
    *Schenck and Wife against Voorhees.
    The arbitrators had, by mistake, inserted the surname of the defendant in the place of that of the defendant, in both papers, which they had prepared as duplicate originals of their award; in reading one of them to the parties, as the publication, the error was discovered, and rectified with the assent of the parties, and the paper thus corrected was published as the award, and delivered to the plaintiff; the other copy delivered to defendant accidentally remained uncorrected; held, that the award, as delivered to the plaintiff, was good, and sufficient to support an action for the non-payment of the money ordered to be paid to plaintiff.
    This was an action of debt, on an award. At the trial of the cause, a general verdict passed for the plaintiff, subject to the opinion of the court, on the following case. A difference having arisen between Ephraim Lore and Catharine his wife, Court Schenck and Sarah his wife, and John P. Voorhees, on the one side, and John Voorhees, the present defendant, on the other side, with regard to the estates of Peter and Gertrude ■ Voorhees, deceased, the parties above named, on the 24th of May, 1793, under their hands and seals, agreed to refer these controversies, as well as all other disputes between the parties, to certain arbitrators, and bound themselves to agree to the settlement which these arbitrators should make in three months after the submission, in the penalty of £1000.
    On the 24th of June, 1793, the arbitrators made and subscribed two papers, purporting to be awards between the parties aforesaid, reciting, that being appointed to settle all matters in difference between Court Schenck and Sarah his wife, and the other parties mentioned in the agreement, they award several sums of money to Lore and John P. Voorhees, and also award, that the same John Voorhees shall pay unto Court Voorhees and Sarah his wife, £107 3s. 4d. specie, in full of all demands, as legatee or any otherwise.
    
      After having executed the papers aforesaid, the arbitrators, in the presence of all the parties to the submission, proceeded arid began to publish the same, by reading the paper purporting to be their award, and given in evidence to support the present action. During the reading, when they arrived at the name of Court Voorhees, the mistake was discovered, that it had been accidentally inserted instead of Court Schenck. The arbitrators, therefore, immediately, in the presence of the parties, and with their assent, rectified the error by striking out Voorhees and inserting Sahenek, according to the original intent of the arbitrators. * After the error was thus amended, and the instrument published as the award, it was, as such, delivered to the plaintiffs; the counterpart, in which, by mistake, the same error was suffered to remain, was delivered to the defendant. The question arising in the case is, whether, under these circumstances, the plaintiff can recover ?
    
      Aa. Ogden, for the plaintiff.
    The only ground upon which the defence in the present case is rested, is the variance existing in the two papers executed by the arbitrators, as their award under the submission. Every formality has been complied with, the merits of the case have been fully investigated and fairly decided. No attempt has been, or can be made to impugn the decision upon the ground of any impropriety, or corruption, or mistake, nor can the justice of the award be called in question. Will the court, then, under those circumstances, prevent the plaintiff’s recovery ?
    1. In point of law, the paper delivered to the plaintiff is the only instrument which the court can recognize as the award of the arbitrators; that alone having been published and read as the award. The only question arising from the record, when nul tiel award is pleaded, is the legality and sufficiency of the instrument declared upon ?
    
      2. Supposing both papers to come under the consideration of the court the variance subsisting between them cannot disaffirm the one declared upon, so as to support the plea of nul tiel award.
    ■ 1. The first, alone, must be considered as the award; it is declared upon as such, and is proved to have been executed and published as such. There was no stipulation, that the award should be delivered to both parties, so as to give any legal validity to the second. A power was delegated to the arbitrators, which was fully complied with, and their authority terminated by the publication of the award on which the action was brought. Any other and further acts on their part were not within the submission, or the scope of their authority; and being merely void, cannot vitiate a valid instrument, or divest us of rights legally and fairly acquired.'
    The rule in 1 Bac. Abr. title Award F. is, that “ if it be provided by the submission that the award should be notified or *delivered to the parties in writing, it is no award till notified or deliveredbut, as is added in the marginal note, “ if there be no such provision the parties must take notice of it at their peril, and if they do not the act awarded, it is a forfeiture of their obligation.” The delivery of the paper to the defendant, not being within the submission, is a nullity, and the maxim, utile per utile non vitiatur, is applicable.
    Before the defendant can avail himself of this second paper, as being the real award between the parties, he must shew it to be a legal instrument, and of binding force. This, however, cannot be pretended. It is not within the submission, or a settlement of the differences between the parties, because no such person as Oou'rt Voorhees was a party to the reference ; nor is it intimated that such a person is actually in existence. The instrument, therefore, is a mere nullity, and cannot be permitted to destroy that which is perfect and legal.
    
