Con. 7. If arbitrators refuse to hear proper evidence it is I. CH. 13. misconduct and vitiates their award. So partiality or cor- Art. 2. ruption in any one of the arbitrators, or the concealment of material facts by either party, if such facts would produce a different award, is cause sufficient for setting aside the award, 17 Johns. R. and under the plea of no award, the deft. may show that the 405-16 do. arbitrators awarded on a matter not submitted to them. 227. 8. The revocation of arbitrator's authority is a contempt, 1 Jacob & the submission, being by rule of court. Walker's R. 511. 9. Con. And 2 N. H. Rep. 26. But if the parties make ART. 4. a private agreement to submit all demands to arbitration, and Con. one is so omitted, an action lies thereon, and for the breach of the agreement; and the award on the other demands is binding, if the spirit and mutuality be not thereby violated and the surety in such an agreement need not be notified of the setting of the referees. 97-429. All the referees must meet and hear, but a major part may sign. 484. 17 Mass. 458. 4. Con. Where parties referred certain matters in dispute ART. 5. 1 to arbitrators to award by a certain day, and if not agreed to Con. choose an umpire, they finding they could not agree chose 1 Rand. 449– an umpire, who made his umpirage before the day appointed 456. for the arbitrators to make their award. Held, this umpirage was good. 2. An award that requires the surety to pay, as well as the principal, is mere surplusage as to the surety; award good. 3. Everything is to be presumed in favor of an award was an action on the arbitration bond against the surety, the principal being dead; pending the action, the surety died, and the suit was revived against his administrator. Plea, nil debet, and a special verdict. Judgment in the superior court for the administrator, reversed in the supreme court of appeals. The court said they could find no direct authority for the umpire's so early making his umpirage, but decided on general principles. But see ch. 141. a. 3. s. 18. A and B submit all matters in difference between them in a 4 Rand. 275281, Rison v. particular pending suit to C and D and to such umpire as they Berry. shall choose, and their award to be made the judgment of the court, and the two arbitrators and umpire act together and make a joint award. It is valid; and though the award does not state the third person signing the award had been chosen umpire by the arbitrators, that fact may be proved by other evidence. 2. If the third person signing were a mere stranger the award would be good. It was proved by parol evidence the third person was chosen umpire. If a stranger join, this does not vitiate the award. As to the joining, the Beck v. Sarsubmission was to A and B and their umpire, and their award geant, 4 to be the judgment of the court. Authority, Bulstr. R. 184; see Soulsby v. Hodgson, ch. 141. a. 3. s. 17. Vol. 5. Taunt. 232. I. CH. 13. 16 Mass. R. 396-7. 3 Greenl. 421424. 4 Pick. 179 Bellows. 4. The submission was by rule of court, and the referees awarded that the deft. recover the costs of action. Held, a good and final award, and is sufficient to warrant a judgment, the plt. takes nothing by his writ. Was in a pauper case, and the question referred was, if the income was £3. The court said the award by implication showed the referees must have decided the question. 2. If an attorney has power to prosecute or defend the action he can refer. 5. What is an award? The arbitrators write on the back of the bond stating they had met according to appointment on the within business, and agreed,' &c. Held, to be an award of and concerning the premises.' 2. Where a submission is of divers subjects distinctly enumerated, if it appears from the whole award, that all the matters submitted have been adjudicated upon, by the arbitrators, it is sufficient, though each particular is not specified in the award. The arbitrators also agreed A pay B (the parties) $- for his betterments on the within lot, in February next; also $6 for our trouble. 6. Many points decided as to partnership rights in certain 198, Brown v. water privileges in Concord, with the buildings thereon, machinery, fixtures. Several in an award, as to deeds, tenders, &c. decided. One point, after the price had been fixed by the referees chosen pursuant to the indenture, it was too late for the deft. 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: another, that the tender by the plt. of a deed, purporting to convey the estate by metes and bounds, but not containing the words in the agreement, all his rights, title, interest, and enjoyments,' was sufficient: another, that the plt. might rely on such tender without producing the evidence of his title; the burden being on the deft. to show such a defect in the title as would justify him in refusing to accept the deed, &c. Fourteen pleas pleaded. 