
    PINTARD v. IRWIN.
    1. Where a landlord had demised premises absolutely for a term of three years, with a privilege to the tenant of holding for ten years if the premises were not sold or disposed of; and in case of sale, the fruit trees growing were to he appraised and a moiety of the appraised value paid by the landlord to the tenant. Tt was held, upon a sale being made within the three years, that the tenant was entitled to an appraisement and to recover a moiety of the appraised value, notwithstanding an agreement had been entered into between the landlord and the purchaser that the tenant should not be disturbed in his possession for the ten years ; and it was further held that the basis of the appraisement should be the value of the trees at the time the tenancy expired.
    2. Appraisers, chosen by the parties to make such an appraisement, are not arbitrators strictly speaking; nor is their appraisement technically an award, within the purview of the 6th section of the act relating to arbitrations. Elm. Dig. 14.
    3. It is not necessary that such appraisers should be sworn.
    In Error to the Circuit Court of the county of Monmouth.
    
      This was an action of covenant brought by the defendant in error, plaintiff below, against Deborah Pintard, upon the following article of agreement. “ Know all men by these presents that I, Deborah Pintard, of, Ac., have this 14th day of February, 1838, demised and to farm let, for the term of three years from the first of April next, all that house and farm, Ac., unto William C. Irwin; to have and to hold, to use, occupy and enjoy the same for the term of three years, with the privilege of tilling a reasonble proportion of the arable and meadow land • and the privilege of the field south of the house, on which the said William has set out a peach orchard, for the term of ten years, if said farm is not sold before that time; and then and in that case, said orchard is to be appraised, and the equal one half of said appraisement is to be awarded to the said W. C. Irwin, Ac.” The agreement, of which the above is a copy, so far as the same is necessary to be stated for the present purpose, was executed under the hands and seals of the parties respectively. The declaration, after setting out the agreement, then averred “ that the said defendant and one William Pintard sold and conveyed the said house and farm, on the 30th of March, 1839, to Samuel Dorn and John Dorn, and that in pursuance of the covenant above mentioned, the plaintiff and defendant on the first of April, 1841, chose and mutually agreed upon Thomas Arrowsmith and John W. Ploff to appraise the said peach orchard ¡ arid that the said Thomas Arrowsmith and John W. Hoff did, on the 1st of April, 1841, view and examine said peach orchard, and appraise the value thereof at $600and the plaintiff further averred “ that after-wards, to wit, on the 24th of June 1841, the said defendant had notice of such valuation and appraisement, and was requested to pay him, the said plaintiff, $300, being one half of said appraisement ; but that the said defendant refused so to do.”
    The defendant below pleaded several pleas.
    1. Non est factum.
    2. That the defendant did not sell and convey the one half part of the peach orchard ; but that in an article of agreement made between the defendant and William Pintard and Samuel Dorn, and set forth in the plea, the said Samuel Dorn under his hand and seal did agree that he would not himself disturb, nor would lie suffer any other person to disturb, molest or binder the said plaintiff, from pursuing bis lawful business, on the’said farm granted to him, &c.
    3. General performance by the defendant.
    4. That the said farm was not sold by the said defendant and William Pintard or any other person so as to prevent the plaintiff' from having and enjoying for the term of ten years, the privilege of the field south of the house, on which the said plaintiff had set out the said peach orchard.
    5. That the defendant did not choose the said Thomas Arrow-smith and John W. Hoff to appraise, &c.
    6. That no appraisement was made.
    To the second and fourth pleas there were general demurrers, joinders and judgment for the demurrant.
    Issues were taken on the first, third, fifth and sixth pleas, which were tried at the Monmouth Circuit in October, 1842, and a verdict rendered for the plaintiff.
    On the trial of the cause, the plaintiff having proved the execution of the covenant declared on and the sale of the farm, offered Thomas Arrowsmith as a witness, who testified that, on tho evening of the last day of March, or on the morning of the 1st of April 1841, he received a note from the defendant requesting him and Mr. Hoff to make an appraisement of the peach orchard; that on the 1st of April they viewed the orchard and appraised it at $600 ; that the appraisers were not sworn ; that tho parties were not before them, nor were they notified of tho time of the meeting of the arbitrators. They estimated the value of the orchard at that time, and not its value at the time the farm was sold.
    John Pintard testified, that he wrote the note to Mr. Arrow-smith at the request of the defendant; and that Mr. Hoff, tho other appraiser, was present at the time.
    John W. Hoff testified that he was solicited, on the last day of March 1841, by both parties, to act as one of the arbitrators and agreed to do so. That it was understood at the time and was the request of both parties, that the appraisers should view the orchard the next day. Tho appraisement was made accordingly oh the next day, but not reduced to writing and signed by the appraisers until a day or two after. The plaintiff then offered the appraisement in evidence, first proving its due execution. To this evidence the counsel of the defendant objected, and being admitted, a bill of exceptions was sealed.
    The defendant on her part offered to prove — First, that the original number of trees in the orchard did not exceed one thousand; that they were worth at the time of setting them out about three cents a tree, and that the expense of setting them out was about the sum of $10. Secondly, the value of the trees at the time of the sale of the farm in 1839 ; and that, at the time of the valuation and appraisement, two hundred of the trees were from disease totally valueless; that the residue of them were at the same time affected by a disease, which would in a short time inevitably destroy them ; and that they soon after died without having produced any fruit. To all these matters the plaintiff objected, and the court being of opinion that they were not competent to be given in evidence, the defendant again excepted, and his bill of exceptions was sealed by the court.
    The judgment of the court below was removed into this court by writ of error, and the cause was argued at the last term.
    The errors assigned and urged were, the admission in evidence of the award or appraisement, signed by Arrowsmith and Hoff, and set out in the bill of exception.
    The refusal of the Court to nonsuit the plaintiff.
    . The rejection of the evidence offered by the defendant.
    
