General Principles.

6. There is a class of cases upon awards to be found in the books, in which arbitrators have been held to more than ordinary strictness, in pursuing the terms of the submission, and in awarding on the several distinct matters submitted, upon the ground of the submission being conditional, ita quod. But the rule is to be understood with this qualification, that in order to impeach an award made in pursuance of a conditional submission, on the ground of a part only of the matters in controversy having been decided, the party must distinctly show that there were other points in difference, of which express notice was given to the arbitrators, and that they neglected to determine them. Karthaus v. Ferrer et al., 1 Peters, 227.

and the United States, the streets, so far as they | The reference not being made under an order of were within the limits of the navy yard, were the court, the party complaining must resort to closed up, and have ever since been discon- his ordinary remedy at law or in equity, founded tinued, and have been used as a part of the navy on the agreement and award. Lessee of Banert yard. The agent of the United States, and Mr. v. Eckert, 4 Wash. C. C. R. 325. Harris, not agreeing as to the value of the land taken for the navy yard, the value was ascertained and determined by a jury proceeding under a law authorizing the same, and the amount of the valuation was paid to Mr. Harris by the United States. The jury did not appraise the land on which the streets were laid out. One lot of ground was appraised, "with the appurtenances." An action was instituted by the heirs of Mr. Harris, claiming to be paid the value of the land on which the streets had been laid out, but which had been discontinued. The defendant was the commandant of the navy yard. By the court: The term "appurtenances," in common parlance and in legal acceptation, is used to signify something appertaining to another thing as principal, and which passes as incident to the principal thing. Land cannot be appurtenant to land. The soil and freehold of the streets did not pass to the United States, under and by virtue of the term appurtenances. Harris v. Elliott, 10 Peters, 25.

ARBITREMENT AND AWARD.

1. General principles

7. It is a settled rule in the construction of awards, that no intendment shall be indulged to overturn an award, but every intendment shall be allowed to uphold it. Ibid.

8. That judges chosen by the parties themselves, as well as those constituted by law, ought to be exempt from all imputation of partiality or corruption; that their conduct ought to be fair, and their proceedings regular, so as to give the parties an opportunity of being heard, and themselves the means of understanding the ..Page 174 subjects they are to decide, are propositions not 175 to be controverted; but corrupt motives are not 175 likely to be ascribed to the arbiter; nor is par 177 tiality to be ascribed to him, on account of dif177 ference of opinion with respect to the decision he has made. Davy's Ex'rs. v. Faw, 7 Cranch, 171; 2 Cond. Rep. 461.

2. Submission to arbitrement, and its effects......... 3. What is a good award.......

4. Exceptions to an award

5. Performance and enforcing an award

1. General Principles.

1. Under a general submission, the reasonable rule seems to be, that the referees are not bound to award upon the mere dry principles of law applicable to the case before them. They may decide upon principles of equity and good conscience, and make their award ex æqui et bono. Kleine v. Catara, 2 Gallis. C. C. R. 61.

2. Referees cannot be examined by the court, to explain what, on the face of the report, is vague and uncertain. Kingston v. Kincaid, 1 Wash. C. C. R. 448.

3. The language of awards must be so plain, that, by a fair construction of the whole instrument, or by reference to something connected with it, the parties may know what it is they are ordered to do. Ibid.

4. Unless the submission authorized the referees to refer to the court the decision of a question, it cannot be done; the referees cannot delegate their authority. Ibid.

5. Pending an ejectment in the court, the parties agreed to refer it to certain persons to value the land in controversy; one-third of which, it was agreed, belonged to the plaintiffs, and twothirds to the defendant; and that if, by drawing lots, it should turn out that the plaintiff should take the whole, he was to pay two-thirds of the appraised value to the defendant. The award being made, the court refused to confirm it.

9. When the price of land, and not the question of title, is submitted, the submission and award need not be by deed. Ibid.

10. An award may be void in part, and good for the residue. But if the part which is void for uncertainty, be so connected with the rest as to affect the justice of the case between the parties, the whole is void. Lyle et al. v. Rodgers, 5 Wheat. 394; 4 Cond. Rep. 702.

