
    *Wood v. Shepherd.
    January Term, 1857,
    Richmond.
    Absent, Field, P., who decided the cause in the court helow.
    1. Equity Jurisdiction — Specific Execution of Award . Involving Conveyance of Land. — A court of equity .has jurisdiction to enforce the specific execution of an award, which involves the conveyance of land, or to enforce the specific execution, of an agreement for the sale of land, which involves . incidentally the enforcement of an award for the payment of money.
    2. Partnership — Arbitration—Power of Partner to Submit Claims to. — One partner has no authority, by virtue of the partnership relation, to bind his co-partners, by an agreement, to submit claims or transactions, growing out of the partnership • business, to arbitration.
    3. Same — Same—Effect of Partner Submitting Claims to. — But the partner, who makes such agreement, is bound thereby, and the agreement is valid and binding between the parties thereto.
    4. Arbitration:;: — Award—Uncertainty—Want of Mutuality. — An award is not defective for uncertainty or want of mutuality, if it is in pursuance of the agreement to submit, decides all the questions referred, and responds to all the requirements of the submission to arbitration.
    5. Partnership — Power of Partner to Assign Debt Due . Firm. — An assignment by one partner of a debt, due to the partnership, to another partner for his individual benefit, is not binding on the other partners who have not authorized or assented to it.
    Ou the Sth day of September, 1844, Henry M. Wood and Abraham Shepherd, jr., entered into an agreement in writing under seal, as follows:
    “Abraham Shepherd, jr., and Henry M. Wood, agree as followsThat whereas there has been many business transactions between them and between said Wood and the several firms a-t Palmyra, of which said Shepherd has been a member, some of which transactions .have been closed by Wood’s giving his bonds, and others are yet unclosed, and upon them an action of assumpsit is now depending against him in the Superior Court of Fluvanna, in behalf of Shepherds & Co. And whereas the said Wood is dissatisfied with *the settlements which occasioned him to give his said bonds, or some of them, upon which judgments have been .recovered against him, and is desirous that all the said transactions be re-examined by arbitrators. Now the said Shepherd, jr., and the said Wood, do hereby mutually agree to refer, and do refer all the said transactions, however distant in time and whether closed by bonds, note, judgment or otherwise, or not closed, to the arbitration and final award of Egbert R. Watson and George Stillman, or their umpire, chosen by themselves, if they disagree, who are to re-examine ánd re-state all accounts between the said Wood and the said Shepherd, or between said Wood and the firms of Shepherds & Hartsook, Shepherds & Co., A. G. & A. Shepherd, jr., and Shepherd & Nelson, or any of them, each party waiving all benefit of the statutes of limitation ; to hear all such evidence as either party may adduce, whether oral or written, without requiring legal formalities in respect to such evidence, unless the arbitrators think proper to require them; to ascertain from such examination whether any, and if any what, errors were in the former settlements, or in any of the accounts of the said Shepherd, jr., or any of the said firms, against the said Wood, and correct such errors, and to award whatever sum their said examinations shall find to be due. And the said Shepherd, jr. agrees, that in the account thus to be stated between him and said Wood, Wood shall be credited with the full amount of any error or errors which may be found in past settlements of transactions, not only between them, but between Wood and any of the aforesaid firms. And for whatever sum the said arbitrators, or umpire, may award or find due from Wood, he hereby agrees and covenants, that his real estate shall be bound to the said Shepherd, jr., or the said firms respectively, to whom the balances shall be found due; and he, Wood, hereby charges the same on such real estate, in as ample a manner as he could do by mortgage or trust deed.
    *“ And it is further distinctly understood and agreed between the parties, that all judgments heretofore obtained by the said Shepherd, jr., or any of the said firms, against said Wood, shall retain all their force and priorities as liens on the said Wood’s land, which they would have if this submission or the award hereby provided for never had occurred, except so far as the amount of such judgments, or any of them, may be reduced by the finding of the arbitrators, or umpire.
    “And the parties hereto do further agree, that Wood sells to said Shepherd, jr., and he buys of said Wood, the tract of land how owned and occupied by Wood, in Flu-vanna county, containing about four hundred acres, at the price of $2,000, towards paying which sum the amount found due by the arbitrators or umpire as aforesaid from said Wood, whether to said Shepherd, jr., or to any of said firms, shall first be applied, — the said Shepherd, jr. procuring and delivering to Wood valid and perfect acquittances for all the sums found due from him to the said firms. And the said Shepherd, jr. shall pay to Wood the residue of the said $2,000 in cash, upon Wood’s making him a complete title to the said land, and delivering him possession.
    “In witness whereof, the parties have hereto put their hands and seals, this 5th day of September, 1844.
    Abra. Shepherd, Jr., [Seal.]
    H. M. Wood, [Seal.]
    Witness,
    Wm. E. Shepherd,
    Wm. H. Massie.
    
