
    GENERAL COURT,
    MAY TERM, 1795.
    William Whetcroft against Edward Dorsey.
    THE record in this case was as follows: “ Be it remembered that on the 30th day of May, 1795, in pursuance of an'act of the general assembly of the state of Maryland, passed at November session, 1793, entitled ‘ An act to repeal conditionally an act, entitled an act for the relief of William Wheteroft, of the city of Annapolis, passed at November session, 1779,’ the aforesaid William Wheteroft, by Philip Barton Key, and William Pinkney, his attorneys, file in court here, the following copy of an award, notice, and affidavit, to wit,
    “ George Town, October 20, 1794. To all persons to whom these presents shall come, greeting: Whereas in and by an act of assembly of Maryland, passed last session, entitled an act to repeal conditionally an act, entitled an act for the relief of William Wheteroft, of the city of Annapolis, passed at November session, 1779, and by the recited section of the said act, his excellency the governor for the time being, was authorized and requested to nominate and appoint three persons as arbitrators for the purposes declared in and by the said sections, as by the said recited section will appear. And whereas his excellency, Thomas Sim Lee, Esq. did, by writing under his hand, bearing date the 11th day of February, in the year 1794, nominate and appoint the subscribers as arbitrators under the said act. Now, know ye, that we George Murdock and Notley Young, two of the arbitrators as aforesaid, have taken upon ourselves the execution of the powers given by the said act, and after more than fifteen days5 notice to each of the parties, William Wheteroft and Edward Dorsey, of our having fixed, and determined to meet at George Town, and then and there receiving and fully considering the allegations, proofs, circumstances and representations of the said Whetcroft and Dorsey, who both attended the said meeting, and concerning the subject matter submitted to us, do award and determine, &c. &c. Witness our hands and seals this 20th day of October, 1794.” Which award was signed and sealed by the arbitrators, and certified by the clerk of the general court to be a true copy. Then follows the notice in writing, signed by Whetcroft, directed to Dorsey, stating that on Saturday, the 30th of May, 1795, he should move the general court for judgment on the award, agreeably to the act above recited, with proof annexed that the said notice was served on Dorsey.
    
    “ Which being read and heard, and on motion of the aforesaid William Whetcroft, by his attorneys aforesaid, for judgment on the said award in pursuance of the act of assembly aforesaid, for the sum aforesaid, in the award aforesaid mentioned, together with his costs and charges by him in'this behalf laid out and expended, to him to be adjudged, &c. And it appearing to the court here, that the said William Whetcroft .has complied with the necessary requisites as required by the act of assembly aforesaid, in order to have his judgment on the said award. And the said Edward Dorsey, although solemnly called, comes not, nor shows any cause why judgment on the said award should not be rendered, but therein doth make default.
    “ It is therefore considered by the court here, that the said William Whetcroft recover against the said Edzvard Dorsey, as well the sum of 2,825/. Ss. 4. 1-2*/. current money, his damages so as aforesaid, by the arbitrators aforesaid awarded, as also the quantity of 528 pounds of tobacco, by the court here unto the said W. W. on his assent adjudged for his costs and charges by him. about his motion in this behalf laid out and expended ; and the said E. D. in mercy,” &c.
    The defendant brought a writ of error.-
    
      
      An abstract of the act of assembly, referred to in the preceding record, November session, 1793, c. 36.
    An act to repeal conditionally an act, entitled an act for the relief of William Whetcroft, of the city of Annapolis, passed at November session, 1779.
    
      Sec. 1. A recital that Dorsey prayed a repeal of the act of 1779, as unconstitutional and oppressive. That Whetcroft consented to the repeal on certain terms and conditions agreed upon by Dorsey, which this act was to carry into effect.
    
      Sec. 2. The governor “ to nominate and appoint three persons of skill, knowledge and integrity, residents of the state, and unconnected with the parties by blood, marriage or otherwise, to be arbitrators for the purpose of settling,” &c.
    
      Sec. 3. The arbitrators, or a majority of them so nominated and appointed, to have full power and authority at the request of either party, on giving fifteen days’ notice, in writing, to the said parties, to meet at any place or places they may think proper, for the purpose aforesaid, and to proceed ex parte on the subject referred to them, &c.
    
      Sec. 4. In settling and adjusting the aforesaid compensation, the said arbitrators, or a majority of them, may take into consideration all circumstances whatever that have taken place from, &c. in their opinion material to the subject, and to form their decision upon principles of justice upon a view of the whole case disclosed on both sides.
    
      Sec. S. If the said arbitrators, or either of them, so nominated and appointed, shall die or refuse to act for the space of thirty days after having notice of their appointment, and being requested to act by either of the parties, the governor is authorized, on being applied to, and being satisfied of such death, &c. to nominate and appoint another arbitrator or other arbitrators, in the place, &c. and so on from time to time, until .three arbitrators can be found to act, and finally settle and adjust the said compensation, &c. any arbitrator so substituted shall have the same power, &c.
    
      Sec. 6. The said arbitrators, or a majority of them, shall be authorized to ascertain by their award, not only the amount, if any, of the said compensation, but the time or times at which the same shall be paid, &c.
    
      Sec. 7. Ifrthe said Dorsey shall not comply with the terms of the said award within thirty days after the same shall be made known or delivered to him, either by paying the money, if any be awarded, and no credit allowed by the arbitrators, or by securing the same as directed by them in manner as shall be awarded, it shall and may be lawful for the general court for the Western Shore, or Ann Arundel county court* and they are hereby required, on motion of the said Whetcroft, his executors or administrators, and on proof that the said Dorsey has had thirty days’ notice of such intended motion, to enter up judgment against the said Dorsey, for the sum awarded, and costs, with privilege to take out execution according to the time or times of payment mentioned in the award, if any sum shall be awarded, and any credit be allowed for the same; and it shall in such case be sufficient for the said Whetcroft to produce the said award, and file a copy thereof, without any declaration; provided that if the said Dorsey shall allege, during the term at which such motion shall be made, that he hath paid any part of the money awarded since the making of the award, he shall have an opportunity, during such term, of trying such allegation by a jury; and if any payment shall be found by the verdict, the same shall be discounted and allowed.
    
