CH. 13. to B, a party, the Common Pleas may legally enter judgment for a less sum, B releasing the difference on the record. 14 Mass. R. 252, 253. ART. 10. Mutual releases. The time of the submission is, or should be a known fact. So of the award. Nothing can be submitted but disputes and matters between the parties, at the time of the submission. This is clear; and as the award must pursue the submission, and can be valid only as it embraces matters in it, it is clear, the award is void, as to any matter arising after the submission, except costs and interest, and some Bac. Arb. 27. such things as depend on the matters referred; as if the submission be of ewes with lamb, which ewes after the submission, and before the award have lambs, no award can be made. touching the lambs; for they were not in being at the time of the submission. -Bac. Abr. 133. Bac. Arb. 138 2. So where the dispute is about land, the award may embrace rents accruing after the submission, as things in substance 2 T. R. 645, included in the principal matter submitted: and now even in England costs attend the submission on the same principle. see Willes 62. Moore 3 pl. 3. So an award is good, that A, one party, make a lease 8.-Bac. Arb. to B, the other, and that B therefor pay A £10 yearly. 28. Saĺk. 76. § 4. Arbitrators can make but one award; and that must be strictly within the time allowed. They can have no power to award a release of any matter, action, or cause of action, accruing after the submission. This point has been agreed at all times, and the question has been, how to consider a release awarded, so as to include such matter after the submission, or any award embracing such matter. At first it was held, that awarding releases to the time of the award was void, as including more time than was submitted; then, that it should be averred that no new matter did arise between the submission and award. And finally, if releases be awarded to the time of the award, it is good, because no new matter of action shall be intended in the interim, if not shewn by the party objecting to the award on this account; and because, mainly a release to the time of the submission is a good one, and one is void, so far as it respects any matter, action, or demand arising after the submission. And if an award have no date, the date as in the case of a deed is the delivery of it. Hence, a submission. was of "all controversies pending," and the award was, " that all suits now pending between the parties shall cease;" and that the deft. pay the plt. £10, in full of all demands, and release all demands to the time of the award, and on the payment of the £10 the plt. should release to the deft. &c. court, on error brought, held, that an award of a general release of all demands, till the time of the award, is good; for nothing new shall be intended to have arisen in the mean The CH. 13. Art. 10.. time; and if any new demand or controversy did happen in the mean time, the award, as to that new demand or controversy, is void," for that was not submitted. "And it is a good performance to tender a release of all matters in controversy to Bac. Arb. the time of the submission;" this is all he is bound to do, and 119, 120.Salk. 174, Sinew matter is not intended if not shewn in pleading. mon v. Gaud. Stain v. Wild. 858.-Cro. El. 5. In a similar case of a submission, July 29, and an Cro. Jam. award made August 8, the court held, the whole award was 352, void. In this case the award was, that the plt. have a horse Cro. Jam. in dispute, and £3 paid him by the deft. for costs and mu- 448, 578, 664. tual releases, including about two months after the submission; Cro. El. the action was for the £3, and on demurrer the court held, 861.-Hob. that though the award was on, and concerning the premises, 191-10 Co. and no new matter shewn, yet it was void, as to the releases, the plt. not shewing there was no new matter; and these being void, there is nothing awarded for the deft's. benefit, so all on one side and void. But 2 Cro. 578 there was a contrary intendment, and so Cro. El. 858, and so other cases. 132. Goodman v. 6. So assumpsit for 40s. awarded, and verdict for the plt., Cro. El. 861, it was moved in arrest of judgment, that the award was void, as it was made of more than was submitted, as only actions at the day of submission were referred, and the award was of controversies at the day of the award. But the court held the award was good, as it is of and upon the premises, the things submitted; and though the award seems to extend to more, yet the words, upon and concerning the premises, restrain it to the thing submitted, and this is according to the best authorities. Cobb.-Bac. 7. Where the award is on the premises, and the releases 3 Lev. 188, are general, and come down to no particular time, it shall be Robenet v. intended they were awarded only to the time of the submis- Arb. 118. sion, and so the award is good. -5 Co. 78. 