      “Memo. — It is mutually agreed between ns to substitute Daniel Perrow in place of George Stillman, in the foregoing agreement.
    ‘1 Witness, our hands and seals, this 14th day of November, 1844.
    Abra. Shepherd, Jr. [Seal.]
    H. M. Wood, [Seal.]”
    *On the 9th day of January, 1845, the arbitrators made their award in writing under their hands and seals. The award, after reciting the submission, that notice had been given to the parties of the time and place of the action of the arbitrators in the premises, that both parties had attended, and that the arbitrators had duly considered all the evidence adduced before them, decided and awarded, “that the said Henry M. Wood, on the matters referred to by the agreement aforesaid, is indebted as follows, viz :
    To Shepherds & Hartsook, as of the 1st January, 1845, 1,333 22
    To Shepherds & Co., as of the same date, 868 84
    To Shepherds & Nelson, as of the same date, 64 27
    To Abraham Shepherd, jr., as of the same date, 190 96
    $2,457 29
    Making an aggregate sum of $2,457 29, due from the said Wood to said parties.
    And they do further decide and award that the firm of A. G. & A. Shepherd, jr. is indebted to the said Wood, as of the 1st January, 1845, in 427 04
    Heaving a balance due from said Wood, on all accounts, of $2,030 25
    Or $2,030 25, after having corrected all the errors in the accounts and previous statements of said Wood and the parties aforesaid, or any of them, which have been made apparent the undersigned, and after having allowed to the said Wood all the additional credits ro which he seemed entitled.”
    The firms of Shepherds & Hartsook, Shepherds & Co. and Shepherd & Nelson, had been dissolved prior to the agreement of the 5th September, 1844, between Henry M. Wood and Abraham Shepherd, jr., and on *the 14th October, 1845, A. G. Shepherd, who claimed to be the acting member of the said firms, and authorized to settle, close and adjust all their transactions, and to grant acquittances to all indebted to the said firms, executed written assignments to Abraham Shepherd, jr., in the name of the said firms respectively, of all claims of the said firms under the award. A. G. Shepherd also executed another writing, ratifying and confirming on behalf of the said firms, the award.
    On the same day, Abraham Shepherd, jr., by an agent, exhibited to Henry M. Wood, the above mentioned assignments of the claims of Shepherd & Hartsook, Shepherd & Nelson and Shepherd & Co., and offering to credit him on the award with the sum of $2,000, as of that day, demanded possession of the four hundred acres of land referred to in the agreement of the 5th September, 1844, and a deed conveying a good title thereto to himself, to which demand Wood refused to accede.
    In November, 1845, Abraham Shepherd, jr. exhibited his bill in chancery in the Circuit Superior Court for the county of Fluvanna, against Henry M. Wood, setting forth the above facts, and praying the court to compel the defendant to surrender to the complainant full and absolute possession of the four hundred acres of land in the agreement referred to, and to execute and deliver to him, duty certified for record, a complete title thereto, and that the balance due the complainant upon the award with interest might be decreed to him.
    The defendant Wood answered, admitting that he had executed the agreement of the 5th September, 1844, but that the mercantile firms, whose accounts with him were referred to arbitration by the said agreement, were not bound thereby, and the award did not conclude them, and was therefore not binding on him for want of mutuality. That he had not been permitted to see the accounts and vouchers which were before the arbitrators, and they had not considered evidence he had adduced before them of credits to *which he was entitled. That the award did not shew the true balances against him and was unjust to him. That the accounts between him and the said mercantile firms could not be adjusted, unless the members of the said firms were parties to the suit. He averred his readiness to enter into a fair settlement of his accounts with the said firms, whenever they could be settled in a manner binding upon all parties.
    The deposition of the arbitrators proved, that both parties had a fair hearing before them, and that they had duty considered all the evidence adduced before them. Several witnesses were examined by the defendant to prove, that he had delivered timber to some of the firms, which, he claimed, the arbitrators had not allowed him credit for in the settlement of his accounts with the said firms. There was no proof of the authority of A. G. Shepherd to assign or release the debts of the firms of Shepherds & Hartsook, Shepherds & Co‘. and Shepherd & Nelson, other than that he was a member of the said firms.
