
    WESTMORELAND COUNTY.
    June Term, 1794.
    Lessee of Samuel Dixon v. Samuel Morehead.
    
      At the trial of an ejectment for 317 acres of land, in Armstrong township, the plaintiff produced an application, No. 588, dated 3d April, 1769, in name of David M'Crory, for 300 acres, on a run emptying into Blacklick creek, five or six miles above the Blacklick, on the west side of said creek; and a survey of 317 acres, made 22d April, 1773, described as in the location; and a conveyance of the same land, in see-simple, from David M'Crory to Samuel Dixon, dated 3d July, 1772.
    The defendant shewed a warrant, dated 24th January, 1785, in name of Samuel Morehead, the younger, for 300 acres of land, including his improvement, on Twolick creek, and the mouth of Stoney run, adjoining land of John Pumroy, in Armstrong township, Westmoreland county, charging interest from 1st March, 1771; and a survey of 295½ acres made on this warrant. He shewed also an ejectment brought by him, in this county court, for this land, against the present plaintiff, of January term, 1774; and a verdict and judgment for him, of October term, 1785. But this verdict seemed to have been without any examination of Dixon’s title; and it seemed also to have been in his absence. Morehead now also shewed a written award in his favour, by four of five arbitrators, to whom, or a majority of them, there was a submission by the parties of their dispute respecting this land. The opinion of the fifth arbitrator was in favour of Dixon. This award was made in the presence of both parties, and after examination of their evidence of title.
    The survey made on M'Crory’s application corresponded to the description. The creek, in 1769, and for about four years afterwards, was called Blacklick; but, from that time, it was called Twolick. In July or August, 1773, Dixon had built a cabbin on this land. In December, 1772, Morehead went to improve on this land, with a view to hold it, and to build a mill, on a mill-feat, at the mouth of the run; built a cabbin, but did not cover it. And, in May, 1773, he plowed ground for a garden, and planted potatoes. This was close by where Dixon afterwards built his cabbin. In the fall of 1773, Morehead lived with his family in Dixon’s cabbin. In, 1774, or 1775, Morehead had a field cleared, and built a mill, which was going in 1775, and was burnt by the Indians in 1778; since which time, the land has been vacant. The cabbin built by Morehead, in December, 1772, was 248 perches from Dixon’s cabbin, was not included in Dixon’s survey, and had good land all round it.
    Brackenridge, for the defendant,
    rested chiefly on the settlement made by Morehead, and on the award in his favour.
    Woods, for the plaintiff,
    referred to the act for opening the Land-Office in 1784, and to the preamble to the opening of the Land-Office in 1769, and contended that improvements, since the purchase of 1768, gave no title, and that no title could be obtained till 1784.
    
      30th December.
    
   President.

The act of assembly of 1786, continued by subsequent laws, now protects settlements or farms against any adverse title by warrant. Even before this law, it had been considered, in the general opinion of this country, that, by general usage, and a kind of common law, they were protected. Some decisions, since the last war, contradicting this general opinion, usage, or common law, the act of 1786 was thought necessary. And subsequent decisions have re-established the same principles, even with respect to titles previous to the act. But, both under that act, and the late decisions, it is an actual settlement or farm, that is protected, not a mere improvement, as it is called. The same idea is held out, in the preamble to opening the Land-Office, on 3d April, 1769, and in the 8th and 9th sections of the act of 3d April, 1792, for the sale of vacant lands within this Commonwealth. So that from the 3d April, 1769, to the 3d April, 1792, and to the last decisions of the judges; it appears to have been the prevailing and recognized opinion of legislators, judges, and proprietors, that no warrant or paper title is valid, as against a prior actual settlement or farm. But no act of the proprietors, no law or decision, has ever yet said, that what is called an improvement is protected.

The paper title of the plaintiff was clearly appropriated to this land, on the 22d April, 1773, by a survey of land corresponding to the description of the application. At that time, nothing on the part of the defendant, appeared on the land tending to a settlement, but a cabbin, built in December, 1772, unfinished, uncovered, and not included in the plaintiff’s survey. This surely will not amount to what legislators, judges, or proprietors, have called an actual settlement. It amounts only to what is called an improvement, and what none have protected.

