
    *Byars v. Thompson.
    August, 1841,
    Lewisburg.
    (Absent Cabell and Brooke, J.)
    Arbitration and Award — Finality of Award — Reconsidering Award — Case at Bar, — B. and T. by arbitration bond, dated September 14, 1821, submit all matters in difference between them to three arbitrators: the arbitrators make an award on the 21st November 1821, which was on that day signed and sealed by them, and read, but not delivered, to the parties; and B. objecting to the award because interest to which he was entitled was not credited to him, the arbitrators reconsider the award, and on the 22nd November, allow the interest and reduce the amount before awarded against B. and award the reduced amount against him, and sign, seal and deliver the corrected award: Held, the award of the 22nd November is the true award.
    Same — Validity of Award — Date of Submission — Misre-cital of. — The award misrecites the date of the submission to the 18th July, instead of the 14th September 1821: Held, this misrecital does not invalidate the award made in other respects pur. suant to the submission.
    Same — Same—Delivery.—It is not necessary to the validity of an award, that it should be delivered, unless it is expressly provided by the submission that delivery shall be necessary to its validity. Same — Same—Reservation of Right to Reconsider.— Arbitrators, in their award, reserve to themselves a right to reconsider a claim which they allow the party against whom they award; and then complete the award without reconsidering this claim: Held, the reservation is void, and the award good for the sum awarded.
    Same — Pleading and Practice — Declaration.—In an action of debt for the penalty of an arbitration bond, the declaration sets out the submission, and so much of the award as entitles the plaintiff to his action: Held, itis not necessary, in such case, that the declaration should set out the whole award.
    Evan Thompson and William Byars entered into a bond with condition to abide by an award, in the following words: “Whereas the undersigned, Evan Thompson and William Byars, have had many accounts of dealings one against the other, ■ and said Thompson having sold Byars several tracts of land, and said Byars having made him sundry payments, yet the said Thompson x'con tends he is not fully paid for those lands sold to said Byars, and having instituted a suit in the superior court of chancery, to bring about a settlement, and for said Byars to shew how he has paid for the lands he has purchased of said Thompson ; the parties, being desirous to bring about a speedy and effectual termination of all matters of disputes and controversies between them, deem it best to submit all differences to the final decision of Andrew Russell, Peter Mayo and John H. Eulton ; who shall determine all disputes that may be found to exist between the parties; and they shall be completely authorized to decide according to law and equity, and correct all errors in all cases that may appear to them, and examine all accounts and agreements between the parties ; and may add or diminish as they in their judgment may deem to be justice towards the parties. And it is further agreed, that the parties shall have all legal evidence, and shall have the right to take depositions before two magistrates, by giving the other three days previous notice of the time and place of taking such depositions. And the award, under the hands and seals of the arbitrators, or a majority of them, is to be binding on the said Thompson and the said Byars; a copy of which is to be furnished to each of them. For the performance of the award to be made by the arbitrators, the said Thompson and Byars bind themselves, their heirs &c. each to the other, in the penal sum of 10,000 dollars. The said Thompson and Byars agree to meet at the house of Joseph Meek in the county of Washington, on this day, for the purpose of settling all the differences aforesaid, and hereby authorise the arbitrators to adjourn from time to time, and from place to place, as circumstances in their opinion may require, until the award shall be finished. Witness our hands and seals this 14th September 1821.”
    The arbitrators entered upon the arbitration on the day of the submission, and after various adjournments, *they signed and sealed an award, on the 21st November 1821. This award purported to be made in pursuance of a submission bearing date the 18th July (not the 14th September) 1821. It stated an account between the parties, shewing a balance due from Byars to Thompson, of 2183 dollars 82 cents, and awarded that Byars should pay that sum to Thompson. Arid it contained the opinion and decision of the arbitrators on sundry points of dispute between the parties; among which it is only necessary to notice the two following: “The claim made for damages by Byars in consequence of a refusal on the part of Mrs. Thompson to release her right of dower in the lands purchased by him, is rejected; it appearing to the referees, that the contract with Mrs. Thompson, made at the date of the release signed by her, to wit, on the 15th July 1819, operated as a release to Thompson by Byars.” “The referees not deeming the evidence entirely sufficient in relation to the authority of Byars to charge Thompson with the sum of 150 dollars paid by Byars to Jacob By on on the order of John Tate deputy sheriff: of Washington county, reserve to themselves the right to reconsider this charge against Thompson, and, if necessary, to erase it from the account.” This award was signed and sealed by the arbitrators on the 21st November 1821, and was read, but not delivered, to the parties; and on the 22nd November, the arbitrators made a correction, which was endorsed upon it, in the following words: “Upon objections being made by Byars to the award, after it was signed and read to the parties, upon the ground that the referees had not allowed him any interest on the items in his account hereafter mentioned, they proceeded to consider the objections, and have made the following allowances for interest, which had been overlooked and omitted (then followed a statement of interest on four items, amounting to 376 dollars 25 cents) which sum of 376 dollars 25 cents is to be deducted from the balance *made by the foregoing statement; which leaves a balance of 1807 dollars 57 cents, and which balance we award that Bj-ars shall pay Thompson, one half in three months and the other half in six months, with interest on the whole from this date. Given under our hands and seals November 22nd 1821.”
    In 1829, Thompson brought debt against Byars for 10,000 dollars, the penalty of the arbitration bond, for the failure of Byars to abide by and perform the award. There were four counts in the declaration.
    The first count, after making profert of the bond dated 14th September 1821, set out the substance thereof, and of the condition for the performance of the award, to be made by JRussell, Mayo and Fulton, arbitrators mutually chosen by the parties to arbitrate all matters then in difference between them; and then alleged, that the arbitrators, on,the 21st November 1821, in pursuance of the submission, made and published their award under their hands and seals, (of which also profert was made) of and concerning the matters in difference between the parties, and thereby awarded, that Byars should pay Thompson the sum of 2183 dollars 82 cents with interest from the date of the award; whereof Byars on the day of the date of the award had notice; yet he had failed and refused to pay the sum awarded to Thompson; bjr reason of which, action accrued to Thompson to demand the penalty of 10,000 dollars &c.
