2489. As to the matters referred, it is to be observed that the extent of the submission may be various, according to the pleasure of the parties; it may be of only one or of all civil matters in dispute, but no criminal matter can be referred. When a case already in court is submitted to arbitration, the arbitrator may determine such additional matters as the court could allow to be brought in by amendment.108 The arbitrator has the same power as the court.109 Except under statutes costs cannot be awarded unless included in the submission.1 110 2490. A submission is somewhat similar to a compromise; by the former the parties select judges who are to decide how the parties are to settle their disputes; by the latter, the parties themselves become their own judges, and arrange the mode of settlement. In both, the parties may bind themselves under a penalty to fulfil the agreement. 2491. When there is but one party to the submission on each side they both must agree, but this need not be done in person; and sometimes they will be presumed to have given their consent when there is no evidence of it; for example, an attorney may refer a matter to arbitration without any special authority of his client, so may selectmen of a town, who are its general agents,' or the agents of a town specially appointed to prosecute or defend a suit.113 112 2492. One who is appointed by law to manage the affairs of another may submit a matter in dispute between himself, in his character of guardian or trustee, and another.114 An administrator or executor submits to arbitration at his peril, but this rule is modified in some states by statute.115 2493. In order to submit to an arbitration the party must be sui juris; an infant cannot, therefore, make a valid submission to arbitration.116 2494. When there are several persons, either as plaintiffs or defendants, for example, partners who are jointly entitled or jointly bound, the submission of one for himself and his associates is good." 117 2495. As arbitrators are judges between the parties, they must be sui juris; they ought to have no interest in the matter in dispute and be perfectly indifferent between the parties." 118 An infant cannot, in general, be appointed an arbitrator, nor can a married woman fill that office; yet instances may be found where such a woman has been an arbitratrix.119 The fact that the arbitrator is interested, or closely connected with the opposite party, will, in general, disqualify him to act; but if a person so situated should, either through inattention, or because of the high opinion entertained 108 Summer v. Brown, 34 Vt. 194; Cook v. Carpenter, 34 Vt. 121; Barksdale v. Greene, 29 Ga. 418. 109 Plant v. Fleming, 20 Cal. 92. 110 Morrison v. Buchanan, 32 Vt. 289. 111 Somers v. Balabrega, 1 Dall. 164; Holker v. Parker, 7 Cranch, 436; Talbot v. McGee, 4 T. B. Monr. Ky. 377; Buckland v. Conway, 16 Mass. 396. But see Alton v. Gilmanton, 2 N. H. 488; Haynes v. Wright, 4 Hayw. Tenn. 65. 112 Boston v. Brazer, 11 Mass. 449. But see Griswold v. N. Stonington, 5 Conn. 367. 113 Schoff v. Bloomfield, 8 Vt. 472. 114 Weed v. Ellis, 3 Caines, N. Y. 253; Weston v. Stuart, 11 Me. 326; Hutchins v. Johnson, 12 Conn. 376. 115 Overly v. Overly, 1 Metc. Ky. 117. 116 Baker v. Lovett, 6 Mass. 80; Britton v. Williams, 6 Munf. Va. 458. 117 Wilcox v. Singleton, Wright, Ch. Ohio, 420; Southard v. Steele, 3 T. B. Monr. Ky. 435. 118 An award will be set aside if the arbitrator avows an opinion before hearing the case. Bowen v. Steere, 6 R. I. 251; Taber v. Jenny, 1 Sprague, Dist. Ct. 315. 119 Kyd, Awards, 71. VOL. II.-D 25 of his integrity and judgment, be appointed an arbitrator, the party will not be allowed afterward to impeach the award on the ground of an improper appointment, unless such appointment was made under a mistake.120 For if the interest of the arbitrator in the subject of reference, or his relationship to the opposite party, being unknown at the time of the nomination, arose, or were discovered subsequently, the party aggrieved would probably be relieved.121 The award should be made also by a man who is not infamous; an award made by a man convicted of perjury was set aside." 122 When there are several arbitrators it is usual to authorize them in the submission, in case of disagreement, to appoint another arbitrator, who is called an umpire. When this power is delegated it must be properly exercised, and not left to chance; as where the arbitrators, not being able to agree as to the person proper to be appointed, cast lots which of the arbitrators should have the nomination of the umpire; this was considered as an improper mode of nominating the umpire, and the court set aside the award.123 Where there are several arbitrators they must all hear and decide upon the case, although the opinion of a majority may by the terms of submission be conclusive. 