MAY TERM, 1768.

Lib. D. D. No. 14. fol. 630. 452.

#### James Drane *against*Charles Hodges.

THIS was an action of trespass for breaking the close-called Greenfield, lying in *Prince George’s*County.

At the trial of this cause, the plaintiff offered in evidence to the J ury an arbitration bond in the usual form, and also the following award, (to have weight with them as far as it might,) to prove the location of *Brock*Hall, located on the plat returned in the cause, viz. *11 Prince*“ *George’s*County, ss. Whereas we, the subscribers, “ are indifferently chosen, elected and named arbitrators, “■ as well on the part and behalf of the within named “ *Charles*Hodges, as on the part and behalf of the within “ mentioned *James*Drane, to arbitrate and award con- “ cerning the third bound tree of the within mentioned “ tract or parcel of land called *Brock*Hall, whether in the st second course thereof, viz. N. N. W. 250 perches, it “ shall stop at a marked hickory, alleged by the within “ named *James Drane*to stand in or near the place where “ the third bound tree of the said *Brock Hall*did stand,'or “ whether the said course shall be continued to the stump “ of a white-oak, alleged by the within mentioned *Charles*“ *Hodges*to be the third bound tree of the said land. We “ do therefore, after hearing the allegations and evidence, “ as well on the part and behalf of the within mentioned “ *James*Drane, as on the part and behalf of the within “ mentioned *Charles*Hodges, award, rule, and decree, that “ the said tract of land in its second course, viz. N. N. W. “ 250 perches, shall stop at the within mentioned hickory, “ the place alleged by the within mentioned *James Drane.*“ Given under our hands and seals this 3d day of October, “ 1765.” Signed and sealed by the three arbitrators.

*263The defendant objected to the reading of the bond and award in evidence. The Court were of opinion that the bond and award should be read in evidence, and they were accordingly read. To this opinion the defendant excepted. The verdict was for the plaintiff, and the defendant appealed to the Court of Appeals.

In the Court of Appeals, *February*Terra, 1771.

Jennings, for the appellant.

The present argument arises on an exception taken in the Court below, in a cause wherein *James Drane*was plaintiff, against *Charles*Hodges, defendant, in an action of trespass for breaking his close and cutting his trees.

Tim chief point in controversy between the parties on the trial of the issue, was in respect to the bounds of a tract of land called Greenfield, which was located differently on the plat returned in the cause; and the plaintiff, to support the location in the manner he contended for, offered in evidence an award made pursuant to bonds of submission, whereby the arbitrators had fixed the tree-agreeably to his pretensions. This evidence we thought altogether improper, and therefore prayed the opinion of the Court that it might be overruled; but our application was rejected, and the plaintiff was permitted to avail himself of this award by reading it in evidence to the Jury. A bill of excéptions was tendered to this opinion of the Court, and, on the exception taken, the matter now comes to be heard and determined by Your Honours ; and as, in my apprehension, the Court below were mistaken in their determination, it being contradictory to every rule of evidence, I make no doubt but Your Honours will reverse the judgment.

From this short state of the fact, Your Honours perceive the only question is, whether an award made pursuant to bonds of submission, is admissible in evidence, in *264an action of trespass *quare clausum*fregit, to prove the location of the land.

In order to explain this matter, I shall lay down the fob l°wing rule, which is, that nothing shall be admitted in evidence, that would maintain a distinct suit. The reason of this rule is apparent as it prevents the party from being twice charged, which would be the consequence of admitting this kind of testimony, as will be evident from a little consideration; for otherwise a person might have it in his power to increase his damages by offering such evidence as would support a distinct action, and, when he had reaped this advantage, might commence suit on the same evidence, and, by that means, recover a double satisfaction. *Salk.*119. 642. *Vide*2 *Stra.*1027. 1 *Stra.*140. 61» *•3 Bac. Abr.*217. 12 *Fin.*164. pi.' 6. *Moore,*340. pi. 460. Thus, in the present instance, a distinct action may be brought on the arbitration bond, and a recovery had in the suit for a non-compliance of the defendant with the award; therefore, by admitting the plaintiff to give this award in evidence to prove his location, and thereby to recover his damages, he burdens his adversary with a double charge; nay, he may keep this award hanging over his head, to be produced in evidence on every new contest, and afterwards put the bonds in suit against him to obtain a further recompense.

