
    Nicholas and another administrators of Steigleman against Wolfersberger.
    
      Wednesday, May 24.
    Under the compulsory arbitration act, an award finding generally a sum of money for the plaintiff, but with a stay of execution till he should tender a conveyance from himself and wife, with special warranty of all their interest in certain land, is good.
    A rule of reference under the arbitration act, of all matters in variance between the parties in the case.
    Whether the Court below were right in allowing execution to be issued, is not the subject of a writ of error.
    In Error.
    ERROR to the Court of Common Pleas of Dauphin county.
    
      Wolfersberger brought debt in the Court of Common Pleas of Dauphin county against Steigleman, founded on articles of agreement. By writing filed, the plaintiff, Wolfersberger, “ elected to have the cause tried by arbitration, and required a rule of reference to be entered in this cause for hearing and , . . ... , . u , determining all matters in variance between the parties, and requested that the arbitrators be chosen on Monday, the 19th funef &c. By the rule of reference made out by the pro- — * # - thonotary, “ all matters in variance between the parties in the above cause were, agreeably to and by virtue of an act of assembly, entitled, ‘ An act supplementary to an act, entitled an act to regulate arbitrations,’ referred” to three persons, who made an award stating, that “ they find for the . . ° , plamtiff the sum or 2,682 dollars and 91 cents debt, together with costs of suit; but before the plaintiff shall have a right to enforce the payment of the above money from the ant, they do award, that it shall be incumbent on the plaintiff to execute and tender to the defendant a deed from himself and wife to the defendant, with special warranty, conveying to the defendant, and to his heirs and assigns, all the right, title, interest, claim, and demand of, in, to, and out of a certain undivided fourth part of a tract of land, situate in the county of Cumberland, and state of Pennsylvania, adjoining the town of Shippensburg, which said tract of land contains about 161 acres, more or less, and was conveyed by William Barr to Frederick Boas.” This award was made and filed the 28th July, 1815. On the 2d May following, the plaintiff obtained a rule to shew cause why an execution should not issue; and on the next day, the 3d May, tendered a deed from Wolfersberger and wife, dated 24th Novem
      ber, 1815, for the land stated in the award, to Steigleman, which he refused to accept. The Court below permitted Execution to issue, “ because the condition of the award in favour of the plaintiff, is substantially complied with.” The proceedings being suspended by a former writ of error, Steigleman died, and his administrators were substituted upon a scire facias, on which judgment was obtained.
    The following errors were now assigned,—.
    1. The award extends beyond the submission.
    2. The award extends to the person of a stranger to the submission.
    3. The award is not mutual, certain, and final.
    4. It does not appear, that the plaintiff below had any title to the premises awarded to be conveyed by himself and wife.
    
      5. If the award was legal, the Court erred in permitting execution to issue, because the Condition of the award was not complied with.
    6. The reference is not made agreeably to the act of assembly.
    
      Porter and Rogers, for the plaintiffs in error.
    1. The arbitrators exceeded the powers vested in them by the submission, in making an award concerning land. They had nothing to do with that subject; they could only award what was due to the plaintiff. The act of assembly gives no power to make a conditional award; it contemplates only such a one as can be carried into effect by an execution. Here the condition imposed, of tendering a deed, shews, that the plaintiff had no right at the institution of his suit to recover; not having tendered the deed prior to that time. The arbitrators could not cure this inherent defect in the plaintiffs claim, by directing a tender after judgment.
    1. The award extended to the person of a stranger to the submission, viz. the wife of Wolfersberger, the plaintiff. It is a general rule, that the award must not extend to any one who is a stranger to the submission. Kyd on Awards, 103. Thus it has been held, that where the submission is between two, and it is ordered by the award, that one of them shall convey certain land to the other and his wife, this is void as to the wife, because she is a stranger to the submission. Ibid. cites Samon’s case. 5 Co. 77, b. 78. 1 Rol. Arb. b. 7. There is no difference in principle between awarding, that a deed should be made to a wife and from a wife. In Bedam v. Clerkson, an award to pay money to a stranger was held to be bad, unless it was for the benefit of one of the parties, and in 1 Ld. Raym. 246, that unless an award appears on its face to be on matter submitted, it is bad.
    3. This award is not mutual, certain, and final, because Wolfersberger cannot be compelled to procure the deed from his wife. The Court, if they had power, would not attach a man for not making his wife execute a deed ; it would be duress on the wife. But in the case of a compulsory arbitration, there is no power in the Court to issue an attachment to enforce performance. The award, therefore, being void in a material part so connected with the rest as to affect the justice of the case, it is void for the whole. Kyd on Awards, 168. If the Court cannot enforce one part of the award, they consider the whole void. Kunckle v. Kunckle.
      
