
    Ralph Day vs. Cutler Laflin.
    An assignee, under the United States bankrupt act of 1841, may maintain a writ 01 error to reverse a judgment rendered against the bankrupt.
    The St. of 1840, c. 87, § 5, does not take away the right, given by Rev. Sts. c. 114, § 13, to a writ of error to reverse a judgment on an award 5 it merely gives a cumulative remedy by appeal.
    Where arbitrators, under the submission prescribed by the Rev. Sts. c. 114, do not set forth, in their award, their doings and the result thereof, but refer, in their award, to statements of their proceedings, which they have delivered to the parties, the award cannot legally be accepted and confirmed.
    And if such arbitrators, instead of awarding that one party shall recover any sum against the other, indorse a certain sum on a note held by one of the parties against the other, and direct that the note, thus reduced by the indorsement thereon, shall be held by the payee as their award 3 such award cannot be accepted and made the ground of a judgment.
    This was a writ of error, brought by the assignee (appointed under the United States bankrupt act) of Matthew D. Field, a bankrupt, to reverse a judgment of the court of common pleas, rendered against said Field, at the June term 1841, for the sum of $ 1278-84 damages, and $ 14-10 costs of suit. This judgment was rendered on the acceptance and confirmation, by said court, of an award of arbitrators, under a submission entered into by said Matthew D. Field and the defendant in error. The submission was of all demands between the parties, and was in the form prescribed by the Rev. Sts. c. 114, <§> 2; but was acknowledged separately, by each party, on the 13th of July 1840, before different justices of the peace. The claims, annexed to the submission, were thus: “Cutler Laflin claims $ 5000 of Matthew D. Field, a balance due him on sundry notes, and also on private account, and on the partnership account heretofore existing between the parties. Also the costs of a suit commenced by said Cutler, and for costs of a suit in equity commenced by said Matthew. All property in which both are interested shall be divided or adjusted, by the referees, between the parties, and the referees shall also award and de termine in relation to any liabilities which either party may be under, to or for the other. Cutler Laflin.
    “ Matthew D. Field claims $ 5000 of Cutler Laflin, a balance due him on sundry notes,” [and repeating the words above used by Laflin, mutatis mutandis.]
    
    The award of the referees was in these terms: "We do award and determine, and this is our final award and determination, that there is due from said Field to said Laflin the sum of $1229-66; and said Laflin holds the note of said Field, of the sum of $2000, dated July 4th 1837, on interest, which note we have indorsed down to the said sum of $1229-66; which note, thus indorsed down, is the amount of our award ; and said note, so indorsed, is held by said Laflin as our said award: And in regard to outstanding claims against the firm of Laflin & Field, we award and determine, that said Laflin pay two thirds thereof, and said Fielu the other third thereof, excepting William Bliss’s account, the whole of which said Laflin is to pay: The division of property between the parties was made by the parties themselves, after the hearing before us commenced : We award that said Field has no claim against said Laflin on account of any copartnership with O. D. Ranney: A duplicate statement of proceedings relating to our award we have delivered to each of the parties: We have considered the purchase of the Adams property, so called, as a partnership transaction, and have adjusted the same, as will appear by said statement: All outstanding claims, that have arisen for said property, belong to said Laflin to pay, and said property is to be held by him: On the' suit and bill in equity between the parties, each party is to pay his own costs: The costs of court on this award to be taxed by the court.”
    It was assigned for error, (among many other things on which the court gave no opinion,) that said award was not certain nor final, and that the judgment did not conform to the award as made.
    
      Jones, for the plaintiff in error.
    The award is uncertain, in divers particulars. It does not state the amount of Bliss’s account, nor of the outstanding claims against the partnership, and gives no description of the Adams property. Nor does it appear from the award why the $2000 note was “indorsed down.” See Broivn v. HanJcerson, 3 Cow. 70. Jackson v. De Long, 9 Johns. 43. Waite v. Barry, 12 Wend. 377. Munro v. Alaire, 2 Caines, 820. The statement of the arbitrators, relating to their proceedings, and showing how they had adjusted the Adams property, was the award on that matter, and should have been returned to the court. The court could not know what it was, and therefore could not properly accept and confirm it. Kent v. Elstob, 3 East, 20, 21. Com. Dig. Arbitrament, I. 5.
    The award is not final. It leaves the note of $2000, reduced by an indorsement thereon, in Laflin’s hands. This is no bar to a suit on the note.
    The arbitrators could not have meant that Laflin should have judgment on the award; for they declare that the reduced note is their award, and they left that in his hands.
    