Another inconvenience will ensue from this proceeding, as it would be a way to take advantage of an award without giving the opposite party an opportunity of excepting to it, as it will be thrown in upon him by surprise in this collateral manner ; and though he might, on proper notice, have been able to shew many exceptions, both as to its legality and the mode of obtaining it, yet it will be impracticable to do this under these circumstances; and, however fraudulent the conduct of the arbitrators might have been, yet will they remain safe from detection, and the party reap all the advantage he could wish from their proceeding. If a suit was instituted upon the bond, the party *265would, at all events, have a right to crave *oyer*of the bond before he could be obliged to plead.

Further, it is a manifest violation of another rule of evidence, that nothing shall be offered in evidence, that would support an action of a superior nature. *Vide Gilb. L. E. 155.*c. 5.

This rule is grounded on the same reason as the precedent one, that is, to prevent a double vexation, it being a doctrine well established, that a recovery in an inferior action is no bar to one of a superior nature. Thus, in an action on the case, a bond cannot be offered in evidence, it being a specialty, and a contract of a higher nature than the one in dispute, and, should a suit be commenced on the bond, the recovery in the inferior action could not be pleaded in bar to *it;*from whence the consequence would follow, that the defendant would be doubly charged, and the plaintiff doubly satisfied, for one and the same injury. This was the case in 2 *Stra.*1027. for, if the plaintiff had recovered the money in the first action, yet, if he had been sued on the covenant, he would have been compellable to pay it over again. Our case is exactly similar; The party commences a suit for the trespass alleged in his declaration ; to entitle himself to a recovery of damages, it was essentially necessary that he should establish the location of his land; to do this he produces a specialty in *evidence;*he therefore, by this piece of evidence, benefits himself in the action of trespass, and puts a considerable sum of money in his pocket. Hereafter, when he is disposed to commence a suit on this bond, would a recovery in the action of trespass be pleadable in bar to it? It cannot be contended for. To establish this judgment, therefore, would be introducing all the mischief the law intended to guard against, and I make no doubt but Your Honours concur with me in opinion that the Court below proceeded erroneously in permitting this evidence to be given. Take it, then, on either of the principles suggested, the point is clearly in our favour. The first rule is, “ That nothing shall *il*be admitted in evidence, that would maintain a distinct *266“ suita distinct action for a different matter may be brought on this *bond; ergo,*it was not admissible in evidence. Second rule, “ That nothing shall be offered in “ evidence, that would support an action of a superior na- “ ture j” an action on the arbitration bond is of a superior nature; *ergo,*it ought not to be given in evidence.

' These are the objections we urge against the admission of this kind of testimony, to which no satisfactory answer has been given, nor have the authorities cited on our part been in any manner impeached. The rules laid down are clear and incontrovertible, and they have no other way to elude the force of them, than by setting up an imaginary distinction between offering this award as evidence generally, but not as conclusive, by which, I think, we may infer that they acknowledge the objections are fatal, unless they are answered by this distinction *;*it will therefore be incumbent on them to shew, that the- rules respecting the admission or rejection of evidence are only applicable to such as comes under the denomination of exclusive evidence, and not to such as the Jury have a discretionary power to reject or admit. There is no rule to justify this distinction ; common experience teaches us the contrary ; and if the testimony offered is irregular, the party shall not avail himself of it, under pretence of not relying on it as conclusive; and I defy them to shew that there is even *scintilla juris*to support this doctrine. The gentlemen certainly ’ never considered the consequence of this position ; if they had, they would not have laid so much stress on the argument; for, according to this reasoning, interested persons, felons, hearsay evidence, and, in short, every matter whatever, may be offered to the consideration of the Jury, on the ground of its not being conclusive on the party. Is the testimony of any individual whatever of such weight, that the Jury are obliged to give implicit faith to it ? The gentlemen will not assert it, or say that such evidence is *conclusive;*and yet there is no manner of doubt but an exception may be taken to such witness, either on account of interest, or any other matter that *267would incapacitate him from giving testimony. So, a bond cannot be given in evidence in assumpsit, and yet it is not conclusive. The distinction, therefore, between conclusive and inconclusive evidence, is of no weight, unless to manifest, that the gentlemen have no other pretence to support their argument, than by a subtlety of their own invention, unsupported by any law or authority; for there is no such distinction to be found in the books.