No attempt, to convert this improvement into an actual settlement, is made by Morehead, till May, 1773, after Dixon had, by his survey, appropriated this land to himself. Then, and knowing of this survey, he plows a small piece of ground, and plants potatoes in it. Soon after, in July or August, 1773, Dixon builds a cabbin, into which Morehead afterwards enters, lives in it in 1774, with his family. In 1775, he builds a mill.

If there had been a settlement by Morehead, at the time of Dixon’s survey, leaving it out of the survey would no be sufficient. I should think the settler intitled to the usual quantity of land, contiguous to his settlement, and within his claim, though included in the adverse survey.

I have considered the plaintiff’s title as attaching to this land, only at the time of his survey, on 22d April, 1773; because his location is not precisely definite; and because it is not necessary to carry it farther back, since the defendant’s actual settlement does not seem to have existed till in 1774.

1 Bac. abr. 132, 133 140. 3 Comm.16.

1 Powell Contr. 330, 342, 344, 368. 2 Powel Contr. 7-10.

My idea is, that if a man makes a settlement at farm, on land before a paper title is attached to it; he ought to be protected. But if he make only what is called an improvement, he may as well lose this, as his adversary lose his office or paper title. If a paper title ought to yield to a settlement, an improvement ought to yield to a paper title.

It is pity, that any land should be considered as sold or appropriated, before it is surveyed.

One verdict in ejectment is not conclusive; and the former trial between these parties, seems to have been without any disclosure of the merits. A verdict in ejectment intitles only to possession, and does not determine the right.

The principal difficulty in this case seems to be in the award. In what light are we to consider it? If we consider it as an agreement of the parties, and apply to it the rule in equity, that what ought to be done is considered as done, it would operate as a title against the plaintiff. If we consider it only as a verdict in ejectment, it is no bar to a further prosecution of the title: and, as to title, the English law says, an award is not conclusive. I am therefore, disposed to think, that it should have no greater force, than a verdict and judgement in ejectment.

The jury found a verdict for the plaintiff.

On the motion of Mr. Brackenridge, there was a rule to shew cause why this verdict should not be set aside, and a new trial granted.

At September term, 1795, the motion for the new trial was argued.

Brackenridge, for the new trial. The submission and award concluded the parties; and so the court ought to have directed the jury: whereas the court stated, that it should have but the effect of a verdict in ejectment.— Award on submission amounts to a contract with sufficient consideration. And a consideration need not be expressed, if it be implied in the transaction. I consider the case of Penn v. lord Baltimore as decisive of the present case; for if the court of Chancery carry an award into execution, a jury will.

3 Comm. 16.

3 Comm. 16, 17.

2 Powel Contr. 7, 10.

1 St. L.

The distinction between awards of real property, and personal, arising only from seudal principles, exists not in Pennsylvania; and even in England, is reduced to a mere point of form. Improvement-rights to land pass by parole, like chattels. Whether it be a real or a personal estate, therefore, in Pennsylvania, an award of land is good.

The end of a reference is to settle amicably what cannot be so well settled in a court. It entirely defeats this end to give an award no greater effect than a verdict. It is the general opinion, that awards are final, and the general interest, that they should be so. The people know no distinction between awards of real and of personal property: and we ought to take their contracts as they understand them; especially as this is for their benefit.

Taking it either as an award or as a contract, the jury ought to have been directed to consider it as equivalent to a deed of the party under hand and seal.

Ross against the new trial. The point in Blackstone is not, that an award is not final, but that an award will not pass real estate. There is good reason why an award of personal estate should be final, because a verdict is final. But the whole analogy of the law is, that a verdict, though in a writ of right it is, in an action for the possession of land is not final. Why then should an award be final?

Execution goes out on a report of referees, as on a verdict, except where, as here, a specific thing is awarded. Had this been a reference by rule of court, in ejectment, it would only have given the possession, and could not have prevented another ejectment.

Unpatented lands, held by location, warrant, or survey, are always considered as real estate. Dower will lie of them; yet the plea is seizin or not. This is a case of land held by location and survey.

The case of Penn v. lord Baltimore proves, that an award is not final for there was a necessity to file a bill for a specific performance. Why this, if an award be a conveyance?