    On the 4th September, 1846, the cause was heard, when the court “being satisfied that no just exception exists against enforcing the award, made in pursuance of the agreement of submission entered into between the plaintiff and defendant, nor any just exception to enforcing the terms and stipulations of said agreement, touching the tract of land therein mentioned,” decreed, that the defendant should deliver to the complainant possession of the land in controversy and execute to him a convey- \ anee thereof, property certified for record, and that the complainant shall thereupon credit the defendant upon the award with the sum of $2,000. The court further decreed, that the defendant pay to the complainant the balance of S30 25, due on the award with interest from the 9th January, 1845, and gave costs against the defendant.
    From this decree Wood appealed.
    *Bouldin, for the appellant:
    If the object of the bill in this case is to enforce the award, it cannot be maintained; The arbitrators do not award a conveyance of the land, and a bill in equity to enforce the execution of an award for the payment of money cannot be sustained, for there is a complete remedy at law. Smallwood v. Mercer, 1 Wash. 290; Watson on Arbitration, 229; 11 Law Lib. 118.
    But if the award had directed a conveyance, a court of equitj would not enforce it, because the award is itself defective. It is founded on an invalid submission. A. Shepherd, jr., could not bind the several firms by his submission. One of several partners cannot bind the others by a submission to arbitration even of matters arising out of the business of the firm. Russell on Awards, 359; ■ 63 Law Lib. 78; 1 Stephens’ Nisi Prius, 59, 96, 118, 119; Bid-dell v. Dowse, 13 Eng. Com. Law R. 164; 6 Barn. & Cres. 255; Adams v. Bankart, et al. ; 1 Crompton, Meeson and Roscoe, 681; Stead et ais. v. Salt, 3 Bing. 101; 11 Eng. C. Law R. 50. The award was uncertain, because it does not state to whom the money was to be paid, whether to the several firms or to A. Shepherd, jr. Nor is it mutual, because it requires everything to be done on the part of Wood, and nothing on the part of Shepherd or the several firms.
    If the bill is to be created as a bill for the specific execution of the agreement for the sale of the land, then it is addressed to the discretion of the court, which will not be exercised in favor of a claim based upon an award liable to the objections above stated. At all events, specific execution should not have been decreed, until the plaintiff had complied with the contract pn his part, and procured and tendered to the defendant valid and perfect acquittances for all sums due from the defendant to the several firms. It is not proved, that A. G. Shepherd was a member of the firms of Shepherds & Hartsook, or of Shepherds *& Co. It appears that the firms had been dissolved, and there is no evidence of any authority on the part of A. G. Shepherd to grant acquittances and discharges in their names. And the court below, without requiring the members of these firms to be brought before it, required the defendant to surrender the possession oí the land and to execute a conveyance thereof, upon receiving “a credit on the award of said arbitrators for the sum of $2,000.” Suppose the decree executed, and there is nothing in the record to prevent the other members of the said firms from holding the appellant responsible to them for their proportions of every dollar of the money.
    Cocke and Lee, for the appellee:
    The bill was filed, not to enforce the award, but to enforce the specific execution of the agreement; that is, to compel Wood to convey the land according to the terms of the agreement. Hence the jurisdiction of the court. Smallwood v. Mercer, 1 Wash. 295, cited in the petition. Story’s Eq. Juris. I 746.
    It is not clear that A. Shepherd, jr., had no power to make the submission for the several firms. On the contrary, the evidence, both positive and circumstantial, shows that he had the implied power. Wood himself admitted it at the time he signed the agreement, and never denied it until the award showed a balance against him. But even if Shepherd had not this power, he surely had a right to guarantee to Wood the acquittances required by the terms of the contract.
    But it has never been decided in Virginia that ‘‘one of several partners cannot bind the others by a submission to arbitration.”
