
    [JANUARY TERM, 1824.]
    *Jacob G. Broadwell and Jabez B. Baldwin, Survivors of Hezekiah Broadwell, Deceased, against Matthias Denman.
    IN ERROR
    
    1. A., B-, and O. being seized of certain lands, by articles of agreement agreed to convey all their interest in the same to D. at the rate of 8400 for each and every quarter or fourth share the said A., B., and O. might own; but because it was uncertain what number of shares the said A., B., and C. had in the premises, therefore it was submitted to E. and E., counsellors at law, to determine what proportion or shares the said A., B., and C. had in the premises; and the opinion of the. said E. and E. was to be conclusive. And it was further agreed, that A., B., and O. should, within ten days after E. and F. had determined their shares, convey the same with covenants of warranty to D. To render the determination of E. and E. valid, it is not necessary that they should have taken the oath required by the law in all cases of arbitration and reference.
    2. To maintain an action upon the above stated articles of agreement, it was necessary to shew that the said E. and F. did determine what right A., and B., had in the premises. To a plea, therefore, that the said E. and E-did not determine what part, how much, and what proportion or shares the said A. and B. had in the premises, a replication that they did determine what part, how much, and what proportion the said O. had in the premises, is bad.
    
      3. Where by articles of agreement, dated the 18th October, 1809, it is recited “that D. had that day purchased all the right which A., B., and C had in certain premises, and it being uncertain what proportion or shares the said A., B., and O. had in tlie same, it was agreed to submit it to counsel to determine the same.” Tlie true construction of this article is, that tlie said D. shall take all the land to which the said A., B., and C. had title at the date of the article of agreement; but he is not bound to take that part of the premises to which the said A., B , and O. obtained title subsequent to the date of said articles.
    4. After a demurrer has been argued and overruled, the court will not permit it to be withdrawn in a case whore they are of opinion that the party demurring could not plead successfully.
    This was an action of covenant, brought by Broadwell and Baldwin, as survivors of Hezekiah Broadwell, deceased, against Matthias Denman, to recover damages for the nonperformance of the covenant contained' in certain articles of' agreement, which articles bore date on the 18th day of October, 1809; and after reciting, that whereas the said Hezekiah, Jacob, and Jabez were seized in fee of three-fourth parts and one-sixteonth of the remaining fourth part of a certain tract of land situate in the township of Pequannock, in the county of Morris, and also of the whole of one other adjoining lot, containing ten acres and a half, *it was agreed by the said Hezekiah, Jacob and Jabez, of the one part, and the said Matthias Denman, of the other part, to convey to the said Matthias Denman all the interest of the said Hezekiah, Jacob and Jabez, in the said two lots of land, whatsoever the same might be, at the rate of $400 for each and every quarter or fourth share the said Hezekiah, Jacob and Jabez may own. And whereas, it was uncertain what number of shares the said Hezekiah, Jacob and Jabez had in the premises, therefore, by the same articles, it was submitted to Isaac PI. Williamson and William Chotwood, Esqs., to determine what proportion or shares the said Hezekiah, Jacob and J’ahez had in the premises, whose opinion was to be conclusive. It was further agreed by said articles, that the said Hezekiah, Jacob and Jabez should, within ten days after the said Isaac and William should determine what part or proportion they had in the same, convey the same by good and sufficient deed (containing covenants of seizin, peaceable enjoyment, and that they were not incumbered) to the said Matthias Denman. And the said Matthias Denman agreed, by said articles, to pay $320 and the residue, to wit, $400 for each quarter share, in equal payments of three and six months from the delivery of the deed.
