
    [Lancaster,
    June 6, 1825.]
    BUCKLEY against ELLMAKER.
    IN ERROR.
    Awards .at common law are to be construed according to the iutent of the parties’, and so as to quiet all differences.
    Arbitrators may give damages up to the date of the award, if such is the general intent of the parties apparent in the submission.
    If this intent were doubtful, the presumption is, where damages are given up to the date of the award, that none were sustained after the time of the submission.
    Arbitrators at common law cannot give costs, unless expressly authorized.
    Award of a certain sum to the plaintiff, “ which is to be in full of all damages and costs to this date,” &c : it appearing by the' submission that the costs of a suit pending between the parties were agreed to be paid by the plaintiff, and the recital of the award, stating’ that the question of damages only was submitted, held, to mean that damages only were given, in full discharge of all claims by the plaintiff.
    Ambiguous language in awards at common law is to be construed so as to support the award.
    This was a writ of error to the District Court for the city and. county of Lancaster, in a suit brought by the plaintiff below and in error, Daniel Buckley, against the defendant, Leonard Ell-maker.
    
    It was an action of debt on an award, and a verdict had been rendered in favour of the plaintiff, but the court below arrested the judgment, on the ground that the award went beyond the submission; 1st, in giving damages to its date; 2d, in allowing costs.
    The proposition for a submission, the submission itself, and thef award, were as follows:
    “A proposition made by Daniel Buckley, to Jacob Swart z-waiter, and John Clemson, who seemed to be acting as agents for Leonard Ellmaker, in the suit now pending in the court in Lancaster, about the damages, and flowing back water, occasioned by his mill-dam, before the sheriff, and seven iurors, appointed to view the same.
    
      “ That, if Leonard Ellmaker would reduce his dam, that the Water should not be thrown back further than the said Buckley’s line, and that-the damages shall be left to three or five men, mutually chosen by the parties, as respects the injury the said Buckley has received, for, as long as the law will take the damages into consideration, and that damages are to be paid, if any, then the said Buckley will discontinue the present lawsuit, and not molest the said Ellmaker, unless the water should be flowed back again, as witness my hand, this seventeenth day of November, 1820.
    Present, Daniel Buckley.
    
    
      Robert Maxwell.
    
    
      John Landis.
    
    
      John Landis, (Conestoga.)
    
      John Mathiot, sheriff.
    “ I do hereby agree to the above proposition. November 23, 1820. Leonard Ellmaker.”
    
    “And now, November 23, 1820, it is hereby agreed by the within parties, that William Gibbon, Samuel Huston, Esquire, and George Eckard, Esquire, be referees, to assess the damages the said Buckley has sustained, by the back water of the said Ell-maker’s mill-dam, and also to view the said mill-dam; and when it shall be lowered, agreeable to the spirit of the within proposition and agreement, signed by John Mathiot, sheriff, and other witnesses, and dated November 17th, inst, then to mark by some permanent mark the height the waters shall be hereafter flowed, by the said Ellmaker’s mill-dam. And the men above named referees, shall have full liberty to order the water to be so made by the parties, as to give them full opportunity to carry into effect the within agreement, agreeable to the spirit thereof. The men to meet on the ground in ten day’s notice. As witness our hands and seals, the date above written.
    
      Daniel Buckley, (seal.)
    Witness, John Passmore.
    
