Mr. Justice Davis delivered the opinion of the court:

This is an action of debt, brought by Bayne against Morris. The suit was commenced on the 28th day of January, 1858, in the Superior Court of the City of Baltimore and was transferred, in pursuance of the Act of Congress on the petition of Morris, stating that he was a citizen of Virginia, to the Circuit Court of the United States for the District of Maryland, where there was a trial by jury, and verdict and judgment for Morris. The case is now here on exception to the instructions given by the court to the jury. The declaration alleges that certain matters of difference having arisen between Bayne and Morris, they were referred, under written articles of submission, to the arbitrament of William Wilson, Robert Hough and John S. Conway (or any two of them), who afterwards took on themselves the charge of the arbitration; that, on the 26th day of January, 1858, Hough and Conway made their award, and by the said award did adjudge that Morris should pay to Bayne, $1,206.17, on the 28th of July, 1858; $1200 on the 20th of January following, and $1200 in -one year thereafter; and that, to secure the payment of said sums of money, Morris should give to Bayne a bond in the penalty of $5,000,

with one sufficient surety; that Morris has not given the bond, nor paid the money, whereby an action has accrued, either to have payment of the money or the security awarded for the same. Other breaches were afterwards added by consent. The bill of exceptions shows that Morris and Bayne were copartners in trade in Baltimore, and being mutually desirous of dissolving the relation, but unable to agree upon the terms, on the 15th of January, 1858, by a submission in writing, referred certain matters in controversy to the consideration of the persons named in the declaration; who, besides determining the amonnt to be paid, by one to the other, were authorized to award upon what terms, as to time and security, the payments should be made. In pursuance of the terms of submission, an award was made on the 23d of January and, subsequently, on the 26th of the same month, the arbitrators signed and sealed a second award, which is substantially set forth in the declaration. Both awards were received in evidence, although the pleadings were framed solely with reference to the last one. Various objections were taken to the introduction of evidence, which are not necessary to be noticed in the view we take of this case. Several instructions were prayed for and rejected, and the court gave the following, which was objected to by the counsel of Bayne, and was the only one given:

"That, as by the award on which this suit is instituted, the defendant was to pay to the plaintiff the sum of $1,200 on the 20th of January, 1859, and the further sum of $1,200 on the 20th of January, 1860, and the defendant was to give to the plaintiff satisfactory security for the payment of the same, if the jury find that this suit was instituted before either of said sums was payable, the plaintiff cannot recover in this action."

Did the court mistake the law, in the proposition thus submitted to the jury?

The court did not pass on the validity of the award as it should have done; but directed the jury to find against the plaintiff, on the ground that the action was premature, neither of the sums awarded to be paid being due when suit was brought.

It is clear that Bayne instituted his action because Morris would not give the security he was required to by the award. And on prin