      Admitting, however, that both papers are to be regarded together, as forming parts of one and the same transaction; or that this last one stood by itself, independent of the other, the mistake is too plain to lead the defendant into an error. It is evidently an accidental substitution of one surname for another, not calculated to perplex or mislead. In Co. Lit. 3, a. it is stated, that the mistake in a surname is not filial in a grant. 4 Corn. Dig. Fait F. 3, if a surname bo mistaken it shall not avoid the deed; not oven if it be totally different.
    If the word Voorhees, thus accidentally inserted, be rejected, the award will be in favor of Court and Sarah his wife, which is readily understood by reference to the recital of the parties to the submission. It is a sufficient description of the persons.
    Should it still be urged, however, that the description is so uncertain, that the plaintiffs cannot be considered as certainly intended, it is a case of latent ambiguity, which may be explained by parol, or other evidence. In Dowset v. Sweet (Ambl. 175), where a devise was to John, the son of J. S., and J. S. had no son John, but a son Janies, it was held that James should take. So in Bradwin v. Harper, fol. 374 of the same book, it was held, that whore there was a mistake in the description of a legatee, yet the legacy was held good, and took place according to the intention. In Beaumont v. Fell (2 P. Wms. 140), "where both the Christaiu and the surnames were mistaken, the legacy *was hold good. The same doctrine is recognized in numerous other cases, which it would be a waste of time to bring to the notice of the court. One observation may, however, be made on them, that in these cases parol testimony was admitted to explain the ambiguity; here it is removed by evidence of a higher character, by an instrument in writing, of at least equal validity as that in which the mistake exists.
    
      Wherever a mistake exists, evidence is admitted to prove and explain it. 2 Vesey 218; 6 Term. Rep. 676. Ilere it wa.s immediately discovered, and rectified by consent of parties.
    
      R. Stockton, for defendant
    This is an action of debt qn an award, and, under the statement of the case, we contend that no recovery can be had.
    1. Where an award is to be made in writing, and two papers, materially different in their contents, are delivered to the parties, neither of them is good. Where the submission is, so as the award be made in writing, and ready to be delivered to the parties, on or before, &c., it seems to be conceded that this-objection would be fatal. In the present case it is almost the same, and the same consequences ought to follow. It is an erroneous execution of their authority, and in a material and substantive particular. The submission is of the controversies between one set of persons, the award delivered to defendant, by which alone lie is bound, is between parties not named in the submission, and not parties to the reference. The award, on the face of it, therefore, is materially defective, and cannot be helped by averment. Pope v. Brett, 2 Saund. 292; Bacon v. Dubarry, 1 Ld. Raymond 246.
    The cases cited of a latent ambiguity, are altogether inapplicable. A latent ambiguity is.one not apparent on the face of the instrument, but the uncertainty is shewn to exist by. evidence de hors; it is clearly, therefore, a case in which the ambiguity having been raised by testimony, may be explained in the .same manner. Bull. N. P. 296. But the case under consideration is widely different; the defect is patent,.and therefore invalidates the instrument, it being absolutely incurable. Independent, however, of this objection to the'authorities cited, this is, it is believed, the first time that cases upon wills have been adduced to explain difficulties, or to afford rules of construction in awards.
    
      Can this court carry into execution an award in favor of Court Schenck, which purports to be made in favor of Court Yoorhees; at least, before it is proved that there is no person bearing this latter name, and having a wife of the name of Sarah ? It would, indeed, be going far to determine that the plaintiff shall be entitled to a sum of money expressly awarded to another person.
    The case of Green v. Lundy, decided at Hunterdon in 1793, (Coxe Rep. 435) affords a sufficient answer to the argument, that the court may confine their attention to one of those instruments. It was there held, that the arbitrators cannot make two awards substantially different from each other, or if they do, the parties may refuse to perform either. The only distinction that can be raised is, that there the action was brought on the submission bond, here immediately on the award; a difference perfectly immaterial, and insufficient to take this case out of the same principle.
    With respect to the alteration having been made by consent; this is a circumstance not apparent on the face of the award, but which could be proved alone by parol testimony. If the ambiguity however does exist, as it unquestionably does, parol evidence cannot be admitted to prove, either that the intention of the arbitrators was inaccurately expressed, or that the defendant assented to the rectification of it. Powel on Mortgages 61.
    As to the delivery, the paper given to defendant was given as the awrard, and this delivery is a sufficient publication.
    
