that plaintiff might have them again; for this the law would have given him; and the return of the cattle is not a satisfaction for the injury caused by the detention of them. (v) But although it has been held, that the thing given in satisfaction must have a distinct value at law, and therefore the release of equities of redemption could not be a satisfaction for want of such value, (w) it cannot be doubted, that if the satisfaction be actual, and have a real value in fact, either at law or in equity, it would be held sufficient.

It is held that a creditor who agrees to receive a less sum in full satisfaction for a greater debt, and who receives this sum and gives a receipt in full, may yet sue for the balance of his debt. (ww) But if the promise to give a smaller sum is accompanied by additional security, here is a consideration which makes valid the promise to accept this sum in full. (wx) And so would any other consideration for the payment.

We have seen that a promise, without execution, is no satisfaction, unless it has this effect by express agreement. And on the same principle, if the promise be executed literally, or in form, but is rendered inoperative or worthless to the creditor by the debtor's act or omission, this has no effect as an accord and satisfaction. (x)

*If the accord and satisfaction be made by a third *688 party, and is accepted as satisfaction, it would seem to be sufficient, if the actual debtor consent to look upon it as such. (y)

(v) Keeler v. Neal, 2 Watts, 424. A plea of accord, &c., must show that the plaintiff received something valuable. Davis v. Noaks, 3 J. J. Marsh. 497; Logan v. Austin, 1 Stew. 476.

(w) Preston v. Christmas, 2 Wils. 86. (ww) Harriman v. Harriman, 12 Gray, 341; Bunge v. Koop, 5 Rob. 1. But see Pepper v. Aiken, 2 Bush, 251.

(wx) Keeler v. Salisbury, 33 N. Y. 648. See ante, n. (t).

(x) Thus, in Turner v. Browne, 3 C. B. 157, in debt for money had and received, &c., the defendant pleaded, that after the accruing of the debts and causes of action, the defendant executed a deed, securing to the plaintiff a certain annuity; and that the plaintiff then accepted and received the same of and from the defendant in full satisfaction and discharge of all the said several debts and causes of action. The plaintiff replied, that no memorial of the annuity deed was enrolled pursuant to the statute; that the annuity being in arrear, the plaintiff brought an action to recover the amount

of the arrears; that the defendant pleaded in bar of that action the nonenrolment of the memorial, and that thereupon the plaintiff elected and agreed that the indenture should be null and void, as pleaded by the defendant, and discontinued the action. Held, a good answer to the plea, inasmuch as it showed that the accord and satisfaction thereby set up, had been rendered nugatory and unavailing by the act of the defendant himself. Upon the same principle it was held in Hall v. Smallwood, Peake's Add. Cas. 13, that if a bill of sale of goods is given in satisfaction of a bond debt, and it is afterwards discovered that the obligor had previously committed an act of bankruptcy, the obligee may abandon the bill of sale and sue out a commission against the obligor; and a co-obligor cannot plead the bill of sale as an accord and satisfaction, in an action against him on the bond. Coles v. Soulsby, 21 Cal. 47.

(y) Booth v. Smith, 3 Wend. 66, Webster v. Wyser, 1 Stew. 184. See chapter on novation.

At least this must be the case where the debtor and the stranger are principal and agent, or the transaction is such that the debtor may make it the act of the stranger as his agent, by his subsequent adoption and ratification.

An accord and satisfaction made before breach of covenant is not a bar to an action for a subsequent breach. (z) 1

SECTION V.

OF ARBITRAMENT AND AWARD.

Somewhat analogous to the defence of accord and satisfaction, is that of arbitrament and award. By the first the parties have agreed as to what shall be done by one to satisfy the claim of the other. By the second they have agreed to submit this question to third persons. (a) 2

This agreement may be made by the parties directly, or through their agency; and the authority to make this agreement may be

(z) And it is immaterial whether the covenant is to pay at a time certain, or upon a contingency. Healey v. Spence, 8 Exch. 668, 20 Eng. L. & Eq. 476; Mayor of Berwick . Oswald, 1 Ellis & B. 295, 16 Eng. L. & Eq. 236; Snow v. Franklin, 1 Lutw. 358; Alden v. Blague, Cro. Jac. 99; Neal v. Sheffield, id. 254; Kaye v. Waghorne, I Taunt. 428; Smith e. Brown, 3 Hawks, 580; Harper v. Hampton, 1 Harris & J. 673.

