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to pay a collateral sum upon request, as where the defendant promised to pay a certain sum upon request, if he failed to perform an award ; in which case an actual request must be alleged and proved. In all other cases, where the award is for money which is not paid, the burden of proof is on the defendant to show that he has paid the sum awarded, the bringing of the action being a sufficient request. The averment of a promise to pay will be supported by evidence of an agreement to abide by the decision of the arbitrators.

§ 77. Performance. Where the thing to be done by the defendant depends on a condition precedent, to be performed by the plaintiff, such performance must be averred and proved by the plaintiff. And if by the terms of the award acts are to be done by both parties on the same day, as where one is to convey land, and the other to pay the price, there, in an action for the money, the plaintiff must aver and prove a performance, or an offer to perform, on his part, or he cannot recover; for the conveyance, or the offer to convey, from the nature of the case, was precedent to the right to the price.3

$.78. Defence. In defence of an action on an award, or for not performing an award, the defendant may avail himself of any material error or defect, apparent on the face of the award; such as excess of power by the arbitrators ;4 defect of execution of power, as by omitting to consider a matter submitted ;5 (a) want of

1 Birks v. Trippet, 1 Saund. 32, 33, and n. (2), by Williams. If the reference is general, and the arbitrator directs the payment to be made at a certain time and place, this direction may be rejected as surplusage. Rees v. Waters, 4 D. & L. 567; 16 M. & W. 263.

2 Efner v. Shaw, 2 Wend. 567.
8 Hay v. Brown, 12 Wend. 591.

4 Morgan v. Mather, 2 Ves. 18; Fisher v. Pimbley, 11 East, 189; Macomb v. Wilbur, 16 Johns. 227; Jackson v. Ambler, 14 Johns. 96. See also Commonwealth v. Pe. jepscot Propr's, 7 Mass. 399.

6 Mitchell v. Stavely, 16 East, 58; Bean v. Farnam, 6 Pick. 269. But not unless the omission is material to the award. Davy v. Faw, 7 Cranch, 171; Harper v. Hough, 2 Halst. 187; Doe v. Horner, 8 Ad. & El. 235.

(a) In submissions to arbitration a Willes, 270, says: “Were it not for the clause is often inserted, called the ita cases, I should be of opinion that when all qiload" clause, which is, in effect, a con- matters are submitted, though without dition that the award shall not be valid such condition, all matters must be deunless it decides all the questions sub- termined, because it plainly was not the mitted to it; whether a partial award, intention of the parties that some matters under a submission which has no such only should be determined, and that they clause in it, is valid or not, depends on should be at liberty to go to law for the the construction of the submission. The rest.” The prevalent rule is thus stated by earlier decisions were in favor of the valid. Morse, on Arbitration, p. 342. "The court ity, but Willes, J., in Bradford v. Bryan, will look at the language of the submission

certainty to a common intent;1 (a) or plain mistake of law as allowing a claim of freight, where the ship had never broken ground ;? and the like. In regard to corruption or other misconduct or mistake of the arbitrators in making their award, the common law seems not to have permitted these to be shown in bar of an action at law for non-performance of the award ; but the remedy must be pursued in equity. But in this country, in those States where the jurisdiction in equity is not general, and does not afford complete relief in such cases, it has been held, that, if arbitrators act corruptly, or commit gross errors or mistakes in making their award, or take into consideration matters not submitted to them, or omit to consider matters which were submitted, or the award be obtained by any fraudulent practice or suppression of evidence by the prevailing party, the defendant may plead and prove any of these matters in bar of an action at law to enforce

1 Jackson v. Ambler, 14 Johns. 96.

? Kelly v. Johnson, 3 Wash. 45. See also Gross v. Zorger, 3 Yeates, 521; Ross v. Overton, 3 Call, 309; Morris v. Ross, 2 H. & M. 408; Greenough v. Rolfe, 4 N. H. 357; Ames v. Milward, 8 Taunt. 637.

