"It is hereby agreed by estate of Thomas J. O'Brien, of the first part, and the Palatine Insurance Company of Manchester, of the second part, that J. J. Walsh and Henry Z. Niblett (together with a third person to be chosen by them in advance, to decide only upon matters of difference between them), shall estimate and appraise at the actual cash value the loss and damage caused by fire on the 7th day of February, 1904, to the property belonging to building and rents as specified below, or in the accompanying schedule, which estimate and appraisement by them, or any two of them in writing as to the amount of such loss and damage, shall be binding on both parties hereto, it being understood that this appointment and submission is without reference to any other questions or matters of difference between the terms and conditions of the insurance and is of binding effect only so far as regards the actual cash value of and the loss and damage to said property." And then follows the substance of the three policies. An umpire appears to have been agreed upon, but he was not called upon to act. On March 30, 1904, the appraisers made the following award: We, the undersigned, have carefully estimated and appraised the actual cash value of and damage to the property of In conformity with the foregoing appointment and declaration, we hereby report that we have determined the actual cash value of any loss and damage thereon to be as follows: Time required to erect buildings complete as follows: Witness our hands at Baltimore this 30th day of March, 1904. [Signed] J. J. Walsh, After learning of the nature of the award, and feeling aggrieved thereby, the appellee declined to abide by it, and instituted an action at law in the state court for a recovery on the insurance policies. As a defense to this action, the insurance company pleaded the submission and award, and paid into court as the damages to the two buildings the sum of $3,835.56, with interest and costs. As a compliance with the award under the two rent policies, the defendant also paid five months' rent, with interest and costs, alleging the rent on the two buildings insured by appellant to have been $230 per month, and the rent on the remaining building to have been $85 per month. Thereupon appellee filed her bill in equity in the state court, praying that the award be set aside, and that the insurance company be restrained from using the award as a defense to the action at law. The equity suit was removed to the federal court, and after an amended bill had been filed the appellee answered. Replication was filed, evidence was taken, and the trial court set aside the award and enjoined the insurance company from setting it up in defense. There are many other facts in the record which, in view of the conclusion reached by us, need not be here stated. It appears that one of the results of the fire was that the city authorities of Baltimore refused to grant permits for rebuilding for a considerable time after the fire. We shall first consider that part of the award which relates to loss of rents. In this respect the award fixes no sum of money, but merely finds a loss of rents for a period of three months. It is argued thatthis award is sufficiently certain as it is a mere matter of calculation to ascertain the sum intended to be awarded. Inasmuch as the parties had not agreed what the rent was, and as it may not have been a money rent, it seems clear that an award in this form leaves open to dispute a possible ground of contention. How the insurance company learned the rentals to be $230 and $85 per month does not appear. So far as we can learn these figures may not be correct. However, we need not base our conclusion on this point alone. In another respect the award as to the rents is wholly uncertain. The policies specify that the loss of rents insured against is from the date of the fire, and the policies are incorporated in the submission. Whether the appraisers intended to allow a sum equal to the rent for a period of three months from the date of the fire, or from the date of the award, is left entirely uncertain. In making its payment into court, the award having been made nearly two months after the fire, the insurance company construed the award as meaning three months after the award. In view of the continued refusal of the city authorities to allow rebuilding, and the fact that nearly two months of loss of rents had occurred when the award was made, such construction was necessary to relieve the award of gross unfairness to the appellee. But we are entirely unable to say that this is what the arbitrators intended. It is contended that this feature of the award is separable from the part of the award fixing the loss under the policy insuring the two buildings which were insured by the appellant, and that the invalidity of the part of the award relating to loss of rents does not affect the remainder. We cannot accede to the correctness of this contention. In Russell on Arbitration, p. 316, it is said: "Though before the time of King James the First, according