    
      Leonard Ellmaker. (seal.”)
    “ Whereas, by an agreement between Daniel Buckley, and Leonard Ellmaker, executed under their hands and seals, dated the 23d day of November, 1820, William Gibbons, Samuel Huston, Esquire, and George Eckard, Esquire, were mutually chosen referees, to assess the damages which the said Buckley haS sustained, by the water being flowed back on his land, by the said Ellmaker’s mill-dam, and to mark, by some permanent mark, the height the water shall be flowed back hereafter by the said mill-dam.
    “Now, to all to whom these presents shall come, know ye, that we, the above-named referees, having several times met, and carefully viewed the premises, heard the parties, their proofs and allegations, do award and determine that Leonard Ellmaker pay to 
      Daniel Buckley, the sum of five hundred and seventy-three dollars, and sixty-three cents, which is tobe in full of all'damages and costs to this date, and that Leonard Ellmaker lower his dam, so that, when the natural channel or stream of the creek passes over the breast, or tumbling way thereof, the water shall not rise higher than a mark cut by a mill pick, on a limestone, set by us, and based on a rock, about five perches above the said'mill-dam, on the south side of the creek; which we have found, by carefully levelling the water, will occasion it to flow back to the said Bulk ley’s line.. Given under our hands and seals, this 29th day of December, 1820.
    
      William Gibbons, (seal.)
    
      Samuel Huston, (seal.)
    
      George Eckard. (seal.”)
    
      Jenkins and T. Sergeant, for the plaintiff in error.
    The question is, whether the award on which this verdict was given is good. The law relative to the construction of awards has .been much altered of late years; courts are more liberal than in ancient times, in carrying into effect the intent of the parties submitting. 1 Bac. Ab. 212. 1 Dall. 174. 1 Burr. 277. 14 Johns. 103. Kyd on Awards, 228. 392. Every thing is intended in favour of awards; ambiguous words are construed so as to support them. Kyd, 233.
    Is the award bad, because damages are given to the date of the award? The rule is established by repeated decisions, that, unless it appears there was damage sustained between the date of the submission and the award, the court will presume there was none, in order to support the award. Alleyn, 85. Cro. Eliz. 358. Leigh v. Payne, Hutt. 9. Goffe v. Brown, Hob. 190. Short v. Maynard, Comb. 150. Squire v. Grevet, 2 Ld. Raym. 961. 10 Mod. 33. S. C. Hooper v. Pierce, 12 Mod. 116. Marks v. Marriott, 1 Ld. Raym. 116. Hill v. Thorn, 2 Mod. 309. Abrahat v. Brandon, 10 Mod. 201. Simons v. Gabel, Salk. 14. And, though the award is not said to be “of and upon the premises,” yet the construction is the same as if it had been expressed. Kyd, 238. The judge below said, that it plainly appeared, from the proposition of the plaintiff, and the submission, that there was a continuing nuisance up to the date of the award. This we deny. We say, the probability was, and the intendment ought to be, that the defendant had lowered his dam, immediately after he accepted the plaintiff’s proposition, and before the submission to the arbitrators,
    The judge below also relied on the circumstance of this award’s having allowed costs to the plaintiff. This also is denied by the plaintiff. The award gives ho costs. The arbitrators mention no sum as due for costs, either expressly or by reference. But the intent was, that the plaintiff should, receive five hundred and seventy-three dollars, and sixty three cents, in full of all damages, and should have no future claim on any pretence, either for damages or costs. They did not mean costs of suit, technically, but money expended by reason of the plaintiff’s land having been overflowed. Or, it may be understood, that the plaintiff should not be allowed any costs for the suit then depending against the defendant; and which the plaintiff had agreed to discontinue. As to the power of arbitrators to award costs, there have been contradictory decisions. In Dod v. Herbert, Styles, 459, it is held they may; and Kynaston v. Jones, Alleyn, 85, seems to the same effect. In New York, in Strong v. Ferguson, 14 Johns. 161, the point is expressly decided by the Supreme Court. And to the same effect is the opinion of Kyd, page 152. It appears, by the case of Nelson v. Andrews, 2 Mass. Rep. 164, that in Massachusetts, the practice has been for arbitrators to allow costs or not, as they may think proper.
    