Our act of assembly makes an award but as a verdict. However this is not an award: for the submission was to five; and the award states, that there was one diffentient voice. The award is on a parole submission to five, was assented to only by four, and ought not to have been read to the jury. Had it been, perfect, it could have no other effect than a verdict.

May. 1792. M Kean C.J. and Yates J. May, 1795. M Kean C. J. and Yates J.

1 St. L.

3 Comm. 17.

In M'Kee assignee of Berrickman v. M'Clure, tried in the court of Common Pleas of Allegheny county, the president considered an award as not final, and left it to the jury, who found against it. In Estep v. Wallace, at a court of Nifi Prius in Washington county, the chief justice left an award to the jury, who found against it. In Howard v. Pollock, at Nifi Prius, in Washington county, an award, on an arbitration bond of submission to five, signed only by three, was not suffered to be read to the jury.

We have certificates of two of the referees or arbitrators, that their intention was, that the award should have no other effect, than a verdict in ejectment; that, before they gave their award, it was proposed by one of the referees, that the parties should be bound to stand to it; and they objected to this, and it seemed to be dropped.

Brackenridge in reply. The court of Chancery only established the evidence of William. Penn’s title. That case is altogether with me. Chancery will decree a conveyance on any act en pais, which will be a ground of it, considering that as tantamount to livery and seizin.

Our act of assembly is in imitation of the act of parliament 9 and 10 William 3, and meant the same thing and no more. A report or award is only examinable, as to corruption or misbehaviour of arbitrators or parties.

The general understanding of submissions is that the award of a majority is sufficient. The choice of an odd number is to prevent the embarrassment arising from an equal division, and secure an end of the controversy.— There was evidence that the submission was to five, or a majority of them.

It would have been foolish to have inserted in the award, that it should be final; and this proposal was judiciously rejected. The arbitrators were only to make an award, not to declare its validity or effect; It is immaterial what they thought as to this. The parties meant it to be final. The law makes it so.

At December term, 1795, the opinion of the court was delivered.

1 Powel Contr. 318-9. 1 Bac.abr.132-4. 1 At.64. 1 Comm. 16. 4 Vesey, jr. 365-70. 1 Com. Dig. 301. 2 Eq. Co. 80. Vinior's Ca. 8 Co. 80. 1 Salk 69, 76. 2 L.Ray 1840 Woods Inst. 548. 51. Losst. 426. 3 Comm.16.

PRESIDENT. In the trial of this ejectment, at June term, 1794, the defendant gave evidence, that he and the plaintiff, had, before the commencement of the action, submitted their dispute, about the right of the land in question, to five arbitrators or a majority of them; and that tour of the five had awarded in favour of him, the fifth only being in favour of the plaintiff's title.In the direction to the jury, I told them, that, considering this award as giving the right, it could not have this effect, for, by the law of England, title to real estate cannot be transferred by award; and, considering it as giving the possession, it was not decisive, for one judgment in ejectment is no bar to another ejectment for the same land.

A verdict having been given for the plaintiff, a motion has been made, to set it aside, on the ground, that the jury ought to have been directed to consider the award as decisive of the right of these parties to this land.

Disputes about property may be terminated, and the right transferred from one of the contending parties to the other, by consent, by compulsion, or by a combination of both. It is by consent, when one agrees to give, and the other to accept, something else, in lieu of the property in dispute. It is by compulsion, when one obtains process and sentence of a competent court of justice against the other. And it seems to be a combination of both, when, unable to settle the dispute themselves, they refer it to others, to whose opinion they bind themselves to submit. Whichever of these methods be adopted, whether contract, judgment, or award, the dispute is thereby settled, and the right ascertained.

An award is sometimes considered as a contract, sometimes as a judgment. And arbitrators are sometimes considered as the substitutes, and sometimes as the judges of the parties. They can do whatever the parties themselves can do, and more than courts can do. Their power is revocable, as a power of attorney; and, if not given by deed, no action lies for its revocation; for, as ex nudo pacto, so ex nuda submissione, non oritur actio.—The submission implies mutual promises to perform the award. The award is a contract, and is considered as similar to accord and satisfaction, and equal to the judgment of a court.

