
    GENERAL COURT,
    MAY TERM, 1793.
    Thomas Tillard’s Lessee against Lewis Fisher.
    THIS was an action of ejectment, referred to Gabriel Duvall and Henry Ridgely, Esquires, attorneys at law, with liberty to choose a’third person as umpire. The following award was returned to the court, viz.
    “ We Gabriel Duvall and Henry Ridgely, arbitrators appointed to determine this cause, have fully heard the allegations of the parties concerned, and examined all witnesses and proofs produced and exhibited to us, and we do award and determine, of and concerning the premises, as follows: that is to say, we adjudge, arbitrate and determine that the defendant, Lewis Fisher, is guilty of the trespass and ejectment in the declaration in this cause mentioned, and that the tract of land called Beersheba Corrected, according to the evidence produced to us, is. truly located as the plaintiffs pretensions, on the plot returned by the surveyor of Ann Arundel county in this cause, and which is hereunto annexed ; but because we the said G. D. and H. R. do differ, and cannot agree further, of and concerning the premises, whether the lessor of the plaintiff hath just right and title to the whole of that tract of land called Beersheba Corrected, according to the location thereof as aforesaid, or to that part only, excepting the actual enclosures of the said Lewis Fishery of part of Beersheba Corrected, claiming the same as Birkheadds Chance; that is to say, the said Gabriel Duvall being of opinion, that the said lessor of the plaintiff hath just right and title to the whole of the said tract called Beersheba Corrected, as located on the said plot, and contained and circumscribed within the following bounds, courses and distances; that is to say, beginning, &c. And the said Henry Ridgely, being of Opinion, that the said lessor of the plaintiff, by reason of the act of limitations, hath just right and title to that part only, excepting the enclosures aforesaid, of the said Lewis Fisher, which he claims as Birkheacfs Chance, we do agree to nominate and appoint Philip Barton Key,, Esq. umpire, to determine finally between the said parties, of and concerning the premises. ■ Witness our hands and seals, this 26th day of May, 1792.” Signed and sealed by the two arbitrators.
    The following is the award of the umpire :
    “ It is stated that Lewis Fisher entered into, possessed by enclosure, and claimed as part of Birkheacfs Chance, a part of Beersheba Corrected, for more than twenty years, which tracts lay contiguous to each other j and it is further stated, that he did not claim the same as, part of Beersheba Corrected, but as being included within the lines of his own land, and that on a true location, the said land so enclosed is found to be within the lines of Beersheba Corrected; and the arbitrators having differed in opinion as to the operation of the act of limitations on the above state, and the same being submitted to my determination, I am of opinion, that the act of limitations does not attach, and that the lessor of the plaintiff is entitled to recover the whole land included within the lines of Beersheba Corrected, as located on the plot filed in this cause, together with costs of suit.” Signed and sealed by the umpire.
    Pinkney, counsel for the defendant,
    prayed the court that judgment should not be entered on the award of the arbitrators, for the following reasons :
    1st. The defendant alleges that the opinion of the umpire, as to the operation of the statute of limitations, and expressly stated in his award to be the foundation of it, is contrary to law.
    2d. That by the appointment of the said umpire, either the whole subject in controversy was referred to him, or only a particular part thereof, relative to the P°int °f limitations ; if the whole subject was submitted to him, the said umpire ought to have taken the entire case into his consideration, and examined into the different locations and titles of the parties before he gave his award, which, it appears from the award itself, he did not, but confined his inquiries solely to the question of law concerning the operation of the aforesaid statute, and being satisfied on that point, proceeded without further investigation, to decide that the lessor of the plaintiff ought to recover the whole tract of land in the declaration mentioned, with costs ; but if only part of the subject was referred to the said umpire, by his appointment, the defendant alleges that such appointment and reference were irregular and void, for that no such umpirage can exist by law, as to part only of the subject matter originally referred j but that the umpire must have all the power of the arbitrators by the original submission, or none.
    3d. That if the act or award of the umpire is void, so is the award of the arbitrators, or at least it is so incomplete and imperfect, that no judgment can be rendered thereon; for that the act of the said arbitrators, as returned and filed, is either a decision of only part of the case referred, in which event it is void, or it is a mere appointment of an umpire, which cannot found a judgment of this court.
    4th. That when an umpire is appointed, the parties are as much entitled to notice of the time and place, when and where he means to proceed under his appointment, as they are in the case of immediate referees; and ¿hat no notice whatsoever was given to this defendant, or his counsel, of the time and place when and where the said umpire intended to go into a consideration of his cause; nor did this defendant, or his counsel, ever know or hear that the said umpire had been appointed until after lie had given his award, and the same had been Sled in this court.
    
      5. That under the acts of assembly respecting awards, by rule of court, and under the rule of reference in this cause, and the practice and usage in similar cases, an award given by an umpire alone is not a lawful award; but that when an umpire is chosen, he must join in making an award with one of the arbitrators, so that the award made may be the act of a majority of the arbitrators and umpire, before the same can be valid; and that in this cause there is no final award made by any but the said umpire, which, therefore, is not a legal one.
   The Court

set aside the award, there being an error in law apparent upon the face of the award, as to the Statute of limitations not attaching where the defendant had been in possession by enclosures for more than twenty years.

The court doubted their power to reinstate the cause for trial. It was done, however, with the consent of the defendant’s counsel.

At May term, 1794, the court determined that the cause could not be reinstated, and the parties were obliged to docket the suit, file a new declaration, and agreed to admit the old proceedings as a part of the new suit.  