      Ellmaker and Hopkins, contra.
    There was a suit by the plaintiff against the defendant, for a nuisance by this dam, brought to February term, 1803, and discontinued on the 6th of April, 1814. Another suit was brought for the same nuinuisance to November term, 1814, on which there was a nonsuit, on the 26th of November, 1821; this last suit was depending at the time of this submission and award, and is the one referred to in the plaintiff’s proposition, which, led to the submission. The judge below told the jury, they might find for the plaintiff, though his opinion was, that, in point of law, the award was not good, and, therefore, the plaintiff.could not have judgment. We contend that the award is bad, because it goes beyond the submission, in giving damages to its date, and in giving the plaintiff costs. The submission is at common law, and the referees had no more power than was given them; the submission must be strictly pursued. Willes Rep. 69, 253. Cro. Eliz. 432. 6 Johns. 13. Kyd on Awards, 141.167.170. 4 Mass. Rep. 242. Such is also the statutory provision. Act of 9 & 10 W. 3. c 15. Rob. Dig. 64. Act of 1705. Purd. Dig. 7. Act of 21st March, 1806, Purd. Ab. 7. The plaintiff’s first proposition is the foundation of the submission; damages were to be assessed according to the injury the plaintiff “has received;” and the submission is, “to assess the damages the plaintiff has sustained;” both restraining it to the damages sustained at the date of the submission. There was anotner restriction: they were to be assessed “for as long as the law will take the damages into consideration,” and on their payment, the plaintiff to discontinue his suit, and the defendant to molest the plaintiff no more. This also excludes damages for future injury. But the arbitrators have awarded a certain sum, “ in full of all damages and costs to this date,” thirty-six days after the submission. This is as much as to say, they gave damages up to that date, which was contrary to the submission. It is impossible to state what these damages were; that there were some is plain, because the dam, the source of the alleged nuisance. had not been lowered, inasmuch as the award orders the defendant to lower it.
    The award is bad, also, because the arbitrators gave costs; it gives a sijm of money in lieu of all damages and costs. If costs of suit are meant, it was clearly beyond their power, in an awa'rd at common law. On an arbitration of a suit in court, arbitrators may give the costs of suit, but not the costs of reference; but, if there be no suit, no costs can be given. It would seem, the referees meant costs of the arbitration; because, as the plaintiff was to discontinue his suit, he was to pay his own costs of suit. But they certainly meant something different from the damages occasioned by the overflowing of the water. If the referees had not power to give costs, then the award is bad, because they are blended with the damages. They cannot be separated, so that the award shall be held good as to the damages, and bad as to the costs. To show that there was no power to award costs, they cited and relied on 2 Barne’s Notes, 123. Willes, 62. 8 Mass. Rep. 398. Kyd, 394. Appendix.
    
    
      Reply.
    
    The law of awards is pretty well settled. The old law on awards at common law was very subtle. It has been much improved by modern decisions. The common law principle, that damages should not be given, after the date of the submission, was a harsh one, and, therefore, he who attempts to avoid an award on this ground, will be held strictly to it; he must make out the. case clearly. If the fact were, that damages were in this case actually given for a time subsequent to the submission, the defendant ought to have pleaded it, and proved it by the arbitrators who were present in the court below, and examined as witnesses. This court will now make every intendment in favour of the award. The case itself was peculiarly fitted for arbitration; it was to effect the settlement of an old dispute betwe.en neighbours, on a matter of difficult adjustment, namely, the height to which the defendant might raise his dam. The plaintiff made great sacrifices to procure this arbitration; he gave up all the,damages, but those for six years; he gave up'the costs of his suit then depending.
    The arbitrators had a right to give damages to the date of the award, and if they had not, yet it does not appear that they have given damages below the date of the submission.
    If the submission gives the power, then the arbitrators might give damages to the time of the award.,. Now, in the plaintiff’s proposition, the first thing to be done was, that the defendant should lower his dam, and then the damages were to be assessed by arbitrators, but not for more than six years. With this sole restriction, they might be given to the date of the award. But damages are not given to the date, ' A sum of money is awarded, in full of all damges and costs to the date of the award; which means simply, that the plaintiff shall have no future right of acrtion for any injury prior to the date. It was assumed as a fact by the judge below, that the nuisance continued after the submission, because the dam was not lowered. But that does not follow. It was not the dam that constituted the nuisance, but the water which overflowed the plaintiff’s land and mill. Now, at certain dry times, the dam might have been up, and yet no nuisance, because there was no overflowing of the plaintiff’s property.
    The remaining objection is, that the arbitrators gave costs. We deny that the award gives costs to the plaintiff; it only gives a sum in full of all damages ahd costs. The meaning is, that the plaintiff’ shall have a sum of money, in consideration of which, he shall be barred of all future claim of damages or costs. This was no more than the plaintiff had agreed to; for he had said in his proposition, that he would discontinue his suit, which be could not do, without paying the costs. Besides, it is not by any means clear, that the arbitrators used the word, costs, technically; they might have meant the expense to which the plaintiff' was put, by reason of the overflowing of his land, such as scouring his race, or repairing his wheel, which was racked by the back, water, or cutting ditches, to divert the back water.
    As to the power of awarding costs, there have been contradictory decisions, but the weight of authority and of argument is in favour of the power to give the costs of reference. The case in Styles is positive in the affirmative, and though the principle is contradicted in the case in Willes, yet it does not appear that in the latter case the authority in Styles was cited, or known. The case in 14 Johns, is in point.
   Duncan, J.