8. An award, that all actions are to cease amounts to Barnes 43.a release. The intention of the arbitrators is clear, and the Bac. Arb. 129. form is not material. Their award operates like a judgment to bar and bind the parties. $ 9. If two partners refer all matters in difference be- 1 W. Bl. 675, tween them, the referees may dissolve the partnership between Greene v. them. Waling. 10. An award that orders partition, but orders no deed Willes 248, to be given, is void. No partition of land can be made with- Johnson v. out deed, by statute law. In this respect, an award is not like a judgment. § 11. On the whole, the above case from Salk. 76, must now be considered as law, and the old cases to the contrary, as not law. These rested on a very erroneous principle; in them noth Wilson. CH. 13. ing was intended in favour of the parties' own acts, amicably Art. 11. to settle their disputes. Addison v. Grey. ART. 11. Awards void in part. § 1. It appears in art. 9 2 Wils. 293, above, and in the books, that many awards are void in part ; hence, an important question arises often, when does the void part vitiate the whole award. The rule is, that when the good part and the void part are distinct and independent, the good part will stand in force. But when any thing in the void part enters into the consideration of the good part, and so these good and bad parts are blended together and not distinct, the whole award is void. Award set aside for a bad debt included, good for the rest. 2 Bos. & P. 371, Aubert v. Magee. 2 W. Bl. 1117, Pickering v. Watson. 3 Lev. 414.-Bac. Arb. 120, Bargrave v. Atkins. 2. As in a submission of all matters, so that the award be made on the premises, and at an after day the award is made, that one release all matters to the time of the award, and the other pay £10; here is an award primâ facie, both sides, but the releases being void, the whole award is so, for the release was intended as a part of the consideration; but now as the release would be held good for all matters before the submission, the award would be viewed as mutual and good. § 3. An award that the deft. pay the plt. £7 10s. and the costs of a suit, the plt. had against the defts., and thereon mutual releases to be given, the court adjudged that this was a 2 Cain. 235. good award as to the £7 10s., and void as to the costs, as to them being uncertain; and that on payment of the £7 10s. each party ought to release, and not wait for the performance as to the costs, as to which the award was void. In this case Fuller.-2 T. the costs were a distinct article, and for the award to be good that part, part must be distinct and independent. The arbitrators may award the plt. his costs, and also award costs of reference to be taxed by the proper officer, and if the officer tax the former, the award will be good for the plt's. costs, and bad for the costs of reference. For it is clear the referees cannot award costs of reference, though they may the costs of the party by the English law. See Whitney, adm. v. Cook, above. -5 East 139. Willes 64, R. 644. 1 H. Bl. 223. -2 W. BI. 1117-2 D. & E. 644. 8 East 13. 1 Bin. 61. Bac. Arb. 133, 134, 145. Pople 16. in § 4. Submission to the award of A, so that it be made at, or before April 30; he made one April 30, and awarded that the parties within four days release to each other to the time of the submission, but that if either be discontented with the award, and by May 20 pay the other party 10s. then it should be void. The court held this was a good award, and that the last part only was void, for the proviso to make it void, after the executions of the releases is repugnant, but if this avoiding proviso had been within the four days, the award would have been void, as it would have been no final end of the dispute. 5. An award, that one party assure lands submitted, to the other and his wife, is void as to her, as she is no party, and the assurance must be to the husband alone. CH. 13. Art. 12. 2 Wils. 267, 277. 6. The courts of law formerly looked critically into Bac. Arb. 159. awards, but in modern times they give them a benign con- 269, Fox v. struction; and now, if an award be certain in part, as in re- Smith, and gard to £20 damages, and uncertain in part, as in regard to 293-1 Burr costs unascertained, the party may shew the award in his plea, and assign a breach in the non payment of the £20 only; and he shall have judgment, for he may give up the bad, and rest on the good part. Costs, primâ facie, mean legal costs. § 7. So if all actions for tithes be submitted, and the award 1 Com.D.531. be that all actions cease, it is a good award; for it is intended --2 Cro. 664, there is no other action unless they be shewn, and the award is good for what is submitted, and void for the rest. § 8. Debt on an arbitration bond. Plea no award. Repli- Gilb. Cases, cation, an award made, that the deft. pay the plt. 25s. April Abrathut v. 118, 120, 1st, and 25s. to each referee