixpence, exclufively of tlie two fcveral funs of one 
 hundred and three pounds twelve fhillings and fixpence 
 for the rent of the faid farm, and thirteen pounds four 
 fliillings for tithes, both due on the day of 
 
 laft, but which were not paid by the faid 
 R. S. on or beft)re the faid dav of the faid 
 
 month : And I do hereby further adjudge, that the faid 
 J. S. was on the faid day of further 
 
 indebted to the faid R. S. in the fum of fevcn hundred 
 and fixteen pounds fifteen fhillings and eight-pence, oil 
 a general account, indcpcndcntiv of the faid mortgage, 
 and exclufively of the fum of one hundred and twenty- 
 feven pounds, being the eftimated value of the feveral 
 articles mentioned in a certain inventory, figned by the 
 faid R. S. and now in the poffcffion of the faid J. S. 
 which feveral articles were left by the faid J. S. on the 
 fdid farm when he quitted the pofleffion thereof, for 
 
 F f
 
 4^8 ArrK.vDix. 
 
 which I have given the faid J. S. credit in taking the 
 
 faid general account, and alfo exclufively of the fum of 
 
 one hundred and feven pounds, being the eftimated 
 
 value of a large quantity of dung now lying on the 
 
 faid farm, but not fpread thereon, and for vi^hich I have 
 
 not given the faid R. S. credit in Hating the account 
 
 between the faid parties, relative either to the faid 
 
 mortgage or to the faid general account: And I do 
 
 hereby award that the faid R. S. fhall forthwith caufc 
 
 the faid quantity of dung to be fpread on the faid farm ; 
 
 and if the faid J. S. fliall, on the day of 
 
 now next enfuing the date of thefe prefents, or at any 
 
 time before that day, pay to the faid R. S. fuch fum of 
 
 money as, on a fair account to be taken between them,. 
 
 fhall appear to be due to the faid R. S. on the faid 
 
 mortgage, and Ihall cither pay to the faid R. S. the faid 
 
 fums of one hundred and tvventy-fevcn pounds and one 
 
 hundred and feven pounds, with intercft on the latter 
 
 fum from the faid day of or fhall 
 
 jointly, with two rcfponfible pcrfons, to be approved 
 
 of as hereafter mentioned, enter into a bond to the faid 
 
 R. S. in the penal fum of four hundred and lixty-cieht 
 
 pounds, with a condition to be void on the payment of 
 
 the faid feveral fums of one hundred and twenty-fevca 
 
 pounds and one hundred and feven pounds to tlie faid 
 
 R. S. within fix calendar montlis from the day of the 
 
 date of fuch bond, together with intercft on the faid- 
 
 fum of one hundred and fcvcn pounds from the faid 
 
 day of And fhall alfo jointly, with 
 
 the faid two refponfible perfons, execute a warrant of 
 
 attorney to the faid R. S. of even date with the faid bond, 
 
 authorizing him to enter up judgment againft them 
 
 in his Majefty's Court of King's Bench for the faid fum 
 
 4
 
 of four hundred and fixty-eight pounds, with a dcfca- 
 fanrc annexed to the faid warrant of attorney that it 
 (hall be v id on payment to tlic faid R. S. of the faid 
 fums o^ ne hundred and twenty-feven pounds and one 
 hdndred and fcvcn pounds, with interefl on the latter 
 film ;is aforefaid, within fix calendar montlis from the 
 day of the d'lte thereof, then he the faid R. S. fliali 
 deliver up to the fiiid J. S. the polfeffion of the faid 
 farm, and the feveral articles fpecified in the inventory 
 Hereinbefore mentioned : And 1 do hereby further 
 award and dire£l, that on the one fide of the faid ac- 
 count fhall be flated as well the faid fum of two hun- 
 dred and feventy two pounds fixtecn fliillings and fix- 
 pence, together with intereft thereon from the faid 
 day of to the day of the taking 
 
 the; faid account, as all rent, tithes, taxes, and other 
 feafonable and proper charges and expences, including 
 tine expences of fpreading the faid dung on the faid 
 farm, paid, difburfcd, and incurred by the faid R. S. on 
 account of the faid farm ; and on the other fide of the 
 faid account fhall be flated the profits and proceeds of 
 the faid farm, received or enjoyed by the faid R. S. 
 from the faid day of to the day 
 
 of fettling the faid account ; but the faid J. S. fiiali not 
 ill any fhape be charged with the expences of carrying 
 the produce of the faid crop now remaining on the faid 
 farm undifpofed of, nor fliall he be charged with any 
 expences accrued on account of the garden and or- 
 chard adjoining to the houfe, on the faid farm, nor 
 have any credit given him on account of the produce 
 of the faid garden and orchard, but fhall be allowed in 
 t!ic faid account at the rate of fifteen pounds by the 
 year, in the name of rent, for the faid houfe, garden.^ 
 
 F f 2
 
 4*0 APl'EKDIX. 
 
 and orchard, from the faid day of to the 
 
 time of fettling the faid account, PROVIDED that the 
 faid two pcrfons to be offered by the faid J. S. as fecu- 
 rities for the payment of the faid fum of two hundred 
 and thirty-four pounds, be approved by the faid W. A. 
 and E. H. or in cafe they fliall not agree in the courfe 
 of one week from the time when the names of the faid 
 pcrfons propofcd as fecurities fhall be given in by the 
 faid J. S. to the faid R. S. then to be approved by me 
 the faid S. K.— AND PROVIDED ALSO that the faid 
 J. S. fliall give to the faid R. S. fix weeks notice in 
 writing of his intention to redeem the faid mortgage, 
 together with the names of the two pcrfons he fhall 
 propofe as fccurity for the payment of the faid feveral 
 fums of one hundred and twenty-feven pounds and one 
 hundred and feven pounds, with intcreft on the latter 
 fum as aforefaid, if he fliall propofe to give fuch 
 fecurity inflead of paying the faid fums : AND I DO 
 hereby further award and determine, that if the faid 
 J. S. fliall not in manner aforefaid redeem the faid 
 mortgaged premifes on or before the faid day 
 
 of now next enfuing, then he ihall be for ever 
 
 foreclofed of all equity of redemption thereof: AND 
 the faid R. S. fhall become abfolute owner of the faid 
 farm, and of the faid indenture of Icafe, and of the 
 faid feveral articles contained in the inventory herein- 
 before mentioned, fully, freely, and clearly difcharged 
 of all claim or demand of the faid J. S. and of all and 
 every perfons and perfon claiming by or through him, 
 or in his right, and that in fuch cafe the faid R. S. Ihall 
 take the faid farm and indenture of leafe, in full fatis- 
 faftion for the faid fum of five hundred pounds fecured 
 by the faid mortgage, and all intcreft thereon, and 
 
 4
 
 APPE-NDrX. 
 
 4it 
 
 fliall take the faid Icvcral articles contained in the faid 
 inventory as a full and compieat fatisfaftion and dil- 
 cliargc to the faid J. S. for the faid fiim of one hundred 
 and twenty-feven pounds, for which I have given him 
 credit as afurefaid in tlic faid general account : AND I 
 DO hereby further order and award, that the faid J. S. 
 (hall, within two days after the date of thefe prefcnts, 
 notice thereof being inmmediately given to him, execute 
 to the faid R. S. a warrant of attorney authorizing the 
 faid R. S. to enter up judgment againft him for the fum 
 of one thoufand four Juindred and thirty-three pounds 
 eleven fhillings and four pence, being the amount of 
 the double of the faid fum of feven hundred and fixteen 
 pounds fifteen fhilUngs and eight-pence, with a de- 
 feafance thereto annexed, that if the faid J. S. fhall 
 pay to the faitl R. S. the fum of one hundred pounds 
 on or before the day of in the year 
 
 and the fum of fifty pounds every fix 
 months afterwards, that is to fay, on tlie 
 day of in the "year on the 
 
 day of in the faid year, and fo on till the 
 
 whole fum of fevcn hundred and fixteen pounds fifteen 
 fliilllngs and eight-pence fhall be difcharged, then the 
 faid warrant of attorney fliall be void, but that the fai4 
 R. S. Ihall be at liberty to fue out execution on tl>e 
 faid judgment for the whole fum of fevcn hundred and 
 fixteen pounds fifteen fhillings and eight pcnc*, on 
 default of any one payment as aforefaid, or for fo mucli 
 of the faid fum as fiiall remain due and unpaid when 
 fiich default fliall be made : AND I DO hereby further 
 award, that the faid R. S. fhall pay the fum of ten 
 pounds towards the dlfcharge of the bill of G. S. for 
 exprnces incurred in the courfe of this arbitration, at 
 
 ^ f 3
 
 4ii APPENDIX. 
 
 his houfe called the Old Swan, in, ^c. und that the 
 faid J. S. fliall pay to the faid G. S. the .cmainder of 
 his faid bill : AND I DO hereby finally ordt r and 
 award tliat the faid R. S. fhall forthwith, execute to tiie 
 faid J. S. a general releafe of all aftions, caufe and 
 caufes of aftions, judgments,, fuits, controvei-fics, tref- 
 paflcs, debts, duties, damages, accounts, reckonings, 
 and demands whatfoe^cr, for or by reafon of any 
 jna,tter, caufe, or thing v. hatfoever, from the beginning 
 of the world until the day of the date of the faid bonds 
 of arbitration, fave and except the faid warrant of 
 attorney hereinbefore awarded, to be executed by the 
 faid J. S, to the faid R. S. and that the faid J. S. Ihall 
 forthwith execute to the faid R. S. a fimilar releafe, 
 with the exception only of his right to redeem the faid 
 mortgaged premifes on the terms and in the manner 
 Jiereinbefore direded and appointed : IN WITNESS 
 whereof, I, the faid S. K. to both parts of this prefent 
 award indented, have fet my hand and feal, this 
 day of one thoufand feven hundred and 
 
 S. K. ' Z. S. 
 
 Signed, fealtd, and delivered, 
 (being firfl: duly flamped) 
 >n the prefence of 
 
 R. W. H,
 
 APPENDIX. 42_J 
 
 The Releases given by each of the Parties In ohedlencr 
 to the Award, 
 
 KNOW ALL MEN 1/ t.hcfc prefents, that I R. S. 
 of, &c. in the county of, &c. mercer, have remifed, re- 
 leafed, and fci ever quit claimed ; and by thefe pre- 
 fents do remife, releafe, and for ever quit claim, unto 
 J. S. of, &:c. in the faid county, gentleman, his heirs, 
 executors, and admi'niftrators, all aftions, caufe and 
 caufcs of a6lion, judgments, fuits, controverlies, tref- 
 pafTcs, debts, duties, damages, accounts, reckonings, 
 and demands whatfoever, for or by reafon of any mat- 
 ter, caufe, or thing whatfoever, from the beginning of 
 the world to the day of laft, fave 
 
 and except a certain warrant of attorney, directed to 
 be executed to mc by the faid J. S. in and by a certain 
 award made this day of in the 
 
 year by S. K. Barrifler at Law, of, &c. Efq. on a 
 
 reference to him of all difputes between me and the 
 faid J. S. 
 
 KNOW ALL MEN by thcfc prefents, that I J. S. 
 of, Sec. in the county of, he. gentleman, have remifed, 
 releafcd, and for ever quit claimed ; and by thefe pre- 
 fents do remife, releafe, and for ever quit claim, unto 
 R. S. of, hcc. in the faid county, mercer, his heirs, 
 executors, and adminiftrators, all anions, caufe and 
 caufes of aftion, judgments, fuits, controveffics, tref- 
 pafles, debts, duties, damages, accounts, reckonings, 
 and demands whatfoevei", for or by reafon of any mat- 
 ter, caufe, or thing whatfoever from the beginning ot
 
 4»4 APPENDIX. 
 
 the world to the day of lafl, fave 
 
 and except my right to redeem a certain farm now in 
 mortgage to the faid.R. S, at the time, under the terms 
 and in the manner prefcribed in and by a certain award 
 made the day of in the year 
 
 by S. K. Barrifler at Law, of, bcc. Efq. on a reference 
 to him of all difputcs between me and the f^id R. S.— 
 In Witness 
 
 Submission I>y Indenture. 
 
 THIS INDENTURE TRIPARTITE made, &c. be~ 
 tween E. G. of, &c. and J. A. of, 6cc. executors of the 
 laft will and teftamcnt of P. M. late of, &:c. deceafed, 
 of the iirft part; P. M. G. one of the grandchildren of 
 the faid P. M. deceafed, by his daughter, late the wife 
 of the faid E. G. now alio deceafed, of the fecond part; 
 the faid P. M. G. the faid J. A. hufband of E. A. the 
 only furviving daughter of the faid P. M. deceafed, 
 J. B. the younger, of, 5cc. hufband of L. G. grand- 
 daughter of the faid P. M, deceafed, E. G. the younger, 
 of, &c. Jof. G. of, &c, John G. of, &c, P. A. of, &c. 
 and S. A. of, &c. all grandchildren of the faid P. M. 
 deceafed, of the third part : — 
 
 Whereas fome differences and difputcs have arifen 
 and are ftill depending between the faid E. G. the 
 elder, and J. A. as executors aforefaid, and the faid 
 p. M. G. and alfo between the faid executors, and the 
 fdid J. A. in right of his wife the faid E. A. the fai4
 
 AI'FEN'DfX. 415 
 
 P, M. G. the fiiid J. B. the younger, tiie faid E. G. the 
 younger, the faid Jol". G. the faid John G. tlic faid 
 P. A. and S. A. in their refpetflivc rights and qualities 
 above mentioned, touching the eftatc and effefts of the 
 faid P. M. dcccafed, and in order to put an end to the 
 faid differences and difputes, and to obtain an amicable 
 adjuftment thereof, The faid parties have, and each 
 and every of them hatii, agreed to refer the fame to 
 the award, order, arbitrament, and final determination 
 of R. W. of, &c. N. A. of, &c. and Ed. G. of, &:c. or 
 any two of them, arbitrators indifferently elected and 
 named to arbitrate, award, order, judge, and determine 
 of and concerning the faid differences and difputes, 
 between the faid parties refpedively : NOW THIS 
 INDENTURE witneffeth, that they the faid E. G. the 
 elder, and |. A. as executors as aforefald, and the faid 
 p. M. G. — J. B, the younger, E. G. the younger, Jof. 
 G. — John G. — p. A. and S. A. do, and each and 
 every of them doth, each for himfelf and herfelf 
 fcvcrally and refpc£livcly, and for his and her feveral 
 and refpeftive heirs, executors, and adminiftrators, 
 covenant, promife, and agree to and with each other, 
 his and her heirs, executors, and aJminiftrators refpec- 
 tively, well and truly to ftand to, obey, abide by, 
 obferve, perform, fulfil, and keep the award, order, 
 arbitrament, and final determination of the faid R. W. 
 N. A. and Ed. G. or any two of them, arbitrators, 
 indifferently elected and named by and on behalf of 
 the laid parties refpedively, to arbitrate, award, order, 
 judge, and determine of and concerning [all and all 
 manner of a£tIon and a£lions, caufc and caufes of 
 aftion, fuits, bills, bonds, fpccialties, covenants, con- 
 tracts, promifes, accounts, reckonings, fums of money,
 
 4a6 APPEKDIX. 
 
 judgments, executions, extents, quarrels, controverlics, 
 trefpafTes, damages, and demands whatfocver, both in 
 •law and equity at any time heretofore, had, made, 
 moved, brought, commenced, fued, profecuted, com- 
 mitted, or depending by or between the faid parties, or 
 any of them, touching] ' the prcmifes, or any thing in 
 any wife relating thereto, fo as the faid award of the 
 faid arbitrators, or that of any two of them be made in 
 writing under their hands, or under the hands of any 
 two of them. And it is alfo agreed by and between 
 the faid parties, that thefe prefents, and the fubmiffion 
 hereby made of the faid mutters in controvcrfy, fhall 
 be made a rule of his Majefty's Court of King's Bench 
 at Weftminfter, to the end that the faid parties refpec- 
 tively may be finally concluded by the faid arbitration, 
 purfuant to the ftatute in that cafe made and provided ; 
 and the faid parties do hereby further agree that none 
 of them fhall or will profecute any adion or fuit in any 
 court of law or equity againft the faid arbitrators, any 
 or either of them, or bring or prefer any bill in equity 
 againft each other, of and concerning the premifcs 
 until the faid award be made and delivered, alfo that 
 all cofls and charges attending the prefent arbitration 
 fhall be in the difcretion of the faid arbitrators or any 
 two of them, and paid and fatisfied purfuant to their 
 award, and to the full performance of the prcmifes, 
 the faid parties bind thenifelves feverally and rcfpec- 
 tively, their feveral and refpedive heirs, executors, 
 and adminiftrators, each to the other of thera refpec- 
 
 AIl between the brackets is not only unneccfifary, but Teems 
 improper.
 
 APPENDIX. 4«7 
 
 tively, in the penal fum of 5000I. of good and lawful 
 pioney of Great- Britain, firmly by thefe prefeots : IN 
 WITNESS whereof, they have hereunto fct their hands 
 and fcals rcfpeftively, the day and year iirft above 
 written. 
 
 Signed, fealcd, and delivered 
 (being firft duly ftamped) 
 in the prcfence of 
 
 AwARP made hy the //ir^t^ Arbitrators on the ahons 
 Submission. 
 
 TO ALL to whom thefe prefents fhall come, We, 
 R. W. of, &c. N. A. of, &c. and Ed. G. of, &c. fend 
 greeting: WHEREAS in and by a certain Indenture 
 tripartite, bearing date, &c. and made between, &c. 
 [reciting nearly the whole of the indenture] as by the 
 faid indenture relation being thereunto had, may more 
 fully and at large appear ; NOW KNOW YE that we 
 the faid R. W. — N. A. and Ed. G. having taken upon 
 purfclves the charge of the faid award, and having 
 Jjeard, and duly and maturely weighed and confidered 
 the feveral allegations, vouchers, and proofs brought 
 jbefore us, by and on behalf of the faid parties rcfpec- 
 tively, arc of opinion that the intention of the faid 
 P. M. deceafed, was by his lail will and teftament to 
 difpofe of, give, devife, and bequeath the following 
 Jegacies and property, namely, unto his widow E. M. 
 the intcrcfts or dividends ariling from 4000I. three per 
 cent, confolidated Bank annuities, and the ufe of the 
 houfehpld furniture, plate, and utenlils in and apper- 
 taiijing to the teftator's houfe at Plaillow, &c. wherein
 
 4i8 APPENDIX. 
 
 he died, hh chariot, a horfc, and cow, (valued together 
 at 642I. IS. id.) during her natural life, and from and 
 after her dcccafe, the faid annuities,"^ houfchold furni- 
 ture, plate, and iiteniils, to be the property of, and 
 divided amongft his feven grand-children, the above 
 named P. M. G. &c. by even and equal portions ; unto 
 the faid P. M. G. all his the tcflator's intereft or con- 
 cern in fliipping, and the benefit to arife therefrom, 
 fhare and fliare alike to the faid P. M. G. &c. to the 
 faid P. M. G. the houfe then occupied by his father the 
 faid E. G. the elder ; to the faid L. B. the houfe then 
 occupied by Mrs. F. and to the faid E. G. the younger 
 the houfe then occupied by Mr. G. all which houfes 
 are fituatc in or near Broad-ftreet, in the faid parifh of 
 St. George in the Eaft ; unto the faid feven graiad- 
 children the following fpecific legacies or fums of 
 money, that is to fay, to the faid P. M. G. and L. B. 
 the fura of 2000I. each, to the faid E. G. the younger, 
 Jof. G. John G. — P. A. and S. A, loool. each, and to 
 his daughter the faid E. A. a fum of 3000I. alfo the 
 houfe and land fituate at Plaiftow aforefaid, then and 
 now in the occupation of the faid J, A. together with 
 his coach and horfes : 'EHEREFORE WE DO hereby 
 appreciate and fix the aSorefaid devifes, legacies, and 
 bequeils, made, given, and bequeathed, or intended 
 to be made, given, and bequeathed to tlic faid E. M. — 
 P. M. G.— L. B.— F. G. the younger, Jof. G. John G. 
 P. A. — S. A. and E. A. refpe£lively, in and by the laft 
 will and tellament of the faid P. Jkl. deceafed, in 
 
 In fad the tcftator haci made no difpofition of the principal 
 after his widqw's deceafc,
 
 APPSN'DIX. 4:9 
 
 manner above mentioned : AND WE DO aAvard anJ 
 conflim the fame to the faid dcvifces and legatees, 
 their HEIRS and ASSIGNS refpeftively ; and we do 
 order and direft the faid feveral devifees and legatees, 
 and all and every perl'ons or perfon claiming or to 
 claim for, by, or from or under them or any of them, 
 to be and remain fully fatisfied and contented with tlie 
 funis and proportions of the eftate, goods, chattels, and 
 credits of the faid P. M. deceafed, here above fpecified 
 fo far as relates thereto, or to any part thereof. AND 
 WE DO order and direft that the faid E. G. the elder, 
 and J. A. as executors as aforcfaid, do and Ihall well 
 and truly pay, or caufe to be paid, unto the faid P. M. G. 
 at, &c. on, 5cc. between the hours^ &c. the fum of 
 1690I. in full of all claims and demands the faid 
 P. M. G. or his reprefentat,ives, can or may have on. 
 the eftate of the faid P. M. deceafed, for balance of 
 account due to him as partner with the faid late P. M. 
 at the time of his deceafc ; AND WE DO dire£t the 
 faid P. M. G. to receive the faid fum accordingly : AND 
 WE DO hereby further award and order that one 
 moiety of the book debts due and owing to the faid 
 P. M. deceafed, and the faid P. M. G. as partners in 
 trade, and which have been taken by the faid P. M. G. 
 at and for the fum of 1375I. iball be the property of 
 the faid P. M. G. that the remaining moiety thereof 
 ihall be the property of and divided among the faid 
 leven grand-children of the faid P. M. deceafed. WE 
 DO alfo aw^ard unto the faid E. A, all the houfehold 
 furniture and utenfils that were in the houfe now occu- 
 pied by the faid J. A. at the deceafe of the faid late 
 P. M. together with every article then in, upon, or in 
 uny wife belonging or appertaining to the faid huuie
 
 430 APrES'DIX. 
 
 and premifes: AND WE DO moreover award and 
 order that all the reft, refidue, and remainder of the 
 eftate, goods, chattels, and credits of the faid P. M. 
 deccafed, fhall be the property of and divided among" 
 his faid feven grand-children, the faid P. M. G. — L. B, 
 E. G. the younger, Jof. G. John G. — P. A. and S. A. 
 by even and equal portions ; AND WE DO likewife 
 award, order, and direft, that the faid E. G. the elder, 
 and J. A. as executors as aforefaid, do and fhall well and 
 truly pav, or caufe to be paid, unto the faid P. M. G. 
 one moiety of the faid book debts, and to each of them 
 the faid P. M. G. — ^J. B, the younger, in right of his 
 wife the faid L. B. — E. G. the younger, Jof. G. — ^^fohn 
 G. — P. A. and S. A. an equal portion of the other 
 moiety of the faid book debts, alfo their refpeftive 
 proportion, or fuch part thereof as has not been already 
 paid of the intcreft or concern in fliippin j of the faid 
 P, M. deceafed, purfuant to an agreement entered into 
 between th- faid E. G. the elder, and J. A, as executors 
 as aforefaid, and the faid P. M. G. amounting as per 
 faid agreement to 15751- and which agreement WE 
 DO dire£t fhall l^c finally confirmed, as alfo of fuch 
 other part of the faid fhipping, or intereft therein of 
 the faid deceafed, as has not been included in the faid 
 agreement, and likcv.-ifc of the reft, refidue, and re- 
 mainder of his cftate, goods, chattels, and credits not 
 otherwife difpofcd of, in, or by his laft will or tcfta- 
 ment, as the fame fliall be from time to time collcdled, 
 gotten in, and received by the faid executors to ihc 
 amount of 140I. or upwards: AND WE DO dircdt" 
 the faid devifees and legatees refpeftively, and every 
 other perfon claiming or to clain-i by, from, or under 
 them, or any of them, from time to time, when law-
 
 AVPKNUTX. 431 
 
 fullv required to (ign, foal, execute, and UeJiver good 
 and iullicicnt rcleai'es, acquittances, and dilchargcs for 
 all monies paid, or to be paid, to them by the faid 
 executors, by virtue ot the aforefaid will, and of thcfe 
 prefents ; AND WE DO moreover award that the faid 
 K. G. the elder, and J. A. as executors as aforefaid, do 
 
 and lliall pay into the hands of and 
 
 public notaries, the fum of 12I. ras. at or before the 
 delivery of this our award, for charges of the prefent 
 reference ; and upon performance of this our award, 
 all differences and difputes in any wife fubfifling by 
 and between the faid parties, or any of them, previous 
 to the day of the date of the faid recited indenture, 
 touching the premifes, fliall utterly ceafe and deter- 
 mine. IN WITNESS, &c.* 
 
 Rule ij/" Reference at Nisi Prius, zvhere « Juror 
 is vjithdraivn. 
 
 LONDON) AT the fitting of Nifi Prius held at 
 TO WIT. ^ Guildhall, in and for the city of London, 
 on, 6cc. and in the year of the 
 
 reign of our Sovoreign Lord George the 
 Third, now King of Great- Britain, &c. 
 before the Right Honorable Lloyd Lord 
 Kenyon, Chief Juftice of our Lord the 
 King, alTigned to hold the Pleas bcforet 
 the King himfclf. 
 
 "' This is the award-referred to in p. 3 5»— 3 54'
 
 43* 
 
 ArpF.vniv. 
 
 Horton) it is ordered by the Court, by and with 
 1'. > the confent of the plaintiff and defendant. 
 Bolt. ) their counfel, and attornies, that the lail 
 iuryman fworn and impannelled in this caufe, be with- 
 drawn out of the panncl, and that all matters in dif- 
 ference between the faid parties in this caufe be re- 
 ferred to the award, order, arbitrament, final end, and. 
 determination of F. C. of the Middle Temple, Efq. 
 fo as he fhall make and publilh his award in writing of 
 and concerning the premifes in quellion, on or before 
 the day of Hilary Term now next enfuing ; and 
 
 that the faid parties Hiall and do perform, fulfil, and 
 keep fuch award, fo to be made by him the faid arbi- 
 trator as aforefaid : And it is alfo ordered, by and with 
 fuch confent as aforefaid, that the cofts of the faid 
 caufe fhall abide the event and determination of the 
 fiiid award, and that the coils of the faid reference 
 fhall be in the difcretion of the faid arbitrator, who 
 fhall direft and award by whom, and to whom, and in 
 what manner the fame Ihall be paid : And it is likewife 
 ordered, by and with fuch confent as aforefaid, that 
 the plaintiff and defendant refpeftively are to be ex- 
 amined upon oath, to be fworn before the faid Lord 
 Chief juflice, or fome other Juiliice of the fame Court 
 of our Lord the King before the King himfelf, if 
 thought necelTiuv by the faid arbitrator, and do produce 
 before the faid arbitrator all books, papers, and writings 
 touching and relating to the matters in difference be- 
 tween the faid parties, as the faid arbitrator fliall think 
 fit, and that the witnelTes of the plaintiff and defendant 
 rcfpedlively are to be examined upon oath, to be fworn 
 before the faid Lord Chief Jufuce, or fomc other Juflice 
 of the fame Court: And it is likc\vifc ordered, by an4
 
 APPENDIX. 453 
 
 with fuch confent as aforefaid, that neither the plaintiff 
 or defendant fhall profccute, or bring any a£lion or fuit 
 in any court of law or equity againft the faid arbitrator, 
 or bring or prefer any bill in equity againft each other, 
 of and concerning the prelnifcs in queftion fo as afore- 
 faid referred ; And it is further ordered, by and with 
 fuch confent as aforefaid, that if either party fhall, by 
 affetSted delay or otherwife, wilfully prevent the faid 
 arbitrator from making an award, he fhall pay fuch 
 cofts to the other as the faid Court of our faid Lord 
 the King, before the King himfelf, fhall think rcafon- 
 able and juft: And laftly, it is ordered by the like 
 confent as aforefaid, that the faid Court of our faid 
 Lord the King, before the King himfelf, may be prayed 
 that this order may be made a rule of the fame court. 
 
 By the Court. 
 T. L. 
 
 Rule c/ Reference o^NisiPrius, '■johere « Verdict 
 is taken for the Plaintiff. 
 
 LONDON) AT the fitting of Nifi Prius held at 
 TO WIT. ) Guildhall, in ind for the city of London, 
 on, 6cc. in the year of our Lord 
 and in the year of the 
 
 reign of our Sovorcign Lord George the 
 Third, now King of Great-Britain, &c. 
 before the Right Honorable Lloyd Lord 
 Kenyon, Chief Juftice of our Lord the 
 King, affigned to hold Piqas before the 
 King himfelf. 
 
 G g
 
 434 APPENDIX. 
 
 M ^ IT is ordered by the Court, by and with 
 
 V. > the confent of the plaintiff and defendant, 
 
 L 3 their counfel, and attornies, that the jury 
 
 find a verdift for the plaintiff damages and 
 
 cofts fubjeft to this order and the award 
 
 to be made purfuant thereto ; and that all matters in 
 difference between the faid parties be referred to 
 the award, order, arbitrament, rinal end, and deter- 
 mination of T. C. of, &c. in the county of, &c. Efq. 
 fo as he Ihall make and publilh his award in writing of 
 and concerning the premifes in qucffion, on or before 
 the day of Trinity Term now next enfuing ; and 
 
 that the faid parties fhall and do perform, fulfil, and 
 keep fuch award, fo to be made by him the faid arbi- 
 trator as aforefaid : And it is alfo ordered, by and with 
 fuch confent as aforefaid, that the cofts of the faid 
 caufe fliall abide the event and determination of the 
 faid award, and that the cofts of the reference fhall 
 be in the difcretion of the faid arbitrator, w^ho fliall 
 direft and award by whom, and to whom, and in 
 what manner the fame fhall be paid : And it is likewifc 
 ordered, by and with fuch confent as aforefaid, that 
 the plaintiff and defendant refpcftively are to be ex- 
 amined upon oath, to be fworn before the faid Lord 
 Chief Juflice, or fome other Juftice of the fame Court 
 of our Lord the King before the King himfelf, if 
 thought neceffary by the faid arbitrator, and do produce 
 before the faid arbitrator all books, papers, and writings 
 touching and relating to the matters in difference be- 
 tween the faid parties, as the faid arbitrator fhall think 
 fit, and that the witneffes of the plaintiff and defendant 
 refpeftively are to be examined upon oath, to be fworn 
 before the faid Lord Chief Juflice, or fome other Juflice
 
 APPENDIX. 435 
 
 of the fame Court: And it is likcwife ordered, by and 
 with fuch confcnt as aforefiiid, that the defendant fliall 
 not bring any writ of error to reverfe the faid judgment, 
 and that neither tlic plaintiff nor the defendant fhall 
 profecute, or bring any ajftion or fuit in any court of 
 law or equity againft the faid arbitrator, or bring or 
 prefer any bill in equity againft each other, of and 
 concerning the premifes in queflion fo as aforefaid 
 referred : And it is further ordered, by and with fuch 
 confent as aforefaid, that if either party fhall, by 
 affefted delay or otherwife, wilfully prevent the faid 
 arbitrator from making an award, lie fhall pay fuch 
 cofls to the other as the faid Court of our faid Lord the 
 King, before the King himfclf, fhall think reafonabie 
 and jufl : And lailly, it is ordered, by the like confent 
 as aforefaid, that the faid Court of our faid Lord the 
 King, before the King himfclf, may be prayed that this 
 order may be made a rule of the fame court. 
 
 By the Court. 
 . T. L. 
 
 Special Reference by Rule o/'Court. 
 
 WEDNESDAY next after fifteen days of the Holy 
 Trinity, in the 38th year of King Geo. the 3d. 
 
 ■V UPON hearing Mr. P. of counfel for 
 
 C. V. E. j- ^^^ plaintiff, and Mr. E. of counfel for. 
 
 the defendant, and by their confent IT IS ORDERED, 
 
 that the plaintiff be at liberty forthwith to enter up 
 
 G g 2
 
 4j6 At-PEKDlX. 
 
 judgment for the damages mentioned in the declaration 
 in this caufc and cofts of fuit, fuch judgment to be 
 fubjeft to the award hereinafter mentioned, and that 
 all matters in difpute between the plaintiff and defend- 
 ant fhall be referred to the final award of S. K. of, &c. 
 and i. E. of, &:c. barrifters at law, fo that their award 
 be made in writing, and ready to he delivered to the 
 party requiring the fame, on or before the firfl day of 
 next, and in cafe the faid S. K. and I. E. flnall 
 not then be prepared to make and publifh their faid 
 award, or cannot agree touching the matters hereby to 
 them referred, then that the fame fhall be referred to 
 fuch third perfon as the faid S. K. and I. E. fhall mu- 
 tually agree upon and nominate, whofe name fhall be 
 indorfed hereon, before the faid arbitrators fhall pro- 
 ceed on the faid arbitration, fo that the faid lafl men- 
 tioned award or umpirage be made in v/riting, and 
 ready to be delivered to fuch of the parties as require 
 the fame, on or before the firfl day of next : 
 
 And in cafe the faid arbitrators or umpire fliall not be 
 prepared to make and publifli their awai'd or umpirage 
 at the refpeftive times aforefaid, then the faid parties 
 fhall from time to time confent to fuch enlargement of 
 the time for the making and publilhing the faid award 
 or umpirage as this Court or any of the Judges thereof 
 fhall deem reafonablc ; and that the cofls of this a£tion, 
 and alfo the cofls of a certain aftion brought by the 
 defendant againll the plaintiff in the Court of Common 
 Pleas, and alfo the coHs of the reference and the award 
 to be made in purfuance thereof, fliall abide the event 
 and >.letermination of the faid award : And that neither 
 the plaintiff nor defendant fliall be examined before the 
 faid arbitrators or umpire, but that they fliall produc'.v
 
 APPEVDIX. 437 
 
 before the faid arbitrators or umpire all books, papers, 
 and writings in their rcfpeftivc cuftody or power, 
 relating to the faid matters in difference, as the faid 
 arbitrators or umpire fhall dircft ; and that the witnefles 
 of the plaintiff and defendant refpeftively, (if required 
 by the faid arbitrators or umpire), fhall be examined 
 upon oath to be fworn in open Court, or before fome 
 Judge of this Court; and that neither the plaintiff nor 
 defendant fhall bring or further profecute any aftion or 
 fuit in any court of law or equity againfl the faid arbi- 
 trators or umpire, or againfl each other, or bring or 
 prefer any bill in equity againfl each other, of and 
 concerning the premifes in queflion fo as aforefaid 
 referred : And in cafe either party fhall negle6l or 
 refufe to attend the faid arbitrators or umpire, the faid 
 arbitrators or umpire fhall be at liberty to proceed in 
 the faid arbitration, and make their or his awar4 
 ex parte. 
 
 By the Court. 
 We appoint 
 
 the 
 
 day of 
 
 at 
 
 o'clock precifcly, 
 
 at 
 
 
 
 I. E. 
 
 
 S. K. 
 
 G g 3
 
 43^ APPENDIX. 
 
 Award made on the foregoing Submission. 
 