      Wall ’& Vroom, for plaintiff in error.
    There was a general demurrer to two several pleas, on which judgment was given for the demurrant; several questions also arose on the trial of the issues to the country on a motion for a non-suit; all which were decided against the defendant below.
    1st. The question below on the demurrer, involved the construction of the article of agreement; the same question arises on both demurrers. The second plea sets out an agreement made with the purchaser, to secure the peach orchard for the benefit of the tenant. The fourth plea, that the peach orchard was not so sold as to prevent the tenant from having and enjoying the said orchard for the ten years. The pleas are — it is true the farm was sold, but the plaintiff’s rights were not conveyed ; the farm was not so sold as to affect his rights ; therefore there was no such sale as to authorize an appraisement. This involves the construction of the agreement, under which the sale must have been such as to disturb rights before a valuation could be called for. The sale disturbed no rights of the tenant. In the construction of covenants, the intention of the parties is mainly to be looked to. The deed which passed the title was by executors ; the lease was by Mrs. Pintard alone. The intention here was evident; Mrs. Pintard gave the privilege, but she did not hold the whole title; if sold by the executors the tenant might lose; this bargain as to the appraisement therefore was made.
    2dly. On the demurrer below the defendant was at liberty to allege any defect in the declaration, equally as if she had demurred formally thereto. The declaration is essentially defective. There is no averment of possession by the tenant under the lease. Again, there is no covenant that the party should pay the amount of the award. The covenant is that one-half should be awarded to plaintiff, and the remedy should be on the award. If the liability is on the award and not on the covenant, what pretence can there be that the covenant is broken ?
    3dly. As to errors occurring at the trial. The award was objected to below on the ground that the arbitrators were not sworn. If this is an award, the objection is fatal. Elm. Dig. 15, sec. 6. An appraisal is an award. Van Cortland v. Underhill, 17 John. 405. Peters v. Newkirk, 6 Cow. 103. The not taking the oath required is not an irregularity merely, but unless the oath is taken, the jurisdiction does not attach and the award is void. It is a novel idea that this section of our statute does not refer to all cases of arbitration, but to such only as are intended to be made a rule of Court.
    4thly. Mrs. Pintard ought to have had notice of the meeting of the appraisers or arbitrators, so that she might have been heard before them ; and this point was raised below. She was entitled to notice. 4 Dal. 232. Anon. 2 Chitt. R. 44. Peters v. Newkirk, 6 Cow. 103. So there was no notice to Mrs. Pintard of the subsequent meeting of the arbitrators, when the award was signed and completed. Coxe 194.
    
