
    GALLOWAY’S heirs vs. WEBB.
    Thc authority given by the a£tot' 1797, to guardians to fubmit to arbitration the land difputes of their wards, is not repealed — See a£t?of 1796 7, p. 147, a, 1 Brad. 510 — a&s of I feC 1798,. ch 25, § 6, p. 57, 7 Brad. 57,
    A reference to arbitrators fn fettle and finallyadjuft the title to the following land,” and then reciting the entries tinder which thev are held,is fuifiJently certain.
    An award, good in part, & bad in part,may be fuppnrted as to that part which is good,
    An award which directs a conveyance of In.much of an entry and fur-vey as is covered by another furvey, is futfi-eiently certain.
    AT the December term of the Bourbon court of quarter sessions, in the year 1797, a submission was made, which stated, that “ On the motion of William C. Webb, by John Allen, his agent, James Galloway, George Galloway, John and James Galloway, infant heirs and devi-sees of William Galloway, deceased, bv Thomas Kirkpatrick and Joseph Mitchell, their guardians, ordered, that Samuel M’Dowell, James Brown, sen. Thomas M’Clanahan, and Notley Conn, or any three of them, be appointed arbitrators, under an act of assembly, entitled “ An act concerning arbitrators,” and one other act, entitled “ An act concerning guardians, infants, masters, and apprentices,” to settle and finally adjust the title to the following lands, &c.” The submission then set out an entry of William C. Webb, for 2000 acres : the claim of James Galloway, founded on a pre-emption, right of 1000 acres, held by certificate, granted him the 22d day of April 1780: also, the claim of William Galloway, deceased, on a treasury warrant, entered July 1783, reciting the words of the entry t also, the claim of George Galloway, held by a treasury warrant, for 700 acres, reciting the entry, and an amendment thereto. And it then ordered that the award of the arbitrators, thereupon be made the decree of the court..
    On the 29th of December 1797, an award was made-out by Brown, M’Clanahan, and Conn, which, so far as, it respected James Galloway’s pre-emption, was admitted to be uncertain. So much of the award as related ta James and John Galloway, infant heirs of James Galloway, deceased, was as follows : “ And we are further of opinion, and do award, that John Galloway and James, Galloway, infant heirs and devisees of William Galloway, deceased, by Thomas Kirkpatrick and Joseph Mitchell, their guardians, do make William C. Webb a deed conveying all their right, title, and interest, to what land the said William C. Webb’s survey covers of the entry and survey of William Galloway, deceased, dated 28th day of July 1783 ; and that William C. Webb be at all charges and expence of making the survey to ascertain the quantity of land which is hereby awarded to the said William C. Webb.”
    An áward, certain to a common inteht* is good.
    
      If an award relative to in-terieiing land claims, decide the relative me. rits of the claims, and the manner ot Purveying them,& then leave the boundary, &c.. to be afcertain-ed by Purvey, it is iuihcientljf certain.
    An award relative to an infant’s real ef-tate, which direíls a convei* anCe by the guardian, is goodat moft^
    An order of reference may £*u“a<le0^ir application of the parties, tu. 00⅛11⅛-Cuurt.
    The award was returned to the February term of said court, which was held in the latter end of that month, and at the same term was made the judgment or decree of the court ; and so far as related to the heirs of William Galloway, deceased, it was entered in the words of the award itself.
    James Brown, sen. Thomas M’Clanahan, and Not-ley Conn, composed the court at the time the order of submission was made, and at the time the judgment or decree on the award was entered.
    The heirs of William Galloway, on one of them com-nner of age, brought a writ of error to reverse this iudg- ° °, . ,irn- jo ment or decree, and assigned the following errors :
    “ 1st. The court have made an order of reference, purporting to operate on the property of infants, on the application of their guardians, which is not authorised by any law in force in this state.
    “ 2d. The order of reference is erroneous in this, that it is too general, and does not sufficiently specify the matters of the dispute.
    “ 3d. The award returned, is vague and uncertain; not conclusive or final; and therefore the court erred in receiving it, and making it the decree of the court.
    “ 4th. The award does not determine the bounds of the land to be conveyed to Webb, but leaves that open to be settled by the surveyor; and therefore the court erred in making it their decree.
    “ 5th. It is erroneous, in directing infants, by their guardians, to convey real estate.
    “ 6 th. Upon the whole case, the judgment of the court should have been against the arbitration and award, and not for it.
    “ 7th. The court'erred in appointing themselves arbitrators, and then, as the court, acting on their own award.”
    
