5. It is improper to award an execu-
tion for costs against an adminis-
trator, suing in such capacity, even
against the estate, in the hands of
the administrator; but the proper
course is to order that the costs of
suit be paid in the due course of
administration.
Ibid.
6. An administrator has no authority
to sell the personal property of his
intestate at private sale; and for the
preventing of such sale no action
will lie.
Ibid.
7. A declaration, in an action by an
administrator against a wrong-doer,
for an injury sustained by the acts
of the latter, in threatening to pro-
secute any person who should pur-
chase or remove certain personal
property offered for sale at an ad-
ministrator's sale, should allege
special damages, or the action can-
not be maintained. And the plain-
tiff must show that the damages
actually accrued in consequence of
the wrongful acts of the defendant,
and not in any degree in conse-
quence of the negligence or omis-
sion of the plaintiff. It is not suf-
ficient to state in such declaration
that the plaintiff was about to offer
the property for sale. The decla-
ration should show that the plaintiff
offered the property for sale, or
made some effort to sell it. Ibid.
8. Sed quere, Whether an action can
be maintained for such injury.
Ibid.
See ATTACHMENT 16, 24; CHAN-
CERY 44, 45, 46; FORGERY; SUR-

VIVOR.

ADMISSION.

See CRIMINAL LAW 8; EVIDENCE
23, 29, 30, 31.

2. When amendments are allowed,
the Court usually imposes terins
upon the party at whose instance the
amendments are made, as the pay-
ment of costs. This, however, be-
ing a matter addressed to the sound
discretion of the Court, its decision
thereon cannot be assigned for
Ibid.

3.

error.

Where the misnomer of a defend-
ant is pleaded in abatement, the
plaintiff may amend his declara-
tion, even after a demurrer has been
filed to such plea, and withdraw the
demurrer, and take issue upon the
plea.
Ibid.
4. The defendant in error moved the
Court to amend the record of the
judgment in the Supreme Court. by
the transcript from the Court below,
by erasing James, and inserting
Isaac, as the Christian name of the
defendant in error, and by adding
to the judgment in the Court be-

low, the interest due on the judg-
ment in that Court, from the time
the same was rendered, to the time

of the rendition of the judgment in
the Supreme Court. The judg-
ment in the Court below was for
$200 debt, and $6.50 damages, and
was so entered on affirmance in the
Supreme Court, at the last term.
The motion was allowed, and the
record accordingly amended. Dun-
can v. McAfee,
93

5. The Supreme Court will not per-
mit an amendment to be made in
that Court, of the process issued
from a Circuit Court, by correct-
ing a probable mistake of the clerk
of the Circuit Court, in the date of
the process.
Ellis et al. v. Ew-
banks,
190
6. Amendments are reducible to no
certain rules. They rest, for the
most part, in the discretion of the
Court. Martin v. Russell et ux.,
343

7. Where a good cause of action has
been definitely stated, it is usual to
allow one or more amendments;
but when there is an improper join-
der of causes of action, as slander
by the wife, and a joint slander by
the husband and wife, an amend-
ment cannot be allowed. Ibid.
8. A declaration in a suit against two,
husband and wife, for slander, can-
not be amended by striking out
those counts which allege a joint
slander, and leaving those only
which allege slander by the wife,
where the writ was against the two,
without naming them as husband
and wife.
Ibid.
See ATTACHMENT, 1, 2, 3, 11;
CHANCERY, 27; Costs, 2; JURIS-
DICTION, 2; PLEADING, Declara-
tion, 3, 11; PRACTICE, 4, 6, 27;
PRACTICE, In Circuit Court, 2, 15,
16-In Supreme Court, 14, 15, 20;
PROCESS.