11. An attorney at law, as such, has authority to submit a cause to arbitration. Holker v. Parker, 7 Cranch, 436; 2 Cond. Rep. 506.

12. Upon exceptions taken to the report of referees, the court may examine the accounts and documents laid before the referees, to ascertain whether they had refused to allow certain credits. Hurst v. Hurst, 1 Wash. C. C. R. 56.

13. In this examination the court will receive no new evidence; and in deciding upon that laid before the referees, it is not a sufficient objection to their report, that they have drawn from the conflicting evidence a different conclusion from what the court might have done. Ibid.

14. But if they have misapprehended plain facts or principles of law, the report will not be confirmed. Ibid.

15. If part of the matter reported be without the submission, it will be set aside; and if such part be independent of the other parts of the

Submission to Arbitrement, and its Effects.-What is a good Award.

report, the residue, if correct, may be approved and confirmed. Ibid.

16. The court will not set aside the report of referees, merely because they would not have drawn the same conclusions from the evidence which have been drawn by the referees. Jolly v. Blanchard, 1 Wash. C. C. R. 252.

17. Arbitrators are bound to award upon all matters within the submission, which are actually controverted before them, whether there be such a special clause of ita quod, &c., or not. Kleine v. Catara, 2 Gallis. C. C. R. 61.

18. If the submission be general, and the award of a particular thing, it will be presumed that nothing else was in controversy, unless the contrary should appear. In the latter case, the award will be recommitted to the referees. Ibid.

19. Parties who have agreed to refer a question to their respective representatives, are concluded by the decision of the ministers of their governments, resident in the United States; and the decision is sufficiently proved, by a letter from the consul-general of the nation of the party against whom the decision has been given, stating that the ministers who had decided the matters referred, had ordered him to communicate the decision. Gernon v. Cochran, Bee's D. C. R. 209.

2. Submission to Arbitrement, and its Effects. 20. The award of arbitrators appointed under a mutual mistake of both parties, in supposing themselves bound by law to submit the matter in dispute to arbitration, is not obligatory. Peisch et al. v. Ware et al., 4 Cranch, 347; 2 Cond. Rep. 137.

21. Where an award directed each party to release certain estate, and the term of twenty days was allotted within which the acts were to be done, the acts are to be deemed concurrent acts, so that neither party can insist on a release without offering to execute a release on his own part to the other party. M'Neil v. Magee, 5 Mason's C. C. R. 244.

22. In awards, the judgment of the referees is conclusive upon all matters of fact. Kleine v. Catara, 2 Gallis. C. C. R. 61.

23. If there appear to be an error of fact, as a mistake in calculation, apparent upon the face of an award; or if referees are satisfied that such a mistake has intervened, and wish to correct the error; although the court will not set aside the award, it will recommit it to rectify the mistake. Ibid.

24. It was agreed between M'A. and H. that M'A. should withdraw the entries of ten thousand acres, part of eleven thousand six hundred and sixty-six acres, which had been located for the use of H., and should relocate the same elsewhere; and that the ten thousand acres, the entries of which had been withdrawn, and the ten thousand acres relocated elsewhere by M'A., should be valued by two disinterested persons, one to be chosen by each party; and if the two could not agree on the value of the land or any part thereof, they should choose a third person, who should agree on the value of the land; and

that H. should have so much of the land reloIcated as should amount to the value of the land for which the locations had been renewed; and also to the value of two thousand dollars, in addition to the value of the ten thousand acres. The two persons appointed could not agree as to the value of part of the land, and they nominated a third person. Of the three persons thus appointed, two only agreed as to the value of part of the land. By the court: It is an unreasonable construction of this agreement, that it was so framed as that it not only might fail to accomplish the very object intended, but that in all probability it must fail, and become entirely nugatory, as the third man was not to be called in until the two had disagreed. It is a more reasonable construction to consider the third man as an umpire to decide between the two that should disagree. This would insure the accomplishment of the object the parties had in view. The valuation by the two appraisers was within the submission. Hobson v. M'Arthur, 16 Peters, 182.

25. Where there is an original delegation of power to three persons for a mere private purpose, all must agree, or the authority has not been pursued. Ibid.

