
    Rogers vers. Kenwrick.
    
      (From Barnstable.)
    
    It is no Objection to an Award that it settles the Boundary Line between adjacent Lands of the Parties without ordering Releases. Hutchinson, C. J., & Oliver, J., diss.
    
    THIS Action was Debt upon an Arbitration Bond. No Award pleaded. Award was read as follows: “We do determine and settle the northwest Corner Bound as settled by us is an Heap of Stones,” &c., “which appears to be the reputed known N. W. Bound for many Years, and nothing appears but was always so,” &c., “and that the said Kenwrick pay,” &c. () Now ’twas answered by
    
      1763.
    
    
      Mr. Paine.
    
    That the Arbitrators had taken upon them to determine a Title of Freehold, and therefore the Arbitration void and no Award. Where the Right of Freehold is in Debate, the Property cannot be transferred by an Award; the Arbitrators only are in Stead of the Parties, and can do no more than can be done by them. Now the Parties themselves cannot pass corporeal Inheritances without solemn Livery. 1 Roll. Abr. 242. 14 H. 4, 19, 24. 9 H. 6, 6. 3 H. 4, 6. 11 H. 4, 12. Keilw. 99. 1 Leon. 228. 1 Roll. Abr. 244. 1 Bacon, 132. But if Condition of the Obligation is to stand to Award of Arbitrators, who award the Land to one, and that the other shall release, who does not, the Penalty of the Obligation is forfeited, but if no Act to be done by the Party, as releasing, is awarded, it is not forfeited though the other do not convey to him a good Title. ()
    
      Mr. Otis, contra.
    
    I grant the Award to be void if the Arbitrators have determined the Freehold; but here they have not, they have only determined the Line; the real Boundary is but a mathematical Line without Breadth or Thickness, the settling that does not affect the Freehold, 1 Bacon, Tit. Arbitra. I think then a Bond conditioned to abide by such Award is good, and the Award good, and if not complied with, the Obligation should be forfeited.
    
      Paine.
    
    When they settle the Line, they say to whom the Land on each Side belongs. They have awarded Nothing to be done; they should have ordered Releases.
    
      
      (1) The replication further alleged that the defendant had not kept up to the tenor of the award, but had broken over the line by cutting wood on the land of the plaintiffs. And among the papers on file appeared the deposition of Jonathan Kenwrick, sealed up and directed, “For the Clerk of ye Superiour Court of Judicature” &c. This being opened by the present Clerk of the Supreme Judicial Court, it appeared that the deponent testified to seeing the defendant “cutting wood about fix rods to ye weftward of ye range that was settled by ye arbitrators.”
    
    
      
      (2) Among the papers on file appears one which would seem to have been part of Mr. Paine’s brief, since it contains the above argument and list of authorities almost verbatim; the whole being taken from Bac. Ab. Arbitrament, A.
    
   Judgment for the Plaintiff. () Russell, Cushing, Lynde, against Oliver & Ch. Justice.

Ch. Just. very warmly against the Determination. 
      
      
        Quœre, if this Case is not agreeable to Law? Vid. Vol. 1,() p. 18, and the Authorities there cited.
     
      
      (3) S. P. Jones v. Boston Mill Corp. 6 Pick. 148. Goodridge v. Dustin, 5 Met. 363. In this case the previous decision in Whitney v. Holmes, 15 Mass. 152, was partially overruled, and the rule stated by Mr. Justice Hubbard to be, that an award which settles a boundary, “although it will not have the direct effect of conveying lands, will yet conclude the parties from disputing the title or boundary which is distinctly settled by the award, and that it shall operate by way of estoppel.” See also Searle v. Abbe, 13 Gray, 409.
     
      
      (4) This volume is missing. Many other references to missing volumes are omitted. See Preface.
     