delivered the opinion of the Chief Justice and himself.

There are no disputes between neighbours so apt to excite fierce animosities, or which are so lasting, as the injuries of the nature of which the plaintiff complained. They do not consist in one act, but are living injuries, which one action will not terminate. Of all controversies, this is one in which adjustment by referees— judges chosen by the parties — is most proper, and best adapted to put an end to the strife, and most effectual in fixing for ever the rights of the parties. Their examination could be more accurate than that of any jury on a view. The dispute had continued for seventeen years, and was all that time in law; and when it would end, or how many suits it would cause, no man could foresee. The sheriff and viewers were on the ground, when the plaintiff made a proposition, which was the foundation of the submission and award, and the verdict of the jury on the several issues here found. The submission was freely and fairly entered into, and the conduct of the referees freed from the imputation of undue influence practised, or fraud; and every court of justice would surely feel regret, if this bone of contention was again to be gnawed by these parties, and that they were to be sent back to court, after breathing a while, and be set on again, to worry each other for the rest of their lives, and transmit a hereditary feud to their descendants. For there is no form of action, except the writ of quodpermittat prosternere .could end it. That is’ an unusual remedy. I never knew but one writ of that kind. For we have no Court of Chancery that could restrain by injunction, after the right had been decided, nor bill of peace, which, after several verdicts, could quiet the parties, except the effectual and wise bill of peace, settlement by judges of the parties’ own choice, who could go further than any court, by giving damages for the past injury, and regulating the future enjoyment of their respective rights.

But, however this might be the subject of regret, still, if this in point of law be. a vicious award, we are not to be influenced by these considerations, but are bound to declare it void. It is contended, that the referees exceeded their authority, and that the award is not pursuant to the submission. 1st, For that it carries the damages up to the date of the award. 2d, That it awards the costs of the suit, which gave rise to the agreement to refer. 3d, That it awards the costs of the reference.