Williams vs. Craig, Dall. 313. Hollingsworth v. Leiper. ib. 16. Vinn. Just. Inst. 612, 710. Woods' Inst. Civ.law 389. Anderson vs. Coxeter, 1 Str. 301. Lucas v. Wilson, 2 Burr. 701. Herbert vs. Buckley. Ridgeway's ca. temp. L. Hardw. 296. 1 Atk. 64. 3 Atk. 529. Vesey jr. 370. Ridgeway's ca. temp. Ld. Hardw. 299. Price v. Williams. Vesey, jr. 365.

1 Eq. Ca. 50.

Vesey jr.370.

1Bac.abr.134-5. 144-7 1 Com. Dig. 3 9 1Eq. Ca. 50. 1. 2 Eq. Ca. 80-1.

It is true, that the Supreme court of Pennsylvania has considered an award, as on a footing with a verdict, and equally under their control. But other decisions in this state, and the rules of the Roman and English law, viewing arbitrators as both judges and jury, have treated awards with higher respect. The courts, both of equity and law, have constantly refused to enter into the merits of the matter referred, or examine the justice and reasonable of the award; and have declared, that, the arbitrators being judges chosen by the parties themselves, they cannot object to the award, as unreasonable, or as a judgment against law: for they have referred their dispute to the judgment of the arbitrators, and that would be a ground for setting aside every award. Lord Hardwicke doubts whether an award, like a decree, can be set aside, on the discovery of new evidence. And in a case in Chancery, of an account, which, after many errors had been assigned, and allowed by the master, having been referred to arbitrators, was reported a just account; lord Thurlow, though he expressed great surprise at the report, and spoke very hardly of it, added, that "the parties, by choosing private judges, have placed it beyond the reach of any principle of law."—But though, when the parties themselves choose their own Judges, chancery will not generally relieve against the award; yet, where there is a reference, by order of that court, and the award appears unequitable, it will not be decreed. And, when the reference is to an arbitrator, to enquire into facts, he is in character of a matter in Chancery, or a jury in a trial at common law; and the court is to draw the conclusion; or, if he does it, the court will see that he has drawn a right conclusion. And there are also many cases, in which though the submission be general, and to arbitrators chosen by the parties, yet courts will hold the award as void. The grounds on which they will do this, appear either in the award itself, or in the parties, or in the arbitrators: as if the award be not final, or mutual, or be uncertain, absurd, impossible, or unlawful; or be erroneous on the face of it; or if either of the parties, or rather, perhaps, if the party in whose favour the award is, has procured it by undue means, by fraud, or imposition on the arbitrators or the other party; or where the arbitrators misbehave themselves, are partial, interested, or corrupt, or proceed irregularly, or on a plain and gross mistake, either in law or in fact. “But,” says lord Thurlow, “in case of mistake, it must be made out to the satisfaction of the arbitrator; and the party must convince him, that his judgment was influenced by that mistake, and that, if it had not happened, he should have made a different award.”

1 Salk. 71-3. 1 Atk. 64. 3 Comm. 17. Losst. 554. 2 Vesey 315. Ridgeway's ca. temp. Ld. Hardw. 296. Vesey jr. 370.

3 Comm. 16.

1 St. L.

Lucas v. Wilson. 2 Burr. 701.

Such seems to be the law of England, and, excepting the decision of the Supreme court already suggested, the law of Pennsylvania, respecting the effect of awards.— Under the regulations, which I have stated, awards seem generally to have been considered as a kind of judgments, given by private courts, constituted by the parties, and equally binding as a contract of the parties, or a judgment of a court of competent jurisdiction. Whether our of assembly, by directing, that reports in references of causes depending, being approved by the court, should have the effect of verdicts, meant to make such reports liable to other exceptions, than those allowed in England, reduce them to a footing with verdicts, and subject them to the same exceptions as verdicts are subject to; or meant only to submit them to the same exceptions, as may be made to such reports in England, and to give, to a judgment on a report, the ordinary process after judgment on a verdict, instead of the process of attachment used in England, was, before that decision in the Supreme court, I believe doubtful.

I have hitherto had no occasion to state particularly the several kinds of awards, which exist in England;— because I think the effect of each is the same, and their difference is in the remedies, or means of execution. I shall now however observe, that, in that country, there are three kinds of awards, two at common law, and one by statute.

1. At common law, the parties differing, may agree, either by word, or by writing sealed or unsealed, to submit their dispute to arbitrators, without instituting any suit, and the award of the arbitrators binds the parties. If it be not obeyed by either party, the other has his remedy, by an action at law, either on the submission, or on the award.

