
    John Brown versus Ephraim H. Bellows.
    The plaintiff and defendant enter into an indenture, in which, after a recital that they are 66 in possession and improvement and are principal owners of a certain water privilege ” in Concord,66 with the buildings thereon, machinery, fixtures, &c.,” the plaintiff agrees to convey, and the defendant to receive and pay for,66 all the plaintiff’s right, title, interest, and enjoyments of the above described premises, consisting of all his interest in the water privilege, his right and interest to the fulling-mill, work and dress-shop, and all the machinery, fixtures, and appurtenances to the same belonging; also the saw-mill, with every privilege and advantage to the same belonging, with about two acres of land adjoining and connected with said saw-mill, together with all the land under and about said work and dress-shop and fulling-mill which may belong to him,” at such prices as shall be awarded by three men, to be chosen &c., and for the fulfilment of the agreement they “ bind themselves, each to the other, under the penalty of 1000 dollars,” &c.
    It was held, that after a price had been fixed by referees chosen pursuant to the indenture, it was too late for the defendant to object, that, by the statute of frauds, the indenture was invalid, because the referees and the price were not ascertained by the indenture itself: —
    That the description of the estate to be appraised was sufficiently certain : —
    That the award was not invalid, although the referees did not appraise each article separately, and although some articles of inconsiderable value were included under an <c &c. —
    That as the parties showed the referees the articles to be appraised, if some things appraised did not come within the words of the indenture, the parties must be considered as agreeing that such things were appurtenant to the estate and to be appraised, and if other things were omitted to be shown, the parties must be considered as having waived the appraisement of them; —
    That the referees acted correctly in appraising the property shown to them, without examining into the plaintiff’s title, no question being made before them as to the extent of his right: —
    That the referees, in asking each party by himself, at what sum he valued the water privilege, and then comparing the answers with their own ideas of the value, and finally taking the mean sum between those named by the parties, had not misconducted. themselves ; aliter, if they had taken such sum without any exercise of their judgment as to its being the true value : —
    That a tender by the plaintiff, of a deed purporting to convey the estate by metes and bounds, but not containing the words in the agreement—"all his right, title, interest, and enjoyments ’’ — was sufficient: —
    That the plaintiff might rely on such tender, without pro'dacing the evidence of his title; the burden being on the defendant to show such a defect in the title as would justify him in refusing to accept the deed : —
    That the defendant was not justified in such a refusal, in consequence of the estate’s being incumbered, through his own collusion, by an attachment made subsequently to the publication of the award : —
    That the plaintiff, being under the necessity of calling the subscribing witness to prove the execution of the agreement, was not precluded from contradicting hie testimony given upon cross-examination in relation to other facts : —
    That the sum of 1000 dollars, mentioned in the agreement, was a penalty, and not liquidated damages ; —
    And that the plaintiff, having offered to perform all his part of the agreement, was entitled, in covenant broken, to recover the appraised value of the property.
    This was an action of covenant broken, upon an indenture made between the plaintiff and the defendant on the 21st of July, 1824, in which, after a recital that the parties are in the possession and improvement, and are principal owners, of a certain water privilege, in the westerly part of Concord, with the buildings thereon, machinery, fixtures, &c., and that the water privilege was not at all times sufficient to carry all the machinery of the parties, the plaintiff agrees to sell and convey all his right, title, interest, and enjoyments of the above described premises, consisting of all his interest in the water privilege, his right and interest to the fulling-mill, work and dress-shop, and all the machinery, fixtures, and appurtenances to the same belonging, — also the saw-mill, with every privilege and advantage to the same belonging, with about two acres of land adjoining and connected with the sawmill, together with all the land under and about the work and dress-shop and fulling-mill which may belong to him, at such prices as shall he agreed on and awarded by three men, one , nosen by the plaintiff, one by the defendant, and the third by the two thus chosen, which award shall be final and binding on the parties, — and the defendant covenants that he will receive and pay for the foregoing described premises, at the award of the appraisers, in cash, on delivery of the deed ; and to the faithful performance of the agreement, they sever ally bind themselves, each to the other, under the penalty of 1000 dollars, to be sued for and recovered according to the laws of Massachusetts.
    The declaration contained two counts. The first, after setting forth the indenture, with a profert, averred that, in pursuance of the covenants, • Joseph Barrett was chosen by the plaintiff, Abel Moore by the defendant, and Samuel Burr by Barrett and Moore, to appraise the property; that they proceeded to appraise the same, which was duly shown to them by the parties, and having appraised the same, made out an inventory thereof under then hands, and duly made known to the parties, on the 25th of July, the result of their doings, and delivered to each of them a copy of the appraisement and award ; that the price fixed by the referees to be paid by the defendant to the plaintiff, was 4231 dollars ; that immediately upon the referees making known to the parties the sum at which they had appraised the property, the plaintiff made out and duly executed a good and sufficient deed to convey all the property appraised to the defendant, and on the 28th of July tendered him the deed; that the plaintiff had performed all things by him to be performed, yet the defendant had never paid the sum of 4231 dollars, nor any part thereof, to the plaintiff, but wholly refused, &c.
    In the second count the plaintiff declared for the penalty of 1000 dollars, as liquidated damages.
    In the paper published as the award, the referees, after reciting that they had been agreed on “to appraise certain real and personal estate, together with one third of a water privilege, all situated in the southwesterly part of said Concord, the property of the said John Brown,” and that the property was shown to them by the parties, describe and appraise the property as follows : — “ Dressing and dye house, with the land under and about the same, 600 dollars ; fulling-mill, shafts, cutter, and aqueduct, 270 dollars ; saw-mill, fixturcs, &c., and about two acres of land adjoining, 850 dollors ; one third part of a water privilege, 1500 dollars; personal property [here the various articles were enumerated] all appraised at 1011 dollars.”
    The deed tendered by the plaintiff to the defendant, purported to convey several parcels of real estate, described by metes and bounds, and one third of the stream of water, together with the privileges and appurtenances, “ being the real estate appraised by Joseph Barrett,” &c., whose award was annexed to the deed ; — and also all the plaintiff’s right in the personal property mentioned in that award, referring thereunto for the particulars.
    The defendant pleaded fourteen pleas ; but the seventh, eighth, and twelfth were waived. On the remaining eleven there were issues to the country, of which the second (relating to the second count only) was found for the defendant, and all the others for the plaintiff.
    The defendant moved for a new trial, and the motion was argued at March term 1825, in Suffolk, by Stearns, Abbot, and Rand for the defendant, and Hoar and Keyes for the plaintiff. The pleas relied on will be stated in their order, together with the points raised on each at the trial, and the authorities cited in the argument.
    