The argument has been conducted with great ability on both sides. Every thing that ingenuity and authority could bring to bear on the question has been urged, and it has been done with a commendable brevity. Courts of justice, formerly examined awards with a^critical nicety, which one is ashamed of. Many of the nicest distinctions, which were so much the fashion of the day, and which were the fault of the day, in every other subject,as well as the law, are discarded; and these precedents are not to be admitted, in expounding awards at this day. We are not to be governed by the rules in Hutton, in Styles, and in Jllleyn, for there is a common sense rule, the plain and obvious meaning of the parties. Upon the ancient distinctions, it was justly said by Lord Hardwicks, in Lingood v. Eade, 2 Atk. 505, “courts of justice had scanned awards with so much nicety, as to make it impossible for arbitrators to do that which is the main intention of the submission, the putting an end to differences between the parties; but as justice between the parties is the material thing, if the award is good to -a common intent, and answer the intent of the parties submitting to a reference, this is sufficient;” and he further observes, “courts of law will not now make presumptions to overturn the award.” With these plain and rational rules to guide us, what was the main intention of the parties to the reference? The nature of the controversy, the time and occasion of the proposition, all show, it was not only intended as a final termination of all that was past, but a regulation for their future government, in the exercise of their respective water rights for-ever. By the agreement, “the referees were to mark, by some permanent niark, the height the water should be thereafter flowed, by the said Ellmaker's mill-dam; and they were to assess the damages the said Buckley has sustained, by the back water of the said Ellmaker’s mill-dam;” the referees to meet on ten day’s notice. This agreement was made on the 23d of November, 1820, and the award on the 29th of December, 1820. Ten days time was to elapse before the meeting of the referees. It never could have been the intention of the parties, that a fragment of ten days should remain unsettled in a nuisance which had continued for seventeen years. The object was to quiet all controversies, and this is by no means inconsistent with the proposition, that the damages for the injury sustained should be left to three men, “for so long as the law would take the damages into consideration.” The obvious meaning of that is, that the referees should not go further back than six years, all else being barred by the statute of limitations. The reference was not a reference of the action then pending, to be confined to damages that would be given in that action, but & general reference, to end the whole controversy. I would construe the agreement, connected with the proposition, as submitting to the referees the assessment of damages, up to the date of the award. But, if this should be doubtful, which I think it is not, then the presumption would be, that no damages were sustained by the plaintiff, and none given between the time of the submission and the award. There might have been none sustained. The season was dry, the water so scant, that neither the mill of Ellmaker, nor the forge of Buckley, were in operation, or Buckley’s forge might have not been in operation from some other cause. For, though the words of the award might comprehend a time beyond the submission, yet it must be presumed, unless the contrary is shown, that nothing had arisen between the time of the submission and the award. Kyd on Awards, 237. But the inclination of my opinion is, that, if the referees had not assessed the damages up to its date, it would have contravened the intention of the parties, which was, to quiet the whole controversy.

As to the 2d and 3d objections, I will consider them together. All of the English authorities, as to the allowance of costs, are where the reference was in an action in court. It seems to have been pretty much a vexed question. It is reasonable, however, to conclude, unless there is something in the submission evidencing a different intention, of a controversy out of court, that it will be intended the parties were mutually to pay the expenses; and if it appeared in this case clearly, the referees had allowed the costs of the action, or the expense of the reference in the sum given in damages, the award would be erroneous. I say clearly; for, if it were ambiguous, the words ought to be construed in such manner, as to give effect to the award. 6 Mod. 33. Kyd on Awards, 233.

There can in reason be no difference whether the award is expressed to be made de et superprsemissis, or not. It will always be supposed that the referees so intended. But it cannot be doub..ed here but that it was so made, for the referees in the award recited the very matter of the submission verbatim.. Gwillim, in his note to 1 Bac. Ab. 214, where a ease in Cro. Jac. 640, is cited, of a submission of all controversies^; touching money laid out for one’s wil^e, when she was sole, afcqfeer request, and an award of three hundred and forty pounds, fot all sums laid out for the wife, while sole, omitting at her request, was held to be void, because, they award another thing than that which is contained in the submission, — adds this query, if the submission be recited in the award, whether the award shall not bear reference to the submission, and be construed accordingly; that is, to mean at her request, and be good.