3 Comm. 17. 9, 10, W. 3 c.15.

2 Burr. 701.

1 St. L.

2. Where the parties have instituted a suit, either at law or in equity, they may agree to withdraw the examination of it from the jury or the court, and submit it to arbitrators, making this submission a rule of the court; where the cause is depending. The award, when made, brought into the court, and, on the complaint of either party, if it has been improperly made, the court set it aside, or, if no impropriety appear, compel obedience to it, by process of attachment; disobedience being a contempt of the rule made by the court.

3. From the experience of the use of these peaceable and domestic tribunals, a statue enacted, that parties in any case, where the remedy is by personal action, or suit in equity, may, without any such action or suit, submit their difference to arbitration, and agree that such submission be made a rule of any court of record, and this submission, having been made a rule of one of the courts, and the arbitrators having made their award, it is returned into the court of which the submission was made a rule, and, by that court, on the complaint of either party, within a limited times annulled; or it is enforced, in the same manner as an award in a case where a cause was depending at the time of the submission. For this statute is only declaratory of what the common law was before, in cases where there was a cause depending, and was made to put submissions, where there was no cause depending, on the same foot as those, where there was a cause depending.

4. Our act of assembly, in case of mutual accounts, did not copy this English statute, but introduced into Pennsylvania a fourth species of awards, which differs from the second species before mentioned, in this, that the report, when approved by the court, is to be proceeded on, as a verdict, by judgment, and then by execution or seire facias, as the case may be, not by attachment; and according to the decision of the Supreme Court, in this also, that it is open to the exceptions which may be made to a verdict.

Williams v. Craig, Dall. 313.

3 Comm. 16.

Together with this, the first and second kinds of awards must be considered as existing here, in full force; and these only: for the third species has never been introduced here.

With respect to the decision of the Supreme court, it will be sufficient to observe, that this award is not of the same kind with that, on which that decision was made. That was of the fourth kind, under our act of assembly, on a reference of a cause then depending in court. The award, in the case before us, is of the first kind, at common law, and not under our act of assembly.

It was stated to the jury at the trial, and it must be repeated now, that though there have been awards in ejectment, and of leases, the possession only, a sort of chattel interest being in question, and though if a conveyance of an estate in see-simple be awarded, its refusal is a breach of the arbitration bond; yet, a judgment in ejectment being no bar to another ejectment, and, by the law of England, an award being insufficient to transfer the right to real estate; the award was not conclusive in this action. This, which was the principal difficulty at the trial, is the point now to be discussed. It has come before us in a shape, in which I have not observed it before, in any court; and, however unfurnished with guides and precedents, we must now examine and decide it.

Considering it as a principle of English law, that an award cannot transfer title to real estate, I do not see how, when an award was given as evidence of title to real estate, consistently with that principle, any other direction could be given to the jury.

The argument of the defendant’s counsel encountered this difficulty, by urging, that the reason for refusing to awards a binding force on real titles, having originated from feudal principles, to prevent collusive alienations, without the consent of the lord, does not exist in Pennsylvania; and, therefore, the distinction between awards of real and of personal property, will not be kept up.— That, even in England, this was reduced to a mere subtilty in point of form, and was easily evaded, by awarding a conveyance, which, if refused, can be compelled, by exacting the penalty of the arbitration bond; for, the refusal being a breach of the award, the penalty can be saved only by compliance. That an award was equivalent to an agreement; and that improvement titles, inchoate or imperfect titles, to land, were transferred by parole, like chattels. That the case of Penn v. lord Baltimore, is in point for the defendant here. And that any sufficient act en pais will, in Chancery be considered as equivalent to livery and seisin, and ground a decree of conveyance. Thus, whether as a contract or an award, the evidence was, in Pennsylvania, conclusive against the title of the plaintiff.

Scott v Wray 1 Rep. Cha. 84. Bales v. Proctor ib. 144. Evans v. Cogan, 2 Wms. 450. Hall v. Hardy, 3 Wms. 187. 1 Eq. Ca. 51. 2 Eq. Ca. 28-9. Thomson v. Noel. 1 Atk. 62.

