
    *Horrel v. M’Alexander.
    December, 1824.
    Awards — nutuality.—The doctrine requiring awards to be mutual. Is now exploded, in the sense in which it was formerly understood.
    Same — Validity.—Although the bond of submission states, that "divers disputes have arisen,” and the arbitrators render an award for one matter only, yet the award will be good, unless it appear, that something else was in dispute between the parties.
    Pleading — Declaration—Breach Insufficiently Laid — Effect of Verdict. — If the breach in a declaration is not sufficiently laid, and, therefore, would be bad on demurrer, it will, nevertheless, be cured by a verdict, if the necessary facts are stated, though imperfectly.
    Appellate Practice-Two Judgments. — Where a judgment of a County Court is reversed, and sent, back by a Superior Court for further proceedings, and new pleadings, and a second judgment are had in-the County Court, and the cause again carried up to the Superior Court, by an appeal from the second judgment: upon an appeal to the Court of Appeals, that Court may affirm the first judgment of the County Court, and reverse all subsequent ones.
    Iiorrel brought an action of covenant, in Nelson County Court, against M’Alexander. The plaintiff declared on a writing under seal of the defendant, dated the 17th day of December, 1806, by which he bound himself to the plaintiff in the penalty of $500, on this condition; that divers of disputes having arisen between them, and they having agreed to submit all matters of disputes to the decision of Joseph Shelton and William Lee Harris, and that their award should be final between the parties, the said arbitrators did make an award in favor of the plaintiff, reciting that “there are several accounts depending, and disputes have arisen, between Clever C. Horrel of the county of Adair in the state of Kentucky, of one part, and John M’Alexander of the county of Amherst and State of Virginia, of the other; and for the purposes of adjusting those differences, the said parties, by their obligation, bearing date the 17th day of December, 1806, reciprocally became bound to each other in the sum of $500, to stand and abide, perform and keep, the award and final determination of us Joseph Shelton and William Lee Harris; and we the said arbitrators, having fully examined the proof and allegations of the said parties, and *the said M’Alexander being present and given his consent for the award to be made, do find that the said M’Alexander sold to the said Horrel, one tract of land, containing 300 acres, lying and being in the county of Nelson and State of Kentucky, which said land, previous to his making any right to the said Horrel, was ’ sold for- taxes, it never having been in his possession; now, if the said M’Alexander, shall procure the said land, and make a good and lawful title to the same to the said Horrel, by the .1st day of August next, the said Horrel shall be bound to receive it; the proof of making such title to be on the said M’Alexander. If the said M’Alexander shall fail to comply with the above condition, we award him to pay 501. with interest at 5 per cent, from the 6th day of November, 1793, till paid, to the said Horrel.
    Witness our hands and seals, this 29th October, 1807.
    (Signed,)
    JOS. SHELTON, (Seal.)
    WM. LEE HARRIS, (Seal.”)
    The plaintiff averred, that he had done and performed all that he was bound to do or perform, by the said covenant and the said award made in virtue thereof; and he further averred, that the defendant had not performed, but broken his covenant, in this, that he had neither procured the 300 acres of land aforesdid, or made a good and lawful title to the same, to the plaintiff, nor had he paid the said 501. with interest, &c. as he had been awarded to- do, to the damage of the plaintiff, $500.
    The defendant pleaded, that he had not broken his covenant, &c. but had performed the conditions thereof; and put himself upon the country, and issue was joined.
    Afterwards the defendant obtained leave to file the plea of no such award as that stated in the plaintiff’s declaration.
    The jury found a verdict for the plaintiff, for the debt in the declaration mentioned, to be discharged by the payment of fifty pounds, with interest, &c. and the Court rendered judgment.
    defendant M’Alexander obtained a supersedeas from the Superior Court of Nelson County; and, upon a hearing, the Court reversed the judgment of the County Court, and annulled the proceedings as far back as the declaration, and remanded the cause to the County Court, for further proceedings. ’
    After the cause was sent back to the County Court, the defendant prayed oyer of the writing obligatory on which the declaration was founded, and of the award,.’ and filed a special demurrer, assigning as causes: 1. That Horrel was not bound to perform the condition of the said bond of submission, which ought to be equally and mutually binding between the parties thereto; and because the same is not binding on the said Horrel, it is void in law: 2. That the award is not mutual and final between the parties, because the arbitrators have not awarded, that upon the defendant’s procuring the land, and making a good title to the plaintiff, the defendant should be acquitted and released by the plaintiff from all actions, causes of action, or all other demands or claims on the part of the plaintiff against the defendant, which might be in controversy between them, concerning the premises, &c. The plaintiff joined in demurrer.
    The bond of submission commences: “Know all men, &c. that I John M’Alexander, of the county, &c. am held and firmly bound unto Clever C. Horrel of the county, &c. in -the sum of $500, &c.” The condition stipulates only that M’Alexander, his heirs, &c. shall well and truly stand by and obey and perform the award of the arbitrators. The bond is signed and sealed by both parlies.
    The County Court decided, that the demurrer was insufficient and ought to be overruled.
    The defendant again prayed oyer of the bond and condition, and then pleaded: 1. That the declaration was variant from the bond, inasmuch as the declaration describes a bond executed by M’Alexander and Hor-rel, wherein they stood reciprocally bound to each other to abide and perform, *&c.; vdiereas the bond itself only binds M’Alexauder to pay to Horrel the sum of $500, upon condition that he, M’Alexander, shall abide and perform the award, while Horrel is not bound to abide and perform the award on his part.
    2. That the award is not final and conclusive between the parties to the said bond, not being made pursuant thereto, because Horrel was not bound to abide by and keep the award, and the said award only having relation to a controversy about 300 acres of land, when, by the bond, it appears, that there were various other controversies then existing between the parties, upon which the arbitrators have made no award.
    3. That the award was not made within the time appointed in the bond.
    4. That the defendant did procure the 300 acres of land mentioned in the aw'ard, and made the plaintiff a good and lawful title.
    5. That he had paid to the plaintiff the sum of 50l. with interest, &c. in pursuance of the award.
    The plaintiff demurred to the first plea, and joined issue on the rest.
    The plaintiff then obtained leave to amend his declaration; upon which, the defendant demurred to the declaration, writing obligatory, and award. The grounds of this demurrer are the same as those assigned in the last mentioned pleas. The Court refused to compel the plaintiff to join in the demurrer, to which opinion the defendant excepted.
    On the trial of the issues, the jury found for the plaintiff 501. damages, with interest, &c. subject to certain deductions; to which the defendant filed errors in arrest of judgment. The errors stated are the same that had been before stated in the pleas and demurrer, except the following; that the plaintiff had assigned no breach in the non-payment of the penalty of the said bond of submission, as he ought to have done.
    *The Court refused to hear any argument upon the errors in arrest of judgment, “because, there had been, heretofore, a demurrer in this cause, which had been adjudged of by the Court;” whereupon, judgment was rendered for the plaintiff, for 501. with interest, &c. according to the verdict.
    The defendant appealed on this second judgment to the Superior Court. That Court reversed the judgment of the County Court, on the ground, that the County Court erred in over-ruling the first demurrer, filed by the defendant, to the declaration: which, in the opinion of the Court, ought to have been sustained, and judgment rendered for the defendant.
    From this judgment, the plaintiff appealed to this Court.
    Nicholas, for the appellant,
    contended:
    1. That the assignment of the breach was sufficient, as it alledges a breach in the words of the covenant. If not good, originally, it is sufficient after verdict. Thus, non infregit conventionem, although not a good plea on the demurrer, is cured by a verdict. 1 Chitt. PI. 481. The assignment of the breach is only deficient in form, but the substance is sufficiently al-ledged in the declaration.
    
