(p) Browne v. Meverell, Dyer, 216 6; Cockson v Ogle, 1 Lutw. 560; Freeman v. Baspoule, 2 Brownl. & G. 809; Bean v. Newbury, 1 Lev. 139; Winter v. Munton, 2 J. B. Moore, 729; Richards v. Drinker, 1 Halst. 307; Jackson v. Ambler, 14 Johns. 96; Wright v. Wright, 5 Cowen, 197. If, however, after the making of the submission, some portion of the claims embraced in it be withdrawn from the consideration of the arbitrators, by an agreement of the parties, and an award be published, with their assent, embracing only the remaining claims, such an award will be valid. Varney v. Brewster, 14 N. H. 49. If the award does not, in terms, decide all the matters submitted, yet if the thing awarded, necessarily includes all other things and matters mentioned in the submission, this is sufficient. Smith v. Demarest, 3 Halst. 195; Sohier v. Easterbrook, 5 Allen, 311. The omission of some items must clearly appear. M'Kinstry v. Solomons, 2 Johns. 57, 13 id. 27; Kleine v. Catara, 2 Gallis. 61; Karthaus v. Ferrer, 1 Pet. 222. See further Winter v. White, 8 J. B. Moore, 674, 1 Brod. & B. 850; Athelston v. Moon, Comyns, 547; Harris p. Wilson, 1 Wend. 511; Kilburn v. Kilburn, 13 M. & W. 671.

(q) Page v. Foster, 7 N. H. 392. And see Smith v. Johnson, 15 East, 213; Metcalf v. Ives, Cas. temp. Hard. 850 Under a sealed submission, the parties cannot, at the hearing, by a parol agreement, withdraw one item embraced in the submission. Howard v. Cooper, 1 Hill, 44.

(r) McNear v. Bailey, 18 Me. 251; Pinkerton v. Caslon, 2 B. & Ald. 704; Garland v. Noble, 1 J. B. Moore, 187; Biggs v. Hansel, 16 C. B. 562. Arbitrators are presumed to have acted upon all matters submitted, until the contrary is shown. Parsons v. Aldrich, 6 N. H. 264; Emery v. Hitchcock, 12 Wend. 156. But see King v. Bowen, 8 M. & W. 625. (rr) Hale v. Hue, 10 Gray, 99.

In the next place an award must be certain; that is, it must be so expressed that no reasonable doubt can be entertained as to the meaning of the arbitrators, the effect of the award, or the rights and duties of the parties under it. (t) For the very

(s) In Houston v. Pollard, 9 Met. 164, by an agreement of submission to arbitration, the arbitrators were to determine between A and B, 1st, whether A had finished a certain dwelling-house according to his contract with B; and what, if anything, remained to be done upon the house by A; and how much, if anything, remained to be paid by B to A; and what damage, if any, should be deducted and allowed to B for the failure of A to perform the agreement to build the house. 2d. To determine and decide what amount, if any, remained to be advanced by B to A; and what remained to be done, if anything, by A, upon a certain other dwelling-house, to finish it, conformably to another contract between him and B. And the parties agreed to do and perform to each other whatever might be ordered by the arbitrators to be done by them respectively. The arbitrators awarded that B should pay a certain sum to A, in fulfilment of the contract for building the first-mentioned house; and that another certain sum remained to be advanced by B to A, in fulfilment of the contract for building the other house. Held, that the arbitrators had not decided all the matters submitted to them, and that their award was therefore bad. See also In re Rider and Fisher, 3 Bing. N. C. 874, where, in a dispute upon a building contract, arbitrators were to award on alleged defects in the building, on claims for extra work, and deductions for omissions; and to ascertain what balance, if any, might be due to the builder. An award, ordering a gross sum to be paid to the builder, without any decision on the alleged defects, was held ill.

(ss) Rundale v. La Fleur, 6 Allen, 480.