      Sthly. The appraisers erred as to the time to which their appraisement refers. It should have referred to 1839, when the sale was made and not to the 1st of April 1841, when the appraisement was made. The right accrued in 1839, and the appraisement should have referred to the value at that time. If the defendant was in error as to the time to which the appraisement should refer, she ought not to be prejudiced thereby. The construction of covenants, not to be affected by the acts of the parties. Platt on Cov. 144, 3 Law Lib. Moore v. Fobey, 6 Ves. Jr. 237.
    6thly. There was error in over-ruling competent evidence,— evidence that was proper under the view last taken. The defendant offered evidence of the costs of setting the trees out, of the expense bestowed upon them until 1839, of their value in 1839. The plaintiff refuses to acknowledge this to be an award, and yet claims for it the effect of an award. If an award, it is void because the arbitrators were not sworn. ’If an appraisal, then it is not conclusive, it is merely prima facie, and this evidence should have been heard.
    
      William L. Dayton, contra.
    The pleas were properly over-ruled. The covenant was absolute to pay in case the farm was sold, and may have been made in that particular form upon very sound and sufficient reasons. The property which was the subject of this covenant may have been safe and profitable with one description of landlord and worthless with another.
    The declaration is sufficient. It is not necessary to allege the possession of the tenant under his lease.
    This is not technically an award, and therefore it was not-necessary that the arbitrators should be sworn. There is confusion in the books on this subject, and cases are to be found where the submission of a collateral fact is spoken of as an arbitration, and the report as an award ; but to make an award there must be that which ends or finally determines a controversy. The statute itself defines what is an award within its provisions; it applies to the case where persons “ are desirous of ending by arbitration any controversy, &c.” Elm. Dig. 14. This appraisement did not finally end the controversy, but was a reference of a single matter, forming but a part of the plaintiff’s case. An agreement to pay what a third person will say will bind the parties, but will it be said that it is an award ? See Elmendorf v. Harris, 5 Wend. 516. It is an award in some points of view; still it is not an award within the purview of the statute, which requires arbitrators to be sworn.
    There are three species of arbitration in this state. 1st. A common law arbitration. 2ndly. An arbitration under a submission, which provides that the submission may be made a rule of court. 3rdly. Reference of a cause to referees, upon whose report judgment may be entered and execution issued, as in case of judgment upon verdict. Our statute of 1794, (Rev. L. 158. Elm. D. 14,) only applies to the two last cases, and arbitrators need only be sworn in such cases. This, if an arbitration at all, is but a common law arbitration, and the oath is not necessary. The 6th section requiring arbitrators to be sworn applies only to the arbitrations provided for by the act. Can it apply to a parol submission and parol award which may be in New Jersey ? The language of the New York statute is as general as ours and yet an oath is only required in ease the submission is to be made a rule of court.
    But that the award is bad for want of notice. This is not true an point of fact. The evidence is express that the appraisers met next morning at the request of both parties. Notice of the adjournment was unimportant. The award had been agreed upon.
    The valuation was rightly made in reference to the time when the plaintiff went out of possession. This is evident from the whole context and obvious intent of the covenant. The interest of the plaintiff could not be sold until the expiration of three years, and when sold, he was to be remunerated by the payment of one-half the appraised value.
    The evidence offered at the trial by the defendant as to the value was properly over-ruled. The parties had submitted to ithe judgment of the appraisers, and were bound by their report. This evidence'was not admissible under the plea of “ no award.” 2 Halst. 307; 5 Ib. 7; 3 John. 367; 10 Ib. 143.
    
      Even if there was no notice of hearing it would be no defence at law to an action on an award. 5 Wend. 516. 1 Wheeler’s Abr. 445.
   Whitehead, J.

