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) 1

This agreement may be made by the parties directly, or through their agency; and the authority to make this agreement may be 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 * compro mise them, carries with it the power to submit them to arbitration, (b) unless the power arises from a general usage, or is given by a rule of court. (c) But an attorney-at-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. (f)

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. (ff)

The first essential of an award, without which it has no force whatever, is, that it be conformable to the terms of the submis(a) The submission is, in fact, a contract, - 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.

(b) Alexandria Canal Co. v. Swann, 5 How. 83.

(c) Buckland v. Conway, 10 Mast. 396; Henley v. Soper, 8 B. A C. 16.

(d) Filmer v. Delber, 3 Taunt. 486; Wilson v. Young, 9 Barr, 101; Holker v. Parker, 7 Cranch, 436; Talbot v. M'Gee, 4 T. B. Mon. 377.

(e) Jenkins v. Gillespie, 10 Smedes & M. 31; Scarborough v. Reynolds, 12 Ala. 252.

(f) United States v. Ames, 1 Woodb. & M. 76.

(ff) Yeamans v. Yeamans, 90 Mass. 585.

1 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 objections of an adequate remedy at law. Strong v. Willey, 104 U. S. 512.

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 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 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. (j) And in favor of awards, it has been said that this will be supposed, where the contrary is not indicated. (k)

(g) 1 Roll. Abr. tit Arbitrament (E); Hide v. Petit, 1 Ch. Cat. 185; Solomons v. M'Kinstry, 18 Johns. 27. Neither arbitrators nor courts can substitute another agreement for the one actually made by the parties. Howard v. Edgell, 17 Vt. 9.

(h) 1 Rol. Abr. tit. Arbitrament (E). An award directing a qui tam action to cease, is therefore bad. Philips v. Knightley, 2 Stra. 908. So an award that a stranger to the submission should give bond as a security, for the performance of the award; or that one party's wife and son should join in a conveyance, is invalid. Com. Dig. Arbit. (E. 1); Pits v. Wordal, Godb. 165, Keilwey, 43 a, pl. 10. And 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. Brockenbrough, 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 Penn. St. 274. Strangers to the submission may in some instances be bound by silently acquiescing in an award. Govett v. Richmond, 7 Simons, 1. And see Humphreys v. Gardner, 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, 18 Johns. 264. Or that one party should erect a stile and bridge on the premises of a stranger. Turner v. Swainson, 1 M. & W. 672. 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 Allen, 607.

(hh) Lamphire v. Cowan, 89 Vt. 420.

(i) Breton v. Prat, Cro. Eliz. 768; 1 Roll. Abr. tit. Arbitrament (B), pl. 7; Adams v. Statham, 2 Lev. 236; In re Laing and Todd, 18 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 v. Bird, Salk. 74; Bedam v. Clerkson, Ld. Raym. 128; 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. 641.