
    Spalding against Irish.
    
      June.
    
    In Error.
    ought to bed certain and
    arbitrators award a tobe paid as" the tion ot a tract of land, and iegai and equitable claims the land are eVfram''the' award, without finding the amount of the^awarcHs bad. •
    IT appeared from the record which was returned on a writ of error to the Court of Common Pleas of Bradford county, that this was an action of debt on bond brought by fob Irish against Harry Spalding, in which a statement was-filed by the plaintiff on the SAth August, 1815, in these words, demand is founded on a bond under seal, dated ‘ the 30th day of December, 1814, for the sum of three thousand dollars lawful money of the United States, all of which plaintiff avers is yet due and yet unpaid, and this he is ready J ¿r* j to verify.” The defendant prayed oyer of the bond and condition, which were placed upon the record. The condition was as follows :—“ That if the above bounden Harry Spald- . , , . ... ' mg, his heirs, executors, or administrators, shall well and truty PaYi perform, and abide by the award of A. Simons, C. Brown and G. Hewitt, in a certain cause to them submitted by the said Irish and the said Spalding, and give his said Spalding's promissory notes to said Irish or bearer on interest for the sum or sums, and at the time or times by them awarded, then this obligation to be null and void, or else, &c.”
    The defendant pleaded no such award, to which the plaintiff replied, that there was such an award, and set it forth together with the agreement, in pursuance of which it was made.
    The agreement which was under seal, and dated the 30th December, 1814, recited, that an action of ejectment had been brought in the Court of Common Pleas of Bradford county, for a certain tract of land, by Job Irish, the defendant in error, against Orr Scoville and Silas Scoville, and that Harry Spaldi?ig, the plaintiff in error, had purchased the said land of Orr Scoville. It was therefore agreed between Irish and Spalding, that the former should withdraw his action of ejectment, and by deed quit claim and relinquish to Spalding all his claim to the said land, and also to another tract of land adjoining thereto ; and that Spalding should give his bond in a certain sum to Irish, to be put into the hands of certain arbitrators, who were appointed to meet the parties at a certain time and place, and who or a majority of whom were invested with power, “ after hearing the parties, their proofs and allegations, to award such sum or sums of money to the said Irish as they should find just and right for the said Spalding to pay said Irish for his claim or interest in said two tracts of land, the payment of which was to be divided into three annual instalments, with interest; each party to pay their own costs and one-half the arbitrator’s fees, which award when so made was to be final and conclusive on both parties.” To this agreement, there was the following Nota Bene, “ All liens by judgment or mortgage to be considered OX deducted from the award of said arbitrators.”
    The arbitrators met the parties at the time and place appointed, and after several adjournments, made this award, “ Met the parties agreeably to the above agreement, and we the above-named arbitrators, after considering of the cause submitted to us by the above rule, do in pursuance thereof adjudge and award as follows: That the above named Job Irish do recover of the above named Harry Spalding the sum of two thousand five hundred and eighteen dollars 96 cents, to be paid agreeably to the above rule, in three annual instalments, as follows, to wit, &c. “ And we do further adjudge and award, that all legal and equitable claims against the said Job Irish, remaining liens On the said tract of land in the above rule described and mentioned, be deducted from the above award, in equal proportions from each of the above several instalments as they severally become due. Witness our hands and seals, this 23d day of June, 1815.” As a breach of the condition of the bond the plaintiff alleged, that the defendant “ had not complied with and performed the said award according to the tenor and effect thereof.”
    The defendant filed a demurrer in the following'words, “ And the said Harry Spalding, as to the plea of the said Job Irish by him above pleaded, in reply to the plea of the said Harry Spalding by him above pleaded in bar, says, that the plea by him so as above pleaded, and the matters therein contained, are not sufficient in law to maintain the said action of the said Job Irish against him the said Harry Spalding, to which said replication in manner and form as the same is set forth, the said Harry Spalding is under no necessity, nor is he obliged by the law of the land to answer. Wherefore,” &c.. The defendant at the same time added a plea, u that the defendant ought not to have or maintain his action aforesaid in manner and form aforesaid by him prosecuted, but the agreement in writing aforesaid, and the award aforesaid, ought to have been proved, filed, and proceeded upon in the manner prescribed, and according to the provisions of the act of this Commonwealth of 21st March, 1806.” The re-, cord then merely stated, that the plaintiff joined in the demurrer. The cause was argued at December Term, 1816, on the following grounds. 1. That the award was not final. 2. That it was uncertain. 3. That the award should have been filed, agreeably to the act of assembly of 21st March, 1806. The cause was held under advisement by the President of the Court, who was by the agreement of the parties to transmit his opinion in writing before the next Term, and judgment was to be rendered on the opinion, on the Monday Of the February Term following.
    It was conceded, that the defendant had received a deed' from the plaintiff and was in quiet possession of the land.
    The opinion of the Court was filed at February Term, 1817, and judgment entered in favour of the plaintiff; and on a rule to shew cause why an execution should not issue, the Court below, after fully stating the facts and the pleadings, delivered the following opinion. “ The two first points as to the award not being final or certain have been argued on the same grounds, and it is contended, because the liens on the land have not been ascertained, the award is neither certain nor final. Lien is a technical term in Pennsylvania. Lien is either by judgment, recognisance, mortgage, or by a balance of purchase money due, or to become due and unpaid. The agreement in this case is, that liens by judgment or .mortgage are to be deducted, and the award is, that all equitable claims against the said Irish remaining liens on the tract of land in the above rule described and mentioned to be deducted, &c. If such liens exist, they may be ascertained by the proper officer, and it is as certain as the costs of an action or the charges of a voyage, or to pay the executors of y. D. deceased. Grier v. Grier, 1 Dall. 174; or agreeably to the decision of the board of property. Santee v. Keister, 6 Finn. 36; which" have all been recognised as sufficiently certain by the Supreme Court of this state. As to the last point, it appears to me it never was intended by the parties, that a judgment should be entered on this award or report of the arbitrators, and that therefore it was a proceeding exclusively at common law, and not according to the act of 1806. The construction contended for by the counsel for the defendant, would change the agreement of the parties, and to allow of this would be enabling the defendant to take advantage of his express agreement and submission.
    “ There was one other ground touched by the counsel of the defendant: That there are not sufficient averments in this case by the plaintiff on the record to enable him to recover. The defendant having demurred generally, I think the Court should not be very astute in discovering technical objections in his favour. If there had been any mistake in point of law or fact, or misbehaviour in the arbitrators, or any other ground that in England would give relief in a court of chancery, the defendant could have brought it before a jury, but having brought his cause in this way before the Court, although the pleadings are not very perfect, yet I think from the whole view of the record, I am bound to give judgment for the plaintiff. But the Court order and direct, that for the present no execution issue, so that the party may ascertain the liens, if any, and that the defendant may have an opportunity of complying with the award.”
    A writ of error being taken out, in addition to the general errors, the following errors were assigned.
    1. That there was a mis-trial in the Court of Common Pleas, there being no issue, nor such pleadings in the cause as a judgment could be rendered upon.
    3. That there was no demurrer; because no cause of demurrer was set forth, which ought to have been done according to the statute of 27 Eliz. c. 5, and 4 and 5 Anne, c. 16.
    3. That there was no joinder in demurrer appearing on the face of the record, nor will the recital of the Judge in his written opinion supply the omission.
    4. The judgment below was premature, and not warranted by the pleadings, in vhis, that the defendant below, after the supposed demurrer, tendered an additional special plea, puis darrien continuance, relating to a matter in pais, to which no replication was made.
    
