
    M’CULLOUGH vs. MYERS’S ex’rs.
    muftA"conform to the requiiU t“n« ofthe fub.
    ⅛ nof the objeaioa may be waived by the exprefs agreement of the parties,oran exprefs promife made after the award, to abide ⅛⅛
    
      MYERS filed his bill in chancery in the old Mercer court of quarter sessions, against M’Cullcragh.
    The bill charged-a fraud practised by the defendant pn the complainant, in having pretended an authority to act for James Wallace, concerning his settlement and pre-emption, thereby inducing the complainant to undertake to clear the said claim out of the offices, for one half of the pre-emption, and receiving from the said Myers his bond to convey the settlement and. one half of the pre-emption to him, the defendant; that he had assigned away the complainant’s bond therefor, which the complainant had satisfied:; that.the complainant had cleared out the claims, but that Wallace had denied the authority of the defendant to act in that behalf ; it charged the assignment made by the defendant, ofthe certificate of the commissioners, to be a forgery, and had actually sold the land to another that the said Myers and M’Cullough, in 1787, mutually, executed a bond, each to the other, to submit these matters of difference to the arbitrament and “ final determination” of Walter Beall and James Harrod, and to, abide by and perform the award of them or their umpire, &c. “ so, as the award of the arbitrators be made and set down ⅛ writing, indented under their hands and seals, ready tp be delivered.to the said parties in difference, on or before the thirtieth day of June 1787,” &c.
    An award is. set forth, bearing date on the 27th day _ of June 1787, not under seal, directing said M’Gullaugh, to convey to said Myers 1400 acres of land, equal in. value to James Wallace’s settlement and pre-emption, in Nelson, &c. The bill farther charges, that the defendant was present at the making the award; made no. objections thereto ; but afterwards made application to, settle the demand according to the award.
    The defendant denied that he pretended any authority to act for Wallace, but that Myers knew he had assumed but a friendly agency, and suggests that Myers himself put Wallace’s name to the assignment of the certificate granted by the commissioners. He admits that he assigned away Myers’s bond for the 900 acres ofthe land; and denies that he was privy to the making ofthe award set forth; or that he acquiesced therein ; or that any award was made in pursuance of the submission.
    The bill prayed for specific performance oí the award, and also for general relief.
    On the death,of Myers, the suit was revived in the name of his executors.
    The circuit court of Mercer, (to which the cause had been transfered by law) making the award the basis of their decree, gave the complainants the value of James Wallace’s settlement and pre-emption, as assessed by a jury empanneled for that purpose. To reverse which decree, this writ of error was brought by M’GuUough.
    
      April 11th.
    
    The cause was argued, and a decision given, reversing the decree, at the spring term 1807, upon the principle, that a court of chancery would not enforce the specific execution of an award, unless some act had been done confirming the award, by the party against whom the bill is brought ; or at least, an express promise had been afterwards given, to abide by it.
    A re-hearing was obtained, and the whole cause opened, and it again came on for argument.
    
