#### DEN EX DEM. MARY DUNCAN v. ROLAND DUNCAN.

Where an action of Ejectment was referred, by rule of Court, to arbitrators, and they awarded as follows'. “ We find the plaintiff in the case, Mary Duncan, has at various times paid to Roland Duncan, in cash, notes and property valued $1544: we therefore award to herf the whole amount of land purchased of the executors of Charles Finley, dec’d, to be taken off of the upper part of said land.” Held that this award was not only uncertain, but that it went beyond the rule of reference, and therefore the Court will notenter judgment on it.

This was an appeal from the judgment of the Superior Court of Law of Burke county, at Spring Term, 1841, his Honor Judge Battle presiding, ordering an award which had been made in the case to be set aside. Three several suits were pending between these parties, of which one was *467an action of Trespass quare clausum fregit, another an action of trespass on the case in assumpsit, and the present action of ejectment. They were, by separate and distinct rules of court, referred to the same persons as arbitrators, who returned, so far as regards this case, the following award: “In the case of ejectment, we find the plaintiff in the case, Mary Duncan, has at various times paid to Roland Duncan in cash, notes and property valued fifteen hundred and forty four dollars. We therefore award to her three-fourths of the whole amount of land purchased of the executors of Chas. Finlay, dec’d, to be taken off of the upper part of said laud.” To this award the defendant filed the following exceptions: “ The defendant excepts to the award made in the several cases named in the said award, 1st, because the referees have embraced in their award questions not submitted to them; 2d, because the award is vague and uncertain; 3d, because they have not awarded on all the matters submitted to them.” The exceptions, so far as they relate to the present case, were sustained by the court upon the ground that the arbitrators had exceeded their authority in assuming to decide upon what part of the land in controversy the plaintiff’s lessor should take the share, to which they found she was entitled, the award was accordingly ordered to be set aside and the lessor of the plaintiff, by permission of the court, appealed from this order.

D. F. Caldwell for the plaintiff,

contended that arbitrators had more power than courts, and that an award could only be set aside at law for error apparent on thé face of it or for corruption in the arbitrators. Caldwell on awards 52, 53. Fontaine vs. Carson, 7 Cranch 596. Waugh vs. Mitchell, 1 Dev. & Bat. Eq. 510. Pierce vs. Perkins, 2 Dev. Eq. 250.

Alexander for the defendant.

Arbitrators can only decide what is submitted to them, and, in this case, that -which was submitted to them was only what would have been submitted to a jury, if the case had been tried in court. Harding vs, Beattie, 4 Dev. & Bat. 381. 2 Chitt. Geni. Practice 106. They have gone beyond this submission, and *468besides, their award is so vague andjincertain that the court cannot pronounce judgment on it.

Gaston, J.

In the case made for the consideration of this court, it is stated that the exceptions taken by the defendant to the award, returned by the referees, were sustained by the court and the award set aside. If we are to understand by this, that the court decreed that the plaintiff should not be permitted to avail herself of that award in anyway, either by action or by a bill in equity, we should hold sqch decree erroneous; first, for that it transcended the jurisdiction of the court, and secondly, because, though the award might not be warranted by the rule oí reference, non constat but that there was a more extensive submission, that might render it available between the parties. But we do not so understand the act of the court. By a rule of court in this cause the matter therein depending was referred, and the award, if sanctioned by the court, was according to our practice to become a judg ment. Exceptions were made to it, as an award under that rule, and the court sustained these exceptions; and set it aside so far as to refuse to render a judgment thereon. In doing this we are of opinion there was no error.

There are objections to the award, which we think insuperable. The submission can be understood as extending no further than to the matter disputed in the suit — the right of the plaintiff to the possession of the premises described in the declaration. Under this submission, the referees “ find that the plaintiff Mary Duncan has paid the defendant Roland Duncan $1544, and therefore award to her three fourths of the whole amount of land purchased of the executors of Charles Finlay deceased, to be taken off of the upper part of said land.” What is the had purchased from the executors of Finlay? There are eight distinct tracts set forth in the declaration. Are all these embraced within this description? If not all, which of them are comprehended therein? The award is wholly uncertain in this respect — and nothing appears whereby that uncertainty can be removed.

But they award to Mary Duncan three-fourths of this land, “ to be taken off of the upper part.” From the strong *469disposition which Courts feel to support awards, and the sequent liberality in expounding them, an award to Mary Duncan of the land described in the declaration, or any defined part thereof in severalty, or of any undivided share thereof, might be understood, by reference to the action, as a finding that judgment be rendered for the whole, or such part, or such undivided share. But they award three-fourths, to be taken off of the upper part. This cannot be done by a judgment in ejectment. How is it to be done? It must be by some future action of the parties. And when we connect this future action with the introductory part of the award, setting forth that Mary Duncan has paid so much on account of the land, we are obliged to understand that the referees intended to decree that the defendant should convey such an interest. So understood, the award goes beyond the rule of reference.

It has been argued that judgment may be entered for the three undivided fourth parts, disregarding the direction that they be taken off of the upper part of the land. But this we cannot do, for it would be to alter the award. It does not consist of two distinct matters — the one within, the other without the submission — but it is one indivisible award, and judgment must be rendered in pursuance thereto or not at all.

Per Curiam, Ordered that this opinion be certified to Court below.