Bacon v. Wilber

Curia, per Woodworth, J. The breach assigned, is, for the non-payment of the costs. It is necessary for the plaintiff to shew, that the contingency upon which the costs were payable, has happened. The contingency was, “ if the award should he that the defendant had any land of the said Henry, Rice and Sally, in his possession.” The defendant is not liable, unless a valid award has been made. It is contended, on behalf of the defendant, that the arbitrators exceeded their powers, in several particulars ; and that, therefore, the award is void. The first objection is, that the arbitrators established a stake, in the margin of the river, instead of the cedar post, as the commencement of the dividing line, and were not governed by the proper evidence. It does not appear that the cedar post was disregarded. There is no averment that the stake is not at the identical1 place where the cedar post stood when the bond was executed. We cannot intend that the arbitrators commenced running the line at a different place from the one designated. If they did, it was matter of defence, and must be shewn by the defendant. The same reasoning applies to the objection, that the courses and distances, in the original leases, were not followed. The award says, the line rims westerly, along stakes recently set up. We have no evidence that the stakes were not set on the line designated by the courses and distances. The award, to be valid, must be certain, and settle and determine the subjects in controversy. It is evident, in this case, that when once the dividing line is ascertained, the controversy must be at an end. The plaintiffs claimed title in one lot, the defendant in another. [121] If the defendant possessed land included in the plaintiffs’ lot, the ■ line being run, ascertained the extent of that possession ; and, according to tlie terms of the submission, the defendant was bound to surrender it. Payment of the costs, . * o and surrender of the land, were made to depend on the ■award. If, on establishing the line, the defendant had possession of the plaintiffs’ land, he bound himself to surrender and pay the costs. I understand, by the submission, that the arbitrators wrere to settle the line only. The parties required nothing beyond this. They stipulated, in their bonds, for the payment of costs, and surrender of possession, to the party in whose favour the award might be. If the award is good, as to the line, the defendant is bound, by his own stipulation, as to the costs. On this the plaintiffs must rest their right to recover. It is true the arbitrators had no authority to award the costs,(a) or that the land be surrendered. That was not submitted to them. The award, in this respect, is merely void. This being conceded, does not affect the plaintiffs’ right to recover, provided they have shewn a good award as to the line between lots No. 16 and 17, which is the point submitted, I think there is sufficient certainty. The place of beginning is pointed out. Slakes were placed the whole extent of the line. A survey of the patent, to ascertain the division line, would be useless. Enough is shewn to enable either party to decide* Whether his possession corresponded with it. If it did, there was no room for further litigation. Although the award is bad in part, it does not affect the residue, on which the plaintiffs rely. There is no connex [122] ion between the two subjects, nor- do they depend on each other. The rule is well settled, that if the submission be of a particular thing, and the award is of that which is sub- and also of something else, though with respect to the latter it be void, the party is bound to perform the rest. (Kyd on Awards, 244. 2 Roll. 46.) It is void only pro tq,nto, because not connected with the residue, so as to affect the justice of the case. (13 John. 264, Martin et al. v. Williams.) I am of opinion that the plaintiffs are entitled to judgment. Judgment for the plaintiffs, Footnotes [(a)] And an attachment for not paying them, had the award been made a rule of court, it seems, would not lie; because, although due. upon the bond, its a sum stipulated to be paid, and depending upon the award, yet they are not due as a sum of money awarded ; and, therefore, would not come within the rule : and so it was held in Strutt v. Rogers, (7 Taunt. Rep. 213,) in relation to costs which the bonds of submission declared, «hould abide the event of the award.