8 Watson on Arbitrations, p. 153, in 11 Law Lib. 79; Shepherd v. Watrous, 3 Caines, 166; Barlow v. Todd, 3 Johns. 367; Cranston v. Kennedy, 9 Johns. 212; Van Cortlandt v. Underhill, 17 Johns. 405; Kleine v. Catara, 2 Gallis. 61; Sherron v. Wood, 5 Halst. 7; Newland v. Douglas, 2 Johns. 62. In practice, where no suit is pending, arbitrations are now generally entered into under the statutes, enacted for the purpose of making the submission a rule of court; and in all cases where the submission is made a rule of court, the court will generally administer relief, wherever it could be administered in equity.

in its every part, and, from a consideration ence. Giddings v. Hadaway, 28 Vt. 342. of the whole, will determine the matter of An award is not valid which provides for intent. If the reasonable construction the payment, by one of the parties to the appears to be that the parties intended submission, of a certain sum, after making to have everything decided, if anything deductions therefrom of sums not fixed by, should be, then a decision of all matters or capable of being ascertained from, the submitted will be imperatively required; award. Fletcher v. Webster, 5 Allen but if anything in the submission indicates (Mass.), 566. In Waite v. Barry, 12 Wend. a contrary purpose, a partial award will be (N. Y.) 377, Sutherland, J., said: “It is sustained.

essential to the validity of an award, that it (a) Clark v. Burt, 4 Cush. (Mass.) 396; should make a final disposition of the matRoss v. Clifton, 9 Dowl. Prac. Cas. 360. ters embraced in the submission, so that An award defining a boundary will be de- they may not become the subject or occafeated by proof that there were no such sion of future litigation between the parties. monuments as are referred to in the award, It is not indispensable that the award for the purpose of locating the boundary. should state, in words or figures, the preBut a want of certainty in the award in cise amount to be paid. If nothing remain this respect alone will not affect another to be done, in order to render it certain portion of the same award, determining and final, but a mere ministerial act, or an that one party had trespassed upon the arithmetical calculation, it will be good.” land of the other, and awarding to the Cf. Wakefield v. Llanelly Railway & Dock latter party his damages and costs, though Company, 11 Jur. n. s. 456; Tidswell, the trespass was upon the same land to in re, 33 Beav. 213; Ellison v. Bray, 9 which the disputed boundary had refer- L. T. n. s. 730.

the award.' (a) And though arbitrators, ordinarily, are not bound to disclose the grounds of their award, yet they may be examined to prove that no evidence was given upon a particular subject;3 or, that certain matters were or were not examined, or acted on by them, or that there is mistake in the award ;' and also as to the time and circumstances under which the award was made, and as to any facts which transpired at the hearing. (b) Fraud .in obtaining the submission may be given in evidence under the plea of non assumpsit, or nil debet, by the common law." (c)

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1 Bean v. Farnam, 6 Pick. 269; Brown v. Bellows, 4 Pick. 183; Parsons v. Hall, 3 Greenl. 60; Boston Water Power Co. v. Gray, 6 Metc. 131; Williams v. Paschall, 3 Yeates, 564.

2 Ante, vol. i. § 249.
8 Martin v. Thornton, 4 Esp. 180.

Roop v. Brubacker, 1 Rawle, 304; Alder v. Savill, 5 Taunt. 454; Zeigler v. Zeigler, 2 S. & R. 286. If, upon a submission of “all matters in difference," the parties omit to call the attention of the arbitrator to a matter not necessarily before him, they cannot object to the award on the ground that he has not adjudicated upon it. Rees v. Wa. ters, 16 M. & W, 263. 5 Woodbury v. Northy, 3 Greenl. 85; Lincoln v. Taunton Manuf. Co., 8 Cush.415.