3. What is a good Award.

26. An award must decide the whole matter submitted to the arbitrators: it must not extend to any matter not comprehended in the submission; and it must be certain, final, and conclusive upon the whole matter referred. Carnochan et al. v. Christie et al., 11 Wheat. 446; 6 Cond. Rep. 382.

27. When the arbitrators determined that the plaintiffs should be entitled to a credit of a certain sum, on account of sales of lands to the defendant, provided "they shall grant or cause to be granted to W. C. (the defendant) a clear, unencumbered, and satisfactory title" to the lands, without limiting any time within which the title should be made; as this leaves the question, whether the credit is to be allowed or disallowed, indefinitely upon the award, it is not final, and must be set aside. Ibid.

28. In awards, the judgment of the arbitrators or the referees is conclusive upon all matters of fact. If, however, there be a mistake of fact, (as in calculation,) apparent upon the face of the award, or if the referees are satisfied of a mistake of fact, though not apparent on the face of the award, and certify their wish to correct it, the award will be recommitted to rectify the mistake. But such a mistake is no ground to set aside an award. Kleine v. Catara, 2 Gallis. C. C. R. 61.

29. Referees are judges as well of the law as of the fact. If no reservation is made in the submission, the parties are presumed to agree that every thing, both as to law and fact, necessary for the decision, is included in the authority of the referees. Under a general submission, therefore, the referees have rightfully a power to decide on the law and on the fact. Under such a submission, the referees are not bound to award on dry principles of law; but they may

What is a good Award.

30. If referees refer a point of law to the court by spreading it on the award, and mistake the law, the award will be set aside. If they admit the law, but decide contrary thereto, upon principles of equity and good conscience, although such intent appear on the face of the award, it is no ground to set it aside. Ibid.

31. If they make a general award, it cannot be impeached collaterally or by evidence, aliunde, for mistake of law or of fact; for the judgment of the referees is conclusive in this respect, unless there be fraud or misbehaviour. Ibid.

award according to equity and good conscience. | cluded with these words: "In witness whereof, Ibid. we, the said John Lutz and O. M. Linthicum, have hereunto interchangeably set our hands and seals, day and date above. John Lutz, agent for John M Pherson. [L. s.] O. M. Linthicum. [L. s.]" The defendant Lutz pleaded performance without praying oyer, and issue was joined. Afterwards, the parties, by consent, agreed to refer the cause; and accordingly, by a rule of court, it was ordered, "that William S. Nicholls and Francis Dodge be appointed referees between the parties aforesaid, with liberty to choose a third person; and that they, or any two of them, when the whole matter concerning the premises, between the parties aforesaid in variance, being fairly adjusted, have their award in writing under their hands, and return the same to the court here; and judgment of the court to be rendered according to such award, and to be final between the said parties." The referees so named, on the 28th of January, 1833, chose John Kurtz the third referee; and afterwards, on the same day, made their award in the following words: "We, the subscribers, appointed arbitrators to settle a dispute between Otho M. Linthicum and John Lutz, in which the executors of the late John 34. Where a reference is made to three per- M Pherson, of Frederick, are interested, do award sons, or any two of them, and after sundry meet- the sum of eleven hundred and twenty-nine dolings, and many efforts to produce a coincidence lars and ninety-three cents, to be paid to the said of opinion among them, the one who dissents Linthicum in full, for all expenses and damages from his companions withdraws, and requests sustained by him, in consequence of not leaving that he shall not be again called upon, in conse-him in quiet possession of the house, at the corquence of which, the other two meet and agree upon a report, such report is valid. Kingston v. Kincaid, 1 Wash. C. C. R. 448.

