(k) Bird v. Bird, 1 Salk. 74. But see Wood v. Adcock, 7 Exch. 468, 9 Eng. L. & Eq. 624, that the onus of showing that a

If the award embrace matters not included in the submission it is fatal. (l)1 Thus if a question of title be submitted, the arbitrators cannot award a purchase and sale of the property. (ll) But 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 which it refers, or if, after general words, it make specific exceptions, its words must be strictly followed. (n) But if these 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. & £. 856; Snook v. Hellyer, 2 Chitty, 43.

(l) Brown v. Savage, Cas. tern. 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 v. 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 v. Handy, 22 Pick. 417; In re Williams, 4 Denio, 194; Thrasher v. Haynes, 2 N. H. 429; Pratt v. Hackett, 6 Johns. 14.

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

(lm) Heckers v. Fowler, 2 Wallace, 123.

(m) Taylor v. Nicolson, 1 Hen. & words are very general, they will be construed liberally, but yet without extending them beyond their fair meaning. (o) On the other hand, all questions submitted must be decided, unless the submission provides otherwise; (p) and either party may object to an award that it omits the decision of some question submitted; but the objection is invalid if it be shown that the party objecting himself withheld that question from the arbitrators. (q) Nor is it necessary that the award embrace all the topics which might be considered within the terms of a general submission. It is enough if it pass upon those questions brought before the arbitrators, and they are so far distinct and independent that the omission of others leaves no uncertainty in the award. (r)

Mun. 67; Richards v. Brockenbrough, 1 Rand. 449; McBride v. Hagan, 1 Wend. 826; Clement v. Durgin, 1 Greenl. 900; Philbrick v. Preble, 18 Me. 255; Banks v. Adams, 23 id. 259; Lyle v. Rodgers, 6 Wheat. 394; Walker v. Merrill, 13 Me. 173; Gordon v. Tucker, 6 Greenl. 247; Pope v. Brett, 2 Saund. 293, and note 1; Addison v. Gray, 2 Wilson, 293; Cromwell v. Owings, 6 Harris & J. 10; Martin v. Williams, 18 Johns. 264; Cox v. Jagger, 2 Cowen, 638; Gomez v. Garr, 6 Wend. 583, 9 id. 649; Brown v. Warnock, 5 Dana, 492. For it is well settled, that an award may be good in part, and bad in part. Rixford v. Nye, 20 Vt. 132; Fox v. Smith, 2 Wilson, 267; Addison v. Gray, id. 293; Leominster v. Fitchburg R. R. Co. 7 Allen, 38; Griffin v. Hadley, 8 Jones, L. 82. The objection that the award does not follow the submission is one that may be waived by the parties, and their promise to abide by it, or other acquiescence, may render it valid. M'Cullough v. Myers, Hardin, 197; McDaniell v. Bell, 3 Hayes, 258; Culver v. Ashley, 19 Pick. 300; Frothingham v. Haley, 3 Mass. 70; Cairnes v. Bleecker, 12 Johns. 300. And the party in whose favor an award is made, cannot object that a certain particular found for him was not authorized by the submission. Galvin v. Thompson, 13 Me. 867. A fortiori, third persons cannot impeach an award because it does not follow the submission, if the parties themselves do not object Penniman v. Patchin, 6 Vt. 325. (n) Scott v. Barnes, 7 Penn. St 134.

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.

The testimony of arbitrators is admissible, to show whether a certain claim was included in their award. (rr) * If the award does not embrace all of the matters within the submission which were brought to the notice of the arbitrators, it is altogether void. (s) If no partiality or corruption be alleged, and the award is on its face unobjectionable, evidence will not be received to show that a claim was considered which afforded no legal ground for damages. (ss)

(o) Monro v. Alaire, 2 Caines, 820. A submission of all demands extends to real as well as personal property Byers v. Van Deusen, 6 Wend. 268. A submission of "all business of whatever kind in dispute between the parties," includes a prosecution for an assault and battery, pending. Noble v. Peebles, 18 S. & R. 319. A submission of "all causes of action," includes a charge of fraud in a sale of certain property. De Long v. Stanton, 9 Johns. 38. But a submission of "all unsettled accounts" does not authorize an award dividing all the personal property owned in common by the two parties, and that each should pay one-half the debts contracted by either, and that one should pay the other $260. Shearer v. Handy, 22 Pick. 417. Under a submission of all demands, prospective damages on a bond of indemnity then outstanding, may be taken into consideration. Cheshire Bank v. Robinson, 2 N. H. 126. In Thoreau v. Pallies, 6 Allen, 854, it was held, that under a submission of an action to an arbitrator, with an agreement that he may pass upon all questions of costs, an award fixing the amount of costs in gross, is prima facie valid.