    The case of Stead v. Salt, &c., is a comparatively old one, and even in that case it is admitted by the court that such an authority might be implied. In Kentucky, Pennsylvania and Ohio, it has been decided, that one partner has, by the general authority *as copartner, power to bind the others by the submission of their accounts to arbitration. Southard & Starr v. Steele, 3 Monroe R. 435; Wilcox & Gamble v. Singletary, Wright, (Ohio C.) 420, and cases cited in note 2; Story on P. (S 114. These decisions show that the rule as stated in Stead v. Salt is not to be taken as conclusive.
    Either partner has, by the general authority as co-partner, power to adjust, settle, sue for, compound, compromise and release a debt due the partnership. 3 Kent’s Com. 18 et seq. ; Story on P. M US, 252. And this authority exists after dissolution. King v. Smith, 19 Eng. C. L. R. 299; Scott v. Trents, 1 Wash. 77; Eorkner v. Stuart, &c., 6 Grat. 197; Story on P. § 328; Collyer on P. $ 546.
    The power to submit to arbitration a debt due the partnership is certainly not greater than the power to release that debt altogether. And if one partner can sue in the partnership name for such a debt, and submit for his co-plaintiffs the matters involved in the suit to arbitration, why can he not submit the debt to arbitration before the suit is brought? In the case of Chap-line v. Overseers of the Poor, 7 Leigh, 231, Judge Tucker, in delivering the opinion of the court, says, it is a general principle, that whoever can contract can submit to arbitration; and, indeed, in general, whoever can sue is entitled to submit, except those who cannot contract. And this is the English as well as the American doctrine on this point.
    2. The award in itself was certain. The power of an arbitrator is derived entirely from the submission. He must, therefore; make his award strictly in conformity with the submission. Wats, on Arb., Law Library, 5th series, 28th vol., p. 179.
    The award ascertained a balance to be due b3 Wood to Shepherd and the various, firms, and its amount. The arbitrators very properly left the agreement to ascertain what should be done by the parties to the submission.
    *3. The award is shown to be mutual by its reference to the agreement, the terms of which require that what either party is to do shall be in satisfaction of what the other is required to do. This constitutes the essence of mutuality. Hor-rell v. McAlexander, 3 Rand. 94.
    It was not necessary that all the partners of the various concerns should have been made parties; and the objection, if valid, should have been made in the court below. The appellant should have demurred and shown by his demurrer who were the parties omitted. The same reply may be made to the objection that the appellee’s remedy was complete at law, and therefore the court below had no jurisdiction, and that the discharge tendered by Shepherd was not good. There was nothing on the face of the bill to show a want of jurisdiction, and the acquittances offered were signed for the various concerns by A. G. Shepherd, the acting partner, known and admitted to be such by Wood. The appellant should have demurred, or pleaded in the court below. And, besides, a discharge by any one of the partners, even after dissolution, would have been binding upon the partnership. Wood did not object to the validity of the acquittances when they were tendered him. It is too late now to make such objection.
    The bill shows on its face that A. Shepherd, jr., was the only party interested in requiring specific execution of the contract. The claims had all been assigned to him— that assignment not questioned — the agreement was made by him with Wood — the consideration valid — the tender made that was required, and what had the court to do with parties that it could not presume were in any way interested in the issue? The bill alleges that the various claims and demands (made by the firms against Wood) were for the benefit and under the control of A. Shepherd, jr., which allegation is not answered by Wood, although specially required so to do, and therefore must be taken pro confesso.
    *The terms in which the decree was rendered are proper. The ac-quittances were before the court, not questioned as to their validity by anybody, not disproved as to their genuineness by any of the partners whose testimony might have been taken by the appellant, but was not— on the contrary, directly confirmed by the acting partner of all the firms — and why should the decree have required that to be done which was already done?
    