1 Powel Contr. 318-9.

1. This argument gives up the defendant’s case, if the English common law principles of awards of real property are binding here.

2. By relying on the case of Penn v. lord Baltimore, and the practice of the court of Chancery, it seems not to be wished, that we should go farther than the court of Chancery has gone, in like cases.

3. Or some other principles must be established, conformable to the state of real titles in Pennsylvania.

1. As to the first, I repeat, that I cannot yet see how, on the principles of the common law of England, taking them as stated, the direction to the jury could have been otherwise than it was. But this subject will recur under the last head.

2. I am diposed, in all possible and proper cases, to adopt the rules of decision in the court of Chancery; and, in this case, to go as far, as any court of Chancery has ever gone. Courts of Chancery have, in many instances, decreed specific performance of an award of title to real estate. But it must be observed, that, in all cases, where they have done this, there has been an assent to the award, by the person against whom the decree was prayed, or an acceptance by him of something under it, which is evidence of assent, or, with his connivance, or at his request, a performance, or part performance, of it, by the other party. And lord Hardwicke expressly declares, that a bill, to carry an award into execution, where there is no acquiescence in it by the parties, or agreement by them, afterwards, to have it executed, would certainly not lie. Considering that an award is as a contract, and that equity decrees a specific performance of contracts, the best reason that I can see for the court of Chancery distinguishing between a contract made by the parties themselves, and an award made by their substitutes, is this, that in contracts, the parties know the terms and extent of their engagement, when they enter into it; and it is, therefore, against conscience to refuse compliance. But, in awards, they know not the terms and extent of their engagement, which depend on the judgment of the arbitrators, and, as it may turn out harder, than the party intended, Chancery may refuse to make performance a point of conscience, and leave the person who complains of non-compliance, to his remedy at law.

1 Vesey 444.

ib. 445.

ib. 450.

3 L.Ray 115.

1 Bac.abr. 132.

The case of Penn v. lord Baltimore is not in point, or, at least, not conclusive. It is not the case of an award, but of an agreement in writing. One of the objections to the decree, prayed for, in that case, was, that the articles were in the nature of submission to arbitration, which cannot be supplied by interposition and act of the court of Chancery. But said lord Hardwicke, “the articles are not like submission to arbitration; for, in those cases generally, the time is conditional, so as determination be made by such a day: but here the line and circle are agreed on. This is a particular, certain, specific contract of the parties; nothing left to the judgment of the commissioners, who are merely ministerial, to run the line, &c. according to the agreement.”

3. If the argument for the defendant be not supported, on the rules, either of the common law, or of equity, it remains therefore to be considered, whether it can be supported on some other principles, conformable to the state of real titles in Pennsylvania.

If the distinction between awards of real and of personal property rested only on feudal principles, perhaps the maxim cessante ratione, cessat et lex, and a principle, which I think good, that we take not such parts of the common law of England, as are incongruous to our circumstances, might be a sufficient answer to it.

But another ground is given for this distinction, to wit, that tilings in the realty cannot be recovered on an award. For, though arbitrators are in the room of parties, and act in their stead, and can do what they can do, they can do no more ; therefore an award cannot pass corporeal inheritance, for the parties themselves cannot pass that, without solemn livery. Yet this reason, comparing it to the authority of the parties, seems to admit, in substance, the authority of the arbitrators, over real estate, and to reduce the distinction, as Blackstone says, to a mere form, by an alteration of which, the substance may be effected. For doubtless an arbitrator may award a conveyance or a release of land; and it will be a breach of the arbitration bond, to refuse compliance, in strictness, therefore, the rule of the English law may amount only to this, that an award, of itself, does not operate as a conveyance of the land. And this perhaps is what chief justice Treby meant, when he said, that things in the realty might be submitted, as well as things in the personalty; but they could not be recovered on the award.”

3 Comm. 16. Huuter v. Bennison, Hardr. 43.

1L.Ray 115.

This, therefore, brings us to the consideration of what interest the parties had, at the time of the award; and whether it be necessary that the award should operate as a conveyance.

It is contended by the counsel for the defendant, that improvement rights pass by parole, like chattels, I should be unwilling to recognise this generally. It might affect creditors. It might lead to a conclusion, that such rights are not bound by a judgment, and might be sold on execution as chattels; or that a subsequent sale, with delivery of possession, might defeat a bona fide prior sale by deed. I am not prepared to say, that this is law. I do not believe, that it is the received opinion, I think the practice of lawyers and others is contrary to this.

