§ 1359. Connected with the last defence which we have considered is another which is called the plea of Arbitrament and Award. An arbitrament or award is the judgment or decree of persons elected by the parties to decide upon the matter in controversy between them. A mere recommendation by arbitrators that one party pay a certain sum to the other is not an award.1 A submission to arbitrament, as well as the award, may ordinarily be made either by deed or parol.2 The fact that a submission to arbitration is under seal does not make it necessary that the award should also be under seal. It is never necessary that an award should be under seal, unless it is required by the terms of the submission or by statute.3 But a verbal award will not be valid unless a verbal submission of the matters on which the award is made would be binding upon the parties.4

§ 1360. There is this difference between an accord and satisfaction, and an award, that in an accord, present satisfaction must be pleaded in all cases; but in an action for a tort, a previous award of damages, payable at a future day, may be pleaded in bar of such action at any time before the day on which the damages are payable.1 So, also, where, in an action for a tort, the award is made upon a submission, giving mutual remedies to each party in case of non-performance, it may be pleaded in bar to an action on the original cause of action, although it be not performed.2

1 Stoddard v. Gage, 41 Me. 287 (1856).

2 Comyn, Dig. Arbitrament, D. 1, E. 20. As to the nature and binding character of a submission, see Stewart v. Cass, 16 Vt. 663; Valentine v. Valentine, 2 Barb. Ch. 430; Howard v. Sexton, 4 Comst. 157. Where a submission to arbitration is first made verbally, and afterwards another is made in writing, the latter supersedes the former. Symonds v. Mayo, 10 Cush. 39 (1852).

3 White v. Fox, 29 Conn. 570 ( 861).

4 French v. New, 28 N. Y. 147 (1863). And see George v. Farr, 46 N. H. 171.

§ 1361. But in an action of debt an award ascertaining the debt and its amount, and directing payment thereof, cannot be pleaded in bar of an action upon the original demand, because the money, until paid, is due in respect to the original demand. Where the demand, however, is for the delivery of goods, and the award directs a payment of money, the award may be pleaded in bar, because it alters the nature of the demand.3

§ 1362. An award should, in the first place, be made pursuant to the terms of the submission.4 Yet if it exceed them and determine matters not submitted, it will only be void as to such matters,5 unless the matters in respect to which it is void be so complicated with the others, or so conditioned upon them, that the two cannot be separated, in which case the whole award is void.6 Thus, if the award be that each party shall do an act, and the act to be done by one party is beyond the submission, and is the consideration for the other act within the submission, the award will be void.1 Wherever the objectionable matters cannot be separated from those which are good, the award is void as to all.2 Where several distinct matters are submitted to arbitration and distinctly awarded upon, the award may be void for a part, and yet good for the residue.3

1 Bacon, Abr. Arbitrament, G. note.

2 Gascoyne v. Edwards, 1 Y. & Jerv. 19; Allen v. Milner, 2 Cromp. & Jerv. 53.

3 Allen v. Milner, 2 C. & J. 53.

4 Goodall v. Cooley, 9 Foster, 48 (1854).

5 Doe d. Body v. Cox, 4 Dowl. & L. 75; Com. Dig. Arbitrament, E. 8, E. 19; Cargey v. Aitcheson, 2 B. & C. 170; Butler v. The Mayor, 1 Hill, 489, 495; Manser v. Heaver, 3 B. & Ad. 295; Thorp v. Cole, 2 Cromp., M. & R. 377; Auriol v. Smith, Turn. & Russ. 128; Nichols v. The Rensselaer Co. Mutual Ins. Co., 22 Wend. 125; Rixford v. Nye, 20 Vt. 132; Addison v. Gray, 2 Wilson, 293.

6 Lincoln v. Whittenton Mills, 12 Met. 31. In this case Wilde, J., said: "This case turns on the question whether the award of arbitrators, relied on in the defence, is valid and binding on the parties to the present suit. An award is in the nature of a judgment, and, to be valid, must be certain and decisive as to the matter submitted, so that it shall not be a cause of a new controversy. Samon's Case, 5 Co. 77; Bac. Abr. Arbitrament and Award, E. 2. And although an award may be good in part, and in part void, yet this rule applies only to awards in which the parts of the awards are distinct and independent of each other. So an award may be conditional; but if the condition leads to a new controversy, the award is void." See, also, Johnson v. Latham, 2 Lowndes, M. & P. 205; 4 Eng. Law & Eq. 203; Schuyler v. Van Der Veer, 2 Caines, 235.

§ 1363. Where the award is defective, and does not decide upon all the matters referred, it is bad; for the decision of the whole may be a condition precedent, or the essential consideration of the submission.4 But if it be made in general terms, it will be presumed to cover the whole matter submitted; and a verdict for one or the other party, when intelligible and certain, will be sufficient, although it be not said to be made "of and concerning the premises."5 So, also, if the submission be "of all claims," an award of all claims, of which the arbitrators had knowledge, is good, although, in fact, there were other claims not brought forward by the parties.6 And, in order to impeach an award made in pursuance of a conditional submission, on the ground only of part of the matters being decided, the party must distinctly show that there were other points of difference, of which express notice was given to the arbitrator, and that he neglected to determine them.1

1 McNear v. Bailey, 18 Me. 251; Sutton v. Dickinson, 9 Leigh, 142. 2 Comyn, Dig. Arbitrament, E. 19; Auriol v. Smith, Turn. & Russ. 128; Stone v. Phillipps, 4 Bing. N. C. 40; Culver v. Ashley, 17 Pick. 98.

3 Barrows v. Capen, 11 Cush. 37; Parmelee v. Allen, 32 Conn. 115 (1864); Day v. Hooper, 51 Me. 178. In an action brought to recover a sum of money awarded by arbitrators to be paid by the defendant to the plaintiff, it is no defence that the arbitrators ordered the defendant to do something else which they were not authorized to do by the submission, there being no connection between them. Averill v. Buckingham, 36 Conn. 359 (1870). So in a submission at common law containing no stipulation as to costs, the arbitrators have no power over them, and if they award costs, so far it is void. Hanson v. Webber, 40 Me. 194 (1855); Hubbell v. Bissell, 2 Allen, 196; Caldwell v. Dickinson, 13 Gray, 365.