      2. The Court only reversed up to the declaration, and therefore the declaration remained as a foundation for other pleadings. 'Pile defendant filed a demurrer to the declaration; but, the Court never decided, that it was defective.
    3. After the cause was sent back to the Rules, the County Court was correct in over-ruling the demurrer. It is objected, that the bond was not equally binding on both parties. But, this is a mistake, because Horrel signed the bond. The usual course is to execute two bonds. In that case, no notice is taken of the other bond. Kyd on Aw. 8. Cay hill v. Fitzgerald, 1 Wilson’s Rep. 28, 58.
    *4. It is objected, that the award is not mutual, because it omits to require Horrel to execute a release to M’Alexander, upon the latter conveying the lands to the former. The answer is, that the doctrine of mutuality is exploded in modern times. Kyd on Aw. 147, 153.
    5. It is objected, that the bonds speaks of several matters to be referred to the arbitrators, and the award only decides one of them. But, these words will be considered a mere formula, and no other matter will be intended to exist, unless it be shewn. Ingram v. Mills, 8 Fast, 445.
    Gilmer, for the appellee,
    urged the following objections to the judgments of the County Court:
    In the first judgment:
    1. No sufficient breach of the covenant was assigned in the declaration. There is no averment, that the defendant had not paid the $500, the penalty of the bond, which is the direct breach. Haughlin v. Flood, 3 Muni. 255; Falcon v. Harris, 3 Hen. & Muni. 550.
    
      2. The award set out is bad: 1. Because it was not reciprocal. 2. It was not final. It is true, that if no other controversies appeared, than those decided upon by the award, the Court will intend that there were no others. Hawkins v.-, 1 Burr. 277. But, the bond, as well as the award, recites other subjects of .reference.
    3. The declaration is vitiated by a quod cum. Winston v. Francisco, 2 Wash. 187; Chichester v. Yass, 1 Call, 83; Moore v. Dawney, 3 Pleu. & Munf. 127. In these cases, there was no demurrer.
    in the second judgment:
    The plaintiff should have filed a new declaration; and the County Court erred in over-ruling the defendant’s demurrer to the declaration.
    *December 7.
    
