The opinion of the Court was delivered by
Moses, C. J.The action was trespass vi et annis. The defendant, Moses C. Taggart, plead {puis darrein continuance,) in further bar of the action, that he and the said plaintiff had, in writing, under their hands and seals, mutually referred to arbitration all matters and things between them to the arbitrament of certain persons named in the submission, and that they had mutually bound themselves to abide by the award of the arbitrators, or a majority of them, which they or such majority “shall make and sign.” That an award was made in writing, which is fully sot out, to which each of the arbitrators who concurred (being a majority of the whole,) severally subscribed their names. That the amount awarded to be paid the said plaintiff was tendered and refused.
The defendant filed a demurrer, and alleged as cause, that, as the agreement to refer required the award to be made and signed by the arbitrators, it should have been averred, not only that it had been made, but also that it had been signed.
There is no doubt that all the circumstances necessary to constitute the cause of complaint, or the ground of defence, must be al-ledged in the pleadings. On the one hand, they constitute the gravamen on which the plaintiff rests his action, and on the other they furnish the means by which it is sought to defeat it. The precision that is necessary must not only .be of a character sufficient to inform the plaintiff of the objection relied on to resist his writ but must be submitted in conformity with the rules of pleading, which have been established by a long line of precedents well understood and easily to be ascertained.
Though technical in their mode, yet the obligation is as strongly imposed on a Court to adhere to their application as to enforce any legal principles. They constitute, of themselves, perfect legal rules intended to secure rights and to punish wrongs.
An action on an award, or a plea of award rendered, forms no exception to the requisition. It is not sufficient that the award should be set forth in substance ; all the essential conditions which the parties prescribe in the submission must be shewn to have been complied with. They make it the law by which they are to be *421governed in the particular matter, and they have the right to attach their own qualifications and limitations.
If, as in the case referred to, of Everard vs. Patterson, 1 Taunt., 645, the submission requires that the award should be in writing-under the hands and seals of the arbitrators, it is not sufficient to aver that it was in writing merely, “it must be shewn in pleading that it is under seal, as well as in writing;” and so, in Stanton vs. Henry, 11 John, 134, (both of which cases were referred to by the counsel for the appellant,) it was held “ that if the proviso, in the bond of submission, required that the award shall be in writing, under their hands and seals, an award in writing, but not under seal, was bad.”
It cannot, however, bo said that, in the case in hand, the plea does not aver that the award was “made and signed when, not content with merely referring to it as made by a majority of the arbitrators, it actually sets it out with their names subscribed to it, and refers to the names as signed by them.
The rules of pleading -would have been fully satisfied if, after stating it in its own words, it had alleged that the award was made in conformity with all the conditions required by the submission ; and is it weakened or affected because a copy of the whole of it is recited, followed by the names of the arbitrators, in number necessary to a concurrence ?
The second ground of appeal seeks to reverse the order of the Circuit Judge overruling the demurrer, because the plea shews that an indictment was one of the causes and matters submitted by the agreement for arbitration.
Mr. Watson, in his “Treatise on the Law of Arbitration and Awards,” p. 35, says: “ Matters of a criminal nature, for obvious reasons, are not capable of being submitted to the decision of an arbitrator. But there are many offences which may be made the subject of an indictment, as assaults, nuisances, and the like, and for which the prosecutor may proceed by action, where those reasons do not apply. Indictments for these may be referred to arbitration by leave of the Court where they are depending.” In this State indictments for the like offences are regarded, to some extent, within the direction of the prosecutor, for even after a verdict of guilty, and the parties are reconciled, a nominal punishment is imposed. Unless the assault has been violent or enormous, it has always been the practice of our Courts, where damages have been given in a civil action, to inflict a mitigated sentence for the violation of the public peace.
*422It is not necessary to discuss this question here. Though the indictment and the civil suit were to be withdrawn by the plaintiff, it is distinctly stated in the agreement and bond that, as to the former, “he will, as far as he may be able to do, withdraw his prosecution, aforesaid, as to Dr. M. C. Taggart, the defendant.”
It comes with ail ill grace from him, now that the award has not probably equalled his expectations, to aver against the terms of an agreement to which he is a party. The defendant, against whom the ■indictment still stands, makes no complaint in this particular, and lie is the person who alone can suffer from its enforcement, if the prosecutor is without control over it.
The motion is refused, and the appeal dismissed.
Willard, A. J., and Wright, A. J., concurred.