delivered the opinion of the court.

The first ground of demurrer is, that the declaration states that the award was signed by two only of the arbitrators, and does not aver that the third arbitrator acted. The averment of the declaration is, that all the arbitrators took upon themselves the burthen of the arbitrament, and that the third arbitrator refused to sign the award. The averment is in accordance with approved precedents, and *178shows affirmatively that all the arbitrators acted. It is further insisted that it should appear, upon the face of the award itself, that all the arbitrators acted, otherwise the award is void. And inasmuch as, by the eopy .of the award attached to the declaration, and which by the act of 1855, § 27, is made a part of the record, it is averred that two only of the arbitrators took upon themselves the burthen of the arbitrament, the award is void, and will be so adj udged upon demurrer. Assuming that the defendant may, by demurrer or plea, avail himself of any objection to the instrument declared on, upon a recital of the copy on the record pursuant to the statute, as fully as he might on craving oyer, the objection is not valid. It must undoubtedly be shown, in pleading and by proof upon the trial, that all the arbitrators acted. Moore v. Executors of Moore, Coxe 144; Hoff v. Taylor, 2 South. 829; Little v. Newton, 2 Man. & Gran. 351.

But it is not necessary that the fact should appear upon tiie face of the award. The principle, - that in eases of special ¡delegated authority, it must appear upon the face of the proceedings that the tribunal acted within- the scope of their authority, does not apply to the awards of arbitrators. ’ It is the constant practice to show, by averments in -pleading, that the award was. regular and within the scope of the authority conferred on the arbitrators. The principle was recognized by this court in Rogers v. Tatum,, 1 Dutcher 281. In Yates v. Russell, 17 Johns. R. 461, it appeared that two only of the referees signed the report, which stated that the subscribers heard the evidence and decided the case. An objection was made to' the validity of the report upon this ground, but the Court of Appeals overruled the objection, saying, if all the referees did not assemble, the objection ought to have been raised in .the Supreme Court, or been made to appear-by affidavit, or certificate of the referees, on the coming in of the report.

In Ackley v. Finch, 7 Cowen 290, it was held that when two only of the arbitrators, signed the award,- and it did *179oot appear on the face of the award that the three heard the proofs and allegations of the parties, the fact might he shown by evidence aliunde. The court say it is apprehended that no ease can be adduced showing the necessity of the fact appearing in the award itself. To prove it by parol does not contravene any adjudged principle in the exposition of awards. It neither impeaches nor supports its merits, but supplies a fact not affirmed or denied by the award, and which, perhaps, it was not the duty of the two arbitrators to notice.

The ease of Short v. Pratt, 6 Mass. 496, does not conflict with the authorities already cited. It decides merely, that on a reference to three, a judgment entered upon the report of two will be reversed, unless it appear on the record that all the referees acted and heard the parties. It does not decide that the fact must appear on the face of the report, and that it may not be shown by affidavit or by other evidence aliunde. That such was not the view of the court is apparent from the case of Walker v. Melcher, 14 Mass. 148.

The second ground of demurrer is, that there is no averment in the declaration that when the money awarded to the plaintiff was demanded, the plaintiff tendered himself ready to do what was awarded to, be done by him, viz., to execute releases. If the acts of paying the money by the defendant and executing a release by the plaintiff were dependent acts, or were to be performed simultaneously, the objection is well taken. And whether the acts are dependent is to be ascertained by the intention of the arbitrators, as it appears upon the face of the award. The award is that the defendant shall pay to the plaintiff a certain sum of money on a day specified, aud that, on the payment of the money, the plaintiff shall execute to the defendant a release of all demands. The payment of the money and the giving of the release are, neither by the terms of the award, nor by the intrinsic nature of the acts themselves, mutually dependent. Neither was the *180consideration for.the other. The payment of the money was in discharge of a previously subsisting elaim, and its payment was a condition precedent to- the execution of the release. When .the money had been paid, and not before, the release was to be executed. The plaintiff bad no right to demand the release, nor was the defendant bound to tender it before the money had been paid. The case is in no sense analogous to an award of a conveyance of land by one of the parties, and the payment of the price by the other. There the acts to be performed are clearly dependent. The one constitutes the consideration for the other, and neither party can maintain an action for non-performance of the award without au averment of performance or of an offer to perform on his part. Huy v. Brown, 12 Wend. 591; 2 Greenl. Ev., § 77; McKean v. Allen, 2 Harr. 507.

The third ground of demurrer is, that the award is void for uncertainly. By the terms of .the submission the arbitrators are to award and determine of and concerning all actions, causes of action and demands whatsoever, existing between the parties, as far as their own personal matters are concerned, and also all differences existing between them relative to the estate of Nicholas Hoffman, of which the defendant is administrator. The arbitrators award that the defendant shall pay the plaintiff $225, hut whether the money is due from him in his individual capacity, or as administrator of the estate of Nicholas Hoffman, or partly in both, does not appear. If ,the sum awarded to be paid by the defendant is to •be paid by him in his individual capacity, and has no relation to his accounts as administrator, then the arbitrators have not arbitrated upon all the matters submitted to them. If otherwise, the award is clearly void for uncertainty. The case falls directly w.ithiu the authority of Lyle v. Rogers, 5 Wheat. 394.

The invalidity of the award appearing upon the face of the declaration, the objection is well taken ,by way of demurrer. Watson on Arb. 108; 1 Saund. P. and Ev. 181.

Let judgment be entered for the defendant.