      The cause was argued in this Court, by Kinney, Hail and Watts, for the plaintiff in error,
    who referred to Sellon’s Frac. 270, 271, and Kyd on Awards, 129, and by
    Hale, Baldwin and Huston, for the defendant in erfor,
    who cited Munro v. Alaire.
      Grier v. Grier, 
      
      Pur don v. Delav an.
      
       MiKinstry v. Solomons.
      
       Gonsales v. Deavens.
      Santee v. Keister.
      
       Hart v. Weston.
      
       1 Ckitty’s Plead. 325, 326. 400. 643, 644, 645, 646, 647. 1 Tid. Frac. 648, 649. 27 jEliz. c. 5. 4 Anne, c. 16. Kyd on Awards, 133. 135. 186. 199. 208. 1 Bac. Ab. 232, (Wils. edit.)  Act of 21st March, 1806.
    
    
      
      
         2 Caines, 327.
      
    
    
      
      
         1 Hall. 174.
    
    
      
      
         1 Caines, 304.
    
    
      
      
        2 Johns. Hep. 60.
    
    
      
       2 Yeatesy 5SS>.
    
    
      
       6 Sinn. 36.
    
    
      
       5 Burr. 2588.
    
    
      
      
         1 Vent. 87.
    
    
      
      
         4 Sm. L. 326.
    
   The opinion of the Court was delivered by

Duncan J.

