Drane v. Hodges

D. Dulany’s opinion. IT is unnecessary to consider the qualities of an award, but as they respect the present dispute. An award, in this view, may be described under the character of a judgment, given by judges chosen by the parties, to decide some matter in controversy. Arbitrators, as private men, having no authority independent of their commission derived from the voluntary act of the parties, that is necessarily circumscribed by the terms of this. 1 Bac. 131. 139.

It is self evident, that the parties cannot confer an authority1; which they cannot themselves exercise. Ibid. 132. Having regard to the subjects of arbitration, with the view above suggested, an award may determine the right thereto, by its own proper operation, or direct the means by which the right may be acquired or settled. This is a consequence from the premises, but will be more clear from instances.

When .the subject is (e. g.~) a chattel transferable by the party without solemnity, the award may sua vi, establish the right of property. Ibid. 135. Dy. 182. pi. 57. S. C. Cro.

Eliz. 223. When the subject is (e. g.) a freehold not transferable without the solemnity of conveyance, an award declaring the right of property is void, because the necessary solemnity is wanting ; and yet the right of freehold is as submissible, as the property of chattels. The difference is, that in the latter case the property is determinable, in the former it is not; but a further act is requisite. Considering the award as remedial, an action will lie on award to recover in debt; but not in ejectment. ²⁷¹ Ibid. 132. 1 Ld.

Raym. 115. 3 Black. Com. 16. The case Vin. tit. Partition, 221. in margine, will serve to illustrate and confirm this idea.

The partition was the subject; the award was precise in the allotment of severalty, but held to be void; because since 29 Car. II. there could not be partition without deed. That which is void, is in the consideration of law, a nonentity. A conveyance intended, but not perfected according to the legal requisites, is no conveyance ; i. e. it has no operative quality of a conveyance, so of award.

Dal. 43. pi. 27. Plow. Com. 399. 10 Rep. 131. 6 Har. 12 . 5 Co. 78. The case in Strange of the post mortem inquisition, as far as it goes, is to the same effect; for it was admitted in evidence, because void able only.

An award being in the nature of a judgment, must therefore, have a determinate and final effect. Bac Abr. 139. 147. 2 Stra. 10. 24. Burr. Rep. 277, 278.

There can be no accidents, to speak in the language of Lord Hobart, without a substratum. That which does not exist, cannot have any positive quality; to apply the epithets determinate and final, to a mere nullity, would therefore be to confound language. For the reasons assigned, I am of