 TO ALL TO WHOM thefe prefents fhall come, 
 I. E. of, &:c. in the county of, &c. Efq. and S. K. 
 of, &:c. Efq. barrifters at law, send greeting:— 
 WHEREAS divers fuits, difputes, controvcrfics, and 
 differences having arifen and being depending between 
 B. C. late fourth mate of the Melville Caftle Indiaman, 
 and W. E. late third mate of the fame fliip, of and 
 concerning divers fums of money claimed by the faid 
 B. C. to be due to him from the faid W. E. and alfo 
 of and conrprning divers other fums of money claimed 
 by the faid W. E. to be due to him from the faid B. C. 
 AND WHEREAS the faid B. C. for the recovery of 
 the faid fums of money claimed by him to be due from 
 the faid W. E. had commenced an aftion againft the 
 faid W. E. in his Majefly's Court of King's Bench ; 
 and the faid W. E. for the recovery of the faid fums of 
 money claimed by him to be due from the faid B. C. 
 had commenced an aftion againll the faid B. C. in his 
 Majefly's Court of Common Pleas ; and the faid two 
 aftions refpeftively, at the time of making the rule or 
 order of his Majefly's Court of King's Bench next 
 hereinafter mentioned, were depending and undeter- 
 mined : AND WHEREAS by a rule or order of his 
 Majefly's Court of King's Bench made in the faid 
 aftion, in which the faid B. C. was the plaintiff, and 
 the faid W. E. was the defendant as aforefaid, on 
 next after fifteen days of the Holy Trinity, in 
 the year of King George the Third, It was 
 
 ordered (among other things) that the faid B. C. fhould
 
 APPEMDIX. 
 
 439 
 
 be at liberty forthwith to enter up judgment for the 
 damages mentioned in the dechiration in the faid eaufe 
 then depending in the fald Court of King's Bench, and 
 cofts of fuit, fubjcft to the award in the faid order 
 mentioned ; and that all matters in difpute between 
 the parties in the faid laft-mentioned caufe fhould be 
 referred to the award of us the faid I. E. and S. K. 
 fo that our award fhould be made in writing, and ready 
 to be delivered to the party requiring the fame on or 
 before the day of next, after the date 
 
 of the faid order or rule of court ; and that the cofts 
 of the faid lafl-mcntioncd a6tion, and alfo the cofls of 
 the faid aftion brought by the fiiid W. E. againft the 
 faid B. C. in the Court of Common Pleas, and alfo 
 the colls of the reference and of the award to be made 
 in purfuance thereof, Ibould abide the event and de- 
 termination of the faid award : NOW KNOW YE 
 that we the faid I. E. and S. K. having, in purfuance 
 of the faid rule or order, taken upon ourfclves the 
 burthen of the faid arbitration, and having heard and 
 read all the evidence adduced and brought before us 
 for and on the parts and behalf of the faid B. C. and 
 W. E. refpeftively touching the matters in difference 
 between them as aforefaid, and having duly weighed 
 and maturely confldercd the fame, do make and publifh 
 our award of and concerning the premifes in manner 
 following: THAT IS TO SAY, we the faid I. E. and 
 S. K. do find that the faid B. C. is indebted to the laid 
 W. E. in the fum of of lawful money of 
 
 Great-Britain ; and we do hereby auard and order, 
 that the faid B. C. Ihall pay to the faid W. E. the faid 
 fum of upon demand thereof; and we 
 
 do further award, order, and determine, that the faid 
 c^ g 4
 
 44© 
 
 APPENDIX. 
 
 B. C. fhall execute to the faid W. E. a general releafe 
 of all matters in difference between them up to the 
 date of the faid order or rule of court, and that the faid 
 W. E. fhall, on payment of the faid fum of 
 and of the cofts of the faid two actions fo depending 
 as aforefaid, and alfo the cofts of the reference and of 
 this our award, as dire£ted by the faid rule or order, 
 execute to the faid B. C. a like releafe upon demand 
 thereof being refpe£tively made. IN WITNESS 
 whereof, we the faid J. E. and S. K. have hereunto fet 
 and fubfcribed our names to this our award this 
 day of in the year of our Lord one thoufand 
 
 feven hundred and 
 
 I. E. 
 
 S. K. 
 
 Signed and publifiied as their- 
 award by the above-nanied 
 I. E. and S. K. in the 
 prefcnce of 
 
 R. E.
 
 APPENDIX. 
 
 441 
 
 PI^EADINGS ON AWARDS. 
 
 Indebitatus Assumpsit on an AwAKn/or the Pay- 
 ment of Money. 
 
 LONDON ) A. B. complains of C. D. being, Sec. FOR 
 to wit. \ THAT WHEREAS on, &c. at, &c. 
 divers difputes, differences, and controverfies had 
 arifen, and were depending, between the faid A. B. 
 and the laid C. D. and thereupon for putting an end 
 to the faid difputes, differences, and controverfies, the 
 faid A. B. and the faid C. D. on the fame day and year 
 aforefaid, at, &c. agreed to fubmit, and did fubmit, 
 themfelves to fland to the award, order, and final de- 
 termination of E. F. of, &c. and G. H. of, &c. arbi- 
 trators indifferently named, elected, and chofen, as 
 well on the part and behalf of the faid A. B. as of the 
 faid C. D. to award, order, and determine of and con- 
 cerning the faid difputes, differences, and controver- 
 fies : • AND WHEREAS afterwards, to wit, on, &;c. 
 the faid E. F. and G. H. in due manner made their 
 award, order, and determination, of and concerning the 
 
 ' This form Is on the fup. 
 pofition that no time is limited 
 in the SubmifTion for making 
 the Award ; but if there be 
 a provifo, limiting the time, 
 
 it muft be recited ; and in 
 the fubfequent part it muft 
 be fhewn that the award was 
 made wittiin that time.
 
 44^ 
 
 APPENDIX. 
 
 premifcs,* whereby the faid E. F, and G. H. amongfl 
 other things, awarded and ordered that the faid C. D. 
 his heirs, executors, or adminiftrators, fliould, on or 
 before, &c. then next enfuing, well and truly pay, or 
 caufe to be paid, to the faid A. B. his executors, ad- 
 mi niftrators, or afligns, the fum of one hundred and 
 twenty pounds, and that thereupon the faid A. B. 
 fhould execute to the faid C. D. a general releafe of all 
 aftions, fuits, damages, accounts, reckonings and de- 
 mands whatfoever, from the beginning of the world to 
 the day of the faid fubmiffion ; and that the faid C. D. 
 fhould then execute to the faid A. B. a like general re- 
 leafe : of all which faid premifes he the faid C. D. 
 afterwards, to wit, on, &c. at, &c. aforefaid had notice, 
 by reafon whereof he the faid C. D. became liable to 
 pay to the faid A. B. the faid fum of one hundred and 
 twenty pounds, in the faid award mentioned ; and be- 
 ing fo liable, he the faid C. D. in confideration thereof, 
 afterwards, to wit, on the day and year laft aforefaid, 
 at, &c. aforefaid, undertook and faithfully promifed the 
 faid A. B. to pay him the faid fum of money when he 
 the faid A. B. fhould be thereto afterwards requefted : 
 neverthelefs the faid C. D. not regarding, kc. to the 
 damage of the faid A. B. of two hundred pounds. 
 
 * This is on the fuppofition 
 that there is no provifo that 
 the award fiiould be made in 
 writing ; but if fuch provifo 
 be in the fubmiffion, then it 
 muft be recited in the former 
 part of the declaration, and 
 here the award muft be re- 
 cited to have been made in 
 
 writing : If no fuch provifo 
 be in the fubmiffion, then, 
 whether the fubmiffiion or the 
 award, or both, be in writing 
 or nor, it is not neceffary to 
 fhew that the award was in 
 writing, unlefs, perhaps, 
 where the latter is under 
 hand and feal.
 
 APPENDIX. 
 
 44J 
 
 Assumpsit oji mutual Promises to perform an 
 
 MIDDLESEX ) A. B. complains of C. D. being, &c. 
 TO WIT. \ FOR THAT WHEREAS on, &c. at, 
 
 &c. divers difputes, differences, and controvcrfies had 
 before that time arifcn, and were then depending, be- 
 tween the faid A. B. and the faid C. D. and thereupon, 
 for putting an end to the faid difputes, differences, and 
 controvcrfies, the faid A. B. and the faid C. D. on the 
 fame day and year aforefaid, at, &c. afovefaid, fub- 
 mitted themfelves, and then and there agreed to fub- 
 mit themfelves, to Hand to, abide by, obfcrve, perform, 
 and fulfil the order, rule, and determination of E. F. 
 of, &:c. and G. H. of, &c. indifferently chofcn by the 
 faid A. B. and the faid C. D. to fettle all and all man- 
 ner of debts, differences, quarrels, difputes, reckonings, 
 agreements, and all other dues and demands both at 
 law and in equity, or otherwife howfoever, then fub- 
 fifting between them : And it was then and there fur- 
 ther agreed, that the opinion, award, and determi- 
 nation of them the faid E. F. and G. H. touching the 
 matters in queflion, fhould be final, provided the fame 
 fhould be delivered in writing, and figned by them, on 
 or before, &c. — but if they the faid E. F. and G. H. 
 fhould not be able to fettle the aforefaid difputes and 
 differences on or before the faid, &c. then the faid 
 A. B. and the faid C. D. did, by their faid agreement, 
 empower them the faid E. F. and G. H. to choofe and 
 fix upon fome other perfon, whofe determination fhould 
 be likewife final ; and the faid agreement being fo 
 made as aforefaid, afterwards, to wit, on the fame, &c. 
 in confideration that the faid A. B. at the fpecial in-
 
 444- 
 
 APPENDIX. 
 
 ftance and requeft of the faid C. D. had then and there 
 undertaken and faithfully promifed to perform and fulfil 
 the before-mentioned agreement in all things on his 
 part and behalf to be performed and fulfilled, he the 
 faid C. D. undertook, and then and there faithfully 
 promifed the faid A. B. that he the faid C. D. would 
 perform the faid agreement in all things therein con- 
 tained on his part and behalf to be performed and ful- 
 filled ; and the faid A. B. in faft fays, that the faid 
 E. F. and G. H. being fuch arbitrators as aforefaid, 
 could not agree in opinion fo as to fettle the faid 
 matters in difpute between the faid A. B. and C. D. 
 and thereupon afterwards, and before the faid, Sec. 
 [the time limited for the two arbitrators to make their 
 award] to wit, on, &c. the faid E. F. and G. H. being 
 fuch arbitrators as aforefaid, by virtue of the faid power 
 fo given to them as aforefaid, and by and with the 
 approbation and confent of the faid A. B. and the faid 
 C. D. did nominate and appoint one J. S. to be umpire, 
 to arbitrate, award, order, and finally determine of, in, 
 and concerning all matters in difference between the 
 faid A. B. and C. D. as well on the part and behalf of 
 the faid A. B. as of the faid C. D. fo that the faid J. S. 
 fhould make and fet down his award and umpirage in 
 writing, ready to be delivered to the faid A. B. and 
 C. D. on or before the, &c. And the faid A. B. further 
 fays, that the faid J. S. being fuch umpire as aforefaid, 
 and having taken on himfclf the charge or burthen of 
 the faid award or umpirage, did afterwards, and within 
 the time in that behalf limited for the making of the 
 faid award or umpirage as aforefaid, to wit, on, kc. at, 
 kc. in due manner make and fet down his award or 
 umpirage in writing of and concerning the matters iji
 
 APPENDIX. 
 
 445 
 
 difference at the time of making of the faid agreement, 
 fo referred to him as aforefaid, then ready to be deliver- 
 ed to the faid A. B. and the faid C. D. bearing date the 
 fame day and year laft aforefaid ; and thereby he the 
 faid J. S. did, among other things, award, order, decree, 
 and determine of and concerning the aforefaid matters 
 in difference, that. See. [here fet forth fo much of the 
 award as is neceiTary to fupport the aflion.] Of all 
 which premifes the faid C, D. afterwards, to wit, on 
 the faid, &c. at &c. had notice ; by reafon of which 
 premifes the faid C. D. became liable to pay, &c. to 
 the faid A. B. &;c. [or became bound to do the fpecific 
 thing awarded, and in which it is intended that the 
 breach fhould be afhgncd, as the cafe may be,] accord- 
 ing to the form and cffeft of the faid award, and which 
 he the faid C. D. ought to have done, according- to the 
 form and effeft of the faid agreement and the faid pro- 
 mife and undertaking of the faid C. D. fo made as 
 aforefaid : Yet the faid C. D. not regarding the faid 
 agreement, nor his laid promife and undertaking fo bv 
 him in tliis behalf made, but contriving, &:c. hath not 
 yet paid, &c. [or hath not yet done the thing fpeciri- 
 cally awarded, ^s the cafe maybe,] although he the 
 laid C. D. was thereto requeflcd by the faid A. B. but 
 to pay the fame kc. [or to do, kc. as the cafe may be] 
 hath hitherto wholly refufed, and Hill doth rcfufe, con- 
 trary to the form and effect of the faid agreement, and 
 the faid promife and undertaking of the faid C. D. fo 
 made as aforefaid.^' 
 
 ' Vid. p. II, 277, et fcq 
 
 and for more examples of de- 
 clarations in, afrumpfic on 
 
 awards, vide Wcntworth's 
 ricadi-T, vol. 1, p. 90 — joo.
 
 44^ APPENDIX. 
 
 Debt on an Aw akt> for the Payment o/" Money, 
 
 LONDON) W. G. late of, &c. was fummoned to 
 TO WIT. ) anfvver to J. A. in a plea that he render 
 to him 500I. which he owes to him and unjufliy de- 
 tains from him, &c. and thereupon the the faid J. 
 by C. D. his attorney, fays, that WHEREAS on, &c. 
 at London aforefaid, &:c. divers controverfies and dif- 
 putes had arifen. and were then depending, between 
 the faid J. and the faid W. for the determining whereof 
 the faid J. and the faid W. on the fame, Sec. at, £cc. 
 fubmitted themfelves to fland to the award and deter- 
 mination of J. B. — J. J. and R. B. or any two of tliem, 
 arbitrators indifferently named, defied, and chofen by 
 and between the faid parties to arbitrate, award, order, 
 judge, and determine of and concerning the fame 
 controverfies and difputes, lb as the faid arbitrators, 
 or any two of them, fliould make and publifh their 
 award in writing of and concerning the premifcs fo 
 referred as aforefaid, on or before, hz. and the faid 
 J. in faft, fays, that the faid J. B.— J. ]. and R. B. the 
 faid arbitrators, having taken upon themfelves the 
 burthen of the faid arbitration, they the faid J. B. — 
 J. J. and R. B. afterwards, and within the time above 
 limited for making the faid award, to wit, on, &c. at, 
 &:c. aforefaid, he made their award of and concerning 
 the premifes fo referred to them as aforefaid, in 
 writing under their hands and feals, ready to be de- 
 livered to the faid parties, or cither of them who 
 fhould defire the fame, bearing date the fame day and 
 year lail aforefaid ; and by the faid award they the 
 faid J. B. — ^J. J. and R. B. did award and determine
 
 APPENDIX. 
 
 447 
 
 that the faid W. his executors and adminiftrators, fome 
 or one of them, Ihould on, &tc. enfuing the date of the 
 faid award, at, kc. between the hours, &c. well and 
 truly pay, or caufe to be paid, to the faid J. his execu- 
 tors, adminiftrators, or afligns, the fum of 247I. 9s. 3d. 
 of good, (kc* [and further, by the faid award, they the 
 faid arbitrators did award and determine, that upon 
 payment of the faid fum of two hundred and forty-feven 
 pounds nine fliillings and three-pence by the faid W. 
 his executors or adminiftrators, to the faid J. his execu- 
 tors, adminiftrators, or alTigns, the faid J. and W. their 
 executors and adminiftrators, fhould execute general 
 releafes each to the other of all aftions, claims, and 
 demands whatfoever, from the beginning of the world 
 to, kc] And the faid J. avers that the faid W. did 
 not on, &CC. (the day appointed for the payment of the 
 money,) at, he. (the place appointed) between the 
 hours, 6cc. nor at any other time or place whatfoever, 
 hitherto pay, or caufe to be paid, to the faid J. or his 
 aftigns, the faid fum of 247 1. 9s. 3d. of good, &c. 
 v.'hich by the faid award was to have been paid by the 
 faid W. to the faid J. on that day, and at the time and 
 place aforefaid, according to the form and eft'eft of the 
 faid award, but therein wholly failed and made default ; 
 and the fame, and every part thereof, is ftill wholly 
 unpaid to the faid J. whereby an aftion has accrued to 
 
 4 The claufe between [ ] 
 feems tobe introduced for the 
 purpof- of preventing a de- 
 murrer for the want of mu- 
 tuality ; but as that is cer- 
 tainly not now confidered as 
 a rcquifite to conrtitute a good 
 
 award, this claufe may fafcly 
 be omitted. — Vid. p. 218 — 
 228, and vid. p. 288— 2S9.— 
 What is here faid is mc.int 
 to apply to all between [ ] in 
 the fubk-quent precedents.
 
 44S APPF-VDIX- 
 
 the faid J. to demand and have of the faid W. the faid 
 247I. OS. 3d. parcel of the faid fiim of 500I. above de- 
 manded. AND WHEREAS the faid W. afterwards, 
 
 to wit, on, &c. at, &c. aforefaid, borrowed of the faid 
 T. 252I. I OS. 9d. to be paid to the faid J. when he the 
 faid W. fhould be thereto afterwards requcllcd, by 
 means whereof an aftion has accrued to the faid J. 
 to demand and have of and from the faid W. the faid 
 252I. los. gd. refidue of the faid fum of 500I. above 
 demanded : yet the faid W. although often rcquefted, 
 has not as yet paid the faid fum of 500I. nor any part 
 thereof, to the faid J. but has hitherto refufed, and llill 
 does refufe, to pay the fame, or any part thereof, to 
 tlie faid J. to the damage of him the faid J. of twenty 
 pounds ; and therefore the faid J. brings fuit, &c. 
 
 Declaration in Debt on an Award made by an 
 Umpire. 
 
 LANCASHIRE) T. L. complains of J. S. being, &c. 
 TO WIT. > in a plea that he render to the faid 
 T. 60I. which he owes to and unjuilly detains from 
 him: FOR THAT WHEREAS on, he. at, &c. in, he. 
 divers difputes, differences, and controverfies had arifen, 
 and \vere depending, between the faid T. and the faid 
 T. and thereupon, for the putting an end to the faid 
 differences, difputes, and controverfies, they the faid 
 T. and ]. on the fame, he. at, &c. fubmitted thcni- 
 ielves to iland to the award, order, and final determi-
 
 APPENDIX. 445 
 
 ■ " ill I I I ' II I .1.. I J I. J I . 1 .,..., '" V 
 
 nation of C. D. of, 5cc. and L. B. of, &c. arbitrators 
 indifferently named, clcftcd, and chofen, as well on 
 the part and behalf of the faid J. as of the faid.T. to 
 award, order, judge, and determine, of and concerning 
 the premifes, fo as their award fhould be made in 
 writing, under the hands and feals of llic fiiid C. D. and 
 L. B. ready to be delivered to the faid parties on or 
 before, &c. and if the faid C. D. and L. B. fliould not 
 make their award in writing, under their hands and 
 feals, ready to be delivered to the laid parties on or 
 before, &c. then the faid T. and. J. fubmitted themfelves 
 to fland to, abide by, perform, and keep the award and 
 final determination of E. F.of, &cc. indifferently elected 
 4nd chofen by and between the faid parties for finally 
 determining the faid differences, difputes, and contro- 
 verfies, fo as the faid E. F. Ihould make his award in 
 writing, under his hand and feal, ready to be delivered 
 to the faid parties on or before, &c.— and the faid T. 
 in faa fays, that the faid C. D. and L. R the arbitra- 
 tors aforefaid, did not make their award in writing 
 concerning the premifes, ready to be delivered to the 
 faid parties, within the time in that behalf limited as 
 aforefaid, but intircly omitted fo to do : And the faid 
 T. further in faft, lays, that afterwards, and within the 
 time in that behalf limited for the aforefaid E. F. to 
 make his award as aforefaid, concerning the prcnifes, 
 to wit, on, &c. at, &c. he t^ - faid E. F. having taken 
 upon himfelf the burthen of the faid award, in due 
 manner made his award of and concerning the pre- 
 mifes, in writing under his hand and feal, ready to be 
 delivered to the faid parties, or fuch of them who 
 Ihould require the fame ; and thereby he the faid E. F. 
 did then and tlicre order and award that [all a<^ions, 
 
 H h
 
 ^& ArPE.VDIX. 
 
 if I 1 ' ■ ii 1 r II i' ■ ■ it I ■ = 
 
 fuits, quarrels, and controverfieswhatfoevcr, had, made, 
 moved, arifen, or depending by or between the faid 
 parties at any time before, &c. then laft paft, either in 
 law or equity, for any manner or caufe whatfoever, 
 touching the faid differences and difputes, Ihould ceafe, 
 determine, and be no further profecuted or proceeded 
 in ; and the faid E. F. did, by his faid award, further 
 award, order, and determine, that] the faid J. his exe- 
 cutors or adminiftrators, fliould pay, or caufe to be 
 paid, unto the faid T. his executors or adminiftrators, 
 the fum of 30I. at, &c. on, &c. then next, between the 
 hours, &c. [And, laftly, the faid E. F. did, by his faid 
 award, further order and award, that on payment of the 
 faid fum of 30I. as aforcfaid, each of the faid parties 
 fhould execute to the other a general releafe of all 
 matters and differences between them, from the be- 
 ginning of the world until, &c.] of all which premifes 
 he the faid J. afterwards, to wit, on the faid, &c. at, 
 &c. aforefaid, had notice. [And the faid T. in fail, 
 further fays, that all aftions, fuits, quarrels, and con- 
 trovcrfics whatfoevcr, had, made, moved, arifen, or de- 
 pending by or between the faid parties at any time be- 
 fore, &c. in the faid award mentioned, did then and 
 there, on the part of the faid T. entirely ccafc and de- 
 termine, and have not been any further profecuted or 
 proceeded in,] yet the faid J. did not pay, or caufe to 
 be paid, to the faid T. the faid fum of 30I. fo awarded 
 to be paid as aforefaid, or any part thereof, at the faid 
 time and place appointed for the payment thereof as 
 aforefaid, nor at any other time or place whatfoever, 
 but hath therein wholly failed and made default, 
 whereby an a£lion has accrued to the faid T. to de- 
 mand and have of the faid J. the faid 30I. parcel of the 
 
 4
 
 APPENDIX. 4J» 
 
 I • ' f 
 
 faid 6ol. above demanded : and whereas tlic faid J. 
 afterwards, to wit, on, &c. at, &c. borrowed of the faid 
 T. 30I. rcfidue of the faid 60I. above demanded, to be 
 paid to the faid T. wlicn he the faid J. Ihould be 
 thereto afterwards requeued ; yet the faid J. although' 
 often rcqueftcd, ike. — Damages loh 
 
 Debt on «« Award ^j Umpirage, agalnJI Defen- 
 dant and hh Surety in the Arbitration Bond. 
 
 YORKSHIRE) J. C. comphalns of W. F. and J. T. 
 
 to wit. ^ being, &c. of a plea that they render 
 to him tlic fum of 77I. 5s. of lawful, &:c. which they 
 owe to and unjuftly detain from him : FOR THAT 
 WHEREAS before the time of the fubmiffion hereafter 
 next mentioned, at B. in the county of Y. certain con- 
 troverfies and difputes had arifen and were depending* 
 between tlie faid J. C. and the faid W. and thereupon 
 the faid J. C. and the faid W. for themfeh'es feverally, 
 and the faid J. T. as furety on behalf of the faid W. 
 for the fettling and determining of the faid controver- 
 fies and difputes heretofore, to wit, on, &:c. at, &'c. 
 aforefaid, in writing, . fubmitted themfelves to the 
 award, arbitrament, and determination of one W. H.' 
 and one Jer. Th. arbitrators indifferently named as well 
 on the part of the faid W. F. and J. T. as of the faid 
 J. C. to arbitrate, judge, and determine of and con- 
 cerning all controverfies and demands whatfoever be- 
 tween the faid parties, or any of the'm, To as the? faidJ* 
 H h 2
 
 452 
 
 APPENDIX. 
 
 award were made in writing, and ready to be delivered 
 to the parties requeuing the fame, on or before, &c. 
 but if the faid arbitrators fhould not make fuch their 
 award bv the time aforefaid, then to the award, arbi- 
 trament, umpirage, and determination of futh third 
 perfon, as umpire, as they the faid arbitrators (hould 
 name, eieft, and choofe between the faid parties, of 
 and concerning the premifes, fo as the faid umpire 
 Ihould make his award or umpirage of and concerning 
 the fame, in writing, on or before, Sec. — and the faid 
 J. C. favs, that the faid W. H. and Jer. Th. the faid 
 arbitrators, after the faid fubmiffion, to wit, on, &c. at 
 B. aforefaid, duly named, eleftcd, and chofe one J. P. 
 umpire between the faid parties, of and concerning the 
 premifes, according to the form and effeft of the faid 
 fubmiflion ; and that the faid arbitrators did not make 
 any award of or concerning the fame within the time to 
 them limited for that purpofe : and the faid J. C. further 
 fays, that the faid J. P. fo named umpire as aforefaid, 
 having taken upon himfelf the burthen of the faid um- 
 pirage, did afterwards, and within the time to him 
 limited for the purpofe as aforefaid, to wit, on, &c. at 
 B. aforefaid, make and publifli his award and umpirage 
 of and concerning the premifes, in writing under his 
 hand and feal, ready to be delivered to the parties re- 
 quefting the fame (and which the fiiid J. C. now brings 
 here into court) and did thereby award, arbitrate, and 
 determine that the faid W. F. and J. T. or one of them, 
 Ihould pay, or caufe to be paid, unto the faid J. C. his 
 executors or adminiftrators, the fum of 25I. 15s. of 
 lawful, &c. at, Sec. in B. aforefaid, on, &cc. between the 
 hours, &c. and the further fum of 25I. 15s. of like. Sec. 
 at the fame hour, on, ficc. and iu default of the firft- 
 4
 
 APPENDIX. 
 
 4SJ 
 
 mentioned fum of 25I. 15s. upon the day and time for 
 that purpofe fii-fl: mentioned, then that the faid W. I'", 
 and J. T. or one of them fhould pay to the faid J. C. 
 his executo ;;5 or adminiftratovs, the whole fum of 
 51I. los. on demand ; [and that upon the payment of 
 the two feverai fums of 25K 15s. and 25I. 15s. each 
 party fliould execute to the other a general releafe to 
 the day of the date of the faid fubmilfion,] as by the 
 faid umpirage, relation being thereunto had, will more 
 fully appear. And the faid J. C. further faith, that the 
 faid W. F. and J. T. did not, nor did either of them, 
 pay, or caufe to be paid, unto the faid J. C. the faid 
 lumof25l. 15s. in the faid umpirage firft mentioned, 
 or any part thereof, at the time and place thereby ap- 
 pointed for the payment thereof; but although the faid 
 J. C. then and there rcquefted them to pay the fame, 
 therein wholly made default ; and that thereupon the 
 faid J. C. afterwards, to wit, on, &c. at B. aforefaid, 
 demanded the whole fum of 51I. los. mentioned in the 
 faid umpirage, from the faid W. F. and J. T. who theh 
 and there wholly refufed and neglefted to pay the fame, 
 whereby an aftion has accrued to the faid J. C. to de- 
 mand and have of and from the faid W. F. and J. T. 
 the faid fum of 51I. los. parcel of the faid fum of 
 77I. 5s. above demanded: AND WHEREAS before 
 the time of the fubmiffion hereafter mentioned, at B. 
 aforefaid, certain other controveriies and difputes had 
 arifen and were depending between the faid J. C. and 
 the laid W. F. and thereupon the faid J. C. and the 
 faid W, F. for themfelves feverally, and the faid J. "f. 
 as a furety for the faid W, F. for Uic fettlii^g and de- 
 termining thereof heretofore, to wit, on the faid, &c. 
 at B, aforefaid, in writing, fubmitted thcrafclves to the. 
 H h 3
 
 454 
 
 APPENDIX. 
 
 a\yard, &c. of the faid W. H. and Jcr. Th. arbitrators 
 indifferently named, as well on the part of the faid 
 W. F. and J. T. as of the faid J. C. to arbitrate, &c. fo 
 as the faid award were made in writing, ready to be 
 delivered to the parties requefting the fame on or be- 
 fore, &c. but if the faid arbitrators fliould not make 
 fuch their award by the time aforefaid, then to the 
 jiward, arbitrament, Sec. of fuch third perfon, as um- 
 pire, as they the faid arbitrators fhould name, 8cc. be- 
 tween the faid parties of and concerning the premifcs 
 lafl aforefaid, fo as the faid umpire fhould make his 
 award or umpirage of and concerning the fame, in 
 yvx'iting, on or before, &c. — and the faid J. C. fays, that 
 the faid W. H. and Jer. Th. after the faid lafl men- 
 tioned fubmifTion, to wit, on, kc. duly named, &cc. 
 tjie faid J. P. umpire between the faid parties, of and 
 iconcerning the premifes lafl aforefaid, according to the 
 form and effeft of the faid lafl mentioned fubmiffion, 
 and that the faid arbitrators did not make any award 
 pf and concerning the fame within the time to them 
 limited for that purpofe ; and the faid J. C. further 
 fays, that the faid umpire fo named, &c. as laft afore- 
 faid, having taken upon himfelf the burthen of the 
 *. faid lafl mentioned umpirage, did afterwards, and with- 
 in the time to him limited for that purpofe as aforefaid, 
 |o wit, on, &c. at B. aforefaid, make and publifh his 
 award or umpirage of and concerning tlie faid laft 
 mentioned premifes, in writing under his hand and fcal, 
 ready to be delivered to the parties requefling the fame 
 /;and which the faid J. C. now brings here into court,) 
 and did thereby, among other things, award, &c. that 
 the faid W. F. and J. T, or one of them, fhould pay 
 j^f cuufc to be paid to tl^e faid J. C. his executors, or
 
 APPENDIX. 
 
 455 
 
 adminiftr.itors, the fum of 25I. 15s. of lawful, &c. at, 
 &c. on, ^c. between the hours, &c. as by the faid laft 
 mentioned umpirage, relation being thereunto had, 
 more fully appears: And the faid J. C. further fays, 
 that the faid W, F. and J. T. did not nor did either of 
 them pay or caufc to be paid unto the faid J. C. the 
 faid fum of 25I. 15s. in the faid laft award mentioned, 
 or any part thereof, at the time and place thereby 
 appointed for the payment thereof, but that they and 
 each of them wholly rcfufcd and ncglefted to pay the 
 fame, whereby an aftion hath accrued to the faid J. C. 
 to demand and have of apd from the faid W, F. and 
 the faid J. T. the faid laft mentioned fum of 25I. 15s. 
 refidue of the faid fum of 77I. 5s. above demanded : 
 Yet the faid W. F, and J. T. although often fevcrally 
 requefted, 6cc. have not, nor hath cither of them paid 
 the faid fum of 77I. 5s, above demanded, or any part 
 thereof, to the faid J. C. but have and each of them 
 hath hitherto wholly rcfufcd, and refufe, and each of 
 them refufes fo to do, to the damage of the faid J. C. 
 of 20I. and therefore he brings fuit, &fc. 
 
 H h 4
 
 ^(;6 APPtKDlX. 
 
 Declaration in Debt on an Award made in pur- 
 Jiiance of an Order of Reference at the Assizes 
 on ivithdravjing a JuRoR, and vjhere one of the Arbi- 
 trators rcfufed to a^. 
 
 CORNWALL^ M. W. late of, &c. furgeon, was 
 TO WIT. ) fummoned to anfwer to J. M. and 
 T. P. gentlemen, affignees of the cftate and effedls of 
 D. P. a bankrupt, according to the form and efFe£t of 
 the flatutes, &c. of a plea, that he render to them 
 150I. of lawful, &c. which he owes to and unjuftly 
 detains from them, "^c. and thereupon the faid J. M. 
 and j. P. affignees as aforefaid, by J. A. their attorney 
 complain ; for that WHEREAS on, &c. at, &c. divers 
 differences, &c. had arifen and were depending, and 
 fuits at law and in equity were alfo depending between 
 the faid J. M. and J. P. affignees as aforefaid, and the 
 faid M. W. and WHEREAS at the affiizes held at, &c. 
 in and for the county of C. aforefaid, on, he. a certain 
 caufe then depending between the faid J. M. and J. P. 
 affignees in form aforefaid, and the faid M. W. was 
 then and there to have been tried between them ; and 
 WHEREAS by an order made at the faid affizes fo 
 held at, &c. in and for the county aforefaid, on, he. 
 to wit, at, &c. in the faid caufe, wherein the faid J. M. 
 and J. P. as affignees of the eftate and effe£ls of the 
 faid D. P. were plaintiffs, and the faid M. W. was 
 defendant ; it was ordered by the court, by and with 
 the confent of all parties, their counfel and attornies, 
 that the laft of the jurors impannelled and fworn to 
 determine the iffuc joined between the faid parties in
 
 APPENDIX. 
 
 457 
 
 that caufc fhould be withdrawn, and that all matters 
 then in difference between the faid parties fhould be 
 referred to the award, &c. of H. J. D. and D. V. both 
 of, &c. and J. R, of, &c. ftiled, in the faid order, 
 gentlemen, or to any two of them ; and that the faid 
 parties fhould perform the award of the faid arbitrators, 
 or of any two of thcni, fo as they fhould make and 
 publifli the fame of and concerning the premifes in 
 writing on or before the firfl day of the then next 
 Michaelmas term ; and it was alfo ordered, by and 
 with the like confent, that fuch witnei's or witnefTes as 
 fliould be produced by the faid parties or any of them 
 before the fiiid arbitrators for examination, fhould be 
 fworn before a CommifTioncr of his Majefty's Court of 
 C. B. and that the bill in equity then depending 
 between the faid parties fhould be difmiffed upon 
 making the faid award, as the faid arbitrators fhould 
 determine ; and that no other bill in equity ihould be 
 preferred by either or any of the faid parties againfl 
 the other for or relating to the matters in difpute 
 between them ; and it was further ordered, by and 
 with the like confent, that no bill in equity fhould be 
 preferred by the faid parties, or any of them, againfl 
 the faid arbitrators, or either of them, for or in refpeft 
 of any award they fhould make in the faid premifes ; 
 and that that order fhould be made a rule of his 
 Majefly's Court of C. B. if the Juflices of that Court 
 fhould fo pleafe, as in and by the faid order, relation 
 being thereto had, more fully appears : and the faid 
 J. M. and J. P. aifignees as aforefaid, in faft fay, that 
 the faid' J. M. and J. P. aflignees as aforefaid, for 
 themfelves, and the faid M. W. for himfelf, did on, 
 &c, fubmit te fuch award, and the faid H.J. D, an4
 
 ^53 APPENDIX. 
 