If the award in this case were valid, there are so many, fatal objections to this judgment, the proceedings are in all respects so substantially erroneous, that the plaintiff below could not on the state of the record be entitled to any judgment. But as the Court entertain no doubt on the merits of the award, and are not willing to put the parties to the expense of a new suit, on this award, in which there could not be a recovery in any form of action or pleading, they think they best administer justice by deciding on the award, as if the whole case of the plaintiff had been stated on the record, and breaches had been legally assigned. The case would then stand thus:—In an action of ejectment in which Job Irish was plaintiff, and Orr Scoville and Silas Scoville defendants, the following agreement was entered into between Job Irish and Harry Spalding. [His honour here referred to the agreement.] In pursuance of that agreement, on the same day, a bond in the penalty of $3000, was executed by Harry Spalding to Job Irish, with the following condition. [His honour then stated the condition.] On the 15th June, 1816, the arbitrators made the following award. [Here he read the award.] The question which this Court are now to decide is, Is this a good and binding award ?

Connecting the agreement in the ejectment cause with the arbitration bond, it is evident to me, that the arbitrators were to find and ascertain the sum which Harry Spalding was to pay Job Irish, for his interest in the land ; the nota bene to the agreement satisfies my mind, that one great object of the award was to ascertain the amount of the liens. “W. B. All liens by. judgment or mortgage are to be considered or deducted from the award of the said arbitrators.” Who were to consider them ? Who deduct them ? The arbitrators ; for if this was not to be done by the arbitrators, the essence of a good award would be wanting. Awards are to put an end to the controversy between the parties; they are to be certain and final.

The submission was to give notes for the sum to be awarded, “ and give his, said Spalding’s, promissory notes to said Irish or bearer, for the sum or sums by them awarded.” The certain sum to be paid, was the matter submitted to the arbitrators ; and the award is, that Irish do receive of Spalding $2518 96cts. at three payments ; but they further adjudge and award, that all legal and equitable claims against the said Job Irish remaining as liens on the land, be deducted from the above award, in equal proportions from each instalment; thus extending the claim beyond liens of judgments, and mortgages, to every equitable claim which would be a lien on the lands in the hands of Irish, as purchase money due for the lands, mortgages and agreements, and conveyances not recorded. Whatever the amount might be, they were to be deducted from the sum awarded; thus leaving them to future examination. When, how, or by whom are these to be ascertained and deducted ? Is Spalding to give his notes payable to Irish or bearer for the whole sum, and in the suits brought on these notes to have them deducted ? This would either enable Irish to impose on the world by negotiating the promissory notes payable to bearer, for a certain ascertained sum, when the debt was not ascertained, but left to be after-wards ascertained, and when ascertained, to be deducted proportionably from the notes, or expose Spalding to the risk of being obliged to pay the notes to an innocent indorsee without defalking the amount of those liens. The notes by the condition are to be given for the sum awarded; that sum then, is to be the absolute unconditional sum awarded by the arbitrators, after the deduction of the liens, and this is the clear and plain construction of the arbitration bond, connected with the agreement in the ejectment cause. He cannot ascertain the liens; if judgments, they may be for the penalty if mortgages, part paid; the judgments and mortgages maybe fully discharged, though satisfaction be not entered ; besides latent contracts j besides the liens in equity in the hands of Irish. If it be, that by the award he is not to give notes, but the money is to be recovered on the award, then they must be deducted by a jury; thus leaving open for future discussion the very matter which was submitted. The award in its very nature ought to be wholly decisive ; the arbitrators cannot delegate to others, that which is submitted to them ; nor could the arbitrators refer a matter to their own future judgment or decision. An award, that if the plaintiff prove certain articles against the defendant, then he shall- pay so much as the plaintiff was damnified thereby, is not final; or if the defendant shall make out on oath before a Judge any disbursements made on account of the plaintiff, that the plaintiff shall pay them; but in case the defendant does not prove them within a limited time, the parties shall give general releases, this is not a good award. Selby v. Russell, Comb. 456. Nor would an award that the defendant shall pay to the plaintiff such a sum of money, unless within twenty days the defendant should exonerate himself by affidavit from certain payments and receipts, in which case he was only to pay a certain other less sum,- be good, because it is uncertain and inconclusive. A mere mistake in calculation will not vitiate an award in toto, for that may be corrected ; but where a substantial part of the matter submitted is left undecided, so that the arbitrators do not make a final conclusion of the matters in difference, this avoids the whole. There is a prevailing principle in the construction of awards ; that they should be final in every case without any reference to a future examination and decision, except the award of costs, which are always to be taxed by the officers of the Court. 12 Mod. 139. Willes, 166. 4 Dall. 74. But an award that one party shall pay the reasonable, expenses of another in carrying on his suit, is ill.

On the ground of the award not being final, ascertained and decided, but leaving the matter submitted open for future examination, the judgment must be reversed.

Judgment reversed.  