24. An award made upon a reference of all matters in difference between the parties does not preclude the plaintiff from suing upon a cause of action subsisting against the defendant at the time of the reference, upon proof that the subject matter of such action was not laid before the arbitrators, nor included in the matters referred. Ravee v. Farmer. 4 Term Rep. 146.

25. Where in an arbitration-bond the time was limited for the arbitrator to make his award, and the declaration stated that such time was afterwards enlarged by mutual consent, it was held that no action could be maintained on the bond to recover the penalty for not performing the award made after the time first limited. Brown v. Goodman.

3 Term Rep. 592, n. 26.

Two several tenants of a farm agreed with the succeeding tenant to refer certain matters in difference respecting the farm to arbitration, and jointly and severally promised to perform the award; the arbitrator awarded each of the two to pay a certain sum to the third: held that they were jointly responsible for the sum awarded to be paid by each. Minsell v. Burredge. Term Rep. 352. 27. Where the lessor of the plaintiff and the defendant in ejectment had before referred their right to the land to an arbitrator, who had awarded in favour of the lessor, the award concludes the defendant from disputing the lessor's title in an action of ejectment. Doe d. Morris v. Prosser. 3 East, 15. 28. Where parties by bond agreed to submit matters in difference between them to arbitration, aud that the submission should be made a rule of court, it is competent to either, even since the stat. 9 and 10 W. 3. c. 15. to revoke by deed his submission, and notify the same to the arbitrators before the authority be executed and he cannot be attached for a contempt of court, if after

such revocation and notice the arbitrators make an award, and the submission be made a rule of court. But it seems that it would be a contempt to revoke the submission after it had been made a rule of court. Milne and others, Assignees of Rhodes and another, Bankrupts v. Gratrix. 7 East, 608.

29. The submission being of all matters in difference between the parties, an award of so much to be paid by the defendant to the plaintiffs on their banking account, is binding between them; for no other matter in difference between them shall be intended, unless it be shewn; and the award is good for so much, though the arbitrators also awarded a sum to be paid by the plaintiffs to the defendant, out of a partnership fund in which others than the defendant were interested, who were no par ties to the submission. Ingram v. Melnes. 8 East, 445.

30. Where arbitrators, chosen by the parties, make a mistake in the calculation of the sum awarded, an action at law will not lie to correct the mistake. Newland v. Douglas. 2 Johns. Rep. 62.

31. The evidence of the arbitrators to prove such a mistake is inadmissi ble. Ib.

32. Where an award on the face of it, is final, nothing, dehors the award, can be pleaded, or given in evidence againt it. Barlow v. Todd. 3 Johns. Rep. 357. 33. The submission to arbitration was "so that the award, &c. should be delivered to the parties in difference, on or before a certain day," &c. In an action on the bond, the defendant pleaded, that no award was ready to be delivered to the parties, &c.; and the plaintiff replied that though no award was ready to be delivered to the defendant, yet an award was made and ready to be delivered to the plaintiff, and was delivered to him; on demurrer, the replication was held bad. Prait v. Hackett. 6 Johns. Rep. 14.

34. The authority given by the submission to arbitration, must be strictly pursued. Ib.

35. Where there was a parol submission to five persons, it was held, that all must join in the award. Green v. Miller. 6 Johns. Rep. 39. 36. The award of arbitrators appointed under a mutual mistake of both parties, in supposing themselves bound by law to submit the matter to arbitration, is not obligatory. Peisch v. Ware. 4 Cranch, 347.

II. Arbitrator and Umpire; Power of.

1. When a cause is referred to three persons with power to them, or any two of them, to make an award, an award made by two of them is good if the third had notice of the meetings, &c. Dalling v. Matchett. Willes, 215. But if the third had no such notice, then such an award is bad. Ibid. 2. An award that one party should pay another a sum of money, and that he should deliver up a bond (which gave rise to the dispute) to be cancelled, and that each party should give the other a mutual release to the day of the date of the said bond, is good. Bell v. Gipps. 2 L. Raym. 1141.

