now before the court as sole owner and defendant; that the equity is far less strong against the purchasers under him; and that, under all the circumstances, my duty is to dismiss the bill; but it will be without costs to either party.

Bill dismissed.

§ 185. Requisites.— Awards are to be liberally construed, but must decide the whole matter, as to which they must be certain, final and conclusive. James v. Thurston,* 1 Cliff., 367. § 186. Must embrace all matters.— An award made upon only a part of the matters submitted will be set aside. Faw v. Davy, 1 Cr. C. C., 440.

§ 187. Certainty.- An award which states the amount of salvage and witness fees is not uncertain because it fails to fix the costs. These may be ascertained by the clerk of the court.

The Ship Liverpool Packet, 2 Spr., 37. See § 89.

§ 188. An award that directs that a bill of exchange, with interest and damages thereon, shall be deducted from a sum reported due plaintiff, but does not indicate the percentage which shall be allowed for interest, is void for uncertainty. Kingston v. Kincaid, 1 Wash., 448. § 189. Matters not submitted.- The omission of a referee to consider, in making an award of salvage, the allowance of counsel fees, this matter not having been called to his attention, is not ground for recommitting the award to him. The Ship Liverpool Packet, 2 Spr., 57.

§ 190. Embracing matters not submitted.-Where the secretary of war, under authority of congress, has matters submitted to his decision, and his award embraces matters not referred to him, the whole award is void. De Groot v. United States,* 1 Ct. Cl., 97.

§ 191. Congress, by resolution, referred a claim to the secretary of the treasury, and required the claimant "to surrender to the United States all the brick made, together with all the machinery and appliances and other personal property," etc. The secretary of the treasury made an award, with which, however, the claimant was dissatisfied, whereupon congress, by a second resolution, referred the claim to the secretary of war, who was directed to audit it "in further execution" of the first resolution. The claimant had surrendered to the United States, not only "all the brick made, together with all the machinery and appliances and other personal property,” but also the land constituting the brick-yard. The secretary of war awarded a gross sum, including in it, without distinction, the value of the land as well as that of the bricks, machinery and personal property. Claimant brought an action on this award in the court of claims against the United States. Held, that both the secretary of war and the court of claims (although the latter ordinarily acted under general statutory authority) were restricted in their action upon the claim by the requirements of the first resolution; that the award of the secretary of war was void because he exceeded his authority by including in it the value of the land surrendered, and because the award was uncertain in not indicating separately how much was allowed for the personal property, the sum allowed for this property being included in and inseparable from the gross sum awarded. De Groot v. United States, 5 Wall., 419.

§ 192. It is not always that an award is invalid because in some respects it exceeds the submission, for it is said that if the part which is in excess can be clearly separated from the remainder which is within the submission, the latter may stand. But this rule is subject to some qualifications, one of which is that the award to be valid ought to be in itself a complete adjustment of the controversies submitted to the arbitrators. (Carnochan v. Christie, 11 Wheat., 446, cited.) Ibid.

§ 193. Not final - Second award.- A submission of "all our disputes, differences, controversies, etc., concerning two apprentices with said L. T.," was followed by an award that "the said negro boy, named Bill, is free from L. T. the 13th December, 1797, and likewise the negro boy, named Hanson, is free from L. T. the 31st day of January, 1798," and this was subsequently followed by a second and different award. Held, that the first award was void, because it was not final and conclusive, in that it did not award a release of the covenants nor a canceling of the indentures; that the second award was void because the authority of the arbitrators was exhausted in making the first award. Talbot v. Hartley,* 1 Cr. C. C., 31. See § 112.

§ 194. Set up as a defense.— Where the referees intended to decide the controversy submitted according to law, the legality of the award may be examined by a court of law in an action wherein it is pleaded as a defense. United States v. Ames, 1 Woodb. & M., 76.

§ 195. By two of three. It is no objection to an award that it was made by two of three arbitrators without consulting the third, he having withdrawn after declaring himself unable to agree with his colleagues and that it would not be necessary for him again to be called to meet on the subject. Kingston v. Kincaid, 1 Wash., 448. See § 26.

§ 196. How enforced.- Where parties to a suit agree outside of court to refer the dispute to the decision of referees, one party cannot enforce their award by getting the court having jurisdiction of the pending suit to confirm and enforce obedience to it. The submission not having been by rule of court, the party can only enforce the award by another action at law or in equity. Lessee of Banert v. Eckert, 4 Wash., 325.

§ 197. Time to object.