      
      In the Court of Appeals.
    Ridgely, for the plaintiff in error.
    The writ of 'error which issued in this cause, was to remove the record and proceedings on a judgment rendered in the general court of the Western Share. On inspecting the record, and the proceedings had thereon, it will appear that this judgment was obtained on motion only, without any previous suit commenced; without any regular proceedings in the cause; without the appearance of the defendant, and without any testimony or proof whatever, except the copy of an instrument of writing, signed by two persons, purporting to be an award between the parties, and a notice accompanied by an affidavit.
    This judgment, then, being a proceeding unknown to the common law, where no one is condemned unheard, or without trial, and being contrary to the practice prevailing in our courts of justice, and obtained too in the absence of the defendant, is erroneous, and must be reversed, unless the plaintiff in the court below can satisfy this court that the summary proceedings had in this cause are in conformity to some existing law.
    It will not be denied that, inasmuch as there was no original writ instituted in this cause; no declaration filed; no appearance of the defendant, or any imparlance or continuance, the judgment, for any of these defects, would be erroneous, unless some particular act of the legislature appears, set forth on the face of the record, to authorize and justify a judgment in the unprecedented and irregular way in which this has been obtained.
    It is not necessary to produce authorities to show that the want of an original writ, declaration, or the non-appearance of the defendant, are good causes to reverse and set aside a judgment. Let us then advert to the record, and see whether any thing appears on the face of it to distinguish it from other disputed cases between «ntizea and citizen, which are brought into courts of justice for decision; whether there is any thing to authorize the-court to Pass the speedy judgment the court have passed in the present case.
    In examining this record, we must recollect that no other proof or evidence can be resorted to in deciding on the merits or demerits of this appeal, but what appears and is stated on the face of the record itself. 3 BL Com. 405. Writ of error only lies upon matters of law arising on the face of the proceedings; so that no evidence is required to substantiate or support it.
    We cannot travel out of the record, and seek for other proofs or vouchers to support the judgment rendered, if on inspection it appears defective. It must stand or fall by itself. Nothing can be read in evidence on the hearing of an appeal, which was not read or insisted on in the court below. 1 Bro. Parl. Cas. 70.
    
    Having therefore established the position, that the validity of the judgment must solely depend on the regularity and correctness of the proceedings apparent on the face of the record, as it came from the court below, let us examine this record for a moment, and trace out its various imperfections and defects.
    It states, that “ on the 30th of May, 1795, in pursuance of the act of assembly of the state of Maryland, passed at November session, 1793, entitled an act to repeal conditionally, an act,” &c. then sets forth the award, notice, affidavit, and the judgment of the court thereon.
    This record, then, refers to the title of an act of assembly, which act has not been set forth, or made a part of the proceedings, although the same is depended on as the foundation on which the present judgment is to be supported. Here a question will arise, which must prove fatal to the judgment rendered, and put an end to the present controversy in favour of the appellant.
    Is the act of assembly (the title of which only is referred to in the record) a public statute, of which the judges are bound, ex oficio, to take notice; or is it a private act only, in which the community at large are no wise interested— an act delegating a special authority to particular persons, and affecting the property of an individual only r
    Every statute which relates to all the subjects of the realm, is a public statute. ' 4 Bac. Abr. 639. Wherever the intent of an act of parliament is particular, it shall be deemed a private act. 4 Bac. Abr. 640.
    From this definition, it will evidently appear that the act alluded to in the record is a private act, and, as such, subject to all the rules which the courts have adopted with respect to private statutes.
    No one is under an obligation to take notice of, or understand, a private statute. Gilb. L. E. 12, 13. A public statute may be pleaded without reciting it; for the rule of law is, that the judges, ex officio, are bound to take notice of every public statute. 4 Bac. Abr. 655.
    
    If a private statute be pleaded, it must be set out specially ; for unless this is done, the judges cannot take notice of any thing contained in such statute. 4 Bac. Abr. 655.
    
    Courts ought to take notice of a general statute without pleading it; but they are not bound to take notice of particular or private statutes. 1 Inst. 98. b. The court cannot take notice of a private act -unless it be pleaded. 5 Co. 2.
    It is not necessary to recite a general statute. It is otherwise of a private statute 5 for the statute is the ground of the suit, and we ought always to recite the substance of the action. Plowd. 65. 84.
    It will be easy to conclude, from what has been premised, 1st. That the act of assembly referred to in the record is a private act only; 2d. That the judges cannot take notice of any thing contained in a private act unless it be pleaded, and that specially.
    This being established to the satisfaction of the court. let us see whether this act of assembly is specially plead™ ed, so that the court can take any notice of it.
    The act of assembly is not made part of the record j not a single clause of it is stated or recited, either in the record or in the award; nothing but the title of the act is referred to, and that is no part of the law.
    In pleading a statute, the title of it need not be set forth, because it is no part of the statute, no more than the title of a book is part of a book. Ld. Raym. 77. Salk. 609. 1 Bl. Rep. 95. Heath, 113.
    Here, then, I contend, that reciting or pleading the title of the act, (which is no part of the act,) is equally ineffectual and faulty as if it had not been recited at all. The record might as well have referred to a decree of the national convention of France, or a mandate of the empress of Russia, and the court would have been equally bound to take notice of it. The judges cannot take notice of this act of assembly, or give any decision on the provisions contained in it.
    What is the reason that the law has required a private act to be pleaded and set forth with the same formality and exactness as a bond or other contract ? It is in order that the judges may be enabled to decide, on view, whether the act done, or thing demanded, was according to the directions of the statute, they being precluded from receiving information from any other source than what is apparent on the record.
    When a private act is pleaded, it is not good to say, inter alia enacta est; but if it concerns several distinct matters, it is necessary to recite all that concerns the materia subjecta, and to aver that it is all that concerns this matter. Freem. 67. 75. This was on a motion suggesting facts for a prohibition — a summary proceeding.
    There is another reason why a private statute, in all judicial proceedings, should be set forth at large; that the defendant may not be surprised, but have an opportunity of contesting the authenticity of the act by a plea. of nul tiel record, which he could not do if it was not set forth, and which the judges would not suffer to be done if they were bound, ex officio^ to take notice of them as public acts.
    If a private statute be pleaded, the contents thereof may be put in issue on a plea of nul tiel record. 4 Bac. Abr. 655.
    
