#### *James H. Imlay *against*Garret P. Wikoff.

on submission, *&g.*

Award of arbitrators. (a) Statute of frauds. Witnesses sworn by arbitrators. (b)

ON the eighth day of *September,*A. D. 1817, the parties executed a writing under their hands and seals, which, *149after reciting, that “ whereas divers disputes and controversies had arisen between them, touching and concerning the sale of certain lands in the township of *Freehold,*in the county of *Monmouth,*bargained and sold by the said *Imlay*to the said *Wikoff,*and the price thereof, and other matters relating theretoreferred and submitted “ all matters in difference between them, touching and concerning the matters and things above specified and particularly mentioned, to the arbitrament, final end, and determination, of Gen. *John Beatty, James Hughes,*and *John Hankins,*or any two of them ; so that their award be made and published on or before the first *Tuesday*of *November*then next.” And it was further agreed, that the submission should be made a rule of the Supreme Court.

The arbitrators, after being duly sworn, proceeded to hear the matters in controversy, and on the 3rd of *November*1817, duly made and published their award, in substance as follows. 1. That *Wikoff*pay to *Imlay*15,862 dollars, “ in full satisfaction and discharge of all claims and demands for the price or consideration money for the land, mentioned in the submission, and all matters in dispute touching the same.” 2. That on the payment of the money, *Imlay*should execute a good and sufficient deed for the land, “ as well that lying on the north, as on the south side of the road, now in possession o *Wikoff,*and sold to him by *Imlay*about *November*1804.” 3. That disputes &c. do cease &c.; and 4. That the costs be paid equally by the parties.

At *November*term 1817, Mr. *Wall,*having proved the award; and also the execution and tendering of a deed from *Imlay*to *Wikoff;*on behalf of *Imlay,*moved a rule to shew cause, why an attachment should not issue against *Wikoff*for not performing the award. At the same time, *11. Stockton,*jun. moved a rule to shew cause why the award should not be set aside.

The Court directed the argument, on both these rules, to be brought on at the next term.

*Five reasons were filed and relied on, for setting aside the award.

1. That the arbitrators made a plain mistake in matter of law, in *this;*that they charged the said *Wikoff,*on an *150alleged contract for sale of lands, without any agreement memorandum, or note thereof in writing, signed by fiim 0r any person by him lawfully authorized.

2. That the arbitrators admitted incompetent evidence: viz. a promissory note made by said *Imlay,*in favour of one *George W. Imlay.*

3. That the arbitrators, administered the oaths to the witnesses.

4. That the award does not decide and specify the bounds and extent of the lands to be conveyed.

5. That the award is vague and uncertain, and not final and' conclusive, because it does not set out the bounds of the land, nor fix the time of the payment of the money, by *Wikoff*to *Imlay.*

In support of these reasons, certain depositions were taken, which made out the following case.

The controversy between the parties, respected the sale of certain lands by *Imlay*to *Wikoff.*about which there was no agreement or memorandum'in writing, offered in evidence, except the submission, and a letter from *Wikoff*to *Imlay,*which mentioned this land, and stated that the *Vanarsdale*house and lot must be included, and he would have all or none. A verbal contract was made for the sale of the land in 1804, and in consequence thereof, *Wikoff*entered upon, occupied, and improved it, by the delivery and permission of *Imlay,*and remained in the peaceable possession of it, until the time of the hearing. A promissory note drawn by *Imlay*in favour of *George W. Imlay,*to which *Wikoff*was in no way a party, was offered in evidence, objected to and admitted; because it appeared that *Imlay*had bargained for the sale of this land, to said *George W. Imlay,*and it was agreed between him and *Wikoff,*as one of the terms of their bargain, that *Imlay*should rescind that contract, before their’s should operate; and the note was offered to prove, as well that said contract with *George W. Imlay*was rescinded, as the time when it was done. The note was also offered to support a claim against *Wikoff*for one half of its amount, but it was not re*ceived, nor any allowance made for it by the arbitrators, in that light.