      
      April 26th.
    
    Allen, for the plaintiffs.
    — The act of 1798, relative td awards, repeals all former acts concerning awards and arbitrations . It gave no power to guardians to refer to arbitration, the land disputes of their wards ; and by the general expressions used, it repealed the former law relative to awards, which did authorise it.
    The award relative to Jamefe Galloway’s claim, is entirely uncertain. No man, from the award, can tell how the claims are to be laid down. It directs this claim to adjoin another, when that other is laid down according to lopation, without directing now that other should be laid down. An apparent uncertainty in an award, may be cured, if it contains, in itself, the means of ascertaining the requisite certainty. This is not the case here.
    The award, so far as it relates to the entry of William Galloway, is also uncertain. It does not ascertain the quantity of land to be conveyed. It does not ascertain the metes and bounds. The arbitrators, after agreeing upon the principles of their award, might, and ought, to have directed a survey according to the opinion they had of the claims, and then have made a final award. Arbitrators cannot delegate their poy/er to another. But leaving a survey to be made, to ascertain the land which is intended to be awarded, is really leaving for another to settle, the very point they were called on to decide. That an award must be certain and final, see Fleming vs• Chinowilh, Pr. Dec. 25 — also, Orear vs. Singleton, ibid 77.
    The award is also objectionable, because it directs a conveyance of the lands of the infants, by guardian. This is clearly not warranted by law, and must be fatal.
    Neither could the court refer a dispute to be settled by themselves, as arbitrators. Parties may submit the fact and law of a case, to the court ; but then, they act as a court, and their decision is subject to revision by appeal or writ of error, in the usual way. Justice and policy forbid that they should sit as arbitrators, and then sit in judgment as a court, to determine whether the award ought, or ought not to be set aside. It is impossible they could, as a court, sit indifferently, and decide without bias^ upon their own acts.
    
      Clay and Bledsoe, for the defendant.
    — The act au-Aoming guardians to arbitrate tbe interfering land claims of their wards, is not repealed. It would be a strained construction indeed, to sav that the act of 1798, repealed the one relative to guardians, &c. of the preceding year.
    There were in the arbitration, three different, distinct and unconnected adverse claims, contending with Webb's claim. This writ of error is brought by the heirs of William Galloway. The other Galloways are not before the court. The plaintiffs here, have no right to inquire into the validity of the award, as between the other Galloways and Webb. They have acquiesced. But if the award, as to that part, could be inquired into, and should be found defective, it would not destroy the award as to the plaintiffs in this suit. For where an award relates to several distinct and separate matters, it may be void as to some, but valid as to others.
    The award, as to the present plaintiffs, is certain and final. It directs a relinquishment to be made to Webb, of all the interference between the two claims. This can be done without a survey, and the conveyance would be sufficient. But in arbitrations relative to interfering land claims, it is the universal practice to settle, by the awards, the relative merits of the claims, and the manner in which they should have. been surveyed ; and to direct a relinquishment or conveyance to be made after a survey is made ; and then leave it to the court, to causé the survey to be made, and to effectuate what they have directed-to be done. This settles all the points in dispute between the parties, and leaves, but a ministerial act to be done by the surveyor, a ministerial officer.
    For the liberality with which awards have been treated in modern times, the court, is refered to the argument on this subject, in the case of M'Cullaugh vs. Myers's executors 
      
      .
    
    If the guardian has, by law, the power to refer thé land disputes of his ward to reference, it follows, as incident to that power, that he must convey, where a conveyance is to be made of the claim of the ward. If, however, that is not the case, the award, so far as it directs the conveyance to be by the guardians, is surplus-age, and cannot vitiate.
    , To the objection that the members of the court could pot refer a dispute ttuheraselves, we contendfrthat it does not appear, from this record, that they were the same. It is true, the names are the same ; but from the names being the same, you cannot judicially know that they are the same. It is no uncommon thing for there to be two men of the same name.
    