      Littell, for the plaintiff in error.
    — I lay it down as a settled principle, that every award, to be valid, must be certain and final. This award is defective in both of these respects. It is not said what land is to be conveyed, and the whole state is open for the plaintiff to select land in. The land to .be conveyed, is to be of the value-©f Wallace’s settlement and pre-emption. Who is to say what is the value of Wallace’s settlement ánd preemption ? Or who is to determine whether the land offered is equal in value ? An award, to be good, should settle the dispute, not lay the foundation of a new one : but it would require a new suit to settle these points. These principles are recognized and decided on by this court, in the case Orear vs. Singleton, Pr. Dec. 77, where an award directing three-fourths of a tract of land to be conveyed, was set aside, for uncertainty, in not directing what end or part the three-fourths were to be laid off. Neither does this award direct that release should be given, or that it is a satisfaction of the original demand.
    This award is not in pursuance of the condition of the arbitration bonds. The award is not by deed. Every requisition of the submission, whether directed by caution or caprice, must be strictly complied with, or the award is not good — Sanders vs. Throckmorton, Pr. Dec. 384 — Shores vs. Bales, in this court — Rhodes vs. Jou~ itt, Bunberry 70.
    The submission requiring the award to be under seal, is in the nature of a condition precedent, and no action can be maintained until the performance of precedent -conditions — 2 Eq. Ca. Ab. 208-9- — 1 Fonb. 391-2 — > 
      Winters vs» Barr, in this court, Óct. term 1798 — flérrlz Chinowith, Pr. Decs 2S~Bridgésvs¿ Hardgrove* ibid, 153 — -Horine, &c. vs. Woods, ibid, 276.
    An award should pursue a submission, as strictly as d power executed in the ordinary conveyances of real estate, should pursue the stipulations required; In these,’ less deviations from the power given have been held fatal — Powell on powers, 78,136, 259;
    
      Bledsoe and Talbot, for the defendants in error.
    — The doctrine relative to awards* has been, for ages, gradually improving. The jealous and scrupulous niceties required in awards relative to real estates, is to be traced to feudal origin, where hampering alienations* and settling family estates, is the policy of the country; In this country our policy is different; Every facility should be given to an interchange of estate. You should not* therefore, feel yourselves bound by mere technical rules* bottomed upon old decisions; But even in England, at this day, exceptions,for mere matters of form* to awards* are disregarded. If arbitrators are mistaken iti a plain point of law, the award may be set aside, but not so if it be on a doubtful point — 3 Atkins 493. If an award is good to a common intent, it is sufficient — 3 Atk. 504; We should not be too nice in requiring arbitrators to point out the manner in which their award is to be car-* ried into effect — 3 Atk. 505. Every intendment is in favor of awards — 1 Vesey, jun. 17, 18. Chancery will not set aside an award, but for partiality, misbehaviour or corruption of the arbitrators, or a plain mistake apparent on the face of the award — 1 Wash. 14, 158.
    It is no exception to the award, that it has not fixed the value of the land. Men might be chosen by the parties to value it; or if either refused to appoint, the court would appoint a valuer — 1 Wash. 226.
    The exception for want of a seal, is a mere exception of form. There is no substantial difference in this country, between writings under seal and those not under seal. We rely on 2 Verm 24, to shew, that in chancery* an award is good, though informal.
    When parties amicably leave their differences to domestic tribunals, you should lend them every aid to give them effect. They take much trouble from the courts, especially inland business. Take care, therefore, that by your decisions, you do not invite them to resort to law, after a fair decision by arbitration.
    
      
      April 14th.
    
   Edwards, Ch. J.

delivered the opinion of the court; After a statement of the case, he proceeded: It seems to this court that the award set forth is null and void, because not sealed, as expressly required by the submission, and because it leaves the matter wholly uncertain; undetermined, and open for future controversy. These oiijections, not to mention others of minor importance; could only have been surmounted by the express agreement of the parties, subsequently made; and looking to the award as the basis of anew contract; or at least; by an express promise, on the part of McCullough, to perform the award,- after he had notice thereof, amounting to a waiver of the objections thereto. Such a case (although' attempted) is not satisfactorily made out by ihe evidence.

The decree, therefore, of the circuit court; bottomed on the said award, is erroneous ; arid is hereby reversed and set aside. This renders it unnecessary for this court to examine the principles upon which their former opinion was founded ,- but without affirming or disaf-firming them, the said former opinion and decree of this court, herein made and entered, is set aside;

And because it appeareth from the bill, answer and exhibits, that the complainants in the circuit court, have matters of equity, independent of the award; upon which tlie said court have not adjudicated, and which are proper to be farther inquired into:

This cause is therefore remanded to the said circuit court, with directions to set aside the verdict of the jury, and for new proceedings to be had in the cause ; disregarding the said award, as though the same had never been made.  