    The declaration set forth the title of the plaintiffs to the' ten and a half acres lot mentioned in the articles of agreement, and also to three-fourth parts and one-sixteenth of the remaining fourth part of the lot containing two acres and eighty-seven hundredths of an acre. It set forth the articles of agreement in substance as above stated; averred that the said Isaac H. Williamson and William Chetwood accepted the trusts in the said articles mentioned, and did make a deduction of title; and on the 12th of February, 1810, “ that ITezekiah Broadwell had made out a title for the ten and a half acres lot, and for three-fourth parts and one-sixteenth of the remaining fourth part of the two acres and eighty-seven hundredths of an acre; and that the said Hezekiah Broadwell, Jacob G. Broadwell, and Jabez B. Baldwin, on the 27th day of February, 1810, made a deed to the said Matthias Denman, for the consideration .of $1,450, of all the interest which the said Isaac H. William'son and William Ohetwood had determined the said’Hezekiah, Jacob and Jabez had in the said premises, containing the covenants required by the said articles of agreement, and tendered the same, duly executed, *to the said Matthias Denman, on the 5th March, 1810, and that he refused to accept the same, by reason whereof,” &c.
    To this declaration the defendant pleaded nineteen different pleas. Those necessary to be stated for the understanding of the points raised in the cause are — the 7th, which stated, in substance, “ that it did not appear in the supposed written opinion of the said Isaac H. Williamson and William Chetwood that they had taken an oath or affirmation faithfully to hear and determine the cause and concluded with a verification.
    The 8th, which stated generally, “ that the said Isaac and William did not take an oath or affirmation:” and concluded with a verification.
    The 9th, which stated, “ that it was agreed in the said articles of agreement that the said Isaac and William should determine what part, how much, or what proportion the said Hezekiah, Jacob and Jabez had in the premises, viz., in the two lots; and that the said Isaac and William did not determine what part, how much, and what proportion, share or shares the said Jacob and Jabez might have in the said premises:” and concludes with a verification.
    The 10th, which stated the substance of the articles of agreement, (as before set out) “and that, by the written opinion of the said Isaac and William, it appears, and is set forth in the deduction of title to the said ten and a half acres lot, that one James Young conveyed to the said Hezekiah, by deed dated 25th January, 1810, one-half of the said ten and a half acres lot:” and concludes with a verification.
    And the 11th plea, which referred to the said articles of agreement, and that it was recited and agreed in the said articles (as in the last plea mentioned), “ and that by the said written opinion or award it further appears, and is set forth in the deduction of title to the two acres and eighty-seven hundredths of an acre, that the title in and to the one twenty-fourth part thereof was conveyed by one Stephen Fairchild to the said Hezekiah, by deed bearing date the 1st of November, 1809 :” and concludes with a verification.
    To the 7th, 8th, 10th and 11th pleas the plaintiffs demurred; and to the 9th plea they reply, “ that the said Isaac H. Williamson and William Chetwood did determine what part, how much, *and what proportion the said Hezekiah had and owned in the said premisesand concludes to the country.
    The defendant joins issue on the demurrer to the 7th, 8th, 10th, and 11th pleas, and demurs to the replication to the 9th plea, and shews for cause of demurrer — 1st. “ That the said ninth plea alleges that the said Isaac H. Williamson and William Chetwood, in and by their said opinion, did not determine what part, how much, or what proportion, share or shares the said Jacob and Jabez might have or own in said premises. And the replication thereto alleges that the said Isaac H. Williamson and William Chetwood, by their written opinion, did determine what proportion, share or shares the said Hezekiah had and owned in the said premises, which matter so alleged in the said replication, is no sufficient answer to the matter in the said plea alleged.”
    2d. “ That in case the matter in the said replication was a sufficient answer to the matter in the said ninth plea, yet the said replication ought to have concluded with a verification, in order that the said defendant may have an opportunity of answering it.”
    3d. “ That the said replication doth not traverse or deny the matter in the said ninth plea alleged, or any or either of them, and yet improperly concludes to the country.”
    Plaintiff joins issue on the demurrer to the replication to the ninth plea.
    