Gregory v. Howard, 3 Esp. 113. ? Sackett v. Owen, 2 Chitty, 39

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(a) Strong v. Strong, 9 Cush. (Mass.) 3 Dowl. 669; Halstead v. Seaman, 82 560; Lincoln v. Taunton Copper Manuf. N. Y. 27. Co., 8 Id. 415; Leavitt v. Comer, 5 Id. 129; (6) They may testify to any facts tendFrench v. Richardson, Id. 450; Briggs v. ing to show that the awardis void for Smith, 20 Barb. (N. Y.) 409; French v. legal cause, Strong v. Strong, 9 Cush. New, Id. 481; Taylor v. Sayre, 4 Zabr. (Mass.) 560, as that they did not suppose (N. J.) 647; Tracy v. Herrick, 25 N. H. the reference was final, Huntsman v. 381. See also Morgan v. Smith, 9 Mees. Nichols, 116 Mass. 521. The testimony & W. 427; Angus v. Redford, 11 Id. 69; of referees is admissible to identify niatters Cramp v. Adney, 3 Tyrwhitt, 370. An submitted to then, and to show that they award made in pursuance of a reference acted on them; but a written submission under a rule of court will not be set aside or award cannot be varied or explained by for alleged mistakes of law on the part of parol. Buck v. Spofford, 35 Me. 526. the referees, unless they have themselves Declarations by an arbitrator, some days been misled, or unless they refer questions after making and publishing his award, of law to the court. Fairchild v. Adams, are incompetent to impeach it. Hubbell 11 Cush. (Mass.) 549 ; Bigelow v. Newell, v. Bissell, 2 Allen, (Mass.) 196. 10 Pick. (Mass.) 348. When all claims and (c) It has been considered, in courts of demands between the parties are submitted law in some States, contrary to the gen. to arbitration, it will be intended that the eral practice, that all defences to awards, arbitrators have decided all matters sub- where the submission and award were in mitted to them, although they do not so writing and under seal, for matters not state in their award, unless the contrary apparent upon the papers, must be pursued appears. Tallman v. Tallman, 5 Cush. in equity. And this rule has been consid. (Mass.) 325 ; Clement v. Comstock, 2 ered to rest, as to mistake of the arbitrators, Mich. 359. An award made twelve years and irregularity of conduct by them, upon after the submission is invalid, unless the same ground that courts have refused sufficient reason is shown for the delay. to set aside a written contract between par. Hook v. Philbrick, 23 N. H. 288. The ties in a trial at law, upon the alleged refusal of an arbitrator to examine wit- grounds that, by mistake, the contract did nesses is sufficient misconduct on his not read as it was intended to. And in part to induce the court to set aside his regard to the conduct of the arbitrators, award, though he thinks he has sufficient it has been considered, in some of the evidence without them. Phipps v. Ingram, cases certainly, that the arbitrators were

§ 79. Revocation. The defendant may also show, that the authority of the arbitrators was revoked before the making of the award. And the death of either of the parties to a submission at common law, before the award made, will amount to a revocation; unless it is otherwise provided in the submission.2 Whether bankruptcy is a revocation, is not clearly settled. Where the submission is at common law, and even where it is under the statute, but is not yet made a rule of court, it seems that either party may revoke the authority of the arbitrators; though he may render himself liable to an action for so doing.4 (a) But if the submission is by two, a revocation by one only is void. If the

1 Edmunds v. Cox, 2 Tidd's Pr. 877; s. c. 3 Doug. 406; s. c. 2 Chitty, 422; Cooper v. Johnson, 2 B. & Ald. 394; Potts v. Ward, 1 Marsh. 366; Toussaint v. Hartop, 7 Taunt. 571. But if the submission is under a rule of court, and the action survives, it is not revoked by death. Bacon v. Crandon, 15 Pick. 79.

? Macdougall v. Robertson, 2 Y. & J. 11; s. C. 4 Bing. 435.

3 Marsh v. Wood, 9 B. & C. 659; Andrews v. Palmer, 4 B. & Ald. 450; Ex parte Remshead, 1 Rose, 149.

4 Skee v. Coxon, 10 B. & C. 483; Milne v. Gratrix, 7 East, 608; Clapham v. Higham, 1 Bing. 27; 7 Moore, 703; Greenwood v. Misdale, 1 McCl. & Y. 276; Brown v. Tanner, Id. 464; s. c. 1 C. & P. 651; Warburton v. Storer, 4 B. & C. 103; Vynior's Case, 8 Co. 162; Frets v. Frets, 1 Cow. 335; Allen v. Watson, 16 Johns. 205; Fisher v. Pimbley, 11 East, 187; Peters v. Craig, 6 Dana, 307; Marsh v. Bulteel, 5 B. & Ald. 507 ; Grazebrook v. Davis, 5 B. & C. 534, 538; Brown v. Leavitt, 13 Shepl. 251; Marsh p. Packer, 5 Washb, 198.