The oath Was. administered to the witnesses of both *151parties, by Gen. *Beatty*one of the arbitrators, and no objections were made by either party. No dispute was-raised as to the boundaries, or the contents of the land, before the arbitrators; nor were any bounds set out in the award; but it appeared to the court, that *Burnet Montgomery*claimed a small part of the land within the enclosures now in possession of *Wikoff,*and that *Imlay*knew of this claim when he sold to *Wikoff;*but that the fence had been put, though unwillingly, where it stood, by the said *Burnet,*and had remained there for a long space of time.

*Wall*and *L. H. Stockton,*of counsel with the plaintiff.

*R. Stockton,*jun. *R. Stockton*and *Ewing*of counsel with the defendant.

The *counsel*for the defendant argued ; that

There are three kinds of arbitrament. 1. The old common law arbitrament. 2. Arbitration under the statute. 3. Reference. The two last are placed by the statute, upon the same footing; and the words “undue means *”*used in relation to both, let the court into the consideration of all questions, of error, in the proceedings, and improper conduct in the arbitrators, in cases of awards, as entirely, as in the referees, in cases of reference. And the court will set aside *awards*upon the same principles and for the same causes, which justify the rejection of *reports.*These causes are abundantly found in the present case.

1. The plaintiff claimed a specific performance of a contract for the sale of lands, and there was no admission of it in writing. It is not admitted in the bond. The words of the submission are, “touching and concerning the sale,” &c. It admits a sale, but denies and puts in issue, the legality of that sale; it specifies no terms of the contract. Besides, it is not to be presumed that the defendant, would, in submitting his case, admit the very facts which created the litigation. In like manner, the *letter*does not acknowledge the contract, or state the terms of it. There being then no proof or memorandum in writing, and a specific performance of the *152contract being claimed by the plaintiff, the case is within the words and operation of the statute of frauds.

But two reasons can possibly be urged against this application of the statute. 1. That there was a part performance : and 2. That the arbitrators- are not to be governed by the strict rules of law but may regard the equitable considerations of the case ; and neither of these is substantial. The words of the statute do not authorize a construction, which will compel a specific performance of a contract for the sale of lands, where t-here has been a part performance; and the decisions in chancery have not always been consistent upon this point. All the late chancellors and judges have lamented the construction first given to the act, and have laboured to get back to the true and rational construction of the words. They now deny part payment and many other circumstances, to be sufficient to take a case out of the statute; and require some act to be done by one party, which cannot be compensated by the other. And although possession and improvements have been considered a sufficient part-performance, yet this is only where the vendee and not the vendor comes in to be relieved. It has not even always been decided in favour of the vendee. The pendulum has vibrated. But were this not so in equity, yet no case, which approaches this doctrine can be found in law; nor is there any case of assumpsit for the consideration, where part performance has been pleaded and held good. But we are not here to adjudge a-s in a court of equity. Arbitrators never act as chancellors, except where the parties so intend and so express in their submission ; without this, it would be dangerous in the extreme to pérmit them to exercise equity powers. Here the parties had no such intention. As is always the case in arbitrations, they merely selected a tribunal of their own, and errors either in law or fact, will justify the court in setting aside their award. They act by the same rules as referees, and they must not disregard the law. The statute equally applies to both, and courts of *law*have never made an exception in their favour. “ Misbehaviour” is the same in both, and applies to mistakes, errors and misconduct. It being then manifest *153upon the very face of this award, that the arbitrators, have violated the statute, it must be set aside.

Upon the second reason. The note which the arbitrators admitted, was evidence of the plaintiff’s making, over which he had entire control, and with which the defendant had no connexion. It might have been a contrivance between the *Imlays,*to help out the plaintiff’s case. Nor could it legally operate, to *prove that the contract between them was rescinded. It was therefore illegal; and the award founded in some measure perhaps upon it ought to be set aside. Rules of evidence are as binding on arbitrators as referees. 1 *Bur.*701. *Penn.*933. *Fennimore’s*case.