    From the aforegoing remarks, I think it must clearly appear, that the judges cannot take any notice of the act of assembly, it being a private act, and not set forth; that the proceedings had in the court below, cannot be justified by common law principles, and are erroneous; consequently the judgment must be for the defendant.
    But this judgment is fraught with so many errors, that even if the act of assembly had been made part of the record and proceedings, and the court thereby enabled to take judicial notice of it; yet the court must reverse this judgment on other grounds apparent on the face of the proceedings.
    1. There is no award produced, as the act requires, but only the copy of an award filed in court.
    The copy is no evidence. The act requires the award itself. But suppose the act had not required the original award to be produced, yet I contend the copy filed in this case is no evidence of itself.
    , In actions of debt on bond, it is matter of substance to make a profert of the deed, because this is the contract on which the court ought to found their judgment, and therefore it ought to be exhibited to the court. Gilb. L. E. 95. Bull. N. P. 253.
    
    Where any thing is to be proved, the deed itself must be given in evidence, and not the copy of it. Gilb. L. E. 95. 10 Co. 92. b. 93.
    The law requires the best evidence that the nature of the thing is capable of. The deed is much better evidence than the copy of it. Gilb. L. E. 96.
    Where a person claims by a deed, he ought to make a proferí of it to the court. The deed itself must be given in evidence. Bull. N. P. 249. 254. Esp. 769. 772.
    
    2. If the original award, instead of a copy, had been produced to the court, this award is not made pursuant to the act of assembly; therefore it is null and void.
    It has already been remarked, that ■ we cannot travel out of this record to seek for proofs or testimony either to support the judgment given in the court below, or to reverse it. We are tied down to the proofs and proceedings apparent on the face of the record.
    Taking up the subject, then, on an admission that the court can take notice of the act of assembly, and that it will constitute the rule by which the court is to decide-the present question, let us then see how far the copy of the award filed in this cause corresponds with that act; and if it is not made pursuant to the act, it is void, and the judgment entered thereon must be reversed.
    It may be proper, at this stage of the argument, to request the attention of the court to several authorities, where rules are laid down for the construction of statutes delegating special powers, and the regulation of proceedings had under them. For to construe the paper filed in this cause áti award, pursuant to, and in conformity to the act of assembly, is to say, there is no certainty in numbers. Where authority is particular, the party must pursue it. If the act varies from.it, he departs from the authority, and what he does is void. 1 Salk. 96. ‘
    Where special authority is given to justices, the authority is to be exactly pursued. Salk. 475. Special authority must be strictly pursued, and cannot be exceeded. 1 Burr. 447.
    Where by statute, a special authority is delegated to particular persons, affecting the property of individuals, it must be strictly pursued, and appear to be so on the face of the proceedings. Cowp. 26. 29.
    From these authorities it will readily occur, that the powers delegated under the act of assembly in question, are special with respect to the governor, who was to nomínate arbitrators.
    With respect to the arbitrators, when nominated, and with respect to the court who was to give judgment, a line of conduct was prescribed for each, and which, if not strictly pursued and followed, Would vitiate and make void the act done in consequence thereof.
    By the second section of the act of assembly, the governor was to nominate three persons to be arbitrators, for the purpose of settling and adjusting the compensation, &c.
    By the third section, the arbitrators, or a majority of them, so nominated, shall have power and authority, on giving fifteen days’ notice in writing to the said parties, to meet and proceed ex parte, &c.
    By the fifth section, if the arbitrators, or either of them, die, refuse to act, are reiidered incapable of acting, or neglect to act for the space of thirty days after notice of their appointment, the governor, on being satisfied of such neglect or refusal, is to nominate another arbitrator or arbitrators in their place, and so from time to time, till three arbitrators can be found to act and finally settle and adjust the said compensation.
    By the sixth section, the arbitrators, or a majority of them, shall be authorized to ascertain, by their award, the amount, &c.
    By the seventh section, sufficient to produce the award and file a copy thereof, &c.
    By the powers entrusted to the governor, he was authorized to choose three arbitrators. If they neglected to act for thirty days, he was to choose one or more in their stead till three could be found to act. Then it was necessary that three should be nominated, and that three should act before any award could be made.
    It was the intention of the law, that the parties should have the benefit of three persons’ deliberations, although the opinion of two was sufficient in case of a difference jn Opinjon • als0, why say choose one in case of neglect, 1 . &c. or why say the governor to repeat his appointments till three could be found to act.
    The act is to be construed so that every clause may be gratified if not repugnant. There is no repugnancy in any of the clauses. What construction have the courts put on such powers, and the exercise of them ■ They have uniformly adjudged that they should be literally pursued, otherwise all acts done in virtue thereof are deemed void.
    What hath the governor done in this case ? He has only appointed two arbitrators, if we are to be guided by the record and proceedings in this cause, and no other in formation can we receive. The only evidence of the appointment of the two is contained in the copy of the award itself, which says that the governor appointed the subscribers as arbitrators ; that we two of the arbitrators have taken upon ourselves the execution of the powers, &c. The act says three were to be appointed, and that three must act. The award says that two took upon themselves the execution of the powers given by the act. The award then must be void on two grounds.
    1. Because the governor did not pursue the powers entrusted to him, but deviated therefrom by appointing only two persons instead of three.
    