      
      Equity Jurisdiction, — See monographic note on ‘‘JuriscUction’’ appended to Pbippen v. Durham, 8 Graft 457.
    
    
      
      Specific Execution. — See monographic note on “Specific Performance" appended to Hanna v. Wilson, 3 Gratt. 843.
    
    
      
      Arbitration. — On all matters pertaining to arbitration, see monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
   THOMPSON, J.

This must be regarded as a bill filed to compel specific execution of an award concerning land, or of a bill to enforce the specific performance of a contract, under hand and seal, for the sale and purchase of a tract of land, and in either aspect the jurisdiction of a court of equity is alike unquestionable. I do not understand the counsel of the appellants as gainsaying this in their petition for appeal and assignment of errors or their arguments at the bar; but as insisting that this is not a proper case for the exercise of that jurisdiction, regarded in either aspect.

I. Because treating this as a bill in equity to enforce an award, it cannot on established principles be entertained — for the reason, that the arbitrators do not award a conveyance of the land, the award ascertaining nothing but the liability of Wood to pay a sum of money, and although a bill in equity be proper where an act is awarded to be done for which a complete remedy cannot be had at law, such as to make a conveyance, it will not lie to compel the execution of an award for the payment of money merely.

II. Because, had the award directed a conveyance, a court of equity would not enforce it, because of defects apparent in the award itself, which defects are alleged to consist in the invalidity of the submission and want of certainty and mutuality in the award. 1. An invalid submission, because made by one partner of several mercantile concerns, of the rights and liabilities of the several co-partners, and that too after a dissolution *of the co-partnership. 2. Want of certainty in the award itself, because the arbitrators do not award to whom the money shall be paid, whether to A. Shepherd, jr. or to the respective firms, and if to the latter, in what proportions to each. 3. Want of mutuality; for, conceding the validity of the submission as to the subjects in difference as well with the firms as with Shepherd, the award should have required, that upon the payment by Wood of the amount ascertained to be due from him, Shepherds & Co. should dismiss their suit, and the other parties who had judgment should enter satisfaction thereof; whereas, the award is altogether on one side, requiring Wood to do every thing and the other parties nothing.

III. Because treating it as a bill for specific execution merely, that is always addressed to the discretion of the court, and that discretion will not be exercised in favor of a claim based in whole or in part on an award which is liable to the objections before stated. At all events, specific execution should not have been decreed without clear proof that the plaintiff had complied with his part of the contract, by procuring and tendering to the defendant valid and perfect acquittances for all sums found due from said defendant to the said firms. The papers executed by A. G. Shepherd, and tendered and relied on as such valid and perfect acquittances, it is said, are insufficient, because there is no proof, except from his own declaration, that he ever was a member of either of the firms of Shepherds & Hartsook or Shepherds & Co. —still less, that on the 14th October, 1845, these firms, or either of them, were in existence. On the contrary, it is said, it is apparent they had been dissolved, and that .there is no evidence in the record that A. G. Shepherd had a right to grant acquit-tances and discharges in their names. And yet, without requiring the members of these firms to be brought before the court, without evidence of any release by them of their claims on the defendant, the court has required him to execute a *deed for and surrender the possession of his land upon receiving a credit on the award of said arbitrators for the sum of $2,000. Suppose this decree executed, and what, is there, it is asked, in this record to prevent the other members of the firms aforesaid, Hartsook and Nelson, and we know not who else, from holding the defendant responsible to them for their proportions of every dollar of this same money? The decree in question, it is said, affords the defendant no sort of protection against the claims in satisfaction of which he is required by its terms to strip himself, it may be, of his whole estate.