3. The election of an umpire (unless conditional) determines the authority of the arbitrators, though he refuses the umpirage.

Election of an umpire before the time for making the award expired, void. Reynolds v. Gray. 1 L. Raym. 222. A Salk. 70. See also, Mitchell v. Harris. 1 L. Raym. 671. 1 Salk.

71.

4. Arbitrators cannot award the costs of reference, unless power is expressly given to them for that purpose. Candler v. Fuller. Willes, 64. But they may award the costs of the cause without such special power. Ibid. n. a.

And if they award "the costs sustained in the action," it will not include the costs of the reference. Ibid.

5. Award that A. shall execute a covenant to indemnify B. is good. Philips v. Knightley. 2 Str. 903. 6. Upon affidavits that arbitrators appointed by submission under a rufe of court had been guilty of misconduct, and refused to hear the defence after hearing the plaintiff's case, the court will compel them to attend and examine their proceedings. Morris v. Reynolds. 2 L. Raym. 857. Salk. 73.

7. If arbitrators join with an umpire in his deed of umpirage, it is only surplusage, and the deed is good. Soulsby and Hodgson. 1 Black. 463. 8. If two partners refer all matters in difference between them, the arbitrator may dissolve the partnership. Green and Waring. 1 Blackstone, 475.

9.

The court of K. B. said, that an arbitrator may award costs without any express authority for that purpose. Roe d. Wood v. Doe. 2 Term Rep. 644.

10. But the court of C. P. held that, the general term costs in a rule of reference did not include the costs in that reference. Bradley v. Tunstow. 1 Bos. & Pull. 34.

11.

(And see Willes Rep. 64.) The court of C. P. held that an award of costs sustained in the action, did not include the costs of the reference. Browne v. Marsden. 1 H. Black. 223.

12. Arbitrators having power to choose an umpire may elect one immediately previous to entering upon the examination of the matter referred to them. 2 Term Rep. 644. 13. Assignees of a bankrupt, having received 1500l. from a debtor to the bankrupt as a debt due to his estate, and having commenced an action against him for a further demand on the same account, to which he had only pleaded the general issue, agreed with him to refer all matters in difference between the parties in the cause; the arbitrator has power to award that the assignees shall repay a part of the sum al

ready received, if it appear to have been paid by mistake. 2 Term Rep.

645.

14. The court of K. B. will not set aside the award of an umpire, because he received the evidence from the arbitrators without examining the witnesses, unless he were requested to re-examine them before the making of his award. Hall v. Lawrence. 4 Term Rep. 589. 15. So the court of C. P. refused to set aside an award on the ground of the witnesses not having been examined on oath, no objection being made at the time of their examination. Ridoat v. Pye. 1 Bos. & Pull. 91. 16. It is no ground for setting aside an award, that one of the defendant's witnesses was examined by the arbitrator after the evidence was closed on both sides, and the plaintiff's attorney gone; though by a different testimony from what he gave at first the arbitrator's opinion was influenced; unless such re-examination was brought about by the management of the defendant's attorney. Atkinson v. Abraham. 1 Bos. & Pull. 175.

17. If Â. and B., in consideration of a sum of money paid by one to the other, enter into partnership, and covenant in case of the dissolution of the partnership, to submit all matters relating thereto to arbitrators, to be chosen by the partners, one by each; this does not authorise the administratrix of one of the partners to name an arbitrator; nor would it authorise the arbitrators to determine whether any part of that sum should be refunded. Tattersall v. Groote. 2 Bos. & Pull.

131.

18. Semble no action can be maintain

ed for refusing to nominate an arbitrator, in pursuance of a covenant to refer matters to arbitration. 2 Bos. & Pull. 131. (And see Thompson v. Charnock. 8 Term Rep. 139. PLEADING VII.)

19. If a debt, arising out of an illegal

transaction, due from one of two partners to the other, be referred, together with other causes of dispute, to an arbitrator, who awards a sum due from one partner to the other, expressly on account of such debt, the court will set aside that part of the award. Aubert v. Maze. 2 Bos. & Pull. 371.