(a) The submission is, in fact, a con

tract, -a contract to refer the subject in dispute to others, and to be bound by their award. And the submission itself implies an agreement to abide the result, although no such agreement be expressed. Stewart v. Cass, 16 Vt. 663; Valentine v. Valentine, 2 Barb. Ch. 430. And a submission is valid and binding, although there is no agreement that judgment may be entered on the award. Howard v Sexton, 4 Const. 157.

1 This was because an obligation under seal conld only be dissolved by an instrument of equal dignity. The distinction was taken between an accord and satisfaction of the bond itself, which was held invalid, and an accord and satisfaction of damages for a breach of the bond or covenant, which was sustained. Blake's Case, 6 Coke, 43 b. How far this rule or distinction would be accepted at the present day may be doubtful. In Steeds v. Steeds, 22 Q. B. D. 537, 539, Wills, J., said: " It is clear that at law accord and satisfac tion of a debt due upon a bond is no bar to the action. This is, however, purely the result of a technicality absolutely devoid of any particle of merits or justice, viz., that a contract under seal cannot be got rid of except by performance or by a contract also under seal." And held that in equity delivery and acceptance of goods would operate as a satisfaction of a bond for the payment of a sum of money. And where equitable defences are allowed in an action at law, at least, such a satisfaction should be held a good defence. See Savage v. Blanchard, 148 Mass. 348, and cases cited.

2 The reference to an arbitrator of the subject-matter in dispute in a bill in equity, his award to be the basis of a final decree, is a waiver of the objection of an adequate remedy at law. Strong v. Willey, 104 U. S. 512. — K.

It may be by parol agreement. Kelley Adams, 120 Ind. 340; Cady v. Walker, 62 Mich. 157. Statutory methods of arbitration are often provided, but unless expressly so stated, a submission according to the rules of the common law is also valid. Kelley v. Adams, supra; Giles, &c. Printing Co. v. Recamier Mfg. Co. 14 Daly, 475; McCall v. McCall, 15 Southeastern Rep. 348 (S. C. 1895).

express or implied. The authority of an agent to submit the claims of his principal to arbitration has been much considered. No general authority to collect claims, or even to * compromise them, carries with it the power to submit 689 them to arbitration, (b) unless the power arises from a general usage, or is given by a rule of court. (c) But an attorneyat-law has this power by his office, (d) limited, as some courts hold, to claims already put in suit. (e) No officer of the United States has authority, by virtue of his office, to enter into a submission on their behalf, which shall be binding on them. (ƒ)

A submission, if it be not binding on both parties, is void; and therefore it is so, if it binds either to do that which he has no legal power to do. (f)

The first essential of an award, without which it has no force whatever, is, that it be conformable to the terms of the submis sion. (g) The authority given to the arbitrators should not be exceeded, and the precise question submitted to them, and neither more nor less, should be answered. Neither can the award affect strangers; and if one part of it is that a stranger shall do some act, it is not only of no force as to the stranger, but of no force as to the parties, if this unauthorized part of the award cannot be severed from the rest. (h) But if both the parties

And

son should join in a conveyance, is invalid.
Com. Dig. Arbit. (E. 1); Pits v. Wordal,
Godb. 165, Keilwey, 43 a, pl. 10.
see Brazil v. Isham, 1 E. D. Smith, 437.
So, that an action by one party and his
wife, against the other party should be
discontinued: Com. Dig. Arbit. (D. 4);
that the servant of one party should pay a
certain sum: Dudley v. Mallery, cited in
Norwich v. Norwich, 3 Leon. 62; or an
award that one party should become bound
with sureties for the performance of any
particular act: Oldfield v. Wilmers, 1
Leon. 140; Coke v. Whorwood, 2 Lev. 6;
that the party and one who had become
surety in the submission bond, should pay
the sum awarded: Richards v. Brocken-
brough, 1 Rand. 449. And an award
against one company will not bind another
company, consisting in part of the same
persons. Kratzer v. Lyon, 5 Pa. 274
Strangers to the submission may in some
instances be bound by silently acquiescing
in an award. Govett v. Richmond,
Simons, 1. And see Humphreys v. Gard
ner, 11 Johns. 61; Downs v. Cooper, 2 Q.
B. 256. An award that one party shall
cause a stranger to do a certain act, as to
deliver possession of land, is void. Martin
v. Williams, 13 Johns. 264. Or that one

to the submission are bound to pay a certain debt to a stranger, an award that one of them should pay is valid as to them. (hh)

Nor can it require that one of the parties should make a 690 payment or do any similar act to a stranger. (i) * But if the stranger is mentioned in an award only as agent of one of the parties, which he actually is, or as trustee, or as in any way paying for, or receiving for one of the parties, this does not invalidate the award. () And in favor of awards, it has been said that this will be supposed, where the contrary is not indicated. (k)

If the award embrace matters not included in the submission it is fatal. (7) Thus if a question of title be submitted, the arbitrators cannot award a purchase and sale of the property. (1) But

party should erect a stile and bridge on the premises of a stranger. Turner v. Swainson, 1 M. & W. 572. But an award directing one party and others to convey certain premises to the other, or that he alone should pay a certain sum in money, is not invalid as to the last part. Thornton v. Carson, 7 Cranch, 596. And the award will be binding if that which relates to a third party is separable. Sears v. Vincent, 8 Állen, 507.