 =^1^;^ ^ 1 : ^ ! . — ■. — - 
 
 D. V. two of the arbitrators aforefaid, having taken 
 upon themfelves the bufinefs and charge of the faid 
 award, and having heard at large the allegations and 
 proofs of the faid parties, and having examined the 
 witnelTes produced before them on oath, and duly and 
 deliberately weighed and confidered the whole, did on, 
 &c. being within the time limited as aforefaid for the 
 making of their award of and concerning the prcmifes, 
 at, &c. make and publilh their award in writing of and 
 concerning the premifes, under their hands and feals, 
 and ready to be delivered to the faid parties, or to fuch 
 of them as fhould defire the fame, on, &:c. (the faid 
 J. R. after having entered on the bufinefs of the faid 
 award with them the faid H. J. D. and D. V. refufing 
 to join with them in the faid award.) And by the faid 
 award, they the faid arbitrators did award, &c. that 
 the faid M. W. his executors or adminiftrators, fhould, 
 on, &c. between the hours, &c. at, &c. well and 
 truly pay, or caufe to be paid to the faid J. M. and 
 J. P. their executors and adminiftrators, the full fum 
 of 150I. of lawful, &c, in full fatisfaftion and difcharge 
 of the debts, &c. which they the faid J. M. and J. P. 
 or either of them had or could have or make upon or 
 againil the faid M. V/. for or in refpeft of any matter, 
 caufe, or thing whatfoever, to the faid, &c. [and 
 fhould within the time and at the place aforefaid, at 
 his and their own proper cofts and charges, deliver or 
 caufe to be delivered to the faid J. M. and J. P. or 
 their attorney, executors, or adminiftrators, a general 
 releafe, &c. (fctting forth the defcription of the releafe 
 in terms of the award) : And the faid two arbitrators 
 did alfo by their award further aw^rd, &c. that upon 
 «ind immed.3teJy after fuch payment of th€ afprefaid
 
 APPENDIX. 
 
 4S9 
 
 fum of 150I. and delivery of fuch releafe duly executed 
 to the faid J. M. and J. P. as aforefaid, they the faid 
 J. M. and J. P. fhould, at their own proper cofls and 
 charges, deliver, or caufe to be delivered unto him 
 the faid M. W. or his attorney, executors, or ad~ 
 miniftrators, a general releafe, &c. (to be Hated in 
 the terms of the award)] : And the faid arbitrators did 
 by their faid award further award, kc. that the afore- 
 faid bill i^ equity depending between the faid parties, 
 and mentioned in the faid recited order to be difmifled 
 upon making their award, fhould be difmiffed withoijit 
 cofts, as by the faid award, relation being thereto had, 
 \vill more fully appear ; and the faid J. M. and J. P. 
 further fay, that [there was not any other matter or 
 thing whatfocver except between the faid J. M. and 
 J. P. as affignces as aforefaid, and the faid M. W. 
 depending between the faid parties, or any of them, 
 at the time of the faid fubmifhon, or at the time of 
 the making of the faid award, or on the faid, &c. and 
 that] the faid M, W. did not on, &c. in the faid award 
 mentioned, between the hours, &c. at, &c. or at any 
 other time or place hitherto, pay or caufe to be paid 
 to them the faid J. M. and J. P. or to either of them, 
 the faid fum of 150I. in the faid award mentioned, or 
 any part thereof j but therein wholly failed and made 
 default, l)y means whereof an adtion has acrcryed, 6fc. 
 Yet the faid M. W. although often yequefted, has not 
 yet rendered the aforefaid fum of 150I. above de- 
 manded, or any part thereof, to the faid J. M. and 
 J. P. afTignccs as aforefaid, or to cither of them, but 
 he to render the fame, &tc. to the d^unage, &.c.* 
 
 » P,or tn^F e^^^mp'.es of Debt on the Award, vid. Wet^worth's 
 Pleader, Yok 5, p. 33^—346,
 
 460 „, ATPF.N'niX. 
 
 DEBJ^ ON BOND, 
 
 Conditioned for the Performance of an Award; 
 where Defendant prays Oyer of the Condition, 
 and pleads " iVo Award, ^f." 
 
 YORKSHIRE) J. B. complains againft J. W. being, 
 TO iviT. ^ 6cc. of a plea that he render to him 
 the faid J. B. 200I. of lawful, &:c. which he owes to 
 and unjuftly detains from him : For that WHEREAS 
 the faid J. W. on, &c. in the year, &c. at, 6cc. in the 
 county of York, by his certain writing obligatory fealed 
 with the feal of the faid J. W. and now fhewn to his 
 Majefty's Court here, the date whereof is on the day 
 and year aforefaid, acknowledged himfelf to be held 
 and firmly bound to the faid J. B. by the name and 
 defcription of, &c. in the fum of 200I. to be paid to 
 the faid J. B, when the faid J. W. fhould be thereunto 
 afterwairds requefted : Yet the faid J. W. although 
 ofteii requcfted, has not yet paid the faid fum of 200I. 
 above demanded, nor any part thereof, to the faid 
 J. B. but ttJ 'pay the fame, or any part thereof, to the 
 faid j:fi. fte the faid J. W. has hitherto wholly refufed,, 
 and ftill do'csrcfuie, to tlic damage of the faid J. B. of 
 lol. and therefof-C h'c brings' his fuit, 6cc. pledges, &c. 
 
 AND the faid" j. W. by C. Ow^en, his attorney, 
 comes and deferids the wrong and injury when, &c. 
 and craves'oyer of the faid writing obligatory, w^hich 
 is read to hitn ; hc alfo cravcs'oyer of The Condition 
 of the faid writing obligatory, which is read to him in 
 thefe Words; to wit, (here fet out ^he Conditron bf'the
 
 APPENDIX. 46 1 
 
 Bond verbatim) which being read and heard, the faid 
 J. W. fays tliat the faid J. 13. ought not to have or 
 maintain his aforciaid adlion againll: him, becaurc he 
 i'ays that the laid arbitralois in the faid condition of 
 the faid writing obligatory named, made no award in 
 writing under their hands within the time limited in 
 the faid condition of the faid writing obligatory, nor 
 did the faid R. W. in the faid writing obligatory men- 
 tioned as umpire in that event, make any award or 
 umpirage in the premifes in writing under his hand 
 within the time for that purpofc, in the faid condition 
 of the faid writing obligatory expreffed, nor did the 
 faid arbitrators choofe any other pcrfon as umpire ; 
 and this the faid J. W. is ready to verify ; wherefore 
 he prays judgment, if the faid J. B. ought to have or 
 maintain his aforefaid aftion thereof againft him. 
 
 AND the faid J. B. as to the plea of the faid J. W. 
 by him above pleaded, fays, that he by reafon of any 
 tiling therein contained ought not to be barred from 
 having and maintaining his aforefaid a£lIon againll the 
 faid J. W. bccaufe he fays, that although true it is 
 that the faid S. A. and J. C. the arbitrators in the faid 
 condition of the faid writing obligatory mentioned, 
 made no award in writing of and concerning the pre- 
 mifes under their hands within the time for that pur- 
 pofe limited in the faid condition of the faid writing 
 obligatory, as in the faid plea is mentioned ; never- 
 thelefs, for replication in this behalf, the faid J. B. 
 fays, that after the expiration of the faid time limited 
 for the faid S. A. and J. C. the faid arbitrators in the 
 faid writing obligatory named, making their award, 
 to wit, on, &c. at, he. the faid R. W. the umpire in 
 the faid condition of the faid writing obligatory named.
 
 4fl APPENDIX. 
 
 having taken upon liimfelf the burlhcn of the fald 
 award, and having fully examined and duly confidcrcd 
 tlie premifes fubmlttcd and referred as aforefaid, made 
 his award or umpirage in writing, fubfcribed with his 
 own hand, in manner following, that is to fay, (here 
 fet forth the award ) : of which laid award the faid 
 J. \V. afterwards, to wit, on, &c. at, &c. had notice ; 
 and the faid J. B. in faft fays that (here fet forth the 
 breach) : and this the faid J. B. is ready to verify ;- 
 wherefore he prays judgment and his debt aforefaid, 
 to be adjudged to him, &c. 
 
 If the award as fet forth in the replication be 
 exceptionable in point of law, or the breach 
 improperly afTigncd, then the defendant may 
 demur: Thus — 
 AND the faid J. W. as to the faid pica of the faid 
 J. B. by him above pleaded in reply to the faid plea of 
 the faid J. W. by him above pleaded in bar, fays that 
 the faid plea fo above pleaded, and the matters therein 
 contained, are not fufficlcnt in law to maintain the 
 faid a£\;ion of the faid J. B. againft him the faid J. W. 
 to which faid replication, in manner and form as the 
 fame is above pleaded and fet forth, the faid J. W. is 
 under no neceffity, nor is he obliged by the law of the 
 land to anfwcr ; wherefore, for want of a fufficient 
 replication in this behaif, the faid J. W. as before 
 prays judgment, and that the faid J. B. may be pre- 
 cluded from having and maintaining his aforefaid aftion 
 againft him the faid J. W. 
 
 But if the award be partially fet forth in the 
 replication, fo that the part omitted, being 
 conneftcd w^ith the part fet forth, w^ould 
 render the whole void, then the defendant
 
 APPEffDix. 4^y 
 
 may fupport his pica of " no award," by 
 
 rejoining that the arbitrators, &c. made " no 
 
 fuch award:" Thus — 
 
 AND the faid J. W. fays, tliat the faid R. W. did 
 
 not make any fuch award of or concerning the pre- 
 
 mifes aforcfaid as the faid J. B. has above in his 
 
 replication alleged ; and of this he puts himfclf upon 
 
 the country, &c. 
 
 PLEA 
 
 To an Action on a Bond of Arbitration, fctt'ing 
 forth the Award, and alleging Performance. 
 
 AND the faid J. W. by C. D. his attorney, conies 
 and defends the wrong and injury, when, Sec. and 
 prays oyer of the faid writing obligatory, and it is read 
 to him, and he alfo prays oyer of the condition of the 
 faid writing obligatory, and it is read to him in thcfe 
 words, to wit : (here fet forth the condition verhatim) 
 which being read and heard, the faid J. \\'. fays that 
 the faid J. B. ought not to have or maintain his afore- 
 faid aftion againft him, becaufe he fays that the faid H. 
 B. and H. F. in the faid condition of the faid writing 
 obligatory named as arbitrators, after the making of the 
 faid writing obligatory, and before, he. to wit, on, Sccv 
 at, &c. took upon thcmfelves the burthen of the exe- 
 cution of the faid arbitrament in the faid condition 
 mentioned, and then and there did make and publifh 
 their award in writing under their hands and feals, of
 
 464 APPENDIX. 
 
 and concerning the premifes fo to them referred as 
 aforefaid; by which faid award (after reciting, &c.) 
 they the faid arbitrators did award and order that, he. 
 (here fct forth the award) : as by the faid award whicli 
 the faid J. W. now brings into court here, fully 
 appears: And the faid J. W. in faft fays that. Sec. 
 (here aver performance in terms of the award) in 
 manner and form as in and by the faid award is di- 
 refted, and according to the true intent and meaning 
 thereof, and of the condition of the faid writing obli- 
 gatory, to wit, at, &c. And this he the faid J. W. is 
 ready to verify ; wherefore he prays judgment if the 
 faid J. B. ought to have or maintain his aforefaid adion 
 againft him. 
 
 And the faid J. B. as to the faid plea of the faid 
 J. W. by him above pleaded in bar, fays, that he by 
 reafon of any thing therein alleged, ought not to be 
 barred from having and maintaining his aforefaid aftion 
 againft him the faid J. W. becaufe he fays that after 
 the faid award and order in the faid plea mentioned 
 had been and was fo made as aforefaid, and after, &c. 
 (here fet forth the breach alleged) contrary to the 
 form, tenor, and efFeft of the faid award, whereby 
 the condition of the faid writing obligatory became 
 and was broken and forfeited, and the faid writing 
 obligatory in full force and virtue ; and this he the 
 faid J. B. is ready to verify ; wherefore he prays judg- 
 ment, and the debt aforefaid, together with his damages 
 by him fuftained on occafion of the detaining thereof, 
 to be adjudged to him, &c.^ 
 
 ' For more examples vid. Wentworth's Pleader, vol. 5, p. 3^6, 
 and p. 454 — 465. Vid. ante, p. 290 — 310.
 
 APPENDIX. 465 
 
 PLEA OF AN AWARD, 
 
 In bar of ayi AcTiON on the original Cause.* 
 
 AND the faid John, by T. H. his attorney, comes 
 and defends the wrong and injury, when, &c. and fays 
 that the faid Richard ought not to have or maintain 
 his aforefaid aftion againfl him, becaufe he fays that 
 after the fevcral promifes and undertakings aforefaid, 
 above fuppofed to have been made by him, and before 
 the day of obtaining the original writ of the faid 
 Richard, (or, of exhibiting the bill of the faid Richard}, 
 to wit, on, &c. at, he. the faid Richard and John 
 fubmitted themfelves to Hand to the award, order, and 
 judgment of one Ofmund Fox, as well of and concern- 
 ing the promifes and undertakings aforefaid, above 
 fuppofed to have been made, as of all other matters 
 and things then depending in controverfy between 
 them ; which arbitrator having taken upon himfelf the 
 burthen of the faid award, afterwards, to wit, on, &;c. 
 at, &c. awarded, ordered, and adjudged between them 
 the faid Richard and John, of and concerning the pre- 
 mifes fo referred to him as aforefaid, in manner and 
 form following, to wit, that the faid John fhould pay 
 to the faid Richard 5I. within 10 days thence next 
 following, at, he. and that all other claims of any 
 other debts or accounts between them the faid Richard 
 and John fliould be null and void ; and that upon the 
 
 ' Vid. ante, p. 381 et fei^. 
 I i
 
 466 APPENDIX. 
 
 faid payment of the faitl 5I. the faid Richard and John 
 ihould give each to the other a general releafe of all 
 matters and things depending between them from the 
 beginning of the world to the time of payment of the 
 faid 5I. And the faid John further fays that no caufe 
 of aftion has arifen or grown between them the faid 
 Richard and John from the time of the aforefaid fub- 
 milTion to the end of the aforefaid ten days : And that 
 the faid John, within the faid ten days, to wit, on, &:c. 
 «:t, &c. offered to pay to the faid Richard the aforefaid 
 5I. and then and there offered to deliver to the faid 
 Richard as his aft and deed a certain releafe in writing 
 by him the faid John prepared and fealed, bearing date 
 the fame day and year laft aforefaid, whereby the faid 
 John was exprefTed to have releafed to the faid Richard 
 all matters and things depending between them. the 
 faid Richard and John from the beginning of the world 
 to the day of the date of the faid releafe, which faid 
 5I. or the faid releafe the faid Richard, of the faid John 
 to receive on the faid, &c. at, &c. altogether refufed. 
 And this the faid John is ready to verify ; whereupon 
 he prays judgment if the faid Richard ought to have or 
 maintain his aforefaid adtion againft him, &c. 
 
 And the faid Richard fays that he by reafon of any 
 thing by the faid John in his faid plea above pleaded 
 in bar, alleged, ought not to be barred from having 
 his aforefaid aftion againft the faid John; becaufe, 
 protefling that the faid John did not offer to pay to 
 the faid Richard the faid 5L nor to deliver to the faid 
 Richard any writing of releafe by the faid John pre- 
 .pared and fealed as the faid John has above in his faid 
 plea alleged, for replication thereto the faid Richard 
 fays that true it is that they the faid Richard and John^
 
 APPENDIX. 467 
 
 after the feveral promifes and undertakings aforcfaid, 
 above as aforcfaid made, and before the obtaining of 
 the original writ of the faid Richard, fubmitted them- 
 felvcs to ftand to the award, order, and judgment of 
 the faid Ofmund Fox, as well of and concerning the . 
 aforcfaid promifes and undertakings as of and concern- 
 all other matters and things then depending in contro- 
 verfy between them ; but the faid Richard further fays 
 that the faid fubmiffion was made under this condition, 
 that the faid Ofmund Ihould make his award, order, 
 and judgment of and concerning the premifes on or 
 before. See. And that he the faid Ofmund did not on 
 or before, &c. make his award, order, and judgment, 
 in manner and form as the faid John has above in his 
 faid plea alleged, and this he the faid Richard is ready 
 to verify ; whereupon he prays judgment and his 
 damages on occalion of the non-performance of the 
 promifes and undertakings aforcfaid to be adjudged 
 to him.^ 
 
 ' Vid. Clift'i Entries, 195, and Wentworth's Pleader, Vol. 3, 
 p. 144. 
 
 I 1 2
 
 463 APPENDIX. 
 
 BILL 
 
 To SET ASIDE an Award, the Jrhitrators having made 
 'improper Allowances to the Party aga'inji whom the Bill 
 
 is filed. 
 
 To the Right Honourable Alexander Lord 
 Loughborough, Baron of Loughborough, 
 in the County of Leicefter, Lord High 
 Chancellor of Great Britain, 
 
 TlaMBLY complaining, flieweth unto your Lordfliip 
 your orator W. K. of, he. in the county of, Sec. up- 
 holfterer, that fome time in or about the month of 
 in the year your orator entered into 
 
 partnerfhip with R. K. of the fame place, in the trade 
 or bufinefs of an upholflerer and paperman, and con- 
 tinued to carry on the faid trade or bufinefs, in con- 
 junftion with the faid R. K. without any written 
 articles till the beginning of the month of in 
 
 the year and your orator further flieweth unto 
 
 your Lordihip, tliat by indenture,, bearing date the 
 day of in the faid year and made 
 
 between the faid R. K. and your qrator, the faid R. K. 
 and your orator agreed to become partners in the faid 
 trade or bufinefs for the term of feven years, to be 
 computed from the day of but fubjed to 
 
 be determined on the events and in the manner in the 
 faid indenture particularly dcfcribcd : and it was by 
 the faid indenture agreed between the faid R. K. and 
 your orator that the faid bufinefs fhould be carried on 
 at the warehoufes belonging to a certain dwelling-
 
 APPENDIX. 469 
 
 houfe, fituate No. — , and at a dwelling-houfe and 
 fliop, lituate No. — , in, &c. aforefaid, and alfo at a 
 work-fhop and packing-houfe, adjoinini^ to certain 
 ftables in the pofTeffion of one Mrs. C. lituate alio in, 
 &:c. aforefaid, or at fuch other place or places as the 
 faid R. K. and your orator fliould agree upon, under 
 the names and firm of R. K. and Co. and that the faid 
 R. K. lliould advance four-fifths and your orator Ihould 
 advance, or fecure to the fatisfadion of the laid R. K. 
 to be advanced, the remaining fifth of fuch money as 
 fliould be neceffary to carry on the faid bufinefs ; and 
 that the faid R. K. and your orator Ihould be interefted 
 in the faid bufinefs, and be intitled to the net profits, 
 and fubjcft to the loflcs to arife or accrue from the faid 
 bufinefs in the proportion of four-fifths to one-fifth re- 
 fpe6tivcly ; and it was thereby agreed that the mefluage 
 or dwelling-houfe, Ihops, work-lhops, ware-houfes, 
 ware-rooms, and packing places, with the appurte- 
 nances where the faid bufinefs fliould be carried on, 
 Ihoukl, during the continuance of the faid partnerfhip, 
 be held by the faid R. K. IN TRUST for the faid bufi- 
 nefs, at the yearly rent of 410I. clear of all taxes and 
 deductions whatfoever, and paid by the faid R. K and 
 your orator, in the proportion of their rcfpeftive Iharcs 
 in the faid bufinefs ; and that fhe faid R. K. and your 
 orator Ihould faithfully account the one to the other 
 for all fuch funis of money, goods, and efredls belong- 
 ing to the faid partnerfliip as Ihould at any time or 
 times come to their hands refpeftively, and that an 
 account of all fuch fums of money, goods, chattels, and 
 effefts, and of all other the dealings and tranfadions 
 concerning the faid partnerfliip, fliould from time' to 
 time be duly entered in proper books cf account, to be 
 
 i i ^
 
 '470 APPENDIX. 
 
 kept for that purpofe, as by the faid indenture when 
 produced to this honourable court will, among other 
 things, more fully and at large appear. And your 
 orator further fheweth unto your Lordfhip that the faid 
 R. K. and your orator, for fome time after the exe- 
 cution of the faid indenture, carried on the faid bufinefs 
 in copartnerfliip, in the courfe of which they purchafed 
 or took leafes of feveral houfes, fituate in, &c. and, 6cc- 
 in the parifh of, &c. in the county of, &c. and out of 
 thre ftock of the faid joint trade furniflicd with houfe- 
 hold goods and furniture not only the faid feveral 
 houfes, but alfo four other houfes, fituate in, &c. in the 
 faid parifh of, &c. and in, &:c. in the parifli of, &c. in 
 the faid county of, &c. the leafes of which four laft- 
 mentioned houfes belonged to and were the fole pro- 
 perty of the faid R. K. and let out all the faid feveral 
 houfes fo furnifhed at eonfiderably advanced rents ; 
 and the faid R. K. and your orator, as partners, alfo 
 furniliied for and on account of fundry perfons feveral 
 houfes in London, Dublin, and elfewhere ; and in the 
 courfe of their dealings in fuch their johit trades, divers 
 perfons in England and Ireland became indebted to 
 them in feveral confiderable fums of money ; and they 
 alfo themfelves became indebted to divers perfons in 
 feveral fums of morf»ey, for fome of which they 
 gave their notes and acceptances : And your orator 
 further' flieweth unto your Lordfhip that various dif- 
 putes and differences having arifen betv/een the faid 
 R. K. and your orator, they mutually agreed fome 
 time in or about the month of ■ • in the 
 
 year to difiolve and determine the faid 
 
 .copartnerfliip, and entered into mutual bonds to each 
 pther to fubmit all matters of difference 1-elative to the
 
 APPENDIX. 4-;i 
 
 A-onccrns.of their faid copaitnerfhip to the judgment 
 and determination of D. S. of, &c. in the faid county 
 of, &c. gentleman, and J. A. of, &c. in the faid county, 
 gentlcj-nan : And accordingly, BY INDENTURE of 
 three parts bearing date the day of in the 
 
 year and made between the faid R. K. of the 
 
 iirft part, vour orator of the fecond part, and the faid 
 D. S. and J. A. of the third part, the faid R. K. and 
 and your orator mutually declared and agreed that the 
 faid copartnerfliip fbould from thenceforth ceafe, de- 
 termine, and be utterly void ; and the faid R. K. and 
 your orator, for the confiderations therein mentioned, 
 bargained, fold, alTigned, transferred, and fet over unto 
 the faid D. S. and J. A. their executors, adminiftrators, 
 and afligns, all thofe feveral leafehold meffuages or 
 dwelling-houfcs, belonging to the faid copartnerfhip, 
 licreinbefore mentioned to be fituate in, &c. and, &c. 
 aforefaid ; and alfo the houfehold goods, furniture, and 
 effcfts contained in the faid four houfes fituate in, &c» 
 &c. and, &c. aforefaid, of which the leafes are herein- 
 before fet forth to have been the property exclulively 
 of the faid R. K. and alfo all the houfehold goods, fur- 
 niture, and efP^fts of and belonging to them the faid 
 R. K. and your orator, at, in, or upon the faid feveral 
 leafehold melTuages and other the premifes, together 
 with the feveral leafes thereof, and all other deeds and 
 writings in the cuilody of the faid R. K. and your 
 orator relating thereto ; and alfo all other the joint 
 ilock, monies, goods, w^arcs, merchandizes, imple- 
 ments, utenfds, eftate, and effefts whatfoever of or 
 belonging to the faid joint trade" or copartnerfhip, or 
 to the faid R. K. and your orator, on account thereof; 
 sad alfo all debts due and owin^ to the faid copar^er- 
 
 I i 4
 
 47* APPENDIX. 
 
 fliip, or to the faid R. K. and your orator, or either 
 of them, in rcfpecl thereof, with full power to afk, 
 demand, fue for, recover, and receive, or compound 
 for all and every the fame debts, and to give acquit- 
 tances for the fame or any part thereof when received ; 
 TO HAVE AND TO HOLD the faid leafehold mef- 
 fuages, with the appurtenances, unto the faid D. S. 
 and J, A. their executors, adminiftrators, and afligns, 
 for the refidue of the feveral terms of years then to 
 come and unexpired therein refpe£tively, and to have, 
 hold, receive, take, and enjoy the faid houfehold fur- 
 niture, ilock in trade, monies, goods, chattels, wares, 
 merchandizes, debts, and cfFefts, UPON the TRUSTS, 
 and to and for the ends, intents, and purpofes therein 
 declared and exprefled, and hereinafter mentioned, 
 that is to fay, UPON TRUST that they the faid D. S. 
 and J. A. fhould, as foon as conveniently might be, 
 poflefs all and lingular the faid premifes, and by one 
 or more fale or falcs, difpofe of all and lingular the 
 faid leafehold mcffuages, houfehold goods, furniture, 
 merchandizes, chattel?, eftate, effedts, and other the 
 premifes, for the moft money and hell prices that 
 could be reafonably had or obtained for the fame, and 
 to give full and fafilcient receipts, releafes, and other 
 difcharges, to the purchafers or other perfons for the 
 monies arifmg therefrom, and Ihould alfo, as foon as 
 conveniently might be, get in, and receive the faid 
 debts and fums of inoney, UPON TRUST to apply 
 and difpofe of all the monies fo to be polTelTed, re- 
 ceived, or recovered,, and to arifc by or from fuch fale 
 or fales and difpofition as aforefaid, and the colleaion 
 of the laid debts or otherwife, by means of the powers 
 and authorities fo vefV..^d in them the faid D. S. and
 
 APPENDIX. 47J 
 
 J. A. in manner following, that is to fay, after dcduft- 
 inf^ and rctiiining thereout fo much as fhould be fuf- 
 licicnt to rcimburfe thcmfelves all fuch fums as they 
 fhould difbuvfc or be liable to pay in the execution of 
 the laid trulls, and for the caufcs in the faid indenture 
 now in recital mentioned, UPON TRUST out of the 
 faid monies in their hands to pay all the notes and 
 acceptances given by the faid R. K. and your orator, 
 for or on account of debts and demands due or owing 
 by or from them or their copartnerfhip, and alfo all 
 other the creditors of the faid copartnerfliip, the full 
 amount of their rcfpcftive debts and demands as they 
 Ihould refpe£tively become due and payable, and then 
 to transfer, affign, and divide all the clear refidue or 
 furplus (if any) unto and between the faid R. K. and 
 your orator, in the proportions of four fifths and one 
 fifth refpedtively : And your orator further fheweth 
 unto your LordlTiip, that after the execution of the 
 faid indenture laft hereinbefore mentioned, the faid 
 D. S. and J. A. in purfuance and by virtue of the 
 powers and authorities thereby created and vefled in 
 them, proceeded in the examination of the faid part- 
 ncrfhip concerns, and collefted and received fundry 
 fums of money on account thereof, but afterwards 
 declined proceeding to a final fettlement of the faid 
 partnerfhip concerns, and a complete execution of the 
 faid trufls, and propofed to the faid R. K. and your 
 orator that they fhould refer the further invcftigation 
 of the faid concerns and execution of the faid trufls to 
 other pcrfons, to which the faid R. K. and your orator 
 agreed : And accordingly, by indenture of three parts 
 bearing date the day of in the year of 
 
 our Lcrd and made between the faid R, K. of
 
 474 APPENDIX. 
 
 the -firft part, your orator of the fccond part, and the 
 faid D. S. and J. A. of the third part : After reciting, 
 among other things, to the purport and effeft herein- 
 before fct forth, and alfo that in the execution of the: 
 aforefaid powers and performance of the faid trufts, 
 they the fliid D. S. and J. A. had found the faid part- 
 nerfhip concerns of the faid R. K. and your orator fo 
 extcnfive, complicated, and dci-anged, as to render it 
 impoffible for them the faid D. S. and J. A. to proceed 
 to a final arrangement or fcttlemcnt thereof, and that 
 the faid D. S. and J. A. had in confequence thereof 
 propofed, and the faid R. K. and your orator had 
 agreed to fubmit the further inveftigation and final 
 arrangement or fettlement of the faid partnerfhip ac- 
 counts and concerns according to the aforefaid trufts 
 to J. H. of, &:c. in the county of, &c. upholder, J. B. 
 of, &c. in the faid county, gent, and J. D. of, &c. in 
 the city of, &:c. accountant, in the manner therein and 
 hereinafter mentioned ; and that the faid R. K. and 
 your orator had alfo agreed to enter into mutual bonds 
 bearing even date with the faid indenture now in 
 recital, for the due and punctual performance of ail 
 the covenants, claufes, and agreements in the faid 
 indenture contained : IT IS by the faid indenture now 
 in recital WITNESSED, that in order to carry into 
 (effect the trufls in the faid indenture of the of 
 
 in the year contained, or fuch of 
 
 them as then remained unexecuted, and were capable 
 of taking effc£t, it was agreed and declared by all the 
 parties to the indenture now in recital, and particularly 
 that the faid R. K. anJ your orator, by and with the 
 privity and confent of the faid D. S. and J. A. DID, 
 for themfelves feveraliy aad refpedively, an4 for their
 
 APPENDIX. 47<J 
 
 feveral and refpc^live heirs, executors, and adminiftra- 
 tors, covenant, promife, declare, and agree each with 
 the other of them, his executors, and adminiflrators, 
 that all and every a6lion and aftions, caufc and caufcs 
 of action, fuits, bills, bonds, fpecialties, covenants, 
 contrafts, accounts, agreements, promifes, payments, 
 allowances, reckonings, monies, matters, and tilings 
 whatfoever in any way relating to or concerning the 
 faid partnerfhip, or the Trusts hereinbefore men- 
 tioned, and all and every doubt pr doubts, quellion or 
 queftions, difpute and difputcs, touching or in any 
 manner concerning the rights, claims, demands, or 
 pretences, matters, or things relating thereto, of the 
 faid R. K. and your orator, or either of them, in or 
 about the faid partnerlhip affairs or concerns, fliould 
 be referred and fubmitted to the award, order, final end, 
 and determination of the faid J. H. — ^J. B. — and J. D. 
 or any two of them, arbitrators indifferently eledted, 
 chofen, and named, as well on the part and behalf of 
 the faid R. K. as on the part and behalf of your orator, 
 to arbitrate, award, order, judge, and determine as 
 aforefaid, fo as the fame fliould not interfere with the 
 arrangement or fettlcment then already made by the 
 faid D. S. and J. A. in purfu^nce of the trufts in the 
 faid indenture of the day of in the year 
 
 contained and hereinbefore fet forth, unlefs 
 feme error or miftake Ihould appear therein, contrary 
 to the true intent ^nd meaning of ihe faid in denture of 
 copartnerlhip and indenture made on the dilFolutioa of 
 the fame, and fo as the faid J. H.— J. B. and J. D. or 
 any two of them, Ihould' make their award or deter- 
 mination oi and concerning the pre-.iifes in v/riiing 
 und(::r their hands and feais, ready to be dclivcicd to
 
 I7& APPENDIX. 
 
 the faid parties in difference requiring the fame on or 
 before the day of next enfuing the date 
 
 of the faid indenture now in recital : and it was thereby 
 alfo agreed by and between all the parties thereto that 
 the fubmiffion thereby made of the faid matters in 
 controverfy fhould be made a rule of his Majefly's 
 Court of King's Bench, in purfuancc of the ftatute in 
 fuch cafe made and provided, as by the faid indenture 
 of fubmiflion, now in the hands or polTeffion of the faid 
 
 Y), S. J. A. and R. K. or of fome or one of them, or 
 
 in their, or fome or one of their, cuftody or power, 
 when produced to this honourable court, will, among 
 other things, more fully and at large appear. And 
 vour orator further iheweth unto your Lordfhip, that 
 by deed poll, indorfed on the faid indenture of fub- 
 miifion, bearing date the day of in the 
 
 year and executed, as well by the faid R. K. and 
 
 your orator as by the faid D. S. and J. A. the time for 
 the faid arbitrators, or any two of them, making their 
 award in the premifes is enlarged to the day of 
 
 then next enfuing ; and the faid R. K. ajid 
 vour orator, by their fevcral and refpcdive bonds or 
 obligations, each bearing date refpeftivcly the fud 
 day of became bound the one to the 
 
 other of them in the penal fum of loool. for the due 
 performance and obfervance of all and lingular the 
 covenants, conditions, and agreements in tlie faid in- 
 denture of fubmifTion contained : and your orator 
 further fhcweth unto your LordOiip, that although the 
 faid D. S. and J. A. had, by virtue of the powers veiled 
 in them by the faid indenture of the day of 
 
 difpofcd of all, or the greater part, of the eftate and 
 cifcas of the faid R. K. and your orator, and received
 
 APPENDIX. 
 