20. If an arbitrator profess to decide upon the law, and he mistake it, the court will set aside the award, although the arbitrator's reasons do not appear upon the face of the award, but only upon another paper delivered therewith. So it seems it would be if such reasons appeared in any other authentic manner to the court. Kent v. Elstob. 3 East, 18.

21.

An enclosure act having directed that the allotments made by the commissioners should forever remain for the benefit of the appointees held that an award and assignment of the herbage of a certain close to the surveyors of the highways and their successors for the benefit of the parish of B. though bad as a common law conveyance the appointees not being a corporation, was yet good as a parliamentary declaration of the persons entitled to take; the same as if the terms of the award had been specifically enacted. And the law of the manor in whom the fee of the soil remained, is a trustee for the surveyors of the highways for the time being. Johnson v. Hodgson. 8 East, 38. 22. After the delivery of the award, the arbitrators cannot, though within the time limited by the submission, correct a mistake in the calculation of figures, by making another award corresponding to the admitted proportions of the partnership fund. Irvine v. Elnon. s

East, 54. 23. An award that certain actions be discontinued, and each party pay his own costs, is final and good; being in effect an award of a stet processus. Blanchard v. Lilly. 9 East, 497.

16. In debt on an award a mutual submission must be shown. Dilley v. Polhill. 2 Str. 923. 17. In debt upon an arbitration bond plea, no award. Replication shews an award to pay 16l. 10s. and costs, &e. Breach assigned for the 167. 10s. held good. Fox v. Smith. 2 Wils. 267.

18. In debt upon an arbitration bond,

an award held good in part and bad in part. Addison y. Grey. 2 Wils. 293.

19. Motion to set aside an award must be made before the last day of the next term after such award is pubJished; otherwise it is too late, and an attachment for the non-performance of it may issue. Freame et ux. v. Pinneger. Couper, 23. 20. Seizing a house in the East Indies is not triable here and East India company not obliged to produce book of letters, &c. Where an a ward has general words sufficient to take in all matters, plaintiff shall not be admitted to shew any thing was not taken into consideration. Shelling v. Farmer. 1 Str. 646. 21. An award to pay money to a stranger, unless it is shewn to be for the benefit of one of the parties, is bad.

An award to deliver up a certain writing obligatory, without specifying the date or penalty, is void for uncertainty.

In an award that the one party should, on a particular day, pay the other a sum of money, and deliver up a

certain writing obligatory, and that then they should execute mutual general releases-the word then refers to the day. Bedam v. Clerkson. 1 L. Raymond, 123. 22. Where an award is made by rule of court, it shall not be set aside, unless there was a practice with the arbitrators, or some irregularity, as want of notice of the meeting, Also you shall not take exceptions to the formality of it, but shali perform it. Anonymous. 1 Salk. 71. 23. The court refused to grant an attachment for non-payment of a sum of money awarded, and which was demanded, when a rule for setting aside the award was pending. Dalling v. Matchett, Willes, 215. 24. Several tenants in common, wishing to make partition of their land, covenanted by deed to pay their respective shares of the survey and allotments, and to abide by the award of certain arbitrators as to the allotments; the arbitrators allotted the whole in severalty, but did not direct any deeds of conveyance to be executed to vest the allotments in the respective owners; and for this defect it was ruled that the award was bad, and that no action could be maintained on the covenant for not performing the award, though the covenantors were respectively liable on the covenant for non-payment of the expence of survey, &c. Johnson v. Wilson. Willes, 248.

When an award is void, a covenant to perform the award is also void. Ibid. 252.

25. Under a submission to arbitration of all matters in difference between the parties, an award deciding all matters in difference except one, and giving liberty to one of the parties to sue on that one, is void in toto. Bradford v. Bryan. Willes, 268. 26. But an award (made under suck

a reference) not in terms excepting any matter in difference, does not conclude any of the parties upon a cause of action subsisting at the