(hh) Lamphire ». Cowan, 39 Vt. 420. (i) Breton v. Prat, Cro. Eliz. 758; 1 Roll. Abr. tit. Arbitrament (B), pl. 7; Adams v. Statham, 2 Lev. 235; In re Laing and Todd, 13 C. B. 276, 24 Eng. L. & Eq. 349.

(j) Com. Dig. Arb. (E. 7); Dudley v. Mallery, cited in Norwich v. Norwich, 3 Leon. 62; Bird . Bird, Salk. 74; Bedam . Clerkson, Ld. Raym. 123; Snook v. Hellyer, 2 Chitty, 43; Gale v. Mottram, W. Kel. 127; Lynch v. Clemence, 1 Lutw. 571; Macon v. Crump, 1 Call, 500; Inh. of Boston v. Brazer, 11 Mass. 447; Beckett v. Taylor, 1 Mod. 9, 2 Keb. 546; Bradsay v. Clyston, Cro. Car. 541.

(k) Bird v. Bird, 1 Salk. 74. But see Wood v. Adcock, 7 Exch. 468, 9 Eng. L. & Eq. 524, that the onus of showing that a payment to the third person is for the benefit of a party to the submission, lies on the party seeking to enforce the

award. And see In re Mackay, 2 A. & E. 356; Snook v. Hellyer, 2 Chitty, 43.

(4) Brown v. Savage, Cas. tem. Finch, 485; Warren v. Green, id. 141; Lynch v. Clemence, 1 Lutw. 571; Waters v. Bridge, Cro. Jac. 639; Hill v. Thorn, 2 Mod. 309; Doyley v. Burton, Ld. Raym. 533; Bonner". Liddell, 1 Brod. & B. 80; Culver v. Ashley, 17 Pick. 98. In this last case all demands between the parties were submitted to arbitration, and the arbitrators were authorized, in case they should find the plaintiff indebted to the defendant, to estimate the value of certain chattels of the plaintiff, and the defendant was to take them in part payment. The arbitrators found the plaintiff indebted to a less amount than the value of the chattels; but instead of appraising so much only of the chattels as would pay the debt, they awarded that the defendant should take them and pay the plaintiff in money the excess of their value beyond the amount of the debt. Held, that the arbitrators had exceeded their authority, and that the award was invalid. See also Shearer r. Handy, 22 Pick. 417; In re Williams, 4 Denio, 194; Thrasher v. Haynes, 2 N. H. 429; Pratt v. Hackett, 6 Johns. 14.

(1) Robinson v. Moore, 17 N. H. 479. See also Brown v. Evans, 6 Allen, 333.

1 When property other than that for which an award was to be made, was by mistake brought before the arbitrator, his award made in ignorance of the mistake is void. Cox v. Fay, 54 Vt. 446. An award of referees that the defendant, "his heirs and assigns," shall pay a certain yearly sum as damages for flowing the plaintiff's land, is void as in excess of authority, where the submission contains no reference to assigns. Littlefield v. Smith, 74 Me. 387. As to what is included in a reference of " partnership matters and accounts," see Fulmore v. McGeorge, 91, Cal. 611; or 'partnership matters." Joplin v. Postlethwaite, 61 L. T. Rep. 629. See also Fowler v. Jackson, 86 Ga. 337; Leslie v. Leslie, 24 Atlantic Rep. 319, (N. J. Eq. 1892.)

if all issues in the case" are referred, the arbitrator need not report specifically on all, as it is enough if he hears all, and reports the sum finally due. (lm) If, however, the portion of the award which exceeds the submission can be separated from the rest without affecting the merits of the award, it may be rejected as surplusage, and the rest will stand; otherwise the whole is void. (m) If the submission specify the particulars to *691 which it refers, or if, after general words, it make specific exceptions, its words must be strictly followed. (n) But if these words are very general, they will be construed liberally, but yet without extending them beyond their fair meaning. (0) On the other hand, all questions submitted must be decided, unless the submission provides otherwise; (p) and either party may object