      
      Awards — Mutuality.—See monographic note, on “Arbitration and Award” appended to Bassett v. Cunningham. 9 Gratt. 684.
    
    
      
       Appellate Practice — Two Judgments in Lower Court. —See/oot-note to Biggers v. Alderson, 1 Hen. &M. 54; monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263. The principal case is cited with approval on this subject in Jones v. Raine, 4 Rand. 390.
    
   The Court, pronounced their opinions.

JUDGE CARR:

I think this case may be settled on the first judgment of the County Court. If the Superior Court erred in its reversal of this judgment, we may correct the error without meddling with the multifarious matter, with which the subsequent part of the record abounds. To the first judgment of the County Court, there are three objections: 1. That the award is not mutual. 3. That it is not final. 3. That the breach in the declaration is not sufficiently laid.

The first objection rests upon the idea, that something must be awarded on both sides. This was certainly the law formerly. As (for example) if it had been awarded, that the obligor, in a single bond, should pay the debt; the award was held not binding, for want of mutuality, unless it was added, that he should thereupon be discharged. Kyd on Aw. 224; Hob. 49; Brownl. 58. But, this has long been exploded; and Kyd, 153, says, “it may now be safely laid down, that it is not necessary that the award itself should express, that a sum awarded to be paid, or an act to be done in favor of one of the parties, shall be in satisfaction. A discharge to the other must necessarily be presumed, from the payment of the sum, or performance of the act.” Here the arbitrators state, that M’Alexander had sold to Horrel, land; which land had been sold for taxes, before Horrel had either title or possession; that, therefore, M’Alexander shall, by a given day, procure and convey to Horrel a good title, or failing to do so, shall pay him 501. with interest, &c. Can any thing be clearer, than that this land to be conveyed, or this 501. to be paid, is in satisfaction? Surely not. There is nothing, then, in this objection.

The second objection is, .that the award is not final. This rests upon the ground, that the bond of submission *states, that divers disputes had arisen, &c. and that all matters in dispute were submitted; and yet the arbitrators have decided on one matter only, leaving the other matters still undetermined. This objection seems as unsubstantial as the first. Thq bond is in the usual 'form, submitting all matters in dispute; and it states, that divers disputes had arisen. But, this does not prove that there was more than one subject matter in dispute. Divers disputes might arise on the single subject of the land, or the usual words might be inserted, without meaning to describe the subject matters as one, or divers. Kyd on Aw. 171, says, the award must comprehend every thing submitted, and must not be of parcel only. This, however, (he adds,) must be understood with a considerable degree of limitation; for, though the words of the submission be more comprehensive than those of the award, yet if it do not appear that any thing else was in dispute between the parties, beside what is comprehended in the award, the award will be good. Now here, there is no .title of evidence, that there was any thing in dispute between the parties, but the land contract. The award, therefore, deciding this, is good.

The third objection is, that the breach in the declaration is not sufficiently laid; and if this objection had been raised by demurrer, I do not undertake to say how I should have been inclined to decide it. The declaration is certainly drawn awkwardly; perhaps, as to the breach, defectively. But I am clearly of opinion, that it is a defect, cured by the verdict. The distinction taken in Chichester v. Vass, 1 Call 83, and in Fulgham v. Lightfoot, 1 Call, 250, is between necessary facts not being stated at all, and being imperfectly stated. In the first case, a verdict does not cure; in the second, it does. Here all the facts, necessary for the information of the defendant, are stated. The bond of submission, with its penalty and condition; the award made in consequence; the breach by the defendant of his covenant, in not _ conveying the land, nor _ *paying the money awarded, to the plaintiff’s damage $500; the amount of the penalty of the bond of submission; these seem to lie all the facts necessary for the defendant’s information and defence. He took issue on them, and the finding was against him for the sum awarded. The judgment was for the penalty of the bond, to be discharged by the sum found. This judgment, the Superior Court reversed; in which, I think, it erred.

It has occurred as a Question, whether it. is not now too late to affirm the first judgment of the County Court, as that was reversed by the judgment of the Superior Court; and the plaintiff, not appealing or making any objection to such reversal, went to trial again in the County Court. I do not consider this material. The first judgment of the Superior Court does not put an end to the question of right between the parties, or to the action; but reverses the proceedings to a certain point, and sends the cause back for a new trial; “leaving the whole of the proceedings so far in fieri, as that the Court may take notice of the first error, wherever it may happen.” Lyons v. Gregory, 3 Hen. & Munf. 237; Robinson et al. ex’rs. v. Gaines’ adm’r. 3 Call, 243; 1 Hen. & Munf. 64.

My opinion therefore is, that both the judgments of .the Superior Court of Law, and the second judgment of the County Court, be reversed, with all the costs; and the first judgment of the County Court affirmed.

Judges COALTER, CABELL, and the PRESIDENT, concurred; ’and judgment was entered accordingly. 
      
      Judge Green, absent.
     