CASE 479

tinued, and completed of said fence, in direct violation
of the said injunction. Whereupon he prayed for an attachment

report; it was determined that the said order be rescinded, and that the said excep-
tions be debated. The argument of the counsel on each side was accordingly heard
and considered.

The present cause appears to the Chancellor to be one of those cases in which it
is extremely difficult, if not altogether impracticable, for him to do complete justice
without violating strict law, which he is not at liberty to dispense with, and depart-
ing from established principles. He therefore feels himself under embarrasment,
and to relieve himself from it, as well as to make an end, in the most eligible man-
ner, of a contest, which hath been attended with much expense, delay, and vexation,
he thinks proper, before he proceeds to a decision on the argument, or gives any
intimation of his opinion relative to its merits, to make a proposition, on which he
requests the parties immediately to determine. His proposition is, that the parlies,
by writing, to be here filed, shall submit to him, as an arbitrator, all matters in dis-
pute between them in this cause; and that an order be thereon passed by consent,
for submitting as aforesaid, and that a decree be passed on his award, when re-
turned; and that each party shall be at liberty, notwithstanding, to appeal; in order
that the Court of Appeals may reverse, or change his decree, in case his award shall
be liable to such objection or objections, or contain such error or errrors as might
be deemed sufficient to set aside an award made by any other person.

The parties having considered this proposition and refused to accede to it, the
case was again submitted.

15th November, 1799.—HANSON, Chancellor.—The complainant having verbally
refused to comply with the proposition made by the Chancellor on the 5th instant,
the Chancellor is under the necessity of deciding according to what he conceives the
rules of law, and the established principles of this court.

If the settlement made by the persons who are stated to have been appointed by
the parties to decide between them, could be considered as a regular, final and com-
plete award, it would not, in this court, avail the complainant. It is notorious, that
this court never compels the performance of an award, merely as such, unless made
under an order on the submission in court of the parties. But the said settlement
cannot be considered as an award. For, supposing that a submission to the said
persons had been regularly made, it does not appear that the said settlement was
ever declared and delivered as an award. If the said settlement is not to be con-
sidered as an award, in what other way can it be considered as effectual ? Can it be
received as evidence, that on the day of its date the balance stated to be due to
Edward Norwood, was actually due to him ? No ! It is expressly stated, that the
settlement was made chiefly from the books of the complainant; and all that can be
inferred from it is, that the said persons were satisfied, that there was a certain
balance due on a certain day from the defendant to the complainant. The second
and third exceptions not having been insisted on by the defendant; and his counsel
having in open court expressly declared, that they would not insist upon the same.

It is hereby adjudged, that the first exception of the defendant be, and it is hereby
admitted to be good; and that the second and third exceptions of the said defen-
dant be, and they are hereby disallowed. It is further Ordered, that the auditor
re-state the account No. 1, on such evidence as has been or shall be produced, not
considering the settlement aforesaid as evidence. But it appears to the Chancellor,
that the full sum of £400 for the difference in value of the land, &c. ought to be
charged to the defendant, the persons appointed to value having by plain, unequi-