    
      2. If he did appoint three, (of which we have no evidence,) yet two of the arbitrators only took upon themselves the execution of the powers. An assumption of power not warranted by the law.
    The following authorities will satisfy the court that what is contended for is law. 1 Burr. 447. 451. Four freeholders were directed by an act of parliament to be appointed ; the number the legislature named could not be altered. Burr. 448. The precise number is not an immaterial thing. Burr. 445. This is an authority founded on a positive law, and therefore must be pursued.
    
      Powers given by a positive law, or even by deed, to a •certain number of persons, can never be exceeded in the article of number j on the other hand, the number four could not be lessened.
    On a commission to six, four or two, and executed by three, it was adjudged to be void and without warrant. And where a letter of attorney is made to three jointly and severally, two cannot execute it. Yelv. 26.
    An authority to two to do an act relating to the public, may be executed by one only. It is otherwise in the case of a private authority. 1 Stra. 117.
    
    Where the power to do an act was originally granted by a statute, it must be shown, in pleading the statute, that the act was done according to the directions of such statute. 4 Bac. Abr. 656. So here it is incumbent to show that the number of arbitrators required by the act were appointed, that three acted, and that all the other requisites were complied with. As that cannot be done, the award is void, and the judgment must be entered for the appellant.
    I now proceed to another objection apparent on the face of the copy of the award, which must make it null and void, admitting three arbitrators had been appointed and three had acted. It is this: the arbitrators were directed by the law to give the parties fifteen days’ notice, in writing, before they could legally proceed. They have neglected this previous requisite, (at least there is no evidence of the fact,) therefore, all their proceedings are void, being coram non judice.
    To satisfy the court that the notice in writing is essential, I will call their attention to the following authorities. Cowp. 30. If a particular form of notice be prescribed, it must be fully set out, and precisely pursued. An allegation that due notice was given, is not sufficient.
    A defective notice is not cured by the appearance of the party. The case was where a jury was summoned to value land condemned for a road, under an act of parliament. Notice in writing was directed to be given. The court condemned the land, and their judgment recited that due notice was given. The judgment was held to be void. Cowp. 30.
    
    He that is bound to give notice ought to show how he gave it, that the court may judge whether it was according to the condition. Secundum formam et effectum conditionis will not do. Freem. 247.
    In a dispute between landlord and tenant, who held over after notice, the court determined that notice in writing being required by the act of parliament from the landlord to the tenant, it was essentially necessary to be proved. 3 Burr. 1607. 1609. 5 Burr. 2698.
    In debt on bond, conditioned-to perform an award so as said award be made in writing indented, dated, &c. it was pleaded that the award was made and dated according to the form and effect of the condition. It was ruled to be naught; that referring to the form and effect does not aid it. Freem. 467. So here, a reference according to the act of assembly, or in pursuance of the act of assembly, is naught.
    An order for the non-payment of tithes (a summary proceeding similar to the present) was quashed, because the proceedings recited only upon complaint generally, and the statute required the complaint to be in writing. 1 Stra. 264.
    There cannot be a settlement by constructive presumptive notice, where the statute required forty days’ notice in writing to be given to a churchwarden or overseer of the poor, before a settlement was gained. 2 Stra. 63. There can be no constructive notice. Salk. 476.
    Upon the objection, then, of notice not being given in writing, as required by the act, this award is void, and all the consequent proceedings must be reversed.
    Having thus pointed out several particular objections to this record, any one of which I trust is sufficient to reverse this judgment, I will now call the attention of the court, while I show what are the requisites essential and absolutely necessary to make an award valid.
    Form and substance are both required. An award must be alleged to be made in form according to the submission. It must pursue the submission.in point of form •as well as substance. Stra. 116. This award has neither the requisite of form or substance.
    What limits do the law prescribe when a person prosecutes a claim under a statute l
    
    If an action is founded on a statute, the plaintiff must aver every matter which is requisite to entitle him to an action. 1 Com. Dig. 244. And in all cases where any circumstances are required by the proviso of a statute to make it good, they ought to be averred. 5 Com. Dig. 50. The plaintiff ought to aver every thing necessary to inform the court that his case is within the statute. 5 Com. Dig. 49.
    