32. An award is not void, because it is in the alternative and contingent; nor because one of the alternatives requires the party to do an act in conjunction with others, not parties to the award, and over whom he has no control. Thornton v. Carson, 7 Cranch, 596; 2 Cond. Rep. 618. 33. An award upon a submission of a question whether the parties had a right to set off, is conclusive. Query, whether a decision by a court of law, of concurrent jurisdiction, on the same point, would not be conclusive. Green v. Darling,

5 Mason's C. C. R. 201.

35. If a submission be of all actions, real and personal, and the award be only of actions personal, it is good; for it is presumed no actions real were depending between the parties. thaus v. Ferrer et al., 1 Peters, 227.

ner of Bridge and High streets, in Georgetown, (the demised premises,) for the full term of the lease for five years. Any arrear of rent due from Linthicum, to be paid by him." Signed by all the referees. Judgment was given by the circuit court, for the full amount of the award so Kar-made, and costs. By the court: The articles purport to be made by Lutz, and to be sealed by him; and not to be made and sealed by his principal. The description of himself, as agent, does not, under such circumstances, exclude his personal responsibility. But this very liability was necessarily submitted to the referees, and came within the scope of their award. Lutz v. Linthicum, 8 Peters, 165.

36. An award will not be set aside in equity, | on account of an omission by the arbitrators to act upon part of the matters submitted, unless that omission shall have injured the complainant. Davy's Ex'rs. v. Faw, 7 Čranch, 171; 2 Cond. Rep. 461.

37. In the circuit court of the District of Columbia, Linthicum instituted an action of covenant on articles of agreement, by which Lutz covenanted that Linthicum should have peaceable possession of a certain house in Georgetown, and retain and keep the same for five years. Linthicum was evicted by Lutz before the time expired. The articles were spread upon the record, by which it appeared, that they were made "by and between John Lutz, of, &c., and agent for John M'Pherson, of Fredericktown, in the state of Maryland, on the one part, and Otho M. Linthicum, of Georgetown, &c., of the other part ;" and it is witnessed, "that the said John objections invalid. Ibid. Lutz, agent, as aforesaid, has rented and leased, &c.," the premises to Linthicum; and on the other hand, Linthicum covenants to pay the rent, &c., as stated in the declaration. There was no covenant in the lease by Lutz, for quiet enjoyment, as stated in the declaration; but the latter was founded upon the covenant implied by law, in cases of demises. The articles con

38. It was objected to the award that it was uncertain, not mutual and final; that it does not state whether the money is to be paid by Lutz, or the executors of M'Pherson; that it does not find the arrears of rent due, and to whom due; that it does not appear to be an award in the cause; that the award and the proceedings thereon are not according to the laws of Maryland; that the appointment of the third referee ought not to have been made, until after the other two referees had met and heard the cause, and disagreed thereon. The court held all these

39. Without question, due notice should be given to the parties of the time and place for hearing the cause, by the referees; and if the award was made without such notice, it ought, upon the plainest principles of justice, to be set aside. But it is by no means necessary that it should appear upon the face of the award that such notice was given. There is no statute of

Exceptions to an Award.-Performance and Enforcing an Award.

Maryland, whose laws govern in this part of the | be paid by him in his representative character, district, which requires such facts to be set forth and those for which he is personally bound. in the award. If no notice is in fact given, and Lyle et al. v. Rodgers, 5 Wheat. 394; 4 Cond. no due hearing had, the proper mode is to bring Rep. 702. such facts, not appearing on the face of the award, before the court, upon affidavit and motion to set aside the award. But, prima facie, the award is to be taken to have been regularly made, where there is nothing on its face to impeach it. Ibid.

45. If, however, referees mean to decide according to law, and mistake and refer it to the court to review their decision, as, in all cases where they specially state the principles on which they have acted, they are presumed to do; in such cases the court will set aside the award; for it is not the award which the referees meant to make, and they acted under a mistake. Ibid.

46. Although an attorney at law has no right to make a compromise, yet a court will be dis inclined to disturb one which was not so unreasonable in itself as to be disclaimed against by all, and to create an impression that the judg ment of the attorney has been imposed upon, or not fairly exercised. But where the sacrifice is such as to leave it scarcely possible that, with a full knowledge of every circumstance, such a compromise could be fairly made, there can be no hesitation in saying that the compromise, being unauthorized, and being therefore in itself void, ought not to bind the injured party. Though it may assume the form of an award, or a judgment at law, the injured party ought to be relieved against it. Holker v. Parker, 7 Cranch, 436; 2 Čond. Rep. 506.