124 on 2496. The judgment of the arbitrators is called an award, and the paper which the judgment is written bears the same name.125 To make a good award it must have the following qualities: it must conform to the submission, it must be certain, it must be mutual, it must be possible, lawful, and reasonable, it must be final, it must be formal, and it must have some effect. When there are several arbitrators the award must be made by all unless otherwise agreed,126 and notice must be given to the parties of the rendering of the award. The usual mode of publication is by giving a copy of the award to each party, 128 but this is not requisite in proceedings under the common law, 129 2497. The arbitrators being judges selected for a particular purpose and having no other jurisdiction than that given them by the submission, it is manifest that the award must be confined within the powers given to the arbitrators, because if their decision extends beyond such authority, this is an assumption of power not delegated, and which cannot, therefore, legally affect the parties.130 But if the arbitrators transcend their authority, their award is not absolutely void, it is void only pro tanto, and if the void part does not affect the merit of the submission, the residue will be valid.131 120 Wilson v. Concord R. R., 3 All. Mass. 194; Davis v. Forshee, 34 Ala. N. s. 107. 121 See Earle v. Stocker, 2 Vern. Ch. 251. 122 Parker v. Burroughs, Colles, P. C. 257. So if the arbitrator is intoxicated at the hearing. Smith v. Smith, 28 Ill. 56. 123 Harris v. Mitchell, 2 Vern. Ch. 485; Wills v. Cooke, 2 Barnew. & Ald. 218. 124 Sperry v. Ricker, 4 All. Mass. 17. 125 Comyn, Dig. Arbitrament, E; Bacon, Abr. Arbitrament, E; Kyd, Aw.; Caldwell, Arb.; 3 Viner, Åbr. 52, 372; Watson, Arb.; 1 Saund. 326, n. 1, 2, and 3; Dane, Abr. c. 13. 126 Eames v. Eames, 41 N. H. 177; Smith v. Walden, 26 Ga. 249. 127 Francis v. Ames, 14 Ind. 251, contra in Illinois; Denman v. Bayless, 22 Ill. 300. 128 Plummer v. Morrill, 48 Me. 184. 129 Carson v. Earlywine, 14 Ind. 256. 130 Solomons v. McKinstry, 13 Johns. N. Y. 27; Bean v. Farnam, 6 Pick. Mass. 269; Black v. Hickey, 48 Me. 545. The award is presumed to be within the term of the submission. Hubbard v. Firman, 29 Ill. 90; Blair v. Wallace, 21 Cal. 317. And it will not be set aside, although the arbitrators have exceeded their powers, unless the objecting party has been injured thereby. Daniels v. Willis, 7 Minn. 374. 131 Taylor v. Nicholson, 1 Hen. & M. Va. 67; 1 Rand. Va. 449; McBride v. Hogan, 1 Wend. N. Y. 326; Clement v. Durgin, 1 Me. 300; Skellings v. Coolidge, 14 Mass. 43; Peters v. Pierce, 8 Mass. 399; Martin v. Williams, 13 Johns. N. Y. 264; Bacon v. Wilber, 1 Cow. N. Y. 117. Thus, if the referee exceeds his authority in awarding costs, still the award is good as to the principal sum. Hubbell v. Bissell, 2 All. Mass. 196; Garitee v. Carter, 16 Md. 309. When a time is prescribed within which the award must be made, it will not be valid if not made within that time.132 When the submission is by agreement of the parties, either by parol, agreement, or by deed, the authority of the arbitrators may be revoked at any time before the making of the award, leaving the party who revokes liable to an action upon his agreement The arbitrators then have no further authority, and an award made afterward is void, unless it has been provided otherwise in the submission.133 And the death of either of the parties to a submission, before the award made, will at common law amount to a revocation.134 When the submission is made a rule of court, it cannot be revoked by the parties,135 nor is the death of either of them a revocation.136 2498. The award ought to be certain, and it must be so expressed that no reasonable doubt can arise on the face of it as to the arbitrators' meaning, or the nature and extent of the duties imposed by it on the parties.137 An example of such uncertainty may be found in the following cases: an award directing one party to bind himself in an obligation for the quiet enjoyment of lands without expressing in what sum the obligor should be bound 138 Again, an award that one should give security to the other for the payment of a sum of money, or the performance of any particular act, when the kind of security is not specified.139 But an award is sufficiently certain if its meaning can be ascertained and reduced to a certainty; as, where it directed that one of the parties should pay the costs of a suit without mentioning the amount, because the amount can be ascertained by taxation; or where the sum awarded can be ascertained by reference to an account annexed to the award.141 The arbitrator need not find specially on each material question submitted to him. It is enough if he states a general