      First plea, to the first count, non est factum; and issue thereon. At the trial, which was before Putnam J., the defendant contended, that by the statute of frauds, the supposed deed was invalid, inasmuch as it related to real estate and the referees were not named in it, but were ascertained by paroi evidence. The jury, however, were instructed, that the deed was not invalid on that ground. In the argument, the defendant’s counsel objected likewise, that the description of the property was too loose, and that no price was fixed by the contract; and they cited Inst. 3. 24. 1. and Vinnii Comm. ; Dig. 19. 2. 25 ; Voet De Contrah. Empt. lib. 18, tit. 1, § 23: Cod. 4. 38. 15 ; Dig. 18. 1.
    For the plaintiff were cited, Newland on Contr. 175 ; 1 Com. on Contr. 75 ; White v. Proctor, 4 Taunt. 209; Underhill v. Van Cortlandt, 2 Johns Ch. R. 339 ; — and also, to the point that here there was a part-performance, which took the agreement, if originally insufficient, out of the statute of frauds, Davenport v. Mason, 15 Mass. R. 85 ; Ebert v. Wood, 1 Binney, 216 ; Niven v. Belknap, 2 Johns. R. 587 ; Smith v. Lessee of Patton, 1 Serg. & Rawle, 83.
    
      Second plea, to the second count, non est factum; and issue thereon. It was contended that the second count did not set forth the agreement according to its legal effect, for that the sum of 1000 dollars, mentioned therein, was not liquidated damages ; and the jury were so instructed.
    
      Third plea, that no award was made pursuant to the m-denture; replication, that an award was made and published on, &c. ; rejoinder, protesting that no award was made, that the referees appraised certain personal property which was not machinery or fixtures mentioned in the indenture, and that the award was not pursuant to the indenture; surrejoinder, that all the personal property was parcel of the property to be valued pursuant to the indenture ; and issue joined thereon.
    Under this issue the defendant referred to the following articles specified in the award, viz. stove and funnel, potash kettle, sheet iron stove, shearing board, grindstone, napping board, 4 brushes, desk, 136 press papers, iron ball, cast iron stove and funnel, 3 lots of old bricks, bridges and rails, piece of cast iron, and a water wheel, which were not fixed to the freehold, and which the defendant contended did not come under the description of fixtures, machinery, and appurtenances, mentioned in the indenture. It was testified, that the plaintiff had taken down a part of the fulling-mill, and that a chimney and the potash kettle which had stood in that part, had been taken down, and that the bricks were to be used in building another chimney in a different part of the fulling-mill; that the potash kettle was used in the clothier’s business; and that every article appraised by name, was in some way or other connected with, or used in or with the establishment which the parties had agreed should be ap praised. Three or four old saws and some other tools, which had been used in the establishment, and which were much worn and of little value, were intended to be included by the referees under the u &c.” There were tenter bars standing partly on the highway and partly on the plaintiff’s land, which were not included in the appraisement. It was also testified, that the parties were present when the referees were appraising the property, and that they pointed out to them every thing which was appraised, whether real or personal ; and that the articles of personal property appraised were immediately marked by the defendant in his name, and those articles which were on the premises and by consent were not appraised, were marked in the plaintiff’s name, in order that there might be no mistake. The jury were instructed, that if they believed the evidence, they should find on this issue for the plaintiff.
    It was argued for the defendant, that the award was void for uncertainty in the descriptions, and because it did not pursue the agreement, some articles being included in the appraisement, which ought not to have been, and vice versa. Com. Dig. (Hammond’s ed.) Arbitrament, 2D, 11, note (m), cites March, 144, and Lutw. 550 ; Mitchell v. Staveley, 16 East, 63 ; Goodman v. Sayers, 2 Jac. & Walk. 252 ; Com. Dig. Appendant &c.; Co. Lit. 121 b, 122; Leonard v. White, 7 Mass. R. 6.
    For the plaintiff were cited Makepeace v. Bancroft, 12 Mass. R. 469 ; Doe v. Burt, 1 T. R. 701.
    