May 1st; and on the payment Brandon, and of said monies, mutual releases to be given to the time of the Pp. 126, 127. award. The court held, this award was good as to paying the 25s. April 1st, and void as to the 25s. to each referee. And as to the release, that it was void, so far as it exceeded the submission; and that the releases might be to the time of the submission. This difference must be taken, that the justice of the award be not affected by the void part being rejected. And if the whole will be unjust by rejecting the void part, the whole must be set aside. Farmer. Bradford v. § 9. Though the plt. refer all matters, he may sue any mat- 4 T. R. 146, ter, on proof it was not laid before the referees; but then, the Ravee v. referees must not, intentionally, omit any matter referred. As Willes 268, where they decided all matters but one, and gave liberty to one of the parties to prosecute the matter, if he chose. In this case the award was deemed bad in toto, though the excepted matter be excluded from the releases. But the referees may except a certain thing not in dispute, as a note, that it shall stand and be paid. 5 Ins. Cl. ART. 12. How awards may be performed. On a view of 1 Bac. Abr. all the cases, it appears that an award to pay money in the 126, 127.house of a stranger, if not a tavern or coffee-house, is bad; 2B-1 Com. but at the house is good; for they may pay at his house and D. 526. not be trespassers. 1. There must be a demand of the thing awarded, and Salk. 83.tender and refusal has the same effect in awards as in other Bac. Arb. 127, 160, 128. cases; and when one party tenders his part, he has a right to have what the other is to do to, or for him. As if one tender the £10 he was awarded to pay, he may sue for the release 254, 255, 267. 1 Rol. Abr. CH. 13. Bac. Arb. Bac. Arb. 135, 221, 222 Bac. Arb. 136. 413, 414, the other was awarded to make to him, though the release was to be made on the receipt of the £10. § 2. An award will not be enforced when obtained by fraud or concealment of a party, or by corruption or partiality of the referees. § 3. And if one, who is to receive money, refuse it on a tender, he is as much bound to sign a release, as if he actually received. it. § 4. Where costs are awarded, they are as between party and party, and not as between attorney and client, unless the referees expressly so award; as that the plt. have all his expenses, or use other words, shewing they mean he shall have his actual costs. In pleading a tender of the performance of an award, ad hoc paratus is not necessary to be pleaded. Some books, however, are otherwise. 5. Costs may be ascertained by the plt's. bill given to the -3 Lev. 18, deft; but an award that the deft. pay the plt. £71 10s., and all reasonable expenses sustained by the plt. about his said suit, is uncertain and void. But since where it was awarded that the plts. pay the costs, and no one appointed to tax them, the Court supplied it by ordering the master to do it. A parol 737, Dudley's award may be pleaded ready to be delivered, &c. Salk. 75, and sufficient if only made. bove. Stra. Case. Oatis v. 4 East. 584. 5 Co. 77, 78, Samon's Case. 2 Stra. 1024. -Cro. Jam. 314, Thinn v. Rigby. 1 Lutch. 550. -Ld. Raym. ART. 13. When awards are certain and final, or not. § 1. A and B submit all disputes as to lands, and award that A enjoy it, and that B give him a bond, is void; for the sum of the bond is not named, and there are no data on which to find it. And every award ought to be certain, that the party may know What he has got to perform. 1 Day's Ca. in Er. 130. § 2. Two persons submit controversies, as to the right, title, Rol.Abr.263- and possession of 200 acres of land, called Kelstom Linge,Bac. Arb 131. award, that in the waste lands of the town of Kelstom, one -1 Lev. 88. shall have the brakes, there growing, during his life, paying to 124, 234.- the other 2s. a year, without giving any name to the land in 12 Mod. 585. the award; this award is void, and cannot be helped by aver304.-2 Cain, ment, that the brake land is the 200 acres submitted, and not other land; for the party cannot expound the intent of the arbitrators, whose office it is to end all differences directly, or by reference to something certain. Costs of reference, also, are included in costs to abide the event. 9 East. 436. - Cain.319, 327, 235.9 East. 436. Salk 75 Mod. Cas. 195.Barnes 56, 18, 414. 3. By all the above cases in regard to costs or expenses in the sixth and eleventh articles, the rule seems to be, that if costs of court are meant, they shall be taxed by the proper 166.-3 Lev. officer, and so reduced to a certainty by a mere ministerial act; but if not such costs, but expenses generally, they are uncertain, and the referees must reduce them to certainty, or the award as to them will be void. Award, certain actions be discontinued, and each pay his costs is final. 9 East. 497. 2 Wils. 268. -Stra. 737, v. Long.- |