The articles of the 5th September, 1844, contain not only an agreement of submission to arbitrament, but a distinct and substantive contract for the sale and purchase of a tract of land, containing a certain quantity of acres, at a specified price; to wit, four hundred acres, at the price of $2,000, (which is $5 per acre,) “towards paying which sum the amount found due by the arbitrators or umpire as aforesaid from said Wood, whether to said Shepherd, Jr., or to any of said firms, shall first be applied — the said Shepherd, jr. procuring and delivering to Wood valid and perfect acquittances for all the sums found due from him to said firms. And the said Shepherd, jr. shall paj to Wood the residue of the said $2,000 in cash, upon Wood’s making him a complete title to the said land and delivering him possession.” Its design, then, was to accomplish a twofold purpose: first, the ascertainment by arbitrament and award the indebtedness of Wood to A. Shepherd, jr., and the several concerns of which he was a member ;■ and, secondly, the sate and purchase of a tract of land, which would supply the means of liquidating the indebtedness thus ascertained ; but which of these purposes was the primary and which the secondary, which the principal and which the incidental, whether, the submission -to arbitration was the inducement to the sale or the sale the inducement to the submission, and whether so ^'dependant aftd indissolubly blended and connected, as to form but parts of one entire contract, so as that both must, be consummated or neither, is certainly a question which would be worthy of consideration if it were material to the decision of this cause. Without meeting that question, I am content to concede that the agreement to submit to arbitration, and the contract of sale and purchase are so dependent and indissolubly connected, that both must be consummated or accomplished or neither; and that, therefore, we must consider this as a bill filed for specific execution of an award involving, incidentally, specific execution of a contract for the sale of land, or a bill for specific performance of a contract for the sale of land involving incidentally specific execution of an award. And so considering, I can perceive no objection to the relevancy of the alternative errors assigned, based upon that twofold aspect of the case, and will proceed to consider briefij- their validity or tenability.

I. Treating it as a bill in equity to enforce an award, it is objected, that the arbitrators do not award a conveyance, but ascertain nothing but the liability of Wood to pay a sum of money, and that a bill will not lie to compel the execution of an award for the payment of money. The answer to this objection is, that the only question referred to the arbitrators was the extent of Wood’s liability or indebtedness to A. Shepherd, jr., and the several firms of which he was a member,' — that being ascertained, their duties ceased,' — -they were functi officio — and the agreement of the parties for the sate and purchase of the land steps in and directs the application of that liability or indebtedness, and how it is to be extinguished by the sale and conveyance of land.

II. It is objected, that had the award directed a conveyance, a court of equity would not enforce it, because defects appeared in the award itself. This objection is based upon an inadmissible hj'pothesis, for the reasons stated in answer to the first objection; *and is irrelevant in the form in which it is stated; but I will consider it as if it had objected to a court of equity decreeing the conveyance stipulated for in the contract, because of defects apparent in the award itself. Three defects are specified: 1st, the invalidity of the submission; 2d, want of certainty in the award, and 3d, want of mutuality. If the omissions, which form the subject of objection in the 2d and 3d specifications of defects, were properly imputable to the arbitrators, they are manifestly of such an immaterial and merely technical or formal character, as to render them of no avail, and wholly inadequate to vitiate the award, according to the modern and more enlightened doctrines which prevail on the subject of arbitrament and award. But, in truth, the arbitrators have been guilty of no omissions. They have responded to and fulfilled the whole duty imposed upon them, nothing more, nothing less, when they ascertained and reported or awarded the indebtedness of Wood to the appellee and the partnerships mentioned in the submission, and the indebtedness of them or any of them to him. At that point their duties and powers terminated, and the contract of the parties commenced its office. It was no part of the duty or the province of the arbitrators to award to whom and in what proportions the money should be paid, nor to award and direct the dismission of the pending suit, and the acquittance or entry of satisfaction of the judgments. By complying with the award in the manner prescribed in the agreement, and after compliance on the part of the appellee with the terms and conditions imposed on him, Wood would, ipso facto, have acquired a virtual dismission of the suit, and a virtual acquittance or discharge from the judgments.