      Porter & Byington, for the defendant in error.
    A writ of error does not lie in this case. The St. of 1840, c. 87, gives an appeal in all cases where matter of law is apparent on the record, and thereby repeals § 13 of c. 114 of the Rev. Sts., which gave a writ of error, and withheld an appeal from judgments on awards. 4 Mass. 171. 6 Mass. 4. 3 Met. 372. And if a writ of error would lie, the plaintiff cannot bring it as he is neither party nor privy to the judgment, and is not injured by it. Bac. Ab. Error, B. 2 Tidd’s Pract. (1st Amer. ed.) 1053. 1 Archb. Pract. K. B. 209. 2 Saund. 46, note (6.) Bale v. Boosevelt, 8 Cow. 338.
    The award is sufficiently certain, and is final. Every matter specified in a submission need not appear in the award. It is sufficient if it appears, as it does on this award, that all the matters submitted have been adjudicated. Emery v. Hitchcock, 12 Wend. 156. Gaylord v. Gaylord, 4 Day, 422. Bolbier v. Wing, 3 Greenl. 421. Peters v. Peirce, 8 Mass. 398. Case v. Ferris. 2 Hill’s (N. Y.) Rep. 75. Watson on Arb. 103,
    
      The meaning of the arbitrators was, that the amount of the note, deducting the sum indorsed by them, was the sum which they found due to Laflin, and which they directed to be paid to him, in full of all demands between the parties.
    
      Jones, in reply.
    The 3d section of the United States bankrupt act, in effect, gives authority to an assignee to bring and defend all suits that the bankrupt might bring or defend. See Winter v. Kretchman, 2 T. R. 45. The Rev. Sts. c. 114, <§> 13, give a writ of error in this case; and St. 1840, c. 87, does not take away that remedy, but merely gives a cumulative remedy by appeal.
   Dewey, J.

The counsel for the defendant in error insist that this writ ought to be quashed as improvidently issued; and for this position they rely upon two objections: 1. That an assignee of a bankrupt cannot maintain a writ of error to reverse a judgment rendered against the bankrupt: 2. That a writ of error does not lie in the present case, there being by law a right of appeal to this court by the party aggrieved.

1. To maintain the first point, the defendant relies upon the general principle, that no person can bring a writ of error, unless he is a party or privy to the record, or is privy to the judgment ; and it is contended that the assignee does not stand in any such relation to this judgment. But we are very clearly of opinion that this objection is not well founded. The act of 1841, establishing a uniform system of bankruptcy, in the 3d section, after providing that all the property of the bankrupt shall vest in the assignee, further provides as follows: “ And the- assignee, so appointed, shall be vested with all the rights, titles, powers and authority, to sell, manage and dispose of the same, and to sue for and defend the same, (subject to the orders and directions of such court,) as fully, to all intents and purposes, as if the same were vested in, or might be exercised by, such bankrupt before or at the time of his bankruptcy declared as aforesaid.” This, we think, is extensive enough to embrace a suit like the present.

2. Does a writ of error lie upon a judgment of the court of common pleas accepting an award, for an error apparent on the record? By Rev. Sts. c. 114, <§> 13, the authority is directly given to any party aggrieved by such judgment, to bring a writ of error for any error in law or fact, and the supreme judicial court are thereupon to render such judgment as the court of common pleas ought to have rendered.

It is then contended, that this provision is abrogated by St 1840, c. 87, § 5, giving “ any party, aggrieved by any judgment of the court of common pleas founded upon matter of law apparent on the record,” the right to appeal to the supreme judicial court. It is attempted to maintain this position, by enforcing the principle, that a writ of error will not lie where an appeal lies, as was settled in Savage v. Gulliver, 4 Mass. 171; Jarvis v. Blanchard, 6 Mass. 4; and various subsequent cases.

