
    *Macon v. Crump.
    [Wednesday, May 15, 1799.]
    Variance — Demurrer—Proiert and Oyer. — Quaere.— If there he no profert of the deed, and the defendant takes oyer, he can take advantage of a variance by demurrer?
    Awards — Co-execators—Submission.—If one or two executors refer a matter in his own right, and one in right of his testator, and the referees award thereon a sum of money to himself, and another to him and his co-executor, the award is good.
    Same — Same—Suit—Variance.—In such a case, he may sue upon the covenant in his own name; and there will be no variance.
    Same — Costs of Suit. — An award that defendant shall pay the costs of a suit, good, without ascertaining them.
    Crump brought an action of covenant against Macon, in the County Court of New-Kent, and declared that the defendant by his certain writing, sealed with his seal, and to the Court now here shewn, &c. covenanted and agreed with the plaintiff, to refer all accounts and agreements existing between the parties in their own rights and the said Crump, as executor of William Clopton, as well in suit as otherwise, to the consideration, and determination of William Clayton, William Hopkins and Edward Williamson, or any two of them. That the referees made their award, and thereby, on the dispute between the parties, relative to the contract for building a dwelling-house, the sum of 641. 5s. lOd. and costs of suit were awarded to the plaintiff; and, in dispute between the defendant and the said plaintiff, as executor of Clop-ton, 3331. with interest from the month of September, 1783, and the costs of suit, were awarded to the plaintiff. The declaration then avers performance of all things on the part of the plaintiff, and assigns for breaches of the covenant, on the part of the defendant, that the defendant had not performed the award, and had refused to pay the said several sums of money and costs; and still refused to the plaintiffs damage 10001. The defendant prayed oyer of the declaration, covenant and award; and demurred specialty. 1. Because the award was not mutual, in that it makes no allowance to the defendant, for his charges against the plaintiff; and that no release is awarded. 2. Because the award directed, the defendant to pay the costs of the suit; and did not direct the suit to be dismissed. , 3. Because the award directs the de576 fendant to pay a sum of money *to the plaintiff and one Parkeson jointly : whereas Parkeson was no party to the submission. 4. Because the defendant was awarded to pay 331. immediately; although by the award, the same did not appear to be due, until a future day. 5. Because the defendant is awarded to pay to the plaintiff and Parkeson the costs of suit; which is uncertain, as it is not said what suit.
    The award is in these words, “Whereas Benedict Crump and William H. Macon having, by their arbitration bond, entered into the fifteenth day of May, 1793, referred to our determination certain matters, relative to the building of a dwelling-house and other work to be built and done by the said Crump, for the said Macon; and having heard the parties, and duty considered the same, are of opinion, that the said William H. Macon ought to pay unto the said Benedict Crump, for the balance due for the said work, the sum of sixty-four pounds, five shillings and ten pence; and that the said . Macon pay the costs of the suit, brought by the said Crump against the said Macon, and now depending in the County Court of New Kent. Given under our hands this. 11th day of July, 1793.
    William Clayton.
    William Hopkins.
    Edward Williamson.
    1782. ' Col. William H. Macon, Dr.
    To Benedict Crump and Joseph Parkeson, Executors of William Clopton.
    