 477 
 
 many funis of money, to a very large amount in the 
 whole, and were fubjcft to account to the faid R. K. 
 and your orator for the application thereof; and 
 though they are parties to the faid indenture of fub- 
 miflion, yet there is no covenant, condition, provifo, 
 or agreement therein on their part, or on the part of 
 either of them, by which they could be bound to the 
 performance of the award of the faid arbitrators ; and 
 fuch award, if made in favour of your orator, againft 
 the faid D. S. and J. A, would have been altogether 
 inefFeftual. And your orator further fhewcth unto 
 your Lordfliip, that the faid arbitrators met a great 
 many times at the houfe of the faid J. H. who is the 
 nephew and fucceffor in bufinefs of the faid D. S. and 
 where the faid D. S. then refided, for the purpofe of 
 examining the accounts of the faid partnerfliip and the 
 execution of the trufts vefted in the faid D. S. and J. A. 
 and the faid D. S. attended the faid arbitrators daily, 
 and aflumcd a tone of authority over them, and dic- 
 tated the manner in which the accounts fhould be 
 taken and fettled ; but he refufed to be fworn to the 
 truth of the dilburfemcnts he charged to the account 
 of the faid copartnerfliip, and to produce vouchers for 
 the fame ; — neverthelcfs the faid J, H. and J. D. made 
 an award, bearing date the day of laft, 
 
 by which they ordered that your orator fhould on the 
 day of then next, pay to them the faid 
 
 D. S. and J. A. the fum of 630I. 12s. 6£d. and fliould 
 alfo, on the day of then next, pay to 
 
 the faid R. Iv. the fum of 435I. i6s. 3|d. the faid ^. B. 
 dilTenting from the faid award : and your orator further 
 Iheweth unto your Lordfliip, that in taking the ac- 
 counts between the faid R. K. and your orator, as
 
 47^ APPENDIX. 
 
 partners, and the faid R. K. and your orator and tlie 
 faid D. S. and J. A. as truflees as aforefaid, the faid 
 J. H. and J. D. charged to the account of the faid 
 partnerfliip feveral confiderable fums which ought to 
 have been charged to the private account of the faid 
 R. K. and gave credit to the faid trullees for fums 
 •which they had never paid, and omitted to charge 
 them with very large fums which they had received on 
 account of the faid partnerfhip, for Avhich they had not 
 given credit thereto, although objeftion was taken at 
 the time on behalf of your orator to fuch improper 
 charges and allowances refpeftively : and in particular 
 your orator fheweth unto your Lordfhip, that the faid 
 R. K. having, before the commencement of the faid 
 partnerfhip, borrowed of one J. D. the fum of 3000I. 
 on his own private account, attorned, as tenant to the 
 faid J. D. of the premifes in, &c. where the faid 
 buiinefs was carried on, giving him power to dillrain 
 for the intereft of the faid principal fum as for rent in 
 arrear; and the faid D. S. and J. A. having charged in 
 their truft accounts the fum of 109I. 15s. lod. as paid 
 to the faid J. D. the faid J. H. and J. D. allowed the 
 fame as charged to the partnerfhip account, on pre- 
 tence that the payment thereof was for the benefit of 
 the faid partnerfhip, in preventing the partnerfliip 
 effefts from being diftrained, though it was objefted on 
 behalf of your orator that the faid payment, being in 
 difcharge of a debt due from the faid R. K. ought not to 
 be allowed as a payment by the faid truflees on account 
 of me partnerfhip J And your orator further fheweth 
 unto your Lordfhip, that though the partnerfhip be- 
 tween your orator and the faid R. K. was diifolvcd on 
 the day of in the year and your orator
 
 APPEKDIX. 479 
 
 was therefore not liable for the payment of rent for the 
 premifes on which the faid bulinefs was carried on, 
 your orator having quitted them and left them in the 
 occupation of tlie faid R. K. by mutual confent, yet 
 the faid J. A. and J. D. allowed to the faid truftees 
 the fum of 65I. 12s. 6d. charged to the partncrfliip 
 account, though paid for a quarter's rent for the houfe 
 of the faid R. K. in, kc. up to Lady-day and the 
 
 fum of 1. for a quarter's rent up to the fame time 
 
 for the premifes of the faid R. K. in, &c. and the fum 
 of 30I. OS. 4d. charged. to have been paid to — F! on 
 the day of and the fum of 23I. 12s. 
 
 charged as paid to B. C. on the day of 
 
 and the fum of 18I. ics. charged as paid to T. S. Efq. 
 and the fum of 21I. los. 6d. charged as paid for rent 
 of flables belonging to the faid R. K. all which feveral 
 fums the faid J. H. and J. D, put to the debit of the 
 faid partnership, in account with the faid truftees, 
 although it was objefced on behalf of your orator, as 
 the truth is, that they were pa^'ments made on the 
 private account of the faid R. K. And your orator 
 further flieweth unto your Lordlhip, that the faid J. H. 
 and J. D. have put to the debit of the faid partnerfhip 
 account the feveral fums of 23I. i8s. charged by tlie 
 faid truftees as paid to one — D. as the amount of the 
 faid R. K.'s note to him for his the faid R. K's chil- 
 dren's education, the fum of 9I. 17s. 6d. charged as 
 paid to one — S. for fadlcry furniliJtd for the faid 
 R. K. on his private account, tlie fum of 17I, is, 6d. 
 charged as paid to one . — E. on the private acceptance 
 of the faid R. K. and 17I. 4s. lod. charged as paid to 
 one — S. a perfon of whom your orator has no know- 
 ledge, and of whom he never heard till long after the
 
 4^0 APPENDIX. 
 
 time when the faid fum is charged to have been paid 
 to him, and which your orator alleges, if in fa6t paid 
 by the faid truftees, muft have been paid by them on 
 account of the faid R. K. only, and not on account of 
 the faid partnerlliip. And your orator further fheweth 
 unto your Lordfhip, that the faid R. K. having certain 
 bonds of one — B. depofited the fame in the hands of 
 R, and Co. as a fecurity for money to be raifed on the 
 acceptances of the faid R. and Co. and two bills of 
 exchange, accepted by them in favour of your orator 
 and the faid R. K. for lool. and 64I. i8s. 8d. and in- 
 dorfed by your orator and the faid R. K. having been, 
 in confequence of being dillionoured by the faid R. and 
 Co. paid by the faid truftees, the faid J. H. and J. D. 
 have debited the faid partnei-fliip with the amount 
 thereof in account with the faid truftees, although they 
 have allowed the amount of the faid bonds in favour 
 of the faid R. K. againft your orator, and although it 
 was obje£led on behalf of your orator that fuch pay- 
 ments ought therefore to have been put to the private 
 account of the faid R. K. — And your orator further 
 fheweth unto your Lordfhip, that the faid J. II. and 
 J. D. have allowed to the faid D. S. in his truft account 
 with the faid partnerfhip the fum of 500I. being the 
 amount of a bill accepted by Lord O. or by Lord and 
 Lady O. which the faid D. S. pretended he had trans- 
 ferred to one J. C. in fatisfaflion of fome pretended 
 claims by the faid J. C. againft the faid partnerfhip, 
 whereas in truth the faid partnerfhip was not at all in- 
 debted to the faid J. C. — and your orator charges, that 
 if the faid bill was in fa£t transferred to the faidj.C. 
 it was fo transferred by the faid D. S. on account of a 
 private debt of the faid R. K. — And your orator further
 
 APPENDIX. 
 
 481 
 
 fheweth unto your Lordfliip, that the faicl J. H, and 
 J. D. rcfufed to charge the faid D, S. in his truft 
 account with the faid partnerfhip, with the fum of 
 loool. the amount of a bill accepted by the faid Lord 
 O. or by Lord and Lady O. and indorfed by the faid 
 R. K. and your orator to the faid D. S. although it 
 clearly appeared that the faid D. S. had received the 
 faid fum of loool. in payment of the faid bill: And 
 your orator further llieweth unto your Lordfliip, that if 
 in taking the faid accounts due credit had been given 
 to the faid partnerlhip, and proper charges had been 
 made to tlie debit of the faid truftees, and no improper 
 charges had been made to the debit of the faid partner- 
 fhip, your orator would have appeared to be but little, 
 if any thing, indebted to the faid R. K. on account of 
 the faid partnerfhip, and the faid truflees, inflead of 
 having any demand againfl the faid partnerlhip, would 
 have appeared to be confiderably indebted to it ; and 
 your orator is well affured that if the faid J. H. and 
 J. D. had followed the fuggeflions of their own minds, 
 and had not been influenced by the faid D. S. in the 
 manner of making up the faid accounts, they would 
 not have made an award fo much to the prejudice of 
 your orator ; and your orator has frequently lince the 
 making of the faid award, by himfelf and others, ap- 
 plied in a friendly manner to the faid R. K. — D. S. and 
 J. A. and requefted them to come to a fair and jufl 
 account with your orator, and to make to your orator 
 all fair and juft allowances, and to pay to your orator 
 what, if any thing, on the taking of fuch account, fnall 
 appear to be due to him ; your orator at the iiime time 
 offering to pay to them, or either of them, whatever 
 fum or fums fhould, if any thing fliould, appear to be 
 
 K k
 
 due from your orator to them or either of them : BUT 
 NOW SO IT IS, may it pleafe your Lordfhip, that 
 the faid R. K. — D. S. and J. A. combining and con- 
 federating themfelvcs together, and to and with divers 
 other perfons at prefent unknown to your orator, whofc 
 names when difcovered your orator prays may be 
 inferted in this his bill of complaint, and they made 
 parties hereto, and contriving how to injure your orator 
 in the premifes, not only refufe to comply with fuch 
 reafonable requeft, but threaten to put the faid bond 
 in fuit againft your orator, or to commence an aftion 
 or actions againft your orator on the faid award, or to 
 apply to the Court of King's Bench for an attachment 
 againft your orator for non-performance thereof; fomc- 
 timcs pretending that all fair and juft allowances have 
 been made to your orator by the faid J. H. and J. D, 
 in taking the faid accounts, and that all proper charges 
 have been made againft them the faid D. S. and J. A. 
 and that the faid partnerfnip has been juftly and 
 properly charged with the faid fcvcral fums againft 
 which your orator complains, the contrary of which 
 your orator charges to be true, and that not only the 
 faid partnerfhip has been improperly charged with 
 fuch fums, and credit given to the faid truft account 
 againft the faid partnerfliip for fuch fums, but that no 
 charge has been made in favour of the faid partnerfhip 
 againft the faid truftees for many large fums aftually 
 received and unaccounted for by them ; and this the 
 faid R. K.^— D. S. and J. A. well know to be true, and 
 will fometimes admit, but then they pretend that the 
 faid award is conclulive againft your orator, and that 
 your orator is thereby barred in equity from having the 
 ?aid accounts opened and rcinveftigatcd . All which
 
 APPENJLlIX. 48.3 
 
 ailings, threatenings, and pretences of the faid R. K. 
 D. S. and J. A. arc contrary to equity and good con- 
 I'cience, and tend to the nianifcft injury and oppicflion 
 of your orator in the premifes : In tender confideration 
 whereof, and for as much as your orator cannot he 
 relieved in the premifes but by the aid and alTiftance 
 of a court of equity, where matters of this nature are 
 properly cognizable and relievable : AND to the t^XD 
 that the faid R". K.— D. S. and J. A. and the reft of the 
 confederates when difcovered, may, upon their fevcral 
 and refpeflive corporal oaths, full, true, and perfeft 
 anfwer make to all and lingular the premifes, to the 
 beft and utmoll of their rcfpedlive knowlege, informa- 
 tion, remembrance, and belief, and that as fully and 
 particularly as if the fame were here again repeated' 
 and they particularly interrogated thereto ; and more 
 efpecially that the faid R. K. — D, S. and J. A. may in 
 manner aforefaid anfwer and fct forth. Whether fuch 
 indenture of partnerlhip, bearing fuch date, and to 
 fuch purport and efFcft as hereinbefore in that behalf 
 is fet forth, or of fome other and what date, and to 
 fome other and what limilar purport and eifeft, was 
 not executed by the faid R. K. and your orator ; and 
 w^hether your orator and the faid R. K. did not for 
 fome and what time after the execution of the faid 
 indenture, carry on the faid bufincfs of upholfterers 
 and paper-men in copartnerlhip ; and whether in the 
 courfe of carrying on the faid bufincfs they did not 
 purchafe or take leafes of the feveral houfes herein- 
 before in that behalf mentioned, or of fome other and 
 what houfes ; and whether the leafes of the four houfes 
 laft hereinbefore in that behalf mentioned did not 
 belong cxclufively to the faid R. K. and whether the 
 K k a
 
 484 APPE-VDJX. 
 
 faid R. K. did not fuinilTi with houfchold goods and 
 furniture, as well all the faid firft mentioned as the faid 
 four lafl: mentioned houfes, and let them out fo fui- 
 nifhed at confidcrably advanced rents, or how other- 
 wife ; and whether the faid R. K. and your orator did 
 not alfo, as partners, furnifh for and on account of 
 fundry perfons feveral houfes in London, Dublin, and 
 elfewhere ; and whether in the courfe of their dealings, 
 in fuch their joint trade, divers perfons in England 
 and Ireland did not become indebted to them in feveral 
 confiderable fums of money ; and whether they did not 
 alfo themfelves become indebted to divers perfons in 
 feveral fums of money ; and whether they did not for 
 for fome of fuch fums give their notes and acceptances ; 
 and whether difputes and differences did not arife be- 
 tween the faid R. K. and your orator; and whether 
 they did not, fome time at or about the time herein- 
 before in that behalf mentioned, or at fome other and 
 what time, agree to diflblve the faid copartnerfhip ; 
 and whether they did not enter into mutual bonds to 
 each other to fubmit all matters in difference between 
 them, relative to the concerns of their faid copartner- 
 fhip, to the judgment and determination of the faid 
 D. S. and J. A. and whether fuch indenture of three 
 parts, bearing fuch date, and to fuch purport and effe£l 
 as hereinbefore in that behalf fet forth, or of fome 
 other and what date, and to fome other and what 
 fimilar purport and effeft, was not executed by the 
 faid R. K. your orator, and the faid D. S. and J. A. 
 and whether the faid copartnerHiip between the faid 
 R. K. and your orator was not thereby dilfolved ; and 
 whether all the copartnerfhip eflate and effefts of the 
 faid R. K. and your orator were not thereby conveyed 
 *o the fiid D. S. and J. A. on the ti-ufts hereinbefore
 
 APPENDIX. 485 
 
 in that behalf fet forth, or on fome other and what 
 trufts ; and whether the faid D. S. and J. A. did not, 
 foon after the execution of the faid indenture, in pur- 
 fuance and by virtue of the powers and authorities 
 thereby created and veiled in them, proceed in the 
 examination of the faid partnerfhip concerns ; and 
 whether they did not difpofc of all or the greater part, 
 or fome conliderable part, and to what amount, of the 
 eftate and effects of the faid R. K. and your orator 
 and whether they did not receive many or fcveral fums 
 of money to a very large or to fome conliderable and 
 what amount in the whole, for the application of which 
 they were liable to account to the faid R. K. and your 
 orator ; and whether they did not afterwards decline 
 proceeding to a final fettlement of the faid partneriTiip 
 concerns, and a complete execution of the faid trufts ; 
 and whether they did not propofe to the faid R. K. and 
 your orator to refer the further inveftigation of the faid. 
 concerns, and execution of the faid trufts, to other 
 perfons ; and whether the faid R. K. and your orator 
 did not confent to fuch propofal, or how otherwife ; 
 and whether in confcquence of fuch propofal and agree- 
 ment, or how otherwife, fuch indenture of reference, 
 bearing fuch date, and to fuch purport and effed as 
 hereinbefore in that behalf fet forth, or of fome other 
 and what date, and to fome other and what purport 
 and effedl, was not executed by the faid R. K. your 
 orator, and the faid D. S. and J. A. and whether the 
 day limited therein for the arbitrators making their 
 award in the premifes was not eiilarged to the faid 
 day of in the faid year by 
 
 indorfement on the faid indenture ; and whether the 
 faid R. K, and your orator did not execute to each 
 ether fuch bonds, bearing fuch date, and fubjedt 1:0 fuch 
 K k 3
 
 436 APPENDIX. 
 
 conditions as hereinbefore in that behalf fct forth, or 
 fonic other and what bonds of fome other and what 
 date, and fubjeft to fome other and what fimilar con^ 
 ditions ; and whether there be any covenant, condition, 
 provifo, or agreement in the faid indenture of reference 
 or fuhmilTion, on the part of the faid D. S. and J. A. 
 or of either of them, by which they, or either of them, 
 could be bound to tlie performance of the award of the 
 faid arbitrators ; and whether, if fuch award liad been 
 made in favour of your orator againft the faid D. S. 
 and J. A. or either of them, it would not have been 
 altogether inefFeftual, or whether it could have been 
 enforced againft them, or either of them; and whether 
 the faid arbiti"ators did not meet a great many times at 
 the l)oufe of the faid J. H. for the purpofc of examining 
 the faid accounts of the faid copartncrfhip, and the 
 execution of the tru{ls vefled in the faid D, S. and J. A. 
 and whether the faid D. S. did not attend the faid 
 arbitrators daily or almofl every day ; and whether he 
 did not di6Vate to them the manner in which the faid 
 accounts Hiould be taken ; and whether he did not 
 refufe to be fworn to the truth of the flifl^urfcmcnts 
 charged by him to liave been made on account of the 
 faid copartnership, and to produce vouchers for the 
 fame, or for fome of them, and to what amount ? and 
 whether the faid J. H. and J. D. did not, notwithfland- 
 ing, make fuch award as hereinbefore in that behalf 
 fet forth, ov fome other and what award ; and whether 
 the faid J. B. did not refufe to execute fuch av,'ard .; 
 and whether the faid J. H. and J. D. would have made 
 fuch avrard againll your orator if they had followed the 
 fuggeftioiis of their own minds, and had not been in- 
 fluenced by the faid D. S. in the manner of making up
 
 APPENDIX, 48; 
 
 the fuid accounts ; and whether the laid J. H. and J. D. 
 in taking the faid accounts between the faid R. K. and 
 your orator, as partners, and between the faid D. S. 
 and J. A. as truftees as aforefaid, did not charge to the 
 account of the Aiid partnerfhip fevcral confiderable 
 fums, and to what amount in the whole, which ought 
 to have been charged to the private account of the 
 faid R. K. and that they may fct forth the particular* 
 of all fuch fums ; and whether they did not give credit 
 to the faid D. S. and J, A. or to one and which of 
 them, and to what amount, for fums which they had 
 never paid ; and whether they did not omit to charge 
 them, or one and which of them, with feveral large 
 fums, or to fome and what amount, which they or one 
 of them had received on account of the faid copartner- 
 ihip, for which they or one of them had given no 
 credit to the faid copartncrfhip, and that they may fet 
 forth an account of all fuch fums ; and whether they 
 did not in particular make fuch improper charges and 
 allowances as hereinbefore in that behalf fet forth, and 
 more particularly whether they did not allow to the 
 faid D. S. the faid fevcral fums of 500I. and loool. 
 hereinbefore charged to have been received by him in 
 manner hereinbefore in that behalf fet forth ; and 
 whether the faid bill of 500I. w^as not paid to the faid 
 J. C. if at all paid to him, on account of fome private 
 debt of the faid R. K and not on account of any debt 
 due to him from the partnerfhip of the faid R. K. 
 and your orator ; and whether the faid two fums of 
 500I. and lOOol. ought not have been charged to the 
 debit of the faid D. S. in his account with the 
 faid copartncrfhip, or if not, for what rcalon , and 
 whether your orator hiath not lince the making of the 
 K k 4
 
 488. APPENDIX. 
 
 faid award applied to the faid R. K. — D. S. and 
 J. A. and requefted them to come to a fair and 
 jull account with your orator, and to make to your 
 orator alJ fair and juft allowances, and whether they 
 have not refufed fo to do ; and whether they do 
 not pretend that the faid award is conclufive againll 
 your orator, and that your orator is thereby barred in 
 etjuity from having the faid accounts opened and re- 
 inveftigated ? And that the faid award may be fet afide 
 by a decree of this honourable court, and that the faid 
 ^. K. — D. S. and J. A. may be decreed to come to a 
 fair and juft account with your orator, and tliiit in 
 taking fuch account all fair and juft allowances may be 
 made to your orator ; and that the faid partnership 
 may not be debited with fums paid by the faid D. S. 
 and J. A. or either of them, on the private account of 
 the faid R. K. or that the faid R. K. may be charged 
 as indebted to the faid partnerfliip for fo much ; and 
 that the faid D. S. and J. A. may be charged with all 
 fuch fums as they have refpeftively received of and 
 from the faid partnerfliip effedls ; and that the faid 
 R. K. — D. S. and J. A. may be decreed refpeftively to 
 pay to your orator fuch feveral fums as on taking the 
 faid account may appear to be due to him from each 
 of them on account of the faid copartnerfliip and trulls 
 refpeftively ; and that, in the mean time, the faid R. K. 
 D. S. and J. A. may refpeftively be reftrained by the 
 order or injun6lion of this honourable court from all 
 proceedings at law or otherwife for the recovery of the 
 money fo awarded to them rcfpe£tively, or in any 
 manner againft your orator, touching the premifes 
 aforefaid, or any of them ; and that your orator may 
 have fuch ether and further relief in the premifes as
 
 APPENDIX. 
 
 489 
 
 fliall be conformable to equity and good confcience, 
 and to your Lordfhip fhall Icem meet. May it pleafe 
 your Lordfhip, the premiies confidered, to grant unto 
 your orator not only his Majefty's moft gracious writ 
 of injundion, to be direded to the faid R. K. — D. S. 
 and J. A. to reflrain tlicm and each of them from pro- 
 ceeding at law againft your orator to enforce the per- 
 formance of the faid award, but alfo his Majefty's moft 
 gracious writ or writs of fubpcena, &c.
 
 49<5 APPEffDIX. 
 
 BILL 
 
 7a fit ajide an Award for Concealmoit of ejjhnlal 
 Civcumfiances by the Defendant. 
 
 I'o the Right Honourable WiHiam Pitt^ 
 Chancellor and Under Treafurer of his 
 Majefty's Court of Exchequer, at Wel\- 
 minllcr, the Right Honourable Sir Ar- 
 chibald Macdonald, Knight, Lord Chief 
 Baron of the fame Court, and the rell of 
 the Barons there. 
 
 Humbly complaining, fhcweth unto your honors, 
 your orator T. G. of, &c. that J. M. late of, 6cc. in the 
 county of, &c. Efq. deceafcd, being feifed and pofTeiTed 
 of a coniiderable real and perfonal ellatc, duly made 
 jmd publiflied his laft will and tcftament in writing, 
 executed and attcfted as is by law required for the 
 paffing and charging of real eftates by will, whereby 
 he gave and bequeathed divers legacies to various per- 
 fons, and particularly the fum of loool. and twenty 
 guineas to your orator, payable out of the rents and 
 profits of his real eftates ; and he direfted, that in cafe 
 his perfonal cftate fhould be infufficient to pay his 
 funeral expences and debts, the truftees in his will 
 named fhould, by and out of the rents and profits, or 
 bv fde or mortgage of his real eftate, fituate in, 6ic. 
 raife money fufficient to make up fuch deficiency ; and 
 after deviflng fome parts of his real eftates l)y expjei'i
 
 APPENDIX. 491 
 
 name, he gave and devifed all other his mefTuages, 
 lands, tenements, hereditaments, and real eftates what- 
 loevcr and wherelbcver unto the fame trullecs, upon 
 truft that they fhould, in the fufl place, out of the rents 
 and profits thereof, pay and difcharge certain legacies 
 in the faid will mentioned ; and from and immediately 
 after payment of fiich legacies he direfted that the faid 
 truftees Ihould have, receive, and take the rents, ilTues, 
 and profits thereof during the natural life of his uncle 
 P. M, and from and after the death of the faid P. M. 
 and payment of fuch legacies, he direfted his faid 
 truflccs to convey and alTurc all the faid mefTuages, 
 lands, hereditaments, and real eftates unto the firfl 
 und other fons and daughters of the faid P. M. 
 and in default of fuch ifflie to J. G. one of the 
 defendants hereinafter named; and his aifigns, for 
 and during the term of his natural life, then to truftees 
 to preferve contingent remainders, remainder to the 
 firft and every other fon of the body of the faid 
 J. G. in tail male, and in default of fuch ilfue then 
 to and to the ufe of your orator and his heirs ; and 
 he appointed the feveral perfons named in his will as 
 truftees alfo his executors : And your orator llieweth 
 unto your honors, that the faid J. M. after the date and 
 execution of his faid will, made a mortgage in fee of 
 certain premifes in and by his faid will devifed, calle4 
 therein his manor, meffuages, lands, tenements, and 
 hereditaments, in, &c. for fecuring the fum of 4000I. 
 and afterwards intermarried with A. B. having previous 
 to and in confideration of fuch his intended marriage 
 conveyed the faid manor, mefTuages, lands, tencmenLs, 
 and hereditaments in, &c. aforelaid, to certain truftees, 
 in truft to and for the ufe of him the faid J. M. for life, 
 and after his dcceafe to the ufe, intent, and purpofe
 
 49' APPENDIX. 
 
 that his faid intended wife, in cafe fhe fhould furvive 
 him, fhould .yearly, during her life, have, receive, and 
 take out of the faid manor, melTuages, and premifes 
 in, kc. aforefaid, one clear annuity or yearlv rent of 
 300I. for licr jointure, and in lieu and bar of dower» 
 and fubjeft thereto to and for fuch ufes as he fliould, 
 by any aft or deed, or by his lafl will and teftament, 
 in writing, dircft, limit, and appoint, and in default of 
 fuch appointment to the ufe of him the faid J. M. his 
 heii-s and affigns for ever : And your orator further 
 fheweth, thatlhe faid J. M. departed this life without 
 iifue, and without revoking or altering his faid lafl will 
 and teftament, fave only fo far as the fame related to 
 the faid manor, melTuages, lands, and tenements in, 
 ^'C. aforefaid, leaving the faid J. G. his heir at law ; 
 and the faid feveral perfons, in his faid wi-ll named 
 the truftees and executors thereof, renounced the pro- 
 bate of the faid will and declined to aft in the trufts 
 thereof; and the faid J. G. thereupon pofTefTed him.felf 
 of the perfonal eftate and efFefts of the faid J. M. and 
 entered into the poffefiion and receipt of the rents and 
 profits of. the real eftates devifed by the faid teflator 
 for the purpofes in his faid will mentioned ; and the 
 faid J. G. hath fince procured adminiftration of the 
 -goods and chattels of the faid J. M. with his faid will 
 annexed, to be granted to him by the proper ecclefiaf- 
 tical court: And your orator further Iheweth, that by 
 jzidentures of leafe and releafe of t'le and days 
 
 of in the year the releafe being made by the 
 
 furviving truftees and executors named in the faid will 
 of the faid J . M. of the firft part, the faid J. G. and your 
 orator, T. G. and other legatees, of the fecond part ; 
 G, J. father of M. J. an infant legatee, of the third part;
 
 APPENDIX. 
 
 493 
 
 C. F. of the fourth part ; and R. G. father of your 
 orator, of the fifth part ; they the faid furviving truflces 
 and legatees, for the confiderations therem mentioned, 
 did, at the requefi: and by the direftion of the faid 
 J. G. and alfo the faid J. G. did affign and transfer unto 
 the faid C. F. his executors, adminiflrators, and alTigns, 
 all and lingular the faid feveral legacies bequeathed in 
 and by the faid will of the faid J. M. to hold the fame 
 in truft for the faid J. G. to the intent that the faid 
 legacies might be paid to the faid J. G. his executors, 
 adminillrators, and alligns, from and out of the faid 
 truft eftatcs remaining chargeable with the payment 
 thereof, at fuch times and in fuch manner as in the 
 faid will is for that purpofc mentioned ; and the fur- 
 viving truflees did alfo, for the confiderations aforefaid, 
 at the requefi of the faid J. G. and of your orator, 
 releafe and convey unto the faid R. G. his heirs and 
 affigns, all and fingular the mclTuages, lands, tenements, 
 and hereditaments, which in and by the faid will were 
 devifed to the truflees therein named, favc and except 
 the premifes in, &c. to hold the fame in trufl for fuch 
 pcrfon and pcrf )ns, and for fuch cllate and eflates, and 
 under and fubje£l to tlie like ufes, trufls, charges, and 
 other incumbrances, as were declared concerning the 
 fame in and by the laid will of the faid J, M. or fucli 
 of them as were then exilling and capable of taking 
 cfFecl ; but the fixid 102 il. in the faid indenture of 
 releafe mentioned to have been paid to your orator, 
 was not in truth paid to your orator, or any part 
 thereof ; and the faid J. G. afterwards reprefenting 
 himielf to be feifed in fee of a certain melTuage or 
 dweiling-houfe fituate in, &:c. in the town of, 6cc. 
 propofed to convey and afTure the fame unto your
 
 494 APPENDIX. 
 
 orator and his heirs, in lieu and in fatisfaftion of the 
 faid fumof 1021I. and your orator having agreed to 
 fuch propofal, he the faid J. G. by indentures of leafe 
 and releafe, bearing date the and days of 
 
 in the year did convey and afliire to 
 
 your orator and his heirs the faid mclTuage or tenement 
 in, &c. in Heu and in fatisfaftion of tlie faid fum of 
 1021I. though he had but a Hfc intercft therein, with 
 remainder to his iffue male, remainder to your orator 
 in fee : And your orator further fheweth unto your 
 honors, that R. G. father of the faid J. G. and of your 
 orator, did, by certain indentures of leafe and releafe, 
 make chargeable certain real eftates of him the faid 
 R. G. fituate at, &c. in the county of, 5cc. with the 
 payment of one annuity or clear yearly rent charge of 
 2col. to A. his wife, mother of your orator, for the 
 term of her natural life, by way of jointure, and in 
 lieu and in fatisfaftion of dower ; and the faid R. G, 
 afterwards, and long after his intermarriage with the 
 faid A. his wife, duly made and publifhed his laft will 
 and teftament in writing executed as the law requires 
 for the paffing and charging of real cflates, whereby 
 he charged his faid eflates at, &c. with the payment of 
 one annuity or yearly rent of 300I. to the faid A. his 
 wife for her life if flie continued a widow, and after 
 her deceafe or marriage, he did by his faid will, or by a 
 tcftamentary writing to be added thereto, give and devife 
 his eftatcs at, 6cc. to your orator and his lieirs, and 
 appointed his faid wife A. and the faid J. G. his eldefl 
 fon, his executors, and departed this life without re- 
 voking or altering his faid will, leaving the faid J. G. 
 his eldcft fon, his heir at law furviving him, and the 
 faid J. G. alone proved the will of the faid R. G in the
 
 APPENDIX. 495 
 
 proper ccclefiaflical court, and polfefTed himfelf of all 
 and flngular his porfonal cftatc, and alfo entered upon 
 all his real eflatcs ; and the faid A. the widow of the 
 faid R. G. in or about the year intermarried 
 
 with R. H. whereby the provilion made for her by the 
 will of the faid R. G. ccafed and determined, and flic 
 from that time became entitled only to the annuity of 
 200I. per ann. chargeable on the faid eftatcs at, &c. 
 wnd vour orator became alfo from Jthat time entitled to 
 the faid eflatcs at, &:c. fubjecl to the proportion of the 
 faid annuity of 200I. which thofe eftates ought to fuf- 
 tain: And your orator further flieweth unto your 
 honors, that by indentures of Icafe and relcafe, bearing 
 date the and days of in the year the 
 
 releafe being made between the faid J. G. of the firft 
 part, C. F. and J. T. of the fecond part, and G. C. W. 
 and feveral other perfons therein named, being creditors 
 of the faid J. G. and alfo of the faid J. M. and of R. 
 G. or of fomc or one of them, of the third part ; he 
 the faid }. G. releafed and conveyed to the faid C. F. 
 and y. T. all and every his mefluages, land^, and tene- 
 ments in revcriion, remainder, or expe£lancy, and alfo 
 all his perlunal eftate, in truft for the payment of the 
 debts of the faid J. G. in fuch manner as thereby di- 
 reftcd : And your orator further fheweth, that feveral 
 difputcs and differences having arifen between the faid 
 y. G. and C. F. and J. T. as his trullces, and your 
 orator, refpedling the real and perfonal cftates of the 
 faid J, M. and the application thereof by tlie faid J. G. 
 and alfo the effect and conftruftion of the will of the 
 faid R. G. and of the feveral codicils or tcftamcntary 
 papers found therewith, and the proportions in which 
 the faid three cllates at, &:c. were and arc liable to
 
 496 APPENDi:X. 
 
 contribute towards the payment of the faid annuity or 
 yearly rent charge of 200I. to the faid A. H. the widow 
 of the faid R. G. three fevcral bills were hied in this 
 honourable court between the faid parties with refpeft 
 thereto ; and it was upon the motion of the counfel of 
 the faid C. F.^J. T. and J. G. and by the confent of 
 your orator, ordered by this honourable court, that as 
 well the fcveral matters in difpute between the parties 
 in the faid caufes as all other matters in difpute, claims, 
 and demands, depending or being between the faid 
 J. G. and your orator, T. G. or the faid J. G. and J. T. 
 as the truftec of his cftate and efFefts, and your orator 
 T. G. in any manner or wife fhould be ; and the fame 
 were thereby referred to S. C. C. Efq. to arbitrate, 
 award, and determine the fame : and it was further 
 ordered, that as well the faid parties as all fuch perfon 
 or perfons whofe evidence might be thought neceflary 
 to be adduced or given- to him, fhould be examined 
 upon interrogatories, or upon oath, in fuch manner, 
 and by and before fuch perfon or perfons as he fhould 
 direft ; and that all deeds, books, and papers in the 
 cuftody or power of any of the parties, relating to the 
 matters in queftion, fhould be by them produced be- 
 fore him ; and the faid S. C. C. took upon himfelf the" 
 faid arbitration, and he made his award in manner and 
 form, and in the words and figures following, that is to 
 fay: — Firft, I find and declare, that the amount of the 
 perfonal eftate and cifefts of the faid J. M. poiTelTed 
 or received by the faid J. G. did not exceed in the 
 whole the fum of 2800I.— and I find and declare, that 
 the funeral expcnces and debts of the faid J. M. which 
 were paid and fatisfied by the faid j. G. or the faid R. 
 G. on his account, or the faid C. F. and J. T. as his
 
 APPENDIX. 497 
 
 truftees, (including the fum of 4000I. fecurcd by mort- 
 gage of the Little Bolton Eftate as aforefaid, announted 
 together to the principal fam of 8555I. together with 
 an arrear of interell: thereon, the particulars of which 
 payments I have fet forth in the fchedulc annexed to 
 this my award ; and 1 find that the annual rents of the 
 mefTuages, lands, tenements, and hereditaments in 
 Great Bolton, not fpecifically devifed by the faid J. M. 
 out of which he the faid J. M. directed his faid truftees 
 to raife and make good the deficiency of his perfonal 
 eftate, to pay and fatisfy his funeral expcnces and 
 debts, did not exceed the fum of 12 61. And that the 
 whole inheritance of the faid premifes in Great Bolton 
 were not at the time of the death of the faid J. M. 
 worth to be fold, fufficicnt to make good fuch de- 
 ficiency of the perfonal eftate : And I do therefore 
 declare and award, that the faid J. G. and the faid 
 J. T. as his truftees, (the faid C F. having departed 
 this life), by the means aforefaid, and as ftanding in 
 the place of fuch creditors of the faid J. M. and by 
 virtue of the faid indentures of the and 
 
 days of became and now are abfolutely intitled 
 
 to the whole beneficial intereft in the faid Great Bolton 
 Eftate ; and I further declare and award, that the faid 
 devife in the will of the faid J. M. of the manor or 
 lordfhip of Little Bolton, and the advowfon and right 
 of prefentation to Little Bolton Chapel and all his 
 the teftator's melfuages, lands, tenements, tithes, and 
 hereditaments in Little Bolton aforefaid, was revoke^ 
 by the faid indenture of fettlement of the and 
 
 days of hereinbefore fet forth ; ^ And I 
 
 ' Vjd. the plea ; poft. 
 L 1
 
 49? APPENDIX. 
 
 further find and declare, that the only real ellates 
 which pafTed under the words of the refiduary devifc 
 in the will of the faid J. M. that is to fay, all other 
 my meiTuages, lands, tenements, hereditaments, and 
 real eftates whatfoever and wherefoever, were fuch 
 parts of the faid Great Bolton Eftate, as were not 
 before fpecifically devifcd, and the faid houfe in, &c. 
 which was conveyed by the faid J. G. to the faid T. G. 
 by the faid indenture of the and days of 
 
 hereinbefore fet forth : And I therefore declare 
 and award, that the faid T. G. hath not any claim or 
 intereft whatfoever in the real or perfonal eflate of the 
 faid J. M. except in the faid houfe in, 6cc. which I 
 direct and award Ihall be accepted and taken by the 
 faid T. G. for fuch eflate as the faid J. G. had therein 
 at the time of the execution of the faid indentures of 
 the and days of in full fatisfaftion 
 
 of all claims and demands of him the faid T. G. in 
 refpeft of the faid legacies of loool. and 21I. be- 
 queathed to him by the will of the faid J. M. and as 
 tQ the feveral matters in difference between the parties, 
 in refpeft of the eftates of the faid R. G. and the effedl 
 of his will and the feveral codicils or teftamentary 
 papers found therewith as aforefaid : I declare and 
 award that the feveral lands, tenements, and heredi- 
 taments of the faid R. G. ^^tjuate in, &:c. aforeiaid, 
 (fubjeft to their proportion of jointure payable to the 
 faid A. H.) were well and fufficiently devifed by the 
 faid R. G. to the faid T. G. in fee fimple, from the 
 time of the fccond marriage of the faid A. H, and I do 
 further award and direft, that the faid J. G. and J. T- 
 fhall, upon demand for that purpofe made by the faid 
 T, Go or fome perfon by him tliereunto [awfully au-
 
 APPENDIX. 
 