       Tetter v. Rapesnyder.
      Buckley v. Durant.
      
    
    4. No title to the land appears in the plaintiff; on the contrary, it seems by the award, that the legal title was in Frederick Boas. The defendant was not bound to take an equitable title. A purchaser will not be compelled to take a doubtful or an equitable title. Sugd. on Vend. 210.
    
      5. The condition of the award was not complied with, and therefore the execution was erroneously issued. The proceedings under the arbitration act, being compulsory, ought to be more strictly guarded than those under voluntary references.
    6. The rule of reference was of all matters in variance between the parties in the cause, agreeably to an act of assembly, entitled, “ An act supplementary to an act, entitled an act to regulate arbitrations.” There is however no such act of assembly. The title of the arbitration act is, “ An act regulating arbitrations.” In Moulson v. Rees, it is decided, that a mis-recital of the date of the law in the rule of reference does not vitiate the proceedings ; but there the title of the act was properly given. Again: The rule of reference is of “ all matters in variance between the parties in the above cause j” but the arbitration act limits the right oi the party to refer to “ all matters in variance in such suit or action between the parties.” Act of 20th March, 1810, sect. 1. Purd. Dig. 12. This is a material variance ; and submits matters to the arbitrators which the law does not warrant. The distinction between the two submissions is obvious, and is recognised by authority. 2 Bl. Rep. 1118. 2 T. R. 644, a case in 1776. 2 Tid’s Prac. 747.
    
      Elder and Hopkins, contra.
    1. The arbitrators have the same equitable powers as the Court and jury. Their power is, by the arbitration act, “ to try all matters justly and equitably between the parties,” and to do this they are sworn. They have done complete justice ; they have ordered the defendant to pay the money due on the articles of agreement, but have taken care that the plaintiff shall not compel payment till he does right on his part, by making a conveyance of the land from himself and wife. The condition is for the protection and advantage of the defendant, and must be performed before he is liable. The 11th section of the arbitration act contemplates the ern forcement of awards, by « execution, or such other process as may be necessary.” The power of giving judgment to be enforced on certain conditions, has been frequently exercised in this State by the Courts, as well as by referees. In the Lessee of Mathers v. Akewright,
      
       judgment was given in ejectment, with stay of execution, until the title of the defendant to 100 acres of land should be secured according to articles of agreement. In Shaller v. Brand,
      
       there was judgment by agreement, but no execution to issue till the title of the land for which the bond was given, should be perfected by the plaintiff. In Moody’s lessee v. Vandyke,
      
       the Chief Justice says, “ at all events the defendant would be secured by entering judgment on such conditions as the Court and jury might think equitable.” In Kunckle v. Kunckle,
      
       an award that money should be paid by the defendant to the plaintiff, and that the plaintiff should make a conveyance of land, was held good; the Court supposed, they might compel the plaintiff to convey by attachment; or they might suspend his execution for the money awarded to him until he made the conveyance. In Bard v. Wilson,
      
       there was an award of referees, that Bard should pay a certain sum to Wilson, whereupon Wilson should perfect a title to the lands sold to Bard. On this award, judgment was entered in the Common Pleas for the sum awarded, with stay of execution until a deed should be produced and filed in Court, and till the Court should adjudge the same to convey a good title in fee to Bard, and it was held good, and Yeates J. cited -- v. Michael Simpson, from Dauphin county, removed to the Supreme Court, in which a report of referees, that a deed should be executed to be approved by the Court, on payment of the sum found due, was held valid. These cases were sanctioned by the Court before the compulsory arbitration law, and that act gives the arbitrators more power than they had before. The award is clearly certain, mutual and final. It is said the condition annexed by the arbitrators has not been complied with. That is a matter of fact decided by the Court below, and not properly examinable by this Court as a Court of Error. The evidence on which they decided, is not on the record. On the objection to the rule of arbitration, The Court relieved the counsel from replying.
    