But the gentlemen, conscious that these objections are rather specious than solid, have urged that this award may be considered as an agreement of the parties that the tree should be at this spot, the arbitrators being authorised by them for that purpose ; therefore what the arbitrators do is to be looked on in the same light as what the parties themselves do. The argument amounts to no more than this, that though the parties only submitted themselves to the award of the arbitrators, yet that the plaintiff may set up this award to answer any purpose he thinks proper, however foreign to the intention or design of the parties at the time of the submission. What right have they to set it up by way of evidence on á different suit? Did the parties agree it should have such an effect ? Trds is not contended for. I am sure it does not flow from operation «flaw. I will even suppose the arbitrators had expressly declared that the award returned by them should be allowed in evidence on any controversy between the parties, it would have been void as being beyond the terms of the *submission;*for it is an indubitable rule, that where a person does an act by virtue of a particular authority, his conduct must be conformable to the power vested in him, and, if he exceeds his authority, his acts are so far void. What was the declared intent of the parties in this instance ? It was to submit the matter in dispute to the arbitration, and to the arbitration only, of indifferent persons. • The consequence of this was, that if either of the parties proved refractory, he should be subject to the action of the other; for this is the only punishment the law inflicts on him, and it will puzzle them to shew, that one party can, in a Court *268of Law, take any other advantage of the non-performance of an award than to commence an action, or prosecute the party for the contempt, according to the circumstances of the case.

This shews, that the assertion as to the consent of the parties, is unwarrantable. All they agreed to was, that an award should be made, and that it should have all the eifects incident to it as an award, but no other. Now, the only effect of an award, and indeed the sole benefit resulting to a party from a declaration in this manner, is a right of action vested in him against the person refusing to perform it; and this is the only punishment they intend to subject themselves to, for it is the only one the law knows. But to produce it in evidence, is giving it an operation not to be justified on any legal reasoning, and which the parties never had in contemplation at the time of executing the bonds.

Besides, a moment’s consideration will' satisfy us, that this will not answer either of the objections, there being a wide difference between giving the act of the arbitrators, and the act of the parties in evidence, on a dispute of this nature. What the parties have acknowledged may be given in evidence with propriety, it being no infraction of the rule before suggested; that nothing shall be given in evidence which would entitle the party to bring a distinct suit, or one of a superior nature.

There is another principle of law, that the admission of this evidence would infringe; that is, that an award cannot transfer real property. If this was admitted, it would indirectly have such an operation.

Deeds are the evidences of the title of lands, and also of the quantity of the land, and of the situation of the land conveyed by them. If awards there were admitted in evidence to prove the situation of lands, they might contradict the deeds, and the arbitrators might award a location of land different and contrary to that which might arise from the construction of the deed.

*269T. *Johnson, Hall,*and *S. Chase,*contra, (Short notes.)

Said, the determination of the Court below had been made after two solemn arguments ; that the counsel for the appellant should make it appear that a suit might be maintained on the arbitration bond. They contended, that no action could lie on the bond, and that the only use they could make of it was to offer it in evidence to prove the location of the land; that the parol agreement or confession of *Hodges*himself would be admitted in evidence to fix a boundary, so the act of the arbitrators may be substituted in lieu of such confession or agreement. The paw-ties, by submitting their difference to arbitration, agree to abide by the act of the arbitrators, and the determination of the commissioners might to be considered as the agreement of both parties. It was very common for persons to refer their disputes respecting the boundaries of land to arbitration. Must such settlement of bounds be of no avail, and be not admissible in evidence ? Many persons hold their possessions under awai'ds similarly circumstanced : Must they lose their possessions, having trusted to the decision of the arbitrators? It would be for the ease, happiness, and convenience of the people, to admit awards óf land to be evidence. And to shew that the title to land might be settled by award, 3 *BL Com.*16. was cited, who, though he says, that the right to real property cannot pass by a mere award, *vide*Dy. 183. pi. *57. CrO. Eliz.*223. yet he says this is a mere subtlety in point of form, and had its rise from feodál principles; and the only reason why it was not permitted to pass the title, was because the land might have been aliened collusively, without the consent of the lord, whose consent was necessary for the alienation. . Contended, that this reason no longer prevails ; and *Blackstbne*says, there is no doubt but an arbitrator may award a conveyance. Then why not admit the award as evidence of the boundary ? Courts of justice have been more liberal in the construction of awards of *270late, than formerly; as they are for the furtherance of justice, and for the quieting of controversies. 1 *Bac.*139. 1 *Burr.*277, 278. The award in this case was good, for the commissioners have acted within their authority, and according to the submission. And to shew what acts were admissible in evidence, they cited *T.Ray.*84.1 *Stra.*162. 1 *Burr.*146.

D. Dulany’s opinion.

IT is unnecessary to consider the qualities of an award, but as they respect the present dispute. An award, in this view, may be described under the character of a judgment, given by judges chosen by the parties, to decide some matter in controversy. Arbitrators, as private men, having no authority independent of their commission derived from the voluntary act of the parties, *that*is necessarily circumscribed by the terms of *this. 1 Bac.*131. 139. It is self evident, that the parties cannot confer an authority1; which they cannot themselves exercise. *Ibid.*132.

