#### Levy Solomons, *Plaintiff in*Error. *against*John M'Kinstry, *Defendant in Error.*

An *award,*of payment of a specific sum, by one party to the otjher, is final, and sufficient without a release.

Where an unp*ire*awarded that the defend-, ant should pay to the plaintiff* certain sum, with interest until paid, “as the. plaintiff appeared to have a just claim on the defendant for that aura, or even more, if insisted on;”and, “that should any errors in addition or calculation of in tei'eet be found in the account, upon proof thereof being made by the defendant to the plaintiff, the plaintiff should immediately refund to the defendant the amount thereof,” the award was held *final*and valid.

Where an umpire was chosen and appointed, *of and concerning Vie*premises, and it was stated that he took upon himself the burden of the umpirage, it *is*to be intended that he awarded concerning the subject matter submitted.

A WRIT of error was brought to reverse the judgment of the supreme court in this cause. For the facts in the case, and the judgment of the court below, see the S. C., reported in 2 *Johns. Rep.*p. 57—62.

The counsel for the *plaintiff in error*cited *Kyd on*Awards, 206. 1 *Ld. Raym.*246. 2 *Saund.*62 *a.*12 *Mod.*129. 8 *Co.*193. *Bascole's case,*2 *Saund.*61 n. 5. 1 *Caines,*319. *Atk.*644. 1 *Caines,*363. *Kyd on Awards,*252, 253. 1 *Roll. Ab.*362. 2 *Co.*192. *Cro. Jac.*663.

The counsel for the *defendants in error*cited 1 *Burr. Rep.*280. *Caines,*319. 7 *Term Rep. 73.*3 *Atk.*644.

Thompson, Ch. J.,

gave the reasons for the judgment of the ■court below, which were the same as those stated in the report of the case in that court.

The cause was argued by *Van*Vechten, for the plaintiff in error; and by *Woodworth,*for the defendant in error.

Cantine, Senator.

On the argument, two objections were urged against the judgment of the supreme court:

1st. That the award was not confined to the subject matter of the submission :

2d. That it was not final. With the latter objection, a want of mutuality in the award was in some measure mixed; but as that was not much relied upon, and as the opinion of the supreme court places that question on a footing which cannot be controverted, I shall confine my examination to the two questions stated.

The difficulty, in this case, does not arise from a difference of opinion respecting the principles on which awards are to he construed, but in the application of those principles ; for, if the award is not confined to the subject matter of the submission, or is not final, it is void.

*28Upon this subject much confusion has- arisen from two sources *i*1st. From a differepce'between the extremé nicety formerly obj. served in the construction. oHawards; and the gradual relaxation which has taken place down to the present time; and, 2dly. From the.-almost infinite variety, of forms iq which ¿wards, are made., arising necessarily from the., circumstance that, they are generally penned by persons not well versed in legal proceedings, and -not unfrequcntly by those who, arc- wholly unskilled in the .con..struction. qf language; .ap'd these causes- present ¿ difficulty that, probably* can never be entirely removed. There ever will'be, some uncertainty in the application of the general rules-which govern the construction of .awards, .

From- a hateful examination, however, of the questions which, -in.this case,'are.presented for our decision, there appears *to*be fewer and less difficulties than d apprehended when | first heard the argument;' and f am entirely'satisfied that •the-judgment of the supreme court is correct, and ought to be affirmed. .

The- submission, in this cause, was limited to the copartner-. ship, accounts *oí Levy Solomons & Company;*but the umpire, in. his award* -does not a ver that his umpirage was- made *.“ of*and' yppq the matters. submitted'it is general* and awards “-that Saíomons shall pay *M‘Kinstry*423l. 19s. 4d., as M‘Kinstry appeared to have a just claim on *Solomons*'for that sum,- or more, if insisted upon.’5' . It -Is contended -that 'here, arises án un%. eertainty, from the award iiot being limited -to the submission, ■which renders it void,' ./If the rule, réquiring t-hat'an award shall not go beyond the submission, js to be so-.strictly'cQñstruéd-as' to malm'it necessary that it should beaverredydn te/ms, to.besa limited, then this award would be clearly bad, because it may, 1‘rorn the comprehensiveness 'of its terms, embrace differences -not‘.submitted ; but the law does not require this: extreme' nicety, A mime, ju'st and reasbnab'le interpretation .of- the rule, One, more consonant to common sense, and better-calculated'to pro*-' mote,the ends- of justice* is, that -W-here the, words of. an\awnr<| are: so- comprehensive that they may take in.-matters-not -within. the submission., yet it shall be-presumed- that nothing beyond it was awarded,- y-nless the Contrary be expressly shown;. and the correctness-of this cpumpuetion'is fully established by Kyd in *his Treatise on*Awards, 170., and the authorities there cited; and, also, in the case of *Hopper v. Hasket, (1 Keble,*738.)