      May 7th.
    
    But if the question were properly before the court, it is clearly in our favor. The parties select their own arbitrators. The court does not make the choice : and the court cannot limit them in their choice. Mr. Aba-len’s objections, as to the possibility of bias, should be considerations with the parties, before a choice is made. It is too late to talk about it after that choice is made. And if the arbitrators, while acting as such, were to act improperly, application may still be made to them, as a court; and if, as a court, they will not do right, the party aggrieved, can, by bill of exceptions, put it on recordj and apply to this court, where justice will be done.
    Allen, in reply.
    — rThat awards should, in the general, be encouraged, I will not deny. But you must adhere to the rules of the law in doing it, or there is no telling where we are to be led to. The whole of the claims were submitted together. They seem connected together ; and if one part is not good, the whole must fall.
    This award, as to us, is, at best, but interlocutory. Then, according to the nature of things, if it is but interlocutory, it is not final ; and an award which is not final, is void, and cannot afterwards be made good. Questions as difficult, may, and will, frequendy arise, in carrying an interlocutory award or decree into effect, as in settling the first dispute. Witness the case of Brown vs. Crow’s heirs 
      , now on your docket, to decide upon the mode of laying down a survey, directed by a former decree of this court, to be laid down.
    This court must consider the arbitrators, and court, as the same persons. They are of the same names ; and I take it to be the law, that where the same names appear in the same record, concerned in the same transaction, they must be taken as the same, unless the contrary be shewn. I f the fact had been otherwise, the other side should have shewn it.
    
      
      ¿2) See a£ls of 1 fef, 1798, eh. Z5, § 6, 1 Brad. 59.
    
    
      
      
        Ante 197.
    
    
      
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   Edw ards, Ch. J.

delivered the opinion of the court. After a statement of the case, he proceeded:

It is evident, from the record, that there were four parties to the submission; and that four distinct claims. one belonging to each party, were submitted; and the arbitrators, In their award, have accordingly awarded upon the respective claims of each party severally. It will, therefore, be necessary to consider so much of the award as relates to the plaintiffs in this writ of error, and their interest only.

We will examine the errors assigned, in their order.

By an act of assembly, passed March 1st 1797 , entitled “ An act concerning guardians, infants, masters, and apprentices,” it is provided, that “ When the claim of an infant or infants, to land, shall interfere with the claim or claims of any other person or persons, it shall and may be lawful for the guardian of such infant or infants, to settle the dispute, with the proprietor or proprietors of the interfering claim or claims, by submitting the same to reference, agreeable to the arbitration laws that may be in force,” &c. By an act passed the 19th of December 1795, entitled “An act concerning arbitra-tions” , persons desirous of ending any controversy, or suit, by arbitration, were authorised mutually to agree to submit such controversy, or suit, to the decision and determination of any person or persons chosen by the parties contending. And they were further authorised “ To nominate the person or persons so chosen, together with the nature of the dispute to them refered, to any court of record within this commonwealth,” &c.

From these two acts, taken together, it is clear that the guardians of the then infants, John and James Galloway, were authorised to make the submission ; and that the court were authorised to make the order of reference, on the application of the guardians, “purporting to operate on the property (to wit, the land) of the infants.”

If any doubt can exist, it cannot be either as to the power of the guardians to submit, or as to the power of the court to make, on their application, the order of reference, at the December term 1797 ; but it must be as to the power of the court to render judgment on the award, at the February term 1798. This doubt is raised by the act passed the 12th day of February 1798, entitled “ An act concerning awards , in the last section of which, it is declared, that “ All former acts concerning awards or arbitrations!, now in force in this common-2 wealth, are hereby repealed.” And the February term of tbe Bourbon court, commenced on the third Monday, of the month, which could not be earlier than the 15th, day of the month. The last recited act cóntains no provision authorising guardians to. make submissions for their wards ; and it has been contended that the repealing clause therein, repealed that clause in the act. concerning guardians,n&c. by which authority had been given tpthem.to.submit,Sfc.; and that, therefore the court could not, at the February term 1798, render j udgment on this award, which was made on the 29th December 1797.