By a contract between the parties, the estimate of an engineer was to be final if not objected to within twenty days. Within the twenty days one party objected to the price of work, but not to the quantity, but after twenty days objected to the quantity. Held, that the latter objection came too late. Carothers v. Chesapeake, etc., Canal Co., 4 Cr. C. C., 698.

§ 198. Stating reasons for award.- Where arbitrators in their award have specified the reasons for their decision their award must stand or fall as tested by legal principles. Kleine v. Catara, 2 Gall., 72.

$199. Conclusive.- Where an account against an estate is submitted by the executor to arbitration, and an award is made, and the award is set up and relied upon in a bill in equity, and the answer neither denies the award nor sets up any other claim against the estate, the award must be held to be a complete adjustment of the accounts against the estate up to the time it is made. Strodes v. Patton, 1 Marsh., 231.

$ 200. Debt lies upon a part of an award valid and separable from that which is invalid. Wise v. Geiger,* 1 Cr. C. C., 92.

§ 201. Disclosing ground of award.— Arbitrators cannot be required to disclose the grounds of their award. Kingston v. Kincaid, 1 Wash., 448.

§ 202. No new evidence will be received on exceptions to a referee's report. Barton v. Anthony, 1 Wash., 317.

§ 203. Exceptions.— When facts that sustain an additional exception to a referee's report are discovered after the period for filing exceptions has passed, the court will permit the additional exception to be filed; although if no exceptions be filed in time, the discovery of such circumstances. will not induce the court to allow them to be filed. Thelasson v. Crammond, 1 Wash., 319.

§ 204. As to agreement with conclusions from evidence.- A court will not set aside an award of arbitrators because it does not agree with the conclusions they drew from the evidence. Jolly v. Blanchard, 1 Wash., 252.

§ 205. An executor has a right to submit the accounts of his testator to arbitration, and if the award is adopted by him, he is as much bound by it as if he had himself made the settlement. Strodes v. Patton, 1 Marsh., 231.

§ 206. Prejudice in favor of a party- Umpire.— Under an agreement to arbitrate, the parties were each to select an arbitrator, and if they disagreed they were to select a third party as umpire. One of the parties selected was known to the party selecting him to be prejudiced in his favor. The arbitrators not agreeing, they selected an umpire, and stated the case to him. Held, that the award must be set aside, for the reason that the fact that one arbitrator was committed in favor of one party was not known to the other, and because the umpire should have heard the testimony instead of relying on the statements of the arbitrators. Taber v. Jenny, 1 Spr., 320. See § 98.

66

§ 207. To be made according to certain rules. The agreement was to submit "the matters in difference between" the parties to a committee, whose arbitration should be made "according to the rules and regulations" of the Galena chamber of commerce. Held, that the award must show that it was made in accordance with such rules and regulations; that a declaration upon it must aver that it was so made; that if it required the parties to execute to each other a general release of "all manner of demands whatever" it exceeded the submission and was void, especially as it also awarded costs against one of the parties, a matter over which the arbitrators had no control. Gear v. Bracken,* 1 Pin. (Wis.), 249.

§ 208. Error of fact or of law. Under a general submission to arbitration, the arbitrators have rightfully a power to decide on the. law and the fact; and an error in either respect ought not to be the subject of complaint by either party; for it is their own choice to be concluded by the judgment of the arbitrators. The arbitrators are not bound to award upon the mere dry rules of law, but may decide upon principles of equity and good conscience, ex æquo et bono. If the arbitrators have made a mistake of fact, and it so appears on the record, or the arbitrators think there is a mistake, and wish to correct it, they may have the matter recommitted to them to rectify the mistake. If there is no reservation in the submission, it seems that everything necessary to the ultimate decision is committed to the authority of the arbitrators. Kleine v. Catara, 2 Gall., 69. See §§ 105-110.

§ 209. Plain mistakes, not only such as appear upon the face of the award, but such as can be clearly and palpably made out by the proofs laid before the referees, or are acknowledged by them, may be corrected on exception in the court before which the award is taken

for review. If this remedy is pursued ineffectually, or is neglected, equity will not correct such errors. Hurst v. Hurst,* 2 Wash., 127.

§ 210. A bill in equity to correct errors in an award cannot be supported as a bill for a discovery, if it alleges the ability of the complainant to prove the mistakes by other than defendant's testimony. Ibid.

§ 211. A plain and palpable mistake of fact warrants the setting aside of an award. Knox v. Walton, 2 Wash., 507.