      Fourth plea, that the referees never made any such award as the plaintiff had alleged in his first count; and issue thereon. The defendant contended, that the referees had not pursued their authority ; that the award was not such as the law required, because it did not state how much land there was about the dye-house, — because it did not specify every article by name, but made use of an “ &c.” — and because the value of each article was not stated separately. It was testified, that all the articles were appraised separately with the exception of some few of trifling value, which, without an} objection at the time from either party, were appraised together. The jury were instructed, that if they believed this testimony, they should find for the plaintiff.
    
      Fifth plea, that the defendant did not own the property appraised ; and issue joined. The defendant contended, that the plaintiff had conveyed his right to the water privilege to Caleb Bellows, by deed of July 14, 1817. It was proved that Lot Conant once owned the whole water privilege ; and that in 1750 he conveyed to his son Ezra the grist-mill and two thirds of the stream of water (where the defendant now has a cotton manufactory and a grist-mill,) and to his son Andrew one third of the stream for the use of his fulling-mill. The jury were instructed, that the plaintiff, by his deed to Caleb Bellows, conveyed four fifths of the two thirds of the stream originally granted by Lot Conant to Ezra, and not any part of the one third used for the fulling-mill; and that the defendant’s objection on this issue was not supported.
    It was argued, that the appraisers were to appraise the plaintiff’s interest in the stream, and that they had committed a gross error in not ascertaining his title, instead of taking it for granted that he owned one third of the water privilege.
    
      Sixth plea, that the award was made from gross error and mistake ; and issue joined. This plea was attempted to be supported, by proving that the appraisement was greatly beyond the value of the property ; and the plaintiff introduced evidence to show that it was not overvalued : all which was submitted to the jury.
    
      Ninth plea, that no good and sufficient deed was tendered by the plaintiff; and issue joined. On this issue it was said, that, by the agreement, the plaintiff was to convey all his right, title, interest, and enjoyments, in the premises above described, whereas the deed describes the premises by metes and bounds, omitting those words ; that there might be some future contingent right in the plaintiff which would not pass by the deed. But the judge ruled that the deed was not liable to any such objection. On this point was cited for the defendant, Shep. Touch. 91, 98.
    
      Tenth plea, that the plaintiff did not before, at, or after the time of tendering the supposed deed, produce any clear, perfect, or other title; replication, alleging a tender of title, with a copy of the deed ; rejoinder, that no clear tide was tendered ; and issue joined. The defendant contended, that the plaintiff should have exhibited his title deeds, or the evidence upon which his title rested, together with certificates from the sheriff and his deputies, and from the register of deeds, that the estate was free from any incumbrances. The plaintiff contended, that this issue was maintained on his part by the tendering of the deed, which contained his title, as before mentioned ; and the jury were so instructed.
    For the defendant were cited, Phillips v. Fielding, 2 H. Bl. 131 ; Duke of St. Albans v. Shore, 1 H. Bl. 280; Hartley v. Pehall, Peake’s R. 131 ; Chambers v. Griffiths, 1 Esp. R. 150.
    
      Eleventh plea, that the plaintiff had nothing in the property, whereby he could convey a good and sufficient title to the defendant. This plea appeared to the defendant’s counsel to be embraced in the fifth.
    
      Thirteenth plea, that at the time when the deed was tendered, there was an attachment on the land ; replication, that the defendant procured the attachment to be made ; and issue joined. It appeared that an attachment was made at the suit of Thomas Lord, after the appraisement and before the tender of the deed, upon an order of the plaintiff, requesting the defendant to pay Lord 420 dollars out of the money due on the sale of this property, which order the defendant refused to accept.
    It was argued for the defendant, that the verdict on this issue was against the weight of the evidence ; and further, that if the suit had been brought by the defendant himself, upon a just demand, (and the replication admitted Lord’s demand to be such,) it would not excuse the plaintiff from conveying an unincumbered title. Com. Dig. Condition, L 6, and M 5 ; Morris v. Lutterel, Cro. Eliz. 672 ; Plowd. 48; Bro. Collusion, pl. 20.
    For the plaintiff was cited, Borden v. Borden, 5 Mass. R. 67.
    