      March. To one negro man Sam,
    1 . purchased of the exec-
    utors, payable September, 1783, ¿£33 0 0
    To interest on thirty-
    three pounds from Sep- [ £-
    tember, 1783, till paid, J
    x"We, the subscribers, think this account just; and that William H. Macon ought to pay to the said executors the sum of 331., with interest from September, 1783, till paid, and the costs of suit. Given under our hands, this eleventh day of July, 1793.
    William Clayton.
    William Hopkins.
    Edward Williamson.”
    The plaintiff joined, in demurrer. The County Court over-ruled the demurrer, and gave judgment for' the . plaintiff. The defendant appealed to , the District Court of Williamsburg; where the judgment of the County Court was affirmed. To which judgment of the District Court, Macon obtained a writ of supersedeas from this Court.
    Wickham, for . the plaintiff in supersedeas.
    The plaintiff ought to have averred a profert of the award; because, it was the gist of his action. Eor, it is an invariable rule, that wherever the defendant relies upon a writing as the foundation of his suit, he must state a profert; and, although the act of Jeofails says, the want of a profert shall not be cause of error, after verdict; still, that does not take away the defendant’s right to oyer, in a case where it is originally demandable. Nor, could ihe plaintiff refuse it, by his having omitted to aver a profert. Indeed; the plaintiff, by giving oyer, has admitted the defendant’s right to it: Eor, there is a distinction betwixt averring and making a profert. The latter is the act of. bringing the writing into Court: and, if it appears upon the oyer, the writing when incorporated into the record, did not authorise the declaration, it becomes a proper cause of demurrer. Eor, if the variance appears, it may be taken advantage of, in that or any other way; because, it appears that the plaintiff has not pursued his claim, according to the terms of it.
    The question, then, is, whether there is a variance betwixt the award and declaration? and, if so, whether (as it appears 578 on the record) it was necessary *to plead it in abatement, or we might not take advantage of it by way of'demurrer? Now, I hold, that it is never necessary to pleád what appears of record; for, the end of all pleading is only to inform the Court of the nature of the case; but, this cannot be necessary, where it is already apparent. Such an act would be useless and improper. Thus, if there be a variance betwixt the writ and declaration, the defendant may crave oyer and demur, as well as plead it in abatement. [Hole v. Finch,] 2 Wils. 394; [Roberts v. Harnage,] Salk. 659; 21 Vin. Abr. 538. All which cases serve to explain the general doctrine upon these subjects; and there must be the same reason, for allowing a demurrer on account of a variance between the declaration and the instrument declared on, as for a variation between the writ and declaration. But, there is a manifest variance in this case, between the award and declaration: for, the award is, that the money should be paid to the plaintiff and another; whereas, the declaration is upon an award in favor of the plaintiff only. Besides, it is a rule that an award must not extend to a person who is no party to the submission, Kyd on Awd. 103. But, here, Parlteson was not a party to the submission; and, therefore, according to the authority, he is not bound by it.
    But, further still, the declaration should have' set forth the amount of the costs. For, although the award may be made good, without expressing it; yet, in declaring upon the award, the amount should be averred, in order that the other side may have an opportunity of traversing it. Kyd on Awd. 138; 2 Vent. 242. It is like a quantum meruit for work and labor done and performed; in which, it is absolutely necessary to state the value of the labor. So, if there be a suit between two men, and the defendant agrees to pay the plaintiff the costs upon condition that he will dismiss the suit; in an action for the costs upon this agreement, the plaintiff must aver the amount. In short', the case falls within the principle of Chichester v. Vass in this Court; ante [83,] in which all essential averments were holden to be absolutely necessary, notwithstanding the act of Jeofails.
    *Marshall, contra.
    There are two questions in the case: 1. Whether, admitting that a material variance and other defects spoken of by the appellant’s counsel do exist, advantage could be taken of them upon the demurrer? 2. If so, whether there be any material variance or actual defect in the proceedings?
    As to the first, the declaration states the substance of an award which, according to the terms of the declaration, would be good; and there is no profert. So that, if there be any variance, it does not appear by the plaintiff’s pleading. Now, the rule is, that the demurrer admits the allegation of the pleading demurred to; and, therefore, as 'the declaration sets out a good award, the plaintiff should have judgment. The difference is very material where there is a profert and where there is not. In the first case, oyer makes the instrument declared on part of the declaration; but it is otherwise, where there is no profert. The case, therefore, stands upon the declaration and demurrer: under which view, it is clearly in favor of the plaintiff; and if the defendant thought the variance material, he should have excepted to the award, upon the trial of the issue. The authorities cited upon the other side only prove, at most, that where there is a profert, advantage may be taken of a variance upon a demurrer. But, if my position is right, they do not affect the decision; because, there was no profert in this case. The statute of Jeofails is very material; because, that act prohibits any advantage to be taken of the want of form in the case of a special demurrer, except those defects which are specially assigned as causes of demurrer; and under the spirit of that act, as the variance spoken of is not specially assigned, I contend the defendant cannot now insist upon it.
    But the award is good, and would have been sufficient under the plea of no award. 1 Bac. Abr. 152. Tor, the plaintiff was a co-executor, and the receipt of either would have been good. The passage cited from Kyd on Awd. 103, is not important; because, at most, it would only prove the award to be void as to Parkeson. But, 580 an award may be good in part *and bad in part; and, therefore, although it may not be good as to Parkeson, it is so as to the plaintiff; which strengthens the argument on the declaration.
    The costs were reducible to certainty; and the plaintiff, under the terms of his declaration, might proceed to prove their amount; and, without doing so, he could not have obtained a verdict: Which brings it precisely within the statute of Jeofails. Besides, the demurrer does not state the want of this averment, as a cause for demurring ; but, as it is clearly a formal defect, it was necessary to have assigned it, or the defendant could not take advantage of it at all. So that, under that view of the case, too, the defects are cured.
    Awards are more liberally expounded now than formerly, and the Court will not labor to set them aside.
    Wickham, in reply.
    The difference is between substance and form. In the latter case, you can take no exception which is not specially assigned as a cause of demurrer; but, in the other case, you may; for, the Court will not give judgment for the plaintiff against right, merely because the defendant has assigned a wrong cause of demurrer. Hence, it is a rule, that whatever would be bad upon a general demurrer, you may take advantage of, though not assigned as one of the causes of the special demurrer. The failure to state the amount of the costs, therefore, was a substantial defect; and, of course, the error may be insisted on, though not specially assigned as cause of demurrer. Although awards are construed liberally, that does not prove that a bad declaration may be supported.
    Cur. adv. vult.
    
