
    Joseph Eveleth versus Philip Chase and Others.
    Of the power of arbitrators, under a parole submission, to make a supplementary award, [This may be done by parole consent of parties.—Ed.]
    This was a special action of the case, for not performing an award of certain referees. The defendants pleaded the general issue, which was joined; and it was agreed that the defendants should be entitled to all evidence, of which they could have availed themselves under any special plea. Trial was had at an adjournment of the sittings here after the last October term, before Putnam, J.
    The plaintiff and the defendants, being owners of several adjoining lots of land, all adjoining the harbor of Salem, and doubts existing respecting the bounds and privileges that belonged to them severally ; to remove all such doubts, that the bounds might be permanently fixed, and the privileges belonging to each ascertained, they, by writing under their hands, dated the 15th of May, 1820, appointed three persons, with power to examine their respective titles and privileges, and to determine the boundaries between them; and bound [ * 459 ] themselves each to the * other in the penalty of five hundred dollars, to abide the judgment of the said referees, and to execute any further instrument which they should advise in the premises.
    On the 20th of May, the referees delivered their award to the parties; and, in the afternoon of the same day, they discovered, upon the suggestion of the defendant Chase, that it would have an operation different from what they intended; whereupon they again met, and made an explanatory award, on the 22d of May. When this explanation was shown to the plaintiff, he expressed himself much satisfied with it, and undertook to have the papers prepared, which were necessary to carry the award into effect. Chase also (who appeared through the whole business to act for the other defendants), declared his satisfaction with the award, as explained by the referees, and his readiness to comply with it. Fifteen days after the explanatory award was made, the plaintiff revoked his assent, saying that the referees had no authority to make it; and caused papers to be prepared, conformable to the original award ; which he executed on his part, but which the defendants refused to execute; whereupon the plaintiff brought this action.
    The plaintiff objected to any parole testimony, relating to the explanatory paper or supplementary award; which objection was overruled, and the foregoing facts were testified to by two of the referees.
    By consent of the parties, a nonsuit was entered; and if the whole Court should be of opinion that parole testimony ought not to have been admitted, as aforesaid, the nonsuit was to be set aside, and the defendants to be defaulted. It was also agreed that, in the latter case, if the Court should be of opinion that the 500 dollars mentioned in the submission was to be considered as liquidated damages, judgment was to be rendered for the plaintiff for that sum; but if it was to be considered as a penalty, the defendants were to be heard in chancery, and the judgment to be accordingly.
    * B. Merrill, for the plaintiff,
    contended that the arbi- [ * 460 ] trators, having made and delivered their award on the 20th of May, had performed their office; and that all their subsequent acts in the premises were without authority and null. Arbitrators cannot make their award by parcels, the purpose of the submission being a final and certain determination of the controversy between the parties. The evidence of the arbitrators, therefore, relative to their acts subsequent to publishing their award, was in admissible. The meaning of the award could be ascertained only from itself; not from subsequent certificates of the arbitrators, by whatever name they might call such certificates, whether explanations, corrections, additions, or a second award; which latter the certificate in the present case was .
    It appears from the evidence reported that the second award was made without any new authority; the parties did not at any time jointly consent to recommit the subject. When the plaintiff at first consented to what is called the explanation, the defendants objected ; and before they consented, the plaintiff retracted his consent, as he had a perfect right to do. The alteration of the award, therefore, being made without the joint consent of the parties, is null.
    
      Saltonstall, for the defendants.
    
      
      
        Rolle's Abr. 250, Arbit. H.—1 Burr. 277, Hawkins vs Colclough.—Cro. Eliz. 432. Samon vs. Pitt.—2 Rolle’s Rep 214, 215.
    
   By the Court.

This was a mere parole submission, and it was competent to the parties to alter the terms of it, and to enlarge the power of the arbitrators. Any alterations may be made by these last, before the time expires which is limited in the submission for making and publishing their award, and before it is delivered to the parties. And after it is delivered, if the parties so agree, they may open the subject for reconsideration; as a report of referees under the statute , or under a rule of court; which may be done for the correction of mistakes, or for a new hearing of the parties. [ * 461 ] *In the case before us, the object of the referees was to explain doubtful matter in their award. In a court of chancery, an award under such circumstances would be set aside or amended. Such a procedure is perhaps attended with great difficulties, without the consent of the parties to the submission. Here there was such consent, before the alteration was made, and an expression of satisfaction afterwards. The explanatory paper, therefore, became part of the award, and the whole is to be taken together as making one award. The plaintiff never tendered an indenture to the defendants, conformable to the award as finally made; there was, therefore, no breach of promise on the part of the defendants. Whether the defendants have done enough to entitle them to an action against the plaintiff, for not fulfilling the award, is a question not now before us.

Costs for the defendants 
      
      
        Stat. 1786, e. 21.
     