    The second count was like the first, with these differences, that it alleged, that the sum of 2813 dollars 82 cents awarded, was the balance due by Byars to Thompson upon an account stated in the award, and that the arbitrators made and published it on the-day of November 1821, and had the same ready to be delivered to both parties.
    The third count set out the bond or submission in hasc verba, and then averred, that the arbitrators, in pursuance *of the submission, made and published their award on the 21st November 1821, of and concerning the matters in difference between the parties, and set out so much of the award, in hasc verba, as was made on that day; in which award the date of the submission was recited to be the 18th July (instead of the 14th September) 1821; and, after stating the account between the parties, and the opinion of the arbitrators on various points of dispute between them, it was awarded, that Byars should pay Thompson the sum of 2183 dollars 82 cents with interest from the date of the award.
    The fourth count made profert of the bond or submission, and set out the substance thereof; and then alleged that the arbitrators proceeded to arbitrate the matters in difference between the parties, upon due notice to each of them, and made and published their award under their hands and seals, on the 22nd (not the 21st, as in the other counts) November 1821, and thereby awarded that Byars should pay Thompson 1807 dollars 57 cents (instead of 2183 dollars 82 cents, as in other counts).
    Byars craved oyer of the arbitration bond or submission, and of the award of the 21st November 1821, and of the correction thereof of the 22nd November; and then,
    1. He demurred generally to each and every count in the declaration, and the plaintifE joined in the demurrer. And he tendered the following pleas:
    2. As to the first, second and third counts of the declaration, that there was no such award as that mentioned in those counts.
    3. As to the fourth count, that there was no such award as that mentioned in that count.
    4. As to the first, second and third counts, that the arbitrators, in making the award therein set out, committed a palpable mistake, in point of fact and in law, in this, that they omitted and overlooked an allowance of 376 dollars 25 cents due from Thompson to Byars, for ^interest in the settlement of their accounts, which had been submitted to them; which omission was apparent on the face of the award of the 21st November 1821, and from the endorsement thereon, namely the correction of the 22nd of that month.
    5. That there was no such submission as that stated, recited and alleged, in the award mentioned in the declaration.
    6. That the arbitrators did not make an award pursuant to the submission in the declaration mentioned.
    7. That they did not make an award under and in virtue of the submission.
    8. That the arbitrators did not make an award under their hands and seals, of and concerning the matters submitted to them, and furnish a copy thereof to each of the parties.
    9. That the award was void for matter appearing on the face thereof, and of the contract dated the 15th July 1819, by which Byars acquired the dower interest of Mrs. Thompson to a portion of the lands in controversy between the parties, referred to in the award, in this, that the said contract did not operate as a release to Thompson of the claim made by Byars for damages in consequence of Mrs. Thompson’s refusal to release her right of dower in the lands purchased by Byars of Thompson.
    The cause having been transferred to the circuit superior court of Wythe, that court, in September 1839, overruled the demurrer to the first, second and third counts of the declaration, and sustained it as to the fourth count; upon which the defendant withdrew the third plea, which applied to the fourth count. The court admitted the second and seventh, pleas, and rejected the fourth, fifth, sixth, eighth and ninth pleas. The plaintifE then replied .generally to the second and seventh pleas, and issues were made up.
    Upon the trial, Thompson offered in evidence the arbitration bond or submission of the 14th September 1821, *and Byars objected to the reading of the same, but the court overruled the objection, and he excepted.
    Thompson having given in evidence the submission to arbitration of the 14th September 1821 (there being no proof of any other submission, oral or written) also read in evidence the depositions of Peter Mayo and Andrew Russell, two of the arbitrators; who proved the submission, and further testified, That thejT and John S. Pulton acted as arbitrators, and made, signed, sealed and delivered, the award to the parties; that the award was read to the parties, before it was delivered, which did not take place till after the objections made by Byars were considered, and the reduction from the sum awarded on the 21st November 1821 was made; that the reconsideration resulted in allowing credit to Byars for 376 dollars 25 cents, and that addition being made to the award, it was signed, sealed and delivered, by the arbitrators to the parties, on the 22nd November 1821; that, by the additional writing, the arbitrators decided, and so expressed, that Byars should pay Thompson 1807 dollars 57 cents, one half in three and the other half in six months from the 22nd November 1821, with interest on the whole from that date; that the arbitrators intended the latter as their award, and acknowledged and delivered it as such — the additional writing was on the same paper which contained the first opinion expressed by the arbitrators; that as to the misrecital of the date of the submission in the award, that must have been an error of Fulton who drew up the awarl; there was no submission but that of the 14th September 1821. And having read these depositions, Thompson offered to read in evidence the award, to which the defendant objected, but the court overruled the objection, and permitted the award to be read. Byars excepted.
    ■ There was a verdict for Thompson, for the 10,000 dollars penalty of the arbitration bond, to be discharged by the payment of 2183 dollars 82 cents, with interest from . the 21st November 1821.
    *Byars then moved the court to set aside the verdict, on the ground that it was contrary to the evidence; which the court overruled. Whereupon, he filed a bill of exceptions stating the whole of the evidence ; which was, the arbitration bond or submission; the award, including the correction of the 22nd November 1821; and the depositions of Mayo and Russell, of which the substance is stated in the second bill of exceptions.
    The court then gave judgment for Thompson upon the verdict; to which this court, upon the petition of Bj'ars, allowed a supersedeas.
    M’Comas, Johnston and Preston, for plaintiff in error.
    Sheffey and Patton, for defendant.
    