§ 212. A report of referees will be set aside for errors of law. Kelly v. Johnson, 3 Wash., 45.

IV. UMPIRE.

§ 213. In general.— An award signed by A. and B., and proceeding as if the submission had been to them originally, is not admissible under the allegation of an award by A. as umpire. Goldsborough v. McWilliams, 2 Cr. C. C., 402. See § 206.

$214. The condition of an arbitration bond was to abide the award of A. and B. and a third person to be chosen as agreed upon by them, in case they should not agree upon an award, or any two of them. Held, that the award need not state why it is signed by three, nor that the appointment of a third was in writing. Frye v. Scott,* 3 Cr. C. C., 294. $215. An agreement that the claims designated shall be referred to the final decision and arbitration" of parties designated, "and an umpire, if needful," authorizes the arbitrators, in case of a disagreement, to appoint an umpire, and imports an agreement by the parties to abide by the decision of the arbitrators or the umpire. Smith v. Morse, 9 Wall., 76. See the case, § 166-170.

§ 216. Appointed before disagreement.— A rule of court, that "They (the three arbitrators), or any two of them, are to have their award in writing," contemplates the appointment of two arbitrators, who are to select a third, and then the three are to proceed with the arbitration. It does not mean that the third referee is not to be appointed until the other two have heard the cause and disagreed. Lutz v. Linthicum, 8 Pet., 165. See the case, § 121-126. § 217. An award is bad where the umpire is called in before the arbitrators have disagreed. Traverse v. Beall, 2 Cr. C. C., 113.

$218. An umpire may be appointed either before or after a disagreement among the arbitrators. Alexandria Canal Co. v. Swann, 5 How., 83. See the case, § 4-9.

§ 219. Unanimous decision.- Where the question of the valuation of land was referred to two persons, and the submission provided that, if the two could not agree, they should select a third, the decision need not be unanimous. If it appears that a valuation was to be made at all events, it is sufficient that it be made by two. Hobson v. M'Arthur, 16 Pet., 192. § 220. Notice of hearing.— An award will be set aside where it does not appear that the arbitrators had notice of the time and place of the umpire's hearing of the matter. Thornton v. Chapman, 2 Cr. C. C., 245.

As to practice before Auditors and Referees, see PRACTICE; Master in Chancery, see EQUITY.

ARKANSAS.
See STATES.

ARMS.

Right to bear, see CONSTITUTION AND LAWS.

ARMY.

For all matters relating to the Army and Navy, Laws of War, etc., see WAR.

ARMY CONTRACTS-OFFICERS.

See WAR.

ARREST.

See CRIMES; PRIVILEGE FROM ARREST.

ARREST OF JUDGMENT.

See CRIMES; PRACTICE.

ASSAULT.

See CRIMES; TORTS.

ASSIGNMENT.

SUMMARY― Notice; equitable assignment, § 1.— Bond and judgment; set-off, § 2.— Unsettled account; compromise by debtor, § 3.— Order drawn on a fund, § 4.— Of non-negotiable instrument, § 5.- Actions not assignable, § 6.- Suit to annul; necessary parties, § 7.

§ 1. Where a party takes an assignment of a fund, earned and to be earned, he must give notice to the debtor, and take proper steps to protect innocent parties, otherwise subsequent assignees will be preferred. To constitute an assignment of a debt or other chose in action, in equity, no particular form is necessary. Any order, writing, or act which makes an appropriation of a fund, amounts to an equitable assignment, but it is necessary that notice be given to the debtor. Spain v. Hamilton, 8-12. See § 28.

§ 2. A bond and judgment were assigned, the bond being security for the payment of the judgment. In a suit on the bond by the assignee, the surety set up an assignment of a claim from his firm against the obligees in the bond- - the judgment creditors. Held, that his set-off could not be allowed if he had notice of the assignment of the bond and judgment, or had knowledge of such facts as would, if followed by inquiry, lead to notice; that an assignment of the judgment transferred the bond. George v. Tate, $$ 13-17. See § 52.

§ 3. An unsettled account, which has never received the assent of the party against whom it is asserted, cannot be assigned so as to prevent a compromise or settlement by the original parties. Thus the United States may, by treaty, adjust an unsettled account with the Indians, as against one claiming an equitable assignment. Kendall v. United States, §§ 18. 19.