(t) Hawkins v. Colclough, 1 Burr. 274; Schuyler v. Van Der Veer, 2 Caines, 286, an excellent case on this subject. And it is not sufficient merely that the parties and the arbitrators could understand it. The award should be in terms so clear and intelligible that every one who reads it may comprehend it Grata v. Grata, 4 Rawle, 411. A few instances of a fatal uncertainty in awards are given below. Thus, an award directing one party to give a bond, without saying in what sum. Samon's case, 6 Rep. 77. And see Bacon v. Dubarry, 1 Ld. Raym. 246. To give "good security" for a certain sum, without saying what security. Jackson v. De Long, 9 Johns. 43; Thinne v. Rigby, Cro. Jac. 314; Tipping v. Smith, 2 Stra. 1024; Duport v. Wildgoose, 2 Bulstr. 260; Barnet v. Gilson, 3 S. & R. 340. But see Peck v. Wakely, 2 McCord, 270, where an award to give "sufficient indemnity" was held not uncertain, these words being construed to mean, the defendant's own personal obligation. So to convey the right of one party to said farm, where no farm had been mentioned: Brown v. Hankerson, 8 Cowen, 70; or that one party should pay £5, and other small things: Rudston v. Yates, March, 144; or as much as should be due in conscience: Watson v. Watson, Styles, 28; or as much as certain land should be worth: Titus &. Perkins, Skinner, 248; or as much as a quarter of malt should be worth: Hurst v. Bambridge, 1 Roll. Abr. tit Arb. (Q) pl. 7; that one party should give up a certain obligation, dated of a given date, but not otherwise identifying it. Sheppard v. Stites, 2 Halst 90. And see McKeen v. Allen, 2 Harrison, 600; Bedam v. Clerkson, Ld. Raym. 124. Or to give up "Several books." Cockson v. Ogle, 1 Lutw. 560. Or an award of three-fourths of the whole land purchased of C. F., to be taken off the upper part of said land. Duncan v. Duncan, 1 Ired. 466. Contra, of an award that one party should convey to the other all the lands he held by a certain deed from A. Whitcomb v. Preston, 13 Vt. 53. See other instances in Clark v. Burt, 4 Cush. 396; Calvert v. Carter, 6 Md. 186; Thomas v. Molier, 8 Ohio, 266; Waite v. Barry, 12 Wend. 377; Young v. Reuben, 1 Dall. 110; Hazen v. Addis, 2 Green, 338; Hopcraft v. Hickman, 2 Simons & S. 130: Walsh v. Gilland disputes; * and this is inconsistent with uncertainty. But this certainly is not required to an unreasonable or impracticable degree; it should be a certainty to a common intent; and the nature of the subject should be considered; and if that which is left uncertain by the words of the award can be made perfectly certain by a reference to a standard which the award presents, this is sufficient. (u) An award may be in the alternative. (v) If it be that one party shall pay the other a certain sum, but no time of payment be fixed, the award is not uncertain, because the sum awarded becomes payable immediately, or within a reasonable time. (w) purpose of the submission, and the end for which the law favors arbitration, is the final settlement of all questions mor, 3 Harris & J. 383; Lyle v. Rodgers, 6 Wheat. 394; Stonehewer v. Farrar, 9 Jur. 203; Kendal v. Symonds, Exch. 1855, 30 Eng. L. & Eq. 652; Parker v. Eggleston, 6 Blackf. 128; McDonald v. Bacon, 3 Scam. 428; Callahan v. M'Alexander, 1 Ala. 366; Williams v. Wilson, 9 Exch. 90. In Lincoln v. Whittenton Mills, 12 Met. 31, an oral agreement was made by L., a land-owner, and the owners of mills, who flowed his lands, to submit to referees the question, what damages he should receive. The referees made a written award, "that the Taunton Manufacturing Company, and the owners of mills or their assigns, shall pay to L." a certain sum annually, "so long as said company and others keep up their dam, and flow as heretofore; with the understanding and agreement, that if said company and others shall discontinue their dam, the said L., his heirs or assigns, shall be entitled to such damages as it appears his land sustains in consequence of former flowing, until they arrive at their primitive goodness." The words "accepted and agreed to " were written on the award, and signed by L., and by "C. R. by authority of the flowers," and L. was paid, for several years, the amount mentioned in the award; but it did not appear by whom the payment was made. C. R. was not, at the time of his accepting the award, the agent of the Taunton Manufacturing Company, nor appointed by them for that purpose. The said company afterwards ceased to do business, and their mills passed to other owners, who continued to flow L.'s lands, but refused to pay the full amount of damages awarded by the referees, and offered him a less amount. L. refused to receive the amount so offered, and filed a complaint, in common form, under the Rev. Stat. c. 116, praying for a jury to estimate the damages caused by flowing his lands. Held, that the award was void, because it was neither certain nor final; that if the award had been valid, it would not have bound the respondents, on the facts of the case; and that L. was entitled to proceed on his complaint. And Wilde, J., said: "This case turns on the question whether the award of arbitrators, relied on in the defence, is valid and binding on the parties to the present suit. An award is in the nature of a judgment, and, to be valid, must be certain and decisive as to the matter submitted, so that it shall not be a cause of a new controversy. Samon's case, 5 Rep. 77; Bac. Abr. Arbitrament and Award, E. 2. And although an award may be good in part, and in part void, yet this rule applies only to awards in which the parts of the award are distinct and independent of each other. So an award may be conditional; but if the condition leads to a new controversy, the award is void. According to these principles, we are of opinion that the award in question is void, as being vague and uncertain, and not final as to the matter submitted to the arbitrators. The award is sufficiently certain as to the actual payment to be made by the owners of the reservoir dam to the complainant; but it is expressly on the understanding and agreement, that if the Taunton Manufacturing Company and others shall discontinue said dam, the complainant, his heirs and assigns, 'shall be entitled to said damage as it appears his lands sustained in consequence of former flowing, until they shall arrive at their primitive goodness.' It is clear, we think, by the part of the award, that it is not final and certain between the parties; but that the matter submitted is left open to a future controversy on the contingency of the discontinuance of the dam." See also Fletcher v. Webster, 5 Allen, 666, where it is held, that an award is not valid which provides for the payment by one of the parties to the submission of a certain sum, after making deductions therefrom of sums which are not fixed by or capable of being ascertained from the award. In Johnson v. Latham, 1 Prac. Rep. 348, 4 Eng. L. & Eq. 203, an arbitrator had to decide upon the depth at which the defendant was entitled: to keep a weir which penned back the water of a river, so as to interfere with the plaintiff's mill higher up the stream, and to determine all manner of rights of water between the parties. The arbitrator awarded that the defendant was entitled to maintain his weir to the depth of fourteen inches, and no more; and added, that he had caused marks to be placed, which marks pointed out the depth the defendant was to keep his weir, and that a plan annexed to the award correctly defined and described the depth of the weir and the marks. Held, that the award sufficiently pointed out the depth of the weir, and was sufficiently precise, although it made no provision for the case of floods, or for regulating the depth of the paddle in the defendant's weir, by which the water could be let off. And see Pike v. Gage, 9 Foster, 461.