169

From the Circuit to the Supreme Court.
4. Where an appeal is prayed for in
the name of several defendants,
and is granted upon condition that
the defendants enter into bond, it
is not a compliance for one of the
defendants to execute the bond,
without the others. Carson v.
Merle et al.,
5. Where an appeal is granted upon
the party's entering into bond with-
in thirty days, the time is to be
computed from the day on which
the order was made; and not from
the last day of the term of the
Court.
Ibid.
6. Where an appeal is taken in the
name of two of three defendants,
and the bond is executed by
only one of the appellants, and the
other defendant who did not ap-
peal, the appeal will be dismissed.
Ryder et al. v. Stevenson,

APPEARANCE.

540

ARBITRATION.

1. A submission of a special matter
or thing, which is alleged to be the
cause of difficulty and dispute, and
a decision upon it, would take away
all causes of action of which that
matter or thing might have been
the foundation. Gerrish et al. v.
Ayres et al.,
248

2. The Court will intend, in all cases
where an award consists in direct-
ing one or more things to be done
by one party only, without anything
being awarded to be done by the
other party, that the things so
awarded are to be in satisfaction of
the claims of that other party.

Ibid.

3. An award by arbitrators bars all
suits springing out of the subject
matter of the award.
Ibid.
4. In construing instruments of sub-
mission to arbitration, courts al-
ways give as large a construction to
them as the words of the instru-
ment, and the intention of the par-
ties, drawn from their own words,
will warrant.
Ibid.
5. A bond of submission to arbitra-
tion recited that there were differ-
ences and disputes between the par-
ties, arising from, and in conse-
quence of the defendants' having
erected a certain dam, and submit-
ted to the arbitrators to arbitrate,
award, order, adjudge, and deter-
mine, of, for, upon, and concerning
the number of feet or inches the
dam should be cut down or lower-
ed, if any, so as not to damage or
injure the plaintiffs' mill; as also
the damage which might have been
sustained, or how much, from the
water of the dam; and also of and
concerning all manner of actions,
suits, controversies, trespasses, da-
mages, and demands whatsoever, at
any time or times heretofore made,
brought, moved, commenced, sued.
prosecuted, done, suffered, com-
mitted, or depending, by or between
the plaintiffs and defendants, for or
by reason of any other matter, or
cause, or thing whatsoever, from
the beginning of the world to the
day of the date thereof, which was
the 15th day of August, 1839. On
the 22d day of August, 1839, the
arbitrators made and published their
award, by which they ordered and
adjudged that the defendants should
cut down that part of their dam

next to and adjoining their saw
mill, so that the same should be as
low as the middle of said dam, or
the top of the planking over which
the water fell at the day of the date
of the award, and that the defend-
ants should, on or before the 1st
day of October, 1839, pay the plain-
tiff's the sum of $10, in full satis-
faction of all demands, &c., and
that all actions between the parties,
for any cause, arising at or before
entering into the bond of arbitra-
tion, should, from the date of the
award, cease: Held, that a fair in-
terpretation of the submission must
lead to the conclusion, that it was
the honest intention of both par-
ties, by the arbitration, to settle all
controversies about the dam, for all
time to come-to remove the cause
of quarrel forever; and that the
award was in conformity with the
submission, and certain, mutual,
and final, and its performance, on
the part of the defendant, was a
good bar to an action commenced
by the plaintiffs against the defend-
ants, in March, 1840, for erecting
the dam, by which their mill, higher
up the stream, was injured, and
their ford destroyed.
Ibid.
6. There is scarcely any exception
whatever to the rule, that all ac-
tions at law, and suits in equity, or
causes of action may be referred to
arbitrators.
Ibid.
7. An agreement to refer to arbitra-
tion does not oust the courts of law
of their jurisdiction. Frink et al.
v. Ryan,

8.