§ 4. It is the law of the federal courts that where an order is drawn either on a general or a particular fund, for a part only, it does not amount to an assignment of that part, or give a lien against the drawee, unless he consents to the appropriation by an acceptance of the draft, or an obligation to accept may be fairly implied. McLoon v. Linquist, §§ 20, 21. See § 28. §5. A purchaser of a non-negotiable instrument, from others than the original owner, takes subject to equities; he takes only such rights as the original owner has parted with, unless the latter has estopped himself by his acts. But quære, as to the effect of a written assignment written over a blank indorsement. Cowdrey v. Vandenburgh, §§ 22, 23. See § 43. § 6. An action for deceit is not assignable. As a rule, only such actions are assignable as survive the death of a person, and would go to his executor or administrator. Where there is nothing such as would survive the death of a person, there is nothing capable of being transferred. Tufts v. Matthews, $$ 24-26. See § 54.

§ 7. B., the owner of certain patents, made a written agreement with defendant, under which the latter was to manufacture the patented article, and pay B. a royalty. B. was also to receive a commission on sales made by him. Afterwards B. assigned his interest in the said royalty and patents to J. B. & Co., as collateral security, and J. B. & Co. assigned their interest to the plaintiff. The plaintiff then brought a suit to annul the agreement with the defendant, on the ground that he had failed to pay the royalties. Held, that as the agreement contained no conditions authorizing a revocation, it could not be revoked; that as the assignment to J. B. & Co. was not absolute, but only as collateral security, and as B. only assigned his interest in the royalty, and not in the commissions on sales, he was a necessary party to the suit. Cook v. Bidwell, § 27.

[NOTES.-See SS 28-61.]

SPAIN v. HAMILTON.

(1 Wallace, 604-627. 1863.)

APPEAL from the Circuit Court for the District of Columbia.

STATEMENT OF FACTS.- This was a bill in equity, filed in the circuit court for the District of Columbia, by S. Spain, guardian, against the administrator of James Hamilton, known as "General James Hamilton," Wetmore, Corcoran & Riggs, Hill and others, claiming priority of payment out of a fund belonging to the estate of Hamilton. The fund in controversy consisted in an interest of Hamilton in the proceeds of certain Texas bonds, the payment of which, on the annexation of Texas, had been assumed by the United States. General Hamilton, being familar with the affairs of Texas, had interested himself in advocating its annexation, and in soliciting the agency for those who held Texas bonds. The trustees of the Bank of the United States held a large number of the bonds, which, however, were pledged with Wetmore as security for a loan from him. The trustees entered into an arrangement with Hamilton to pay him, for his influence in securing the recognition and payment of the bonds, ten per cent. of whatever might be realized on the bonds over and above the amount for which they were pledged to Wetmore; and afterwards wrote a letter to Wetmore, reciting the arrangement and ordering said Wetmore to "hold, subject to the order of General James Hamilton, one-tenth of any sum over and above the amount of your claim against said bonds." On the bottom of this letter (of 16th September, 1850) Wetmore, on its presentation to him, wrote as follows: "In conformity with the above order, I will, when received by me, pay over to James Hamilton, or to his order, the tenth of the money or stock that may be received either at Austin, Texas, or at Washington, D. C., on the above certificates, subject, however, to the conditions of the above order and to a lien I hold by assignment for $2,500, which sum I loaned General Hamilton in August last, with interest. W. S. WETMORE."

Previous to the above letter of assignment, written to Wetmore, that is, on the 12th of February, 1850, Hamilton made an assignment of his interest in the fund to the complainant Spain; the assignment transferring "All my right and claim for any commission or compensation for services rendered or to be rendered by me to any and every other person and body corporate in the prosecution of any claim or claims for any and every such person and body corporate on the government of Texas, subject to any previous assignment thereof." The opposing claims to the fund were, 1st. That of Wetmore for the sum of $2,500, referred to above; 2. A claim of Corcoran & Riggs, bankers, for $25,000, arising from an order or assignment executed by Hamilton September 21, 1850, ordering their claim "to be paid out of the first moneys received after your claims shall have been satisfied," which order was immediately transmitted to Wetmore, and "accepted." 3d. A claim by the estate of one Hill, arising from an assignment on the 30th of April, 1851, of the "order" by the trustees of the Bank of the United States on Wetmore of 16th September, 1850, previously described. The trustee of the bonds, Wetmore, was duly and promptly notified of the claims of all the claimants, except that of Spain, who did not take any steps to make his claim known until June, 1851.

Opinion by MR. JUSTICE WAYNE.

Viewing the case as the parties have chosen to make it by agreement, we must consider it differently from what we would otherwise have done, and will consider, as the purpose of the suit is declared to be to settle priorities between the