But, taking into view the time, the occasion, the proposition, and the-agreement and award, it is a strained construction, to say that the referees either awarded the costs of the suit or the costs of the reference. To support this award, I would give to the term costs its legal signification, — legal costs to be recovered in a suit, and not the expenses of a reference. In Fox v. Smith, 2 Wils. 268, where this objection was made to an award, the. court said, we will intend that by costs, charges, and expenses, are meant such costs only as courts take notice of by their officers. Now, the costs of suit Buckley bad agreed to pay, when the right should be fixed, and the dam of Ellmaker regulated by the mark which would.be fixed by the referees. All that the referees intended to say, or have said, is this, “ We give to the plaintiff five hundred and seventy-three dollars and sixty-three cents damages, in full for the injury he has sustained by the back water of Ellmaker’s dam, and this is to be in full satisfaction of all damages and costs. The damages he has sustained are.five hundred and seventy-three dollars and sixty-three cents, but he is not to demand any costs from the defendant, because by agreeing to discontinue, he has agreed to pay his costs.” They have not taken the costs into view in the assessment of damages, because they assess the damages according to the agreement recited, which does not take in costs.

The clause, “which is to be in full of all damages and costs up to this date,” has reference not only to the agreement, but the proposition. It is a plain declaration that the damages assessed for the injury are to be in full satisfaction of every thing, not that they have taken into the consideration any thing but -the damages actually sustained. This is all matter of intention, and I think it can be collected with certainty, taking into consideration the whole subject matter. If authority were wanting to establish so clear a position, it is to be found; for in 1 Bac. Ab. 215, Roll. Ab. 243, pl. 10, there is this case, — if the submission be of all controversies to the time of submission, and the award, be that one of them should deliver up an obligation made since the submission, in sa~ tisfaction of all matters, this is good, because the bond only is given in satisfaction, not that the arbitrators have passed judgment on a bond not in existence at the time of submission. Indeed, so strict was the construction at one time, that if the award did not express the sum awarded to be in satisfaction, this omission would vitiate tiie award. But, here, a discharge to the other must necessarily be presumed, from the payment of the sum, or performance of the act by the one. The expression — 11 which is in full of all damages and costs to this date,” is nothing more than would be implied from the assessment of the damages. If awards were not to be construed with liberality, if every presumption were to be made against them, as in former days, if they were to be examined with the keen eye of criticism, and if ingenuity could start a possible construction, from which it might be inferred that arbitrators exceeded their authority, and courts were so to infer, because it might be possible, we should make sad havoc of awards, and instead of arbitrations being the end of strife, they would be but the beginning of troubles. But they are not now so construed: they are interpreted according to the intention of the arbitrators, the arbitrium boni viri, not nicely and critically looked into in modern times, but to receive a benign construction. Fox v. Smith, 2 Wils. 268.

The opinion of a majority of the court is, that the award is a good award, pursuant to the submission, and that the judgment of the District Court should be reversed, and judgment entered for the plaintiff on the verdict.

Gibson, J.

As regards one of the points on which the cause has been argued, I am sorry to say, I am unable to arrive at the conelusion which is adopted by a majority of the court. It is unnecessary to review the decisions on the subject, for it will readily be conceded, that particular expressions are not to be caught at to destroy an award. Notwithstanding the nicety of distinction observable in the old cases, it is settled that submissions and awards, like any other species of writings, are to be expounded rationally, according to the actual intention of the parties. Questions like the present, therefore, are to be determined in favour of the award wherever it appears that the arbitrators have acted exclusively on matters' which it may fairly be presumed were intended to be submitted to their decision. In the ease before us, the arbitrators were authorized to assess the damages sustained by the plaintiff, and to ascertain the height to which the defendant might raise the water, without violating the rights of the plaintiff; and this was the extent of their power, for every other matter in dispute had been settled by the agreement of the parties themselves. The arbitrators awarded a gross sum to the plaintiff, “ in full for all damages and costs,” up to the date of the award; and the question is whether they have transcended their powers.