to Holt, C. J., an award void in part was considered void altogether (a) it is now quite clear that an award bad in part may often be good for the rest. If, notwithstanding some portion of the award is clearly void, the remaining part contained a final and certain determination of every question submitted, the valid portion may frequently be maintained as the award, though the void part be rejected." See, also, Morse on Arbitration, pp. 454, 455; 3 Cyc. 713, and authorities cited; 2 Am. & Eng. Ency. (2d Ed.), 741, 742, and authorities cited. The matter submitted here was the total damage to the appellee by the fire. The purpose of the parties in submitting this matter to the appraisers was to avoid controversy and litigation. To sustain in part an award which is void for uncertainty as to a very considerable part of the matter submitted is in effect to make and enforce a contract which the parties did not make, and one which they doubtless would not have been willing to make. The award does not respond to the submission. It leaves undetermined, and hence open to controversy and litigation, an important part of the matter submitted. It is not, on its face, a final settlement of the matter submitted, it is not the award the parties authorized, and it does not accomplish the purpose intended. Again, we are wholly unable to say that the appraisers would have agreed on the sum awarded as loss on the buildings, had the appraisers known that their award as to the loss of rents was invalid. While the appraisers did in their award separate the two items, it does not follow that either item of allowance was arrived at independently. For instance, assuming for the present that both appraisers intended the loss of rents to be three months after the award, or five months all told, it may be that Walsh regarded the sum fixed upon as loss on the buildings as too small, but agreed to it, because he thought five months' rent loss more than appellee was entitled to claim. In McCormick v. Gray, 13 How. (U. S.) 27, 39, 14 L. Ed. 36, it is said: "There are cases in which, after rejecting part of an award, the residue is sufficiently final, certain, and in conformity with the submission to stand; but It is indispensable that the part thus allowed to stand should appear to be in no way affected by the departure from the submission." 'From every standpoint we are satisfied that the award here cannot be sustained in part and set aside in part. It follows that the decree of the trial court must be affirmed. WADDILL, District Judge (concurring). I concur in the affirmance of the decision of the lower court for the reasons given above, and, moreover, because I think it sufficiently appears in the record that the award sought to be set aside was but the action and judgment of a single, instead of both arbitrators. The purpose of the arbitration was to ascertain the loss under certain policies of insurance arising by reason of the destruction of the insured premises by fire. The buildings were totally destroyed. Only one of the arbitrators was familiar with and saw the buildings, and knew of their value before the fire. Nevertheless, they undertook without proof of any sort before them, or any opportunity afforded the assured to furnish proof, to ascertain the loss sustained by her. Such an award was but the finding of a single arbitrator, instead of two, as required under the agreement of submission, which provided for the action of both, and, in case of disagreement, an umpire was to be called in to decide the question in dispute. OLD NICK WILLIAMS CO. v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. April 12, 1907.) No. 709. 1. CRIMINAL LAW-WRIT OF ERROR-TIME OF TAKING EXTENSION. The six months granted by Act Cong. March 3, 1891, c. 517, § 11, 26 Stat. 829 [U. S. Comp. St. 1901, p. 552], within which a writ of error may be taken in a criminal case, cannot be extended. 2. SAME-COMMENCEMENT OF PERIOD. The time within which accused may sue out a writ of error begins to run from the date judgment was entered. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, 32697.] 3. SAME ASSIGNMENT OF ERROR-BILL OF EXCEPTIONS. Rev. St. § 997 [U. S. Comp. St. 1901, p. 712], providing that an assignment of errors shall be annexed to and returned with a writ of error, does not necessitate the settlement of a bill of exceptions prior to the filing of the writ and the assignment of errors. 4. SAME EFFECT-TIME. A writ of error sued out by accused does not become effective until deposited with the clerk of the trial court. 5. SAME-ENLARGEMENT OF TIME. Where a writ of error sued out by accused is filed in time, the time for complying with it may be enlarged by proper orders. 