#### HEZEKIAH H. *GEAR, pl'ff in error, vs.*CHARLES BRACKEN, *def't in error,*

| *Error to Iowa county.*

In an action of debt on an arbitration bond founded on an agreement of submission and an award, the declaration must aver, and the award must show, that- the arbitrators conformed, in every material respect, to the agreement of submission.

Where the parties agreed to submit the matters in dispute between them to the. arbitration and award of the committee of awards of the Galena Chamber of Commerce, to arbitrate and award according to the by-laws, rules end regulations of the Chamber of Commerce, the award must show that the arbitrators proceeded according to such by-laws, rules, and regulations, or it is void.

Where matters in dispute are submitted to arbitrators, they have no power to award that each party shall execute to the other a full release of all demands to the date of the award.

Arbitrators have no power to award costs against either party; nor that the sum awarded shall be paid within a specified time.

On the sixth day of September, 1839, Gear and Bracken entered into a written agreement, under seal, to submit the matters in difference between them to the arbitration and award of the committee of awards of the Galena Chamber of Commerce for that month, (naming the committee in the agieement,) “according to the rules and regulations of the aforesaid chamber of commerce, as provided by the rules, by-laws, and regulations thereof;” and they executed each to the other a penal bond in the sum' of $¡300 conditioned for the performance of the award when made. The *89committee took up the matter for arbitration on the 29th of September, 1839, and made an award in writing under the seals of the arbitrators, by which they awarded that Bracken should pay to Gear the sum of ‡188 42, and $13 50 for costs, which should be paid in Galena in fifteen days with interest, and that upon the payment being made, each party should execute to the other, in writing, a release of all manner of demands whatever to the date of the award. The award did not show that the committee proceeded according to the by-laws, rules, and regulations of the Galena Chamber of Commerce.

Bracken refused to abide by and perform the award,’and Gear brought an action of debt on the arbitration bond in the Iowa District Court. The declaration set out the substance of the bond, the agreement to submit, and the award, and averred the breach in the non-payment; but there was no averment that the committee of awards proceeded in the arbitration according to the bylaws, rules, and regulations of the Galena Chamber of Commerce. Bracken set out the bond, agreement and award, on oyer, and demurred generally to the declaration. The District Court sustained the demurrer, and gave judgment for the defendant. To reverse this judgment, Gear sued out a writ of error, and has brought the cause into this court.

The assignment of error questions the decision of the District Court in sustaining the demurrer to the plaintiff’s declaration.

Moses M. Stkong,for plaintiff in error:

The substance of the bond, the agreement of submission, and the award, is set out in the declaration according to their legal effect. This is all that is required. If the declaration had have avetred that the award was made according to the by-laws, rules, and regulations of the Galena Chamber of Commerce, it perhaps could not have been proven. The award itself does not show it, nor was itnecessary thatit should. The parties mutually selected a commercial tribunal, not, it is true, established by law, but of very general use, and which it would seem had rules and regulations, to settle their disputes. The award that has been made, is formal and complete, and the presumption is, that the arbitrators conformed to the rules and regulations that were to govern them, until it shall be made to appear to the contrary. If there was any departure of the arbitrators from the authority conferred upon them by the parties, that would violate the award, the defend*90ant should have pleaded it, and made an issue of facts to be tried by a jury. The ground taken is not good on demurrer.

Dukn and Buknett for defendant in error:

The parties agreed to submit their matters of difference to arbitration, but provided that the arbitrators should proceed according to certain by-laws, rules and regulations. The arbitrators have no authority except what is given them by the agreement of the parties. This they must fulfil, and not slop short of it. To make the award good, every materia] matter must appear affimatively on its face, and must be averred in the declaration. The award and declaration aro bad in this respect for deficiency.

The award is also void, because the arbitrators exceeded their authority. They had no power to award costs against Bracken. They had no power to award that Bracken should pay the money to Gear in Galena within fifteen days with interest. They had no power to award that each party should execute to the other a release of all manner of demands to the date of the award. Nothing was submitted to the arbitrators but the matters in dispute. There may have been demands on one side or the other, not at all in dispute, and which were not laid before the arbitrators, yet they say they shall all be released. Such excess of authority cannot bo sustained. See Kidd on Awards, 140, 279. 1 Bacon’s Abr„ Title, Arbitrament, and Award, letter E. 282.

Opinion of the court by

Chief Justice Dunn:

This is an action of debt upon an arbitration bond, brought by the plaintiff. Gear, against the defendant, Bracken, in the District Court of Iowa county. At the April term, 1842, the defendant filed his general demurrer to plaintiff’s declaration, after oyer craved, and setting out the agreement to submit to arbitration, bond, and award; which demurrer was sustained by the Court, and judgment entered for the defendant. To the decision of (lie District Court sustaining tho demurrer, the plaintiff excepts, and prosecutes this writ of error to reverso the decision.

From an inspection of the record, it is apparent that the plaintiff’s declaration is justly obnoxious to this objection: a material averment is wanting, that the arbitration was had, and the award made, according to the rules and regulations established by the by-laws of the Galena Chamber ofComrnorce. The award is liable to those objections: it does not show upon its face, that the arbitration was conducted and the award made agreeably to said rules and *91regulations. It exceeds the powers given by the submission, in awarding that upon the payment by Bracken to Gear of the sum awarded, that each should execute to the other a general release in writing of all manner of demands whatever to the date of the award; in awarding costs against Bracken; and in awarding that payment should be made by Bracken to Gear of the sum awarded within fifteen days after the date of the award.

Moses M. Strong, for pl’ff in error.

Dunn and Burnett for def’t in error.

There is no principle of pleading better settled than that a plaintiff is required to set out in his declaration every matter material *to*show his right of action, with sufficient legal certainty. In this case, the committee of awards of the Galena Chamber of Commerce, derive their sole power to arbitrate in the premises from the agreement between Gear and Bracken to submit the matters in dispute to their award and decision. They must conform in every respect to the agreement, and cannot exceed the powers conferred, or award less, or stop short of the matters submitted. Then it is material that the declaration should aver that the said committee did arbitrate and award on the matters submitted, according to the rules and regulations of the said chamber of commerce, as prescribed in their by-laws, this being a substantive part of the agreement of submission. The objections to the award are well founded; it must show that the said committee of awards arbitrated and awarded agreeably to the rules and regulations of-the said chamber, as prescribed in their by-laws. To award generally that the arbitration and award was *“*in proper manner and form,” is not sufficient. It exceeds the authority and power conferred by the agreement to submit, in awarding'that the said Gear and Bracken, upon payment by Bracken to Gear of the sum awarded, should each execute to the other a general release of all demands whatever to the date of the award. The matters submitted were the matters in dispute; this part of the award is so comprehensive as to embrace all matters of demand,, even those not in dispute. It goes beyond the1 powevs conferred in awarding costs against Bracken, and payment by him of the sum awarded to Gear, in fifteen days from the dale of the award. The authorities on these points are full in 1 Chitt’y Plead, and Kidd on Awards.

We are therefore unanimously of opinion that the judgment of the District Court of Iowa be affirmed, with costs.