#### DEN ON DEMISE OF WILLIAM A. WHITFIELD & AL. *vs.*HATCH WHITFIELD.

In an action of ejectment, where an arbitration had been agreed upon, and the award was not made until after the death of one of the lessors of the plaintiff, *Held*that the award was void.

Though John Den, by fiction of law may be the ostensible plaintiff in an action of ejectment, the Court will not suffer such a fiction to work an injury to the parties really interested.

Appeal from the Superior Court of Law of Wayne County, at the Fall Term, 1S47, his Honor Judge Manly presiding.

This was an action of ejectment, in which the following facts appeared.

*164The declaration contains three several demises, the 1st from W. A. Whitfield, the 2d from James Herring, and the 3d from Buckner Hill* The defendants entered into the common rule, and pleaded not guilty. At Fall Term, 1846, the following order of reference was made : “ This case is referred to James Griswold and Nicholson Washington, with leave to choose an umpire in case they disagree, and their award, or that of their umpire to be a judgment of this Court.” Between the referring of the case, and the making of the award, James Herring, the lessor of the plaintiff in the 3d demise, died. At Fall Term, 1847, the arbitrators returned their award. A motion was made on the part of the defendant, for a judgment on the award, and the plaintiffs moved to set it aside. Both motions were over-ruled by the Court, and the defendant appealed.

*Mot'decai*and *Bryan,*for the plaintiffs.

1st. One of the lessors of the plaintiff (James Herring,) it appears from the award itself, has died since the submission. It is sufficient cause to set aside the award. See *Chitty’s Gen. Prac. 103.*

2d. The arbitrators proceeded without giving proper notice *to all*the parties. This is good cause to set it aside. *Salk.*71. *Chitty’s Rej>.*44. 2 *Chit. Gen. Prac.*96.

3d. The rule of reference is a simple one, and all the arbitrators had a right to do, was to decide as to the legal rights of the parties and which was entitled to the verdict. The rule cannot bring before the arbitrators more than was in issue before the Court. *Den.*dem, *Hardin*v. *Beatty*& *al,*4 Dev. & Bat. 381.

Ht re the arbitrators not only undertake to decide this, but they adjudicate the right to the land. See *Den. dem• Duncan*v. *Duncan,*1 Ired. 466.

4th. The main award is vague and uncertain, in first awarding that Wm. A. was a trustee for defendant and *165bound to account and re convey; and secondly, that he had been guilty of fraud and *no*title passed.

5th. Award purports to be founded on evidence and *notes*of counsel. These the arbitrators had no right to use.

6th. The arbitrators profess to decide according to law;, and have mistaken the law. This is good cause to set it aside. 2 *Chit. Gen. Prac.*109. *McRae*v. *Robinson,*2 Murp. 127, *Ryan*v. *Blount*& *al.*1 Dev. Eq. 382.

In order to avoid the sale, there must be found a combination between the sheriff and the purchaser. *N. C. T. R.*114. *Jones*v. *Fulgham, 2*Murp. 364.

*Strange,*for the defendant, argued — ■

That the Court ought to have entered judgment on the award, either 1st, according to its terms, or 2ndly, a judgment in favor of the defendant in the particular suit, or 3rdly, a judgment of non-suif against the plaintiff.

1st. That the death of Henry made no difference in action of ejectment as John Doe never dies.

2nd. That as Henry was dead, notice to him was dispensed with and the arbitrators are themselves the judges of notice. *Watson on atoarás*170. *Wood v.Leake,*12 Yes. 412.

3rd. That the arbitrators upon the question of fraud had not undertaken to decide according to law, and, if they had, their decision was according to law.

4th. That the practice of referring causes is sanctioned and approved by this Court in many cases, especially in *Tyson*v. *Robinson,*3 Ire. 333, and that the Court will intend every thing in favor of an award *Carter*v. *Sams,*4 Dev. & Bat. 182.

5th. That an alternative award is good. *Watson on awards*125, *Lee*v. *Elkins,*12 Mod. 585.

6th. That a judgment of non-suit in an action of ejectment is as final, as any other judgments that can be rendered in favor of the defendant — and so far as the suit is concerned is final.

*166Nash, J.

We concur with his Honor in his opinion. The arbitrators decide, that upon a careful examination of the evidence, they decide that W. A. Whitfield, the lessor of the plaintiff, in purchasing the land at the sheriff’s sale made under an execution against the defendant, Hatch Whitfield, issued on a judgment obtained by him against said Hatch, had been guilty of a fraud, and that the suit should be dismissed at the costs of the lessors of the plaintiff. In effect it is an award that a judgment of non-suit should be entered by the Court against the lessors of the plaintiff. This is a definite and distinct judgment, pronounced by the arbitrators upon the case, as submitted to them, and was certain and conclusive so far as this action was concerned. In *Blanchard*v. *Lilly,*and *Rex*v. *Blanchard,*9th East, an award directed that certain actions should be discontinued, and each party should pay his own costs, it was decided that the award was final and good, it being in effect an award of a *stet ante-processns. Hartwell*v. *Hill,*Forrest 73. There is, however, a fatal objection to the Court giving a judgment upon this part of the award. The arbitrators state, that at the time they made the award, James Herring was dead. His deáth was a revocation of the submission, so far as he was concerned. It is answered, however, by the defendant, that John JDoe, is, in law, the plaintiff, and as *he*never dies, the trial of an ejectment is not delayed, nor the case abated by the death of his lessor. This, in practice, is true. The action of ejectment is pretty much a fiction, resorted to by the Courts to try the right of possession to land, and John Doe is a fictitious person. But the Courts never will suffer their own fictions to work a positive wrong. The question is not here, as to the abatement of the suit, or of the demise from James Herring, but it is of the revocation of a power given by him to certain persons, to try a certain cause ; and it cannot admit of a doubt, that the power of an arbitrator is determined by the death of the party to the submission or any *167one of them- 2 *Tidd’s Pr.*877. 2 *Chit. Pr.*432. The Court, therefore, cannot give judgment for the defendant upon this portion of the award. Neither can the Court give judgment upon that portion, which, as the arbitrators tell us, was the result of an equitable view of the case. It is not within this submission. When parties intend to submit all disputes, the terms of the reference ought to be, “ of all matters in difference between the parties,” and when the difference is intended to be of the matter embraced in a parti cnlar case, it should be, “ of all matters in difference in the cause,” or words to that effect. *Smith*v. *Muller, 3*Term R. 624. Of the latter character, is the order of reference in this case; *this*case is referred, &c. The case is one of ejectment, and there is nothing in the order, looking out of the case. With a view to settle all the differences between the parties, the arbitrators have assumed the jurisdiction of the Court of Equity, settled their accounts and adjusted balances, and ordered and directed the payment of the moneys adjudged by them. This was not within the scope of their authority, as exhibited in the order of reference. If there was any other reference, the parties must enforce the award by some appropriate action in the proper Court.

The Court therefore cannot grant to the defendant any judgment upon the award, but in the language of his Honor *below,*“ leaves the parties to such remedies as they may respectively have thereon.”

We see no error in the interlocutory judgment of the Court below.

This opinion must be certified to the Superior Court of Wayne County,

Per Curiam. Ordered accordingly.