      
      Variance — Demurrer — Oyer. — Upon demurrer, where the defendant has taken over, he may take advantage of the variance. Bennett v. Loyd, 6 Leigh 316, citing the principal case.
      See the principal case cited in Moore v. Fenwick, Gilm. 216; Reynolds v. Hurst, 18 W. Va. 651, and note to Crawford v. Daigh, 2 Va. Cas. 521.
    
   ROANE, Judge.

This is an action of covenant founded on an agreement under a penalty, conditioned to abide by an award, and upon an award made in pursuance thereof. The declaration states a profert of the agreement; but does not state 581 a *profert of the award; which is equally necessary, with the deed, to make out the cause of action.

Oyer was prayed and granted, both of the agreement and the award; which being set out, the defendant demurred to the declaration ; because the declaration and award and the matter therein contained, are not sufficient in law to maintain the plaintiff’s action, and assigned the causes of demurrer according to the directions of the statute. Upon a joinder to the demurrer, the judgment of the County Court was in favor of the plaintiff, and on an appeal taken to the District Court, that judgment was affirmed.

It is admitted, that if there is a profert made of the deed, and upon oyer the deed is set out, it is competent to the adverse party to shew a variance between the deed produced, and that stated in the declaration. But, it is contended, that this rule does not extend to cases where no profert is made, although, in fact oyer has been granted. I think, however, that this rule is not so restricted. I consider that this competency of exception for a variance equally exists in cases where no profert is made; but where in fact oyer has been granted. This doctrine seems admitted in the case of Jeffery v. White, Dougl. 476, which was trespass for taking cattle. Plea, that they were taken damage feasant. Replication, stating a right of common: Rejoinder, stating part of a private act of Parliament, for enclosing the common, and an allotment by the commissioners of the locus in quo to the defendant, and traversing the right of common. Oyer was prayed of this act, and granted; the whole case set out and then a demurrer to the rejoinder, and the cause assigned, was, that it was not shewn by the rejoinder, that the allotment was made according to the directions of the act as set forth. On a joinder to this demurrer, the Court gave judgment for the plaintiff, although it was argued for the defendant, that a party is not entitled to oyer of acts of Parliament; and that it could not 582 be granted, because it was not *in the power of the Court: And for a similar reason, the party who relies on them cannot make a profert, because he has them not to produce. That, therefore, the Court ought to consider the oyer and recital of the act as a mere nullity, and that upon what appeared in the defendant’s rejoinder the allotment was regular. In this case then, the act of Parliament being set out upon oyer, (although oyer might not have been properly demandable,) was held to destroy the defence* set up in the rejoinder; which, but for the act thus set out, would have been sustainable. It is true, a silent judgment only appears to have been given in the case by the Court; but it is founded upon, and I think, fully supported by the case of Smith v. Yeomans, 1 Saund. 316, which it is unnecessary to state.

These cases also shew, (as well as those cited,) that a demurrer is a proper mode to take advantage of a variance, between the case stated in the declaration, and the deed which may be set out upon oyer.