Third reason. Evidence is necessary to enable the arbitrators to make their award. Without oath there can be no parol evidence. The witnesses must be sworn, and this can only be done by some person having competent legal authority to administer an oath. Now, though by the statute referees may do this, yet arbitrators have no such power ; it is no where given to them. *Oro. Eliz.*407. Before the statute respecting referees and arbitrators, a justice always attended and swore the witnesses; and this ought still to be done. The swearing therefore of these witnesses was erroneous and vitiates the proceedings. It is an error which consent of parties will not cure, even where that consent is most express; here it was at most only implied.

Fourth reason. Neither by reference to deeds or otherwise, does this award, set out, either the quantity of the land, or its boundaries; and those boundaries being in dispute, (as is manifest both from defendant’s letter and the testimony of Montgomery) there is uncertainty in the award: and nothing by which that uncertainty can be cured. Besides there is no time fixed for the payment of the money. This is not necessary in a report of referees, because judgment must pass upon it, and that fixes the time of payment. Not so in awards. And this circumstance renders the present award uncertain and invalid.

The *counsel*for the plaintiff, contended,

As to the first reason. The coutract was executed on *154the part of *Imlay*at the time of making it, and *Wikoff put*the possession of the land, which he has held and enjoyed ever since. The dispute between the parties was, in the language of the submission “ concerning the sale and price of land, bargained and sold by *Imlay*to *Wilcoff.”*The fact of the bargain and sale is admitted by the submission itself. This satisfies the requisitions of the statute of frauds and perjuries. A letter also from *Wilcoff*to *Imlay, recognizing*the bargain was given in evidence.

Again. As the contract was executed on the part of *Imlay, Wilcoff*who was enjoying the benefits of it, could not shield him*self from performing his part of it, by setting up the statute of frauds. If this was allowed, it would convert a statute which was designed to prevent fraud, into an instrument, to protect and support it. Delivering of possession has always been held part performance, 1 *Bac. Ab.*121. *Let. O. Pealce Ev.*232.

It is objected that the arbitrators are a court of law, and that it has never been decided, that part performance of a parol agreement will take it out of the statute, in a court of law. 2 *John.*223-4, is cited.

The first section of our statute, *Pat.*141, speaks of controversies, for which there is no remedy but by personal .action or suit in equity ; and authorizes parties to submit them to arbitration. Hence arbitrators are clothed with the powers both of a court of law and a court of equity, and may exercise the powers of either or both, as the nature of the case may require. It is no objection, that they determine, on equity principles, a matter remediable in equity.

Again. The court will not unravel the matter and examine into the justice and reasonableness of what is awarded. 1 *Stra.*301. *Goxe,*25. 1 *Burr,*274-7. *Addison,*.222-3. Neither will the court inquire whether the arbitrators made a mistake in point of law. 1 *Binn.*60. 9 *John.*212. *Kirby,*353. *Kyd, 85.*1 *Bac.*2139. *K.*Nor will they inquire whether the evidence received by the arbitrators would be strictly evidence in a court of law. 1 *Ball.*161. *Kyd, 95. Note E.*

Arbitrators are not tied down to the strict rules of law and evidence: *Goxe,*42. 3 *John.*369. 2 *Burr,*701. 2 *155*Eqvlty Gases Ab.*8. And it is much to be doubted, even if the arbitrators had made a mistake in point of law, whether the award could be impeached on that ground, inasmuch as the parties choose to submit the question of law to them. 1 *Bac.*239. The mistake in law must appear on the face of the award itself, or it is not inquirable into. 1 *Wash.*158. 1 *Hen.*and *Mun.*67.