      Fourteenth plea, that the referees could not agree, and that they inquired of the parties the value, &c., and made^theii appraisement by taking a mean sum between those named by the parties, without other deliberation or reasoning; replication, denying the fact; and issue joined. T. Lord testified, that Burr asked the plaintiff what the privilege was worth, who answered 5000 dollars ; that he then asked the defendant the same question, who answered 4000; that neither o. the parties knew that the other was consulted ; that Burr then went to the other referees, and in five or six minutes they agreed upon their appraisement of the water privilege. All the referees were examined respecting this issue. Barrett testified, that he and Moore had each set a value upon the water privilege and were conferring with Burr, when it was proposed to ascertain the value which the parties themselves affixed to it; that that was done by Burr ; that the referees, however, were not governed by the statement of the parties, but by their own judgment, and that it was an hour and a half after Burr reported the opinion of the parties, before the referees agreed. Burr testified, that the answers of the parties had great weight with him ; that if one of them had valued the privilege at 4000 dollars and the other at 10,000, the referees would not have taken a mean sum as of course ; that after he had reported the answers, some conversation was had between the referees as to the value of the privilege, and one of them proposed to take the mean sum between those fixed by the parties, and this proposal was adopted. Moore agreed in the statement made by Barrett, and he testified that he had an impression, that some one observed that the parties were the best judges of the value of the privilege.
    On this point, to show what power the Court may exercise over an award where the referees have been mistaken or have misconducted themselves, the counsel for the defendant cited Randall v. Randall, 7 East, 81 ; Kent v. Elstob, 3 East, 18 ; Zachary v. Shepherd, 2 T. R. 781.
    The plaintiff’s counsel referred to Underhill v. Van Cortlandt before cited ; Wills v. Maccarmick, 2 Wils. 148 ; New land v. Douglass, 2 Johns. R. 62; Barlow v. Todd, 3 Johns. R. 367 ; Kyd on Awards, 327, 346 ; Ridoat v. Pye, 1 Bos. & Pul. 91 ; Herrick v. Blair, 1 Johns. Ch. R. 101.
    The name of Thomas Lord was subscribed as a witness to the agreement. The plaintiff proposed to prove the ex-cution of the instrument by another witness, who saw it executed, assigning as a reason that Lord was interested. The plaintiff, however, not choosing to prove the interest of Lord by his own answers, and no evidence being then in the case to show that he was interested, the iudge ruled that he must be called. The plaintiff then called him, protesting that he ought not to be obliged to consider him as his witness, any further than to prove the execution of the agreement. lathe course of the trial it became material to establish the value of the fulling-mill and other estate to be conveyed by the plaintiff. The plaintiff’s counsel inquired of a witness called by him, whether Lord had not said, that it would be better to give a sum of money to the plaintiff for the profit he would make in preparing certain wool for a hatter, and to come into immediate possession of the property, rather than that the plaintiff should do the work himself. This was objected to on the part of the defendant, and it was ruled that Lord, he having been sworn as a witness for the plaintiff, should be examined by the plaintiff upon that matter, before any evidence should be introduced of his declarations concerning it. Lord then testified, that he did not tell the plaintiff that he would give 20 dollars for the use of the water which the plaintiff would otherwise use to finish tire hats. The plaintiff then called G. Ormsby, and proposed to inquire of him what Lord did tell the plaintiff upon that matter. The defendant objected, contending that the plaintiff should not be permitted to ask an irrelevant question for the sake of discrediting his own witness. The plaintiff urged, that this was an examination tending to prove two material facts ; — one, that Lord was interested with the defendant in the purchase, so that his tes timony given on the defendant’s cross-examination should be thrown out of the case ; the other, what was the value of the property. The judge ruled that Ormsby should be examined ; who then testified, that Lord said to the defendant, “We had better give the 20 dollars, and then there will not be any more trouble about the water ; ” and that the defendant then said to the plaintiff, “We will give you the 20 dollars.” The testimony of Lord was however submitted to the jury as competent evidence.
    The plaintiff brought into court the deed which he had tendered to the defendant, and filed it with the clerk, for the defendant if he would accept it.
    The jury assessed the damages at 4315 dollars, the appraised value of the property with interest, but stated, that if the plaintiff should be bound to retain the property, he should have 1000 dollars as damages.
    
      April term 1826, at Concord,
    
    It was objected at the argument, that the whole purchase money cannot be recovered, where there is a penalty; Lowe v. Peers, 4 Burr. 2228 ; Wilbeam v. Ashton, 1 Campb. 78 ; and that the damages were excessive. Sugd. Vend. 157, 158 ; Shenton v. Jordan, Bunb. 132.
    The plaintiff’s counsel cited to these points, Underhill v. Van Cortlandt, 2 Johns. Ch. R. 339 ; Lowe v. Peers, 4 Burr. 2228 ; Slosson v. Beadle, 7 Johns. R. 72.
   The opinion of the Court was read as drawn up by

Putnam J.

The first objection is, that the writing declared upon is void, by the statute of frauds, inasmuch as it purports to be a contract concerning the sale of real estate, and is to be partly made out by paroi evidence ; for that the referees are not named in the instrument, but it depends wholly upon paroi evidence to prove who were chosen to be the referees-.

What weight might originally have attached to this suggestion it is not necessary to decide, because the contract has been performed in that respect. The parties were satisfied with the appraisers, and attended upon them during their appraisal. It is too late for either now to object, that it cannot be legally known who were chosen for that purpose. The parties could not have conducted themselves as they did, in this respect, unless on account of the agreement, and so far, in performance of the same.