      Saudder $ W. Hoisted, counsel for the plaintiffs,
    in support of the demurrer to the seventh plea, contended that it was not necessary for the counsel to whom was submitted the determination of the proportions which Hezekiah, Jacob, and Jabez had in the premises, to take an oath, as is required by lh.3 statute of New Jersey, (Pat. 142, sec. 6) when controversies are submitted to arbitration. This was not arbitration, for there could be no arbitration, according to the legal definition oí that word, unless there was some controversy, suit, quarrel, or dispute between the parties. (Bl. 16. Pat. 141. 2 Saund. 61, n. 1.) It could no more be called an arbitration than if a person should agree to purchase all the grain growing in a certain field, at a certain sum per bushel, and a third person should be employed to measure it and ascertain the number of bushels, as well might the agent in this case, who measured the grain, bo considered *as an arbitrator, and required to take an oath, as the counsel in the case before the court. Besides, the opinion of the counsel, when delivered, was not binding or imperative upon the parties, as in case of an award ; it was merely advisory.
    The demurrer to the 8th plea stood upon the same ground as that of the preceding, and therefore they must both stand or fall together.
    In support of the demurrer to the 10th and 11 th pleas, they said “ the question raised by this jilea was, whether under the articles of agreement, dated 18th October, 1809, reciting ‘ that the said Matthias Denman had that day purchased all the right and interest of the plaintiffs, it being uncertain what proportion the said plaintiffs had in the premises, it was agreed to submit to counsel,’ &c. The said Matthias Denman was bound to take all the land mentioned in the articles to which the counsel should declare him to have title, although that land was purchased after the date of the articles of agreement, or was bound to take only so much of the premises in the said article mentioned as the said counsel should declare the plaintiffs had title to at the date of the said articles ?” It appears by the deduction of title made out by the counsel, that one-half of the ten and a half acres lot to which they declared Hezekiah to have title, was conveyed to the said Hezekiah on the 25th of January , 1810, that is, subsequent to the date of the articles of agreement, but prior to the decision of the said counsel, which was not until the 12th of February, 1810. We contend that the defendant was bound to take all the said premises to ■which the said plaintiffs had title at the time of the decision made by the.counsel; for it is not necessary that a party articleing to sell land should have a title to it at the time the articles are entered into. Rut it is sufficient if the party entering into articles to sell, has a good title at the time of bringing the action for the non-performance of the articles, and cited 1 Esp. W. P. Cases 184. Sugden Law Vendors 160, 249. 2 P. Wms. 630.
    And in equity a vendor may compel a specific execution of a contract for the sale of land, if he is able to give a good title at the time of the decree, although he had not a good title when, by the contract, the land ought to have been conveyed. 5 Craneh’s Pep. 262. 1 Wheat. 196. 4 Lis. Eq. Pep. 136. 6 P. Wms. 630.
    *As to the demurrer to the replication to the ninth plea, they contended it should be overruled, for that the replication did ’contain a sufficient answer to that plea. It was perfectly immaterial, they said, whether the counsellors determined what interest Jacob and Jabez had in the premises or not. The only object Denman could have had in view in submitting to counsel to ascertain the title of the plaintiffs, was that he might know how much he- might safely purchase, and whether the whole of the land was owned by one of the plaintiffs, or each owned a third, was a matter of no consequence to him. It was the aggregate quantity to which all or either of them could make title that he could alone be interested in knowing. Denman was to take the whole of the^premises specified in the articles of agreement to which the plaintiffs could make title : whether .that resided in one or all of the plaintiffs could not at all vary his liability; and if his liability under the articles could not be varied by the circumstance of'the whole being found in one of the parties, then the ninth plea is vicious, because it does not traverse the whole of the declaration ; as to the determination of counsel upon the share or interest of Hezekiah, it tenders no traverse, and thereby excludes the plaintiff from taking issue upon the title of Hezekiah, ■which is a material point. 1 Saund. 28, n. 3 ; Co. Lit. 303. Therefore if the plea is bad, although the replication should be bad, yet, the defendant making the first default, judgment must be rendered against him. 5 Com. Dig. 466.
    