The first variance which occurs in the present case, is this; the declaration states, that in the dispute between Macon and Crump, executor of Cloptori, the sum of 331. with interest, from September, 1783, and the costs of suit, were awarded to the plaintiff; and the award exhibited upon oyer is of the said sum, and costs to Crump and Parkeson, executors of Clopton. The answer to this objection is, that-the declaration need not be according to the letter of the award, but according to the operation of the law thereupon. Thus, in Roberts v. Harnage, 6 Mod. 228. The declaration was on a bond for payment to him, his attorney or assigns; and the bond set out upon oyer, was, to his attorney or assigns, omitting the word him; and an exception for this variance was taken by demurrer and over-ruled upon the principle before-mentioned; a payment to a man’s attorney being a payment to himself. So,- in the present case, an award to pay to Crump and Parkeson as executors, is in legal, operation, an award to pay to the executors 583 of Clopton ; *for, certainly a payment to both executors, is a payment to each executor; and, therefore, the declaration is sufficient.

I will next consider the award in this particular, with reference to the submission and independen tty of the declaration. The submission is in this, respect of a matter between Macon, and Crump, as executor of Clopton; the award is to pay to Crump and Parkeson, executors of Clopton. In general, an award to pay to a stranger to a submission is void; but, this is understood to hold only when such payment can be of no benefit to the other party; for, an award to pay the creditor of a party, in discharge of a debt due by him to that creditor is good. So, is an award to pay to a party’s solicitor, if it appear to be for his benefit. This doctrine, which appears to me to be sound, and which I therefore adopt, is to be found in Kyd on Awd-. 104. . It applies forcibly to the above-mentioned ■ objection; and is founded upon • the same principles which I have just resorted to, to justify the declaration with reference to the award.

It is also laid down in Kyd on Awd. 160, that if the ■ parties, comprehended in the award, were in the contemplation of the submission, though not directly parties to it, yet the award is good; and, there can in this instance exist no doubt, but that all the executors of Clopton were in contemplation, when an account was to be adjusted in which the interest of his estate was involved.

An objection is made to the award as being uncertain as to the suit, the costs whereof are awarded to the plaintiff. This objection does not apply to that part- of the award which respects Macon’s private debt, as the suit is partly- specified; and, that part which respects Clopton’s debt,.I think on a liberal interpretation may be taken to mean a suit then depending respecting that matter; and, if it be said, that there is an utter uncertainty as to the Court in which it may be depending, I answer, that this objection was over-ruled in the 584 *case of Rox v. Smith, 2 Wils. 267.

The costs of suit too, have been ascertained and established by. law. I think an award of such costs should be considered in the same light, as if it had expressly ascertained and specified the amount thereof in the body of it. As to their amount, then, there is no uncertainty, and consequently, no need of an averment to render it certain, as in the case put in the argument of an award Of so much money as had been expended in a suit.

It is also stated as an objection to the judgment in this case, that it is in the plaintiff’s own right, for a sum compounded of two sums, whereof one is due to him in the character of executor. The answer is, that the action is on a covenant made to the plaintiff in his own right; on breach of which an action accrued to him; and his character of executor, is no otherwise involved in the action than that he submitted a matter in which he was concerned as executor. The defendant might have saved his covenant, by paying a sum of money to him (amongst other things) in that character.

These are the most material objections which have--been made in the present case; none of which are, I think, sustainable to arrest the judgment of the District Court, affirming that of the County Court.

RDEMING, Judge. As to the error assigned, that- the award was not mutual, I shall only observe that awards are more liberally expounded now than formerly; and, there cannot be a doubt, but the present .award and the judgment rendered on it, will be a bar to any. future claim in respect of any thing embraced in the award; for, the parties were present, and their respective claims were all considered. After which, neither would be allowed to insist upon any of the matters which had been awarded on. To prevent which, is the only object of the mutuality spoken of in the old books.

*As to the exception, that awards ought not to extend to any person not a party to them according to the doctrine in- 5 Co. 77, I shall remark, that there is a difference between an award of an act to be done by a stranger, and one to be done to a stranger. Kyd on Awd. 160. Ror, in the first case, there is no compulsion on the stranger, but in the latter the party to the award derives a benefit by an act to be performed;, and, therefore, there is the same reason for supporting the award as if it was to be performed to the party himself. This reasoning applies to the present case expressly; for, here Parkeson might have given a discharge, as it was for the benefit of the estate.

