This is an action of debt on an award, which comes before, the court upon an agreed statement of facts, and has been argued in writing.
The parties had formerly been partners in business, and the plaintiffs had commenced a suit in equity against the defendant, in the county of Middlesex, for an account and settle*548ment. Before much progress had been made in the settlement, the parties entered into an agreement, by mutual bonds, for submitting all demands to arbitrators; but not making the submission a rule of court, in that suit, or otherwise. The reference resulted in the award, which is the subject of this action.
The original agreement limited a time, within which the award should be made; afterwards, by an agreement indorsed, the time was extended; and after several months, and after the extended time had passed, a second agreement was made and indorsed on the bond, by which it was stipulated, that the award should be deemed to have been made within the time agreed, if made during the session of the next court of common pleas for the county of Suffolk; it being agreed, that the award should be made to that court, and judgment to be entered, and execution to issue thereon accordingly. The award was made within the term thus limited, and duly published, but not presented to the court of common pleas. The equity suit in Middlesex was terminated by an entry of “ neither party.”
Proceedings in insolvency against the defendant were subsequently instituted, and this award was proved and allowed as a debt against his estate, and two dividends were paid thereon. The insolvent was denied his discharge by the master in chancery, before whom the proceedings were conducted, and by this court on appeal.
The defence is, that as the award would have been void, as not being made within the time, without the last agreement of extension, this agreement is necessary to its validity; and that this agreement was made on a condition, that the award should be presented to the court of common pleas for acceptance, to the end that judgment might be entered and execution issued upon it.
It was relied upon strongly, on the part of the plaintiff, that the allowance of this award, under the proceedings in insolvency, must have been taken to have been made with the assent of the debtor, and so was a waiver of the exception. *549But it does not appear to us, that this allowance can in any sense he considered as made with the consent of the debtor; who could neither remit nor admit the allowance of this claim as his own act; and therefore it cannot be deemed a waiver by him of the exception, when the action is brought directly against him.
But, independently of any such waiver or acquiescence, we are to consider the case upon the other ground of defence. The strength of the argument is, that the extension of time was conditional; that the condition was that the award should be returned to the court of common pleas to be accepted or rejected ; and this condition not being complied with, that the award is therefore inoperative and void.
It is questionable, whether upon a fair construction, this clause is conditional. The last indorsement seems rather to embrace two distinct and independent mutual stipulations; one, that the time shall be extended, and the other, that the award shall be returnable to the court of common pleas for its adjudication. But, without putting the case upon this construction, and admitting that the claim in question is to be deemed a condition, it is plainly a condition subsequent, and did not impair, limit or suspend the authority of the arbitrators. It could not begin to operate until the arbitrators had done and finished their duties. It was then a perfect and complete award, at the time it was made and published; and the matter being originally submitted by an arbitration bond, and not by a rule of court, the award became binding by force of the contract, without the adjudication or action of any court, unless such adjudication was required by the clause in question. Then the only objection is, that the award was not returned to the court of common pleas, to the end that judgment might there be rendered on it. But it is perfectly manifest, that the court of common pleas would have no jurisdiction, and could render no effectual judgment upon the award; and the return of it to that court, therefore, would have been a useless or idle act: Ad vana sen impossibilia lex non cogit.
*550It is very clear, that it was not necessary to offer the award to the court of common pleas simply to be rejected for want of jurisdiction. The terms of the agreement were, that the award should be made to the court of common pleas, and that judgment should be entered and. execution issued thereon; and one of the complaints of the defendant is, that he expected a security to his rights, from having the action of the judicial mind of the court, to affirm or correct the doings of the arbitrators.
But parties cannot give courts of justice a jurisdiction, which the law does not give them. Parties may enter into what contracts they please, in regard to all matters which are the proper subject of contract: but they must take such remedies as the laws afford; and they cannot enter into stipulations to give or take any remedies not prescribed by the rules of law. They can make no binding stipulations, that their contracts and the rights derived from them shall only bt drawn in question in a suit at common law, when the law gives a remedy in equity, or vice versa ; or that a suit shall b : originally commenced in the supreme judicial court, whei the law gives original jurisdiction of it to the court of common pleas, or the reverse; or that an appeal shall be had when the law does not give it; or that when the law allows it no appeal shall be had. Hatters pertaining merely to the remedy depend on the lex fori, and cannot, to any considerable extent, be controlled or changed by contract.
It is argued, in the present case, that it was plainly intended and expected by the parties, by the second memorandum indorsed on the arbitration bond, that this award should be presented to, and judicially acted upon by, the court of common pleas. It was undoubtedly so intended, and the agreement is held void, not because it was not the intent of the parties, but because that intent cannot be carried into effect according to the rules of law.
Treating this stipulation, then, as a condition, it was an impossible one, and could not be complied with. The award was a perfect and complete award, made pursuant to the *551submission, and within the time agreed upon. Had the condition been a legal and valid one, possible to be performed, being a condition subsequent, the only effect of a non-performance on the part of the plaintiff would be to defeat and annul .the award ; but being in its nature impossible to be performed, it is a void condition, and as much a nullity as if no such condition had been made ; and thus the award stands unaffected and indefeasible, as if no condition had been annexed to it.
Judgment is to be entered for the plaintiff, for the amount of the award, deducting the dividends as payments, and computing interest.