Denman v. Bayless. plaintiff gave in evidence the submission, written appointment of umpire, and award, and then proved by Samuel Watson, one of the arbitrators, that John A. Dolman was the umpire, and that he and the other arbitrators all signed the award. Watson, on cross-examination, testified that Bayless and Denman both appeared before the two arbitrators, named in the submission, and then made statements that the two named in the award could not agree: that then Dolman was brought in by Bayless; that they selected him as umpire; that Dolman was the most active in making out the award; that Denman was not present after Dolman was selected as umpire, nor was he present when award was made; that no evidence was given before Dolman; that the matter was talked over alone; that they all three signed the award, and that he took it for the benefit of the parties, and locked it up in his safe. He further testified, on cross-examination, that he did not know how the award was taken from his safe; that he never delivered it either to Bayless or Denman, or anybody for them. The defendant then offered to prove by Watson, that he never intended to deliver the award as the award of the arbitrators, unless Denman was willing and assented to the award, and that he never delivered the award, and never should have done it until he had seen Denman and inquired of him about it, which he never did do; to the offering of which testimony the plaintiff then and there objected, which objection was sustained by the court. To which decision the defendant then and there excepted. There was nothing in the submission, requiring the award to be in writing, or requiring a notice to be given to the parties. The errors assigned are: 1st. That the court erred in not granting a new trial. 2nd. That the court erred in rejecting the testimony offered by the appellant, the defendant below. J. M. SCOTT, for Appellant. W. B. SCATES, and R. E. WILLIAMS, for Appellee. BREESE, J. The appellant insists that to make the award binding on him, it should have been published, and reference is made to 1 Greenleaf Ev., sec. 75; 9 Mass. R. 198, and 15 Johns. R. 197. It is said by Greenleaf, in his Treatise on Evidence, that it is essential to allege and prove that the award was published, and an award is published whenever the arbitrators give notice that it may be had on payment of the charges. (Greenleaf Ev., sec. 75.) Denman v. Bayless. For this doctrine, reference is made to the case of Kingsley v. Bell, 9 Mass. R. 198. In that case it was held, that a declaration containing no allegation that the award was published, or made known to the defendant, except by bringing the action, was fatally defective. This is so, doubtless, when publication is provided for by the submission, not otherwise. It was said in Hodsden v. Harridge, 2 Saund. R. 62, note (4), That an averment that the defendant had notice of the award was not necessary, unless it be expressly stipulated in the submission that the award should be notified to the parties, for it is a general rule that when a matter does not lie more properly in the knowledge of one of the parties than the other, notice is not requisite. We would therefore understand, that in the case of Kingsley v. Bell, it was provided in the submission that the parties should be notified of the award. In Sellick and Sellick v. Adams, 15 Johns. R. 197, the parties expressly stipulated in the submission, that "the award of the said arbitrators or any two of them, be made and set down in writing under their, or any two of their hands and seals, ready to be delivered to the said parties in difference on or before the 18th of July next ensuing." In this case, the submission does not require the award shall be in writing, or any notice, whatever, given of it. The publication of an award by giving parties notice of it, are matters of agreement between the parties to the submission, and unless it is so provided, it is neither necessary to publish it or give notice to the parties. Neither is it necessary to make the award in writing, unless required by the submission, and therefore a parol award on a submission in writing, would be good. Watson on Arbitrations and Awards, 89. All that is requisite for arbitrators to do, is to regard the terms and directions of the submission, and follow them, so that when the submission provides that the award shall be in writing, under the hand of the arbitrator, the award to be valid must be under the arbitrator's hand as well as in writing. When it is to be in writing under the hand and seal of the arbitrator, an award in writing only is insufficient. Therefore unless prescribed by the submission, the award need not necessarily be in writing, for a verbal award is perfectly valid. Russell on the Power and Duty of an Arbitrator, 206-7. Upon the point made by appellant, that certain testimony offered by him was excluded, we have only to say, it was of such a character as to justify the court in so ruling. He proposed to prove that one of the arbitrators, who both agreed to and signed the award, and who took