We cannot assent to so much, of the premises, as alleges that, any part of the act “ concerning guardians,” &c. was repealed by the general clause in the act of February 1.798, “ concerning awards.’!

But if the premises were true, the conclusion would by no means follow. The act of 1797, relates to the power of guardians over the estaje- of their wards, and gives them a new power, which before they did not possess ; and it declares, that they may submit to reference, disputes concerning the lands of their wards, “agreeable to the arbitration laws that may be in force.”

From this declaration, the legislature evidently had ip contemplation that changes might take place in the arbitration laws ; and as evidently intended that such changes should not affect the power they had given to, the guardians ; but that those powers should be still exercised by making submissions agreeably to the forms which then were, or that might at any time thereafter be prescribed, by the general arbitration laws.

With this, declared, intention of the legislature of.1797 before them, it. cannot be presumed that the legislature of 1798, if they had a different intention, would content themselves by declaring it by implication only ; or by the general expressions in the repealing clause of the act of 1798, before recited ; especially, when there is no part of the act of 1798, which shews that the legislature had, at that time, in their contemplation, the case of infants, or the power of the guardian over them, or their, estates.

But if we should be mistaken in supposing that the, pet of 1798, does not repeal any part of the act of 1797, still, the conclusion will not follow, that because the act, of 1797, authorising the submission and the award, both of which were made in December 1797, had been.re-. pealed by the act of the 12th of February 1798, no judg-roent could be rendered on the award after the 12th day of February 1798. The act of 1798, is clearly prospective in its provisions, and intended to operate upon submissions thereafter to be made.

The act of 1798, has not declared that it intended to make void, submissions and awards made before its passage, wherever no judgment had been entered upon the award, before the passage of the act. It can only have that operation by construction. The intention of the makers of a statute, should be followed with reason and discretion, in the construction of a statute — Plow. 206. Every statute ought to be construed for the preventing delay as much as possible . No statute shall be construed in such manner as to be inconvenient, or against reason — 4 Bac. Ab. 652 . All these rules of construction would be violated, if the construction contended for, should be adopted.

The intention of the act of 1798, was to provide more effectually for submissions to arbitrators, in future, than had theretofore been done, and not to defeat those submissions and awards which had been previously made, pursuant to the existing laws : and it would be highly inconvenient, and against reason, that they should be defeated, after the parties had incurred all the expence and trouble of settling their disputes, except the entry of the judgment on the award. It would also tend to produce unreasonable delay in determining controversies be-, tween the parties, if, after having litigated the difference before the tribunal of their own choice, and when nothing remained to be done, but the confirmation of the court, they should be turned round, to litigate the same matter, by an original suit.

If the construction contended for, were correct, it would defeat every submission and award made under the act of 1795 , “ concerning arbitrations,” where no. judgment had been rendered thereon, until after the passage of the act of 179.8 ; for the former act was expressly repealed by the latter.

We cannot suppose the legislature intended so great a mischief, unless they had so expressly declared. If, therefore, the premises assumed, were correct, the conclusion attempted to be drawn therefrom, cannot be maintained; and, consequently, the first assignment of error must be overruled.

The second assignment of errar tías very feebly, relied upon in argument, and is sufficiently refuted by an examination of the submission itself.

The third assignment of error seems to be founded •upon a mistake, in supposing there was but one James Galloway a party to the submission ; whereas a close attention to the record, proves there were two, to wit — ⅛-James Galloway, an adult, whose claim under his certificate for pre-emption of 1000 acres, is submitted ; and James Galloway, the infant co-heir and devisee with John, of William Galloway, deceased, whose claim, derived under the entry of 800 acres, made in the name ef their ancestor, is also submitted.

