#### Battey *against*Button.

Where, on a submission to arbitration, the ‘parties mutually execute promissory notes to one another, as security for the payment of the sum which may be awarded, and the arbitrators having awarded in favour of the one part.v, deliver to him the note of B , the other party, and A. endorses the note to C., to wbomB is compelled to pay the amount, and B. seeks to recover back from A. the sum so paid to his endorsee, on the ground that the award was void. B. cannot recover against A. *%*if he could have insisted on the invalidity ofthe note, as a defence to an action by C. . or, if such defence were then inadmissible, he roust show, that he could not have availed himself of it, by averting that the note was transferred before it fell due.

Where, on *s,*submission to three arbitrators, one dissents from the award of the other two, who execi^te the aV»rd without the dissenting arbitrator, such award is valid.

THIS was an action of *assumpsit.*The first count of the declaration stated, that one *Henry Osborn*had been sued, and arrested by virtue of a warrant issued by one *Henry Delord,*a justice of the peace of the county of *Clinton,*at the suit of the defendant; in which suit the defendant claimed the sum of eight dollars, whereupon the plaintiff, as the agent of *Osborn,*and the defendant, agreed to submit the matter in controversy to the decision of *Henry Delord*and *Henry Grun;*and, in case they could not agree, after due examination and consultation in the premises, that then they should choose a third person to arbitrate in conjunction with them, in the premises, whereupon they chose *William Stewart,*and the parties, *Battey*and *Button,*mutually executed, each to the other, a note, dated at *Peru,*the 6th of *February,*1808, for the sum of 250 dollars, payable to each other, or order, with interest, two months after date ; and it was agreed, that in case the arbitrators should make an award against either party, the note executed by such party should be endorsed by the arbitrators, so as to leave due thereon the sum which they should award such party to pay the other; and the note executed by the party in whose favour the award should be made be delivered up and cancelled ; that the arbitrators having met and heard the proofs, two of them, *Grun*and *Stewart,*awarded against the said *Henry Osborn,*the sum of 232 dollars and 75 cents, and thereupon endorsed upon the note executed by *Battey*the sum of 17 dollars and 25 cents; that *Delord,*the third arbitrator, dissented from the award; and that the defendant, afterwards, endorsed the said note to *Boss Sc Platt,*to whom the plaintiff was compelled to pay the said 232 dollars and 75 cents, with interest.

To this was added a count for money lent, money paid, and money had and received.

The defendant demurred, specially, to the first count in the plaintiff’s declaration, arid the plaintiff joined in demurrer,

*Crary,*in support of the demurrer,

*188
      *Z. R. Shepherd;*contra..

*Per*Curiam.

This cáse comes .before the court on a special

demurrer to the firstdoü-nt in the declaration. It is Unnecessary» however, to notice the special Causes of demurrer, for the count is bad in substance. If .the arbitration nóte, .which the plaintiff had .paid to the defendant, was void, payment of it should have -been resisted, if the defence was, admissible,, and, if not, the declaration,; in this case, should show Why if whs not.. It was* therefore, a material averment, *that the note .toas transferred, be-: fore it fell due, so*as to show that the defence could not have beén, then set 'up, ágainst íhe note in the hands ,of an innocent' endorsee, to whomit Was 'transférred:^befóre-it fell due. : \ But the, objection.’taken to the validity of the note is not well founded,; to wit, that the award -between •.Bmíío?i and *Osborn*was- void,because not signed by. all the arbitrators, Thia Was-not necessary. The submission was to two, and, in case they could not agree, they wére to choose a third; person to arbitrate,, in', conjunction with-.them, upon'the premises. The. declaration alleges, that such.third person was chosen.- This mode of subv mission .necessarily .implies, an authority tp two,, to make.an award, ' To- réqqir.e the award to be signed by- all,. Would involve a manifest . absurdity. The ' two Were authorized tp choose' a third, only in case of . their disagreement; and .yet, after they bad disagreed, and chosen a third, all must agree, according to the. argument on the. part ofithe plaintiff., The first count in thp declaration is, therefore^ bad,on this ground, Which strikes at the.'root of the plaintiff’s cause of action. The defendant mus% accordingly, have judgment uppn the demurrer. ■