At the time of this award, Morehead was in possession of the land. By Dixon’s two ejectments against him, his possession is admitted. He wanted nothing but title; and that was in the state. Dixon could have deceived no man, on the credit of this land; and one ground for requiring solemnity of conveyance exists not here. Without determining, therefore, whether an improvement or location right be a real or a chattel interest, of whether any others than the parties would be bound by an award of it, let us see, whether, in this case, too little stress was not laid on the award in the direction to the jury.

The award is in June, 1791. Dixon, in virtue of his location, has a survey made in April, 1773. More

head has a warrant in January, 1785. Both therefore, at the time of the award, had a claim on the state for a title. To settle the point between them, to whom the state should give the preference, they might enter into an agreement, and, though this were by parole, I think, the executive agents of the state, and the courts of justice, would hold it conclusive on them, or, at least, on the party out of possession; or they might submit their difference to arbitration, and, I think, the executive agents of the state, and the courts of justice ought to hold the award conclusive on them, or, at least, on the party out of possession. They have chosen their judges; judges tied down to no strict or formal rules in restraint of justice; but vested with ample powers for the most equitable redress to both parties. The authority of a tribunal of this kind ought not to be lightly impugned, nor its sentence easily evaded. If the jury had been directed to consider the award as conclusive, it would not have been so much a decree of a specific performance of an award, as making it a bar to a further prosecution of the claim submitted. It would not have been an interference, but a refusal, to change the state of things, and saying, they should remain as they were.

I think, therefore, that, in the direction to the jury, sufficient weight was not given to the award in this case; and, therefore, that there ought to be a new trial.When I say so, I, at the same time, declare, that I do it with some anxiety; and I wish, for the settling of so important a point, that the next time this question is discussed, it may be before judges, whose opinion will give more weight to the decision, than any judgment, that I can form.

It will be observed, that we do not take into view any opinion which the arbitrators may have entertained of the legal effect of their award. They were to give their judgment on the case submitted. The operation or effect of their judgment is to be dictated by the law.

Note. — Since the above opinion was delivered, I have seen the report of a case which was tried before lord Kenyon in July, 1795. It was an action on the case for unskilfully navigating his barge on the river Thames, whereby the plaintiff’s boat was sunk. In opening for the plaintiff, his counsel stated that after the plaintiff had received the injury, the matter had been referred and an award made. Lord Kenyon said he had ruled before that where parties had agreed to submit their differences to any third person, and he had undertaken the business and made an award, the parties should be bound by it; and that he who was dissatisfied with the determination, should not be allowed to have recourse to an action; for that after taking, his chance of having a determination in his favour he was then too late to recede from his engagement. If, however, there were any circumstances attending the reference to such third person which would be a sufficient objection, in point of law, to an award, such as partiality in the arbitrator, not hearing the party’s witnesses, &c. it should be open for the parties in such case to shew it at the trial.

The defendant failed in proving any circumstance of this fort, or non acquiescence to the reference which he also attempted to set up, and the plaintiff obtained a verdict, Bailey v. Lechmere, Esp. Rep. 377.

The case of the lessee of Dixon v. Morehead was tried at a court of Nisi Prius in May, 1798, before the Chief Justice and J. Smith, who held the award not binding, and the plaintiff’s title regular and fair.

There was a verdict for the plaintiff.

It will also be observed, that, though our opinion rests on all the circumstances of this case; yet, as in all cases, a submission and award is a solemn transaction, and ought to mean something; perhaps less than we have done would be making it mean nothing at all. The effect of an ejectment is known and settled, and no one is deceived by it. 
      
       In an action at law on an award, evidence of partiality or corruption in the arbitrators was refused, as affecting third persons, and as out of the award and the issue. The remedy for this was stated to be by action against the arbitrators, or by bill in equity to let aside the award, where the arbitrators may be made parties, and may be made pay costs. 2 Wils. 148—2 Atk. 396—2 Vesey, 316.
     
      
       Where a suit is depending for the title of land, the Board of Property will not issue a patent for it, till the suit Is determined; and will then give a patent to the successful party.
     