But had this not been the case, the uncertainty in the award, as to the pre-emption of 1000 acres, relied on in the argument, could be no cause for setting aside the award, so far as it relates to the claim of William Galloway, of 800 acres ; or the judgment of the court rendered on that part of the award alone. They are two distinct subjects. It has been often held that an award good in part, and bad in part, may be supported as to the part which is good. The doctrine applies with peculiar force to those cases where the several parts of the award relate tó several subjects ; and many cases have carried the doctrine much farther.

That the part of the award relating to the claim of James and John Galloway, deceased, (which is the only part thereof now before the court) is sufficiently certain, will be shewn in the consideration of the fourth assignment of errors.

The objection contained in that assignment, is, that the arbitrators did not fix the boundaries of the land directed by this part of the award to be conveyed to Webb,, but left the boundaries to be settled by the surveyor.

This objection is capable of several answers, deemed satisfactory. First — The land directed in the award to be conveyed by John and James Galloway, infants, &c. is sufficiently ascertained and described in the award itself, without any survey being made.

The award directs them to convey, by their guardian, “ All their right, title, and interest, to what land the said William 0. WebbV survey covers of the entry and survey of William Galloway, deceased;” If a deed, in other respects regular, had been executed, -describing the land conveyed in the very words of the award, it would have contained sufficient description ; and would forever have extinguished their title to any part of the interference between the two claims. If the arbitrators had ascertained the precise boundary, and quantity of interference, and had directed a deed to be executed agreeably thereto, it could, when executed, have done, no more.

Secondly — An award which is certain to a common intent, should be adjudged good ; otherwise few awards would be permitted to stand. For however well this domestic tribunal of the parties’ own choice, may be calculated to administer substantial justice between them, the judges thereof cannot be presumed to be generally conversant with technical forms. And we think this part of the award certain to a common intent, as tó what land was to be conveyed.

It has been urged that the arbitrators should have ascertained the precise boundary of the land to be conveyed ; and that otherwise the boundary may still be a sub*-ject of dispute. But how, it may be asked ? By questioning the identity of the lines of the original survey ?

Suppose the arbitrators had gone on the ground, or had, previous to making up their award, sent the surveyor to lay down, with lines and figures, the boundaries or lines of the land to be conveyed ; might not the identity of these lines, so laid down, be afterwards made a. question ? Surely they might. And so too, after an. interlocutory decree, and then a final decree made on a report of the surveyor in a chancery cause, if the parties were sufficiently perverse, a dispute might be made, as to the identity of the lines of the survey reported, contained in the final decree. And this dispute can only be settled by calling on the surveyor, or others, who were present, or by tracing the lines. -Yet, would any man contend the decree was not certain, to every reasonable intent ? So here, the arbitrators direct the whole of the original survey of the one party, within the boundaries of the original survey of the other, to be conveyed to that other. Nothing was necessary, but to trace the lines of the original survey.

Before a party should be permitted to excuse himself from the performance of an award, on the ground of uncertainty, or that the subject was still left open to li-* *igatio% thettocertainty should appear, not only to bo stich as the party might raise a dispute about, but ⅞ should be such as he might fairly and honestly dispute about; because he could not reasonably know what was his duty.

A third answer to this objection, is, that the arbitra*-tors have not left the boundary of the land to be conveyed, to be ascertained by the surveyor, as is in the assignment of error supposed, but only the quantity : a thing wholly immaterial to be ascertained in any way. It clearly appears that the lines of the original survey including the interference, were intended to be the boundary of land to be conveyed ; the award having directed the whole of the one survey covered by the other, (which would necessarily furnish a complete boundary sill around the tract) to be conveyed.

But whether the quantity or boundary of the land to be conveyed, had been directed to be ascertained by the surveyor, we should, in this case, have held the award, as to the present parties, good. Because it would be but doing a ministerial act, by a ministerial officer, acting under the direction of the award, or the judgment of the court thereon. In the one case, he would only have to take the bearings and distances of so much of the lines of the original surveys, as embraced the interference ; and in the other, he would have to calculate the area within those lines ; for in both cases, the award clearly points out those lines as the criterion by which he is to be governed.