      Ogden, in reply.
    
    Green v. Lundy went upon grounds altogether different. There the award was to be delivered to the parties; each was entitled to it, and it was accordingly delivered to each. The variance, also, was such as could not be helped by construction ; the instruments were wdiolly dissimilar, and it was utterly impossible to ascertain which was agreeable to the intentions of the arbitrators. Both papers were delivered as their award; here it is not proved that the paper given to Voorhees was delivered as such. In that case, also, it did not appear that Lundy had any notice of the contents of the award delivered to Oreen, or of there being any variance between them. The distinction remarked by the opposite counsel is not so unimportant *as he would consider it; for when a party sues on a penalty he is held to much stricter proof.
   The opinion of the court was delivered in November, 1800.

Kinsey, O. J.

(After stating the case.) — The question made in this case is, whether the plaintiffs can maintain an action on the award delivered to them? in other words, whether the mistake, by which the money was ordered to be paid to Court Voorhees and Sarah his wife, in the paper delivered to the defendant, so vitiates the whole proceedings of the arbitrators, as that no recovery can be had in this suit ?

According to the statement of the case, it appears perfectly clear, that had the mistake not been discovered and rectified, as .it was done, and had both the papers remained unaltered, and been so delivered to the parties, no doubt could reasonably have been entertained as to the real intention of the parties, without having recourse' to the parol evidence in explanation of the facts. If, however, the evidence be considered, no doubt can exist as to this being a mere mistake of the arbitrators, and nothing more.

Another observation may be made: had the- arbitrators subscribed no other paper than the one so altered and so published, or had they not delivered another paper variant from it, to the defendant, this action could clearly have been supported on the corrected paper, and the award would certainly have been held good. Because, however necessary it might be to notify the award made to the defendant, yet ai" the submission did not prescribe any delivery to the parties, after notification ho was legally obliged to perform it, as fully as if the original award had been delivered to him. 1 Bac. Mr. 228; Hob. 51.

The ground of objection, however, to the obligatory force of the first paper seems to be, that both are equally entitled to be considered as the genuine award; that they are substantially different; that this variance creates an uncertainty, and that, therefore, neither is binding. Court Voorhees was no party to the submission, and Court Schenck cannot claim the benefit of an award made in favor of another person.

In the force of these objections, I cannot bring my mind, to acquiesce. The validity of awards depends, in general, 'upon their conforming to the terms of the submission, and a substantial variance will invalidate the award, either in toto or partially. The *terms of the submission may, however, be as various as the dispositions and pleasure of the parties. In the present case, the term3 prescribed are, that the arbitrators are to settle the differences between the parties, particularly those relating to the estates of John and Gertrude Voorhees, deceased, and that their award wrns to be final. That it was to be in writing, is rather inferrable from the word subscribe, than expressly stipulated; and that it was to be notified to the parties, seems to be implied in every case, before they can be liable for the penalty for non-performance. These alone are the terms which the parties themselves considered it necessary to prescribe, and it does not fall within the scope of our authority or inclination to annex any others, however reasonable and customary they may be. The question then is, whether an award has been made corresponding with the terms of the submission ? If so, the plaintiff must recover, otherwise the case is with the defendant.

In 1 Burr. 277, Hawkins v. Colclough, Lord Mansfield states the law, as it now stands, with regard to the construction of awards. He protests “ against critical niceties in scanning awards made by judges of the parties’ own choosing, in order to the determination of the disputes between them.” He admits, however, that even under the more liberal doctrines of modern times they must have these two properties, to be certain and final.” The certainty required, however, may be judged of according to a common intent, and consistent with a fair and probable presumption.” This language is not quite so perspicuous as could be desired, but I take his meaning obviously to be, that which “ upon a fair and reasonable construction may be called certain, without recurring to possible facts which do not appear,” as is stated by Duller, in The King v. Lyme Regis, Doug. 158-9. That is, consider the instrument together, make no suppositions which do not appear, and endeavor to ascertain the probable meaning. If I am obscure I am so with great men, and upon a subject, the nature of which does not permit perfect clearness of language.