conclusion which involves a finding on all the issues.142 An award which directs the payment of a certain sum annually to the plaintiff during his life is sufficiently certain.143 2499. An award must be mutual, that is, it must affect both parties; when it gives satisfaction to one it must discharge the other, for otherwise it would be unjust. If, for example, the arbitrator should award to one of the parties fifty dollars, to be paid to him by the other, where a case of trespass had been submitted without saying for what this money is to be paid, the award would be void, because if the defendant paid it he would still be liable for the trespass; but if from the words of the award it appeared that the trespass was discharged, it would be good.1 Another example will fully explain this mat Bacon, Abr. Arbitrament, D; Mills v. Con- 132 Smith v. Spencer, 1 M'Cord, Ch. So. C. 93; ner, 1 Blackf. Ind. 7; Hall v. Hall, 3 Conn. 308; the parties may extend the time by agreement. 133 McDougall v. Robertson, 2 Younge & J. Exch. 11; 4 Bingh. 435; Davis v. Maxwell, 27 Ga. 368. 134 Edmunds v. Cox, 3 Dougl. 406; Cooper v. Johnson, 2 Barnew. & Ald. 394. 135 Dexter v. Young, 40 N. H. 130. 136 Bacon v. Crandon, 15 Pick. Mass. 79. 137 Grier v. Grier, 1 Ďall. 173; Purdy v. Delavan, 1 Caines, N. Y. 304; King v. Cook, T. U. P. Charlt. Ga. 288; Gonsales v. Deavens, 2 Yeates, Penn. 539; Hazeltine v. Smith, 3 Vt. 535; Barnet v. Gilson, 3 Serg. & R. Penn. 340; Jackson v. DeLong, 9 Johns. N. Y. 43. 138 Rolle, Abr. Arbitrament, Q, 4. 139 Bacon, Abr. Arbitrament, E. See Thomas v. Molier, 3 Ohio, 267; Lawrence v. Hodgson, 1 Younge & J. Exch. 16; Thornton v. Carson, 7 Cranch, 596. 140 Macon v. Crump, 1 Call, Va. 575; Cargey v. Aitcheson, 2 Barnew. & C. 170; 2 Bingh. 199; Gudgell v. Pettigrew, 26 Ill. 305. 141 Farr v. Johnson, 25 Ill. 522. 142 Grant v. Morse, 22 N. Y. 323; Trustees v. Huston, 12 Ind. 276. 143 Remelee v. Hall, 31 Vt. 582. 144 Bacon, Abr. Arbitrament, E, 3; Rolle, Abr. 253. But the rule that the award must ter. Suppose that Peter and Paul submit all actions brought by Peter against Paul, and all actions by Paul against Peter, and the arbitrators find that Peter shall be discharged of all actions brought by Paul, without disposing of the other matters submitted to them, the award is void.145 2500. The award must be of a thing possible, lawful, and reasonable. An award that could not by any possibility be performed, as if it directed that the party should deliver a deed which it was proved had been burned and totally destroyed, or to pay money at a day past, would be clearly void; but if it directed a man to pay a certain sum of money which the defendant was not then able to pay, it would be good, because the defendant might become able to do so, either by making the money, or it might be given to him. Again, an award that a stranger, over whom the defendant has no power or control, shall do an act, is void, because the defendant cannot compel him. The thing ordered to be done must be lawful, for the law will not compel any one to perform an act which it forbids to be done; an award that a man shall commit a felony or a trespass is therefore void, and it would be equally void if it directed something contrary to the policy of law; as, that Paul should marry Mary, because it is against public policy that marriages should be constrained.146 And an award will be set aside if decided against the law or upon a mistaken view of the law.147 The award must also be reasonable, for if it be of things nugatory in themselves, and offering no advantage to either of the parties, it cannot be enforced,148 2501. The award must be final, that is, it must conclusively adjudicate of the matters submitted, or, at least, of so much as is decided upon; for as an award may be good for part only, it must be final as to that part.149 Thus, when the arbitrators award a thing not submitted, with a reservation to themselves of a future power of judging of the matter, and they award a thing within the submission, this is good as to the matter within the submission, for as to that it is final and void as to the residue.15 150 The ordinary provisions of the statutes as to arbitration of suits in court give` to the award the same effect as a verdict of a jury, and render it liable to be reversed or modified for error in law or for such mistakes of fact as would allow a new trial in court.151 But the parties may expressly stipulate that no appeal shall be taken.152 If the award is set aside, the court proceeds as if there had been no arbitration." 153 If the arbitrators are authorized to decide all questions of law, their decision on the law, fairly and deliberately made, is conclusive. The parties be mutual is not so strictly applied now as formerly. Harrell v. McAlexander, 3 Rand. Va. 94. See Weed ». Ellis, 3 Caines, N. Y. 254; Gordon v. Tucker, 6 Me. 247; Gaylord v. Gaylord, 4 Day, Conn. 422; Kunckle v. Kunckle, 1 Dall. 364. 