charge of it for the benefit of the Merritt et al. v. Farris et al. parties, never designed to deliver the award without the consent of the appellant. The very idea is monstrous-that an award duly made and signed, and delivered by the arbitrators to one of their body, or to any other person for the benefit of the parties, shall be defeated if the unsuccessful party shall not agree to it! And what is to be thought of an arbitrator who shall swear that although he agreed to the award and signed it, yet he never intended that the party in whose favor it was made, should have the benefit of it, without the other party consented to it. It is strange indeed that it should be supposed the unsuccessful party has any consent to give or withhold. He is bound by the award, and an arbitrator cannot consider the wishes of either party, in regard to the award, after it is agreed upon and signed. Like a juror when he has made up and rendered his verdict in the case, his power is gone, and his verdict must stand. The court properly rejected all such testimony-it had nothing to do with the case, and in no way affected the right of the plaintiff to recover. The judgment of the Circuit Court is affirmed. Judgment affirmed. STEPHEN MERRITT et al., Appellants, v. JOHN G. FARRIS et al., Appellees. APPEAL FROM MARSHALL. Where a notice of an election for a school district specifies several purposes, in The directors of a school district may levy and collect a tax to erect a school house, The omission to tax some property in the district, will not vitiate the tax. THIS was a bill in chancery, filed by Stephen Merritt, James P. King, Samuel Rickey, John Dunlap, Jr., William S. Honeywell, William Murray, John Batts, M. Shackleford, and H. 22 303 134 272 135 478 Merritt et al. v. Farris et al. Beaumont, complainants, in the Marshall Circuit Court, at the January term, A. D. 1859, to enjoin the collection of a school tax levied by the directors of school district No. 10, in Township 13 N., Range 9 East, in that county. The injunction was granted, and at the same term the respondents filed their answer and affidavits in its support, and moved the court to dissolve the injunction, which was done, and the bill dismissed. The plaintiffs in error, who were the complainants below, appealed to this court. The bill alleges that the complainants are residents and tax payers of Marshall county, Ill., and that they are all, except Stephen Merritt and Samuel Rickey, residents of school district No. 10, in Township 13 North, Range 9 East, in said county; and that said Rickey is the owner of real estate in said district, and Merritt is the owner of both real and personal estate in said district, all of which is subject to legal taxation. The district is composed of section 31, the south half of section 30, the west half of section 32, and the south-west quarter of section 29, according to a plat filed as follows: That John G. Farris, Harmon Andrews, and Warner Combs pretended to act as school directors of said district, up to October last, and that Harmon Andrews, Warner Combs and Daniel Diel now pretend to act as directors of said district, as successors of the first named directors. That Farris, Andrews, and Combs, while pretending to act as school directors of said district, and assuming so to act, attempted to authorize and cause to be levied an enormous and burthensome tax on the property of said district, and by such Merritt et al. v. Farris et al. attempt have wrongfully induced Washington E. Cook, the county clerk of said county, to assess and compute said taxes upon the valued property of said district, which is very grevious to the property holders of the district and particularly to complainants. That the first named directors made and signed a certificate on the 8th June, 1858, and returned it to the clerk of the county, by which they authorized and required, and certified that they had estimated to be levied a tax of one per cent. for extending schools beyond six months, and six per cent. for ordinary school purposes, making seven per cent. upon the property of the district. The certificate is attached, and is as follows: "We, the undersigned, directors of district No. 10, Township No. 13, Range No. 9, in the county of Marshall, and State of Illinois, do hereby certify that said board have estimated and required to be levied, for the year 1858, the rate of six for general school purposes, and the rate of one for paying teachers and extending term of schools on each one hundred dollars valuation of taxable property in said district." That the clerk, in compliance with said certificate, assessed and levied seven per cent. school tax (on the $100) on the property of complainants, as follows: Which tax was wrongfully made by said clerk, and is now in the hands of William Reeves, the tax collector of the township, with a warrant attached thereto for collection, and the collector is demanding payment and threatening to collect the tax by a levy and sale of the property of complainants. That there are several persons, residents of the district, who |