It was also further objected, that the price should have been fixed by the agreement, whereas it was to be ascertained by the referees ; and we are referred to Inst. 3. 24. pr. where it is said, u Pretium autem constituí oportet, nom nulla emptio sine pretio esse potest.,> But we apply another rule,— id certum est, quad cerium reddi potest. It was indeed formerly doubted, whether, when a thing was to be sold at whatever price Titius should value it, such contract would be good; but by Inst. 3. 24. 1. it is decided that it would be ; — “ sed nostra decisio ita hoc constituit, ut quoties sic composita sit venditio, quanti Ule cestimaverit, sub hac conditione staret contractus, ut siquidem Me, qui nominatus est, pretium dejinierit, tune omnímodo secundum ejus ceslimationem et pretium persolvatur, et res tradatur, et venditio ad ejfectum perducatur.” So it is said in Ayliffe’s Civ. Law, bk. 4, tit. 4, “ The price agreed on between the parties ought to be certain; wherefore a purchase is not valid, if it depends on the will of the buyer or seller ; though such price may be well enough referred to the arbitration of a third person to adjudge and determine the value of the thing sold.”— “ And thus the certainty of a price may be had, either by the determination of the contracting parties themselves, or else by relation had to some person or thing.” In the case at bar, the referees have fixed the price, and according to these authorities and the reason of the thing, the sale should be carried into effect; unless for some other objection which has been made by the counsel for the defendant, it should be differently determined.

It has been further objected, that the description of the property is too loose and uncertain ; as “ about two acres of land.” But it seems to us that this general description is sufficiently certain. It refers to the estate as being in the possession and improvement of the parties, in the westerly part of Concord, and speaks of the land as about two acres adjoining and connected with the saw-mill. • If we were to consider such descriptions as void for uncertainty, it would have a tendency to unsettle a vast proportion of the conveyances in the State.

The next objection is, that the award itself is invalid ; that it is uncertain, because the “saw-mill, fixtures, &c.” and about two acres of land, are appraised together at one sum of 850 dollar's. We adopt, upon this point, the opinion of Chancellor Kent, as expressed in Underhill v. Van Cortlandt, 2 Johns. Ch. R. 360, where a similar objection was taken, that “ the appraisers did not, in their deliberations, assess each particular article, in the mill and its appurtenances, separately.” “ But this,” he says, “ was a matter resting in the discretion of the arbitrators.”— “ They did appraise separately the items of the property which were of any magnitude and importance, so as to form a correct and just estimate of the whole.” And he cites'2 Yes. jun. 23, where the same objection was taken, and the court said, it was not necessary that the arbitrators should set forth a schedule of particulars, and state all the items of an account. Such particularity was as little called for in the case at bar, as it is proved that the parties were present and pointed out every thing which was to be valued by the arbitrators.* *

And the remark last made is an answer to another objectian, namely, that the referees excluded some things which ought to have been included, viz. the tenter bars, and included some which should have been excluded, viz. old saws and other tools not used, lots of old bricks, and a piece of cast iron. The parties themselves showed the articles which were to be appraised, and all that were appraised; and there is no evidence that the arbitrators included any thing which was not shown to them, or omitted any thing which the parties showed or requested to be appraised. If therefore it may have happened, that some small items were not shown to be appraised, the parties must be considered as having waived the appraisement of them. And if any were included as belonging to the estate, which might not have been included if they had not been shown as part of it, the parties must be considered as agreeing that such things were appurtenant to the estate, and were to be valued by the arbitrators. But no such articles were in fact included.

It has been objected, that the arbitrators did not determine and award as to the extent of the interest of the parties in the estate. We are satisfied that such an adjudication would have been out of their authority. They were to appraise all the plaintiff’s right, title and interest in the premises. No dispute was made before the arbitrators as to the extent of that right. This objection applied particularly to the appraisement of one third of the water privilege as belonging to the plaintiff, when, it is now said, that he had before that time, by deed dated July I4th, 1817, conveyed a part of it to the defendant. But upon examining that conveyance, we are satisfied that the fact is not as it is contended or stated to be. That was a conveyance of the plaintiff’s right to four fifths of two thirds of the stream, which belonged to the grist-mill, and did not include one third of the stream or water privilege belonging to the fulling-mill, which was appraised.

There is another objection of a graver cast, viz. that the referees misconducted themselves in making their award, by being governed by the opinion of the plaintiff, and not by their own opinion. This objection applies to the appraisement of the water privilege. The evidence is, that the referees, not thinking alike concerning the value, asked each party by himself, how much he considered the privilege to be worth; and that in a short time after they agreed upon a middle sum. Now we do not perceive any thing wrong, or even indiscreet, in that proceeding. It is exceedingly difficult to arrive at the proper valuation' of such property. The respective views of the parties might very properly be taken into consideration. If they were both wild and extravagant, their opinions would have no weight; if not so, the arbitrators might reasonably compare their representations with their own ideas of the true value, and finally arrive at such a result as they did in this case. If they had adopted a middle sum without further consideration, and merely because it was the mean between the sums named by the parties, it would be a different case ; and such an award ought not to be supported.