6 Robertson v. McNeill, 12 Wend. 578.

necessary parties to any proceedings based at the request of one of the parties, to upon such a charge. Mere mistakes, or whom the substance of the result at which irregularity, short of positive corruption, they arrived was known, and these facts might not require any explanation at the were not communicated to the other party. hands of the arbitrators. And it is diffi- So, also, if they decided upon the matters cult to perceive how, in any case, they are submitted to them before giving notice of proper parties to a litigation, in regard to a hearing to one of the parties. Conrad v. the validity of the award, and we doubt Massasoit Insurance Co., 4 Allen (Mass.), whether, upon principle, any corruption 20. See Wilson v. Concord Railroad Comin the arbitrator or judge, unless with the pany, 3 Allen (Mass.), 194. See Tidswell, procurement or privity of the prevailing in re, 33 Beav. 213; Brook et al., in re, party, is any defence to an award, in a 15 C. B. N. S. 403 ; 10 Jur. N. S. 704 ; court of law. And if the corruption of Proctor v. Williams, 8 C. B. N. 8. 386; the arbitrator be with the privity of the Angus v. Smythies, 2 F. & F. 381. It party, it is fraud, and is equally a defence seems that arbitrators may decline to hear at law and in equity, as well to special- counsel. Macqueen, in re, 9 C. B. N. 8. ties as simple contracts. But this is per- 793. hapis not yet determined as to awards. (a) A submission to arbitrators, if it is See Woodrow v. O'Connor, 28 Vt. 776. not founded on any consideration, may be An award which is operative as a final and revoked by the party submitting at any conclusive adjustment of all matters be time before the award is delivered; but it tween the parties, is not vitiated by an is not so when it is made under an agreeorder requiring them to execute mutual ment founded on sufficient consideration. releases. Shepherd v. Briggs, 28 Vt. 81. Paist v. Caldwell, 75 Pa. St. 161. When An award is rightly rejected, if, previously the submission has been made a rule of to the selection of the arbitrators, a portion court, it cannot be revoked, though not of them made an ex parte examination of founded on any consideration. Lewis's the matter afterwards submitted to them, Appeal, 91 Pa. St. 359.

reference is made an order of a court of equity, the revocation of the authority of the arbitrators is a high contempt of the court, and, upon application of the other party, will be dealt with accordingly.' If a feme sole, having entered into a submission to arbitration, takes a husband, the marriage is a revocation of the submission; but it is also, like every other revocation, by the voluntary act of the party, a breach of the covenant to abide by the award.? § 80. Disability.

The defendant may also show, in defence, that one or more of the parties to the submission was a minor, or a feme covert, and that therefore the submission was void for want of mutuality:3 So, he may show that the arbitrators, before making their award, declined that office; for thereupon they ceased to be arbitrators. (a)

§ 81. Pleadings. Where the action is assumpsit upon a submission by parol, the plea of non assumpsit, where it is not otherwise restricted by rules of court, puts in issue every material averment. Under this issue, therefore, the defendant may not only show those things which affect the original validity of the submission, or of the award, such as infancy, coverture, want of authority in the arbitrators, fraud, revocation of authority, intrinsic defects in the award, and, if there is no other mode of relief, extrinsic irregularities also, such as want of notice and the like; but he may also show anything which at law would defeat and destroy the action, though it operate by way of confession and avoidance,

1 Haggett v. Welsh, 1 Sim. 134; Harcourt v. Ramsbottom, 1 Jac. & Walk. 511. 2 Charnley v. Winstanley, 5 East, 266 ; Andrews v. Palmer, 4 B. & Ald. 252.

3 Cavendish v. -, 1 Chan. Cas. 279; Biddell v. Dowse, 6 B. & C. 255. But it is not a good objection, that one was an executor or administrator only, for he has authority to submit to arbitration. Coffin v. Cottle, 4 Pick. 454 ; Bean v. Farnam, 6 Pick. 269 ; Dickey v. Sleeper, 13 Mass. 244.

4 Relyea v. Ramsay, 2 Wend. 602; Allen v. Watson, 16 Johns. 203.

(a) In debt upon an award of arbitra- mation of a contract between the parties tors, it is proper to show by parol, under to the submission; and if the submission the general issue, that the arbitrators had make no provision for an award on Sunday, no power to make and publish their award and the parties complete the hearing before at the time and in the manner they did; the arbitrators previous to twelve o'clock and therefore, under that plea, the ques. on Saturday night, and then cease to tion may be raised, whether an award is exercise any control as to the time of makvalid which was made on Sunday morn- ing the award, its validity as to them will ing, after a hearing completed just before not be affected either at common law, or twelve o'clock on Saturday night, and under the Vermont statute, regulating the parol evidence may be introduced to show observance of the Sabbath, by the fact that that it was so made. A judgment rendered the arbitrators make and publish their on Sunday is void at common law; but an award at three o'clock on Sunday morning. award is not a judgment, but the consum. Blood v. Bates, 31 Vt. 147.

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