40. The statute of Maryland requires that notice of an award shall be given to the party against whom it is made, by service of a copy, three days before judgment is moved; and judgment is not to be entered but on motion and direction of the court. It was alleged that a copy of the award was not delivered. By the court: How that may have been, we have no means of knowing, for nothing appears upon the record respecting it; and there is no ground to say that it ought to constitute any part of the record, or that it is properly assignable as error. It is matter purely collateral, and in pais. If no such copy had been delivered, the proper remedy would have been to take the objection in the court below upon the motion for judgment, or to set aside the judgment for irregularity, if there had been no waiver, or no opportunity to make the objections before judgment. But in the present case, sufficient does appear upon the record to show that the party had full opportunity to avail himself of all his legal rights in the court below. The cause was referred at November term, 1832; pending the term, to wit, on the 18th of January, 1833, the award was filed in court; the cause was then continued until the next term, viz., the fourth Monday in March, 48. Courts of equity have jurisdiction to en1833; at which time the parties appeared by force specific performance of an award respecttheir attorneys, and upon motion, and after argu-ing real estate. But he who seeks performance, ment of counsel, judgment was entered. We must show a readiness to perform all the award are bound to presume, in the absence of all evi- on his part. Green v. Darley, 5 Mason's C. C. dence to the contrary, that all things were right- R. 201. fully and regularly done by the court, and that the parties were fully heard upon all the matters properly in judgment. Ibid.

4. Exceptions to an Award.

41. Where exceptions have been filed in due time to the report of referees, the court will, upon good cause shown, permit an additional exception to be filed after the four days, although the filing of exceptions in the first instance would not be allowed after that period. Thellusson v. Crammond, 1 Wash. C. C. R. 319.

42. A bill in equity to set aside the report of referees, will not be sustained, where the grounds assigned are such as would have been open to the party at law, by filing exceptions to the report. Hurst v. Hurst, 2 Wash. Ĉ. C. R. 127.

43. Where referees make a plain mistake in a matter of law, it constitutes a valid objection to their report. Kelly v. Johnson et al., 3 Wash.

C. C. R. 45.

5. Performance and Enforcing an Award. 47. Equity either enforces an award as it is made, or sets it aside, if defective; it does not confirm the award so far as it extends, and supply omissions by a decree. Peisch v. Ware et al., 4 Cranch, 347; 2 Cond. Rep. 137.

49. After a long delay, and laches, a court of equity will not decree a specific performance of an award, especially where there has been a material change of circumstances, and injury to the other party. Ibid.

50. A fortiori, it will not decree it against purchasers, even with notice, if their vendee is dead and insolvent, so that there can be no remedy over. Ibid.

51. Query, If an award respecting real property is required to be registered by the laws of Massachusetts? Ibid.

ARGUMENT OF A CAUSE.

1. The supreme court will not compel a cause to be heard, unless the citation has been served thirty days before the first day of the term. Welsh v. Mandeville, 5 Cranch, 321; 2 Cond. Rep. 268.

44. Where claims against a party, both in his 2. Unless statements of the case are furnished own right, and in a representative character, are to the supreme court, pursuant to their rules, the submitted to the award of arbitrators, it is a causes will be either dismissed or continued. valid objection to the award, that it does not dis- Peyton v. Brooke, 3 Cranch, 92; 1 Cond. Rep. tinguish precisely between moneys which are to 464.

Χ

Argumentativeness in Pleading.-Arkansas Territory.-Army of the United States.

3. If the appellant's counsel neglect to furnish the supreme court with a statement of the points, pursuant to the rule of the court, the appeal will be dismissed. The Catharine v. U. S., 7 Cranch, 99.

