
    Shoemaker against Meyer.
    
      Monday, October 5.
    
    In ERROR.
    A rule of arbitration under tbe act of 20th March, 1810, is not •vitiated by containing a submission of ee all matters in variance between the parties in the cause,” in-matters in *varianceinthe cause between the parties.”
    An award directing money to be paid memsjis void,
    WRIT of error to Adams county, in an action of covenant brought by Jacob Meyer, the defendant in error, against John Shoemaker, to August term, 1813. On the 27th September, 1813, it was referred under the arbitration act of 20th March, 1810. The rule of arbitration, instead of the usual submission of “ all matters in variance in the cause between the parties,” contained a submission of “ all mat- . . , , , ,, ters m variance between the parties m the cause. I he arbitrators met, and after having investigated the case, awarded to the plaintiff, the sum of 1365/. 12s. to be paid in , , . , ^ „ twelve annual payments, commencing on the 1st April, 1815.
    A rule was obtained on the 15th November, 1815, to shew cause why this award should not be set aside, which was dismissed. The defendant took a writ of error.
    Dobbin, for the plaintiff in error,
    contended, 1. That the arbitration act being in derogation of the common law, its provision should be- strictly pursued; that the variance in the present instance, between the law and the submission was, not in language merely, but in substance, inasmuch as the submission comprehended all matters in variance between the parties, whether they formed the subject of that suit or not, and the design of the law was to confine the jurisdiction of the arbitrators to those matters alone, for which the suit was brought. To sustain this award would be to give to the arbitrators a jurisdiction which by law they do not possess. He cited, Kyd on Awards, 98. Tetter v. Rapesnyder.
      Mes-■singer v. Kintner.
      
       Geyger v. Stoy.
    
    2. That the terms in which the rule was expressed, had begotten another error, which was fatal to the award. They were calculated to deceive the arbitrators, by making them suppose that they were competent to settle all disputes between the parties, and they had actually awarded the payment of a debt which was not due. This appeared from the award itself. The suit was brought to August Term, 1813, and the first instalment was directed to be paid on the 1st April, 1815.
    
    
      Cassat, fdr the defendant in error,
    answered, that references, being calculated to compose differences ought not to be subjected to a nice criticism; that by a fair and liberal construction, this was a reference only of matters in variance in this particular suit; that the language of the rule was indeed capable of two constructions, but that which supported the proceedings ought to prevail; and that the act of 29th March, 1809,
      
       authorised arbitrators to be chosen, “for the hearing and determining of all matters in variance between the parties in such suit or action,” and yet it had never been supposed, that they could inquire into any thing but the matters in controversy in the suit in which they were appointed.
    That although the first payment was directed to be made at a future day, it did not follow that the money was not due ; and that in arbitrations out of Court, an award to pay money at a future day was good. Booth v. Garnett. That the suit was brought for not giving security to pay money by instalments, according to articles of agreement, and the arbitrators having all the powers of judge and jury, had a right to do justice between the parties, as a court of chancery would do; and this Court would carry the substance of the award into effect by moulding it into proper form for judgment. Richter v. Chamberlin.
      
    
    
      In reply it was said, that the act of 1810, under which this suit was arbitrated, corrected the expressions of the act of 1809, and therefore the argument to be drawn from that act was against the opposite party.
    
      
       1 Dali. 293.
    
    
      
       4 Sinn. 9;
    
    
      
       1 Dali. IS
    
    
      
      
         Purd. Jib. 9.
    
    
      
      
         2 Sir. 1082.
    
    
      
      
        a) 6 Sinn. 34.
    
   The opinion of the Court was delivered by

Gibson J.

An exception is taken to the form of the rule of reference, which contains a submission of “ all matters in variance between the parties in the cause,” which it is said is a substantial variance from the provisions of the act which gives a reference of “ all matters in variance in the cause, between the parties.” However this critical nicety may stand as to references at common law, or under other acts of assembly, it is sufficient that the present exception was taken in The administrators of Steigleman v. Wolfersberger, decided at the last May Term, in Lancaster, in which it was not sustained.

But a more substantial objection to this award is, that the arbitrators have awarded the damages to be paid by instalments. The report, if unappealed from for twenty days, becomes a judgment, without any act of the Court to bé done previous to execution. The award itself is a judgment. The arbitrators possess precisely the same powers that the Court and jury do, and must exercise it in the same manner; for an appeal is given to the Court-, where the cause is to be tried in the usual manner, and it would be absurd to suppose the inferior tribunal had power greater than the superior, or different either in extent or the manner of exercising it. The defendant objects, that from the face of the award it appears the plaintiff brought his suit before any thing was due ; and it is answered, that as no declaration was filed it is impossible to say what kind of case was laid before the arbitrators, and that on the authority of Richter v. Chamberlin, an award will be supported on the presumption, that a cause of action was laid before the arbitrators sufficient to justify the award, if such a cause of action might in anywise have existed. Hence it is contended, that the breach for which damages were given may have been, and in fact was, (although it does not appear from the record,) the refusal of the defendant to execute a mortgage to secure the payment of the sums, at the several times stated in the award. Supposing it to be so ; the question is, what verdict could a jury give for a breach so assigned. Before the stat. 8 and 9 W. 3 even in an action of debt for a penalty for the breach of covenants to be performed at different times, or monies to be paid by instalments, the verdict and judgment were for a gross sum, and the plaintiff took out execution for the whole ; for a plaintiff could assign only one breach, and if he assigned several, the declaration was bad for duplicity, one breach being a forfeiture of the whole penalty. It is a general principle, that where there is but one breach, the damages must be entire. Our act of assembly, which, in substance, follows the English, statutes like it relates to penalties, and has nothing to do with actions of covenant, in which the plaintiff may assign as many breaches as he is able to prove. But even in that case, the damages are recoverable immediately, and there is judgment accordingly. I know not any case in which a Court would render judgment on a verdict for damages payable by instalments. Even on debt for a penalty, the judgment is for the whole penalty, as a personal debtj although the Court having a controul over the execution, permits the instalments to be recovered separately as they fall due. Now here the case put by the plaintiff’s counsel, on which it is said this award may be supported was, that of a single breach of covenant, in not executing a mortgage to secure payments to be made at future periods, and not even separate breaches for the non-payment of the money; for in the latter case the defendant’s objection, that the suit was brought too soon, would be unanswerable. The breach being entire, the damages must be so too. But it is said, that the award is for a gross sum, and that the paying by instalments may be rejected as surplusage. This would be to take an unwarrantable liberty with the intention of the arbitrators. The manner of payment was a substantial consideration in making up their award, and by rejecting it we would subvert their whole intention. Nor can we support this award on the ground that a court of chancery would decree a specific execution of the contract, and that the arbitrators have done so substantially, by giving the lien of a judgment for securing the payment of the same sums and at the same times for the securing of which a mortgage ought to have been given. In this State, the Courts, (though clothed with chancery powers,) from the very nature of the common law forms of proceeding to which they are restricted, cannot give relief in many cases in which chancery would afford it, In an action of covenant, damages alone can be obtained, and by this means it is impossible to enforce a specific execution of the contract.

Judgment reversed.  