      
      Arbitration and Award. — See generally, mono-graphic note on “Arbitration and Award" appended to Bassett v. Cunningham, 9 Gratt. 684.
      Practice — Oyer.—As to the point that the right to crave oyer of papers mentioned in a pleading, applies, as a general rule, only to deeds and letters of probate and administration, not to other writings, see the principal case cited in Langhorne v. Richmond R. Co., 91 Va. 372, 22 S. E. Rep. 159.
    
   TUCKER, P.

In the examination of this case, I deem it fit to enter at once into an enquiry as to the merits and effect of the award in question, which is the foundation of the plaintiff’s claim.

The first question that presents itself is, Whether the paper in the record purporting to be the award is to be taken as such inclusive or exclusive of the correction made on the 22nd November 1821? in other words, whether the instrument as signed on the 21st November, is to be taken as the true award, or whether the addition and correction which was superadded on the 22nd, before the delivery, is to be taken as a constituent part of the" award itself? If the award was complete on the 21st — if the arbitrators had discharged themselves of their duty, if they were in fact functi officio, then it is clear that all their power over the subject was gone. But if, on the other hand, it should appear, that the arbitrators had not discharged themselves of their duty; that the act was not factum but in fieri; that the paper as signed on the 21st was not their definitive judgment and so was not complete; that it had never been delivered as their award, but was retained “for further reflection and examination; and that the reading of it to the parties, was with intent to hear any objections on either part, that they might be duly considered and weighed before this tempus penitentiae should be closed forever; then it is equally clear to my mind, that the instrument as executed on the 21st November was not the true award, and that the award never was complete until the execution of the 22nd November, whereby' the correction as to interest was made a constituent part of the award itself, and is not to be looked upon in the light of an ex post facto correction of an antecedent complete and final award.