4. The supreme court will not rehear a cause after the term in which it is decided. Anonymous, 7 Cranch, 1.

5. The supreme court will not hear more than two counsel on one side, whatever may be the number of points in the cause. Ibid.

the petitioner, Sampeyreac, by the Spanish government, prior to the cession of Louisiana to the United States, by the treaty of April 3, 1803. This claim was opposed by the district attorney of the United States; and the court, after hearing evidence, decreed that the petitioner recovered the land from the United States. Afterwards, the district attorney of the United States, proceeding on the authority of the act of 8th May, 1830, filed a bill of review, founded on the allegation that the original decree was obtained by fraud and surprise; that the documents produced in support of the claim of Sampeyreac were forged; and that the witnesses who had been examined to sustain the same were perjured. At a subsequent term, Steward was allowed to become a defendant to the bill of re

6. The rule that but two counsel shall be heard, has been dispensed with in a cause of great public importance, where the sovereign rights of the United States and a state were involved, and the government of the United States had directed the attorney-general to appear for one of the parties. M'Culloch v. State of Mary-view, and filed an answer, in which the fraud land, 4 Wheat. 316, 322; 4 Cond. Rep. 466.

7. It is too late to grant a rehearing in a cause, after it has been remitted to the court below, to carry into effect the decree of the supreme court, according to its mandate; and a subsequent appeal from the circuit court, for supposed error in carrying into effect such mandate, brings up only the proceedings subsequent to such mandate, and does not authorize an inquiry into the merits of the original decree. Browder v. M'Arthur, 7 Wheat. 58; 5 Cond. Rep. 236.

and forgery are denied, and in which he asserts that if the same were committed, he is ignorant thereof; and asserts that he is a bona fide purchaser of the land for a valuable consideration, from one John J. Bowie, who conveyed to him the claim of Sampeyreac by deed, dated about the 22d October, 1823. On a final hearing, the court, being satisfied of the forgery, perjury, and fraud, reversed the original decree. Held, that these proceedings were legal, and were authorized by the act of the 5th of May, 1830. Sam8. Whatever had been formally before the peyreac et al. v. The U. S., 7 Peters, 222. court, and disposed of by the decree, is consi- 2. Almost every law providing a new remedy, dered as finally disposed of. But upon all pro-affects and operates upon causes of action existceedings to carry into effect the decree of the ing at the time the law is passed. The law of court, the original proceedings are always before 1830 is in no respect the exercise of judicial the court, so far as they are necessary to deter-powers; it only organizes a tribunal with the mine any new points or rights in controversy between the parties, which were not terminated by the original decree. Ibid.

9. The court are not bound to notice in the charge to the jury a point of law embraced in the argument, unless their opinion upon it was explicitly required. U. S. v. Fourteen Packages, 1 Gilpin's D. C. R. 252.

powers to entertain judicial proceedings. The act, in terms, applies to bills filed, or to be filed. Such retrospective effect is no unusual course in laws providing new remedies. Ibid.

3. The act of congress of 1830 does not require that all the technical rules in the ordinary course of chancery proceedings on a bill of review, shall be pursued in proceedings instituted under the law. Ibid.

ARGUMENTATIVENESS IN PLEADING.

The bill asserted notice in the defendant of an alleged fraud; the denial of the plea was, "that this defendant had no notice of any title, claim, or demand of the complainant, or of any other person, to or in the lands so purchased by this defendant, as aforesaid, which could affect the same, or any of them, or any part thereof." Held, that this plea is argumentative and insufficient. The plea should expressly, and in terms, deny, by proper averments, notice of the fraud charged in the bill. Wood v. Mann, 1 Sumner's

C. C. R. 506.

ARKANSAS TERRITORY.

1. Under the provisions of an act of congress, passed on the 26th May, 1824, proceedings were instituted in the superior court of the territory of Arkansas, by which a confirmation was claimed of a grant of land alleged to have been made to

ARMY OF THE UNITED STATES.

1. The adjutant and inspector-general of the army of the United States, was not entitled to double rations, from the 30th September, 1818, to the 31st May, 1821. Parker v. The United States, 1 Peters, 296.

2. The president of the United States has a discretionary power to allow such additional number of rations, to officers commanding at

parate posts, as he may think just, having respect to the special circumstances of each post. The law granting this authority is not imperative; and in the exercise of his discretion, the president may allow or refuse to allow additional rations, as in his opinion he may deem proper. Ibid.

3. The secretary of war, as the legitimate organ of the president, under a general authority from him, may exercise the power, and make the allowance, to officers having a separate command. Ibid.