 499 
 
 thoiized, deliver up, or caufe to be delivered up to 
 him the faid T. G. or to fuch perfon, all the title deeds, 
 papers, and writings in the cuftody or power of them 
 the faid J. G. and J. T. refpedtively relating to or 
 concerning the faid premlfes in, &c. And I further 
 declare and award, that the lands, tenements, and 
 hereditaments of the faid R. G. fituate in, &c. afore- 
 faid, were well and fiifficiently dcvifed by the faid 
 codicils and teftamentary papers, found with the will 
 of the faid R. G. as aforefaid, or fome of them, to the 
 faid T. G. in fee fimple, and that by fuch devife the 
 faid T. G. upon the fecond marriage of the CHq A. H. 
 became intitled to the faid premifos in fee fimple, fub- 
 jeft only to their proportion of the faid A. H.'s join- 
 ture ; and I find and declare, that the faid J. G. or the 
 faid C. F. and J. T. received the rents and profits of 
 the Ardwich Eftate, (except the^ faid two clofcs let 
 to the faid J. H. at the yearly rent of 81. 8s.) which 
 were received by the faid T. G. from the time of the 
 fecond marriage of the faid A. H. until the time when 
 the pofieffion thereof was delivered to H. A. Efq. in 
 purfuance of the agreement hereinafter mentioned, 
 which rents and profits amounted in the whole to the 
 fum of 560I. And I find that by an agreement dated 
 the day of made between W. T. on 
 
 behalf of the faid C. F. and J. T. as fuch truftees a^ 
 aforefaid, of the one part, and the faid H. A. Efq. of 
 the other part, the faid W. T. agreed for the fale of 
 certain meflliages or dwelling-houfes in, &c. and the 
 whole of the faid Ardwich Eftate, to the faid H. A. 
 
 ^ Vid. the plea ; poft. 
 L 1 2
 
 50* APPENDIX. 
 
 for the fum of 6300I. to be paid on or before the 
 
 day of then next : And by fuch agreement it 
 
 was provided that the venders fliould have the rents 
 
 and profits of the faid Ardwich Eflate up to the 
 
 day of then next, at which time the faid H. A. 
 
 was to enter into the receipts thereof : And I find that 
 
 fuch purchafe hath been fince completed, but that the 
 
 rents and profits of the faid two clofes, let to the faid 
 
 J. H. have been received from that time to Chriftmas 
 
 by the faid T. G. And I find that the proportion 
 
 of the f^id fum of 6300I. which was agreed to be paid 
 
 for the Ardwich Eftate, was the fum of 4200I. And I 
 
 find and awapd that the proportion in which the faid 
 
 Preftwich, Ardwich, and Rufliolme eftates were liable 
 
 to contribute to the annual payment of the jointure of 
 
 the faid A. H. from the time of the fecond marriage, 
 
 were as follows, (that is to fay), Preftwich, 12 61. i8s. 8d. 
 
 Ardwich, 41I. 7s. 8d. and Rufholme, 31I. 13s. 8d. 
 
 making together 200I. And I find that all accounts in 
 
 refpeft of the contribution of the Rufnolme Eftate to 
 
 the faid jointure, have been fettled between the faid 
 
 parties up to Chriftmas from which time the 
 
 whole of the faid jointure hath been paid to the faid 
 
 A. H. up to the day of now laft paft, by 
 
 the faid J. G. or the faid C. F. and J. T. as his truftees ; 
 
 and upon confideration of the matters aforefaid, I do 
 
 declare, that the faid J. G. and the faid J. T. as his 
 
 truftees, ought to pay to the faid T. G. the fum of 
 
 560I. the amount of the rents of the Ardvv^ich Eftate 
 
 received by the faid J. G. or his truftee as aforefaid, 
 
 deducting thereout the fum of 3311. is. 4d. the amount 
 
 of the proportion contributable by the Ardwich Eftate, 
 
 to the faid lointure, at the rate hereinbefore mentioned,
 
 APPENDIX. 501 
 '' ■-"■ 
 
 which reduces the faid fum of 560I. to the fum of 
 228I. 18s. 8d. And I do further declare, that the f lid 
 J. G. and J, T. as his truftecs, ought to pay to the faid 
 T. G. the fum of 4200I. (for which the faid Ardwich 
 Eftate was fold as aforefaid), with intcrcfl: for the fame 
 at the rate of 4I. per cent, per annum, from the 
 day of to the time when the fame fhall he paid, 
 
 deduding thereout the fum of 289I. 13s. 8d. the amount 
 of the proportion contributahle by the faid Ardwich 
 Eftate to the faid jointure, froai the faid day of 
 
 to the day of and alfo the fum 
 
 of 237I. 12s. 6d. the amount of the proportion con- 
 tributahle by the fiiid Rufliolme Eftate to the faid 
 jointure from Chriftmas to the fame time ; and 
 
 alfo the fum of 501. 8s. the amount of the rents of the 
 faid two clofes let to the faid J. H. which have been 
 received by the faid T. G. fmcc the faie of the Ardwich 
 Eftate; and alfo the fum of iiol. i8s. being the 
 amounts of certain parts of the faid effedts of the faid 
 R. G. pofleficd by the faid T. G. and fold by him, to 
 which it now appears he had no title : And I award 
 that the faid fum of 4200I. with fuch intercft as afore- 
 faid, fhall be accepted and taken by the faid T. G. in 
 full fatisfaftion of all claitns or demands of him the 
 faid T. G. in rcfpcft of the faid Ardv/ich Eftate ; and 
 with refpca- to the cofts of the fcveral fuits hcrein- 
 'before mentioned, I am of opinion that the faid J. G. 
 and the faid J. T. as his truftecs, ought to pay to the 
 faid T. G. his cofts of the fuit inftituted by the faid 
 ^- F. — ^J. T. and J. G. for carrying the trufts of the 
 faid J. M.'s will into execution as aforefaid, to be 
 taxed by the proper officer of the faid Court of Ex- 
 chequer, but that the faid parties refpedivcly ought to 
 h 1 q
 
 APPENDIX. 
 
 bear their own cofls of all other fuits depending be- 
 tween them at the time of the faid order of reference : 
 And I do award and dire(5l, that the faid J. G. and the 
 faid J. T. out of the eftate and efFefts of the faid J. G. 
 conveyed and affigned to the faid C. F. and him the 
 faid J. T. as aforefaid, do, on or before the day 
 
 of next, pay to the faid T. G. or fome perfon by 
 
 him thereunto lawfully authorized, fuch feveral prin- 
 cipal fums, with interefl and cofls, as hereinbefore 
 particularly mentioned, after making fucli further de- 
 ductions as aforefaid: And I do further award, that 
 upon payment of fuch money, he the faid T. G. fhall, 
 (if he fhall be thereunto required by the faid J. T.), 
 execute good and fufficient releafes, conveyances, and 
 otlier alTurances of all his ellate, right, title, and 
 intereft in or to the feveral melTuages, lands, tene- 
 ments, and hereditaments in, &c. hereinbefore men- 
 tioned, to them the faid J. G. and J. T. oj either of 
 them, or to fuch other perfon or perfons as they the 
 faid J. G. and J. T. fhall direft and appoint : And I 
 do further award and di^reft, that they the faid parties 
 refpcclively fliall, upon or at any time after payment 
 of the money hereinbefore direfted to be paid, when 
 they fhall be thereunto required, and at their own 
 refpeftive charges, make, execute, and deliver to each 
 other fufficient mutual releafes in writing of all aftions, 
 covenants, fuits, and demands, which they the faid 
 J. G. and J. T. as his trullees, and the faid T. G. had 
 or claimed to have againfl each other in refpeft of the 
 matters in difference between them at the time of 
 making the faid order of reference, as by the faid 
 award, reference being thereunto had, will appear: 
 And your orator fhev/eth, that the faid J. G. who, ^s
 
 APPENDIX. 503 
 
 heir at law of tke faid R. G. had become intitlcd to 
 and had entered upon the eftates of the faid R. G. 
 fituate at, &c. aforefaid, or any one on his behalf, has 
 not fettled with your orator as to the proportion which 
 the eftate at, &c. ought to have contributed towards 
 the payment of the faid annuity or yearly rent of 200I. 
 to A. the wife of the faid R. H. even in the proportion 
 fet thereon by the faid arbitrator himfclf ; and your 
 orator hath iince the award difcovcrcd that the faid 
 J. G. and J. T. or either of them, did not bring into 
 account before the faid arbitrators divers premifes 
 which were part of the eftates at, Sec. and particularly 
 a tenement formerly let to S. H. deccafcd, and now in 
 the occupation of the widow of the faid S. H. at the 
 yearly rent of 60I. another let to 1. T. at the yearly 
 rent of 20I. another let to W. B. at the yearly rent of 
 81. 8s. a tenement let to R. B. at the yearly rent of 
 il. I OS. a tenement Ipt to S. C. at the yearly rent of 
 1 1. los. « tenement let to C. M. at the yearly rent of 7I. 
 a tenement let to S. T. at the yearly rent of 5I. a tene- 
 ment let to the widow B. at the yearly rent of 4I. 4s. and 
 another tenement, formerly Wilfon's, late Anderfon's, 
 let at the yearly rent of 40I. whereby your orator is ex- 
 tremely injured by the faid award as to the proportions 
 which the faid Ardwich and Rufholme eftates fnould 
 contribute to the payment of the faid annuity to the 
 faid A. H. — And your orator hath 'alfo, fince the making 
 of the faid award, difcovered that the faid J. G. — C. F. 
 and J. T. or either of them, did not bring into account 
 before the faid arbitrators divers real eftates of which 
 the faid J. M. was, at the time of his death, feized, 
 poiTeffed, or intitled unto, that were comprifcd under 
 the general devife of all other his meiTuages, lands, 
 L 1 4
 
 504 APPENDIX. 
 
 tenements, and hereditaments, and particularly of a 
 melFuage fituate in the town of, Sec. in a ftreet called> 
 &c. which was fold by the faid J, G. or by fome perfon 
 in truft for him, for a large fum of money, to fome 
 committee or committees, to enlarge the faid ftreet, by 
 tiic authority of Parliament ; and alfo a meffuage in or 
 near a ftreet called, Sec. in the town of. Sec. formerly 
 
 let on leafe to one W. and which hath fome time 
 
 fince been fold by the defendant J. G. to W. T. of, Sec. 
 in the county of, &;c. who now is the attorney or fo- 
 licitor of the faid J. G. and J. T. and alfo of divers 
 fmall tenements adjoining to or near a certain eftate of 
 the faid J. M. called the. Sec. in the town of, &c. and 
 alfo other eflatcs and preniifes fituate in or near a place 
 called, Sec. in the county of, 6cc. of confiderable yearly 
 value ; and alfo other divers premifes fituate in the 
 town of, kc. beflvles the faid mefTuages hereinbefore 
 mentioned, of the yearly value of 83I. and upwards ; 
 and alfo certain ground rents iflfuing out of otlfer pre- 
 mifes in the town of, Sec. of the yearly value of 5I. 2s.' 
 and alfo a tenement now or lately in the tenure or 
 occupation of J. S. — And your orator fheweth unto 
 your honors, that he hath alfo, fince the making of 
 the faid award, difcovered that the faid J. G. and J. T. 
 or one of them, received of the rents and profits of 
 ' the faid Rufhoime eftate, from Clu-iftmas to 
 
 Chriftmas the fum of 85I. 14s. 8d. over and above 
 
 the proportion which the faid eftate ought to contri- 
 bute towards the payment of the faid annuity or yearly 
 rent charge of 200I. to the faid A. H. even according 
 to the proportion fet thereon by the faid award : And 
 your orator, upon having made a difcovcrv of the 
 icveral matters aforefaid, applied to the faid J. G. and
 
 APPENDIX. ^05 
 
 J. T. and each of ihem, the faid C. F. having departed 
 this life before the making of the faid award, and 
 rcqueftcd them to come to an account with your orator 
 for the monies, rents, and profits by them or one of 
 them, or by the faid C. ¥. in his Hfe time, received in 
 refpeft of the faid eilates, concealed by them from the 
 faid arbitrator, in order that the fame might be fettled 
 and adj Lifted between them upon the principle adopted 
 by the faid arbitrator in the faid award, without fuit, 
 and to pay your orator the faid fum of 85I. 14s. 8d. 
 received by them or one of them as the rents and 
 profits of the Rufholme Eftate, over and above the 
 proportion which the faid Rufholme Eftate ought to 
 have contributed towards the faid annuity or yearly 
 rent charge of 200I. to the faid A. H. and to convey 
 and allure ail fuch real eftates of the faid J. M. to the 
 ufes dire6\cd in that refped in and by the faid lafl: 
 mentioned will and teflament of the faid J. M. and 
 your orator well hoped they would have complied with 
 fuch reafonable requefts, as in juftice and equity they 
 ought to have done : BUT NOW SO IT IS, may it 
 pleafe your honors, that the faid J. G. and J. T. com- 
 bining and confederating themfelves to and with divers 
 perfons at prefent unknown to your orator, whole 
 names when difcovered he prays he may be at liberty 
 to infert in his bill of complaint, with apt words and 
 matter to charge them and each of them parties de- 
 fendants hereto, and contriving how to injure your 
 orator in the premifes, have not only abfolutely refufcd 
 to comply with your orator's reafonable requells, but 
 are very prefling upon your orator to execute a general 
 rcleafe to them purfuant to the faid award, and threaten 
 to compel your orator to execute the fame to them, by
 
 506 AFFENDIX. 
 
 fomc application to this honorable court, or by fomc 
 other proceeding at law, and to give colour thereto, 
 they give out and pretend that they did lay before the 
 faid arbitrator a true and juft account of all the par^^ 
 liculais of the eflates of the faid R. G. at, &c. and the 
 true yearly values thereof, and that they had fettled 
 with your orator in refpeft to the proportion which 
 the faid cftale at, &c. was to have contributed towards 
 tlie payment of the faid annuity of 200I. to Mrs. A. H. 
 up to Chriftmas Whereas your orator expreflly 
 
 charges that they did not give in a true account of the 
 particulars of the eflates of the faid R. G. at, &:c. to 
 the faid arbitrator, but they wilfully concealed the 
 particulars hereinbefore mentioned, bclides divers other 
 particulars ; and your orator expreflly charges that the 
 faid confederates, or either of them, had not, nor had 
 any other perfon fettled with your orator for the fum 
 of money which had been paid by the faid cflate at, 
 he. towards the annuity of 200I. to Mrs. A. H. over 
 and above its proportion up to Chriftmas or to 
 
 any other period, at the time of the making of the faid 
 award, or at any time fince ; for your orator, upon his 
 difcovering the fame fome time after the making of 
 tlie faid award, made the fame known to the faid 
 confederates, or to fome or one of them, and they 
 tlien acknov/leged the fum of 85I. 14s. 8d. to have 
 been overpaid by your orator in rcfpcft thereof, and 
 the faid V/. T.. as the agent of the faid J. G. and J. T. 
 promifcd that the fame ihould be repaid to your orator; 
 and the faid confederates alfo pretend that they did 
 lay before the faid 'arbitrator a true and jufl, account of 
 the real eftate of which the Hud J. M. was at the time 
 of liis death feifed, poffeffed, ijitercfted in, or intitled
 
 APPENDIX. 507 
 
 to, and which were comprifed under the general dcvifc 
 of all other his meffuagcs, lands, tenements, and he- 
 reditaments ; and particularly that the faid mefluage in, 
 &c. was claimed bv your orator, and brought before 
 the faid arbitrator, and that the faid arbitrator difaU 
 lowed the fame ; whereas your orator admits that he 
 did claim the faid mcfTuage in, &c. before the faid 
 arbitrator, and that the defendants alleged the fame to 
 have been the property of the faid R, G. and of the 
 faid J. M. and they did then Ihew before the faid 
 arbitrator that the faid R. G. had a tenement in, &c. 
 and which w-as then prefumed to have been tlie 
 premifes fo claimed by your orator ; whereas your 
 orator charges that he hath fince difcovercd that 
 the faid mclTuage fo claimed by him was formerly 
 the property of P. M. who by fome deed of truft 
 conveyed and affured the fame to J. M. brother 
 of the faid P. M. who granted a leafe thereof to 
 one T. R. for fome term of years, and to which 
 premifes, upon the death of the faid J. M. the faid 
 J. M. became intitled as his heir at law, and which 
 premifes had been originally devifed to P. M. by his 
 father J. M. which faid deed of truft from the faid P. M. 
 to J. M. and the counterpart of the leafe thereof from 
 the faid J. M. to T. R. and alfo the laft will and tcfta- 
 ment of the faid J. M. father of P. M. arc now in the 
 polTeflion or power of the faid confederates, or of fome 
 or one of them, whereby it will appear that the faid 
 melTuage was part of the real eftate of the faid J. M. 
 and which pafled under the general devife in the faid 
 will, and was no part of the eftate of the faid R. G.— * 
 And your orator charges, that he hath, fince the 
 making of the faid award* diitovered that tlie faid R.
 
 5o8 
 
 APPENDIX. 
 
 G. had a tenement in, &c. which was, as aforcfaid, 
 prcfumed to be the premifes fo claimed by your orator, 
 and that the tenement which fo belonged to the faid 
 R. G. was called or known by the name of, Sec. and 
 was a different and diftinft tenement from the meffuage 
 fo claimed by your orator ; and alfo a meffuage, fituate 
 in or near a ftrcet called, Sec. in the town of, &c. 
 which was formerly the property of the faid J. M. the 
 hereinbefore named father of the faid J. M. and by 
 him demifed to one — W. for a term of years, and 
 which the faid J. M. became intitled to as the heir at 
 law of the faid J. M. and which had alfo been origi- 
 nally dcvifed to the faid P. M. by his father J. M. and 
 which faid mefluage, or fome rent ilTuing thereout, 
 was fold by the faid confederates, or fome or one of 
 them, or by fome perfon in truft for them or on their 
 account, to Mr. W. T. who now a£ls as the attorney 
 or folicitor of the faid confederates, or of fome or one 
 them ; and the faid defendants will fometimes admit, 
 that the faid meffuage in or near a ftrect called, &c. 
 was formerly the property of the faid J. M. but then 
 they pretend that the fame was fpeci.fically devifed by 
 the faid J. M. to one C. W. chargeable with the pay- 
 ment of 400I. to S. R. and that the faid R. G. purchafed 
 the fame of the faid C. W. whereas your orator charges 
 that the premifes dcvifed by the faid J. M. to the faid 
 C. W. were premifes which had been purchafed by 
 him the faid J. M. of T. T. father of the defendant 
 J. T. and fold again by him the faid J. M. after the 
 making his faid will, unto the faid T. T. and that the 
 defendant J. T. or fome perfon claiming under his faid 
 father, now is interefted therein, and that the fame arc 
 different and other premifes than thofc here claimed
 
 APPENDIX. 
 
 SC* 
 
 by your orator : And your orator cxprefsly charges, 
 that the defendant J. G. did not purchafc the fame of 
 the faid C. \V. but became intitled thereto, and pof- 
 fefled himfelf thereof, under and by virtue of the faid 
 general devifc in the faid will of the faid J. M. and 
 afterwards fold the fame to the faid W. "l*. and alfo 
 two fmall tenements or cottages, fituated near, 5cc. 
 which the faid J. M. became intitled to as heir at law 
 of his father J. M. brother to the faid P, M. which faid 
 two fevcral tenements were purchafed by P. M. from 
 one R. T. late of, &:c. in the county of, &c. and con- 
 veyed by the faid deed of truft, made by the faid P. M. 
 to J, M. father of the faid J. M. and alfo fcveral other 
 tenements and premifes, fituate at, &c. in the county 
 of, 6cc. and elfewhere, to all which faid feveral pre- 
 mifes your orator is intitled, in fee-limple, upon the 
 death of the faid J. G. without iflue male ; and the faid 
 J. G. now is of the age of 47 years, and hath no iffuc 
 whatfoever : And your orator exprefsly charges, that 
 the feveral premifes hereinbefore mentioned were part 
 of the eftates of the faid J. M. which paffed under the 
 faid general devife in his faid will, and that no part 
 thereof was the property of the faid R. G. and that it 
 will fo appear by the faid deed of truft from the faid 
 P. M. to the faid J. M. and by an attendant leafe there- 
 with, and by the laft will and tcflament of the faid 
 J. M. father of the faid P. M. and by a certain deed 
 made and executed by E. M. tlie widow of the faid 
 J. M. the elder, bearing date feme time in the year 
 whereby flie gave certain benefits therein men- 
 tioned to one T. M. and by the counterparts of cer- 
 tain leafcs to T. R. and — W. when produced to this 
 Jionorablc court : And vour orator charges, that it ap-
 
 jlO APPENDIX. 
 
 pears by a rental of the eftates late of the faid J. M. 
 delivered to the faid defendants, or one of them, by '1'. 
 D. the receiver thereof, that there were, in the year 
 divers tenements in the town of, he. the pro- 
 perty of the late J. M. of the yearly value of 84I. 2s. 8d. 
 and alfo ground of the yearly value of 5I. 2s. and a 
 tenement in the tenure of J. S. for which he the faid 
 T. D. accounted to the faid J. G. no part whereof was 
 brought before the faid arbitrator, all which feveral 
 deeds and wills, together with the faid rental, and 
 divers other deeds, wills, papers, and writings, your 
 orator charges now arc, or lately were, in the cuftody 
 or power of the faid confederates, or fome or one of 
 them, whereby it will manifeftly appear that the 
 feveral premifes hereinbefore mentioned to have been 
 omitted by tlie faid confederates, were part of the real 
 eftate of the faid J. M. and they fet up many other 
 pretences equally groundlefs and unjuft, all which, &ۥ 
 
 PRiVYER OF THE BILL. 
 
 That they may fct forth the dates, parties names, 
 and fhort and material contents of all and every of 
 fuch deed and deeds, will and wills, and other 
 writings, and may depolit the fame in the hands of 
 their clerk in court in this caufe ; and that plaintiff, and 
 thofe concerned for him, may be at liberty to infpe£t 
 the fame, and take copies of, or extrafts from them, 
 as he may be advifcd to be j:viterial and necelTary for
 
 APPENDIX. 
 
 him; and that the faid confederates may fet forth 
 whether the faid J. M. was not at his death feifed, 
 pofTefred of, or intcreftcd in, or entitled to, divers prc- 
 mifes, or fome and which premifes in particular, and 
 in whofc tenure or occupation, and of what ycaily 
 value, fituate near a place near, &c. in the county of, 
 &c. which they alfo omitted to infcrt in tlie account of 
 the real cftate of the faid J. M. laid by them before 
 the faid arbitrator, or whether the account thereof, 
 laid before the faid arbitrator by them, then was and 
 now is, to the beft of their knov/lcge, information, or 
 belief, a true and juft account, and in no refped erro- 
 neous ; and if the faid confederates fhall now pretend 
 that the faid fcveral premifes before-mentioned, and 
 charged to have been part of the eftate of the f lid J, 
 M. or any or cither of them, wxre, or was in facl, part 
 of the real eftate of the liiid R. G. then, and in vhat 
 cafe, that they may fet forth how, and in what man- 
 ner, and by what deed or deeds, will or wills, or other 
 inih-ument or iuftruments in the law, the faid R. G. 
 became intitled to the fame, or any of them refpec- 
 tively ; and that they may fet forth the date or dates 
 of all and every of fuch deed or deeds, will or wills, 
 or other inftrumcnt or inftruments in the law, and 
 parties names, and (hovt and material contents thereof, 
 and may depoiit the fame in the hands of their clerk in 
 court in this caufe ; and that the. plaintiff, and thofe 
 concerned for him, may be at liberty to infjjeci the 
 fame, and take copies of, or extradls from them, as he 
 may be advifcd ; and whether the plaintiff hath not 
 made the application imd requefts beforementioned to 
 the faid confederates, or to one, and which, of them; 
 and whether they have not refufed to comply tliere-
 
 5»i APPENmx. 
 
 with ; and whether they have not fet up the feveral 
 pretences before in that behalf mentioned, or fomcj 
 and which, of them, or fome other, and what, pre- 
 tences ; and that the faid confederates, and each of 
 them, may fully anfwer all and fingular the matters 
 and things before charged ; and that the faid aivard of 
 the faid S. C. C. fo far as the fame declares that the real 
 efiate of the jaid y. AT. vohich pafjcd by the words of the 
 Yf^iduary claiife in the will of the faid f. M. confifled only 
 offuch parts of the Great Bolton Efiate as tvcre not before 
 fpecifically devifed, and the faid houfe in Smithy-Door, 
 ■zvhich %vas conveyed by the faid J. G. to the plaintiff', may 
 be jet afide, and declared not to be binding on the plaintiff; 
 and alfo fo far as the fame declares and afcertains the pro- 
 portions in which the cflatcs, late of the faid R. G. aty is^c. 
 ought to have contributed toivards the payment of the faid 
 annuity of 200I. to the Jaid A. H. — and alfo fo far as the 
 fame declares that the plaintiff had fettled with the 
 faid J. G. or any other perfon, up to Chriftmas 
 with refpedt to the proportion in which the Rufholme 
 Eftate ought to have contributed towards payment of 
 the faid annuity of 200I. to the faid A. H. the faid 
 award in the feveral particulars above mentioned, 
 having been occafioned by concealment of the faid 
 coniederates as to the feveral matters before charged ; 
 and that the faid confederates may fet forth fully and 
 particularly all and every part of the real efiate which 
 the faid J. M. was at his death fcifed, poiTcffed of, in- 
 tereflcd in, or entitled unto, which were not fpecifically 
 devifed by the faid will of the faid J. M. fave and 
 except the Little Bolton Efiate, and the true yearly 
 values thereof, and of every part thereof; and that it 
 may be referred to the Deputy Remembrancer of the
 
 APPENDIX. 
 
 sn 
 
 Court to afcertaiii the interefl of the plaintiff therein 
 and thereto, and that the faid confederates may convey 
 and aflure all fuch real eftates to the ufes direfted in 
 and by the faid will of the faid J. M. and that all 
 proper parties may join in fuch conveyance and af- 
 furance, and that the faid confederates may alfo fet 
 forth a full and true account of the real cflate of the faid 
 R. G. fituate at, i^c. and the -particulars where of the fame 
 confjlcd, and the yearly values thereof and alfo a true and 
 juji account of what they or either of them, or any one in 
 truji for them or either of them, or on their or either of 
 their accounts, have or hath received out of or in refpe£l 
 cf the faid eflate at, l^c. towards the payment of the 
 faid annuity of 200I. to the faid A. H. and that it may 
 be referred to the Deputy Remembrancer of the Court 
 to fix and afcertain the proportion in which the faid 
 feveral eflates at, &c. ought to have contributed, and 
 ought now to contribute towards the payment of the 
 faid annuity of 200I. to the faid A. H. and alfo to take 
 an account of what the faid confederates or either of 
 them, or any one in trull for them, or on their or 
 cither of their account, have or hath received out of 
 or in refpeft of the faid Rufholme Eftate, towards the 
 payment of the faid annuity of 200I. to the faid A. H. 
 over and above the proportion he (hall afcertain which 
 the faid eflate at, &c. ought to have contributed 
 towards the faid annuity ; and that the faid confederates 
 or one of them may be decreed forthwith to repay unto 
 the plaintiff what Ihall appear to be fo over-paid, and 
 that the faid confederates may in the mean time be 
 reftrained by the order of the court from proceeding 
 upon the faid award againll the plaintiff.— And for 
 relief, 6cc. ha. 
 
 M m
 
 5»4 APPENDIX. 
 
 PLEA 
 
 Of the Defendant J. G. fwo-Ji day of 
 
 SAITH, that by a certain deed poll dated day of 
 under the hand and feal of and duly executed 
 by S. C. C. of, &c. Efq. reciting that J. M. late of, &c. 
 "in the county of, &c. Efq. by his laft will and teftament 
 in writing bearing date the day of after 
 
 deviling feveral real eftates, and bequeathing feveral 
 legacies in manner therein mentioned, gave the follow- 
 ing legacies, (that is to fay), To W. D — W. B. — H. F. 
 C. W.— W. S.— and W. H. the fum of 50I. each ; to 
 the defendant and the plaintiff, and A. G. children of 
 the teftator's kinfman R. G- loool. a piece, and 20 
 guineas a piece for mourning rings ; unto S. J. and M.J. 
 the daughters of G. J. of, &c. 600L a piece ; and unto 
 each and every of the children of W. W. and J. his wife 
 lool. all which faid legacies or fums of money the faid 
 teftator thereby ordered and direded to be paid by and 
 out of the rents and profits of his eftates therein after 
 mentioned, and in fuch manner as therein after men- 
 tioned ; and as for and concerning all that the faid 
 teftator's manor or lordfhip of Little Bolton, with the 
 appurtenances, in the county of, &c. and the perpetual 
 advowfon of Little Bolton Chapel, and all his mcfluages, 
 lands, tenements, rents, tythcs, and hereditaments, 
 arifing and being in Little Bolton aforefaid, and all 
 other his the faid teftator's lands, tenements, heredi- 
 taments, and real eftate whatfoever and whcrefoever.
 
 APPENDIX. 
 
 5«S 
 
 he gave and dcvifcd the fame to the faid W. D. — W. B. 
 
 H. F C. W.— M^ S. and \V, H. and their heirs and 
 
 afTigns, for ever, UPON TRUST that they the faid 
 truftecs and their licirs Ihould in the firll place out of 
 the rents and profits thereof pay a certain annuity in 
 the faid will mentioned, and fubjedl to fuch annuity 
 faid tellator ordered and directed his faid truftces and 
 their heirs to pay and apply the rcfidue of the rents 
 and profits thereof, from time to time, as the fame 
 fhould be got in and received, in the payment of the 
 fevcral legacies therein before by him given to them 
 the faid truftecs, the defendant, the plaintiff, and A. G. 
 the faid S. and M. J. and the children of the faid W. 
 and M. W. in manner therein mentioned ; and after 
 payment of the faid feveral legacies, the faid teflator 
 dire£led that his truflees and their heirs Ihould receive 
 and take the rents and profits of the faid manor and 
 premifes to their own ufe during the life of the faid 
 teflator's uncle P. M. and after the death of the faid 
 P. M. and payment of all the before-mentioned 
 legacies, the faid teftator direfted his faid truftees and 
 their heirs to convey all the faid manors, mefluages, 
 lands, tenements, and real eilate, unto the firfl and 
 other fons and the daughters of the faid P. M. who 
 Ihould be capable of purchafing and holding lands of 
 inheritance in England, in manner therein mentioned ; 
 and for default of fuch iiTue of the faid P. M. then to 
 and to the ufe of the defendant for life, he taking upon 
 himfelf and ufing the name of M. remainder to truflees 
 to prcferve contingent remainders, remainder to the 
 firft and every other fon of the body of the defendant, 
 (taking upon them and ufing the name of M.) in tail 
 male ; and in default of fuch ilfue, then to and to the 
 M m 2
 
 5l6 AVPFKDTX. 
 
 life of the faid plaintifT and his heirs, he and they 
 taking upon them and ufing the name of M. and the 
 faid teftator (after bequeatliing fome further legacies) 
 gave all the rcfiduc of his perfonal cftate, after pay- 
 ment of his debts and faneraJ expcnces, to his faid 
 truftees, to difpofe of as they fhou!d think proper; but 
 in cafe his perfonal eflate fliould fall fhort of paying 
 and fatisfying his funeral expences and debts, then the 
 faid teftator directed his faid trudecs and their heirs, 
 by and out of the rents and profits, or by fale or mort- 
 gage of any part of his mefTuages, lands, tenements, 
 and hereditaments in, he. aforefaid, and not by him 
 before particularly mentioned, to raife money fufficient 
 to make good fuch deficiency, and the faid J. M. 
 appointed the faid W. D.— W. B.— H. F.— C. W. 
 W. S. and W. H. executors of his faid will, and further 
 reciting that the faid J. M. after the date and execution 
 of the faid will, made a mortgage in fee of the faid 
 Little Bolton Eftate, for fecuring the fum of 4000I. 
 and further reciting certain indentures of leafe and 
 releafe, dated the and days of being a 
 
 fcttlcment made previous to and in confideration of a 
 marriage which was intended to be, and was foon after- 
 wards had and folemnized between the faid J. M. and 
 A. B. and further reciting that the faid J. M. died on 
 or about the day of without having had any 
 
 iffue, leaving the faid A. liis widow him furviving ; 
 and further reciting that the faid W. D.— W. B.— H. F. 
 C. W. — W. S. and W. H. renounced the probate of 
 the faid will, and declined to aiSl in the truils thereof, 
 and thereupon the defendant poflcfled himfclf of the 
 perfonal eftate and effefts of the faid J. M. or fo much 
 thereof as he was able, and entered into pofFefTion and
 
 APPF.KDIX. 
 
 517 
 
 receipt of the rents and profits of tlie real eftates 
 devifcd by the faid teftator to his truftces for the pur- 
 pofes before mentioned, and the defendant had fince 
 obtained letters of adminiftration of the perfonal cftate 
 and effeas of the faid J. M. with his faid will annexed ; 
 and further reciting that by indentures of leafc and 
 relcafe, dated the and days of the relcafe 
 
 made between the faid W. B, — H. F. — C. W. and 
 W. H. being the furviving truftees under the faid will? 
 of the firft part, defendant, plaintiff, J. T. another 
 defendant to plaintiff's bill, and A. his wife (late xV. G.) 
 
 ■- E.— J. H. and E. H. who were the afTignecs of 
 
 the eftate and effeds of the faid H. F. under a com- 
 mifTion of bankrupt, N. S. the executor of the faid 
 W. S,— W. ^V.— S. W.— J. W. and C. W. of Jamaica, 
 the four fons and only children of the faid W. W. and 
 J. his wife living at the time of the death of the faid 
 J. M. of the fecond part, G.J, Efq. the father of M.J. 
 one of the legatees, who was then an infant, under the 
 age of twenty-oiie years, of the third part, C. F. of 
 the fourth part, and the faid R. G. of the fifth part : 
 It was witnefTed, that the faid W. B. in confidcration 
 
 of the fum of 50I. the faid E.— J. H. and E. FI. 
 
 as affignees of the eftate and cfFeds of the faid H. F. 
 in confidcration of the like fum of 50I. the faid C. W. 
 in conlideration of the like fum of 50I. the faid N. S. 
 as executor of the faid W. S. in confidcration of the 
 like fum of 50I. the faid W. H, in confidcration of the 
 like fum of 50I. the plaintiff, in confidcration of 102 il. 
 the faid J. T. and A. his wife, in confideiation of the 
 fum of 1021 1, the faid W. W,— S. W.— J. W. and 
 C. W. in confidcration of lopl. paid to them rcfpec- 
 tively by the defendant, did, at the rec^ucft and by the 
 M m 3
 
 518 
 
 APPENDIX. 
 
 direftioii and appointment of the defendant, and alfo 
 the defendant did aflign and transfer unto the faid C. F. 
 his executors, Sec. all and fingular the faid legacies, to 
 hold the fame in truft for the defendant, to the intent 
 that the faid legacies might be paid to the defendant, 
 his executors, &c. from and out of the faid truft eilates 
 remaining chargeable with the payment thereof, and 
 at fuch times and in fuch manner as in the faid will is 
 for that purpofe mentioned ; and for the confideration 
 aforefaid, the furviving devifees in truft, at the requeft 
 of the defendant and plaintiff, did releafe and convey- 
 to the faid R. G. his heirs and affigns, all and lingular 
 the mcffuages, lands, tenements, and hereditaments, 
 which in and by the faid will were devifed unto the 
 truftees therein named, fave and except the manor of 
 Little Bolton, and the melTuages, lands, tenements, and 
 hereditaments comprized in the aforefaid marriage 
 fettlcment, whereby the devife thereof was revoked ; 
 To hold the fame to the faid R. G. his heirs and afligns, 
 upon the trulls declared concerning the fame, in and 
 hy the faid will of the faid J. M, or fuch of them as 
 were then exilting or capable of taking effect ; and the 
 faid G.J, in confideration of the faid legacy bequeathed 
 to his faid daughter, who wa's then an infant, being 
 paid to him, did thereby covenant, that he would Hand 
 and be poflelTcd of the fame for her benefit, and in- 
 demnify the defendant and the faid devifees in truft for 
 the pay merit thereof; and further reciting that the fum 
 of 1021I. in the faid indenture mentioned to have been 
 paid to the faid plaintiff, was not, nor was any part 
 thereof in fa6t paid to him, but by indentures of Icafc 
 2nd releafe, dated the and days of and 
 
 made betwcjn the defendant of the one part, and the
 
 APPENDIX. 
 