But if the arbitrators, after viewing the premises with care, and after conversing together upon the value, and after knowing at what rate the parties themselves valued them, should agree upon a middle sum, or any other which might be considered as within a reasonable exercise of their discretion, their award should be confirmed. Indeed we know of no other rule by which an award is to be set aside for over-valuatian, but fraud, clear mistake or corruption. The cases cited in Underhill v. Van Cortlandt, 2 Johns. Ch. R. 361, are very strong to this point. Courts of equity will not set aside the award of referees when fairly made, they being judges chosen by the parties themselves. Fraud, corruption, or misbehaviour of the arbitrators should be proved. The amount of their valuation may be taken into consideration as proving misbehaviour, but it is not otherwise to be drawn into question.

Now, in the case at bar, corruption is not suggested ; and indeed, upon a careful attention to the proceedings and conduct of the arbitrators, it seems to us that they have been actuated by a strong desire to do their duty, and so far as appears to the Court by the evidence in the case, they have acted and judged with discretion.

There appearing to be no legal objection to the agreemen f°r the reference, nor to the award of the referees, it remains to consider the objections which are made to the subsequent proceedings.

It has been urged, that the defendant was not bound to receive the deed which the plaintiff tendered, because the estate was incumbered with an attachment; and that the verdict of the jury finding that the attachment was procured by the collusion of the defendant, was against the weight of the evidence. Upon this part of the cause we remark, that the question was one peculiarly within the province of the jury. The evidence consisted of a great variety of facts and circumstances, which it seems to us did well warrant the verdict.

It has been contended, that the deed, which was tendered, was not sufficient to convey the premises mentioned in the agreement; that the plaintiff was to convey “ all his right, title, interest, and enjoyments” in the described premises, but that the deed describes the estate by metes and bounds, omitting to add “ with all his right, title, interest, and enjoyments.” We think the instruction to the jury upon this point was correct; and that the deed was sufficient to pass the property in the grantor’s possession, with all his right and title to the same, just as if those words had been inserted ; so that the plaintiff could not thereafterwards be admitted to claim any right which he had at the time of giving the deed. And it appears from the evidence, that the defendant admitted he should consider it a good deed, if the plaintiff would bring certificates from the sheriff and his deputies and the register of deeds, that the estate was free from incumbrances.

The direction to the jury was likewise correct, upon the point, that the plaintiff was not bound to produce to the def&Yd&Etf fhe evidence of his title deeds, but that it was sufficient for him ft? rely upon the deed which he tendered in performance of the agreement in that respect by him to be performed. The defendant - might impeach the validity of the title by proving that the estate had been before conveyed by the plaintiff himself, or that if, was under incumbrances in such manner as would justify a refusal on his part to accept the deed, if no truth such were the facts of the case. But the only incumbrance which has been shown on the part of the defendant, was one, as the jury found, made with his own consent.

It has been objected further, that the testimony of Ormsby ought to have been rejected, as it contradicted and went to the discredit of the testimony of Lord, who was called as a witness by the plaintiff. Now, although it is a general rule that a party is not to be allowed to discredit his own witness, yet that must be understood to mean, that the witness is not directly to be impeached on account of his character for truth; but the rule is by no means to extend so far, as that a party may not call a witness to prove a fact which a witness previously called by him has denied. A party is not obliged to receive, as unimpeached truth, every thing which a witness called by him may swear to. If his witness has been false or mistaken in his testimony, he may prove the truth by others. Lord was called by the plaintiff from the necessity of the case, he being a subscribing witness. In his cross examination he stated that he was not interested with the defendant in the purchase. The plaintiff was desirous of proving to the- jury, that Lord and the defendant were concerned together in the transaction; and Ormsby testified to declarations and conduct on the part of Lord, tending to satisfy the jury that he was interested in the affair with the defendant. We think the plaintiff was not bound by the answers which Lord made on his cross-examination, but might by another witness disprove the fact whish Lord had stated.

Upon a review of the whole matter then, it appears that the plaintiff covenanted to sell art estate to the defendant upon certain terms, which the plaintiff has performed, for a sum which the defendant covenanted to pay, under a penalty, hut which he has not paid. The action is brought for the price or consideration which the defendant promised to pay, if by law it is recoverable ; and if not, then for the damages which the plaintiff has sustained from the non-performance of the agreement on the part of the defendant.

We are satisfied that the sum of 1000 dollars, mentioned in the agreement, is to be considered as a penalty, and not as liquidated damages.

By the direction of the judge who sat at the trial, the jury ascertained the plaintiff’s damages, in case the Court should be of opinion that he should retain the estate ; and the defendant moves for a new trial on the ground that the damages so ascertained (1000 dollars) are excessive. It will not however be necessary to determine that question, if the plain tiff is entitled to recover the appraised value. We proceed then to consider that part of the case, remarking, in commencing the discussion, that if the plaintiff may legally recover the appraised value and the defendant take the estate, exact justice will be done, according to the agreement of the parties and the award of the arbitrators.