The position I have here laid down is, I am persuaded, in strict concordance with the spirit of the cases upon the subject. It is admitted, indeed, to have been decided, that delivery is not essential to the validity of an award, unless made so expressly by' the submission. That the award is ready for delivery, will suffice. Brown v. Vawser, 4 East 584; Henfree v. Bromley, 6 East 309; 17 Ves. 237. And when the arbitrators have finally discharged themselves of their duty, no resumption of their authority can be recognized, and every subsequent attempt to alter and correct their judgment can only be looked upon as void. Such was the case of Henfree v. Bromley, where by the submission the umpire was to make his award under his hand, ready to be delivered by a certain day. On the day, he awarded against the defendant £b7. and signed the award; recommending, at the same time, by parol, that they should divide the costs. He put the award into his attorney’s hands, who immediately sent notice to the defendant that the award was executed and ready to be delivered. Here, then, was a complete and final award, of which notice was given to the defendant, as executed and ready for delivery. It was, therefore, no longer in fieri. All power over it was gone. Yet the umpire, hearing that the defendant refused to pay his share of the costs, “struck out the £57. and inserted ^66. in order to cover them, and then he re-signed with a dry pen. This was, obviously, a new and distinct act of judgment, formed by him after his authority was spent and he was functus officio. And so it was decided.

But if the signing and sealing by the arbitrators was not with intent to determine and conclude their judgment, if they still retained the award in their own hands, with the view of hearing any objections that the parties might offer, and of weighing and deciding on them, if, in other words, the award was not only not delivered, but not ready to be delivered, then I think it equally clear that it is not their judgment; — it is not their award. It wants that finality which is essential to every award. It wants that final determination of the judgment which is essential to a decision. It is a suspended and not a final judgment, and of course can be no award.

Such in my opinion is the case here. It is stated indeed, ‘‘that upon objections being made by Col. Byars to the award after it was signed and read to the parties,” the arbitrators proceeded to consider them. This, I allow, is strong language. It speaks of the instrument of the 21st November as “the aw'ard,” and states that the objections were made after it was signed and read. But though so called, we find from the testimony of the arbitrators, that it was not considered as their final award. The two arbitrators who gave testimony in the cause concur in stating, that the instrument was signed, sealed and delivered as an award to the parties, having been read in their presence before delivery, which (the delivery) did not take place till after the objections made by Byars were considered, and the reduction was made; this reconsideration produced a reduction of the amount, so as to give Byars a credit of 376 dollars 25 cents. This being made, an addition was made to the award, which was signed, sealed and delivered by the arbitrators to the “'parties in the presence of each other on the 22nd November 1821. “In this addition to the award (they say) we decided, and so expressed that Byars should pay to said Thompson 1807 dollars 57 cents, one half in three months and the other half in six months from the 22nd November 1821, the date of the said additional writing, with interest on the whole from the said date. I intended (says Mayo, and Russell adopts his evidence) the latter as my award, and acknowledged and delivered it as such. The addition is annexed to and is on the same paper which contains the first opinion expressed by the arbitrators.” From this testimony it is clear to my mind that the paper signed on the 21st November was not the definitive judgment of the arbitrators. It was indeed the opinion which they then entertained, but which they suspended until they could hear any objections which could be suggested by the parties interested ; a course which I think not only legal but laudable.

I am then of opinion that the paper purporting to be executed on the 22nd November was the true award, and not that which had been signed and sealed the day before.

Before we pursue this conclusion to its consequences, it becomes necessary to enquire, whether the reservation of the power to reconsider a charge against the plaintiff of 150 dollars vitiates the whole award or not. I think it does not. The arbitrators have awarded to Thompson 1807 dollars 57 cents; and if this matter had been or should be decided in his favour, he would be entitled to 1957 dollars 57 cents. However the matter, then, as to that 150 dollars might be, Thompson is entitled without controversy to the 1807 dollars 57 cents. Byars has nothing to complain of, it we consider the award good, and the reservation only void. He could only lose, and not gain, by the reconsideration of that question. If they had awarded against him a heavy sum, *leaving undecided an important credit which would reduce that sum, he might well complain. But here, the effect of the reconsideration and change of opinion could only be to increase the demand against him. All then that he can ask is, that this reservation of a right to charge him at a future day the additional ISO dollars should be held void: and such I think it is unquestionably. But it does not affect the 1807 dollar» 57 cents which is substantive and unconnected with the question reserved, and for which the award is therefore good. If we consider — as perhaps we ought to do, in support of the acts of the arbitrators — -the reservation as being only of the power of reconsidering the question.at any time before the award should be delivered, then it would be valid indeed, but the result would be the same. For the delivery of the award without change as to the point reserved, must be regarded as concluding the question, and as evincing that after the exercise of the reserved right, the arbitrators had found no sufficient reason to modify their award as to the ISO dollars. In neither view, then, can the reservation in question have any effect upon the award between the parties.