 $'*, 
 
 faid plaintiff of the other part, in confideration of 
 loool. in the faid indenture of relcafe of the day o£ 
 mentioned to have been paid to the faid plaintiff, 
 the defendant bargained, fold, aliened, and confirmed 
 to the faid plaintiff, his heirs and affigns, a certain 
 raefluage or dwclling-houfe fituate in, &c. therein 
 particularly defcribcd, to hold the fame to the faid 
 plaintiff, his heirs and affigns, for ever; and he the 
 defendant did thereby covenant with the faid plaintiff, 
 that he the defendant had an abfolute eftate of inheri- 
 tance in fee fimple in the faid meffuagc and premifes, 
 and had good right and authority to convey the fame 
 to the faid plaintiff, his heirs and affigns, in manner 
 aforefaid ; and further reciting that the faid plaintiff 
 thereupon entered into the receipt of the rents and 
 profits of the faid houfe in, &c. and had ever fince 
 continued in the receipt thereof; and further reciting 
 that the faid J. M. was at the time of his death indebted 
 on mortgage and other-fpecialty, and by fimple con- 
 trad, to a very large amount, which debts have been 
 iiuce paid by fuch perfons, and in fuch manner as 
 therein after mentioned ; and further reciting that the 
 faid R. G. (the late father of the defendant and the faid 
 plaintiff,) duly made and publilhed his lafl will and 
 teftament in writing, (and which was attefted fo as to 
 pafs freehold eftate), part of which was in the words 
 or to the effeft following, (that is to fay) : *' I alfo 
 " give to my fon T. G. twenty fhares in the Navigation 
 " of the Rivers Merfey and Irwell ; and after my wife's 
 " death, or in cafe fhe marries, I give to my fon T. 
 '• my lands in, &c. ray houfe in, &c. and all the fur- 
 *' niture, with all the plate, linen, and china, except 
 *' what is found to the contrary on a paper, and kid 
 jsi m 4
 
 jtd APPENDIX. 
 
 " with this ; alfo I give to Mr. E. W. during my wife's 
 « life, if flie remains unmarried, my lands at, kc. 
 •' occupied by E. S. my lands at, &c. occupied by 
 «* T. Y. and lands in the parifli of, &c. known by the 
 <' name of Fleams, occupied by J. T. in the county of, 
 *' kc. in truft, neverthelefs, that he receive the rents, 
 *' and pay quarterly after the rate of 300I. each year to 
 *' my faid wife, if Ihe remains unmarried, and what 
 «* remains in his hands, after paying the above fum, 
 »« to divide the balance betwixt my two fens J. and T. 
 « I alfo will that Ihe has a thoufand pounds paid to 
 *' her as mentioned in her fettlement ; 1 likewifc give 
 " her the carriage and the two bay horfes ; I likewifc 
 ** give her the produce of the field at, &c. I likewifc 
 •' give her my houfe in, &c. which we now inhabit, 
 •* and all the furniture, with the plate, linen, and 
 *' china, with the liable and warehoufe thereto adjoin- 
 *' ing ; but in cafe fhe marries, I doubt not but her 
 *' own prudence will diredt her in the choice of a 
 *' perfon who will make her fatisfaftion for the lofs of 
 *' the houfe, &c, and the faid houfe and furniture fliall 
 •' be direftly delivered up to my fon T. and the eftate 
 •* to go as the fettlement diredts ; fo that if fhe marries 
 ** again, it is my will that the fettlement which I made 
 ** at my marriage be obferved, and the cftates therein 
 ** mentioned as before in this will difpofed of;" and 
 in a fubfequent part of the faid will, the faid teftator 
 devifed as follows : " And the reft and refidue of all 
 ** my eftates real and perfonal I give to my fon J. G. 
 <* excepting what he will find difpofed of by codicils 
 ** which are lapt up with thefe :" and the faid teftator 
 appointed his wife A. and the defendant executors of 
 his faid will ; and further reciting that the faid R. G.
 
 APPENDIX. jtt 
 
 departed this life in or about the month of and 
 
 at the time of his death leveral codicils or tcftament.ny 
 papers were found together with his faid will, and that 
 the defendant alone had proved the faid will of the faid 
 R. G. in the proper EccJeliaftical Court ; and further 
 reciting that by the marriage fettlemcnt, to which the 
 will of the fciid R. G. refers, a rent charge of 200I. per 
 ann. was provided for A. his wife by way of jointure, 
 during her life, out of the faid premifcs at, &c. in the 
 faid v\-I!I mentioned ; and further reciting certain in- 
 dentures of Icafe and releafe dated the and 
 davs of whereby the defendant conveyed and 
 aliigned all his r^al and perfonal cflate and cffeds, 
 (except as thcre"n mentioned), unto the faid C. F. and 
 J. T. upon traft for the payment of the debts of the 
 defendant, in fuch manner as thereby direfted ; and 
 further reciting that the faid A. the widow of the faid 
 R, G. did, in or about the month of intcrmany 
 with R. H. whereby the provifion made for Iier by the 
 will of the faid R. G. ceafed and determined ; and 
 further reciting that feveral difputes and differences 
 had arifcn between the defendant and C. F. and J. X 
 as his trullees, and the faid plaintiff, refpcfting the real 
 and perfona! eftate of the faid J, M, and the application 
 thereof by the defendant, and alfo refpefting the effeft 
 and conllrudion of the will of the faid R. G. and of 
 the feveral codicils or tcilamentary papers found there- 
 with as herein before mentioned, and the proportions 
 in which the faid three eftatcs at, &c. were and are 
 liable to contribute towards payment of the jointure of 
 the faid A. H. and further reciting that a bill was filed 
 in the Court of Exchequer by the faid C. F. and J, T. 
 4nd the defendant agaiiill the faid plaintiff, Hating that
 
 !" 
 
 Af PE.VDIX. 
 
 the debts of the faid J. M. had been paid and fatisfie 
 by the defendant and R. G. and by the faid C. F. and 
 J. T. to an amount much beyond the perfonal eftatc 
 of the faid J. M. poflefled by the defendant, and pray- 
 ing that the trufts of the will of the faid J. M. fo far as 
 the fame remained unrevoked, might be carried into 
 execution, and that an account might be taken of his 
 perfonal eftate and effedls not fpecitically bequeathed, 
 which had been poffeffed or received by the defendant, 
 and alfo of the faid J. M.'s debts and funeral expences, 
 and the fums paid in difchargc thereof by the defend- 
 ant, and in cafe it fhould appear that fuch perfonal 
 eftate and effeds were not fufficient for payment of 
 the faid J. M.'s debts and funeral expences, that the 
 deficiency might be raifed by fale of the Great Bolton 
 Eftate, or a fufficient part thereof; and that the laid 
 C. F. and J. T. as afhgnees of the defendant, might be 
 declared to ftand as creditors on the eftate of the faid 
 J. M. for the amount of the debts paid by the defend- 
 ant and the faid R. G. — C. F. and J. T. as aforefaid, 
 beyond the amount of the perfonal eftate of the faid 
 J. M. polTefted by the defendant, and that an account 
 might alfo be taken of the legacies of the faid J. M. 
 charged upon the rents and profits of the real eftates 
 before mentioned, and of what had been paid by the 
 defendant in difcharge of ftich legacies, and that the 
 fame might be raifed by falc of fuch eftates; and 
 further reciting that in or about Eafter Term a 
 
 bill was filed in the fame court by the faid plaintiff 
 againft the defendant, C. F. and j. T. to fet afide the 
 faid indentures of leafe and releafe of the and 
 
 days of as having been fraudulently obtained, 
 
 and for payment of the faid legacies of 102 il. be-
 
 APPENDIX. 51? 
 
 queathcd to the faid plaintiff by the faid J. M.'s will ; 
 and further reciting that another bill was filed in the 
 fame court by the faid C. ¥. — ^J. '1'. and the defendant, 
 againfl the fiiid plaintiff, and againft J. H. refpefting 
 two clofcs of land part of the Ardwicke Eftate therein 
 before mentioned ; and further reciting that by an order 
 made by the faid Court of Exchequer in the faid three 
 caufes dated the day of upon the motion 
 
 of the counfel for the faid C. F.— J. T. and the defend- 
 ant, it was ordered by the faid court, by confent of the 
 faid plaintiff then prefent in court, that as well the 
 feveral matters in difpute between the faid parties in 
 the faid three caufes, as alfo all other matters in 
 difpute, claims, and demands depending or being be- 
 tween the defendant and plaintiff, or the defendant and 
 J. T. as the truflee of his eftate and effefts, and the 
 plaintiff, in any manner or wife, Ihould be, and the 
 fame thereby were referred to him the faid S. C. C. to 
 arbitrate and award and determine the fame, fo that 
 he fhould make his award in writing between the faid 
 parties touching the feveral matters and things thereby- 
 referred to him, on or before the day of 
 then next, which Ihould be confirmed and made an 
 order of the faid court ; and it was further orderd, 
 that as well the faid parties, as alfo fuch perfon or 
 perfons whofe evidence might be thought neceflary to 
 be adduced or given to him, fhould be examined upon 
 interrogatories, or upon oath, in fuch manner, and by 
 and before fuch perfon or perfons as he Ihould direfl; 
 and that all decds^ books, and papers in the cuftodyor 
 power of any of the parties, relating to the mattters 
 in queftion, fhould be by them produced before him; 
 and further reciting that he had taken upon himfelt the
 
 5 •'.4 AFPEXDIX. 
 
 faid arbitration, and had confidered the feveral matters 
 in difference between the faid parties at the time of 
 making the faid order, fo far as the fame had been 
 laid before him; and further reciting that the time 
 h'mited for making his award in the premifes had been 
 by feveral orders of the faid court enlarged, he the 
 faid S. C. C. did make his award in the premifes in the 
 words and in manner and form following, (that is to 
 fay), firft, I find and declare that the amount of the 
 perfonal eftate and efFefts of the faid J. M. poffeiTed or 
 received by the faid J. G. did not exceed in the whole 
 the fum of 2800I. and I find and declare that the 
 funeral expences and debts of the faid J. M. which were 
 paid and fatisfied by the faid J. G. or the faid R. G. 
 on his account, or the faid C. F. and J. T. as his 
 truflces, (including the fum of 4000I. fecured by mort- 
 gage of the Little Bolton Eftale as aforefaid), amounted 
 together to the principal fum of 8555I. together with 
 3n avrear of intercft thereon, the particulars of which 
 payments I have fet forth in the fchedule annexed to 
 this my award ; and I find that the annual rents of the 
 mefTuages, lands, tenements, and hereditaments in 
 Great Bolton, (not fpecifically devifed by the faid J. M.) 
 out of which he the faid J. M. directed his faid truitees 
 to raifc and make good the deficiency of his perfonal 
 c^late to pay and fatisfy his funeral expences and debts, 
 did not exceed the fum of 126I. that the whole inheri- 
 tance of the premifes in Great Bolton were not at the 
 time of the death of the faid J. M. or at the time when 
 fuch funeral expences and debts of the faid J. M. were 
 paid and fatisfied as aforefaid, worth to be fold fufficient 
 to make good fuch deficiency of the perfonal eftate ; 
 and I do therefore declare and award that the faid
 
 ArPEN'DtX. 525 
 
 J. G. and the fald J. T. as his truftte, (he the faid 
 C. F. having departed this life), by the means aforc- 
 faid, and {landing in the place of fuch cveditors of the 
 faid J. M. and by virtue of the faid indentures of the 
 
 and days of became and now are 
 
 abfokitely intitled to the whole l)eneficial intcrcil in 
 the faid Great Bolton Eftate ; and I further declare and 
 award that the devife in the will of the faid J. M. of 
 the manor or lordlhip of Little Bolton, and the advow- 
 fon and right of prefentation to Little Bolton Chapel, 
 and all his the faid tcllator's meiruages, lands, tene- 
 ments, tythes, and hereditaments in Little Bolton afore- 
 faid, was revoked by the faid indentures of fcttlement 
 of the and days of herein before 
 
 fet forth ; and I further find and declare that the only 
 real cftates which paflcd under the words of the refi- 
 duary devife in the will of the faid J. M. (that is to fay) 
 *' all other my meffuagcs, lands, tenements, heredi- 
 *' taments, and real eftate whatfoever and wherefoever" 
 were fuch parts of the faid Great Bolton Eftate as were 
 not before fpecifically devifed, and the faid houfe in, 
 &c. which was conveyed by the faid J. G. to the faid 
 T. G. by the faid indentures of and days of 
 
 herein before fet forth ; and I therefore declare 
 and award that the faid T. G. liath not any claim or 
 intcreft whatfoever in the real or pcrfonal eftate of the 
 faid J. M. except in the faid houfe in, &c. which I 
 direft and award fiiall be accepted and taken by the 
 faid T. G. for fuch eftate as the faid j. G. had therein 
 at the time of the execution of the faid indentures of 
 the and days of in' full fatlsfaftion of uli 
 
 claims and demands of him the faid T. G. in rclped 
 of the faid legacies of loool. and 21L bequeathed to
 
 5*6 APFKKDIX 
 
 him by the will of the faid J. M. and as to the feveral 
 matters in difference between the faid parties in. rcfpe£l 
 of the eftates of the faid R. G. and the effcft of his 
 will, and the feveral codicils or teftamentary writings 
 found therewith as aforefaid ; I declare and award that 
 the feveral lands, tenements, and hereditaments of the 
 faid R. G. fituate in Rufliolme aforefaid, (fubjeft to their 
 proportion of the jointure payable to the faid A. H.) 
 were well and fufhciently devifed by the faid R. G. to 
 the faid T. G. in fee fimple, from the time of the 
 fecond marriage of the faid A. H. and I do therefore 
 award and direft that the faid J. G. and J. T. fliall, 
 upon demand for that purpofe made by the faid T. G. 
 or fome perfon by him thereunto lawfully authorized, 
 deliver up or caufe to be delivered up to him the faid 
 T. G. or unto fuch other perfon, all the title deeds 
 and papers and writings in the cuftody or power of 
 them the faid J. G. and J. T. refpeftively, relating to 
 or concerning the faid premifcs in Rufholme ; and I 
 further declare and award that the lands, tenements, 
 and hereditaments of the faid R. G. fituate in Ardwich 
 aforefaid, were well and fufficiently devifed by the 
 codicils or teflamentary papers found with the will of 
 the faid R. G. as aforefaid, or fome of them', to the 
 faid T. G. in fee fmiple, and that by fuch devife the 
 faid T. G. upon the fecond marriage of the faid A. H. 
 became intitled to the faid premifes in fee fimple, 
 (fubje6t only to their proportion of the faid A. H 's 
 jointure) ; and I find that the faid J. G. or the faid 
 C. F. and J. T. as his truftces, received the rents and 
 profits of the faid Ardwich Eftate, (except the faid two 
 clofes let to the faid J. H. at the yearly rent of 81. 8s, 
 which were received by the faid T. G, from the time 
 
 4
 
 APPEN DIX. 5t7 
 
 of the iccond marriage of the faid A. H. until the time 
 when the pofTeffion thereof was alfo delivered up to 
 H. A. Efq. in purfuancc of the agreement herein after 
 mentioned, which rents and prolits amounted in the 
 whole to the fum of 560I. and I find that by an agree- 
 ment dated the day of made between 
 W. T. on behalf of C. F. and J. T. as fuch truftecs as 
 aforefaid, of the one part, and the faid H. A. Efq. of 
 the other part, the faid W. T. agreed for the fale of 
 certain melTuages or dwelling-houfes in, &c. and the 
 whole of the faid Ardwich Eflate to the faid H. A. for 
 the fum of 6300I. to be paid on or before the 
 day of then next, and by fuch agreement it was 
 provided that the venders fliould have the rents and 
 profits of the faid Ardwick Eftate up to the day of 
 then next, at which time the faid H. A. was to 
 enter into the receipt thereof; and I find that fuch 
 purchafe hath been fince completed, but that the rents 
 and profits of the faid two clofes let to the faid J. H. 
 hath been received from that time to Chriftmas 
 by the faid T. G. and 1 find that the proportion of the 
 faid fum of 6300I. which was agreed to be paid for the 
 Ardwick Eftate, was the fum of 4200I. and I find and 
 award that the proportions in which the faid Preftwich, 
 Ardwich, and Ruffiolme Eftates were liable to contri- 
 bute to the annual payment of the jointure of the faid 
 A. H. from the time of the fecond marriage, were as 
 follows, (that is to fay) : Preftwich, 126I. i8s. 8d, 
 Ardwick, 41 1. 7s. 8d. Rufiiolmc, 31I, 13s. 8d. making 
 together 200I. and I find that all accounts in refpeft 
 of the contribution of the Rufholme Eftate to the faid 
 jointure have been fettled between the faid parties up 
 to Chriftmas from which time the whole of the
 
 5z' AFPEKDIX. 
 
 faid jointure hath been paid to tlie faid A. f I. up to 
 the day of now laft paft, by the faid J. G. 
 
 or the faid C. F. and J. 1". as his trultecs, and upon 
 confideration of the matters aforefaid, I do declare 
 that the faid J. G. and j. T. as his trollees, ought to 
 pay to the faid T. G. the fum of 560I. the amount of 
 the rents of the Arc'.vvich Eflate received by the faid 
 J. G. or his truftee as aforefaid, deducing thereout 
 the fum of 331I. is. 4d. the amount of the proportions 
 contributable by the Ardwich Eftate to the fa'd jointure 
 at the rate herein before mentioned, which reduces 
 the faid fum of 560I. to the fum of 228I. i8s. 8d. and 
 I do further declare that the faid J. G. and J. T. as his 
 truflee, ought to pay to the faid T. G. the fum of 
 4200I. for which the faid Ardwich Eftate was fold asf 
 aforefaid, with intercil for the fame at the rate of 4I. 
 per cent, per ann. from the day of to the 
 
 time when the fame fliall be paid, dedu£\ing thereout 
 the fum of 289I. 13s. 8d. tlie amount of the proportion 
 contributable by the Ardwith Eftate to the faid jointure 
 from the faid day of to the day of 
 
 and alfo the fum of 237I. 12s. 6d. the amount of the 
 proportion contributable by the faid Rufliolme Eflate 
 to the faid jointure from Chriflmas to the fame 
 
 time, and a!fo the fum of 50!. 8s. the amount of the 
 rents of the faid J. H. which have been received by the 
 faid T. G. fince the fale cf the Ardwich Eflate, and 
 alfo the fum of i lol. i8s. being the amount of certain 
 parts of the effetls cf the faid R. G. pofTelTed by the 
 faid T. G. and fold by him, to which it now appears 
 he had no title ; and I award that the faid fum of 
 4200I. with fuch interefl as aforefaid, ihall be accepted 
 and taken by the faid T. G. in fail fatisfadion of all
 
 APPENDIX. 5:9 
 
 claims and demands of him the faid T. G. in lefpcft of 
 the faid Ardvvic'h Eftate ; and with refpcft to the cofls 
 of the fevcral fuits herein before mentioned, I am of 
 opinion, that the faid J. G. and ]. T. his tiullec oirj;ht 
 to pay to the faid T. G. his cofls of tlic faid fuit inlli- 
 tuted by the faid C. F.— ^J. T. and J. G. for carrying 
 the trufts of the faid J. M/s will into execution as 
 aforefaid, to be taxed by the proper officer of the faid 
 Court of Exchequer, but that the faid parties rcfpec- 
 tively ought to bear their own cofls of all the faid fuits 
 depending between them at the time of the faid order 
 of reference ; and I do award and direft that the faid 
 ]. G. and the faid J. T. out of the cflate and cffeas of 
 the faid J. G. conveyed and afiigned to' the faid C. F* 
 and him the faid J. T. as aforefaid, do, on or before 
 tlie day of • next, pay to the faid T. G; or 
 
 fome porfon by him thereunto lawfully authorized, 
 fuch fevcral principal fums, w'ith fuch intercft an<l colls 
 as herein before particularly mentioned, after making 
 fuch dedudlions as aforefaid ; and I do further award 
 that upon payment of fuch money, he the faiu T. G. 
 fiiall, if he Ihall be thereunto required by the faid J. G. 
 and ). T. and at the charges and expences of tJiem 
 the faid J. G. and J. T. execute good and fufScient 
 tcleafes, conveyances, or other affuranccs of all his 
 .eflate,- right, title, intereft, in or to the feveral mef- 
 fuages, lands, tenements, and hereditaments in, &c. 
 herein before mentioned to them the faid J. G. and 
 J. T. or cither of them, or to fuch other pcrfon or 
 pcrfons as they the faid J. G. and J. T. fliall direft and 
 appoint ; and I do further award and direft that they 
 the faid parties refpeftively Ihall, upon or at the time 
 after payment of the money herein before directed to 
 
 i>i n
 
 ^j® ^APPENDIX 
 
 be paid, when they fhall be thereunto required, and 
 at their own refpeflive charges, make, execute, and 
 deliver to each other fufFicient mutual releafes in 
 writing of all aftions, covenants, fuits, and demands, 
 which they the faid J. G. and J. T. as his truftee, and 
 the faid T. G. had or claimed to have againft each 
 othisr in refpeft of the matters in difference between 
 them at the time of making the faid order of reference ; 
 and I do further award and direft that the future pay- 
 ments of the faid jointure of 2col. per annum fliall be 
 from time to time kept down and paid by the faid 
 parties refpeftively, in the proportions herein before 
 mentioned ; and I further award that the faid parties 
 refpeftivelv fhall bear the cofls of the faid reference. 
 
 SAITH, that by an order of this court, made in the 
 three feveral befoi-e-mentioned caufes, on the 
 day of upon the motion of the counfel cf the faid 
 
 plaintiff', praying that the aforefatd award might be 
 confirmed and made an order of this court ; and on 
 hearing the counfel for the defendant, and the faid 
 J. T. it was ordered that the faid award fhould be, and 
 the fame was thereby made an order of this court, and 
 that the fame fliould be binding upon the laid feveral 
 parties, and that they fliould abide by, perfoitn, 3nd 
 fulfil the faid award, according to the true intent and 
 meaning thereof, as by tlie faid av;a>"d s.a6. oider, 
 relation being thereunto had when produced, will ap- 
 pear, and' to which the defendant for liis gre;a,t*er cer- 
 tainty refers.' 
 
 • This was the cafe of Gartfule v. Gartfide, Hitntioncd in page 
 
 373.
 
 APl'EKDIX. 531 
 
 BILL 
 
 To SET ASIDE an Award for Corruption and 
 Partiality in the Arbitrators. 
 
 1 o the Right Honourable William Pitt, 
 Chancellor and Under Treafurer of his 
 Majefty's Court of Exchequer, at Wcft- 
 minller, Sir James Eyre, Knt. Lord 
 Chief Baron of the fame Court, and the 
 rell: of the Barons there, 
 
 Humbly complaining, flicvveth unto your Ho- 
 nors your orator W. E. of, &c. in the county of, &c- 
 grazier, (debtor and accountant to his Majefly, as by 
 the records of this honourable court, and othervvife, 
 doth or may appear,) that for fome time previous to 
 the month of your orator had coniiderable 
 
 dealings and tranfaftions, in the way of his bufincfs o£ 
 a grazier, with J. H. of, &c. in the laid county of, &c 
 and S. T. of, 6cc. aforefaid, in the way of their 
 trade or bulinefs of butchers, which they then, and 
 for fome time before, had carried on in partnerfnip 
 together ; and that in the faid month of the 
 
 faid T. H. and S. T. as partners as aforefaid, flood 
 indebted to your orator in the furri of 121I. 13s. 6d. 
 on the balance of accounts between them ; and your 
 orator, as was admitted and. allowed by them the faid 
 J. H. and S. T. upon a fettlement of fuch accounts in 
 N n 2
 
 53i APVESDIS.. I 
 
 that month ; and the faidj. H. was alio at that time, 
 as he likevvife admitted and acknowlcged, juftly in- 
 debted to your orator, on his own feparate account, in 
 the fum of 7I. 7s. and the faid S. T. was alfo then in- 
 debted to your orator, on his own feparate account, in 
 the fum of 65I. 6s. and your orator having made many 
 fruitlefs applications to the faid J. H. and S. T. for 
 payment of fuch debts, he your orator, in the faid 
 month of caufcd actions at law to be com- 
 
 menced againft them for recovery of the fame: And 
 your orator further fheweth, that foon after the com- 
 mencement of thofc anions the faid S. T. made 
 and executed an affignment of all his eftate and effeft? 
 to certain truftees, in truft for and for the benefit of 
 his creditors, and that the debt originally due from the 
 faid J. H. and S. T. as partners as aforefaid to your 
 orator, having amounted to the fum of 160I. 13s. 6d. 
 one moiety whereof amounted to the fum of Sol. 6s. 9d. 
 and the faid J. H. having, with his own feparate 
 money, paid to your orator the fum of 391. on account 
 of fuch partnerfhip debt (whereby the fame was re- 
 duced to the aforefaid balance or fum of 121I. 13s. 6d.) 
 and each of the faid co-partners, although clearly and 
 fully un4.erftood to be liable to your orator for the 
 whole of the faid balance, yet being liable, as between 
 themfelves, to pay a moiety of fuch original debt of 
 160I. 13s. 6d. — and the faid J. H. having, by the faid 
 payment, reduced his moiety thereof to the fum of 
 41I. 6s. 9d. it was upon the occafion of the faid S. T. 
 making the aforefaid afhgnment of his eftate and ciFe£ts' 
 agreed between the faid J. li. and your orator, that 
 the faid J. H, fliould forthwith pay (and he accordingly 
 4id" afterwards pay and fatisfy} to 7our orator th« re-
 
 AITKNOIX. 53 J 
 
 nialndcr of his the faid J. H.'s moiety of the faid origi- 
 nal partneilhip dcht, together with what was fo due 
 to your orator from him the faid J. 11. on his own 
 fcparate account as aforcfaid : and it was alfo agreed, 
 with the privity and approbation of the faid S. T. and 
 !iis creditors, or many of them, that your orator fliould 
 come in as a creditor under the faid S. T.'s faid afllgn- 
 ment of his cftatc and cffcfts, not only for the debt fo, 
 as aforcfaid, owing to liim by the faid S. T. on his own 
 fcparate account, but alfo in refpedt to the faid S, T.'s 
 faid moiety of the faid original partnerfhip debt of 
 j6oL 13s. 6d. and take a dividend out of fuch eftatc 
 and effedVs in rcfpcvSl thereof, rateably and in pro- 
 portion with the faid S. T.'s other creditors ; and it 
 was agreed between your orator and the faid J. H. that 
 the faid J, H. Ihould give his promilTory note to your 
 orator for the faid fum of 8oh 6s. 9d. the faid S. T.'s 
 moiety of the faid original partnerfliip debt, as a fe- 
 curity for fq much of fuch moiety as fhould not be 
 fatislied by means of fuch dividend out of the faid S. 
 T.'s eftate and cffccls, and that your orator fliould 
 difcontinue any further proceedings in the faid aftions 
 at law : And your orator further fheweth, that the faid 
 J. H. did accordingly, and in purfuance of fuch agree- 
 ment, give a promiffory note under his hand to your 
 orator for payment to your orator of the faid fum of 
 Sol. 6s. 9d. being the amount of the faid S. T.'s moiety 
 of the faid original joint debt, and which fiiid note is 
 now in your orator's pofTefTion ; and in confideration 
 thereof, and in purfuance of the faid agreement, your 
 orator difcontinued the faid aftions at law, and part of 
 your orator's colls in fuch aftions was fatisficd by the 
 faid S. T. or placed to his account, and the ycfiduc of 
 N n .^
 
 534 APPKNDIX. 
 
 fuch cofts, amounting to the fum of 3I. 3s. the faid J. 
 H. agreed and undertook to pay to your orator as his 
 the faid J. H.'s proportion or (liarc of fuch cofls : And ' 
 your orator further fheweth, that in the month of 
 a dividend of 9s. in the pound was made 
 among the creditors of the faid S. T, who took the 
 benciit of the faid aflignmcnt of his eflate and effects ; 
 and your orator received the faid dividend upon, or in 
 refpeft of, the fiiid fum of 80I. 6s. gd. the faid J. I'.'s 
 moiety of the aforefaid partnciHiip debt, and which 
 dividend fo received by your orator amounted to the 
 fum of 36I. 3s. and that fum being deduced from the 
 faid fum of Sol. 6s. 9d. reduced the fame to the fum of 
 44I. 3s. 9d. and that the produce of the faid S. T.'s 
 eftate and effeds comprized in the faid affignment 
 being wholly exhaufted by the payment of the faid 
 dividend among his creditors, and the faid J. H. having 
 given" the faid promiflbry note to your orator as a fe- 
 curity for fo much of the faid fum of 80I. 6s. gd. therein 
 mentioned as fhould not be fatisfied by means of the 
 dividend out of the faid S, T.'s eftate and effeds, he 
 your orator, after the receipt of the faid dividend, 
 applied to the faid J. H. for payment of tlie faid fum of 
 44I. 3s. 9d. fo remaining due on the faid promifTory 
 note, after deducing the faid dividend, as alfo for 
 payment of the faid fum of 3I. 3s. and your orator's 
 attorney, at the requeft of the faid J. H.'s attorney, 
 fent to him. a letter, containing the particulars of the 
 faid demands : And your orator further flicvvcth that 
 the faid J. H. repeatedly promifed to pay to your 
 orator the faid fum of 4.4.I. 3s. gd. and alfo the faid fum 
 of 3I. 3s, on account of the cofts of the faid aftions ; 
 but Uie faid J. H. not performing fuch his promifes
 
 APPENDIX. 5J5 
 
 n', I -a s 
 
 your orator at length caiifcd another aiElion at law to 
 be commenced againft the faid J. H. in order to re- 
 cover from him the laid fiims of 44I. 3s. Qd. and 3I. 3s. 
 And your orator further flicvvcth, that the faid lalt- 
 mentioned a6lion having hccn ])rocceded in to ifTue, 
 the fame flood for trial at the I.cnt alhzcs in and for 
 the faid county of, &cc. in the year hut previous to 
 
 the faid a£lion coming on to be tried the faid J. H. ap- 
 plied to your orator, and to his faid attorney in fuch 
 adlion, and earneftly requeued that your orator woulci 
 confent that tlie matters in diffcvence between them, 
 in refpe£l whereof the faid laft-mentioned adlion had 
 been brought, fhould be referred to the arbitration of 
 J. S. of, kc. in the faid county of, &c. Gent, and E. 
 M. of, &c. in the fame county, Gent, and your orator 
 having confented thereto, they, your orator and the 
 faid J. H. thereupon fubfqribed their names to an 
 agreement in writing, dated the day of 
 
 whereby it was agreed that the faid lafl-mentioned 
 a6lion, and the cofts thereof, and of the faid reference, 
 as well as all other matters in difpute between your 
 orator and the faid J. 11. fhould be referred to, and that 
 they, your orator and the faid J. H. fhould abide by the 
 award and final determination of the faid J. S. and E. 
 M. provided fuch award fliould be made in writing, 
 and ready to be delivered on or before the day 
 
 of then next : And your orator further 
 
 fheweth that by another agreement in writing, figncd 
 by your orator and the faid J. H. dated the 
 day of it was agreed that the time for 
 
 the faid arbitrators making their award fliould be 
 enlarged until the day of then 
 
 next, but the faid arbitrators did not previous to or 01* 
 
 N n 4
 
 53* APPENDIX. 
 
 that day make any award touching the matters fo re- 
 ferred to them, although feveral appointments had 
 been made by the faid arbitrators, for proceeding upon 
 the faid arbitration, and your orator and his attorney 
 had attended at the refpeftive times and places fo ap- 
 pointed, and were prepared and ready to have entered 
 upon the faid- reference ; but although the faid J. H, 
 attended at one of the faid meetings, he was unpre- 
 pared to enter upon the faid reference ; and at the reft of 
 the faid meetings, neither the faid J. H. nor any perfon 
 on his behalf, did attend, although the faid J. H. had 
 due and proper notices previoufly given to him of 
 fuch refpeftive appointments ; and your orator further 
 fheweth that on the day of the faid month of 
 
 your orator and the faid J. H. agreed that T. C, of, Sec 
 aforefaid, gentle;rian, fliould be added as an arbitrator 
 to the faid E. M. and J. S. and that the award of any 
 two of them Ihould be binding, and that your orator 
 and the faid J. H. fhould, execute, and they did accord- 
 ingly execute bonds of arbitration to each other, dated 
 the day of and that by the bond fo executed 
 
 by your orator, he became bound to the faid J. H. in 
 the penal fum of lool. with a condition thereunder 
 written, in the words and figures or to the effed fol- 
 lowing, (that is to fay) : " The condition of this obli- 
 *' gation is fuch, that if the above bounden W. E. his 
 *' heirs, executors, or adminiilrators, or any of them, 
 " on his and their parts and behalfs,_ Ihall in all 
 *' things well and truly fland to, obev, and abide by, 
 *' perform, fulfil, and keep the award, order, arb/tra- 
 *' ment, end, inid final determination of T. C. of, kc. 
 '< in the county of, &c. gentleman, E. M. of the fame 
 *♦ place, gentleman, and J. S. of, &c. in the faid
 
 APPENDIX. 5J7 
 
 *' county, gentleman, or of any two of them, arbitra- 
 " tors, indiiFercntly cleftcd and named, as well on the 
 *' part and bchulf of the above boundcn W. E. as of 
 *' the above named J. II. to arbitrate, award, order, 
 *' judge, and determine of and concerning all and all 
 ♦' manner of action and aftions, caufe and caufcs of 
 *' a6lion, fuits, bills, bonds, fpccialtics, judgments, 
 *' ceremonies, extents, quarrels, controverfies, tref- 
 <' pufTes, damages, and demands whatfoever, at any 
 " time heretofore had, made, moved, brought, com- 
 *' menccd, fued, profccuted, done, fuffered, committed, 
 *' or depending by and between the faid parties, or 
 *' either of them, fo as the faid award be made in 
 *' writing, and re^dy to be delivered to the parties in 
 ♦' difference, (or fuch of them as lliall defirc the fame) 
 *' on or before the day of next : Then this 
 
 *' obligation to be void, or elfe to remain in full force.'* 
 And the bond executed by the faid J. H. as aforefai4 
 was in the fame penalty, and with a condition to the 
 fame effeft as the condition to the bond fo executed 
 by your orator, as by fuch bonds and the conditions 
 thereof, reference being thereunto refpedively had, 
 will appear; and your orator further fheweth, that your 
 orator being very defirous that the faid arbitration 
 fhould be proceeded in, and an award be made before 
 the expiration of the time limited by the faid arbitration 
 bonds, he, your orator, and his attorney, between the 
 faid month of and the month of following, 
 
 made repeated applications to the liiid J. H. and his 
 attorney,^ and the faid arbitrators named in the faid 
 bonds, to appoint a time for proceeding upon the faid 
 arbitration, but the faid J. H. conftantly declined ap- 
 pointing any time himfclf for that purpofe ; and although
 
 43? APPENDIX. 
 