Many awards have been holden good, which directed one party to pay the costs, without ascertaining the amount of the costs ; but leaving them to be taxed or calculated by the ministerial officer of the court, the clerk. And yet the clerk might tax the costs erroneously, and his erroneous taxation might be corrected by the court. The case before us, does not appear to be a stronger one.

It has been urged that this award is only interlocutory, not final, as it should be, and therefore reversible : and it has been likened to an interlocutory decree. But we-cannot discover the similarity between them. After an interlocutory decree pronounced by the court, it may, on a sufficient dase made out, be set aside by the court, to permit the party to amend his proceedings, or to take new evidence ; and is completely within the power of the court : and therefore it is hot final; or in other words, conclusive, as to the matter of right. Such would hot be the case in this award, after the court had ren-déred judgment on it. It could only be opeited by those means whereby a final decree could be opened. The award must be considered, iti this case, as having finally decided the controversy. . .. .

, The matter in controversy, was, whether William C. Webb’s, or the two minor Galloways’ right to the land embraced within the interference between their claims; was the best. That controversy is certainly and finally-determined, by the award having directed that they should convey to him the whole of the interference between the surveys.

As to th^ fifth assignment, we are of opinion that the direction to the infants to convey by their guardian, is not fatal. The substantial part of the decision, is, that John and james Galloway, (the infants) shall convey. The direction that they shall clb it by guardián, is bat ⅜ direction aS to the form, and not material.

If the act of 1797, had expressly directed that upon a submission by guardians, on behalf of their wards, the guardians, on a decision against them, shall convey for them ; it cannot be. doubted, that if the conveyance were not made by the guardians^ during their guardianship-, or the minority of theii" wards, the infants might, after attaining full age, be compelled to make the conveyance } that being the substahee of the thing awárded.

The act; it is true, does not give such direction ; and therefore it is contended, that the award, having so directed, must be fatally erroneous. The conclusion does not follow : for if, in the Case before put, the direction that they should convey by their guardians, would be dispensed with, as an immaterial formality ; no reason can be discerned, why, in this case, it should not be deemed an immaterial formality likewise. The substance of the award here; as well as in the case supposed, is, that the parties shall convey.

If the guardian had conveyed, it could not, by any possibility, have prejudiced their wards. It could only operate as a conveyance during their minority : during which time, the guardians might have bound the estate by lease, and delivery of possession. But if the guardians had made a lease to endure beyond the minority of their wards, it would have been good during that period, although voidable by them, when they attained full age. And such must have been the nature of the conveyance here, if it had oeen executed. In this case, the guardians might have surrendered the possession of the land under the award ; and it is conceived it was their1 duty to do so.

Whether the guardians have either conveyed or surrendered possession, we cannot tell from the record ; nor is it material. The infants have a right, upon their coming of age, to shew cause, if any they can, against the decree rendered on the award, either by a proper case made out in a bill exhibited by them to set it aside, or in any proceeding against them, to enforce it.

Upon the whole, the award, as to the matter of right, appears to us as certain and final as is required by the laws of 1795, and 1797, under which it was made; and that the matter of this assignment must be considered as but a matter of form ; which, under the act of 1795, ought to be disregarded. From this view of the subject, it will not be necessary finally to determine whether the guardians should convey the legal title completely, or not.

The sixth assignment of error, it is conceived, is sufficiently answered by the observations on the previous /assignments.

As to the seventh, and last error assigned, we are of opinion, that if we could judicially know that the persons named as arbitrators, were the judges ot the court, of the same names ; it would not be considered as error. The act of assembly gave the parties the right of choosing “ any person or persons,” as their arbitrators ; and we cannot restrain their exercise of that right of choice. The choice is the act of the parties — not of the court.

Judgment affirmed. 
      
       a£1s of 1796-7,?. 145, 1 Brad* 5IO«
     
      
      ⅜) A£ts of T?95>ch- 9> P-47‘
     
      
      
        ^ A&s of 1 kf, 1798, ch. 5’ P- 57> * Brad’57'
      
     
      
      *) a Inlfe 6ll> 6l*‘
      
     
      
      Gwil. E4, val, 39;. (¿) old.Ed.
     
      
      p' (c) Ch. 47-
     