Having regard to the subjects of arbitration, with the view above suggested, an award may determine the right thereto, by its own proper operation, or direct the means by which the right may be acquired or settled. This is a consequence from the premises, but will be more clear from instances. When .the subject is *(e. g.~)*a chattel transferable by the party without solemnity, the award may *sua vi,*establish the right of property. *Ibid.*135. *Dy.*182. pi. 57. *S. C. Cro. Eliz.*223. When the subject is *(e. g.)*a freehold not transferable without the solemnity of conveyance, an award declaring the right of property is void, because the necessary solemnity is wanting ; and yet the right of freehold is as submissible, as the property of chattels. The difference is, that in the latter case the property is determinable, in the former it is not; but a further act is requisite. Considering the award as remedial, an action will lie on award to recover in debt; but not in ejectment. *271
      *Ibid.*132. 1 *Ld. Raym.*115. 3 *Black. Com.*16. The case *Vin.*tit. Partition, 221. *in*margine, will serve to illustrate and confirm this idea. The partition was the subject; the award was precise in the allotment of severalty, but held to be void; because since 29 *Car.*II. there could not be partition without deed. That which is void, is in the consideration of law, a nonentity. A conveyance intended, but not perfected according to the legal requisites, is no conveyance ; *i. e.*it has no operative quality of a conveyance, so of award. *Dal.*43. pi. *27. Plow. Com.*399. 10 *Rep.*131. 6 *Har.*12. 5 *Co. 78.*The case in *Strange*of the *post mortem*inquisition, as far as it goes, is to the same effect; for it was admitted in evidence, because void*able only.*An award being in the nature of a judgment, must therefore, have a determinate and final effect. *Bac Abr.*139. 147. 2 *Stra. 10.*24. *Burr. Rep.*277, 278. There can be no accidents, to speak in the language of Lord *Hobart,*without a *substratum.*That which does not exist, cannot have any positive quality; to apply the epithets determinate and final, to a mere nullity, would therefore be to confound language. For the reasons assigned, I am of opinion that the declaration of the arbitrators, was a mere nullity, and therefore, ought not in any manner to have affected the appellant.

On this part of the case, it may also be observed, that by the contract of the parties, they were to be bound by *award only ;*but there has been *no*award, and if either of them be affected by something else than award, their contract will be contravened.

But admitting the award to be such, as that an action would lie, what will be the consequence ?

By its proper vigour, or efficacy, the award cannot affect the right of freehold, or be the means of settling it in any other respect, than as it might induce the party in point of discretion, rather to cede the right, than incur a forfeiture of his bond. Had a conveyance been awarded, it is clear that a conveyance could not be compelled, and the penalty also be recovered. In order to avoid the objection of a *272double satisfaction, it was argued for the appellee, that no action can be maintained on the award; the consequence of this position I have already considered.

Inconvenience was urged, and the argument was furnished with the aid of supposed cases, wherein possession had followed the decisions of arbitrators; but this is not speaking *ad*idem, for the present case is a recent transac-, tion, and the possession had been disputed. It was suggested that *many*possessions depend upon awards. *Many*is a very vague term. That there are possessions depending on awards, is probable; but not that it is a very common case, for I cannot recollect an instance in any cause, whilst I was at the bar. But, allow the argument to all the extent of fact, and it will fail in its conclusion — that men would lose their *possessions;*for where there has been an award, and an acquiescence under it, equity will preserve the possession; (among other) *vid. 3 Ch. Rep.*30. 2 *Fern.*24. 1 *Hard. Rep.*62. 3 *P. Wms.*187, 188, 189. So that the inconvenience will be, that the party must submit to be protected by a remedy in equity, an inconvenience that does not much alarm, because it occurs in a great variety of instances. There is another inconvenience, I more dread; that of unsettling the law, making apprehension the ground of decision, (which, in other words, is making the temper of Judges the rule, if that which is hardly the same in any two men, may be called a rule,) and confounding jurisdictions. Lord *Bacon’s*observation “ *optima est lex quce arbitrio judiéis minimum relinu*quit, *et optimus judex qui minimum sibi*assumit,” would be a good motto for a Court of Law.

Upon the whole, I am of opinion, that the judgment of the Provincial Court ought to be reversed, but without costs.

At *February*term, 1771, the Court of Appeals *reversed*(he judgment of the Provincial Court, without costs.