 the faid arbitrators, or feme or one of them, between 
 the faid months of and appointed or pror 
 
 pofed diiferent days for proceeding upon the faid arbi- 
 tration, and hearing the refpeftive allegations of your 
 orator and the faid J, H. and the evidence of their 
 refpeftive witncffes, yet the faid J. H. conftantly pre- 
 tended that it did not furt him, or he could not make 
 it convenient to attend the faid arbitrators on the 
 refpeftive days fo appointed, and he did not fo attend ; 
 and after your orator and his faid attorney had made 
 various inefFeftual attempts to get the faid arbitration 
 proceeded in, the faid E. M. at length, on the 
 
 day of wrote and fent a letter of that date 
 
 to your orator's attorney, Mr. J. B. adviling him to 
 write a letter to the faid J. H. defiring him the faid 
 J. H. to appoint any day between the faid day of 
 
 and the day of following, for proceeding 
 
 upon the faid arbitration^ and accordingly the faid 
 Mr. B. on or about the day of the faid month of 
 
 wrote and fent a letter to the attorney of the 
 faid y. H. of that date, deliring that he the faid J. H.. 
 or his faid attorney, would appoint any day between 
 that time and the faid day of for proceeding 
 
 upon the faid arbitration, and they were, or one of 
 them was therein deiired to appoint a day accordingly, 
 but although fuch letter was received by the Md J. H. 
 or his attorney, on the fame or day of 
 
 or thereabouts, yet neither of them did return any 
 anfwer thereto, either to your orator or his faid attor- 
 ney ; and therefore, on the day of the faid 
 month of the faid Mr. E.'s clerk applied firft to 
 the faid J. H.'s attorney for an anfwer to the faid letter^ 
 ^•ho referred him to the faid J. H. and he accordingly
 
 APPENDIX. 535 
 
 on that day went to the houfe of the faid J. H. and 
 defired him to fix on a day between that time and 
 
 following for proceeding on the faid arbitration 
 according to the defire of the faid Mr. M. and there- 
 upon the faid J. H. declared that he could not make it 
 convenient to attend the faid arbitrators on any day 
 previous to or on the faid the day of the 
 
 laid month of as propofed by the faid Mr. M. 
 
 and he the faid J- H. at the fame time declined to 
 mention and did not mention any other day when he 
 would or could make it convenient to attend the faid 
 arbitrators ; and your orator further fheweth, that on 
 the day of being upwards of four months 
 
 after the execution of the faid arbitration bonds, the 
 faid E. M. and T. C. (two of the arbitrators named in 
 the faid bonds), at the prcffing folicitation of your 
 orator and his faid attorney, fubfcribed their names to 
 a writing dated the faid day of whereby 
 
 they appointed the day of at the houfe 
 
 of P. G. in, &c. aforcfald, to Jiear the evidence and 
 allegations of the faid J. H. and your orator, and 
 otherwife to proceed on the faid reference, and a copy 
 of which faid writing or notice was delivered to the 
 faid J. H. and J. S. refpedtively, on the day of 
 
 by a meflenger fent by the faid E. M. and T. C. 
 for that purpole, and the faid J, S. faid he would attend 
 accordingly, and notice was on the fame day given to 
 your orator of fuch laft mentioned appointment ; and 
 your orator further fheweth, that on the faid day of 
 
 the faid E. M. and T. C. purfuant to their faid 
 appointment, attended at the houfe of the faid P. G. 
 in, kc. aforefaid, and the faid two arbitrators were 
 then, and there attended by your orator and his attorney
 
 54.0 ArPKNDrx. 
 
 the faid Mr. B. and your orator's witnefTes, and they 
 the faid two arbitrators continued at the faid hoiife 
 from the morning of tlic faid day of until 
 
 about eight or nine o'clock in the evening of that day, 
 during which time neither the faid J. H. nor any perfon 
 on his behalf, attended the faid arbitrators, nor did he 
 fend any mefiage to them affigning any reafon or excufe 
 for his non-attendance, nor did the faid arbitrator J, S. 
 attend fuch meeting, or fend or affign any reafon for his 
 non-attendance ; and that about eight or nine o'clock 
 in the evening of the faid day of and not 
 
 earlier than eight o'clock in that evening, the faid two 
 arbitrators E. M. and T. C. heard the tcftimony of tJie 
 faid Mr. B. touching the caufes of the aforefaid action, 
 in refpe£t whereof the faid reference had been made, 
 and thereupon the faid E. M. and T. C. declared that 
 they were perfedly fatisfied that your orator had fuf- 
 liciently eftabliihed his faid demands upon the faid 
 J. H. for the faid fum 0^44!. 3s. gd. in refpcft of the 
 faid proraiiibry note, and for the faid fum of 3L 3s. on 
 account of the faid J. H.'s lliare of the cofts of the faid 
 iiril mentioned aftions, and that no further teftimony 
 was neceffiiry on your orator's behalf in fupport of fuch 
 demands, although they the faid E. M. and T. Q. were 
 at that time exprefsly told that your orator had other 
 witnctTes whom your orator meant to have examined 
 before the faid arbitrators, in cafe they had not fo 
 declared themfeives fatisfied with the faid Mr. B.'s 
 evidence, or in cafe the faid J. H. had made any 
 defence before the faid arbitrators which might have 
 rendered it neceffary to examine fuch other witnelTcs 
 of your orator ; and the faid Mr. B. did at that time 
 obferve and fav to the faid E. M. and T. C. tliat if the
 
 APPEKDDf. 54, 
 
 faid J. H. fhould, before they the faid arbitrators fhould 
 make their award, offer any evidence which they the 
 faid arbitrators might tliink. material, he the faid Mr. 
 B. on behalf of your orator, together with your orator's 
 other witneffcs, ought to have an opportunity of tTcing 
 prefcnt, and of being heard as to what fhould be fd 
 offered by or on the behalf of the faid J. H. and of 
 anfwcring or replying to or endeavouring to anfwcr or 
 reply to the fame, and the faid arbitrators thereupon 
 acquiefced in the propriety thereof, and promifed your 
 orator fliould have fuch opportunity ; and before the 
 faid arbitrators E. M. and T. C. left the faid houfe, they 
 declared and cxpreffcd to your orator and the faid Mr. 
 B. their final and abfolutc refolution to be that they 
 would meet at the houfe of the faid Mr. C. at, &c. 
 aforefaid, on the then next day, to fettle and prepare 
 inftruftions for their award, which they would employ 
 a Mr. T. an attorney to prepare forthwith accordingly, 
 and .that they would not, after the many delays and 
 difappointraents which the faid J. H. had occafioned, 
 give thcmfelves or the parties concerned any further 
 trouble about the bufinefs, or the faid E. M. and T. C- 
 expjeflcd themfelves to that effeft: and your orator 
 further fheweth, that from what had palTed at the faid 
 meeting on the faid day of your orator and his 
 faid attorney concluded that it would not be neceflary 
 for your orator or his faid attorney, or your orator's 
 witneffes, to attend the faid arbitrators again on the 
 bufinefs of the faid reference, but that the faid E. M. 
 and T. C. would have made an award in your orator's 
 favour ; but, as your orator has fince difcovered, they 
 the faid E. M. ajid T. C. on Wcdncfday the 
 day of tliG faid month of met at the houfe of
 
 54i APPENDIX. 
 
 i: :-■ ;r;' T^— ■ — a 
 
 the fiiid E. G. and were at fuch meeting attended by 
 the faid J. S. and J. H. and alio by his the faid J. H.'s 
 attorney, and fcvcral perfons as his witncfles ; and in 
 the afternoon of the laid day of the faid 
 
 three arbitrators E. M. — T. C. and J. S. made and 
 executed an award in writlne: of that date, which being- 
 afterwards delivered to your orator, he thereupon, to 
 his great furprife, found that after therein taking notice 
 that they had been duly attended by the attorneys or 
 folicitors for the faid parties, and had heard and ex- 
 amined the allegations, witnefles, and evidence of and 
 for the faid parties, and had deliberately confidered the 
 fame, they they faid T. C. — E. M. and J. S. did thereby 
 award and order that all aftions, fuits, quarrels, and 
 controverfies whatfoever, had, moved, arifcn, or de- 
 pending by or between the faid J. H. and your orator, 
 in law or, equity, for any manner of caufe whatfoever, 
 Ihould ccafe and be no further proceeded in or pro- 
 fecuted ; and that the faid promiflbry note of the faid 
 J. H. Ihould be delivered up and cancelled, and that 
 your orator Hiould pay^ or caufe to be paid, unto the 
 faid J. H. the fum of lol. los. on the day of 
 then next, for his coHs ; and that on payment of the 
 laid lum of tol, los. as aforefaid, as well your orator 
 as the faid J. FL ihould refpcdively make, feal, and 
 execute, each party unto the other, mutual general rc- 
 lealcs of all actions, luils, and caufes of a6lion depend- 
 ing between them ; and of all debts, damages, ac- 
 counts, reckonings, and demands whatfoever, from the 
 beginning or the world to the day of the dates of the 
 faid bonds, ai> by luch award, reference being there- 
 unto had, will appear : And your orator further Ihewctb, 
 that the faid meeting of the faid arbitrators on the faid 
 
 4
 
 APPENDIJt. 54j 
 
 day of was not attended either by 
 
 your orator or liis faid attorney, or any perfon on liis 
 your orator's behalf, nor was any notice, previous to 
 that day, given by the faid arbitrators, or any or cither 
 of them, to your orator or his faid attorney that they 
 hitended to meet on that day to hear the allegations, 
 evidence, and witnefles of or on the part of the faid 
 J. H. or refpefting the faid reference ; and although it 
 was and is recited in the faid award that the faid three 
 arbitrators had been duly attended by the attorneys 
 for your orator and the faid J. H. and had heard and 
 examined the allegations, witneffes, and evidence of 
 and for both parties, and had deliberately conlidered 
 the fame, yet in faft the faid J. S. never was attended 
 either by your orator or his attorney upon the bufinefs 
 of the faid reference ; and the faid two other arbi- 
 trators, E. M. and T. C. did not hear the teftimony of 
 all your orator's witnefles refpefting the matters of the 
 faid reference, although they the faid E. M. and T. C. 
 had, as hereinbefore ftated, been fully apprized and 
 informed that your orator had other witnelfes and 
 evidence to produce touching the faid reference, and 
 they ought therefore, and under the circumftances 
 aforefaid, as your orator humbly inllds, to have de- 
 ferred making any award unfavourable to your orator 
 until they had heard fuch other witnefles and evidence 
 on the part of your orator ; and your orator ought, as 
 he alfo humbly inflfls, to have had reafonable notice 
 given to him by the faid arbitrators, or feme or one of 
 them, previous to the faid day of of their 
 
 intention to meet on that day upon t.lie faid reference, 
 in order that your orator and his attorney and witnefles 
 might liave been prepared to attend fuch meeting : ini
 
 454 - Appr.vbix. 
 
 your orator exprcfsly avers that tlie aforcfaid award 
 was the efFeft of a colluiion between the faid arbitrators 
 and the faid J. H. or of their partiality for him, or the 
 fame was obtained by him from them by fome corrupt, 
 undue, or unfair means, as is evident from the afore- 
 faid improper conduft of the faid arbitrators : and your 
 orator likewifc humbly infifts, that under the circum-- 
 fiances and for the reafons aforefaid, and for that the 
 faid arbitrators fo grofsly mifconduftcd themfelves as 
 aforefaid, he your orator ought not to be bound by the 
 faid award, and the rather fo for that your orator's 
 demands againfl the faid J. II. in refped whereof the 
 faid lafl mentioned aftion was brought againft him^ 
 were founded in reafon and juftice, and your orator 
 was well intitled to be fatisfied the fame, and in fad 
 your orator's faid demand upon the faid J. H. for the 
 faid fum of 3I. 3s. on account of the cofls of the faid 
 foil mentioned adioris, tiever was difputed by the faid 
 J. H. and was admitted by him or on his behalf before 
 the faid arbitrators at their faid laft mentioned meeting 
 to be a eood and iuft demand, and in fad the faid 
 arbitrators- did, as your orator hath fince difcovered, or 
 been informed, allow fuch your orator's demand of 
 3I. 3s. on account of the coils of the liiid iirft mentioned 
 adions, and that they deduded, or pretended to dedud 
 the fame from the faid J. H.'s cofls of the faid laft 
 mentioned adion, and therefore the faid award was 
 very unfair and unjuil, and ought, as your orator 
 humbly infills, to be fet afidc or declared void : and 
 your orator further fheweth, that for the reafons afore- 
 faid he hath refufed to abide by the faid award, and 
 hath frequently fince fuch award was' made applied to 
 the faid J. H. and requcfled him to pay and fatisfy 
 
 4
 
 API'E^fDlX. 54< 
 
 your orator his faid demands, in icfpctfl: whereof he 
 commenced the faid lafl mentioned action, and your 
 orator hoped tliat fuch his rcquefts would have been 
 complied with, as in juftice and equity the fame ought 
 to have beco, and that the faid J. H. would not have 
 infifted upon your orator's performing the faid award: 
 BUT NOW SO IT IS, may it pleafe your honors, that 
 tlie faid J. H. combining and confederating with divers 
 other perfons, at pvefcnt unknown to your orator, vvhofe 
 names when difcovered your orator craves leave to 
 infcrt herein, with apt matter to charge them as parties 
 defendants hereto, and contriving to injure your orator 
 in the prcmifes, REFUSES to comply with your orator's 
 faid requcft, and infills upon your orator's abiding by 
 and performing the faid award, which he contends is a 
 jull and proper award, and pretends that no undue 
 means were made ufe of by him to obtain the fame, 
 and that the faid arbitrators in making fuch award were 
 not influenced by any improper motives, and that due 
 and proper notice was given to your orator previous 
 to the faid day of that the faid arbitrators 
 
 would meet on that day to hear the allegations and 
 evidence of and on the part of the faid J. H. or that 
 your orator and his faid attorney had notice given to 
 them on that day, and previous to the faid award 43cing 
 made, that the faid arbitrators were met together at, 
 &;c. aforefaid, upon the bufincfs of the faid reference : 
 WHEREAS your orator charges that the faid arbitra- 
 tors, or any or either of them, or any other perfon, 
 did not at any time previous to the faid day of 
 
 give your orator or his faid attorney Mr. B. any 
 notice tliat the faid arbitrators intended to meet ort 
 that day on the bulinefs of the faid reference, or to 
 
 o o
 
 546 
 
 Al'PKNDiX. 
 
 hear the allegations, witnefTes, and evidence of and on 
 the part of the faid J. H. nor was any proper notice on 
 that day given to your orator or the faid Mr. B. that 
 the faid arbitrators had met together, or were on that 
 dav to meet together upon the bufinefs of the faid 
 reference, and to hear the allegations and evidence of 
 and on the part of the faid J. H. in cafe any fuch 
 notice had been given to your orator and the faid Mr. 
 15. on that day (but which notice your oratot exprefsly 
 charges was not given), the fame was not a proper 
 notice in point of time, and it was unreafonable to 
 defire or expe6l your orator and the faid Mr. B. to 
 attend, or to procure his your ofator*s witnefTes to 
 attend the faid arbitrators at, Sec. aforcfaid, and in fadt 
 it was impoffiblc for them to attend in the forenoon 
 on that day, or indeed at any time upon fo fhort a 
 notice, your orator's then place ot rcfidence being at 
 the diftance of about ten miles from, &c. and tlie faid 
 Mr. B.'s then place of rcfidence being at the diftance 
 of twelve miles from, &c. and the faid Mr. B. having 
 been during the morning and latter part of the faid 
 
 day of at, &c. in the faid county of, &c. 
 
 dirtant eighteen miles from, 6cc. on fome important 
 bufinefs in the way of his profefhon, which he could 
 not leave, as the faid arbitrators well knew, before they 
 made and executed their faid award ; and although 
 T. M. who was one of your orator's witnelTes, and 
 who refided at the diftance of only about fix or feven 
 miles from, Sec. upon hearing on the faid day of 
 
 that the faid arbitrators were met together at, 
 kc. upon the bufinefs of the faid reference, did attend 
 them there, and was aikcd fome qucftions by them ; 
 yet he was not prefent when any other witneiTes were
 
 APPENDIX. 
 
 547 
 
 examined, or the faid reference was proceeded upon, 
 but he was defired to depart from the room where the 
 arbitrators were as foon as fucli queilions had been 
 -alked him, nor was he upon that occafion afked tlie 
 proper queilions, or fully or properly examined on 
 your orator's bciialf, there being no perlbn there 
 prefcnt on your orator's part to examine the faid T. M. 
 or put fuch queflions to him as ought to have been put, 
 and as would have difclofed the fevcral material fadls 
 within his knowlege touching the matters of the faid 
 j-efcrcncc : And your orator further charges, that if the 
 faid arbitrators did on the day of licar any 
 
 witnefles or evidence on the part of the faid J. H. fuel! 
 evidence or the tcftimony of fuch witnelTes did not 
 warrant them in making their aforelaid award ; and 
 that the faid arbitrators, in making their faid award, 
 were influenced by partiality for the faid J. H. or by 
 fome undue or improper motives, and were in collufion 
 with him, or he obtained fuch award by fome corrupt, 
 undue, unfair, or improper means ; and at othet times 
 the faid J. H. pretends that when your orator com- 
 hienced the faid lafl mentioned adtion, he had not any 
 good or iuft demand upon him the faid J. H: in refpeft 
 of the faid promifTory note, or on account of the faid 
 partnerfhip debt, for tliat as he the faid J. H. pretends 
 your orator took the faid promilTory note merely as a 
 collateral fecurity for the dividend which your orator 
 was to receive out of the faid S\ T.'s eftate and efFedls, 
 or that when he the faid J. H. fatislied your orator his 
 the faid J. H.'s moiety of tlic faid partnerlhip debt, 
 your orator agreed to rclinquifh any claim upon him 
 the faid J. H. in refpeft of the faid promifTory note; 
 and that wlien your orator commenced the laid laft 
 o o z
 
 ^^J APPEKDtX. 
 
 -- <■■' • • . . ,■■■■, .1 , , ,, 
 
 Mentioned aftion, he had not any good or j nil demand 
 upon him the faid J. H. on account of the cofts of the 
 faid firfl mentioned actions: WHEREAS your orator 
 charges that the faid promifTory note was aftually 
 giveri by the faid J. H. as a fecurity for fo much of the 
 faid S. T.'s moiety of the faid partncrfhip debt of 
 i6al. 13s. 6d. as the dividend out of his the faid S. T.'s 
 eftate and efFcfts would not extend to pay ; and vour 
 ora|or exprefsly charges that neither at the time when 
 the faid J. H. fatisfied his moiety of the faid partnerlhip 
 debt, nor at any other time, did your orator in any 
 manner agree to abandon, give up, or reHnquifh the 
 faid promiffory note, or his claim and demand upon 
 the faid J. H. for fo much of the faid S. T.'s moiety'of 
 the faid partnerfhip debt as his faid dividend would not 
 extend to pay ; and your orator further charges that 
 the faid J. H* was not only bound and liable to pay to 
 your orator fo much of the cofts of the faid firfl men- 
 tioned adtions as fhould not be fatisfied by or recovered 
 from the faid S. T. but that he the lliid J. H. did 
 aftually promife and ag\-ee to pay to your orator the 
 fum of 3I. 3s. on account of fuch cofts ; and your orator 
 alfo charges that the faid J. H. never did in any manner 
 difpute with your orator his the faid J. H.'s liability to 
 pay and fatisfy your orator fuch fum of 3I. 3s. on ac- 
 count of the aforefaid cofts, but on the contrary, the 
 faid J. H. at the time he propofed the faid reference 
 to your orator, did admit and acknowlege before the 
 faid Mr. B. and fcveral other perfons, that your orator 
 had a juft demand upon him the faid J. H. for fuch 
 fum of 3I. 3s. on account of the faid cofts, and faid his 
 attorney had had directions from him to pay the fame, 
 and admitted himfclf then hable to the payment
 
 Al'PE>fDIX. 1549 
 
 thereof; and your orator charges that the faid J. H. 
 could not and did not difputc his engagements and 
 liability to pay the laid furn of 3I. 3s. and the faid 
 arbitrators therefore ought at leaft to have awarded the 
 payment offuch fum of 3I. 3s. to your orator, together 
 with your orator's cofts in refpc£t of the faid laft men- 
 tioned aftion, and in refpedl of the faid reference, as 
 your orator upon eflablilhing his demand for fuch fum 
 of 3I. 3s. upon the trial of the faid laft mentioned 
 aftion, would have been intitled to his cofts, though 
 he fhould have failed in eftablithing his faid other 
 demand, but neverthelefs the faid J. H. infifts upon 
 your orator performing the faid award, and threatens 
 and intends to proceed in fome manner againft your 
 orator at law, to enforce a performance of fuch award ; 
 AIX which Adings, kc. 
 
 PRAYER- OF THE BILL. 
 
 And that the faid J. H. may be compelled to make 
 a full and complete anfwer to the fev^ral matters afore- 
 laid, and that the faid award may be decreed to be 
 fet aftde and cancelled, and the faid J. H. be decreed 
 to pay to yoijr orator the faid fums of 44I, 3s. ^d. and 
 3I. 3s. in refpeft whereof your orator commenced the 
 fiiid laft-mentioncd aftion, together with your orator's 
 cofts attending fuch aftion and the faid reference ; and 
 that the faid J. H. may in the mean time be reftrained 
 by tbc order ai^d injunction of this honourable cyurt 
 003
 
 55° APPENDIX. 
 
 from proceeding in any manner at law againft your 
 orator upon the faid bond fo executed by your oratoj; 
 as aforefaid, and upon the faid award, or otherwifc 
 touching the faid bond or award ; and that your orator 
 may have fuch further and other relief in the premifes 
 as the nature of the cafe may require and to you^- 
 Honors Ihall feem meet« May it plcale your Honors, 
 kc. P. J. 
 
 T/h' Plea of ]. H. Defendant, to port, and hl\ Answer 
 to the refidiie, of the Bill of Complaint of W- E. 
 Complainant. 
 
 This defendant, by protfftation not confefling or 
 acknowleging all or any of the matters or things in the 
 pomplainant's faid bill alleged and fet forth to be true, 
 in fuch manner and form as the fame are therein fo fet 
 forth, to all the relief prayed by the faid bill, and to 
 fo much of the faid bill as fecks a difcovery of the 
 feveral matters and things which were the fubjeft of 
 the reference to the arbitration of T. C. of, &c. in the 
 county of, &c. gentleman, E. M. of the fame place, 
 gentleman, and J. S. of, &c. in the faid county, gen- 
 tleman, or of any two of them, in the faid bill of 
 complaint, and herein after mentioned, this defendant 
 doth plead in bar, and fox plea faith, that the faid 
 complainant did, on the day of duly enter 
 
 into and execute a certain bond or writing obligatory^ 
 bearing date the faid day of in the
 
 APPENDIX. 551 
 
 penal lum of lool. payable by him the faid com- 
 plainant, his executors, or adminiftrators, to this de- 
 fendant, his executors, or adminiflrators, on the 
 day of and with a condition thereunder written 
 
 in the words following ; that is to fay, 'i'he condition 
 of this obligation is fuch, that if the above bounden 
 W, E. his heirs, executors, or adminiftrators, or any 
 of them, on his and their parts and behalfs, fhall and 
 do in all things well and truly Hand to, obey, and abide 
 by, perform, fulfil, and keep the award, order, arbitraT 
 ment, end, and final determination of T. C of, &c. 
 in the county of, &c. gentleman, K, M. of the fame 
 place, gentleman, jmd J, S. of, &:c. in the faid county, 
 gentleman, or of any two of them, arbitrators indifr 
 ferently elefted and named, as well on the part and 
 behalf of the f^bove bounden W. E. as of the above 
 named J, H. to arbitrate, award, order, judge, and 
 determine of and concerning all and all manner of 
 aftion and a6lions, caufe and caufcs of adion, fuits, 
 bills, bonds, fpccialtics, judgments, extents, quarrels, 
 controverfies, trcfpaffcs, damages, and demands what^ 
 foevcr, at any time heretofore had, made, moved, 
 brought, commenced, fucd, profccuted, done, fuffered, 
 committed, or depending by and between the faid 
 parties or either of them, lo as the faid awa;d be ro^dc 
 in writing and ready to be delivered to the parties in 
 difference, or fuch of them as lliall defire the fume, on 
 or before the day of next, then this oblir 
 
 gation to be void, qr elfe to rem4ln in full force, as by 
 the faid bond or writing obligatory, now in the cullody 
 pf this defendant, reference being thereunto had, may 
 more fully appear ; and this defendant for plea further 
 fajth, that this defendant did, on or iibqyt the fai^ 
 004
 
 55* 
 
 APPF.NDIX. 
 
 day of duly enter into and execute a certain 
 
 bond or writing obligatory, bearing date the faid 
 day of in the penal fum of lool. payable by this 
 
 defendant, his executors, or adminiftratois, to the faid 
 complainant, his executors, or adminillrators, on the 
 day of with a condition the'reunder writteji, 
 
 for making void the fame, if this defendant, his execur 
 tors, and adminiftrators, fhould in all things well and 
 truly fland to, obey, abide by, perform, fulfil, and 
 keep the award, order, arbitrament, and final deter- . 
 mination of the fuiJ T. C. — E. M. and J. S. or any 
 two of them, being fuch arbitrators as hereinbefore is 
 mentioned, fo to be made as hereinbefore is men- 
 tioned, the condition of the faid laft mentioned bond 
 being in the fame words, with the exception only of 
 the parties' names, as the condition of the faid bond 
 firft hereinbefore mentioned, as by the faid lall men- 
 tioned bond, had this defendant the fame to produce, 
 reference being thereunto had, would more fully ap- 
 pear ; and this defendant for plea further faith, that the 
 faid E. M.— T. C. and J. S, having been duly attended 
 by the folicitors or attornies of the faid complainant 
 and this defendant, and having heard and examined 
 the allegations, witncfles, and evidence of the faid 
 complainant and this defendant, Mid, on the 
 day of duly make and execute, and deliver to 
 
 the faid complainant and this defendant, their award 
 in writing of that date, and did thereby award and 
 order tliat all actions, fuits, quarrels, and controverfies 
 whatfoever, had, moved, arifcn, or depending by or 
 between the faid parties, in law or equity, for any 
 manner of caufe whatfoever, fhould ceafe and be no 
 further proceeded in or profccuted ; and they did alfo
 
 APPENDFX. jrj 
 
 award and order that the promilTory note of this de- 
 fendant, mentioned in the pleadings, fhould be de- 
 livered up and cancelled, and that the faid complainant, 
 his heirs, executors, or adminiftrators, lliould pay or 
 caufe to be paid unto this defendant, his executors, or 
 adminiftrators, the fum of lol. los. of lawful, money 
 of Great Britain, on the day of then next, 
 
 between the hours of two and four in the afternoon, 
 at the houfe of P. G. known by the name or fign of the 
 Devonfliire Arms, in, 6cc. aforefaid, for his colls ; and 
 they did further award and order, that on payment of 
 the faid fum of lol. and los. as aforefaid, as well the 
 faid complainant as this defendant, lliould rcfpedively 
 make, feal, and execute, each party unto the other, 
 mutual general releafes of all actions, fuits, and caufes 
 of action depending between them, and of all debts, 
 damages, accounts, reckonings, and demands what- 
 foever, from the beginning of the world to the day of 
 the dates of the above mentioned bonds or obligations, 
 as by the faid award in writing, now in the cuflody of 
 this defendant, ready to be produced as this honorable 
 court Ihali direft, reference being thereunto had, will 
 more fully appear : ALL which matters and things this 
 defendant doth aver to be true, and is ready to prove 
 the fame as this honorable court fliali award, and 
 therefore he doth plead the fame in bar to fo much 
 and fuch part of the faid bill as aforefaid, and humbly 
 prays the judgment of this honorable court, whether 
 he fliall be compelled to make any further or other 
 anfwer to fo much and fuch part of the faid bill as is 
 hereby and herein pleaded to as aforefaid ; and this 
 defendant, not waving his faid plea, but wholly relying 
 and infifting thereon, and in aid and fupport thereof.
 
 5C4. ATprsniy, 
 
 for anfwcr to the rcfidue of the faid complainant's bill 
 not hereinbefore pleaded untf), or lo fo much thereof 
 as this defendant is advifed is material or ncce^ary for 
 him to make anfwer unto, he anfwerelh and faith, that 
 for any thing he knows to tlie contrary, it may be true 
 that the complainant was dcfirous that the faid arbitra- 
 tion fhould be proceeded in, and an award made before 
 the expiration of the time limited by the faid bonds, 
 but whether he was fo dcfirous or no, this defendant 
 doth not know, nor can he fct forth, nor doth he know, 
 nor can he fct forth whether the faid complainant or 
 his attorney did, between the month of and the 
 
 month of following, make any or what applica- 
 
 tion or applications to the faid arbitrators, or any of 
 them, to appoint a time for proceeding upon the faid 
 arbitration, but he admits that the faid complainant or 
 his attorney, or the faid T. C. or E. M. or fome or one 
 of them, did, between the faid month of and 
 
 the following, apply to this defendant, and 
 
 inform him that a time was appointed to proceed upon 
 the faid arbitration, or requeft him to appoint a time 
 for that purpofe, and that a ti^ne was agreed upon or 
 appointed for. that pui-pofe, and this defendant was 
 ready and willing to have attended at the time fo ap- 
 pointed, but the faid other arbitrator, J. S. was taken 
 very ill, whereby he was unable to attend at the time 
 fo appointed as aforefaid, of which this defendant gave 
 notice to the faid other arbitrators, wheicupon the faid 
 intended meeting did not take place ; and this defend- 
 ant denies tliat any other application or applications 
 was or were made by the faid complainant or his 
 attorney, or the faid arbitrators, or any of them, to 
 this deiendant or his attorney, or cither orf them, ty
 
 APPENDIX. 
 
 55$ 
 
 appoint a time for proceeding upon the faid arbitration, 
 except as is hereinafter mentioned, or that he this 
 defendant, or they the faid arbitrators, or any of tliem, 
 did, at any time or times, except as is hereinbefore 
 and hereinafter mentioned, appoint any tinjc for that 
 purpofe, or that this defendant did decline to appoint 
 a time of meeting, or rcfufe to attend at the time 
 appointed, or pretend that it would be inconvenient to 
 him, or not fuit him to attend at the time or times 
 appointed, except as hereinbefore and hereinafter men- 
 tioned ; and this defendant admits that the faid E. M. 
 did, at the time in the faid bill mentioned, write and 
 fend a letter, bearing date the day of 
 
 to Mr. M. the complainant's attorney, to the effeft in 
 the faid bill fct forth; and this defendant faith he be- 
 lieves it to be true that the faid Mr. M. did write a 
 letter to this defendant's attorney, of fuch date, purr 
 port, and efFc£t as is in the faid bill fet forth, and that 
 this defendant's attorney did receive the famq, and did 
 not return any anfwer thereto, and that the faid Mr, 
 B.'s clerk did, at the time in the faid bill mentioned, 
 apply to this defendant's attorney for an anfwer to the 
 faid letter, and that this defendant's faid attorney re- 
 ferred him to this defendant, but this defendant denies 
 that he this defendant ever received any fuch letter 
 bearing date pn or about the day of 
 
 or the day following, as is in the faid bill mentioned ; 
 and this defendant faith he admits that the faid Mf. B.'s 
 clerk did, on or about the day of 
 
 apply to this defendant and requeft him to fix a time 
 between that day and the Saturday following (being 
 the of ) for proceeding upon the faid ar- 
 
 bitration \ and that this defendant thereupon told the
 
 ArPKNDIX. 
 
 faid clerk, as the truth was, that feveral perfons, and 
 among others S. C. who this defendant believed would 
 be very material witneflcs for him, were then from 
 home, and that for that reafon he could not appoint 
 any time of meeting for proceeding upon the faid ar- 
 bitration, and he therefore did not appoint any day for 
 that purpofe : And this defendant, further anfwering, 
 faith he believes the faid E. M. and T. C. did on the 
 day of fubfcribe their names to fuch 
 
 writing as is in the faid bill in that behalf mentioned to 
 be dated on that day, and that a copy thereof was 
 delivered to this defendant on the day of 
 
 and this defendant believes that another copy was de- 
 livered on the fame day to J. S. and that on the fame 
 day notice of the faid appointment was given to the 
 faid complainant ; and this defendant believes the faid 
 E. M. and T. C. did on the day of attend 
 
 at the houfe of P. G. in the faid bill mentioned, for 
 the purpofe of proceeding upon the faid arbitration, 
 and that the faid laft-mentioned arbitrators were there, 
 attended by the complainant and his attorney Mr. B. 
 but whether by any other perfon or perfons as a 
 witnefs or witneiTcs this defendant doth not know nor 
 can fet forth ; but this defendant hath heard, and be- 
 lieves, that no witnefs or witnelTes was or were pro^ 
 duced to be examined on behalf of the faid com- 
 plainant other than and befides the faid Mr. B. — but 
 this defendant denies that the faid laft-mentioned arbi.- 
 trators continued at the houfe of the faid P. G. from 
 the morning of the faid day of till eight 
 
 or nine o'clock in the evening of the fame day, for 
 this defendant faith he hath heard and believes the. faid 
 lait-mentioned arbitrators did not meet till the afte?-
 
 noon of the faid day of and that they left 
 
 the place appointed for meeting about fix or fevcn 
 o'clock, in the evening ; and this defendant admits that 
 he having at the time aforcfaid informed Mr. B.'s 
 clerk that his witnefTes were not at home, neither he 
 nor any pcrfon on his behalf did attend the faid arbi- 
 trators, nor fend them any mcfTagc or excufe ; and this 
 defendant laith he hath heard and believes that the faid 
 J. S. did not attend at the faid meeting ; and this de- 
 fendant, further anfwering, faith that about five o'clock 
 in the evening of the faid day of (as he 
 
 hath heard and believes) and not at or about eight or 
 nine o'clock, as is in the faid bill in that behalf alleged, 
 the faid E. M. and T. C. did hear the teflimony of the 
 faid Mr. B. on the behalf of the faid complainant, 
 touching the matters fo referred to them and the faid 
 J. S. as aforcfaid ; and this defendant denies that he hath 
 ever heard, fave by the faid bill, or that he believes, 
 that the faid E. M. and T. C. or either of them did 
 exprefs themfelves or himfelf in fuch or the like 
 manner as is in the faid bill mentioned in vcfpeft of 
 the teflimony of Mr. B. nor does this defendant know, 
 nor liath he ever heard, Vi^hcther the faid E. M. and 
 T. C. or either of them, were or was informed that the 
 faid complainant had other witneffes whom it was 
 meant or intended to examine before the faid arbitrators 
 ifi cafe they were not iiitisfied with Mr. B.'s evidence, 
 or if this defendant had made any defence before the 
 faid arbitrarors which might have rendered it necelfary 
 to examine them, or to any fuch or the like efFe£t ; 
 but this defendant believes that the faid arbitrators did 
 not, nor (did either of them, ever give the faid com- 
 plainant or the faid Mr. B. his attorney, to underftand 
 
 4
 
 ^ss 
 
 A P P E N D I y. 
 
 that they were fatisfieJ with his evidence, for on the 
 contrary this defendant halh heard and believes that 
 the faid arbitrators declared to the faid complainant or 
 his attorney, or that the faid complainant or his at- 
 torney were or was given to undcriUnd, and did under- 
 fland, that the faid arbitrators intended, at fome future 
 time, to examine this defendant's witnefTes, but \vliat 
 other obfervation or remark upon the teftimony of the 
 faid Mr. B. the faid arbitrators made this defendant 
 doth not knbvir nor can fct forth ; and this defendant 
 faith he doth not know nor hath he ever heard, favc 
 by the faid bill, that fuch obfervation as in the faid 
 bill is mentioned, or any obfervation to that or the 
 like efFeft, was ever made by the faid Mr. B. to the 
 faid arbitrators; but this defendant faith that if any 
 fuch obfervation was made this defendant believes that 
 the faid arbitrators did not,- noi" did either of them, 
 aflcnt thereto, or in any manner acquiefce in the pro- 
 priety thereof: And this defendant denie's that tlie faid 
 E. M. and T. C. or either of them, did, to the know-i 
 lege or belief of this defendant, before they left the 
 faid houfe, or at any other time, declare or exprefs 
 themfelvcs to the faid complainant, or the faid Mv. B. 
 in the manner in the faid bill fet forth, or to that or 
 the like efFeft, or did in any manner exprefs or declare 
 their final refolution, or make any declaration, favc 
 and except as to their intent of examining this defend- 
 ant's wit.nefies at fome future time, and fave and except 
 that they might declare that if this defendant did not 
 produce his evidence, they would- make an award 
 tefore the end of the time limited by the faid arbitra- 
 tion bonds, without hearing them : And this defendant, 
 further anfwcring, faith kQ doth not know, fave aud
 
 APPKVDIX. 
 