7. Award must decide finally the whole matter submitted, and be confined to it: must be certain and conclusive of all the matter referred. 2. The arbitrators decided the plts. have credit a certain sum on account of lands sold to the deft. provided they grant to him a clear good title to the land; but they set no time when the title should be made. Held, the award was void, as not being final and conclusive. 3. A court of equity either enforces an award as it is made, or sets it aside, 11 Wheat. 446 if in any respect defective; does not confirm as far as it ex-467, Carno- tends, nor supply omissions. 4. Where a bill is filed to set Christie & al. aside an agreement or conveyance, the conveyance cannot be established without a cross bill filed by the deft. chan & al. v. ART. 9. 1 Con. Report on this statute by referee recommitted; one neglected to sit again. Held, the other two could make Greenl. 64, 68. an award similar to the former one, with additional costs. Con. After an arbitrator has made and published his award, he can- I. CH. 13. not reexamine even to correct an error. Peterson, plt. in error, Art. 9. v Loring, 3 Greenl. 85. Con. 5 Con. Held, the annexing the writ is a sufficient demand. Held, if the referees under this act agree in their report before 1 Pick. R. 504. the court sits, but date it the 2d day thereof, the date cannot P. 269. be altered, nor the report received. Exceptions lie to a judgment of the Common Pleas, on a 2 Pick. R. 570. report of referees appointed under a rule of that court, though it state that the judgment be final, and so the agreement of the parties. See stat. 1820, c. 79, s. 5 and 6. 9 Con. The statement of a demand on which a rule of 1 N. H. Rep. reference is made before a justice on statute of June 21, 1797, 190, 191. must show on what account or for what cause the demand is made. § 11 Con. A parol promise to perform an award, made be- ART. 10. fore or after the award, binds the parties. 2. A note for the Con. true sum is valid, though signed by consent, without knowing 2 N. H. Rep. the contents of it; but in an action on such a note before nego-Page v. 233-236, tiated, or on such a parol promise, any defence may be made Pendergrass. that could prevail in an action on the award itself. If A sub- P. 484. mit for B, his power must appear in the proceedings, or they may be reversed in error. An award is wholly void if it in- P. 429. clude a note not owned by either party to the award at the time of the submission; may include costs of reference. Is void on P. 216, 217. a submission before a judge of probate, except it concern claims rejected by commissioners; as the statute of Feb. 11, 1791, only authorizes the submission of such claims in the cases of insolvent estates. § 10. If the parts be connected, and one is void, the whole ART. 11. is so as where referees awarded A, one party, to deliver the Con. said farm to B, the other party, and B to pay, &c. Void as to the farm for uncertainty, no farm being before mentioned in the papers, and there being no description of any farm; and this part being connected with the money, &c., held, the whole award was void. 2. Bond of submission dated August, 21, 1813, and award August 23, 1813, and referred to the bond as dated 21st of August last past, the court, in support of the award referred last past, not to August, but to the day, the 21st. As to the words last past, were cited Allen v. Watson, 16 Johns. R. 205; Fisher v. Pimbly, 11 East. 187; Macomb v. Webber, 16 Johns. R. 237; 1 Šalk. 72; 11 Johns. 103; 2 Mod. 169; 1 Ld. Raym. 715; 12 Mod. 534; Dyer, 376; Cro Jam. 646; As to the void part, &c. Bedam v. Clerkson, 1 Ld. Raym. 123; Cockson v. Ogle, Lutw. 550; Thinne v. Rigby, Cro. Jam. 314; Kyd on Aw. 246, 259, 260. Void in part, 1 Greenl. 300, 304. I. CH. 13. Art. 12. ART. 15. Ch. R. 405. 6. In this case, all matters of difference were referred to an arbitrator, but no mention of costs. Held he had power over the costs of the cause, but not of the reference; the American practice is generally otherwise. 1 Barn and Cres. 277. 22. An award may bar dower, by way of estoppel, though in part void, and though it passes not the title to real estate. 17 Johns. R. See this case at large, Estoppel, ch. 160, a. 2. s. 10. There405.-11 Johns. to may be added further points therein decided. The autho2 Cowen. 638 rity to award costs is necessarily incident to the power of arbitrators. 2. The rule is, that when one part of an award is irreconcilable with another, the first part shall prevail, and the last be rejected. This must depend on parts connected or not. -652. 