145 Rolle, Abr. 253, pl. 2; Schuyler v. Vandeveer, 2 Caines, N. Y. 235. 146 Rolle, Abr. 252; 1 Swanst. Čh. 55. 147 Fitch v. Archibald, 5 Dutch. N. J. 160; Grimes v. Blake, 16 Ind. 160; Prescott v. Fellows, 41 N. H. 9. 148 Kirby, 253. 149 Bacon, Abr. Arbitrament, E, 5; Young v. Shook, 4 Rawle, Penn. 304; Grier v. Grier, 1 Dall. 173; Sutton v. Horne, 7 Serg. & R. Penn. 228; Carnochan v. Christie, 11 Wheat. 446. See Comyn, Dig. Arbitrament, E, 15; King v. Cook, T. U. P. Charlt. Ga. 289; Archer v. Williamson, 2 Harr. & G. Md. 67; Pearce v. McIntyre, 29 Mo. 423. 150 Palm. 146; Croke, Jac. 315, 584; Cromwell v. Owings, 6 Harr. & J. Md. 10; McCullough v. McCullough, 12 Ind. 487. 151 Farr v. Johnson, 25 Ill. 522; Roth v. Colvin, 32 Vt. 125. 152 Daniels v. Willis, 7 Minn. 374; Wynn v. Bellas, 34 Penn. St. 160. 153 Smith v. Smith, 28 Ill. 56. 154 White Mountains R. R. v. Beane, 39 N. H. 107; Austin v. Kimball, 12 Cush. Mass. 485. may make a collateral agreement in addition to the award without vitiating it, 155 2502. As to the form, the award may be by parol, that is, in writing, not by deed; or it may be by deed.156 But it ought to conform as to this to the requisitions of the submission; or, if it be under the provisions of a statute, it must be made according to its direction. 2503. When the submission was by parol, with mutual promises to perform the award, the remedy upon the award is by an action of assumpsit, and in such action the award is conclusive.157 When the submission was by deed, accompanied by an arbitration bond, which is a common bond, with a condition that the parties will abide by the award, in this case the remedy is by an action of debt for the penalty of the arbitration bond, or by an action of covenant upon the deed of submission.158 When the submission was made by a rule of court, the remedy may be by attachment for contempt in not obeying the order of the court, or by execution upon the judgment entered up pursuant to the rule of court or to the statute. If the submission was made by authority of a particular statute, the remedy which it provides must be pursued.. The award is in general conclusive, but it may be impeached for any material defect apparent upon its face, such as excess of power by the arbitrators, defect of execution of power by omitting to consider a matter submitted when such matter is important, or where a plain mistake of law has been made; as, where freight was allowed for a voyage where the ship had never broken ground. Fraud in obtaining the submission or in procuring the award by the successful party or corruption in the arbitrators will of course vitiate the award. When the submission was lawfully revoked, it is clear the arbitrators had no longer any power to make the award. This revocation may be in fact, or in law, as by death. 2504. An award does not so far affect property, real or personal, as to transfer the title to it by its mere force and operation. It is undisputed that when the award directs one to convey certain land to another, although an action will lie or an attachment may be granted in a proper case for not conveying the land, or equity will decree a specific performance of the award,159 yet the land does not pass by the mere force of the award.160 It has also been holden that a chattel does not pass by the award. All matters in difference between a landlord and tenant were submitted to arbitration; among other things it was awarded that the latter should deliver up to the former a stack of hay, then upon the premises, at a certain price to be paid for it by the landlord. The tenant refused to accept the money tendered, and would not deliver the hay, upon which the landlord brought an action of trover for it; the court held the action was not maintainable because the title to the hay did not pass by the mere force of the award." 161 But though the title to the property does not pass by the mere force of the award, yet the parties may submit to arbitration a dispute respecting the right 155 Wynn v. Bellas, 34 Penn. St. 160. 155 Unless required by statute or by the form of the submission an award need not be under seal. White v. Fox, 29 Conn. 570. 157 See Tallis v. Sewell, 3 Ohio, 513; Swicard v. Wilson, 2 Const. So. C. 218. 158 Where an arbitration bond binds the principal to abide by the award, his sureties are liable if he fails to pay a sum awarded to be paid over, and no demand is necessary. Washburne v. Lufkin, 4 Minn. 466; Plummer v. Morrill, 48 Me. 184. 159 Philbrick v. Preble, 18 Me. 255; Pawling v. Johnson, 6 Litt. Ky. 1; Jones v. Boston Mill Corp. 6 Pick. Mass. 148. 160 Denn v. Allen, 1 Penn. 48; Imlay v. Wikoff, 1 South. N. J. 132. 161 Hunter v. Rice, 15 East, 100. |