The only defect which deserves more than a passing notice is the first, which is founded on the alleged invalidity of the submission. It is argued, that one partner, whether of a dissolved or an existing firm, although clothed with an authority implied from the partnership delation, to receive debts and grant ac-quittances and releases, has no such authority to submit the rights of his co-partners to arbitration so as to bind them by the award. And that, as the appellee in this case submitted to arbitration the rights of his co-partners without their authority or consent, they could not be bound by the award, and that as they were not bound, neither was the appellant, the submission being void for want of mutuality of obligation. Although the counsel of the appellee cited two American cases, which affirm the power of one partner, whether of a dissolved or existing firm, to submit and to bind by the submission to arbitration and award the rights of co-partners, without their authority and consent, I think it very clear, both upon reason and the authority of the adjudged cases and of the text-writers adduced by the counsel of the appellants, that one partner cannot bind the rights of his associates by submission to arbitration and award without their authority or consent; but I differ toto coelo with the counsel in the conclusions the}’ would deduce in this case from the nonexistence of power in one partner to bind the rights of his co-partners by submission.

It is certainly not a very obvious con sequence, that because those who do not submit are not bound by the award, those who do should not be. On the contrary, the very reverse of this proposition would, at the very first blush, seem to be the most reasonable. Wood and Shepherd had the perfect right and the full power to bind themselves whilst they could not bind the outstanding co-partners. Shepherd was beyond question irrevocably bound. There is nothing wrong or unusual for one man to submit for himself and another, taking upon himself the peril of his dissent or non-acquiescence. Hence, it is laid down in Russell on the Duty and Power of Arbitrators, 63d vol. of Law Library, p. 27, upon the authority of Bac. Abr. Comyn’s Dig. and adjudged cases there cited: “If a man submit for himself and his partners all matters in difference between *the partnership and another, the partner submitting shall be bound to perform the ward, but the other shall not, because he is a stranger to the award. If, however, the latter refuse, it is a breach of the submission by the partner who agreed to the reference.” And in another place, on p. 28: “In general, a man is bound by an award which he submits to for another. ’ ’ And if Shepherd be bound, why should not Wood likewise? Every man is presumed to know the law; but in this case we are not left to presumption as to whether Wood, or the learned counsel who ,drew the article, knew it. The instrument itself, on its face and in its terms, demonstrates that Wood knew the other partners were not bound by the submission, and took care to guard himself against the consequences of their non-acquiescence, by requiring ac-quittances from them, as a condition precedent to his conveying to Shepherd his land. After he had entered into the submission, with a full knowledge of its invalidity as to the outstanding co-partners, guarding himself against the consequences in addition to the recourse the law would give him against Shepherd for a breach of the submission, in the event of the dissent from or disaffirmance of the award by them —a submission too by which Shepherd was absolutely and irrevocably bound — would it not be palpable and manifest injustice, if not fraud, to allow him to take the chance of an award in his favor, and failing in that, to claim to set aside the whole proceedings for a defect in the submission, of which he had full cognizance when he entered into it?

I am of opinion, therefore, that the first and second assignment of errors, treating this as a bill to enforce the award, and alleging objections or defects, both in the submission and the award, are untenable. And it has not been intimated that there is the least ground for impeaching the award upon the merits.

