4. An award may be in part good and in part void, in which case it will be enforced so far as valid, if the good part is separable from the bad. 10 Mod. 204; 12 id. 587 ; Croke, Jac. 664 ; 2 Leon. 304 ; 3 Lev. 413; Godb. 164 ; 8 Taunt. 697 ; 1 Wend. N. Y. 326 ; 5 Cow. N. Y. 197; 13 Johns. N. Y. 264 ; 2 Caines, N. Y. 235 ; 1 Me. 300 ; 13 id. 173; 18 id. 255 ; 42 id. 83 ; 7 Mass. 399; 19 Pick. Mass. 300 ; 11 Cush. Mass. 37; 6 Green, N.
J. 247; 1 Dutch. N. J. 281; 1 Rand. Va. 449; 1 Hen. & M. Va. 67; Hard. Ky. 318; 5 Dan. Ky. 492; 26 Vt. 345; 2 Swan, Tenn. 213 ; 2 Cal. 74; 4 Ind. 248 ; 6 Harr. & J. Md. 10; 5 Wheat. 394.
5. As to form, the award should, in gene ral, follow the terms of the submission, which frequently provides the time and manner of making and publishing the award. It may be by parol (oral or written), or by deed. 3 Bulstr. 311 ; 20 Vt. 189. It should be signed by all the arbitrators in the presence of each other. See ARBITRATOR.
An award will be sustained by a liberal construction, ut res maqis valeat plain pereat.
2 N. H. 126 ; 2 Pick. Mass. 534 ; 4 Wise. 181; 8 Md. 208 ; 8 Ind. 310 ; 17 111.477 ; 29 Penn. St. 251 ; Reed, Aw. 170.
6. Effect of An award is a final and con clusive judgment between the parties on all the matters referred by the submission. It transfers property as much as the verdict of a jury, and will prevent the operation of the statute of limitations. 3 Blackstone, Comm. 16 ; 1 Freem. Ch. 410 ; 4 Ohio, 310 ; 5 Cow. N. Y. 383 ; 15 Serg. & R. 166 ; 1 Cam. & N. No. C. 93. A parol award following a parol submission will have the same effect as an agreement of the same form directly between the parties. 37 Me. 72 ; 15 Wend. N. Y. 99 ; 27 Vt. 241 ; 16 Ill. 34 ; 5 Ind. 220 ; 1 Ala. 278 ; 6 Litt. Ky. 264 ; 2 Coxe, N. J. 369 ; 7 Cranch, 171.
The right of real property cannot thus pass by mere award ; but no doubt an arbi trator may award a conveyance or release of land and require deeds, and it will be a breach of agreement and arbitration bond to refuse compliance ; and a court of equity will sometimes enforce this specifically. 1 Ld. Raym. 115 ; 3 East, 15 ; 6 Pick. Mass. 148; 4 Doll. Penn. 120 ; 16 Vt. 450, 592 ; 15 Johns. N. Y. 197; 5 Wend. N. Y. 268 ; 2 Caines, N. Y. 320; 4 Rawle, Pa. 411, 430 ; 7 Watts, Pa. 311 ; 11 Conn. 240 ; 18 Me. 251 ; 28 Ala. N. s. 475.
7. Arbitrament and award may be regu larly pleaded at common law or equity to an action concerning the same subject-matter, and will bar the action. Watson, Arb. 256 ; 12 N. Y. 9 ; 41 Me. 355. To an action on the award at common law, in general, nothing can be pleaded dehors the award ; not even fraud. 23 Barb. N. Y. 187; 28 Vt. 81, 776 ; contra, 9 Cush. Mass. 560. Where an action has been referred under rule of court and the reference fails, the action proceeds.
S. Enforcement of. An award may be en
forced by an action at law, which is the only remedy for disobedience when the submission is not made a rule of court and no statute provides a special mode of enforcement. 6 Ves. 815 ; 17 id. 232 ; 19 id. 431 ; 1 Swanst.
40 ; 2 Chitt. 316 ; 5 East, 266 ; 5 Barnew. & Ald. 507 ; 4 Barnew. & C.103 ; 1 Dowl. & R. 106 ; 3 C. B. 745. Assumpsit lies when the submission is not under seal, 33 N. H. 27; and debt on an award of money and on an arbitration bond, 18 111. 437, covenant where the submission is by deed for breach of any part of/the award, and case for the non-per formance of the duty awarded. Equity will enforce specific performance when all remedy fails at common law. Comyns, Dig. Chancery, 2 K ; Story, Eq. Jur. 0 1458 ; 2 Hare, Ch. 198 ; 4 Johns. Ch. N. Y. 405 ; 9 id. 405 ; 4 111. 453; 3 P. Will. 137 ; 1 Atk. 62: 2 Vern. 24 ; 1 Brown, Parl. Cas. 411. But see 1 Turn. & R. 187 ; 5 Ves. 846.
An award under a rule of court may be enforced by the court issuing execution upon it as if it were a verdict a jury, or by attachment for contempt. 7 East, 607 ; 1 Strange, 593. By the various state statutes regulating arbitrations, awards, where sub mission is made before a magistrate, may be enforced and judgment rendered thereon.
9. Amendment and setting aside. A court has no power to alter or amend an award, 1 Dutch. N. J. 130 ; 5 Cal. 179 ; 12 N. Y. 9; 41 Me. 355; but may recommit to the referee, in some cases. 11 Tex. 18 ; 39 Me. 105 ; 26 Vt. 361. See the statutes of the different states, and stat. 1 & 2 Vict. c. 110; 9 & 10 Viet. c. 95, 0 77 ; 17 & 18 Vict. c. 125.
An award will not be disturbed except for very cogent reasons. It will be set aside for misconduct, corruption, or irregularity of the arbitrator, which has or may have injured one of the parties, 2 Eng. L. & Eq. 184; 5 Barnew. & Ad. 488 ; 1 Hill & D. N. Y. 103 ; 13 Gratt. Va. 535 ; 14 Tex. 56 ; 28 Penn, St. 514 ; 29 Vt. 72 ; for error in fact, or in attempting to follow the law, apparent on the face of the award ; see 0 3; ARBI TRATOR, 3; for uncertainty or inconsist ency ; for an exceeding his authority by the arbitrator, 22 Pick. Mass. 417 ; 4 Den. N. Y. 191 ; when it is not final and conclusive, without reserve; when it is a nullity; when a party or witness has been at fault, or has made a mistake; or when the arbitrator ac knowledges that he has made a mistake or error in his decision.
10. Equity has jurisdiction to set aside an award, on any of the enumerated grounds, when the submission cannot be made a rule of a common-law court.
In general, in awards under statutory pro visions as well as in those under rules of court, questions of law may be reserved for the opinion of the court, and facts and evidence reported for their opinion and de cision.