    If these requisites are deemed essentially necessary in an action wherein the defendant has an opportunity to appear, plead, and make his defence, how much more necessary are they in summary proceedings, wherein judgment is had on motion.
    But, perhaps, it will be said that the act of assembly has provided for all the defects pointed out, by directing that it shall be sufficient to produce the award, and file a copy thereof, without any declaration, &c. Has the act of assembly said that the judges shall, ex officio, take notice of this act without its being pleaded ? Has the act of assembly said that this act shall be considered as a public act in all courts of justice;. a provision frequently-made in private acts to avoid the prolixity of pleading ? Did the legislature intend that the court should give judgment on the production of the copy of an award, that was defective ? Without further inquiry, ought not the court to have been satisfied that the award was made pursuant to the submission, and that the act of assembly was complied with, both in form and substance l How could the court be satisfied of these facts, barely from the copy of the award, and unless they could take notice act °f assembly in their judicial capacity ?
    Suppose this award had been made by one person only, and motion had been made for judgment on the copy or the original award, was the court to exercise no discretion in determining whether the award was such a one as the act of assembly prescribed ? How were they to exercise their judgment and give an opinion without the necessary papers ? Was it not necessary that the award itself should be produced ?
    What was intended by the legislature in providing that on producing the award, and filing a copy, it should be in lieu of a declaration ? It was to prevent delay and multiplicity of pleading; but it never was intended, and no legal construction will warrant the assertion, that dispensing with a declaration rendered it unnecessary to produce and file a private act of assembly, the only cause of action, the very groundwork of the whole, and o£ which the court could not otherwise take notice.
    Will dispensing with the declaration make the governor’s appointment of two arbitrators, instead of three., a compliance with the act of assembly, and a valid appointment? Will dispensing with the declaration make the act of two arbitrators valid, when three were required to act by the law ? Will dispensing with the declaration make the copy of an award as good evidence as the award itself, which the law required to be produced ? Will dispensing with the declaration cure the want of notice in writing ? Will it cure the defects apparent on the face of this record ?
    But, perhaps, it will be said that as the general court gave this judgment, we are to presume the act of assembly was their guide, and that they were satisfied by-proofs that the governor appointed three arbitrators;, that three arbitrators consented to act, and did not act, and that the notice given to the parties was in writing ; that the original award was laid before them, otherwise they could not have given judgment. 2 Burr. 901.
    To this objection, I reply, that an award cannot be made good by implication. 1 Ld. Raym. 612.
    That an award is not to be construed as a will or deed, but as a judgment, the, re cord of which you cannot depart from to decide on its operation. Yelv. 98. Wills and deeds are allowed a greater latitude of construction than judgments.
    But in this record every paper filed in this cause is expressly stated — the copy of the award, notice and affidavit ; so that if the appointment by the governor had been produced, it would have been filed, as would also have been the act of assembly. We are, then, to infer that the only pro'ofs exhibited in this cause were the copy of the award, the notice, and affidavit; and in deciding on the, appeal, no other papers can be taken into consideration than what were before the general court.
    I shall now submit the case to the court, trusting that I have fully pointed out such errors and defects in this record as make it a mere nullity.
    1. That the act of assembly, on which the judgment was founded being a private act, it ought to have been filed to enable the judges to take notice of it.
    2. That from the record it appears only two arbitrators were appointed by the governor instead of three.
    3. That two arbitrators took upon themselves the trust, when three were required to act by the law.
    
      4. That no original award was produced, but a copy only of the award was filed.
    5. That no notice in writing was given to the defendant. For all, or any of which objections or defects, the judgment is erroneous, and must be reversed.
    Jenings, for the appellee.
    It appears that, by consent of the, parties, an act of the legislature was passed, authorizing an appointment of arbitrators; and to prevent any further delay, when the award should be returned,, and not complied with, judgment was to be entered. This has been done, and, notwithstanding the matter has been duly examined by the arbitrators, there is now an attempt made to set aside the judgment.
    If the court have the least doubt, they will confirm the judgment, it being consonant with justice.
    The act of assembly was made for laudable purposes. It was to put the parties in the same situation as if the award had been made in pursuance of a reference entered into in court.
    Awards heretofore have been construed in á very strict manner, but of late years the courts have relaxed much in their construction of them; they have given them a liberal construction,
    Motion may be made to set aside an award for partiality of the arbitrators; therefore it cannot be given in evidence in an action on an award. 2 Wils. 148, 149.
    The presumption is in favour of the award, because the party might' have shown by pleading that it was not proper. 2 Wils. 267. It was the duty of Dorsey to show error upon the face pf the award, and not having done so, the court are to presume every thing to have been rightly done in the court below, because the party might there have shown error.*
    Was it ever set forth in the award that the party had notice l Pleading is good evidence of what the law is. There never was a good plea, if every thing must appear as contended for. Yelv. 203. 1 Vent. 50.
    
    As the party did not make the motion in court to set aside the award, he has lost’the opportunity, and cannot do it before this court. That cannot be assigned for error which might have been pleaded; the principle is, to prevent vexation and delay.
    The court will intend an original. The onus probandi lies on the appellant, and the clearest proof is necessary to contradict what may be intended.
    
      A private act of parliament need not be exemplified. Where the plea is not nul tiel record, the statute book may be given in evidence. Before a jury, a printed copy of an act is good evidence. 2 Salk. 566.
    
    This cannot be compared with a special authority, and one which is to be construed strictly. If it is, then every arbitration is a special authority, and every award returned under an order of court is open to the ^fame objection. There can be no difference because one'is under a general act, and the other under a special act. Unless this award is to be distinguished from all other awards, the judgment rendered on it must prevail. Judgments have been entered under a particular act of assembly by the Potomac Company. There have been no objections made to these judgments, although, no doubt, the ingenuity of counsel might have raised such as have been made in this case. These nice objections are almost a reproach to the law.
    On a conviction for obstructing an excise officer in coming to weigh candles, it was objected that by the statute the officer has power to enter by day or night, and if by night, then in the presence of a constable, and it was not said whether it was by day or by night, for it might have been by night without a constable; but the court said, that should have been shown by the defendant ; it was enough the conviction did not appear to be wrong, and they presumed the entry to have been made in the day. 1 Stra. 608. 2 Stra. 1240.
    Can it be conceived that judgments given out of court can be compared with the judgment in the present case? judgments given out of court must state every thing, because they are to be subject to the control of the court of king's bench.
    
    If a special authority is delegated, a writ of error will not lie at all. Special authorities are all removed by certiorari. 1 Vent. 33. 117. By supporting this to be a special authority, they show that a writ of error would not lie at all.
    