*29In *Ratcliffe*v. Bishop, (1 *Keble,*865.,) it was expressly adjudged, that it was not necessai’y that an award' should, jn terms, purport to be “of and upon the premisesthat it was sufficient if, by the submission, it was provided, that it should be made “ of and upon the premises;” for that, in such case, it must be intended that the award is limited -to the submission, unless the contrary appear on the face of it. The .submission, in this case, provides* expressly, that the award shall be, “ *in and concerning the said matters in difference,*’’ &c., in substance, the same as “ of and concerning the premises and no mischief can arise from the adoption of this rule, because the party objecting has á right to show* by pleading, that'matters out of the submission are embraced in the award. In the case of *Ingram v.*Webb, (l Roll. *Rep.*362.,) there was a submission of all suits and controversies between the parties, *respecting tythes*of “ corn and hay in a certain parish the award was, that the defendant should pay the plaintiff *401.,*and that the plaintiff should permit all *suits*and controversies between them to cease. On a suit brought on the award, the plaintiff averred that there were not any Other suits for tythes ; the. defendant rejoined, that there were other suits, but not concerning the tythes; the plaintiff had judgment, which was affirmed in the exchequer chamber, on the ground that the order, that all suits should cease,”-should be confined to' suits relating to tythes, as they only were within, the submission.*

The award is said not to be final, because the umpire alleged that more was due than the sum awarded, if. insisted on, and that. *M'-Kinslry,*therefore, was not bound by it.; and that this award would not have been a good bar against a suit he might have brought on the-original demands. It does not appear to me that this conclusion follows, necessarily, or that it is even a fair and rational one.

The award was not drawn with technical nicety, but with Sufficient accuracy'to communicate, distinctly, the intention and meaning of the umpire ; the obvious interpretation is, that, from the evidence produced, he was satisfied that a greater sum was strictly’ due to *M‘Kinstry*than what was, awarded; but as *M‘Kinstry*did not think proper to insist upon, or claim, the whole, he had, with his assent, given his award for á less sum,As the umpire had taken upon himself the umpirage, he was in duty bound to do exact justice between the parties; to award *30Jess than he was conscientiously satisfied was^ue to M‘Kinstry, Avithout his assent, would have been palpably unjust; the fair, honest, and legal pres.Umpt-ion is, that *M‘Kinstry*.consented to the reduction of the sum; he was, therefore, concluded by it, and; it certainly cannot lie with *Solomons*to find fault. Another objection -was urged' against this award, on the ground that it

was not final,- which, on the argument, struck me as being se* nous'; but, from subsequent reflection, I am convinced that it is as untenable as. .the others, ‘ The- award provides, that should any errors in addition, or calculation of interest, be found in, the account, upon proof of such errors being made' by *Solomon?*to *M'Kinslry,*the latter should immediately refund the amount ■thereof. Itpyas-said, that there were several modes of calculating interest, and that the adoption of the one or the other, would produce a very different result as to the amount-. It is true that .thfere .are different modes,., which may sometimés oeca-.' sion a material variance. • But the fair and rational presumption, is, that the umpire adopted the mode.recognised in the.courts of justice in the country where the contract was made ; and,, at all events, as the' parties had submitted their differences to arbitrament, they were Concluded by the-mode adopted by the umpire ; by their submission, they constituted him:- as much their judge on that question as any other, and were .as much bound by his decision as they would have been by. the judgment of & court of law; the -mode of calculating of interest was not, therefore,, among the objects of revision and correction provided for by the. award; the errors to be revised, were exclusively confined to mistakes whicli the umpire might have made in the multiplication or addition pf figures. There was no part of the merits of the controversy left open, nor did the umpire delegate any portion oí his power or authority to another. The sum due, •the time' for which it should bear interest, and the manner in which.that interest was to be calculated, he had determined.

This case does not come Avithin the, reason lof any of those Where awards have beeneonsidered as void,, in consequence of containing provisions for réfühding a part of ,thé sum aAvarded, under certain circumstances. These cases will all be fóund to apply, only where the sum to be refunded is part of the principal, and depending upon evidente, and; therefore, entering into- the merits of the controversy; and not, as .in the present tase, which depends upon mere ádtKmetical ehlculation»

*31.Suppose this part of the award had been left out, would it have varied the rights or remedies of either of the parties ? In that case, if any errors had been discovered in the calculation, or addition of interest, *Solomons*would havé been entitled to redress in a court of equity ; but that court could not have inter’fered to correct any errors in judgment which the umpire might have committed. Does the award, as it stands, provide any mode of relief to *Solomons,*for errors in calculation, or addition of interest, other than by having recourse to a court of Chancery ? He could not have maintained an action at law on the award, until he had first proved that there were errors in the calculation, or addition, of interest; that is the condition on which alone he is entitled to call on *MlKinstry*to refund. Proof means legal proof; and how could he produce legal proof of the existence of such errors, without first having resort to a court of equity ?. This part *oí*the award is-utterly useless, and might be stricken out without any prejudice whatever to either party; it is mere surplusage.

I am for affirming the judgment of the supreme court..

This being the opinion of the court, *(Bishop,*Senator, dissenting,) it was thereupon ordered and adjudged, that the judgment of the supreme court be affirmed, and that the- defendant in error receive his damages, by reason of the delay of execution, and their costs in this court; and that the record be remitted, &c„'

Judgment affirmed»

*

 2 *Mod. Kyd*on Awards, 371.