6. SAME NUNC PRO TUNC ORDER. Where delay in suing out a writ of error was the act of accused, it could not be cured by a nunc pro tunc order. In Error to the District Court of the United States for the Western District of North Carolina, at Greensboro. On motion to dismiss. Charles A. Moore and William P. Bynum, Jr.:(E. T. Cansler, Thomas Settle, and J. E. Alexander, on the brief), for plaintiff in error. A. E. Holton, U. S. Atty. Before PRITCHARD, Circuit Judge, and MORRIS and DAYTON, District Judges. MORRIS, District Judge. This is a motion to dismiss the writ of error because not sued out within six months after the entry of the judgment. It arises in the case of an indictment against the Old Nick Williams Company, a corporation which was authorized to carry on the business of a rectifier, and which by the verdict of a jury was convicted of violating the second paragraph of section 3317 of the Revised Statutes [U. S. Comp. St. 1901, p. 2164], being found guilty of carrying on the business of a rectifier with intent to defraud the United States of the tax on the spirits rectified by it. On November 28, 1905, the jury rendered its verdict, and on the same day the defendant moved in arrest of judgment, which motion was overruled. The defendant then moved to set aside the verdict and for a new trial, which motion was also overruled. The attorney for the United States then prayed the judgment of the court, and on the same day, November 28, 1905, the court entered its judgment by which it sentenced the defendant to pay a fine of $5,000 and be taxed with the costs... It thus appears from the record that the judgment was entered November 28, 1905. On the same day it was ordered that the defendant have ninety days to prepare its bill of exceptions and that the attorney for the United States have 30 days after being served with the defendant's bill of exceptions to prepare any objections thereto, and that the court would settle the bill of exceptions upon 10 days' notice to the attorneys of the parties, and, when filed, the bill of exceptions should be deemed as made in apt time. Afterwards, January 17, 1906, by consent of the parties, the court by its order further extended the time for preparing and filing the defendant's bill of exceptions to March 15, 1906, and afterwards, in like manner, the time was extended to April 1, 1906. On July 27, 1906, the court over the objection and protest of the attorney for the United States made an order which recited that the defendant had filed with the clerk its bill of exceptions to which the attorney for the United States had filed certain objections and proposed amendments, so that the bill of exceptions had not been settled and signed by the court within six months from the date of the entry of the judgment, and, the court being of opinion that the defendant was entitled under the circumstances to have the bill of exceptions settled and a writ of error and citation issued and served nunc pro tunc as within the time required by law to procure a review of the judgment, the said order of the court directed that the attorneys should appear before him at Greensboro on August 7, 1906, to have the bill of exceptions settled and signed by the court, and further ordered that, when the bill of exceptions was settled and signed and after a petition for a writ of error and assignments of error had been filed by the defendant, a writ of error and citation in due form should be issued and served, all to bear date as of the 15th April, 1906, said date being the date on which the defendant filed its proposed bill of exceptions with the clerk and which was within six months from the entry of the judg ment. Thereafter, on September 12, 1906, the defendant having presented its petition for the allowance of the writ of error and its assignment of errors, the court signed an order allowing the writ of error, and directed that the writ of error and citation when issued bear date April 15, 1906, as theretofore ordered by the court. Thereupon the writ of error was issued on September 12, 1906, as of April 15, 1906, as ordered by the trial judge. The attorney for the United States now moves to dismiss the writ of error because not sued out within six months after the entry of the judgment. The statute restricting the time for writs of error in such cases is section 11, Act Cong. March 3, 1891, c. 517, 26 Stat. 829 [U. S. Comp. St. 1901, p. 552], and reads: "Sec. 11. That no appeal or writ of error by which any order, judgment or decree may be reviewed in the Circuit Court of Appeals, under the provisions of this act, shall be taken or sued out except within six months after the entry of the order, judgment or decree sought to be reviewed." It has been so frequently and so uniformly decided that the limit of time after the entry of the judgment for the issuing of writs of error admits of no extension that the rule is now firmly established. In Brooks v. Norris, 11 How. 204, 13 L. Ed. 665, the Supreme Court said: "The writ of error is not brought in the legal meaning of the term until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of Congress must be calculated accordingly. The day on which the writ may have been issued by the clerk or the day on which it is tested are not material in deciding the question." In Polleys v. Black River Co., 113 U. S. 81, 5 Sup. Ct. 369, 28 L. Ed 938, it was held that the plaintiff in error had a right to his writ |