With respect to the objection about the costs, there appears to be no ground for it; as that part of the award necessarily referred to the costs of that particular suit; which were ascertained by law and only required a calculation b3T the Clerk.

I do not think, that the variance insisted on was material; but, that the declaration has substantially pursued the reference and award. Ror, the action is founded on a covenant, made to the plaintiff in his own right, and upon the breach he became entitled to an action; all which is suggested in the declaration with perfect precision; and, that is all which is requisite. Therefore, I see no reason for disturbing the judgment; but, think it ought to be affirmed.

CARRINGTON, Judge.

Concurred that the judgment ought to be affirmed.

BYONS, Judge. The Judges have already stated the general doctrines on the subject now before the Court; and, I concur with them in opinion concerning most of them. But, perhaps there may be a difference where a profert is made by the plaintiff, and then oyer is taken by the defendant so as to incorporate the deed into the declaration ; and, where oyer only is taken without any profert made by the plaintiff. For, in the first case a demurrer would clearly be sustained; but, possibly the 586 latter may ’'admit of some doubt.

The usual method, and probably the safest is, to plead the variance; for, then the very fact is put in issue; the plaintiff must see to the correspondence between his evidence and his pleadings; and, proceeds to trial at his peril, if there should be any difference between them. So, that if this method be pursued, the case is clear of difficulty ; whereas the other, as before observed, may admit of some doubt. But, it is not necessary to go into the consideration of that point now; because, I think the others are against the appellant.

It is a rule, that awards may be good in part and bad in part; and, therefore, whatever is good in the award now before the Court ought to be supported.

As far as it respects Crump in his own right, it is clearly within the terms of the submission; and, therefore, no dispute arises about its sufficiency so far. But, I think it as clear, that what respects the executors is likewise within the submission; and, therefore is equally as good. For, payment to the plaintiff would have been a bar to any future demand by Parkeson : Because, a release by one executor is good; and, therefore, his receipt against the award would have been a discharge of the old demand: Which, as the representative of his testator, he might submit to arbitration. It was then a matter of controversy between him and the debtor; and, therefore, properly enough adjusted under the submission.

There is no weight in the objection, that the award contains matter to be performed to a person who was a stranger to the submission.

For, Parkeson had an interest, and was no stranger. Because, this part of the award related to their right as executors; and, had no other effect than to ascertain the amount, leaving the mode of discharge and the power of releasing as they were before. So, that each of the executors might still have received the money and granted a discharge; and, the money when received, would have been for the 587 joint *benefit of both. Of course, Parkeson had such an interest as made it proper to extend the order for payment to him, and, therefore, he cannot be considered as a stranger.

That part of the award which relates to costs, is subject to as little exception : For, it is certain to a common intent; as it must relate to the costs of the suit then pending: and certainty to a common intent is sufficient. [Hawkins v. Colclough,] 1 Burr. 274. Besides, it is a rule, that that is certain which can be rendered so: Which applies to the present case. For, when the arbitrators use the word costs, they mean the legal costs; which only require^to be enumerated by the officer of the Court*; for, the items themselves are certain and to be collected from the record.

I have no difficulty, therefore, in pronouncing that the award is good.

Then, as to the point concerning the variance; upon which it is sufficient to observe, that in covenant the plaintiff need not set forth more of the writing declared on, than is necessary to shew his own title; which is sufficiently done in the present case: And, from what has been already said it is clear, that there is no substantial difference between the covenant set forth and that produced. For, I have shewn that Crump had a right to receive the money; and, consequently, he must be entitled to sue in his own name for recovery of it; as the covenant was personally with himself. So that, in fact, the allegata and probata may be fairly said to agree together.

The same doctrine applies to the case of awards. Consequently, it was not necessary for the plaintiff in the present case to have stated more of that either than was essential to shew his title to recover. This he has done; and the award agrees with the recital. So that there is no cause for objection upon that ground.

*Thus, then, it appears, that every objection with regard to the variance is removed, as well as those with regard to the insufficiency of the award; and, consequently, that the case stands clear of exception. I agree, therefore, with the rest of the Court, that the judgment should be affirmed.

Judgment affirmed.  