      
       1 Dall. 364.
    
    
      
      
         1 Dall. 293.
    
    
      
       1 Dall. 129.
    
    
      
      
         6 Binn. 32.
    
    
      
      
         2 Binn. 93.
    
    
      
      
         6 Binn. 435.
    
    
      
       4 Binn. 31.
      
    
    
      
      
         1 Dall. 364.
    
    
      
      
        a) 3 Yeates, 149.
    
   The opinion of the Court was delivered by

Gibson J.

Many of the exceptions taken here, are inapplicable to an award under the compulsory arbitration act, which is sui generis, and to be considered rather as a verdict and judgment, than as an award. Arbitrators, under that act, decide both the law and the fact, and substantially perform the functions of a Court and jury. We are, therefore, not to inquire, whether their award is mutual, final, or certain ; whether it extends to a stranger to the submission, or whether it is erroneous on the merits ; but only whether the arbitrators have confined themselves to the matters in controversy in the cause, and have done what a Court and jury might rightfully do. In the case at bar, there was a general finding for the plaintiff; but with stay of execution till he should tender a conveyance, with special warranty, from himself and his wife, to the defendant, of all their interest in certain land, &c. Now, it cannot be doubted, but that a verdict in this form would be good, and that the Court would see it carried into execution; not, as the defendants’ counsel suppose, by compelling the plaintiff to procure his wife to join him in executing a deed, but by refusing to let him ^ave ^ fruit of his judgment till the condition was complied with. The counsel, however, infer that the plaintiff’s right to recover at all, depended on the previous tender of the deed; and that the arbitrators erred in supposing they could cure this defect in the title, by rendering it obligatory on him to do, after judgment and before execution, what he ought to have done in the first instance. If this were so, the defendant undoubtedly suffered a wrong, in being rendered liable to the costs of a suit, commenced at a time when there was no cause of action. But, that the cause of action was incomplete at the commencement of the suit, is not an inevitable consequence of the plaintiff’s being bound to tender a conveyance ; his liability, in that respect, may have arisen from a separate and independent covenant, which the arbitrators may have seen fit to have executed, along with the other parts of the contract, from equitable considerations; in which case, according to the principles of Moody v. Vandyke, 4 Binn. 43, a tender would not be necessary; but the Court might exercise an equitable controul over the execution, so as to do substantial justice. That arbitrators, under a voluntary reference, have a right to impose conditions on him in whose favour they award, is fully established by Kunckle v. Kunckle, 1 Dall. 364, and Bard’s Administrators v. Wilson, 3 Yeates, 149. Arbitrators under the act of the 20th March, 1810, are differently constituted, being a tribunal created by the law, not by the act of the parties, and one to which either may recur; but they have all the powers incident to the Court in which the cause was pending when it was referred ; and it is well settled, that the interests of a defendant may be secured by a verdict imposing such equitable conditions as the jury may deem necessary. In Mathers’s lessee v. Akewright, 2 Binn. 93, there was judgment in ejectment, with stay of execution till the title of the defendant to 100 acres of the land should be secured, ac* cording to the articles of agreement between the parties; and in Moody’s lessee v. Vandyke, the same principle is distinctly intimated by the Chief Justice.

It is objected, that the award extends beyond the submission, and that the rule of reference is, in form, not according to the act of assembly; being of all matters in variance between the parties in the cause, and not of all matters in variance in the cause between the parties. The first is not supported in point of fact; and the second cannot be supported in point of law. Where the submission is by the agreement of the parties, who may, if they please, extend the powers of the arbitrators to matters not embraced by the suit, the distinction, though a very nice one, may have some shew of reason ; but in references under the act, the party entering the rule having no power to submit any thing unconnected with the cause, it can have none.

The last exception is to the execution; which, it is said, the Court permitted to be issued before the condition attached to the award had been complied with. Whether the plaintiff had done all that was necessary to entitle him to execution, was a question of fact peculiarly proper for the decision of the Court below, and one which, whether decided rightly or not, cannot be agitated here. The Court were not bound to put the evidence, upon which they decided, on the record; nor are we to be supposed to have it before us. It is to be presumed, they exercised a sound discretion ; but even if they did not, the matter is not the subject of a writ error. The judgment and proceedings are affirmed.

Judgment affirmed. 
      
      
        Note. — The decision of this point in the case here reported, is, by mistake, referred to in Shoemaker v. Meyer, 4 Serg. & Rawle, 454, as having been made at May Term, 1818. The cause was argued at that time, and held under advisement ; but the opinion of the Court having been formed immediately after the close of the Term, gave a mistaken impression that the cause had been disposed of.
     