5 Cowen. 197 -200. 5 Cowen. R. 425. Gould and § 23. On a general submission, so that the award be made on all matters of controversy between the parties, of which the arbitrators have notice, and they do not award on all whereof they have notice, their award is void. See a. 11. s. 9. same law, and a. 13. s. 11. 24. A court of law will not set an award aside, except the arbitrators have acted dishonestly or corruptly. The court does not examine the merits, on an application to set it aside. 2. Burr. 701; 1 Stra. 301; 1 Saund. 327. d. 25. Assumpsit for goods sold, &c., and common accounts. others, v. Og- Plea non assumpsit, and other pleas and reference. Held, if a den. 6 Cowen. question of law arise before referees, brought to this court and decided, it will order a special entry on the record, so as to present the same question in the court of errors. 52, 53. ART. 1. CHAPTER XIV. ACTION OF ASSUMPSIT. ASSIGNMENTS. 7. Assignments in Equity. It is a well settled rule, that the assignee of a chose in action, takes it subject to all the equity of the assignor at the time, but not to any latent equity residing in a third person, against the assignor. So the assignee of a contract, for the sale and purchase of lands without notice, is R. 441-2 do. subject to all the equity that existed between the parties, and can require a specific performance only on such terms as the assignor was entitled to. On appeal. 2 Johns, cas. 438. 2 Johns, Ch. 479 2 Johns. R. 545. Livingston v. 512. Kane v. Blood Ch. R. 90. § 9. An assignment of shares or stock in a company incorgood, 7 Johns, porated, passes all the growing profits thereon; and on action, at law, to recover such profits after ascertained and declared, lies at the suit of the assignee. Assignment of a trust, how in fee. See ch. 114, a. 17, s. 20. ASSIGNMENTS. 353. Con. 41 $10. An assignee of a chose in action, takes it subject to I. CH. 14. all equities existing against it at the time of the assignment, Art. 1. though he have no notice of such equity. 2. B recovers judgment against C, and A against B; and A assigns his judgment to C. This C may set-off against B's judgment, so recovered Chamberlin v. against C. (See set-off, ch. 168.) And when C's right to set-off Day, 3 Cowen, is vested, it remains, though B afterwards assigns his judgment. 11. The assignment of a bond or debt secured by mortgage, carries the mortgage with it, as appertaining to the debt, the principal thing; and though the mortgage be not delivered over, the mortgagor having notice of the assignment cannot pay the mortgagee, and if he do so, and take a discharge, he must still pay the assignee. a 5 Cowen. 202 Mackie v. Cowen, 548 $12, Appeal from chancery to the court of errors, held by najority. 1. The assignment made by Cairns to his trustees is void, by reason of the trust or provision contained therein for 586. the benefit of himself; the decree of chancery, so far was affirmed. 2. The judgment confessed by him to take effect if the assignment is void, and the decree of chancery affirming said judgment was reversed. The general object of the assignment of Cairns' property, was the payment of his creditors; and in the judgment, the reservation to Cairns himself was omitted, but deemed void, because, a part of the tainted assignment not abandoned so as to revest the property in the assignor before he confessed the judgment. 3. A contract or judgment illegal and void in part, as being against a positive statute, is illegal ART. 3. and void in toto. Con. 2 Con. Feb. 10, 1820, Brooks attached the estate and 7 Wheat. 556credits of his debtor, Fitzburg, on the Maryland act of Nov. 581. Marbury v. 1795, ch. 56. Levied on in the hands of Marbury, who was Brooks, in erduly summoned as garnishee, Feb. 11, 1820. He pleaded he ror. had no effects of Fitzburg, the absconding debtor, in his hands. Thereon issue was joined, &c. Verdict for Brooks, and judgment against the garnishee. Held a debtor has a right to prefer one creditor to another, in payment, and his private motive for giving the preference cannot affect the exercise of the rights, if the preferred creditor has done nothing to procure it. What will avoid or not the deed of assignment. 4 banks were the preferred creditors. 3 Pick. 495— 506. Peters & al. v. Ballestur Trover for several hogsheads of molasses. Plea the general issue. The parties agreed before the vessel sailed, that the bill & al. of lading of her cargo should be assigned as security for a debt. But she sailed before it was made; but by antedating the assignment, it purported to have been made before she sailed. No possession of the property was taken. This assignment held valid as to the parties and strangers not acquiring a legal title to |