What then are the consequences of this view of the award upon the present case? Let us look, first, to the pleadings.

There are four counts in the declaration, to all and each of which there is a demurrer. That demurrer, in the opinion of this court should not have been sustained as to either count. Preliminary to and as part of his demurrer, the defendant prayed oyer of the submission, to which he had a right, and which was accordingly read to him. He also prayed oyer of the award, to which he had no right; and that being also read to him, he objects, as fatal, the variance between the true date of the submission and the date recited in the award. In the opinion of this court, however, the plaintiff having in his declaration averred that the award was made in *pursuauce of the submission, that matter was matter of fact* for the jury, who might find upon evidence, that the date on the face of the award was mistaken. The second objection, that the arbitrators reserved a right to reconsider, is deemed of no weight, as that did not affect the award. The third objection was to the failure to aver that a copy of the award had been delivered. But this the court does not “deem necessary to the validity of the award, and so not necessary to be averred. The fourth objection is the discovery of the error and its correction, and so the plaintiff improperly demanded 2183 dollars 82 cents, instead of 1807 dollars 57 cents. But it depended upon the testimony that as to be adduced, and not merely upon the paper as it appeared, whether the act of the 21st or that of the 22nd November was the true award. If upon trial of the issue of no such award, on the first three counts (to which alone this objection applies), it had appeared, that the paper, as sealed on the 21st, was final, and delivered | as such, then the objection was invalid. If, on the other hand, it appeared that the act was still incomplete and in fieri, then the paper as executed on the 22nd was the true award. The matter, then, depending on evidence as to the execution and delivery of the award, would not properly have been made the subject of demurrer to the declaration. I do not think, that either of the first three counts should have been adjudged bad on demurrer, although, upon the view of the case taken by this court, it is unimportant, since on the plea of no award, they are unsustained by the evidence. As to the fourth count, the court is of opinion, that it is good, and that the demurrer to it should have been overruled.

The objection to the first, second and fourth counts, that they do not set out, or profess to set out, the whole award, is untenable. It is not necessary to do so in the declaration. The only case in which it is necessary (if il be necessary in that) is when an action of debt is ^brought for the penalty of a bond conditioned to abide by an award, and the defendant, taking oyer of the condition, pleads no award, and the award is for the first time brought out in the replication. In such case, it has been said, that the replication must set out the whole award. But if it be so, it results from the technical rules of pleading, which have no application to a declaration on an award, as in this case, in an action for the penalty in an agreement for submission, in which the setting out so much of the award a'nd the breach of it, as entitles the plaintiff to his action, is a necessary part of the declaration.

Next as to the pleas. The second was admitted. The third (which was to the fourth count) was a- good plea, but was withdrawn because the count was declared bad. It may be filed again to that count if there be a new trial. The fourth plea is, that there was an error of 376 dollars 25 cents on the face of the award. This was not a good plea; not to the first three counts, because it contradicted the award, if the act of the 21st November constituted the award; nor to the fourth, because that demanded only the balance after correcting that error. The fifth and sixth pleas are covered by the seventh which was sustained, and there was neither necessity nor propriety in pleading the same matter over in several pleas. The eighth plea is, that a copy of the award was not furnished. This was.not essential to the action, and so the plea was not good. The ninth plea was bad, because it called in question the award for errors alleged to appear on its face, which could not be established without reference to matter aliunde.

Looking then upon the declaration as good in all its counts the demurrer to the fourth count should have not been sustained, and the verdict upon the plea of no such award to the other three should have been for the defendant. There must then be a new trial upon those counts, unless the plaintiff shall release the excess *of the verdict over the demand set forth in the fourth count, in which event judgment should be entered for the amount of that demand. If the plaintiff refuses to release, the verdict must be set aside, arid a new trial awarded of the issues upon the first three counts, and the untried issues upon the fourth.  