It is not denied that Court Voorhees and Sarah his wife are not parties to this submission ; and it is equally unquestionable, that Court Schenck and Sarah his wife are. The arbitrators recite the names of the parties correctly; that they have deliberately considered the allegations and evidences of the parties of *whom they consider Schenck as one; they award expressly to all the parties, excepting him alone. In the part designed for his benefit they accidentally insert a wrong surname. This is a fair statement of the case; and can any reasonable man say, that, on a candid view of the circumstances, he could entertain a doubt but that the plaintiffs were actually designed ? The Christian name is correct, the name of the wife is correct, and the presumption arising from the recital of the names of the parties, point clearly to a mistake, and to the manner in which it ought to be rectified. Court Voorhees was not present to the arbitrators, and it does not appear that such a man is in existence. Here is a probable presumption or certainty to a common intent.

Again, the paper produced by the plaintiffs was actually read and published by the arbitrators, in the presence of the parties, alter correction, as their award; that in the possession of the defendant never was so read and published. If nothing had transpired with respect to the second, the parties were obliged to perform their part of the first at their peril. It formed a complete execution of the power delegated to the arbitrators, and the object of their appointment being fulfilled, their authority terminated. The delivery, then, to the defendant was a superfluous act, and superfina non nocent is a sound and rational maxim.

If, then, the first paper ivas the award, and that is free from ambiguity, a variance between that and the latter can work no injury, unless it could have cast a doubt upon the real meaning of the arbitrators. The maxim of law is nil facit error nominis si constat de persona. If it is necessary to have recourse to conjecture to remove an ambiguity, Lord Mansfield says, that if certainty may be attained by a fair and reasonable presumption, it may be done; and by this rule, no doubt can remain as to the validity of the award. If the submission be, of all actions real and personal, and the award bo of actions personal only, the award is good^ and it shall be presumed that no actions real were depending between the parties. Kyd 114, (Phil. Kd. 172). If by manifest implication that appear, which, if positively expressed, would render the award good, that is sufficient to support it. Kyd 156, (230). Thus do courts favor awards, and I feel no disposition to swerve from so liberal a course.

In other cases counts assume a control and supply defects in *furtherance of justice, as where, in summoning a jury, Tippet was returned in the venire, and in the habeas corpora and distringas he is named Typper, yet if Tippet be the true name it shall be amended; 3 Lac. Abr. 776: and a distinction is taken between the mistake of a Christian name and the mistake of a surname. The amendment by the court could alone make this good, and surely there are no reasons why we may not go as far in cases of awards.

The case of Green v. Lundy has been pressed upon us. I confess I am unable to see in what manner the principles of it apply. There the arbitrators, after bearing the parties, made two awards, variant in the subject matter; different in settling the courses and distances of a line of property. Both the papers stood on an equal footing as to the publication, and every other circumstance requisite to an award. It was utterly impossible for the court to determine between them ; and if they had clone so, they would have usurped a power delegated to others, a power which the laws never committed to their hands. In that case Lundy was sued for non-performance of an award, which it did not appear, and which we could not therefore presume, was ever notified to him in any other manner than by the bringing of the action. It may further be remarked upon that case, that so essentially different were the two papers that the court could not give effect to one, without wholly rejecting the other; they therefore determined that the dispute was not terminated, and that the award on which the action was founded was not certain and final. The cases are wholly dissimilar, and involve different principles. I am of opinion, that judgment be entered for the plaintiffs.

The other judges concurred.

Judgment for plaintiffs. 
      
       The general rule on this subject is, that after an award is once made and delivered, no subsequent alteration by the arbitrators can avail. Such alteration, if attempted, will be considered mere surplusage, and will not vitiate the award, which will stand good in its original terms, liven before delivery of the award, if it be in fact made, and notice thereof given to the parties, no change can be effected, Cald. on Arb. 68. 6 East’s Rep. 309. 8 Ibid. 53. Ambler 246. 18 Ves, Rep. 447.
     