
    *Doolittle v. Malcom.
    July, 1837,
    Lewisburg.
    [31 Am. Dec. 671.]
    (Absent Brooke and Cabell, J.)
    Award — Action on — Declaration—Sufficiency.—In action for not performing an award, tbe plaintiff need only shew so much of the award as is sufficient to state his demand.
    Same — Sufficiency—Failure to Direct Release. — An award of payment of a specific sum by one party to another, is mutual and sufficient, without directing a release or other act by the latter.
    Same — Same.—An award that one party shall pay a specific sum to the other, being written on the back of the submission bond, must be taken to settle all matters therein submitted, and is therefore sufficiently certain and final.
    Same — Action on — Plea Impeaching Arbitrators’ Conduct. — In an action for not performing award, a plea impeaching the conduct of the arbitrators in making up their award presents no legal bar, and ought to be re: ected.
    Same - Same — Same—Case at Bar. — In action of covenant for not performing award, defendant pleads, 1. that the arbitrators (who were bound by the submission to make their award from the evidence which the parties might produce before them) refused to hear legal and pertinent evidence adduced by defendant; 2. that the award was not made in pursuance of the evidence adduced before the arbitrators, but on the personal knowledge of the arbitrators themselves, or some of them, respecting the matter in controversy: Held, such pleas impeach the conduct of the arbitrators, and ought to be rejected.
    Same — Same—Objection to Award as Evidence. — In action for not performing award, issue being joined on plea of no award, defendant moved to-exclude from the jury the writing containing the decision of the arbitrators, "as insufficient, and as being no award;” the court admitted the writing in evidence: in appellate court, defendant objects that the court thereby decided the issue onthepleaof no award: Held, the objection cannot avail.
    By instrument under the hands and seals of Ambrose L. Doolittle and Joseph Malcom, reciting that Malcom was the proprietor of a water grist mill on Mud river in Cabell county, and that Doolittle had lately erected a mill dam, with a grist mill and saw mill, on *the said river, a short distance below the mill of Malcom, who conceived himself injured by the erection of the said dam, whereby his mill was drowned by the back water, and the value of his land and mill seat much impaired, the said parties mutually agreed, “for the purpose of settling this demand and to quiet the claim,” to submit their difference to the award of their friends (nine in number, who were named) “whose award or the award of a majority of them, who are to say from the evidence which the parties may produce before them, has the said Malcom sustained any damage by reason of the erection of the mill dam by the said Doolittle, and if so, to what amount; and the said Doolittle and Malcom do hereby covenant and agree to perform and abide by the award so to be made. The arbitrators are to convene at such time and place as may be agreed upon by the arbitrators, and to give the parties a reasonable notice of said time and place; and should the said arbitrators award any damages, the said Doolittle on his part covenants to pay the same, upon said award being made and notice thereof being given.” This agreement bore date the 22d of August 1831.
    Five of the arbitrators named in the agreement of submission, accordingly made and signed an award in the following terms : “We the undersigned arbitrators do agree that Ambrose L. Doolittle shall pay to Joseph Malcom the sum of 200 dollars within six months after date. September the 26th 1831.” This award was indorsed on the agreement of submission.
    In February 1833, Malcom instituted an action of covenant against Doolittle, in the circuit court of Cabell county, upon the agreement. The first count of the declaration set out the agreement in hsec verba, down to the words “and if so, to what amount;” and then stated the substance of the remainder. The count then alleged that the arbitrators met at a time and place agreed upon by them, whereof reasonable notice was previously *given to the parties, and in presence of Doolittle, having accepted the reference, and having heard the evidence produced by the parties, a majority of the arbitrators made and published their award in writing, of and upon the matter submitted to them, and in pursuance of the submission did then and there award that the said Doolittle should pay to the said Malcom the sum of 200 dollars within six months after the date thereof, of which said award the defendant then and there had notice; yet the said defendant did not pay to the plaintiff 200 dollars within six months from the date of said award and notice thereof, nor had he paid the same, or any part thereof, at any time since, and so had not kept his said covenant, but had broken the same. The second count stated the substance of the agreement, without setting out any part of it in hasc verba; and then alleged that the arbitrators did meet at &c. on &c. and in the presence of the defendant took upon themselves the burthen of the said arbitration and award, being the time and place agreed upon bj’ them, and of which meeting the defendant had reasonable notice; and in pursuance of said submission, after hearing the evidence produced by either party, did make and publish their award of a majority of said arbitrators, whereby they did award that Doolittle should pay to Mal-com the sum of 200 dollars within six months after date thereof, of which award the defendant then and there had notice. The nonpayment of the 200 dollars within six months from the date of the award and notice thereof, or at any lime since, was assigned as defendant’s breach of his covenant, as in the first count.
    The defendant took oyer of the agreement, and demurred generally to each count of the declaration; and the plaintiff joined in the demurrers. Defendant also filed five pleas, on which issues were joined. Of these it is only necessary to notice the second and fourth. The second averred that the arbitrators had not made or ^published any award in or about the matter submitted to them. The fourth averred that the arbitrators, when convened, refused to hear, and did not hear, all the evidence which was legal and proper, and pertinent to the matter submitted to them, and by them to be decided, and which the defendant offered to produce, and did then and there produce before them, but decided the said matter, and made and published their award, without hearing the said evidence.
    On argument of the demurrers to the declaration, the court overruled them. A jury was then impaneled to try the issues in fact; but failing to agree in a verdict, the jurors were discharged.
    At the next term, the defendant moved the court for leave to file a sixth plea, which averred, that the award so made and published as in the declaration was alleged, was not made and published from and in pursuance of the evidence which the parties produced before the arbitrators, but on the contrary was made and published by a majority of the arbitrators upon the personal knowledge of the said majority of arbitrators, or a part of them, of and concerning the matter in controversy. The plaintiff objected to the reception of this plea, on the ground that it was bad in substance, and the court sustained the objection. Another jury was then impaneled to try the issues, which also failed to agree in a verdict, and was discharged. The plaintiff, after the discharge of the jury, moved the court for leave to withdraw his replication to the defendant’s fourth plea, and to demur thereto. The court granted the leave asked, although it was Objected to by the defendant; and the plaintiff accordingly filed a demurrer to the plea, in which the defendant joined.
    At the suceeding term (in April 183S) a jury being impaneled found a verdict for the plaintiff, and assessed his damages to 200 dollars, with interest from the 28th of March 1832 till paid; and the court rendered judgment accordingly. *At the trial the defendant filed a bill of exceptions, stating that the plaintiff, to sustain the issues on his part, offered in evidence to the jury the agreement of submission, with the writing indorsed on the back thereof (which were severally set out in haec verba) ; to,the introduction of which lastmenlioned paper writing as an award in and about the matters submitted to the arbitrators, the defendant objected, as insufficient, and as being no award: which objection, being considered by the court, was overruled, and the said writing permitted to go to the jury. To which opinion of the court the defendant excepted.
    On the petition of Doolittle, a supersedeas was awarded to the judgment.
    B. H. Smith and Summers, for plaintiff in error.
    Reynolds, for defendant in error.
    