The first question is brought up by the demurrer to the second and fourth pleas. The questions raised by these pleas are substantially the same, and involve the construction of the agreement of the parties. The allegations in the declaration are, that the farm was demised to the defendant for the term of three' years, with the privilege of the orchard for the term of ten years, if the farm was not sold before that time; if sold, then and in that case the orchard was to be appraised, &e. The answer of the defendant by her second plea is, that she did not sell the one-half part of the orchard, but in the article of agreement with the purchaser for the sale of the farm, the right of the plaintiff to the orchard was excepted and reserved thereout j and that the purchaser afterwards by his agreement with the defendant, did agree, &c. By her fourth plea she says, the farm was not sold so as to prevent the plaintiff from enjoying the privilege of the orchard, for the term of ten years.

The defendant insists that the matters set forth in these pleas sufficiently answer the allegations in the declaration, because the right and privilege of the plaintiff in the peach orchard were not sold; or the farm was not sold so as to affect his right, or disturb him in the enjoyment of his privilege. These matters are no answer to the allegations in the declaration. The defendant’s covenant was not that the orchard should be appraised if the plaintiff’s right to it was sold, or if the farm was sold so as to affect his right, or disturb him in the enjoyment of his privilege. It was absolute, depending upon no such contingency. If the farm was sold, then the orchard was to be appraised, &e. The defendant may have had good reasons for insisting upon this .provision, in the event of a sale of the farm by the defendant. He had incurred the expense of setting out and cultivating the trees, and may have thought he would be hazarding too much, to substitute, in the place of the defendant, another person and a stranger, as landlord or co-tenant of the orchard. With respect to the agreement between the defendant and her purchaser, set out in the second plea, it is sufficient to say, the plaintiff was no party to it, and in the event of a breach by the purchaser the plaintiff could maintain no action against him. I think the circuit court was right in sustaining the demurrer to these pleas.

Another objection by the defendant’s counsel is, that the appraisement was made on a wrong basis; that if any appraisement whatever was required by the indenture, it should have been made at the time of the sale in March or April, 1839 ; or if made afterwards, then it should have been of the value of the orchard at that time. By the terms of the lease, the plaintiff was to enjoy the whole property, absolutely for the term of three years, and the peach orchard for a longer period, unless a sale of the farm was made; if sold, then and in that case, the orchard was to be appraised. The defendant’s counsel insist that the word then fixes the time when the appraisement was to be made, to wit, the time of the sale. I do not. so regard it. The word then, in the connexion in which it is here found, is not an adverb of time fixing the period when the appraisement w'as to be made, but of contingency, to wit, the sale of the farm, and means in that event. In this sense, it is manifest, it was used by the parties as denoting the event, upon which the appraisement was to be made. The event occurred, and the question is, when was the appraisement of the orchard to be made ? I think at the end of the plaintiff’s tenancy. For until that time, he was entitled to the possession and enjoyment of the whole property. His right to the property, under the lease, could not be affected by a sale by the defendant; nor would a sale relieve him from his obligations, as tenant, to bestow all proper care and cultivation upon the orchard during the term. The parties themselves gave to the instrument a proper construction, and acted understandingly in agreeing upon men to make the appraisement at the end of the term.

If I am right in my construction of the covenant with regard to the time when the orchard was to be appraised, then there was no error in rejecting the evidence offered by the defendant, with respect to the price of the trees and the expense of putting them out. For the value was to be ascertained, not when the sale was made, but when the plaintiff, by the terms of the lease, surrendered the possession of the premises. In this view, the evidence was irrelevant.

