Royse's adm'r, &c., vs. McCall. tions, have curtailed belligerent rights within rational bounds, until by these the private property of the belligerent soldier is not liable to seizure on land unless a positive enactment by the government of the captor can be shown. As the instructions of the court were in conflict with these principles, the judgment must be reversed; but on a return, the defendant should be permitted to amend his answer, and set up any statute of the Confederate Government which authorized the seizure and confiscation of enemies' private property upon land. Wherefore, the judgment is reversed, with directions for further proceedings as herein indicated. 1. 2. 3. CASE 81-ARBITRATION-AWARDS-OCTOBER 8. Royse's adm'r, &c., vs. McCall. APPEAL FROM FLEMING CIRCUIT COUrt. A parol submission and award, not involving a controversy about title to land, may be good. On a submission to two arbitrators, who, in case of disagreement, are authorized to choose an umpire, it is the duty of the arbitrators to make the award, and the umpire is only authorized to act when they disagree. An award made under such submission, in which the arbitrators and umpire all acted together, and made the award just as if they had been all arbitrators, will not be enforced. E. C. PHISTER, CITED 15 B. Mon., 445; Smith vs. Fah. For Appellants, W. H. CORD, Royse's adm'r, &c., vs. McCall. CITED For Appellee, 6 Dana, 11; Glassford vs. Shockey. JUDGE PETERS DELIVERED THE OPINION OF THE COURT: After appellants' intestate had commenced proceedings for a forcible detainer, against appellee, of a small tract of land, they agreed, by parol, to submit the controversy about the land, and some money demands which they mutually claimed against each other, to the arbitrament and award of two gentlemen, each party to select one, who, in case they could not agree, were to choose an umpire. The terms of submission were written out by Hull, the justice before whom the warrant for the forcible detainer was to be tried, but were not signed by the parties. They, however, selected the arbitrators, who then chose the umpire; and on a day fixed the parties, arbitrators, and umpire met, and proceeded with the trial, when appellee presented an account for six hundred and ninety-eight dollars and fifty cents against the intestate, the particulars of which are set out in a bill filed and copied in this record, and an award was finally made, requiring appellee to surrender peaceable possession of the premises on the first of November, 1865, and adjudging that Mrs. Royse should, at the same time, pay to him three hundred and seventy-one dollars. This action was brought in equity to enforce that award. During the pendency of the action Mrs. Royse died; and it was revived against her personal representative; and a judgment having been rendered against him for the sum awarded by the arbitrators, he has appealed. It is obvious that the matters in dispute between the parties were not within the jurisdiction of a jus Royse's admr, &c., vs. McCall. tice of the peace, and, consequently, the submission cannot be under the statute. (Sec. 9, chap. 3, 1 Revised Statutes, 184.) The reference and award must, therefore, be tested. by common law principles. A parol submission and award, not involving a controversy about the title to land, may be good, and the question then arises, is this award good, tested by the principles of the common law? By the terms of the agreement to refer their matters of controversy to arbitrators, as set forth in the petition, if the two arbitrators selected could not agree upon an award, they were to select a third person as umpire; but that selection was only to be made on condition that those persons whom the parties had chosen could not agree. F. P. Sousley proves he was chosen as the umpire; that he assisted in adjusting the matters of difference between the parties, and aided in making the award, although the arbitrators did not disagree. From his statement, all three of them acted together, consulted, considered the evidence, interchanged opinions and views, and made the award, just as if they had all been chosen for the purpose; while Sousley's duty was to decide the controversy only in the event that the other two could not agree. In this the arbitrators and umpire acted without authority. The parties had a right to the judgment and decision of the arbitrators themselves. Their reference. was to them, and it was only in the event that they, after a faithful and honest effort to make an award, could not come to an agreement and adjust the matters, that the duty of the umpire was to begin. The parties then had a right to the decision of the umpire 5bu 698 d124 335 John Able vs. Commonwealth. alone, on his own responsibility, and such decision would have conformed to the agreement. The conclusion which is to be made the judgment of the court, is neither the award of the chosen arbitrators nor the judgment of the umpire, and cannot, therefore, be enforced. To this effect is the ruling of this court in the case of Daniel vs. Danicl, 6 Dana, 93. Wherefore, the judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion. CASE 82-INDICTMENT-OCTOBER 9. John Able (alias Taylor) vs. Commonwealth. APPEAL FROM JEFFERSON CIRCUIT COURT. 1. To make one a principal in either the first or second degree, he must 2. 3. Receiving stolen property, knowing it to be stolen, makes the receiver an accessory after the fact. (4 Blackstone, 35; Wharton's Amer. Crim. Law, sec. 134; 3 Greenleaf on Ev., sec. 42.) 4. The common law distinction between principals and accessories has not been abolished by our statutes, but is expressly recognized. 5. Accused approached a small boy, who lived with his grandfather. Having inquired whether his grandfather had some gold, and being answered that he had, he asked the boy if he could not get it, and was answered in the affirmative. It was then agreed between them that the boy would get the money and hide it at the stable, and accused should come at night and tap on the door, and the boy would run out and shoot at him for a blind. The boy got the John Able vs. Commonwealth. money and hid it in the stable. Accused came and tapped on the door, and was shot at, but could not find the money. Several days thereafter the boy took the money to a village about two and a half miles from his grandfather's, where they had their first conference, and delivered it to the accused. Held-The conviction of accused as principal was erroneous. WM. L. JACKSON and WM. T. WARD, CITED For Appellant, Revised Statutes, sec. 10, chap. 28. 4 Blackstone, chap. 3. 12 Alabama, 460; Hughes vs. The State. 2 Wharton's Amer. Crim. Law, sec. 1811. 1 Wharton's Amer. Crim. Law, sccs. 112 to 134. 2 Dev. & B.'s N. C. Rep., 412; State vs. Hardin. 1 Bishop on Crim. Prac., pp. 546 to 551. 1 Hale's Pleas of the Crown, pp. 611 to 618, 623 to 626, and 537. 1 Bishop's Crim. Law, pp. 475–6. 3 Gilmore, 368, 381, 382. 5 Cal. Rep., 133; People vs. Davidson. 2 Hawkins' Pleas of the Crown, page 445. 2 Inst., 182; Dalton, 108. Lamb, 2, chap. 7; Concromp, 49. 3 Inst., 51; Compton, 42, summary, 217, 218. JOHN RODMAN, Attorney General, CITED Bishop's Crim. Law, 432–33. 4 Washington Cir. Court Rep., 733. 2 B. Mon., 417; Ross vs. Commonwealth. For Appellee, |