      Inferior courts never give their reasons, nor do they state the evidence on the record. The appellant had the same opportunity to show against this motion what he might have pleaded.
    It has been said that the governor did not appoint three arbitrators. How does this appear ? The court will presume three were appointed, unless the contrary appear. Besides, sufficient does appear on the award to justify every one in saying that three arbitrators were appointed. The award says, “ two of the arbitrators aforesaid.” If but two had been appointed, the award would have been, we the arbitrators, &c.
    Every construction in favour of the acts of lay gents have always been admitted. It is totally immaterial whether there were three arbitrators appointed or not, because it was incumbent on the appellant to show three, were not appointed.
    This court will presume the original award was produced. By the record it appears that the original award was produced, for the copy inserted in the record is officially attested by the clerk of the court; this could not have been done if the original had not been produced. No court could have been satisfied without the produce tion of the original. The law says the original must be produced, and a copy of it filed. This has been done, and this appears by the record. It was not necessary to state the fact, that the original award was produced. All that the appellee was bound to do, and all that was necessary for him.to do, was to produce the original.
    There is a difference between travelling out of the record, and presuming what does not appear on the record. This judgment being entered on an award, is entitled to every indulgence of construction by the court, and the arbitrators are to be considered as acting in lieu of jurors, and their award is to be considered as if it had been the verdict of a jury given in the cause, and to be construed as such.
    
      Authorities.
    An award by rule of court is not within the excepSion to other awards. 12 Mod. 234.
    Every ground of relief is open on a motion to set aside the award. 3 Burr. 1259.
    Partiality of arbitrators cannot be given in evidence in an action on an award by stat. Wm. III. A motion may be made to set it aside. 2 Wils. 149.
    Awards are not considered strictly as formerly, and the court presumed a fact, because the contrary might have been shown if it were so. 2 Wils. 268.
    Where from the nature of the thing, the award may be ascertained by a reference to something else, it is sufficient. Kyd, 138.
    Submission to three, or any two, if the third arbitrator had notice of the meeting and might have attended, two may act. This was on motion to set aside an award. Kyd, 67. Barnes's Notes, 57. Do any awards from court, when made by two arbitrators, set forth that the other had notice; and are not judgments always entered up, if there is no motion to set aside the award ? They might as well allege that it does not appear the defendant had notice to attend. It is never done. If he had not, he should move to set aside the award.
    On a plea of no award, the plaintiff replies an award, it is not necessary to add that the defendant had notice. The want of notice should come from his side. So is the form of pleading, where submission to three, or any two; it is sufficient to set forth an award by two, and if ¿he other had no notice, it should have been replied, where the submission was by bond; but if by rule of court, it should have been on motion to set it aside. Ir is a rule, that pleading is evidence of the law, though it does not make the law. 3 Raym. 362. Yelv. 203. 1 Vent. 50.
    Error does not lie for matter which might have been pleaded, Cro. Eliz. 4. 25. 2 Raym. 885, 886. unless the court has no jurisdiction. The judgment should appear to be wrong, for if it might be right, the court will not reverse the judgment. 1 Stra. 319.
    . . Error does not lie on a conviction for keeping a gun. 1 Vent. 33. It does not lie on a conviction of forcible' entry. 1 Vent. 171. It does not lie on a denial to grant a prohibition. Salk. 136. Neither did a writ of error lie on a judgment on a mandamus before stat. 9 Ann. c. 20. which allows special pleadings to a mandamus. P. Wins. 350.
    A private act, printed by the king’s printer, is evidence-to a jury. On. the plea of nul tiel record, it must be. exemplified. Salk. 566. A conviction presumed to be right in 2 Stra. 1240.
    Key, for the appellee.
    There never was a plainer case in point of law than the present one; a juster one never did exist.
    Upon examination of the record, it will appear that there is sufficient to affirm the judgment.
    The preamble of the act will explain the agreement of the parties. If it is a private law, it passed with the consent of the appellant. The law ought to have the same liberal construction as the agreement itself, which is recited in it.
    It must be admitted, that it is not proper to travel out of the record; but it is incumbent on the appellant to show defects. Every thing appears on this record which is necessary to sustain the judgment.
    There can be no doubt but that part of the law may be private with respect to the parties, and part of it public. 4 Bac. Abr. 640. pl. 6, This act is a public one so far as it gives authority to the judges of the general court to enter up the judgment. With a view to the authority of the judges to enter up the judgment, it was a public law, being to exercise judgment in term, time, and the judges are bound to take notice of it.as- a public law.
    