The plaintiff declares in his first count, in effect, that he covenanted to convey to the defendant certain real estate, for such price as arbitrators should fix for the same, and that the defendant covenanted to purchase it and pay the appraised value. He avers that it was appraised at a certain sum, and that he tendered a deed, and did all things on his part to be done, but that the defendant has not paid the appraised value. He has also brought the deed into court, that the defendant may take it if he pleases. That count is substantially like the declaration in Martin v. Smith, 6 East, 555, except that in the case cited the action was assumpsit by the vendor against the vendee, for not accepting the estate and1 paying the purchase money ; where it was held, that the general allegations of title in the plaintiff, and that it was made good and satisfactory to the defendant, and that the plaintiff was ready and willing and offered to convey to the defendant, were tantamount to a performance on his part so as to entitle him to recover for a breach on the defendant’s part, in not paying the money.

It is not easy to perceive any difference in principle, between the case just cited and the one under consideration. The tendering of the deed was a performance, so far as concerned the plaintiff; and “ it is a rule common to all conditions of obligations, that they be taken to be accomplished, when the debtor, who is obliged under such condition, has prevented its accomplishment.” 1 Evans’s Pothier, 121. See also Lancashire v. Killingsworth, 1 Ld. Raym. 686; S. C. 3 Salk. 342; Sugd. Vend. 160, 162. Now the defendant has prevented the accomplishment of this agreement. We see no reason in law or equity why he should avail him self of his own wrong, to prevent a recovery of the stipulated price.

The same principle is strongly stated in 3 Salk. 108, pi. 5. Covenant to pay W. R. £100, he making the defendant an estate in D ; adjudged, that if he tender him a feoffment, and offer to make livery and seisin, he may bring an action for the money, in the same manner as if he had actually made a title. So in Large v. Cheshire, 1 Vent. 148, in a case by a vendor against the vendee for the purchase money, the court said, “ If the defendant had refused to accept of livery, the plaintiff might as well have brought the action as if he had actually made it.”

The same principle is recognised in Glazebrook v. Woodrow, 8 T. R. 306. There the plaintiff sued the defendant for not paying the purchase money for a schoolhouse, which the plaintiff covenanted to convey on or before a certain day, and the court decided that he could not maintain the action without averring that he had conveyed or tendered a conveyance to the defendant. That was a futile attempt to make the covenants independent, which from the nature of the case were obviously dependent. The payment and the conveyance were to be made at the same time. The plaintiff failed, because he had neither conveyed nor tendered a conveyance.

The principle is recognised by Buller J. in Jones v. Barkley, 2 Doug. 695, “ that where something is to be performed by each party at the same time, he who was ready, and offered to do his part, may sue the other for not performing his.” Sugden (p. 162) says, that-“ a vendor cannot bring an action for the purchase money, without having executed the conveyance, or offered to do so, unless the purchaser has discharged him from so doing;” — implying necessarily, that if he has offered to convey, he may sue the purchaser for the purchase money.

But it has been contended, that this agreement has a penalty, and that the plaintiff should be confined to the damages arising from the defendant’s not accepting the estate ; and that such damages should be small, because the plaintiff may retain the estate, and ought not to recover the defendant’s money, merely because the referees have overvalued the property.

It is, however, well settled, that the insertion of a penalty is not to excuse the party, but to compel him to perform his contract; and he who has performed his part, may compel the other party to perform his principal obligation, notwithstanding it is accompanied with a penalty. So it is laid down in Pothier, tit. Of penal Obligations. 1 Evans’s Poth. 206. He says, “ The object of the penal obligation is to assure the execution of the principal;” —cc and the creditor may, instead of enforcing the penalty, proceed upon the principal obligation.” And so in equity, it is said by Lord Hardwicke, that in all cases where penalties are inserted, in a case of nonperformance, this has never been held to release the parties ‘rom their agreement, but they must perform it notwithstanding. Howard v. Hopkyns, 2 Atk. 371. So says Sugden (p. 155) ; “ And although the defendant may wish to forfeit the penalty, yet a specific performance will be decreed.” And so it was decreed in Hobson v. Trevor, 2 P. Wms. 191. The defendant in that case was the son of Sir John Trevor, who was master of the rolls ; and having greatly offended his father, he was forbidden his presence. He gave a bond, in the penalty of £5000, to settle upon the plaintiff one third of the real estate that should come to him from his father. Unexpectedly Sir John T. died intestate, leaving a great real estate which came to the defendant, much beyond the penalty of the bond. It was held that the plaintiff was not bound to take the penalty of the bond, but that the agreement should be executed specifically. So in 2 Vent. 352, the chancellor said, that a forfeiture shall not bind where a thing may be done afterwards, or any compensation made for it. In the case at bar, the defendant might have accepted his deed ; and he may now take it from the clerk of the court, with whom it is left for him.