Another error assigned is the admission of the paper-writing signed by the appraisers. If it be regarded as an award of arbitrators, it is said, it cannot be competent evidence, because the arbitrators were not sworn, nor had the defendant notice of their meeting. If we consider this writing as an award, another question arises, whether the defendant can set up these matters as a defence. The evidence shows the appointment of Arrowsmith and Hoff, by the parties, for the specific duty of appraising the orchard. Now it is a well settled rule of law that in an action upon an arbitration bond, no illegality, nothing dehors the award invalidating it, can be pleaded or given in evidence. 3 Johnson Rep. 369; 10 John. Rep. 143; 5 Halst. Rep. 7; 5 Wendell 516. It is not necessary however to express an opinion upon this view of the case, as I do not regard this as a case of arbitration, and coming within the provisions of our act for regulating references and determining controversies by arbitration, Elm. Dig. 14, for the reason that this reference did not end any controversy. Sec. 1. There was here no controversy to decide. It was merely a reference of a collateral fact, to wit, the value of the orchard ;' the parties agreeing to substitute the judgment of the referees upon that question, in the place of evidence. See Elmendorf v. Harris, 5 Wendell 516; 522, 523 and note. When the price of an article is submitted in this way to the judgment of a third person, it is not necessary he should be sworn.

The allegation, that the defendant had not notice of the time and place of the meeting of the appraisers, is not sustained by the evidence in the case. Mr. Hoff testifies, that on the last day of March 1841, he was requested by the parties to serve as an appraiser; to which, after some objection made by him, he consented ; he then says, “ we were to meet the next day and view the orchard; it was so understood ‘ at the time, and in the presence of the parties.” Again, on his cross examination he says, it was the request of both parties that we should meet the next morning.”

I find no error in the admission or rejection of evidence by the circuit court, and am of opinion that the judgment should be affirmed.

Cabpbxtbe, J.

The first question raised in this case by the counsel of the plaintiff in error, is as to the correctness of the court in overruling the second and fourth pleas on demurrer to these pleas by the plaintiff below. The sufficiency or insufficiency of these pleas depends upon the construction given to the article of agreement between the parties. The defendant in the action below leased to the plaintiff a certain house and farm, for the term of three years from the 1st of April 1838,with certain privileges specified in the article of agreement; “ and the” additional privilege of a field, <&c., on which the said William has set out a peach orchard, for the term of ten years, if the said farm is not sold before that time; and then and in that case said orchard is to be appraised, and the equal one-half of said appraisement is to he awarded to the said W. C. Irwin, &c.” It was a lease of the premises for three years, with the additional privilege of a peach orchard for ten years ; but; with a proviso, that such privilege of the peach orchard should cease, on a sale of the property ; in which case the plaintiff, who had risked his money and his labour in its planting and cultivation, should be remunerated, not by the repayment of his expenses, but by the payment; to him of one-half of its appraised value. The property was sold by the defendant and one William Pintard, they being the executors of Samuel Pintard deceased, in pursuance of authority vested in them by the will of their testator. At the expiration of the lease above mentioned, on the 1st of April 1841, the plaintiff and the defendant mutually agreed to refer the matter of the value of the orchard to two persons chosen by them to make an appraisement thereof. The appraisers, so agreed upon and charged with this duty, accordingly made an appraisement, and the plaintiff has brought this suit to recover the one-half thereof under the covenant already recited. The defendant pleads substantially, that the sale was so made as not to disturb the rights of the plaintiff; and further that in an agreement, which she says was made between her and one of the purchasers, the said purchaser covenanted that he would not disturb, nor would he suffer any other person to disturb or molest the plaintiff from pursuing his lawful business on the said farm. But the plaintiff was no party to the covenant between the defendant and the purchaser, he could not avail himself of it in case its stipulations were infringed, and is in no wise bound by it. It was between others, and cannot affect his rights. This argument may therefore be laid out of the question, and the plea which depends upon it must fall to the ground. But the second and fourth pleas cannot be sustained for another reason; that is to say, because'the covenant is an absolute and unconditional agreement to pay one-half of the appraised value, in case of sale made of the property. The rights of the plaintiff, in such case, and on the expiration of his lease, as to'the possession of the orchard failed, and the right of remuneration then attached. He was not to look to the forbearance of the purchaser, and to ask for remuneration when ejected ; but the agreement was absolute to remunerate him, when the property should be no longer his to enjoy of right.

