
    Administrators of Tullis v. P. Sewell.
    Assumpsit can not be maintained on an award, made in pursuance of a submission by covenant under seal.
    This cause was adjourned here for decision, by the Supreme Court sitting in Champaign county. It was an action of assumpsit upon a submission and an award._ The declaration set out a submission, without specifying whether in writing or by parol, and set out an award in writing. Plea, non assumpsit. The submission produced at the trial was a covenant under seal. And whether assumpsit could, in such case, be maintained, was the question reserved for decision.
    Mason, for defendant:
    The question reserved for decision in this case is, whether assumpsit will lie on an award, when the submission was by deed. I maintain it will not; and that the whole current of authorities sets strongly against the action. It is laid down in 1 Chitty’s Plead. 95, that assumpsit lies specially upon awards where the submission was not by deed—and that it is the peculiar remedy on an award, to perform any act, except to pay money, unless the submission were by bond. Where the submission was not by bond, and the award is for doing of any act, other than the payment of money, assumpsit is the only remedy. Debt lies on an award for a sum of money, awarded upon a submission, either by deed or in writing, without deed or by parol. 2 Saund. 62, n. 5.
    When the submission is by deed, the remedy is by debt or covenant. 2 Chit. Plead. 119, and the cases there cited; 2 Saund. 61, n. 2; Kyd. 276, 280.
    *No case is found where this action is sustained on an award made pursuant to a submission by bond; but it well lies where the submission is in writing or by parol. The bond offered in evidence to prove the submission in the case under consideration ought to be rejected; and as the objection taken to the bond appears on the face of the award, the award itself is also inadmissible.
    J. H. James, for the plaintiff:
    The objection made to the form of the action is, at first view, sustained by the references to Ohitty ; but it will be found on examination, that the rules there laid down are given without authority, and can not be sustained. He says (1 Pl. 95, ed. 1825), that- “ the action of assumpsit lies specially on awards where the submission was not by deed,” and refers to his second volume. He there says (p. 117, n. d), that “when the submission is by deed, the remedy is by debt or covenant, unless the award be made after the limited time,” and cites 3 Term, 592. The case in Term Eeports is given in a note, and was an action on an arbitration bond, in which the time was limited for the arbitrator to make his award; the time was afterward enlarged, and the award made. It was held by the court that the penalty of the bond did not extend to an award made under a new agreement. This being the only reference he makes, the rule stands as a mere dictum of the compiler ; and the dicta of Mr. Chitty, as the court have heretofore said, are not authority, unless clearly sustained by reference to reported cases.
    To maintain the position taken, the defendant also refers to 2 Saund. 62, n. 5; Kyd. 276-280. The note in Saunders only shows that debt will lie on an award for money, whether the submission were by deed, in writing, or by parol. The language in Kyd. 276, is only a repetition of the note in Saunders.
    It is not a sufficient objection to the action that debt would also lie ; nor should we be concluded had it been ruled in some ancient case that assumpsit would not lie; for this liberal remedy was at first regarded with strictness by the courts, and held inapplicable where it is now most readily admitted; as in case of awards for the performance of acts *other than payment of money, made under parol submission, which were for a long time held to be without remedy. No decision, however, can be cited to impeach the present remedy as far as we have examined. The court are not required, by a compliance with previous decisions, to overthrow, nor forbid, by_any principle, to sustain the action.
    It can not be said that there is a security of a higher nature on which the action should be brought, for that would imply that the debt was merged in it, and require that the action should be founded on it, when it is without dispute that the action may at all times be on the award itself. In debt thereon, it is sufficient to aver the fact of submission without setting forth the manner of it. The bond is not the foundation of the action, nor is it matter of inducement. The bond is good evidence of submission, and better than any parol proof. In debt on the award, the form of action for which the defendant contends, the bond would be only matter of evidence to prove the submission, and it is conceived to be equally proper in the present case, and for that purpose was it offered. It would formerly have been held that a special promise, independent of the submission, should have been proved; but by degrees the courts relaxed the rigor of the rule, and now consider that the submission itself implies a promise to perform the award.
    There are several analogous cases which show that this action is proper. It has been held to lie on an award made under a rule of court. Bonner v. Charlton, 5 East, 139. A submission by record, of as high a nature as a deed, should, on principle, be equally fatal to the action. Thus where two enter into articles of partnership by deed, and covenant to adjust and settle their aocounts at stated times (and here the covenant is, that the ai'bitrators shall settle them),' and the parties in pursuance thereof come to a settlement, and a balance is struck and agreed upon, the party to whom the balance is due, may maintain air action of assumpsit against his copartner, notwithstanding the deed. As in Foster v. Allanson, 2 Term, 479.
    So, in the case of administrator’s bonds, where the administrator settles his account, and there is a balance in his hands. The heir has its election to sue on the bond, or to bring an action of assumpsit on the account stated for his distributive *share. Heirs of Waldsmith v. Adm’rs of Waldsmith, 3 Ohio, 160.
   By the Court:

It is objected, by the defendant, in this case, that the submission .being by specialty, can not be given in evidence to support an action of assumpsit. In answer to this objection, it is urged that the action is founded on the award, and not upon the submission. That it is sufficient in declaring to set forth the award, and state in general terms' that the parties made the submission, and that the .award not being, under seal, assumpsit may well lie upon it.

The answer to this argument is, that the award of itself imposes mo obligation on the parties. Without their act of submission the arbitrators could possess no power over them, or their business, 'Consequently it is not the award, but the submission, that is the •foundation of the action. If the submission were not averred, the declaration would be as defective as if it failed to set out the .award itself. •

The liability of the defendant originates in the contract of sub.mission that necessarily must precede the award. It is from this contract that the arbitrators derive their authority, as judges ■whoso decision is to bind the parties. By it they must be governed iu their proceedings. A departure from its stipulations renders their decision inoperative, being void for defect of power to act It is the submission, therefore, that is the foundation of the right claimed by the plaintiff, and it is only in virtue of the submission that the subsequent proceedings have a binding force. The action originates in the submission, and ought to correspond in character with it. If it is by deed, the remedy should be by debt or covenant. If by parol, or writing not under seal, it may be by assumpsit.

It is asked, if the submission is by parol, and the award under seal, what is the action? The reply is, that assumpsit-may, in that case, be well-sustained. The seals of the arbitrators are not the seals of the parties, and can impose no obligations upon them as such. The contract that binds them is by parol, and the remedy must conform to that contract, and can not be varied by the fact of the arbitrators adding or omitting seals to the award.

*In assumpsit upon an award the general issue, non assumpsit, necessarily puts the fact of the submission in issue. It would be an anomaly in pleading, that the making of a deed should be put in issue by such a plea. Yet this is inevitable, if assumpsit can be maintained in such a ease. The great object of pleading would be defeated. Neither the declaration nor the plea would present the real foundation of the action. It would come before the court collaterally, without direct affirmance or denial by either party. When the declaration is in covenant, it must recite a submission by deed, and when it is in debt, and the submission is by deed, it should so recite it. The defendant could then plead no other general issue, that would control the submission, but non est -factum, for the plea of no such awards would admit the submission, so that, in the proper form of action, the regular modes of pleading would be preserved, whilst in the mode now attempted it would be wholly subverted. This alone is a decisive argument against the present action. In the opinion of the court, principle and precedent both 'concur in conducting to the conclusion, that the action is erroneously conceived.

Judgment must be for the defendant.  