324

As a general principle, an award
to be obligatory on the parties,
must decide all the matters con-
tained in the submission. But this
rule is subject to some exceptions;
as where the submission is of seve-
ral distinct subjects, an award de-
termining some only will be good,
if it appear that those not decided
were withdrawn from the conside-
ration of the arbitrators, or that the
parties failed to submit the evidence
concerning them. And where the
submission is general, of all mat-
ters in difference, without specify-
ing them, the award will be good,
if made as to all questions brought
to the notice of the arbitrators on
the hearing. In such cases the
award can be enforced, as to all
questions decided by it, leaving the

parties to resort to their original
remedies for the settlement of the
questions undetermined. In some
cases the award may be void in
part, and good as to the residue;
as where the arbitrators assume to
decide questions not submitted to
them, their award to that extent is
void, and binding as to those which
were submitted. So on a general
submission, the award will not be
conclusive upon a matter not
brought to the notice of the arbi-
trators. Where, however, the sub-
mission is of one subject matter,
and where of several, with a con-
dition that all shall be decided, the
general rule applies, and the award
must be as broad as the submission,
or it is void. The award, too, must
be certain to a common intent, ca-
pable of being understood, and car-
ried into specific execution, with-
out the aid of extraneous circum-
stances. Mc Donald v. Bacon,

66

432

9. A submission to arbitration, re-
cites, that "McDonald and Bacon
are respectively possessed of water
mills on Crooked Creek, in Mc-
Donough county, and claim mill
privileges on said stream, in conflict
with each other, and concerning
which disputes have arisen between
them," and provides, that differ-
ences, disputes, and claims respect-
ing mill privileges, and damages
which may have been sustained, in
consequence of any destruction oc-
casioned by mill dams to mill pri-
vileges, on said creek, and whether
said Bacon's mill dam is so high as
to cause the water to overflow and
obstruct said Mc Donald's mill, and
hinder and injure its operation;
and if too high, how much the same
should be lowered, so as not to ob-
struct said Mc Donald's mill," shall
be referred to the arbitrament and
award of certain persons, "who are
to meet at Bacon's mill dam, and
after inspecting it, and the creek
up to McDonald's mill, and the ap-
pearance of the water to their satis-
faction, said McDonald is to be al-
lowed to let the water out of Ba-
con's mill dam, as much as he
chooses, so as to draw off the head
of water in his own manner, and to
his own satisfaction, doing Bacon's
dam as little injury as possible, and
after so drawn off, said arbitrators
are then again to view the appear-

ance of the water from Bacon's mill
dam, up to McDonald's mill, and
from such examinations, as well as
any other examinations, above or
below McDonald's mill, they may
make, and any other proper evi-
dence submitted to them, decide
whether Bacon's mill dam causes
the water to flow back on the mill of
Mc Donald, so as to injure said Mc-
Donald's mill or not; and if it does
so injure McDonald's mill, then
how much said Bacon's mill dam
shall be lowered, to remove the in-
jury, and also whether, upon a view
of all the rights and privileges of
both parties, said Bacon should pay
said McDonald any damages, and
if any, how much, or such other
decision, as in their judgment shall
be right;" and "shall determine
what costs shall be paid by one or
both of the parties, at their discre-
tion." The award was made Jan-
uary 15th, 1840, and determined,

66

First, That Bacon shall, within
six months, pay to McDonald,
$625.62, with 12 per cent. inter-
est;

Second, That he pay McDonald
within twelve months, a like sum,
bearing the same rate of interest;
Third, That Bacon pay the costs,
amounting to $95.56, in twenty
days;

Fourth, That said John B. Bacon
shall cause the planks of his mill
dam to be taken down, so as to re-
duce the quantity or head of water
therein, eleven inches, perpendicu-
lar measure, lower than the same
was on the 27th day of December,
1839, when the said dam was ex-
amined by the said arbitrators here-
in, which is to be done in twenty
days from the date hereof:" Held,
that so much of the award as re-
lates to the lowering the dam, is
uncertain, and therefore the whole
award is void.

Ibid.
10. Where a submission to arbitrators
was made of all matters in contro-
versy between the parties, and at
the hearing, one of the parties pro-
posed to read in evidence the bill
and depositions in a certain chan-
cery suit pending between the par-
ties, wherein he was complainant,
to which the other party objected,
unless the answer should also be
read, and the arbitrators decided
that if the former were read, the