
    Rice against Foster.
    An appeal from an award of arbitrators by one of two defendants, will not be considered an appeal by both unless such distinctly appears to have been the intention of the party appealing.
    ERROR to the Common Pleas of Tioga county.
    Amos Foster against Tyrus Rice and Solomon J. Rice. This cause was referred to arbitrators, who made an award in favour of the plaintiff for $243, from which an appeal was entered by Solomon J. Rice, who took the oath required by law, and entered into recognizance with Clark W. Bailey as his security. The only question was, whether this should be considered an appeal for both.
    Conyngham, President, was of opinion that the appeal was by the one defendant, and ruled the cause accordingly.
    
      White and Maynard, for plaintiff in error,
    cited 9 Watts 72.
    
      Williston, for defendant in error.
   Sekgeant, J.

The ground taken by the plaintiff, that the appeal is to be considered as made by Solomon J. Rice alone, seems to be the true one. It would be incumbent on the defendant alleging that the appeal was by both, to make that out clearly, in order to avail himself of an objection suggested by himself alone. If the proceedings were in this respect equivocal, it would be the duty of the court to construe them so as to support the judgment, in the absence of any complaint by Tyrus, and of any interference or concern in the suit by him since the award was made. But the paper containing the oath for the appeal was by Solomon alone; for the paper is headed “ appeal from award of arbitrators by defendant,” in the singular number; and the oath is by Solomon alone, and Tyrus is no party to the recognizance, or any subsequent proceeding. There is nothing to bind him to the appeal, or render him a party to it, if he should choose to disavow it, and should refuse to be considered as a party to the verdict and judgment that might be rendered upon it. He must be considered as having been content with the award as it stood.

We, therefore, think the appeal is to be treated as having been made by Solomon alone.

Judgment affirmed.  