      
      See monographic note on “Arbitration and Award”, appended to Bassett v. Cunningham, 9 Gratt. 684.
    
   PARKER, J.

There are several objections taken to this judgment. It appears to me that the counsel for the defendant in error, in his notes, has satisfactorily answered them all. The declaration was sufficient, and the demurrer to it properly overruled. In this action the plaintiff need only shew so much of the award, as is sufficient to state his demand. M’Kinstry v. Solomons, 2 Johns. Rep. 62.

An award of payment of a specific sum by one party to another is mutual and sufficient, without directing the latter to execute a release or do any other act. Ibid. and S. C. affirmed in the court of errors, 13 Johns. Rep. 27.

The award was written on the back of the arbitration bond, and must be taken to settle all matters therein submitted; and is therefore sufficiently certain and final.

The fourth and sixth pleas impeach the conduct of the arbitrators, and under the decision of the court in Miller v. Kennedy, 3 Rand. 2, ought to have been rejected. *The case of Mitchell v. Staveley, 16 East 58, only decides that if all matters in difference are submitted, and there is a matter in difference of which the arbitrators are notified, and they do not act upon it, that matter may be pleaded in bar. The award there was not an award in pursuance of the submission. The conduct of the arbitrators in making up their award was not impeached, but it was denied that they acted upon all the matters submitted.

The motion to exclude the writing on the back of the submission from going in evidence to the jury as an award, was properly overruled. In doing so, the court does not decide the issue made by the plea of no award, and the replication thereto. If there is any ambiguity upon this subject, it arose from the terms of the defendant’s own motion.

The other objections are not worth noticing. The judgment must be affirmed.

TUCKER, P., and BROCKENBROUGH, J., concurred. Judgment affirmed.  