Assuming that St. 1840, c. 87, § 5, applies to cases of judgments on awards, as we are inclined to think it does, and that an appeal may be taken in such cases, for error in matter of law apparent on the record; yet we think that this would not deprive the party of his writ of error, if he elected that remedy. This latter remedy being given by a previous statute, which is not repealed, either expressly or by implication, the remedy provided by St. of 1840 is to be considered merely cumulative. But further; it is to be considered that the appeal referred to in Savage v. Gulliver, and other cases, was an appeal in the broadest form, vacating the entire judgment, and opening the case wholly for trial on its merits. It was in reference to such an appeal that the rule, now relied upon, was adopted and so often applied. But an appeal for error in matter of law apparent on the record is a very different proceeding, is limited in its purposes, and was doubtless intended merely as a more convenient and simple method of reserving questions of law in certain cases, than by resorting to a bill of exceptions. Such being the nature of the right of appeal given by St. 1840, c. 87, § 5, we think its provisions would not, in any case, deprive the party of the right to his writ of error, if he elect that mode of correcting errors in matter of law, rather than the appeal given by this statute.

These objections being found unavailing to the defendant, wo are then brought to the consideration of the sufficiency of the e* rors assigned by the plaintiff to sustain his writ of error. Various objections are taken to the validity of this judgment, commencing with the submission itself, and attaching themselves to every stage of the proceedings. Some of them are quite untenable, while others, upon which we shall give no opinion, might require further consideration, if the result would be affected by them; but without reference to other objections than those which I shall presently state, the court are of opinion that the errors assigned are fatal to the judgment, and that the same must be reversed.

1. The award is void, being imperfect and uncertain as to the extent of it, and the final result of the action of the referees. It is so, because, after various recitals of the doings of the referees, they further add, “ a duplicate statement of proceedings relating to our award we have delivered to each of the parties: We have considered the purchase of the Adams property, so called, as a partnership transaction, and have adjusted the same, as will appear by said statement.” Now, it is very clear, that whatever of the doings of the referees, in the matter of making their award, is borne only upon the duplicates thus delivered to the parties, is not so distinctly set forth in the award, as to be acted upon by the court to which the award is returned for acceptance. If, upon a submission and award at common law, such statements, furnished to the parties, might be considered sufficient, as bringing directly to their knowledge the nature and extent of the award; yet such a course of proceeding will not do, in a submission under the statute. The parties here entered into a submission under the provisions of the Rev. Sts. c. 114, by force of which an award has no efficacy until accepted by the court of common pleas ; and every thing that enters into the award must, from the nature of the case, be borne upon the award returned to the court; and if not so done, it cannot be legally accepted by the court, and made the foundation of a judgment against the party to be charged thereby.

2. The award does not authorize the judgment and execution thereon, because, on the face of it, it does not award thal Laflin is to recover any sum in money of Matthew D. Field. It proceeds to adjust the matters in litigation, which were submitted to the referees, by finding that there is due from said Field to Laflin the sum of $ 1229-66, and that the note of said Field, held by said Laflin, for $ 2000, has been indorsed down to the sum of $ 1229-66 ; which note, thus indorsed down, is the amount of our award; and said note, so indorsed, is held by said Laflin, as our award; ” thus directing in what manner Laflin is to hold the evidence that Field is indebted to him, but not discharging the note, nor assuming to cancel it; but, on the contrary, directing it to be retained by Laflin; all which is entirely inconsistent with the idea that a judgment is to be rendered by the court for so much money, and an execution to issue therefor.

I am aware that there has been great liberality of practice m relation to giving effect to awards, and, contrary to what might seem the appropriate office of an award made upon a submission under our statute, conditional awards, and awards in relation to which no present judgment could be entered, authorizing an enforcement of the same by execution, have been sanctioned by this court; as in the cases of Commonwealth v. Pejepscut Proprietors, 7 Mass. 399, and Skillings v. Coolidge, 14 Mass. 43. If, however, such conditional awards are good, and bind the parties, yet they are not the foundation of a present judgment for money, and an execution to enforce the payment of the same. If the present award might have been properly accepted, and might have availed the parties, to the extent of adjusting their concerns upon the principles stated in the award, yet it furnished no sufficient ground for the judgment actually rendered thereon.

These defects, in the present case, are probably attributable to the circumstances connected with this submission, and the nature of the subjects submitted to the referees. The case was dealt with rather as a submission at common law, (which would have seemed a form more adapted to the adjustment of the various matters to be sett'ed between these parties,) than a submission under the statute. But the judgment entered was necessarily under the statute, and was, in the opinion of the court, unauthorized by law.

Judgment reversed.  