      Vanarsdale, contra, contended
    1. That the counsellors to whom was referred the question of title were to be considered as arbitrators, and that the submission contained in the articles of agreement was a submission to arbitration. Here there is a dispute between the plaintiffs and defendant as to title. There is no necessity of the parties having cause of action. It is^ enough if there is matter of dispute between them. Cold, on Arb. 53; Kyd on Awards 4, 6. Every quality necessary to constitute an arbitration is combined in this submission. It is not denied that the matter is the proper subject of reference. In the declaration the technical language, “ trust and submission,” is used. Ten days’ notice is to bo given to each party of the time and place of hearing. The decision of the counsel in this case did not depend upon a mere numerical calculation, but upon an operation *of the judgment, which might require the exertion of the greatest faculties of the mind. This case, therefore, did not differ from other arbitrations, and the counsel should have taken the oath required by the statute.
    2. As to the demurrer to the 10th and 11th pleas, he contended that if should be overruled. The articles of agreement state that Mr. Denman “ had that day ” agreed to purchase all the right of plaintiffs. The agreement must be considered as speaking on the day. The counsel were only to say what title the plaintiffs had at the date of the articles, and not that which should be subsequently acquired. This was the only authority they received from the submission. They could not exceed that authority, nor vary the duty they had to perform. 2 Esp. N. P. 122. This decision, if I am right, contains in it a principle fatal to the plaintiffs’ cause of action. If it is bad in part it is bad in the whole. If, therefore, the plaintiff had only a title to part, when the arbitrators have awarded the whole, the whole award is bad. 3 East 18. The cases relied upon by the adverse counsel are equity cases, and therefore do not apply. But a] more substantial answer result from the agreement. By those articles, Denman had agreed to purchase all the plaintiffs’ right to the premises, that is, he agreed to purchase a specific right, and they could not after that go round the country and buy up- other rights, and compel him to take them.
    3. As to the 9th plea. This sets up a particular fact, and the plaintiff must either traverse that fact or set up a new fact in avoidance: but the replication does neither, and is therefore bad. It does not appear but what the remaining interest may be in Jacob and Jabez.
    
      
      T]ie Reporter was not present at the argument in the Court of Errors, hut the case will he perfectly understood hy the report of the proceedings in the Supreme Court and the subsequent affirmance of the judgment in the Court of Errors.
    
   The opinion of the court was delivered by

Ford, J.

1. As to the 7th and 8th pleas, we clearly think they are bad, and must be overruled; because the opinion of counsel was merely, advisory, and was not to conclude any matter, for the plaintiffs are afterwards to guarantee the title.

2. As to the 9th plea, we are of opinion that it is available and substantial, and that the replication is vicious. It appears to us, that, in order to ground an action upon that article, the counsel ought to have determined what right Jacob and Jabez had in the premises.

*3. The IOth and ll'th pleas are good, and the demurrers must be overruled. The defendant agreed to purchase the quantity of land that the plaintiffs had at the time the articles of agreement were entered into. The cases read by the plaintiff’s counsel upon this point are not analogous.

Scudder then moved for leave to withdraw the demurrer to the 10th and l'lth pleas, and to plead.

Kirkpatrick, O. J.

The withdrawing a demurrer is only permitted to save the expense of bringing a new suit. The court ought always to inquire whether the plaintiff can plead successfully or not, before they will allow him to withdraw liis demurrer and plead. As we are of opinion that you could nqt plead successfully to these pleas, your motion must be denied.

During the term, a' writ of error was presented in this case, and allowed.

• Court of Errors. — Upon the return of the writ of error, the following errors were assigned:

1st Error. Afterwards, that is to say, on the first Tuesday of November, in the year of our Lord one thousand eight hundred and twenty-one, before the governor and council in the Court of Appeals, in the term of November, in the year aforesaid, come the said Jacob and Jabez, by Smith Scudder, their attorney, and say, that in the record and proceedings aforesaid, and also in the giving of judgment aforesaid, there is manifest error in this, to wit: that by the record aforesaid it appears that the judgment aforesaid, in form aforesaid’ given, was given for the said Matthias Denman against the said Jacob and Jabez, whereas, by the law of the land, the said judgment ought to have been given for the said Jacob and Jabez, against the said Matthias.