      "Whether it is a public or a private law, it is not neces'•sary, in the present case, to produce it. The production ■of the act is only to show the right attaches to the party, None of the authorities go to show the necessity of putting it on the record. The act never meant that there should be any pleadings, and if there were no pleadings, how could the act be put on the record ?
    The necessity of a declaration being waived, every idea of pleading is precluded. The appellant could plead nothing in bar to the award; he could not plead nul tiel records if he could have pleaded nul tiel record of the law, and the appellee had replied hubetur tale recordum, in doing so he was not bound to set out the law, for there is no instance in pleading habetur tale recordum, that the record is set out, or if there is an appeal, of sending it to the superior court.
    The law was enacted upon the principle that there was to be no pleading. It was made in full confidence that the award would be fulfilled ; and if not fulfilled, it would be sufficient to produce the award and file a copy, upon which the court were to give judgment.
    In a suggestion, it is requisite to set forth every thing as particularly as in a declaration.
    In what manner did the la%v intend that Dorsey should defend himself? In no other way but by appearing in court and objecting to the award ; and not having availed himself of the motion, he is precluded.
    This law was drawn with a view that this award should be subject to the same rules as all other awards. In cases of awards, it never appears on the record that the proof of notice was made. Suppose Dorsey had appeared and objected to the award, would the court send up all the depositions which might have been taken ?
    The act intended to place the parties in the same situation as if there had been a prior suit depending between them, and the cause had been referred agreeably to the common practice of the court. 1 he legislature did not dream that such a number of frivolous objections would have been raised.
    Where a day is given for a party to appear in court, and he neglects to appear, he is precluded.
    What averments could the party make so as to have them entered on th“ record ?
    A judgment upon an award aids and cures any defects which may be in a declaration: Indeed the judgment is good without any declaration at all. The act of October, 1778, c. 21. says, that judgments upon awards are to have the same effect as judgments upon verdicts. The judgment, therefore, on this award is to have the same effect as if it had been a judgment upon the verdict of a jury, and all defects are cured which a judgment upon a verdict would have cured.
    It is not necessary for the original act to be produced, nor is it necessary that the proof and authority should be on the record, for this court never will presume that the general court have violated the powers delegated to them by the act.
    This law is to be considered as the agreement of the parties, and the judgment assented to by the appellant. 4 Bac. Abr. 648. pl. 39.
    In order to form a right judgment of a statute, put yourself in the place of the law makers, and ask what an honest man would do. 4 Bac. Abr. 649. pl. 2.
    The reason why matters of fact should appear on the record out of term time is, because the court of king's bench has a superintending power and control. But this is not applicable to our general court in giving their judgment in this case.
    
      Cowp. 26. This was an extrajudicial procedure. But the present case before the court was not a special authority given to the general court. Lord Mansfield takes a distinction where there is an authority to take away a man’s property against his will and where he consents to it.
    
      The particular act in the present case was not made against the will of Edward Dorsey ; he assented to every provision in the act, and it cannot be assimilated to the case in Cowper. That case was flying in the teeth of law, and not applicable to the present case; and Dorsey cannot be said to be in the situation of the case in Cowper, 26.
    Awards are now considered with greater latitude than formerly; and 1 Burr. 277. reprobates strict objections to them. Actions of debt on bond for awards contain the nicest cases in special pleading.
    What is the case in an action of debt on an award ? 1 Burr. 280, 281. In an action of debt on an award, you need not state in the declaration more than is necessary to show the case. Where there is an objection to the performance of an award, the defendant must show it.
    The court will intend that the return only went to what was in view.
    If the defendant is to impeach an award, it must come on the part of the defendant in pleading. The court will always presume the award right until the contrary is shown.
    
      Leon. 72. The distinction is here taken between debt on bond for an award, and debt on an award itself.
    The original award was produced to the court. The copy attested by the clerk is sufficient evidence of the original having been produced. The clerk was to take a copy, and how could he take it without having the original.
    If the execution of the award had been contested, would the depositions taken upon the contest be inserted in the record ? This has never been the practice.
    They have connected the third clause of the act with the fifth clause, and say that all three of the arbitrators must act. This is not the intention of the act, nor does it say so.
    It is obvious that the court will intend every thing to be done in this case which was requisite on the part of the plaintiff below. 1 Burr. 247. And they will favour all they can the judgment which has been given. It is requisite the superior court should intend every thing to aid a judgment by justices. The award states that two of the arbitrators made the award. It means two out of the three arbitrators who were appointed by the governor, and the court must intend that three arbitrators were appointed.
    The counsel for the appellant would deduce and dwindle down the power of the general court in this particular case, as acting under a mere letter of attorney. Suppose the award had stated ten days’ notice in writing, could not Whetcroft be permitted to prove that fifteen days’ notice in writing had been given. It was a fact which might have been contested in the general court.
    It is a clear rule of law, that after verdict, every thing necessary to sustain the judgment shall be presumed; so in this case, the court will presume every thing to have been rightly done.
    Martin, (Attorney-General,) for the appellant,
    in reply. The appellee, if he has a good case, may make it before the court of law, notwithstanding this case is reversed. He may begin again; the decision here will not affect him.
    By the act there is no day given for Dorsey to come into court and make objections to this award; nor is there any thing in the law which says in case Dorsey does not appear, the judges are to enter the judgment; all that is given by the law to Dorsey is, that he may be at liberty to prove payment.
    
    
      Dorsey was willing to comply with the award if' it had been made agreeably to the law. The more he was in the power of Whetcroft by the act of assembly, so much the more necessary was it that the court should be satisfied of every previous requisite-
    
      This act authorizes the governor to appoint persons as arbitrators, instead of leaving it to the parties themselves to make the choice, in the same manner as the act which authorizes the court to decide on petitions for freedom.
    Independent of the particular jurisdiction given by this act, action must have been brought upon the award, and the only difference is, that the examination of facts is thrown into a different tribunal, and the court required the same facts and proofs as if it had been tried before a Jury-
    This act does not authorize Dorsey to come in and show misconduct of the arbitrators. It has none of the necessary provisions contained in the laws respecting awards.
    Upon the same principle that you cannot show any thing against a verdict after four days, so it is that you cannot show any thing against an award after a judgment upon the award.
    It has been admitted, at least in part, that this is a private act of the legislature. It must be admitted that no person was interested in the law but Whetcroft and Dorsey. Why was it given to the judges to act in session, it has been asked? It was no more a power for the judges of the general court to do this act, than any other persons; for giving extra powers to persons having other powers, does not alter the case.
    It can make no difference whether part of the law is public or private; there are the same clauses in the law both public and private ; the court could only take notice of the public parts of the law.
    The court could not, on an action, take any notice of this law unless brought forward; and this court can only have the same evidence before them which the court below had, and which appears upon the record before them. In cases on petitions for freedom where there Is an appeal, there is no new evidence taken on the as - peal; and it has been conceded that no other evidence than what appears on the face of the record can be taken into consideration by this court.
    But on an issue of nul tiel record, the whole record must appear, or how can the appellate court know whether there was such record ? Suppose certain variances between the record pleaded and the act; it must constitute a part of the record, that the superior court may judge whether there is a variance or not.
    If the defendant pleads a private act of the legislature, it must appear on the record. What is the party to do if he wants to obtain any thing on a motion to state the private act at large ? Parties must set forth, either on suggestion or otherwise, the private act of parliament under which they mean to rely. When an act is referred to a jury, a copy in the printed book will answer.
    This judgment is totally erroneous on common law principles ; there is no verdict, no reference; there is nothing by which the general court could give a judgment.
    What evidence can they have but record ? They cannot take any notice of the act any more than they could take notice of a bond referred to in a declaration. Though the original award is now in court, yet not making any part of the record, this court cannot take notice of it; so also though the act of the legislature is now in court and printed in the volume of laws on your table, yet not being a public law, but being a private law, and not making a part of the record, it cannot be taken notice of.
    What must have been done if the award had been made without any particular act of assembly, but under circumstances similar to those stated in the law ? There can be no doubt but that the whole circumstances must have been stated ; every antecedent transaction, not subsequent things.
    