III. Upon the third and last question presented by the petition for appeal and assignment of errors, I am of opinion, that whilst it was manifestly proper for the *court to decree specific performance of the contract for the sale and purchase of the land, involving incidentally the specific execution of the award, it erred in doing so upon the acquittances tendered by Shepherd and appearing in the record, being of opinion that they are not such perfect and .valid acquittances as Wood stipulated for as a condition precedent to his making a conveya.nee of his land. The proof in the record is not satisfactory as to who all constituted the firms of Shepherds & Hartsook, Shepherds & Co., and Shepherds / & Nelson. There may have been other members than the two Shepherds, Hartsook and Nelson; nor is the proof sufficient as to A. G. Shepherd being a partner in all the three concerns, nor is there any prbof of his authority to make the assignments, which were tendered and received by the court as sufficient' and valid acquit-tances ; for although it be conceded that every partner, whether of a dissolved or existing firm, as authority, implied by law from the relation of the parties, to collect, receipt for, assign, and, if you choose, release partnership choses and liabilities if done in the bona fide and legitimate course of partnership transactions on partnership account, and for the use and benefit of the partnership, it would be a preversion and abuse of that implied authority, and, I might add, an express authority, to allow one partner to assign to another the partnership assets to be applied to the individual purposes and uses of the assigned partner. It would be a breach of trust in both the assignor and assignee, and void as to the other partner. And such is the character of these assignments, apparent on the face of the transaction' — the one assigned and the other received the assignment, with knowledge of the forbidden purposé; unless, which does not appear, though I think very probably was the fact in this case, A. Shepherd, jr. was the owner of these debts, or if not, A. G. Shepherd was authorized, by the other partners to make these transfers, for this specific purpose.

The decree must, therefore, be reversed, and remanded *to the circuit court for further proceedings, with instructions, (there being already in the record sufficient acquittances of the two Shepherds,) if the appellee can and will in a reasonable time, to be determined by the discretion of the court, procure and file valid and sufficient acquittances of Hart-sook and Nelson, and any other outstanding partners of the three firms aforesaid, if any such there be, releasing and discharging Wood from all liability to them for an account of his indebtedness to said concerns, which were the subject of the submission and award and thereby appropriated to the individual purposes of A. Shepherd, jr., to repeat the same decree, or a decree similar to that heretofore rendered and now reversed for the reasons hereinbefore stated.

CEOPTON and NASH, Judges, concurred with THOMPSON, J.

TYLER, J-

I am for affirming the decree, because, if there be any objection to the acquittances, no objection having been made to their character in the court below, I think it is too late to make the objection here.

DECREE.

The court is of opinion, that the decree of the circuit court is erroneous, because of the invalidity and imperfection of the acquittances procured, exhibited and filed by the appellee in the court below, upon the sufficiency of which to protect the appellant against the claims of the partners not bound by the submission and award the said decree was predicated, and that it is erroneous for that cause alone. It is therefore decreed and ordered, that the same be reversed and annulled, and that the appel-lee do pay unto the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And this cause is remanded to the Circuit Superior Court of Eluvanna for further proceedings, to be had therein in conformity with the decree and opinion of the court, with instructions to allow the appellee a *reasonable time to procure and file perfect and valid acquittances of all the partners of the three firms of Shepherds & Hartsook, Shepherds & Co. and Shepherds & Nelson not bound by the submission and award, to wit: Hartsook & Nelson, and others, (if there be others than the two Shepherds, as to whom their acquittances appearing in the record are deemed sufficient to conclude them;) and if the appellee can and will, in such'reasonable time as may be prescribed, procure and file such acquittances, then to repeat the same decree, or render, a decree similar to that heretofore pronounced by said court; and upon the failure of the ap-pellee to procure and file the requisite ac-quittances in the time prescribed or allowed him for that purpose, to dismiss his bill at his costs.

Decree reversed.  