SUPREME COURT OF ALABAMA.

V.

M'Connell

493 mises, and all controversies, whatever, at any time, heretofore JAN'Y 1831 had, made, or moved between the said William M'Connell and Henry Davis; said award to be delivered to the said par- Davis ties on or before the 15th day of October, 1828: and, further, that the said award or umpirage, be entered the judgment of this court, at this present term; and, it further appearing to the satisfaction of the court, that the said William C. Coolidge, Lee Slaughter and Charles O. Foster, did, on the 13th October, 1828, present and deliver their award, in all things conforming to the condition of said bond, whereby they awarded that the said William M'Connell was justly entitled to receive, from said Henry Davis, the sum of $2,563 58;" for which sum the Circuit court gave judgment. Several matters were assigned as error, but the court only noticed one; which was that it did not appear that there was an order, either of a court or a judge, submitting the matters in controversy to the arbitrators.

BAGBY, for the plaintiff in error, relied on 1 Bacon, 139, 141, 203, 211, 261-2; Croke Charles, 263; Raymond, 123, 206, 761; Modern Reports, 12; 1 Salkald, 71-2; Law of Arbitrators, 119; Alabama Digest, 9, 10; 12 Wheaton's Reports.

DELLET, for defendant in error.

By JUDGE TAYLOR. The question occurs, was the judgment of the Circuit court authorised by law; for I understand the assignment of error, that there was no order, submitting the matters in controversy to the arbitrators, as bringing this question before us, for our decision.

It cannot be pretended, that this award was made, under either the statute of 1819, or that of 1824, which prescribe the manner in which submissions of differences between parties, either before or after suit brought, shall be made to arbitrators. These are the only statutes we have on the subject: Therefore it is a common law award, and the judgment rendered on it, must be tested by common law rules. At common law, awards stand the same light with other agreements. When fairly and properly made, they are considered as agreements between the parties to them, which will be enforced in a court of law. But they must be enforced by regular suit, and the party, in whose favor an award is made, cannot bring it into court, and have it made the judgment of the court; but must sue out his writ, file his declaration and proceed, as in other cases. The

V.

JAN'Y 1831 only authority for the judgment in this case, is that part of the condition of the bond executed by Davis, by which he Davis agrees that the award, when made, shall be entered as the judgment of the court. What do we understand by this agreement? My understanding of it, is, that Davis binds himself to confess a judgment, for the amount which may be awarded against him. The only construction which can be given to the bond, other than this, is, that it is a power of attorney, authorising a judgment to be confessed by another person, or persons, for Davis. But in whom is this power vested ?— Is it in the arbitrators? It does not appear that they so considered it, for they have not exercised any such power. But the instrument executed by Davis, bears no resemblance to a power of attorney; it is a bond, with conditions, and if those conditions have been violated the obligee must proceed against the obligor, as in all other cases in which a party violates his contract by regular action. It is true, in this case he may elect to proceed upon the bond or award, but, although Davis may have violated his contract, by which he agreed the award should be made the judgment of the court, the summary remedy of a judgment upon motion, cannot be given against him. He may have defences to make, when sued, and the Circuit court was not authorised, in this way, to preclude him from doing so.

Suppose A. was to give a bond to B., payable six months after date, for a thousand dollars, with a condition, that if not paid, B. should be entitled to judgment upon producing the bond at the first term of the Circuit court, which should be held after its maturity-would the court be authorised, by law, to give judgment, upon the production of the bond, according to this condition? I think not. If a decision of this kind were made, we should soon see such conditions appended to all the instruments for the payment of money executed in the State, and the courts of Chancery would be resorted to by every person, who had, or believed he had a defence.

The judgment is reversed.

JUDGE CRENSHAW dissenting.