    The fidelity of the persons appointed under the law. was discretionary with the governor; it is not the business of parties to prove a negative.
    Suppose a declaration and one single article omitted, a judgment on it would be erroneous. If a judgment was entered by default, yet the judgment would be erroneous.
    A verdict only cures form, but it does not cure the want of substance.
    
    The case in 1 Burr. 280. shows that nothing antecedently done is to be presumed.
    If an action of debt is brought on an award, every necessary must be set forth to show that an award was made, and that every thing on the part of the. plaintiff has been performed.
    No more is necessary in the case of debt on an award, than to show what is necessary for the plaintiff. The defendant is to show what is still remaining in his favour. All previous things on actions of debt on an award must be shown.
    Suppose this was an action of covenant that Dorsey would pay to Whetcroft whatever sum should be awarded by arbitrators, according to act of assembly, would it not be necessary to set forth the act, and the whole case ?
    Whoever comes into court to get a judgment on an award, must make good his case. The legislature never intended, nor did they mean, that Whetcroft should get a judgment in a summary way, on a worse award than if a suit had been brought, and the cause referred.
    
      Dorsey's not coming into court and contesting the award, does not amount to a confession, because there is no day given him by the law to appear in court. Suppose Dorsey had appeared and confessed judgment, this would not have altered the case ; it would not make the judgment good. A judgment by default on an award is not' better than a judgment in any other case ; nor is a judgment by confession. There is no more indulgence given to a case on an award than any other case; the cpurt would go further to support the award itself, but not the proceedings on it.
    If a court is to decide the law and facts, and an appeal .lies from its decision, all the facts necessary should appear on the record. If the facts do not appear, how can the superior court judge of the propriety of the judgr ment below.
    Convictions before magistrates must display the law and facts. By a law of the state, the court are authorized to decide in the case of slavery between master and servant; the whole evidence appears upon the record, that it may appear whether the conclusions from the facts are justified in law.
    When Whetcroft made these suggestions to the court, he might have proved all the other requisites, and there is no reason why his case for so large a sum of money should be in. a better situation than other cases of the like kind. Whatever the common law requires, is stronger than what is required by an act of assembly.
    It is not stated that the award was produced; and whatever was necessary to be produced should appear by the record to have been produced. It has.been said that the clerk of the general court has certified this is a true copy j it is no part of the law that the clerk should copy it.
    The law directs that three arbitrators should be appointed, and yet it does not appear that three were appointed ; more than the law requires might have been appointed. There .is no proof that three only were appointed. The act requires that three arbitrators should act. The true meaning of the law is, that no two arbitrators should act alone. Upon viewing the third and fifth sections of the act together, it clearly appears that the meaning is, that the three arbitrators should all act, but that any two of them might give an award; that no two of them could do any act without all three being present.
    
      It is admitted by the counsel for the appellee, that it •does not appear that there was notice in writing given, or the time when. They say we ought to have suggested on the motion that notice in writing had not been given, and that they might have proved then that the notice had been given. I doubt whether such proof would have been proper ? but neither the one or the other hath been done.
    It must be stated what the party had done, so that the superior court might decide whether it was according to law.
    There can be no presumption that the governor appointed three arbitrators, or that the arbitrators gave notice in writing of the time when and where they were to meet. The court acted under powers specially delegated to them, and nothing is to be presumed which does not appear so as to aid their judgment.
    It has been objected, that we cannot show for error any thing which we might have pleaded. The law does not allow us to plead any thing which we have suggested as error. How could we, then, take advantage of it, except in the manner we now do.
    Every defect which is good to arrest a judgment on motion, may be taken advantage of on writ of error? and what you cannot take advantage of, except by pleading, are matters dehors the record.
    There is nothing in the act which says that this judg= m ent is binding if Edward Dorsey does appear.
    On a judgment by default, the defendant is not deprived of showing that the judgment is defective. If the plaintiff has not shown affirmatively every thing necessary on his part, it is not cured by default of the defendant.
    In every case where the court is constituted judge and, jury, the evidence must be produced and appear on record, to show that the court were right in their judgment.
    
      This judgment cannot be supported by common law Pr'mcip^es’ it must be supported by a particular act of the legislature, and as the act under which the proceedings were had is a private act, the authority delegated by it must be strictly pursued, and the appellee must show he did all those acts which were requisite to obtain the judgment; and having, as I trust, failed to do so, the judgment must be reversed. In reversing the judgment, there can be no injury -to Whetcroft, if he has a good case.
   The court of appeals reversed the judgment of the general court. The reasoó given was, that the act of the legislature, being a private law, ought to have constituted a part of the record.  