As to the second reason. The objection is, that the evidence was illegal, because *irrelevant.*Now no case can be produced of an award being set aside for the admission of irrelevant testimony. Arbitrators have considerable latitude in the admission of testimony. 1 *Dali.*161. *Goxe,*42. They are both court and jury. 3. *Bac.*309. And courts will not scan their proceedings merely to hunt out technical objections. But the testimony was ^relevant and lawful; it was part of the contract between *Imlay*and Wikoff., that *Imlay*should procure from *George W. Imlay,*an abandonment of the contract which existed between them for the sale of part of the property sold to *Wikoff.*To effect this, *Imlay*gave *George W. Imlay,*his note for 500 dollars, which he subsequently paid off. This testimony therefore was necessary in order to show that *Imlay*had fully complied -with his part of the contract.

As to the third reason. The arbitrators have authority to swear the witnesses by the plain construction of the act. *Pat.*141, sec. 1 and 5. It is to be considered as a cause referred by rule of court or not. If the former, then the arbitrators have the authority expressly. *Pat.*142, sec. 5. If not a cause referred by rule of court, then the arbitrators derive their authority from the agreement of the parties, and they are a *trilmnal*constituted *with power to hear and determine,*and sanctioned by law. Every tribunal with power to hear and determine, has authority to administer an oath if it becomes necessary in the course of their proceedings. 12 *Mod.*393. 6 *Bac.*363. 9 *Slat. Let. B.*

If the arbitrators cannot administer an oath to the witnesses brought before them, no tribunal or officer can. It would be liable to the objection of *coram nonjudice.*Before referees w'ere clothed with authority by statute, to administer oaths to witnesses brought before them, the *156witnesses were sworn in the *court in which the cause referred pending:*hence it would follow, that no oath is necessary witnesses before arbitrators, and if so, it is no objection, that it was administered; mere matter of superogation or surplusage. Both parties in this case, had their witnesses sworn by the arbitrators, and the oaths sc administered if not legal, were good, being voluntary. 1 *Oroke,*470.

At common law, arbitrators heard witnesses without oath, and such is still the practice in *Pennsylvania,*even under a rule of court. 1 *Dali.*161. *Kyd,*95. *N. E.*

But the objection if good, ought to have been made at the hearing, and not being made, it is now too late to avail, 1 *Bos.*and *Pull.*91.

Fourth reason. - There was no dispute or controversy between the parties, concerning the bounds of the land sold by *Imlay*to *Wilcoff,*nor were they submitted by the terms of the submission, or in fact. Before the objection can prevail, it must be shewn, *that it was submitted by the terms of the submission, or was brought before the arbitrators for determination ; neither of which was done here. *Kyd,*172, 198. 1 *Tay.*37. 4 *Day,*137. 2 *Ld. Ray.*1076. Uo-w, 255-7. *Oran.*175.

Fifth reason. It was not necessary to set out the bounds of the land in the award. It is sufficiently described and designated. *“Id certum est quod cerium reddi potest.”*

It is no objection, that the award appoints no time for the payment of the money awarded. The law in such case fixes the time. *Kyd,*204, 268-9. *Coxe,*84.

(a)

*Coxe vs. Lundy, Coxe 255. Den, Snedekers vs. Allen, Pen. *48. Bell vs. Price, 1 Zab. 32,*affirmed on appeal, *2 Zab. 578. Hoagland vs. Veghte, 3*Zab. *92. Richardson vs. Lanning, 2 Dutch. 130. Hartshorne vs. Cuttrel, 1 Gr. Ch. 297. Veghte vs. Hoagland, 2 Stock. 45. West Jersey R. R. vs. Thomas, 6 C. E. Gr. 205. S. C. 8 C. E. Gr. 431,*affirmed on appeal, *9 C. E. Gr. 567.*

(b)

*Arbitration % 7. Nix. Big. 31.*

The Court adjudging that the reasons for setting aside tlie award were insufficient; ordered the *rule to he discharged,*and an attachment to issue against the defendant. (a)

(a)

*McClure vs. Gulick, 2 Har. 340, 435. McDermot vs. Butler, 5 Hal. 63, 158. Ruckman vs. Ransom, 6 Vr. 565. Den. Hendrickson vs. Hendrickson, 3 Har. 366.*