therefore the submission be to several, without any authority in the majority to decide, and the award is not signed by all, it is bad. And though a majority have power to decide, yet, in an award by a majority only, it must appear that all the arbitrators heard the parties, as well those who did not, as those who did concur in the decision.2 It will be presumed that all matters, included within the terms of the submission were laid before the arbitrators, and by them considered; but this presumption is not conclusive, evidence being admissible to prove that a particular matter of claim was not in fact laid before them, nor considered in their award.3 § 75. If the submission required, that notice of the award should be given to the parties, this notice, as it must in that case have been averred in the declaration, is the next point to be proved; but if it was not required by the submission, both the averment and the proof are superfluous. It is essential however, to allege, and therefore to prove, that the award was published; 5 and an award is published whenever the arbitrator gives notice, that it may be had on payment of his charges.6 If the agreement is that the award shall be ready to be delivered to the parties by a certain day, this is satisfied by proof of the delivery of a copy of the award, if it be accepted with 1 Towne v. Jaquith, 6 Mass. 46; Baltimore Turnp. Case, 4 Binn. 481; Crofoot v. Allen, 2 Wend. 494. 2 Short v. Pratt, 6 Mass. 496; Walker v. Melcher, 14 Mass. 148. But upon a rehearing, if one of the arbitrators refuses to attend, the others are competent to reaffirm the former award; Peterson v. Loring, 1 Greenl. 64; though not to revise the merits of the case. Cumberland v. North Yarmouth, 4 Greenl. 459. 3 Martin v. Thornton, 4 Esp. 180; Ravee v. Farmer, 4 T. R. 146; Webster v. Lee, 5 Mass. 334; Hodges v. Hodges, 9 Mass. 320; Smith v. Whiting, 11 Mass. 445, (Rand's ed.) and cases cited in note (a); Bixby v. Whitney, 5 Greenl. 192. 4 Juxon v. Thornhill, Cro. Car. 132; Child v. Horden, 2 Bulstr. 144; 2 Saund. 62 a, note (4), by Williams. 5 Kingsley v. Bill, 9 Mass. 198. 6 Mc Arthur v. Campbell, 5 B. & Ad. 518; Musselbrook v. Dunkin, 9 Bing. 605. See also Munroe v. Allaire, 2 Caines, 320. out objection on that account;1 and if it be only read to the losing party, who thereupon promises to pay the sum awarded, this is sufficient proof of the delivery of the award, or rather is evidence of a waiver of his right to the original or a copy, even though it was afterwards demanded and refused.2 § 76. It is not necessary to allege, nor, of course, to prove, a demand of payment; except where the obligation is 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.3 The averment of a promise to pay, will be supported by evidence of an agreement to abide by the decision of the arbitrators.1 § 77. 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.5 1 Sellick v. Adams, 15 Johns. 197. In strictness, to constitute the proper service of an award, so as to authorize an attachment for not performing it, a copy must not only be delivered, but the original must also at the same time be shown to the party. Loyd v. Harris, 8 M. G. & Sc. 63. 2 Perkins v. Wing, 10 Johns. 143. 3 Birks v. Trippet, 1 Saund. 32, 33, and note (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. 4 Efner v. Shaw, 2 Wend. 567. 5 Hay v. Brown, 12 Wend. 591. 3 § 78. 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;1 defect of execution of power, as, by omitting to consider a matter submitted; want of certainty to a common intent; 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 nonperformance 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 5 1 Morgan v. Mather, 2 Ves. 18; Fisher v. Pimbley, 11 East, 189; Macomb v. Wilber, 16 Johns. 227; Jackson v. Ambler, 14 Johns. 96. See also Commonwealth v. Pejepscot Propr's, 7 Mass. 399. 2 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. 3 Jackson v. Ambler, 14 Johns. 96. 4 Kelly v. Johnson, 3 Wash. R. 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. 5 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; 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. law to enforce the award.1 And though arbitrators, ordinarily, are not bound to disclose the grounds of their award,2 yet they may be examined to prove that no evidence was given upon a particular subject; 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,5 and as to any facts which transpired at the hearing. Fraud in obtaining the submission may be given in evidence under the plea of non assumpsit, or nil debet, by the Common Law." § 79. 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.9 Whether bankruptcy is a revocation, is not clearly settled.10 Where the submission is at Common Law, and even where it 8 1 Bean v. Farnam, 6 Pick. 269; Brown v. Bellows, 4 Pick. 183; Parsons v. Hall, 3 Greenl. 60; The Boston Water Power Co. v. Gray, 6 Metc. 131; Williams v. Paschall, 3 Yeates, 564. 2 Ante, Vol. 1, § 249. 3 Martin v. Thornton, 4 Esp. 180. 4 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. Waters, 16 M. & W. 263. 5 Woodbury v. Northy, 3 Greenl. 85. 6 Gregory v. Howard, 3 Esp. 113. 8 Edmunds v. Cox, 2 Tidd's Pr. 877; 3 Doug. 406, S. C.; 2 Chitty, R. 422, S. C.; 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. 9 Macdougall v. Robertson, 2 Y. & J. 11; 4 Bing. 435, S. C. 10 Marsh v. Wood, 9 B. & C. 649; Andrews v. Palmer, 4 B. & Ald. 450; Ex parte Remshead, 1 Rose, 149. 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.1 But if the submission is by two, a revocation by one only is void.2 If the 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 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.4 § 80. 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. So, he may show that the arbitrators, before making their award, declined that office; for thereupon they ceased to be arbitrators.6 § 81: Where the action is assumpsit upon a submission 1 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, Ib. 464; 1 C. & P. 651, S. C.; Warburton v. Storer, 4 B. & C. 103; Vynior's case, 8 Co. 162; Frets v. Frets, 1 Cow. 335; Allen v. Watson, 16 Johns. 305; Fisher v. Pimbley, 11 East, 187; Peters v. Craig, 6 Dana, R. 307; Marsh v. Bulteel, 5 B. & Ald. 507; Grazebrook v. Davis, 5 B. & C. 534, 538; Brown v. Leavitt, 13 Shepl. 251; Marsh v. Packer, 5 Washb. 198. 2 Robertson v. McNeil, 12 Wend. 578. 3 Haggett v. Welsh, 1 Sim. 134; Harcourt v. Ramsbottom, 1 Jac. & Walk. 511. 4 Charnley v. Winstanley, 6 East, 266; Andrews v. Palmer, 4 B. & Ald. 252. 5 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. 6 Relyea v. Ramsay, 2 Wend. 602; Allen v. Watson, 16 Johns. 203. |