But it is alleged that the declaration is essentially defective, and the plaintiff below having demurred to the pleas, the counsel of the defendant insist upon her right to go back to the first error in the pleadings. It is alleged that the declaration is essentially defective, because there is no averment that possession was taken, by the tenant under the lease. In an action of covenant, by the lessor against the lessee for rent upon a sealed lease, it would not be necessary to allege an entry on the part of the tenant; the liability being under the covenant, and not by the occupation. So here, I apprehend, the liability of the defendant being by virtue of the express covenant, and not consequent or depending upon the fact of occupation, no averment of entry by the tenant can be necessary.

Again, it is said that there is no covenant set forth on the face of the declaration by which the defendant agrees to pay the plaintiff the one-half of the appraisement. But the covenants are stated in the declaration in the very words of the article of agreement, which, in a case of doubtful construction, is generally considered the safest mode of pleading. The words of the covenant as set forth in the declaration are, “then and in that case said orchard was to be appraised and the equal one-half of said appraisement was to be awarded to the said plaintiff.” Awarded by whom ? Not by the appraisers ; their duty was simply to ascertain the value; but when the value should be ascertained by these appraisers, then awarded, that is, paid by the defendant to the plaintiff. Such, it appears to me, is the only intelligible construction that can be placed on this language, and it is a construction which sustains the declaration.

The appraisement or award of the value of the orchard was objected to on the trial, on the ground that the arbitrators were not sworn, and the objection being overruled, a bill of exceptions was sealed on this point. Supposing it, under our statute, to be necessary to the validity of all awards, that the arbitrators should be sworn, is this technically an award within the provisions of the statute? In my judgment, the submission in this case was no proceeding having the final ending of this controversy as its immediate object. It was but the reference of a collateral fact— the submission of a particular question, forming only a link in the plaintiff’s ease. The proceeding and the appraisement under it did not put an end to the controversy; it barely substituted the judgment of the referees in the place of evidence, leaving the controversy open. It may be necessary to the plaintiff’s recovery as a part of his case, but no recovery can be had upon the report or appraisement itself. Although such reference or submission has several of the characteristics of an arbitration, yet it still falls short of its principal feature, the ending of the controversy. The appraisement in this case may be likened to the purchase of an article, under an agreement to pay what a third person may say the article is worth. The report of this third person will bind the parties, it becomes the act of the parties and they will be concluded by it, but it is no award in the technical sense of the term. Such appears to be the doctrine now held in the state of New York. Elmendorf v. Harris, 5 Wend. 516, (521). I am of opinion that the report of the two appraisers was an appraisal merely and not an award within the statute, and that the same was properly received in evidence.

In regard to the remaining objections. Upon a reference of the value of an article or of property to the judgment of others, by the act of the parties, in order to ascertain the amount of a liability or indebtedness, while the appraisement is not to be dignified with the name of an award yet it bears an analogy thereto. The appraisers, as well as arbitrators are judges of the respective parties own choice, and their report, on an agreement to pay what they may decide to be the value, when pursuant to the authority and in the absence of fraud or collusion, is conclusive. As in the case of an award, if made in pursuance of their authority, it effectually decides the rights^ of the parties, becomes their act, and they will not be permitted to controvert its correctness or to deny its validity. In my judgment, for this reason, the evidence offered by the defendant as to the original cost of the trees and their value in 1839 was inadmissible. So, in relation to the further offer to prove that, at the time of the valuation and appraisement, a large portion of the trees were from disease valueless, and that the remainder soon after died without having produced any fruit. To all this there was the plain answer; the parties submitted themselves to the judgment of persons chosen by themselves and their judgment was conclusive. If the judgment of the appraisers was conclusive, the court below was right in the rejection of the evidence offered.

But I am further of opinion, that the appraisers did not err as to the time to which the appraisement refers. From the whole context and intent of the covenant, it is plain to my mind, that it was when the interest of the plaintiff was affected, and his property in the trees divested, that his right of remuneration attached. “ Then and in that case” the orchard was to be appraised and to that period in my judgment the appraisement properly referred.

