Amin te is,f am, for any in ches as s, that ment of right alone. nat ac of fpe how ppear. a cafes fed in e fub mat as fub on, 6 Lord Ibid. doc 5.349 708. Com. Di. tit. PLEADER. C. 8 ant "fays" on or before the first "day "the date of the faid award," and go he relies on as an eftoppel. From the demurrer book, it appears that the def to fue out the venire tam quam, and in argued the demurrer. But whenever by the defendant, in fuch a fituation as and an iffue in fact, depending at one may at his election, try either the one Burr. 753. 2 D. & E. 394.§ It may vifable to argue the demurrer first, has a right to determine. In Went 5 a precedent fully in point. Woods and Benfon contra. Though award not being stated to be in writin mal than a fubftantial objection, ftilli kinfon v. Allenfon, 3 Keb. 556. Henderfor 116. Sallows v. Girling, Cro. Jac. 277 TRAMENT. The mere reading of that the arbitrators have exceeded the verfies refpecting roads and fences, wer mitted. They, however, proceed to a It is attempted to justify this by the w "ters," but the generality of thefe to to the things fpecified in the fubmiffi Tt iff could not have judgment. The affignment, there:he plaintiff, is on a vicious part of the award, and be supported on his own doctrine. Fox v. Smith, 2 7. Syftem of Pleading, 105. It may be queftioned how an averment would have cured the fault. Where an on the face of it, beyond the fubmiffion, an averI not help. Bacon v. Dubarry, ▾ Lord Ray. 246. It is e the falt meadow could have been in difpute. The fhews it was before settled, and the demurrer admits is also a want of mutuality. The releases of the meaordered, on the one fide with a reservation of a right and on the other to be made abfolutely. If the award good, ftill the affignments are bad. After one t forth, the record should have stated "and for fureach according to the ftatute, &c." Hardy v. Bern, Roles v. Rofervell, 5 D. & E. 541. fe the ftatute is compulfory, and the plaintiff cannot roceed at common law. The indenture in the res well pleaded, and the recital alone, an estoppel, This is neceffa The action ought to have been covenant, if dar the breaches were to have been recovered. The on is in debt on the bond, and ought to have been enalty. The affignment of breaches in the replicancongruous to the nature of the suit brought. It is trial for the affeffment of damages ought not to take after judgment on the demurrer, because, if it be deI that the award is bad, no damages can have accrued. t, there rd, and Smith, 2 Where an 46. It is admits he mea a right Eter one neceffa cannot the re Koppel, if da The e been It is matter of election in the plaintiff. Sh him he pays cofts. If otherwise he g affeffment ready made, in case the de fhould be in his favor. Per curiam delivered by Kent C. J before the court, the material question the replication. The counfel for the bad. ift. Because there was no averm in writing, or ready to be delivered. fet forth, orders matters to be done miffion. 3d. Because the award is no tiff's deed was to contain a refervation leafe was not to be made till the defend award on his part. 4th. Because the was void, inafmuch as part of the m and that only one breach ought to that should have been in the declarat tion is without foundation. The aw "the form following,” and in the body is a reference to the date of it. ed to be in writing, as the circumftar neceffarily imply it; and it appears f v. Manning, Carth. 159. 3 Mod. 333 fo intended, although the fact be not fi further be added, that the replication greeable to an approved precedent in 3 It mu the name of Peter Alaire's road, and that it runs e land and meadow of the plaintiff, and contains fixre rods. It is apparent then, that the meadow, ioned, must be one of the roads, or paths, referred onds of fubmiffion, as it has the name, and quality or path; and although the release of it concerns and transfers land, yet that was the very matter A controverfy concerning a road or path, may in ftrict technical language, relate only to an incorpolitament, or right of way, but in common parlance ally refer to a claim to the foil. In arbitration bonds, to be liberally expounded, and, as in the present r to divers other matters not named, it would be g the words too curiously, to confine them to the ruction. The parties were, alfo, by the award, to with each other, fmall ftrips of land of one and fquare. Thefe ftrips must be viewed as connected ubject of the divifion fences, and to have been part of -overfy, as the award states that they arofe on the fetf the divifion fence. I do not perceive any thing in 1, that may not be included, even in the subject mate controverfy Specially fubmitted, except it be that he award which directs general releases. But the nis," touching divers other matters," as well as thofe ly mentioned. The words ufed are operative and t to a general fubmiffion of all queftions and conbetween the parties. They are ufed as forming an it runs eadow, quality Oncerns matter , may arlance present ard, to me and nected part of the fet ing in icon ng an the release, though general in terms, only to the matter fubmitted, and as tween the parties have been fhewn, no ed. Simon v. Gavil, 1 Salk.74. Hill v. ering v. Watfon, 2 Black. Rep. 1117. 250. Stephens v. Mathews, cited, Lor even, in this view of the queftion, the Another objection to the award is, It is not requifite that the fame acts, manner, should be awarded on each fi mutual. The refervation, in the pla fendant, might have been the ground controverted, and it may have been p of the arbitrators, (and fo we are to in had a valid claim to the right of way puts a final end to the controverfy, and there is no ground for the objection Bacon v. Dubarry, 1 Lord Ray. 246, t Awards 148, 9. The objection that perform and execute on his part, befor cute the general release, was alfo raif v. Marriot, and there overruled, bec leafe would not be conftrued to depriv the bond, if the plaintiff fhould refu and becaufe other matter, as is the ca be done by the plaintiff, without bein |