We are aware that the estate has not been occupied since the deed was tendered. It was said by the plaintiff’s counsel, and not denied on the other side, that the plaintiff was desirous of occupying without prejudice to his rights in regard to this suit, and that the defendant did not assent to the proposal. How that fact may be, is not perhaps material to know ; because if the estate is impaired from that or any other circumstance, without the fault of the plaintiff, the loss should fall on the defendant, who has, without any legal cause, refused to accept the deed and take the possession. And the same rule would apply as well to goods and chattels, in such circumstances, as to houses and lands. So it is stated in Inst. 1. 24. 3. “ Cum autem emptio et venditio contracta sit, periculum rel venditce statim ad emptorem pertinet, tametsi adhuc ea res emptori tradita non sit.” And the cases of a slave thus sold being injured, of a building being consumed by fire, and of lands being washed away by a torrent, are stated as examples, where the loss is to be borne by the buyer, who is obliged to pay the price agreed on, though he never had possession of the thing. ££ Quicquid enim sine dola et culpa venditoris accidit, in eo venditor securus est.”

Upon consideration of the whole matter, the Court are of opinion, that the plaintiff have his judgment upon the verdict, for the appraised value of the estate, and that interest be added to the verdict to the present time. 
      
       Pothier, (par Dupm,) Traité du Contrat de Vente, pt. 1, art. 2, § 2.
     
      
       See Haven v. Richardson, 5 N. Hamp. R. 113; Lyman v. Loomis, 5 N. Hamp. R. 408; Barnard v. Martin, 5 N. Hamp. R. 537; Paine v. Webster, 1 Vermont R. 101.
      If the description in a conveyance be so uncertain, that it cannot be known what estate was intended to be conveyed, the conveyance is void. Worthington v. Hylyer, 4 Mass. R. 205 ; Wright v. Pond, 10 Connect. R. 255.
      See as to a mistake in the name of the occupier of the premises, Wilkinson v. Malin, 2 Tyrwh. 544; S. C. 2 Crompt. & Jerv. 636; Howell v. Saule, 5 Mason, 410; 4 Kent's Comm. (3d ed.) 467.
      As to a mistake in the name of the town or parish where situated, see Lambe v. Reaston, 5 Taunt. 207; S. C. 1 Marshall, 23; in the number of the lot, Tenny v. Beard, 5 N. Hamp. R. 58.
      Where the quantity is mentioned, in addition to a description of the boundaries, without any express covenant that the land contains that quantity, the whole must be considered as a mere description. Powell v. Clark, 5 Mass. R. 355; 4 Kent's Comm. (3d ed.) 466, 467. See Bacon v. Leonard, 4 Pick. 277.
     
      
       As to uncertainty in an award, see Dolbier v. Wing, 3 Greenl. 421; Thornton v. Hornby, 8 Bingh 13; S. C. 1 Moore & Scott, 48; S. C. 1 Dowl. Pract. Gas. 237; Hopcraft; v. Hickman, 2 Sim. & Stu. 130; Aitcheson v. Cargey, 9 Moore, 381; S. C. 2 Bingh. 199; S. C. M'Clel. 367; Hazeltine v. Smith, 3 Vermont R. 535.
     
      
       Misconduct in the arbitrators seems regularly not to be the subject of a plea, but only a ground to apply to the court to set aside the award. Riddle v. Sutton, 2 Moore & Payne, 345. See also Brazier v. Bryant, 3 Bingh. 167; S. C. 10 Moore, 587; Braddick v. Thompson, 8 East, 344; Wills v. Maccarmick, 2 Wils. 148; 2 Stark. Ev. (5th Amer. ed.) 86.
      A different doctrine however prevails, where the equity powers of the court are not sufficiently extensive to deal with awards thus summarily. See Beam v. Farnham, 6 Pick. 269; Williams v. Paschall, 3 Yates, 564, Harker v. Hough, 2 Halsted, 428.
      It may be averred and proved, that the af 'ors (omitted to take into consideration certain accounts that were laid befeie tnem. Bean v. Farnham, 6 Pick. 269; Standish v. Parker, 2 Pick. (2d ed.) 22, n. 3.; Mitchell v. Staveley, 16 East. 58. See Bridge v. Gray, 14 Pick. 55.
      So it may be averred and proved, that they took into consideration matters not submitted. Fisher v. Pimbley, 11 East, 193; Bean v. Farnham 6 Pick 269
     
      
       See Lawrence v. Barker, 5 Wendell, 301; Jackson v. Leek, 12 Wendell, 105; Crowell v. Kirk, 3 Devereux, 355; Jackson v. Varick, 7 Cowen, 238; Roscoe’s Dig. Crim. Ev. (Amer. ed.) 136, notes, 2, 3; Cowden v. Reynolds, 12 Serg. & Rawle, 281; Perry v. Massey, 1 Bailey, 32; Winslow v Mosely, 2 Stewart, 137; 1 Stark. Ev. (5th Amer. ed.) 185, 186; Ewer v Ambrose, 3 Barn. & Cressw. 486; Bradley v. Ricardo, 1 Moore & Scott, 133; S. C. 8 Bingh. 57; Friedlander v. London Ass. Co. 4 Barn. & Adolph. 193; Rex v. Oldroyd, Russ. & Ryan’s Crown Cas 88.
     
      
       See 2 Stark. Ev. (5th. Amer. ed.) 863, 864, and notes.
     
      
       See 2 Kent’s Comm. (3d ed.) 498, 499.
     