It is alleged, that Mrs. Pintard had no notice of the time or place of meeting of the appraisers, nor of their adjournment when the report was drawn or signed. In regard to the signing, notice appears to me to have been unnecessary. The appraisers had fully agreed upon their report, and might properly put it in form and add their signatures afterwards, without the presence of the parties, and without giving them notice to attend. The case cited on this point from Coxe’s Reports, p. 144, in regard to the signing of an award by arbitrators separately, is no authority for declaring an award or an appraisement void on this or any similar ground. That was the case of an application to the equitable power of the court, of which the submission had been made a rule of court. The award having been drawn up by counsel and carried by him to each arbitrator and so signed, without the opportunity of mutual consultation, the court under all the circumstances of the case was of opinion, not that it was void, but that the award should be set aside. The award was not declared a nullity, but was simply set aside. If an award be fully agreed upon by arbitrators, is at least very doubtful, whether the mere signing separately would be a valid ground to set it aside, even on a regular application for that purpose. Little v. Newton, 2 Man. and Granger 351. (40 E. C. L. Rep.) Battye v. Gresley, 8 East 319. Most certainly it would be no ground to declare it a nullity in an action on the award itself.

In regard to the alleged want of notice of the time and place of meeting of the appraisers, I apprehend it is very questionable, whether such allegation, if sustained by the evidence, would make the appraisement a nullity and form a defence at law, under the plea of no appraisement. In Peters v. Newkirk, 6 Cow. 103, which was a matter of appraisal, it was said, though not necessary to the decision of the cause, that the appraisement was void for want of notice to the person to be charged with it. The doctrine, there held, was supposed by the judge who delivered the opinion of the court, to be drawn from the doctrine of awards ; but unless there is an essential difference in relation to this point, between an award upon matters in controversy between parties and a bare appraisement, it cannot be supported. No notice of hearing, by the clearest authority both in this state and in the English courts, forms no defence at law in an action on an award by special .plea, and much less under the plea of “ no award.” In many cases, when the submission has been made a rule of court, this irregularity has been urged and indeed held as a ground for setting the award aside, but I have found no satisfactory authority, in which it has been held to avoid the award in an action on the award. See Braddick v. Thompson, 8 East 344; Sherron v. Wood, 5 Halst. 7. Elmendorf v. Harris, 5 Wend. 516. This matter cannot he pleaded in bar, nor serve otherwise than as a ground when made a rule of court, to apply to the equitable power of the court, for the purpose of setting aside the award. Under a common law arbitration relief could only be had in chancery. Richards v. Drinker, 1 Halst. 307. Barlow v. Todd, 3 John. 367. Perkins v. Wing, 10 John. 143. Unless indeed in those States, which have not the advantage of separate courts of equity, or of equity process, and where pleas, setting up want of notice or other irregularities, seem indispensable to the attainment of justice. See Bean v. Farnam, 6. Pick. 273.

The doctrine therefore, that a bare appraisement may be avoided in this mode on the ground of no notice, dei’ives no support from the doctrine of awards. It is however not necessary to pursue this point further. The allegation is not supported by the evidence. I think a different conclusion, in point of fact, may reasonably be inferred from the evidence which is detailed in the bill of exceptions.

I am therefore of opinion that the judgment be affirmed.

Hornblower, Ch. J.

I entirely concur in the opinions delivered by my brothers Whitehead and Carpenter; and will only add, that so far as respects the objection, that the persons appointed to appraise the value of the peach orchard, were not sworn, I am perfectly satisfied, that there is not the least foundation for it. In Leeds v. Burroughs, 1 East 1 the agreement between the out-going, and the in-coming tenant was, that the latter should buy the hay of the former; and that the former should allow to the latter the expense of repairing the gates and fences ; and that the value of the hay, and the expenses of repairing the gates, should be settled by third persons. The court held that nothing being referred to the appraisers, except the mere value of the hay, on the one side, and the expense of repairing the gates, on the other, it was no arbitration, and an award stamp was unnecessary. Le Blanc, J., said it was only left to persons to put a value on articles, which the party had already agreed should be paid for — and Lord Ellenborough, in a note to the same case, is reported as expressing himself to the same effect.

Neyius, J. and Randolph, J. concurred.

Judgment affirmed

Cited in Richardson v. Lanning, 2 Dutch. 132; Inslee v. Flagg, 2 Dutch. 373.  