2d Error. There is also error in this, to wit: that by the record aforesaid it appears that the said Matthias, in and by his tenth plea before the said Supreme Court, by leave thereof pleaded, set forth and said that the said Jacob and Jabez ought not to have or maintain their action aforesaid against him, because, he said, that in and by the said supposed articles of agreement in the said declaration mentioned, 'bearing date the eighteenth day of October, eighteen hundred and nine, it was recited that the said Hezekiah, Jacob, and Jabez claimed an undivided *right and interest in and to the said two lots of land in the said declaration mentioned; and that the said Matthias had that day purchased of the said Hezekiah, Jacob, and Jabez all their right and interest, whatsoever the same might be, in the said lots of land-and premises; and'that it was uncertain how much or what part or proportion of the said premises the said Hezekiah, Jacob, and Jabez may have an absolute title in fee simple for, the said parties to those presents agreed to employ and pay a joint fee unto Isaac H. Williamson and William Ohetwood, Esquires, counsellors at law, to investigate the various titles said to be held by various persons to the said premises, and .that the said Isaac and William should determine what part, how much, or what proportion, share or shares the said Hezekiah, Jacob, and Jabez might have or own in the said premises, and that the determination, written opinion, and award of the said Isaac and William should-'be conclusive of the quantity, proportion, share or shares of the said premises, which the said Hezekiah, Jacob, and Jabez were to convey to the said Matthias Denman, his heirs, and assigns. And the said Matthias further says, that in and by the said supposed written opinion and award made by the said Isaac and William in the said declaration mentioned, it appears and is set forth in the deduction of title to the ten and a half acres lot, that oiie James Young conveyed to the said Hezekiah Broadwell, by deed dated the twenty-fifth day of January, in the year of our Lord eighteen hundred and ten, one-half of the-said ten and a half acres lot, to wit: at Newark aforesaid; and this the said Matthias saith he is ready to verify, wherefore he prays judgment if the said Jacob and Jabez demurred generally, and the said Matthias thereto joined in demurrer; and the said Supreme Court, upon that issue, gave judgment for the said Matthias against tlie said Jacob and Jabez, whereas by law the said judgment ought to havo been given for the said Jacob and Jabez; therefore in that there is manifest error.

3d Error. There is also error in this, to wit: that by the eleventh plea of the said Matthias, by him pleaded before the said Supreme Court, by leave of the same court in the record and proceedings aforesaid, it appears that the said Matthias therein pleaded and said, that the said Jacob and Jabez their said action against him ought not to have or maintain, because, he said, that in and by the said supposed articles of agreement in the tenth *plea last aforesaid mentioned it was recited and agreed, as in the said tenth plea is mentioned. And the said Matthias further said, that in and by the said supposed written opinion and award in the tenth plea mentioned, it further appeared and was set forth in the deduction of title to the said two acres and eighty-seven hundredths of an acre that the title in and to one twenty-fourth part thereof was conveyed by one Stephen Fairchild to tho said Hozekiali, by deed bearing date the first day of November, in the year of our Lord eighteen hundred and nine, to wit, at Newark aforesaid, in tho county of Essex aforesaid, and this the said Matthias said lie was ready to verify ; wherefore he prayed judgment if the said Jacob and Jabez their aforesaid action thereof against him ought to have or maintain. To which plea of the said Matthias the said Jacob and Jabez demurred generally, and the said Matthias thereto joined in demurrer, and the said Supreme Court upon that issue gave judgment for the said Matthias against the said Jacob and Jabez, whereas by law the said judgment ought to have been given for the said Jacob and Jabez; therefore in that there is manifest error. There is also error, in this, to wit, that by the record and proceedings aforesaid, and the judgment aforesaid, it appears that the court considered that the replication of the plaintiffs to the ninth plea of the defendant was insufficient in law for the plaintiffs to have or maintain their said action against him, and that the demurrer of the defendant to the said replication was allowed, and judgment given for the defendant thereon ; and for that the court further considered that the tenth and eleventh pleas of the defendant, and each of them were good and sufficient in law to bar the.action of the plaintiffs against the defendant; and that the demurrer of the plaintiffs to the tenth and eleventh pleas of the defendant were overruled, and judgment given on those pleas for the defendant; therefore, in that there is manifest error. And the said Jacob and Jabez pray that the judgment aforesaid, for the errors aforesaid, and other errors in the 'record and proceedings aforesaid, may be reversed, annulled, and altogether held for nothing, and that they may be restored to all things which they have lost by occasion of the said judgment, &c.

Smith Scudder,

Att’y for Plaintiffs in Error.

*At the special term of the Court of Errors in January, 1824, the writ of error was argued by Scudder, for plaintiffs in error, and Vanarsdale, for defendant.

Upon the question, whether the judgment of the Supreme Court should be reversed, five o'f the members of the Court of Errors voted for the reversal, and seven against. The governor was excused from voting.

The following entry was made in the minuses of the court, the court having inspected the record returned with the writ of error in this cause, and having heard the assignment of .errors and joinder therein, and the arguments of the counsel of the respective parties thereupon, and upon due deliberation had, do order and adjudge, that the judgment be, and the same is in all things affirmed, with costs.

Judgment affirmed.  