The cause was submitted without argument, and the Court delivered the following opinion:

The first exception to the sufficiency of the declaration is, that the award was by three whilst the submission was to five arbitrators, the other two not appearing to have been present at the meeting, or notified.

The award declared upon appears to have been signed, &c. by three of the arbitrators; so far it is consonant with the submission: but the Court consider that the submission was to the whole five. “ It is covenanted and agreed, that William. Bott and the others, naming the whole five, shall be arbitrators,” to take into consideration the subject matter of the submission; and that, as it does not appear that the two who did not sign the award were present, or notified of the time and place of meeting the award in this respect, does not follow the submission, and the declaration is considered insufficient.

The Court are confirmed in this opinion by recurrence to the books, more especially to the case of Dalling v. Matchet, Mich. 14 Geo. II. Barnes’s Notes, p. 57.

Parties to an arbitrament, without any improper motives, may have a peculiar and reasonable predilection for a particular person or persons to sit as arbitrators. The subject matter in dispute may be better comprehended by some than others, owing to their particular avocations in life. When a person submits a controversy to five arbitrators, he has rea*310son to expect, that all will be present at the hearing of his cause, or at least that all will be notified of the time and place of meeting; for the absence of one might materially affect the award. His superior judgment in the matter in controversy may have been relied upon by the party in preference to that of all the others, and might have altered the opinion of the others; and although a majority, after a candid discussion, may make the award, yet all the arbitrators, to whom the matters in controversy have been submitted, in the terms of the present submission, ought to be present at the hearing, or at least it should appear that they were notified of the time and place of meeting, if not present.

The second exception to the declaration seems not to be so well grounded.

The great object of this and every other arbitrament is to put an end final to an existing controversy; and this power is given to the present arbitrators, and they appear not to have exceeded it in the award, as the releases directed by it to be executed by the parties to the submission, are not general releases, which would have been nought, but are expressly so qualified as to operate only upon “ all actions, suits, awards, quarrels, controversies and demands whatever, touching the premises, that is, respecting the matters submitted, or any matter or thing thereunto relating.” ..

If therefore this award had been correct in other particulars, so that it might have been pleaded in bar to any action respecting the patent of land not submitted, it could be avoided by showing, in due course of pleading, that the submission did not embrace such cause of action.

But as the Court consider the declaration to be insufficient on the first point, and grossly so in other particulars,

Let judgment be entered for the defendants.

Declaration insufficient.