 ??9 
 
 except as is iKicinbcfore and hereinafter fet forth, 
 what palfcd at the faid meeting on the day of 
 
 nor docs hd believe that the faid E. M. and 
 T. C. at that time came to any other rcfolution touch- 
 ing the matters referred to them than fuch as is herein- 
 hefore fet forth ; and this defendant faith he doth not 
 heh'evc that, from what pafled at the faid meeting, the ■ 
 faid complainant or his attorney did conchidc, or were 
 warranted in conchiding, that it would not be neccffary 
 for the faid complainant or his faid attorney, or the 
 faid complainant's wltneffes (in cafe he had any who 
 were not then examined) to attend the faid arbitrators 
 again on the biifincfs of the faid reference, or that the 
 faid E. M. and T. C. would liavc made an award in the 
 complainant's favour; for this defendant faith, he hath 
 heard and believes that the faid lafl-mcntioncd arbi- 
 trators informed the faid complainant or his attorney, 
 or the faid complainant or his faid attorney in fome 
 manner well underftood, from the faid laft-mentioncd 
 arbitrators, that if tliis defendant produced his wit- 
 neifes at a future time, they would proceed to hear 
 tlicm : And this defendant admits that the faid three 
 arbitrators E. M. — T. C. and J. S. did on the day 
 
 of meet togeilicr, at the houfe of the faid P. G. 
 
 at, &c. aforefaid, and that they were there attended by 
 this defendant and his attorney, and by J. K. — S. C. 
 and J. A. as witneffes on the part of this defendant ; 
 and that the faid arbitrators did on the afternoon of the 
 faid day of at about eight o'clock, make 
 
 and execute an award in writing of fu'ch date, purport, 
 and efFcft as is hereinbefore fet forth ; but for his 
 greater certainty he craves leave to refer thereto when 
 it ihall be produced to this honourable court: and he
 
 ij6o APPENDIX' 
 
 admits that the faid meeting was not attended by the 
 faid complainant or his attorney, but the faid meeting 
 was attended by T. M, the fon-in-Iaw of the faid com_ 
 plainant, who, as this defendant hath heard and be- 
 lieves, attended the faid meeting on the behalf, and 
 at the requcft, of the faid complainant ; and this de- 
 fendant hath heard and believes that the faid T. M. 
 informed the faid arbitrators that he attended them by 
 the defire of the faid complainant, and on his behalf: 
 And this defendant, further anfwering, faith that he 
 hath heard and believes that on the day of 
 
 the faid-E. M. did fend a mefTage to the faid 
 complainant, by a perfon of the name of E. R. to in- 
 form him the faid complainant that his attendance was 
 required the next day at, Sec. as the faid arbitrators 
 intended to meet on that day upon the faid reference, 
 and that the liiid E. R. delivered the faid melTage to 
 the fervant of the faid complainant ; and that this de- 
 fendant faith he verily believes the faid meflage was 
 duly delivered by the faid complainant's fervant to him 
 the faid complainant, and that the faid T^ M. attended 
 at the faid meeting on the behalf of the faid com- 
 plainant in confequence of fuch meflage ; and this de- 
 fendant faith he doth not know that any other notice 
 was given to the faid complainant of the faid lafl:- 
 mentioned meeting than as hereinbefore is mentioned ; 
 and this defendant faith he believes that the faid J. S. 
 was never attended by the faid complainant or his 
 attorney, and never heard or examined any allegations* 
 evidence, or witnefs on behalf of the faid complainant 
 on the faid reference except the faid T. M. or what he 
 heard from the faid otlier arbitrators, or from the faid 
 complainant, in converfation upon former occalions,.
 
 APPENDIX. 5G1 
 
 when they were not cxprefsly met for the purpofe of 
 taking the faid matter into confidcration as arbitrators, 
 upon which occafions, or fome of them, as this defen- 
 dant hath heard and believes, the faid complainant 
 admitted to the faid ). S. the juftice of this defendant's 
 defence againft his demands ; and this defendant faith 
 he hath heard and believes that the iuid Mr. B. at the 
 time when he was examined before the faid K. M. and 
 T. C. on the faid day of as hereinbefore 
 
 is mentioned, dehvered a paper in writing to the faid 
 JE. M. and T. C. (wherein the faid Mr. B. is alone 
 mentioned as the witnefs for the faid complainant), con- 
 taining the cafe of the faid complainant, and the whole 
 of his the faid Mr. B.'s evidence which he had fo giveii 
 as aforcfaid, and that the faid Mr. B. fo deliv'cred tho 
 faid paper to the faid arbitrators, in order that they 
 might fliew the fame to the faid J. S. and did, at the 
 fame time, declare, that he was the only witnefs on 
 the part of the fiiid complainant ; and this defendant 
 hath heard and beUeves that the faid E. M. and 1'. C. 
 did deliver the faid paper containing the faid cafe and 
 teftimony of the faid Mr. B. to the faid J. S. and that 
 the fame was read and confidered by the faid J. S. 
 before the faid award was made by the faid arbitrators ; 
 and this defendant faith he verily believes that the faid 
 E. M. and T. C. were on the faid day of 
 
 and that all the faid arbitrators were on the faid 
 day ot ready and dcfirous to hear any other 
 
 vvitnelTes that the faid complainant or his attorney, or 
 the faid T. M. fliould produce on behalf of the faid 
 complainant, touching the matter in reference ; and 
 this defendant faith he hath heard and believes that 
 the faid E. M. and i". C. having on the day of 
 
 pp
 
 ^6i APPENDIX. 
 
 when they informed the faid Mr. B. of their 
 intending to hear this defendant's evidence on fome 
 future day, underftood from the faid Mr. B. that his 
 attendance on any future occafion could be of no con- 
 fequence, tlie faid arbitrators did not conceive that ' 
 there was any occafion to defer making their award, 
 and thereupon proceeded to make the fame ; and this 
 defendant denies that the faid award was the effeft of 
 any collufion between the faid arbitrators, or any of 
 them, and this defendant ; or of their, or any of their, 
 partiality for him ; or that the fame was obtained by 
 him from them, or any of them, by any corrupt, undue, 
 or improper means ; or that the faid arbitrators, or 
 any of them, did, in the bufinefs of the faid reference, 
 in any refpeft a£l improperly or mifconduft themfelves 
 or himfelf: And this defendant faith that the faid ar- 
 bitrators, at their faid laft-mentioned meeting, did take 
 into confideration the fum of 3I. 3s. in the faid bill 
 mentioned, and determined upon the fame in making 
 their faid award ; and this defendant denies that tlie 
 faid award is wholly, or in any refpeft, unfair or unjuft ; 
 and this defendant infifls that it ought to be performed : 
 And this defendant, further anfwering, faith he believes 
 that fuch notice of the meeting of the faid arbitrators 
 on the day of was given to the faid 
 
 complainant on the day of as is herein- 
 
 before in that behalf mentioned, but at what time of 
 the day, or where in particular fuch notice was given, 
 or what was the fubflance of fuch notice, or what was 
 the name of the fervant of the faid complainant, to 
 whom the faid notice was delivered by the faid T. R. 
 and who as the faid defendant believes delivered the 
 fame to the faid complainant, this defendant doth not
 
 APPENDIX. 56J 
 
 know, nor can fct forth In any other manner than he 
 hath already fet forth the fame, but this defendant 
 bcheves that no other notice was given to the faid 
 complainant, nor was any notice of the faid meeting 
 given to the faid Mr. B. unlefs the fame was given to 
 him by the faid complainant : And this defendant faith 
 he beHevcs the notice was proper in point of time, and 
 that the complainant, his attorney, witnefs, or wit- 
 nefles might have attended, and that fuch notice was 
 not unreafonable, particuiai'ly as the faid complainant's 
 witneiTes, or fuch of them as he chofe to produce, had 
 been aheady examined, and the laid Mr. B. had before 
 declined any further attendance, as is hereinbefore fet 
 forth ; that there was no neceffity for the attendance- of 
 the faid Mr. B. or of any witnelTcs on the part of the 
 complainant, and fo the faid complainant feemed to 
 admit, as the faid T. M. who attended on behalf of 
 the faid complainant, did not make any objection to 
 the faid arbitrators proceeding to make their award, on 
 account of fuch notice being given ; nor does this de- 
 fendant believe that the faid complainant had any wit- 
 nefs or witnelTes to produce other than and befides the 
 faid Mr. B. and T. M. and this defendant admits that 
 the refpeftive places of relidence of the faid complain- 
 ant and Mr. B. are at fuch refpefti\^ difl:ances from, 
 &c. as are in the faid bill fet forth, and for any thing 
 he knows to the contrary, it may be true that Mr. B. 
 was during feme part of the day of at, &cc. 
 
 in the faid bill mentioned, on fome-buiinefs in the way 
 of his profefTion, and that, &c. is 18 miles diftance 
 from, &c. but he doth not know during what part of 
 the day he was there, nor does he believe that the fdid 
 arbitrators or any of them were apprized that the faid 
 p p 2
 
 564 
 
 API'ENDIX. 
 
 Mr. B. was at or engaged at, 6cc. as aforcfaid, before 
 they made or executed their award : And this defend- 
 ant admits that T. M. did attend as is hereinbefore fet 
 forth, as a witnefs for the complainant, but this de- 
 fendant believes that the faid T. M. was not prefent at 
 the examination of any witnefs or witncfles, the faid 
 arbitrators having agreed that no perfon, except the 
 witnefs who w^as under examination, fhould be in the 
 room with them during the examination of any of the 
 witneffes, and that therefore, after they had alked the 
 faid T. M. fuch queftions as they thought proper, they 
 dcfired him to depart from the room wherein they then 
 were ; and this defendant admits that the faid T. M.'s 
 then place of relidence w^as about fix or feven miles 
 diflant from, 8cc. and that he was afked fome queftions 
 hy the faid arbitrators, or fome of them, at tlieir faid 
 meeting on the day of and this defendant 
 
 faith he believes that the faid T. M. was a/ked the 
 proper queftions, and that he was fully and properly 
 examined on the complainant's behalf, but that no 
 perfon was prefent to examine him on the faid com- 
 plainant's behalf, except the faid arbitrators, they 
 having determined that no perfon fliould be prefent 
 with them except the witnefs, as is hereinbefore men- 
 tioned : And this defendant denies that the faid T. M. 
 did attend the fiiid arbitrators in confequence of a 
 requeft fent him by the faid E. M. as this defendant 
 hath heard and believes that the faid T. M. declared 
 that he attended at the requeft of his father-in-law the 
 complainant ; And this defendant, further anfwering, 
 faith that the faid arbitrators, on the faid day of 
 
 heard on the part of this defendant the evidence 
 of J. K.— S. C. and and J. A. and alfo the teftimony of
 
 APPENDIX. 565 
 
 W. F. which had been pre\uoufly taken by the faid J. S. 
 and was related by him, and alfo tlie dechiration made 
 by the faid complainant to the faid J. S. — and that fuch 
 evidence and teftimony did warrant the faid aibitrators 
 in making their faid award ; and that neither thev, nor 
 any of them, were influenced by partiality for this 
 defendant, nor by any undue or improper motives: 
 And this defendant denies all and all manner of un- 
 lawful combination, 6fc.' 
 
 S. R. 
 
 Thefe arc the pleadings in the cafe cited p. 374. 
 
 ^ P 3
 
 INDEX. 
 
 Account, 
 
 Debt on arrears of, cannot be referred alone, 51, 
 Whether together or with other things, 54. 
 Aftion of, may be referred, 52. 
 
 Acquiescence. — See Time. 
 Administrator — See Executor- 
 
 Afi-'idavit of Submissiok, 
 
 Witnefs to fubmiflion may be compelled to make. 
 
 What is neceffary to ground the application, 
 
 24- 
 
 To ground an attachment, 313, 314, 317. 
 
 Agent. — See Attorney. 
 
 Agreement, 
 
 To refer, no bar to an A£^ion, 14. 
 
 nor to bill of difcovery, 19, 40» 
 
 *'P4
 
 568 INDEX. 
 
 Agreement, 
 
 To make fubmifTion a rule of court, not neceffary to 
 
 be inferted in the condition of tlie bond, z5. 
 
 nor to be figned, 25. 
 
 not rigidly conftrued, 25. 
 To make the award a rule of court, not fufficient to 
 
 found an application to make fubmijjion a 
 
 rule of court, 25, 314. 
 
 Arbitrium boni viri, 73> 74> 230. 
 
 Arbitrators, 
 
 Defcription of, 6. 
 Who may be, 70, 72. 
 Two kinds of, 73. 
 Not the agents of the parties, 75. 
 Their authority does not ceafe by nominating an 
 umpire before the expiration of their own 
 time, 83 — 87. 
 
 See Umpire. 
 Proceedings by, 96, 350. 
 
 may be adjourned, 96. 
 Muft make their award within the time limitc<!, 
 
 otherwife void, 96. 
 VVhere not limited as to time, may make an award at 
 
 any time unlefs fubmiffion revoked, 96. 
 Cannot be compelled to make an award, 100. 
 May proceed ex parte, on due notice to the parties, 
 
 100, lOI. 
 In what cafes they muft all join, or not, 106. 
 Whether bound to give to the parties notice of the 
 
 award, 107 — 115. 
 How far they may make their award by parts, 118 — 
 
 121. 
 Cannot referve an authority to themfelves, 121 — izj. 
 
 See Reservation. 
 Cannot delegate their authority, 125 — 117, liS. 
 See Delegation.
 
 INDEX. 569 
 
 .ii.ri I !■ . 1 I , 
 
 Aebitrators, 
 
 Their power over cofts, 134, 135, 398. 
 
 See Costs. 
 Their power on reference by order of Nifi Prius, 149. 
 How far bound to fellow the rules of law, 185, 351. 
 May be witnefiTts to prove what is laid before them, 
 
 138, iSo. 
 Cannot be compelled in equity to difcover the grounds 
 
 of their award, 332. 
 Have a greater latitude of difcretion than judges 
 
 either at law or in equity, 356, 357. 
 
 Assignees. — See Bankrupt. 
 Assignment. — See Breach. 
 
 AssuMrsiT, 
 
 Aftion of, on the award, 276, 277. 
 where, the only aftion, 277. 
 What the declaration muft fhew, 278 — 279, 
 
 284. 
 Several breaches may be affigned in, 279. 
 
 Attachment, 
 
 For non-performance, when firft introduced, 311 — 
 
 313- 
 How obtained, 313.. 315, 3'7' 
 In what cafes granted, 315, 316, 336. 
 In the difcretion of the court, 317, 318, 333. 
 
 Attorney, 
 
 May fubmit for his principal, 45. 
 
 See Principal, Release, zzo. 
 When he fiiall be perfonally bound, 45, 165. 
 Performance by, 265.
 
 5^°' 
 
 INDEX. 
 
 Averment, 
 
 Uncertainty in an award, hovr far helped by, 195- 
 
 J97, 201 — 205. 
 Of tender and refufal, 301. 
 Of performance, 301, 303. 
 
 Award, 
 
 What, 6. 
 
 Who ihall be bound by, 42. 
 
 See Attorney, Bankrupt, Parties, 
 ' Partners, Principal. 
 Who fhall take advantage of, 48. 
 
 See Bankrupt, Parties, Partners. 
 In writing, 
 
 muft be on a fuitable ftamp, 139. 
 When to be made, 137, 138. 
 Muft be according to the fubmiflion, 140. 
 
 not beyond the fubmiffion, 141. 
 Out of the fubmiffion, no bar in equity, 167, 168. 
 What fhall be conftrued to be within or beyond the 
 fubmiffion, 141, 142, 145 — 148, 150, 170, 
 236, 237, 238. 
 May be of money by way of recompenfe, 143. 
 
 but not of a thing collateral, 143, 144, 145. 
 See Costs. 
 How far it may extend to llrangers, 156 — i6o, i83. 
 May extend to perfons in contemplation of the fub- 
 miffion, though not dire6lly parties to it, 
 160 — 164, 166. ^ 
 May comprehend llrangers, as mere inftruments, 
 166, 167. 
 See Stranger. 
 Muft not be of parcel only of the things fubmitted, 
 171. 
 This rule how to be limited, 172, 173 — 176, 181. 
 I >• • — how conftrued, when the fubmiffion is. 
 fpecific, 176, 181, iSj.
 
 Award, 
 
 INDEX 57« 
 
 Muft not be of parcel only of the things fubmrted. 
 This rule how conftrued in a court of equity, 
 183, 184. 
 
 ^ - when the fubmiffion is 
 
 general, 176, 177, 179- 
 When the fubmimon is general, the award is no bar 
 to an aftion for a caufe fubfifting at the 
 time, but not laid before the arbitrator, 
 179, 180. 
 How far it muft extend to all parties, 182, 183. 
 Muft not order any thing illegal, 184- 
 How far it muft purfue the rules of law, .351- 
 Muft not be of a thing impoffible, 185, 186, 191. 
 
 Diftinaion in this refpedl betsveen a bond 
 and an award, 187. 
 Muft be reafonable, 189 — 191. 
 Muft be advantageous, 186, 187, 191, 19** 
 "Whether it muft give a recompenfe, 193- 
 Muft be certain, itj, 124. "^8, i94« 196, i97- 
 
 but certainty to a common intent fufficient, 132. 
 v/hat fhali be confidered as fufflciently certain, 
 197 — 203. 
 See Averment. 
 May be conditional, 203. 
 
 in the alternative, 203. 
 
 with a penalty, 203. 
 
 Muft not be repugnant, 2i7' 
 Muft be final, 123, 124, 208. 
 
 What (ball be confidered as final ornot, 
 
 210 — 215. 
 Whether and how far it muft be mutual, 218— aaS, 
 
 259—261. 
 How conftrued, 228. ^ 
 
 formerly with great ftriftnefs, 228, 229. 
 
 now more liberally, 230, 231. 
 
 fo that it may, if poffible, be fupported,
 
 Award, 
 
 When good in part, though void in part, 243 — 246, 
 
 254 — 261. 
 When void for the whole, 246 — 250. 
 Its form, 261. 
 
 When it may be verbal, 261, 262. 
 See Pleading. 
 
 When it mufl be in writing, zSz, 
 
 When under hand and feal, 262. 
 Whether it muft be by deed indented, 263. 
 Whether expreffed to be of and upon the.premifes, 
 
 263. 
 Performance of it, 264 — 271. 
 
 See Performance. 
 Breach of it, 271 — 275. 
 How fet forth in the declaration, 284, 288, 289. 
 
 . in the replication, 285, 286. 
 
 Where it needs not be fet forth, 297, 298. 
 
 What may be pleaded to an adlion brought to enforce 
 
 it, 298. 
 May be fet forth by the defendant, joi. 
 Where it may be referred back to- the fame arbitrator, 
 
 359- 
 Kot enforced in equity againft the defendant, if the 
 
 plaintiff has not performed his part, 323 — 
 
 316. 
 For what caufes fet afide, 346 — 360. 
 How pleaded, and in what cafes, in bar of an afticn, 
 
 381—393- 
 How far excepiiom can be taken to an award in a 
 court of equity as to a Matter's report, 
 
 343—345- 
 How far pleaded to a bill filed to fet it afide, 360 — 
 3S0. 
 
 Bankrupt, 
 
 Affignecs of, how far they may fubmit a difpute in 
 his right, 41.
 
 1 K n E X . 57 5 
 
 Bankrupt, 
 
 Aflignees of, when bound by his fubmifTion, 4S. 
 
 . 1 , may take advantage of award made in 
 
 his favour, 49. 
 
 Bill dismissed, 
 
 Award that bill fliall be difmiffed, final, 211. 
 
 BREAcn, 
 
 Of fubmlflion, 30 — 34. 
 
 by exprefs revocation, 30, 31. 
 
 by implication, 30, 33. 
 Of the award, what (hall be, 19, 271 — 275- 
 Where feveral may be alleged, 279, 280. 
 
 See page 297. 
 How afligned, 2S0, 292 — 296. 
 
 Costs, 
 
 Of the reference, whether within the power of the 
 arbitrator, 151, 152, 394 — 398. 
 Cannot be referred to be taxed by the officer 
 of the court, 135. 
 Of fuit, on a reference at nifi prius, 135. 
 
 may be referred to the officer of the court, 
 
 135- 
 but not to any other pcrfjn, 136. 
 Jn an inferior court, muft be alcertained by the arbi- 
 trator himfelf, 137. 
 To abide the event, how conftrued, 153 — 155. 
 Where nothing awarded as to cofts, each party ffiall 
 pay his own, 213. 
 
 COVEXANT, 
 
 Award of, how far final, 214-
 
 574 
 Date, 
 
 Debt, 
 
 Deed, 
 
 INDEX. 
 
 Of the award, 201. 
 
 May be averred, 201. 
 
 Whether neceffary to be alleged in pleading, 
 
 285. 
 
 On bond, where it may or may not be referred, 
 
 5i» 54- 
 On fimple contraft, 52. 
 On arrears of rent, 54. 
 Aftion of, on fubmiffion bond, 280. 
 
 Order of pleading in, 280, 281, 282. 
 What neceffary to be Hated in, 283, 284, 
 
 285, 286, 287. 
 On the award itfelf, 288. 
 
 What ncctffary to be fet forth in, 
 
 288, 289. 
 Manner of pleading in, 289, 29c. 
 
 Where a demand arifing by, may or may not be 
 referred, 53. 
 
 DELEGATrON, 
 
 Of authority, what fhall be, 129, 133, 134. 
 
 what not, 137. 
 Of a minifterial aft, 129, 134. 
 Of a judicial aft, 128, 136. 
 See Costs. 
 
 Delivery, 
 
 Of an award, where it may be by parol, ti6, 117. 
 
 rpuft be to the "Mhole party on each fide, 
 116. 
 
 Departure, 
 
 In pleaditng, 282, 294, 30<?> 3°^, 303; 309? 3^0'
 
 INDEX. 5"5 
 
 Discontinuance, 
 
 Award of, confidered as final, tio, 211- 
 
 Event, 
 
 How conftrued, 153. 
 
 Executor, 
 
 May fubmit a difpute in rislu of his tcftator, 39. 
 But accountable for deficiency, where ihc award gh-es 
 
 Icfs than his due, 40. 
 Submifiion by, when and when not an admiflion of 
 
 afifets, 40. 
 Bound by an award on fubmifiion of his teftator, 48, 
 May take advantage of ditto, 49. 
 
 Freehold, 
 
 How far the fubjeft of reference, 55—61, 
 
 Feme Coverte.— See Married Woman. 
 
 Husband, 
 
 Where his fubmiffion fliall or fhall not bind his wife, 
 46, 47. 
 
 Infant, 
 
 Cannot be party to a fubmifllon, 3 v 
 
 How far another fubmitting for him fhall be bound 
 
 by an award againll him, 36—39. 
 Cannot be an arbitrator, 70. 
 
 I 1 \ Quod, 
 
 Claufe of, its operation, 170, i75» '''"> ^^-» *'^3> 
 207, 236—238, 259. 
 
 Judgment, 
 
 Where damages afcertaincd by, may, cr may not be 
 refsrred, 51, 54>
 
 57* IMDEX. 
 
 Judicial Act, 
 
 What (hall be, 136. 
 
 Land.— See Freehold. 
 
 Marriage, 
 
 An implied revocation of fabmiflion, 30, 33. 
 
 Married Woman, 
 
 Cannot fiibmit, 35. 
 
 Where and where not bound oy her huiband's fub- 
 
 milFion, 46, 47. 
 Cannot be an arbitratrix, 70. 
 
 Limitations, 
 
 Statute of, cannot be pleaded to debt on award under 
 hand and feal, 298, 299. 
 
 Ministerial Act, 
 
 What fhall be, 125, 127. 
 
 Money, 
 
 An award of, in fatisfa(5lion, 143. 
 Awarded without time limited, muft be paid within 
 a reafonable time, 205. 
 
 NoN Suit, 
 
 Award of, not finai, 20S, — 210. 
 
 Order, 
 
 Of reference at nifi prius, by whom to be drawn 
 
 up, 95. 
 
 To enlarge the time, how obtained, 96, 97. 
 
 By whom drawn up, 07.
 
 IN'DRX. 57^ 
 
 Parties, 
 
 To the fubmifllon, who may be, 35. 
 
 who Ihall be confidered aSj 43. 
 Alone bound by the award, 42. 
 Where each is bound to perform the whole, 44, 45. 
 How far the award muft extend to all, 182, 183. 
 Bound where they fubmit for others, 42. 
 
 See Infant, Married Woman, Bankrupt, Executor. 
 
 Partition, 
 
 Whether it can be by award, 57. 
 
 Partners, 
 
 Covenant to fubmit by, no bar to an a£lion, 12 — 14, 
 , to a bill for a difcovery, 
 
 14 — 20. 
 One, not bound by the fubmiflion of another, 42. 
 Where they may recover againft each other a portion 
 
 of a fum awarded, 44. 
 Partnerfhip may be awarded to be diffolved, 1494 
 
 Performance, 
 
 What fliall be, 264 — 275. 
 By attorney, 265. 
 Not required to be literal, 267. 
 After confiderable time, 270. 
 How compelled, 276 — 326. 
 
 See Remedy. 
 
 When neceffary to be alleged in pleading, aSf — 362* 
 How to be alleged by the defendant, 301 — 302, 302. 
 
 Personal Wrong, 
 
 What kind of, cannot be referred, 63 — 58.
 
 578 ind£x. 
 
 Pleading, 179, 180. 
 
 Difference of, in an aftion on the award, and in an 
 
 aftion on the fubmiffion bond, 288, 290. 
 - r in an aftion on a verbal, aad on k 
 
 written award, 291. 
 By the plaintiff, when the award is partially fet forth 
 
 by the, defendant, 303. 
 Order of, 280, 289, 291, 293. 
 
 Premises, 
 
 Submiflion, with a claufe " of and upon the premifee/' 
 
 I75> i77> 178; 206, 207. 
 
 Principal, 
 
 Authorifing agent to fubmit, bound by the award, 
 
 42, 43, 165. 
 Bound by his attorney's confent to fubmit at Nifl 
 
 Prius, 45. 
 Whether bound by his folicitor's confent in Chanceryj 
 
 46. 
 
 Referekck, 
 
 Order of, at Nifi Prius, by whom to be drawn up, 95. 
 See Subject of Reference. 
 
 Rejoinder, 
 
 When the defendant having pleaded •* no award " 
 may rejoin, without departure, 300. 
 
 Release, I55,>i7o, ^73, ig^j ^0^> ^^o, 238— 24J, 250, 259. 
 
 Relief, 
 
 Againfl an award. 
 
 By objeftions appearing on the face of it, J27. 
 
 Can only be had in a court of law, 327, 3513, 
 
 On fhewing caufe againft an attachmenti 342- 
 
 But cannot be made the fubjeft of a diftinft 
 
 motion to fet afide the award, when the 
 
 fubmilTion is by rule of court under thp 
 
 fUtute, 34Z.
 
 IKDEX. 579 
 
 Relief, 
 
 On extrinfic circumftances, 327, 328. 
 
 Cannot be had, by way of defence at trial, 
 
 3^8. 
 Nor by fhevving caufe againft an attachment, 
 
 346. 
 But may be had by bill in equity, 329. 
 
 In what cafes, 333— 339> 347. 34^. 
 
 349» 350- 
 On a fubmiffion by order of Nifi Prius, or according 
 to the ftatute, may be had by fpecific appli- 
 cation to the court, of which it has been 
 made a rule, 340. 
 
 AViihin what time Aich application muft. 
 be made, 341. 
 
 Remedy, 
 
 On an award. 
 
 By aftion of afTumpfir, 777 — 280. 
 
 See Assumpsit. 
 By debt on the fubmiifion bond, 180 — a8S, 
 By debt on the award itfelf, 288 — 291. 
 
 See Debt. — Pleading. 
 By attachment, 311 — 318. 
 
 See Attachment. 
 By bill in equity, 318 — 326. 
 
 Request, 
 
 When neceflary to be dated in pleading, 279, 195. 
 
 Reservation, 
 
 Of authority, what fliall be, 123. 
 Of a minifterial a(fl:, 125. 
 Of a judicial aft, 125.
 
 5S0 
 
 INDEX. 
 
 Retraxit, 
 
 Award of, final, zij. 
 
 Revocation, 
 
 Of the fubraiflion, before award made, 29, 30. 
 How it Riiv be made, 30. 
 Exprefs and implied, 30. 
 Effefts of, 29.— 31. 
 
 Where fubmiflion is by bond or by parol, 
 
 In what cafes a breach, 33. 
 
 How far no breach, where no time is limited for 
 
 making the award, 96. 
 Replied to the plea of " no award," 310. 
 
 Stranger, 
 
 To the fubmiflion, 156, 188. 
 Award to him void, 156. 
 
 of a thing to be done by him void, 156 — 159. 
 Dlftinftion between an aft to be done iy and to, i6o. 
 Payments of money to him, 158, 159. 
 His rights not afFefted by an award, 169. 
 
 Subject of Reference, 
 
 What things may be fubmitted, 50 — 69, 
 Muft be a thing uncertain, 50 — 53. 
 
 Submission', 
 
 What, 6. 
 
 Parties to it— See Parties. 
 
 How it fhall be made, 8. 
 
 By the aft of the parties merely, 8- 
 Verbal, 10, u.
 
 INDEX. 581 
 
 Submission, 
 
 In writing, 10. 
 
 Muft be on ftamped paper, ii. 
 
 By mutual bonds, 11, iz. 
 
 Py bond to a third perfon, 12. 
 
 By other perfons than the parties themfelves, 
 
 IZ. 
 
 Not necefTary that it fliould appear of how many 
 
 perfons the parties confift, 12. 
 By indenture with mutual covenants, 12. 
 When it muft be by deed, 54 — 62. 
 By the aft of the parties with the intervention of a 
 
 court, 8. 
 By order of Nifi Prius, 21. 
 Proceedings thereon, 26. 
 Made a rule of the court out of which the record 
 
 ifTued, 21. 
 Made a rule of another court, 23. 
 Diftinftion as to the order of words of reference, 
 
 149, 150- 
 By ft- 9 and 10 W. 3. c. 15. 21. 
 
 See Agreement. 
 
 Its extent, 26. 
 
 How conftrucd, 26, 27. 
 
 When there is a repugnancy in the words, 49. 
 To be conftrucd liberally, 78 — 104. 
 ■yVhat afts Ihall amount to a breach of, 33, 34. 
 
 See Revocation. 
 
 General, 172, 176. 
 Particular, 172, 176. 
 
 Mifrecital of, fliall not avoid the award, 235. 
 How ftated in pleading, 276, 277, 278. 
 When it may be pleaded to an adlion on the original 
 caufc, 3S9.
 
 5?* INDEX. 
 
 Time, 
 
 For making the award, 96. 
 How prolonged, g6, 97. 
 After prolongation of, no aftion will lie on the 
 
 original fubmiffion bond, 311. 
 After long acquiefcence in an award, a court of 
 
 equity will prevent its being impeached 
 
 at law, 322, 323. 
 
 Trespass, 
 
 May be referred, 53. 
 
 Umpirage, 
 
 What, 6. 
 
 See Award. 
 
 Umpire, 
 
 Definition of, 6, 75. 
 
 May be nominated by the parties, 75, 77. 
 By the arbitrators. 75, 77. 
 
 Before the expiration of the time limited to 
 
 themfelves, 82 — 87. 
 Or after, if not refirained by the fubmiffion, 88. 
 Not by throwing crofs and pyle, 76, 346. 
 When his authority begins, 77, 7S. 
 When he may make his umpirage before the expira- 
 tion of the time limited to the arbitrators, 
 78; 82, 88. 
 Whether in fuch a cafe it be neceffary to allege 
 that the arbitrators renounced their au- 
 thority, 91. 
 One being nominated by arbitrators and refufing, 
 they may appoint another, unlefs reltrained, 
 &c. 91 — 94. 
 How far he may proceed on the report of the arbi- 
 trators, loi, 102. 
 When he may join with the arbitrators, 104, 105. 
 Claufe of " ita quod," extends to hins, I75'
 
 IVDEX. 5*1 
 
 Uncertainty. — See Averment. 
 
 Verdict for fecurity, 314. 
 
 Witness to Submission, 
 
 May be compelled to make afHdavit, zj, 24. 
 
 Woman, 
 
 May be an arbitratrix, 71. 
 
 FINIS.
 
 ERRATA. 
 
 J'age II, in the notes, 1. 7 in the left hand column, infcit the figure of 
 reference i before vid. 
 
 dele 1. 8 and 9. 
 
 32, 1. 2 and 3 from the bottom, inftead of" if a penalty was added to the 
 
 fubmiflion, read " if a penalty was not added to the fubmiffion." 
 47, 48, the word " The", at the bottom of p. 47, ought to begin a ucvf 
 
 paragraph at the top of p. 48. 
 86, 1. 26, for '< cbufe " read " chofe." 
 
 89, 1. 4 from the bottom, for " been decided" read " arifcn." 
 103, 1. 4, for . infert : 
 
 122, lalt 1. but one from the bottom, inftead of : infert , 
 165, I. 6 fsom the bottom, for" purported" read" purporting." 
 I91, 1. 2, for . infert , 
 363, 1. i6, for " anfwcred, the charge been," read " the charge been 
 
 anfwered." 
 365, 1. 7, for" arbitrators" read " parties." 
 372, between 1. 14 and 15, fupply " to a bill filed." 
 
 1. 3 from the bottom, for " artiality" read " partiality." 
 
 Im feveral places, the words " iTiall " and " fliould " ufurp the place of each 
 other. — There are alfo other errors both literal and of pundluation ; but they are 
 fuch as do not render the fenfe obfcure ; Thefe the candid reader will obferve 
 and excufe. 
 
 jVb. 3, £/w Cc'urty Temfkf 
 Jug. 12, 1799.
 
 LAW LIBRARY <9^ 
 
 UNIVERSITY OF CViJFORNIA ^ 
 LOS ANGELES
 
 UC SOUTHERN REGIONAL LIBRARY FACIU^^^ 
 
 AA 000 766 160 6
 
 '^»i 
 
 , ii 
 
 iilli