
    Coupland v. Anderson.
    [October Term, 1799.]
    Arbitration and Award — Majority Award  — if there be a reference by rule of court in a suit depending to 4 arbitrators, or any three, and afterwards 2 others are added; if two of the first named arbitrators & one of the last maté an award it is sufficient and a majority of the whole is not required.
    Same — Style of Proceedings: — In such a case if the rule mentions that the money awarded is to be paid to the sheriff for the benefit of the plaintiff’s creditors; the subsequent proceedings must be in that style also. ■ •
    Same — Bail.—if the plaintiff be bail for the defendant at the time of reference in a depending suit, the failure of the arbitrators to award concerning that undertaking will not vitiate the award.
    Same — Costs.—The court may give costs, tho’ the award does not mention them.
    This was a .writ of supersedeas to a judgment of the District Court of Prince Edward. The petition stated, that Anderson • instituted one suit against .the petitioner, and the petitioner two against Anderson in the County Court. That all Three were ■ by rule of court referred 'to four- arbitrators, or any three of them; and that the money awarded to the said Anderson, if any, was to be paid to the sheriff, for the benefit of his creditors. That, at a subsequent court, two other referees were added to the former. That an award was afterwards made by three of-the referees, that is to say, two of those first appointed, and ■ one of those who were last appointed; whereby it ■ was awarded that the petitioner was justly indebted to the said Anderson in the sum of ¿£205. 19. 8., exclusive of a claim that the -said Anderson had against the petitioner as common bail to Gadberry. That the County Court gave judgment for Anderson, according to this award, with costs. That the petitioner appealed to ' the District Court, where the judgment was affirmed. That an execution issued, on the district court judgment: and the petitioners gave a forthcoming bond, which he forfeited; and judgment has been entered on it against him. That these proceedings were erroneous. 1. Because the award was not legally made, or in pursuance of the authority given the said arbitrators; it being made up by only two of the first named arbitrators and one of those last named. 2. Because the award was not final; as it appeared there was a matter in controversy between the parties, which was not settled by the said arbitrators. 3. Because the court in rendering judgment gave costs, although none were awarded by the arbitrators. 4. Because the execution and all subsequent proceedings were in the name of George' Anderson, without mentioning the sheriff, to whom the money was to be paid for the benefit of the creditors, according to the order of reference.
    The award after reciting the suits &c. proceeds thus “We are of opinion, and do’ award accordingly, that the said Coupland is justly indebted to the said Anderson in the sum of two hundred and five pounds, nineteen shillings' and,eight pence; which will more fully appear by referring To the above statement of their ac- , counts, exclusive of a claim that Anderson has against Coupla'nd, as common bail for William Gadberry,' now pending in the District Court of Prince Edward. Given under our hands, &c.” '
    The entry of the judgment of the County Court upon, the award is as follows. “In consideration whereof it is the opinion of the court, that the plaintiff recover against the defendant the aforesaid sum of two hundred and five pounds .nineteen shillings and eight pence, and his costs by him in this behalf expended; to be paid to the sheriff,, for the benefit of George Anderson’s creditors, so far as just claims against the plaintiff may appear: To which opinion of the court the defendant by his attorney objected, because the submission of ’the three suits aforesaid are made in one award and blended together, when they'ought, to have appeared distinct and separate; and because the*suit-' brought against the defendant, in the name of George'Anderson is improper, he having become an insolvent' debtor before the commencement of the action.”
    The execution 'is, that the sheriff should make 'of Coupiand’s goods' and chattels ¿£205. 19. 8. “Which George Anderson recovered' against him.”
    The forthcoming bond is payable to George Anderson; and the judgment, on it, is rendered in favour of George Ander-' son, without mentioning his creditors.
    Wickham for the plaintiff.
    Objected 1. That by the first order of reference four referees were appointed; and then it was agreed that any' three might make an award. But as two others wére afterwards added, this altered that agreement; and therefore from that time three were not enough.. Eor i.t is apparent that it was the intention of the parties that a majority should decide.
    *2; The submission was of all matters in dispute between the parties; bat the referees have not included the claim concerning the responsibility as bail.
    3. The referees did not award costs, and yet the court has given them.
    4. The execution and subsequent proceedings are in the name of Georg-e Anderson only.
    Randolph, contra.
    Awards are construed more liberally than formerly. The addition of the other two did not alter the first consent that three might decide. That consent is not taken away by express words, and there is nothing which implies it. On the contrary the last order refers to the first; and the agreement there extends to both. For the last order is but a component part of the first.
    As to the case of the bail, it never was contemplated by the parties that the submission should extend to that. For that claim was too contingent and uncertain, whether any liability _ would ever attach or not. Kyd. aw. 91, has an excellent general rule on subjects of this kind; and proves the impropriety of extending submissions beyond the intention of the parties. The defendant has shewn his own idea on this point; for, when the award was presented into Court no exception was taken upon that ground.
    As to the costs, if wrongly given, no supersedeas or appeal will be sustained on that ground merely. But the court had power to give them.
    For originally the arbitrators could not ; and their authority to award them was at last founded on the permission for that purpose given by the rule of Court, Kyd 100. But the court always had a right to grant costs; and plaintiffs were entitled to them at common law.
    That the execution and subsequent proceedings were in the name of George Anderson without ^mentioning the sheriff to whom the money was to be paid, is no objection. For the words of the judgment are that they shall be paid to the sheriff, which controuls the subsequent proceedings.
    
      
      See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
   Per Cur.

‘ ‘The Court is of opinion that the said judgment is erroneous in this, that it was omitted to be entered therein, that the money was to be paid to the sheriff for the benefit of the creditors of the defendant, so far as just claims against him might appear. Therefore it is considered that the same be reversed &c. and this Court proceeding to give such judgment as the said District Court ought to have given. It is further considered that the defendant recover against the plaintiff four hundred and fifty seven pounds five shillings and eight pence, the penalty of the forthcoming bond in the proceedings mentioned, and his costs in the said District Court expended, to be paid to the sheriff for the benefit of the creditors of the defendant, so far as just claims against him may appear; But to be discharged by the payment of ¿£228. 12. 10. with interest thereon to be computed after the rate of five per centum per annum from the 16th day of April 1796 till payment and the costs.”  