By the Court,
Cole, J.There can be no doubt that the plaintiff was not entitled to enter a judgment on the award mentioned in this case, under chap. 131, R. S., for that statute provides in effect, that to give a party this right, the award *652must be in writing, subscribed by tbe arbitrators making tbe same, and attested by a subscribing witness. Sec. 8. One of tbe duplicate original awards was not attested by a subscribing witness, and therefore the award could not be enforced as a statutory one by rule of court.
The remaining question is, can the award be treated as good at common law and enforced by an action upon it ? We are of the opinion that it can. It is however contended that where parties make a submission under the statute, and fail to comply fully with its provisions so as to entitle the party in whose favor the award is made, to enforce it by rule and order of court, that then the award cannot be held good at common law. The case of Allen vs. Chase, 3 Wis., 249, is relied on as a controlling authority upon this point. In that case the court held that where a submission was made under the territorial statutes of 1839, and the award was inoperative under the statute for not complying with its provisions, that then an action could not be maintained upon it as a common law award. The court say that it was evident that the parties intended to make a submission in conformity to the statute, and instead of covenanting to pay the award at all events, contemplated a supervisory examination and control of the court to whom the award was to be reported, and by which tribunal it must be confirmed, before it was to have any validity. The territorial statute was taken substantially from that of Massachusetts, and the court in placing a construction upon it, naturally followed the decision of Deerfield vs. Arms, 20 Pick, 480. Our present statute is dissimilar to the territorial statute, and in substance is the same as that of New York. 3 N. Y. R. S., fifth ed., title 14, chap. 8, part 3, p. 885. The courts of that state have frequently held that their statute of arbitrations had not abrogated the common law upon the subject, but has left the parties at liberty to proceed as they did before,. except when the award was to be enforced, vacated, or corrected in the manner pointed out by the statute; and that when the sub*653mission and award were good at common law, the party in whose favor it was made, might resort to his common law remedy. Wells vs. Lain, 15 Wend., 99; Diedrick vs. Richley, 2 Hill. 271; Howard vs. Sexton, 4 Coms., 157; Cope vs. Gilbert, 4 Denio 347; Valentine vs. Valentine, 2 Barb., 430; French vs. New, 20 Barb., 481; Burnside vs. Whitney, 24 id., 632; Titus vs. Scoulting, 4 Blackf. 89; Dickinson vs. Tyner, id., 253. There probably would have been no question raised about the sufficiency and validity of the submission and award at common law, if the clause providing that judgment might be rendered on the award had not been inserted in the bonds of submission. The submission and award were in writing, signed by the arbitrators, and every formality complied with, not only to make the award good at common law, but likewise to make it sufficient under the statute, except there was no attesting witness to one of the originals given the parties. And while this defect is undoubtedly fatal to the enforcement of the award by judgment, yet we think it constitutes no satisfactory reason for holding that it can have no force whatever. The legislature has not limited the party to the statutory proceeding, but has expressly declared that nothing in that chapter shall be construed to impair or affect any action upon an award or upon any bond or other engagement to abide by an award. Section 22. And it is worthy of remark that no such provision as this was found in either the Massachusetts or territorial statute, under which the decisions in Deerfield vs. Arms and Allen vs. Chase were made.
But it is said'that the action of the circuit court refusing to' enter up judgment on the award, must be regarded in the nature of a prior adjudication which may be set up in bar of this suit. This is a mistake. The ruling of the court upon .the application for judgment was most indubitably correct, for reasons already given. But because the plaintiff Attempted to avail himself of a remedy to which he was not entitled, it by no means follows that he can have none at all, or is *654concluded by the action of the court in the former proceeding. He lost no right on the award by his fruitless effort to obtain judgment in another manner.
It is further claimed that the award is void because the arbitrators exceeded their authority. We do not see any force in this objection. It is true, the arbitrators awarded that the amount found due the plaintiff should be paid by installments, and that the defendant should give his notes therefor, with sufficient sureties. This was obviously a condition for the benefit of the defendant, and even if it be conceded that the arbitrators had no right to impose it upon the plaintiff, still n does not vitiate the award for the payment of the amount without credit. These remarks we think dispose of all the objections which are material or important.
The judgment of the circuit court is affirmed.