I am not for sustaining the exception to the assessment of damages, for the injury which was suffered between the time of the submission, and that of the award. In the submission, the arbitrators are empowered to assess the damages which, as it is expressed, “ the said Bucleley has sustained;” and this, according to stricj&rammatieal constructionN.would relate to the date of the submit'lBn. But, to resort to ruSjfcjof gr$;,,|nar for the exposition of an agreement, every word of which is -afviolation of all grammar, would never lead to a satisfactory result. It is obvious that the parties knew too little of the structure of language to be able to express their meaning with precision. In common parlance, nothing is more frequent than the use of a past tense in relation to a future event, which is yet prior in time to something else which the speaker has in his view. Now, the first consideration of the parties, and indeed the very basis of the agreement, was the discontinuance of the nuisance; for all the other propositions are founded on it. They would therefore naturally look to it, as the proper period for estimating the compensation that ought to be made for the injury which should then have been sustained. I think,.then, the parties meant to say this: — The nuisance shall, first bo removed; and then arbitrators appointed for the purpose, shall determine what damages the plaintiff “ has57 sustained; that is, the damages which he then has sustained: the time when the principal thing about which they were treating was to take place, was that which was uppermost- in their thoughts: consequently, their expressions are to be understood in reference to it, and not to the time of the submission. -This construction is strengthened by considering that the plaintiff- had agreed to relinquish the advantage which he had gained by the early institution of an action, and to accept of damages .only for a period, within which his demand would not be barred by the statute of limitation; and whether that period should terminate at the date of the submission or of the award, could produce no substantial difference as to the consequences, the length of time to be compensated being in either case exactly the same.

But in awarding a gross sum in full of costs as well as damages, it seems to me the arbitrators intended to compensate a loss which.' the plaintiff had agreed to take on himself. It has not been pretended that any thing was submitted but the estimate of the damages which had been sustained directly from the nuisance; but it is said the arbitrators meant to prevent all future pretence of a» sepárate claim by the plaintiff for the costs of the suit which he was to discontinue; and that they intended to effect this without taking those costs into consideration as a part of the injury to be compensated. It is possible they may have done so; but to me it seems highly improbable. The natural and obvious import of the words “in full of damages and costs,57 is that the thing given is to be in satisfaction, not only of the damages, but- of the costs also: nor do I thifik this would be brought out more strongly by inserting the word compensation after the word full. A thing received in full of a demand is received in compensation of the demand, even although the thing received be of less value. But we cannot conceive that the árbitrators intended to give less than a fair compensation for the whole of the injury which they were appointed to value; and therefore I am at a loss for any motive they could have, to say a word about the costs, unless they intended to include them in their estimate. Why introduce them into the award, if they thought they were not submitted ? And, if they had been submitted, it could have been only as the subject of compensation. If the arbitrators meant nothing more than to prevent an after dispute about them, they must have known they had nothing to do with that; as everything except the amount of the damages had been settled by the parties themselves; for the plaintiff, having agreed to discontinue his suit without any special provision for the payment of the costs of it, had agreed that they should be paid by him on whom the law should cast them: and, consequently, had agreed to pay them himself. Now, by acting at all on the subject of the costs, the arbitrators evidently meant to do something: but in awarding that they should be paid by the plaintiff, without allowing him their amount in the damages, they would in effect have done nothing; for that had already been provided for in the agreement; and we ought not to suppose they intended to do what was merely a nugatory act. But even in doing that, they would have travelled out of the submission; and, although that would not vititiate the award, yet, on the other hand, it is quite as probable they travelled out of it to compensate the plaintiff for his costs by increasing the damages. The argument rests upon an admission that the arbitrators have either way transcended their authority; but it is contended, that they have transcended it only in a way which does not render all void. But how is that to be inferred against the obvious import of their words? Whether they did or did not know that these costs were agreed to be paid by the plaintiff, they might very naturally consider them as a legitimate subject of compensation in damages, which they might think had been remotely incurred from the nuisance, and that they did so consider them I have little doubt. Believing, then, that they exercised a power not delegated to them, I am for affirming the judgment.

Afterwards, on' the 8th of June, on the motion of Ellmaker apd Hopkins, for the defendant in error, who wished to take a Writ of error, Jenkins, contra, the court made the following order:

Per Curiam.

In this case, the decision of the District Court, that the judgment should be arrested is reversed, and it is ordered that the record be remitted to the District Court, with orders to that court to enter judgment for the plaintiff.  