
    Leftwitch et ux. v. Stovall and Others.
    October Term, 1794.
    Appeals — Errors in Ministerial Acts — Where Corrected. — upon an appeal from the judgment of an Inferior Court, errors In the execution or re-plevy bond, issued, or taken, after the judgment, will not be noticed. They are merely ministerial acts, and must be corrected in the same Court, upon motion; and if, on such motion, that Court give an erroneous opinion, the party injured may then appeal, and have it corrected here.
    Practice — When Want ot Declaration No Error. — An award for tobacco, made upon a reference under a rule of Court, in an action where no declaration was filed, but the damages laid in the writ were in money; — determined to be good. The want of a declaration in this case cannot be objected to as error.
    The case was this ¡ — Eight persons who were the defendants in error, sued out a writ in the County Court against Eeftwitch and wife, in case; damage ^300. No declaration was filed, but the defendants below pleaded that they did not assume; on which the parties were at issue. Afterwards, by a rule of court, they submitted all matters in difference between *them to arbitrators, and agreed, that their award, should be made the judgments of the court. An award was made, that the defendants should pay to each of the plaintiffs 1,724% lbs. of tobacco, and 31s. 3 in money, amounting in the whole to 13,812 lbs. of tobacco, and .£12: 10, in money, and also the cost. Judgment was entered according to the award. An execution issued for the aggregate amount, and a replevy bond was taken. The judgment was affirmed by the District Court of New-Eondon, upon a su-persedeas, and execution issued upon that judgment and a replevjT bond was taken, upon which a third execution issued. To the judgment of the District Court, a super-sedeas was obtained from this Court.
    Marshall for the plaintiffs in error.
    I object, 1st, to the original judgment, and 2dly, to the subsequent proceedings. The objections to the original judgment are: Eirst, the want of a declaration. Tho’ it has been determined in this court, in the case of Picket and Claiborne, that the want of a declaration is cured by a confession of judgment, yet no decision of this, or of any court in England, has ever gone so far, as to extend this rule to judgments entered in pursuance of awards.
    Secondly, The arbitrators exceeded their power; for tho’ the plaintiffs demand was in money, as appears from the writ, (the damages being laid in money) yet the award is for the payment of tobacco, which was improper, and not within the submission. -Such a change from money, to an article so fluctuating in its value as tobacco, might be very material to the parties.
    2d point. The judgment does not pursue the award, or the execution is variant from the judgment. The award is several, and the execution joint, so that tho’ by the award, the receipt of one of the plaintiffs could extend no farther than to his share yet being made joint, he might receive the whole, and give a discharge, which proves the variance to be material.
    Again ; after the affirmance of the judgment by the District Court, the force of the replevy bond which is considered as a judgment, was revived; and consequently the last execution could not issue upon the original judgment which was discharged by the replevy bond. Eor suppose a motion had then been made upon the replevy bond, the court could not have refused to give a judgment upon it. He cited the case of Taylor and Dundass, (see ante p. 92) as decisive upon this point.
    Campbell for the defendants in error.
    There are two ways, by which men settle their differences; either by the regular*course of law, in which case they must pursue the rigid forms and rules of law, and unless they do so, a judgment irregularly obtained will not be supported: or by agreement, and this may be, either by the acknowledgment of the parties absolutely, or by an acknowledgment dependent upon the judgment of their friends. In the latter case, where the parties withdraw their dispute from the regular mode of decision, and the defendant acknowledges the propriety of the plaintiff’s demand absolutely, or acknowledges as much to be due, as their mutual friends shall decide to be due, the court will not notice those irregularities which might have been fatal, if they had not been thus tacitly waved by the conduct of the parties. And since it is conceded, that a confession of judgment is a release of errors, there can be no difference in reason between such an acknowledgment, and one which is dependent upon the opinion of arbitrators, who are appointed to decide for the parties.
    As to the other objection made to the judgment, it is not supported by the facts in the cause. The writ states the damages in money, but the claim may have been in tobacco, the consequential injury arising from the non-payment of it, might be properly estimated in money. The parties understood this — the arbitrators will be presumed to have understood it. It cannot be denied, but that the defendant might have confessed judgment in tobacco, and it is the same thing, if the persons appointed to ascertain the claim, and to act for them, give their judgment in the same commodity.
    In answer to the objections made to the proceedings which succeeded the judgment, I contend, that a Superior Court can only notice errors in the judgments of inferior tribunals, and must affirm or reverse them. As to acts merely ministerial, they are under the coiitroul of the court, under whom the officers act, and may, and ought to be there corrected (if wrong) upon motion.
    
      
      Appeals — Failure to Find Error in Original Judgment — Eilect upon Execution. — In State v. Blair, 29 W. Va. 476, 2 S. E. Rep. 334, it is said: “While the reversal of the judgment which is the foundation of the execution and forthcoming bond, vacates and de. stroys the latter, it does not follow that the converse is true. Even in cases where the writ of error is to the original judgment, if the court finds no error in that judgment, it will decline to consider, upon such writ, the proceedings and judgment of the court below quashing or refusing to quash an execution issued upon such judgment. Leftwichv. Stovall, 1 Wash. (Va.) 303; Moss v. Moss, 4 Hen. &M. 293, 303.” The principal case is cited in the last named case at pages 303, 314. See mono-graphic note on "Appeal and Error” appended to Hill v. Salem & Pepper’s Ferry Turnpike Co., 1 Bob. 263.
    
   The PRESIDENT

delivered the opinion of the court.

The objections to the judgment are, 1st, The want of a declaration. 2dly, That the arbitrators exceeded their power, in awarding tobacco, when the demand was for money.

Eirst, The great purposes for which declarations, containing a regular statement of the plaintiff’s claim, are required, are 1st, That the defendant may know with certainty, the nature of the charge against him, so that he may not be embarrassed, nor ensnared at the trial.

*2dly, That the demand should appear upon record, so as that a recovery in that suit, may be a bar to any future action, for the same cause.

This court in the case of Picket and Clai-bor.i, determined, that both these ends were answered by a confession of judgment which implies a knowledge in the defendant of the cause of action, and that being stated in the judgment, would bar a subsequent suit for the same thing.

So in this case, the submission to arbitration, rendered it unnecessary to state the cause of action to the court, in the regular mode of proceeding, since they were not to try it; and the award stating the ground of the demand, will enable the defendant to plead the judgment in har to anj" future action, for the same cause. But the principal answer, and one which applies also to the 2d objection is, that the parties by withdrawing their case from the ordinary judges, and submitting it to those of their own chusing, have waived all objections to the want of legal forms, and have confined themselves to considerations arising out of the award itselE; such as partiality, corruption, ex parte proceedings, or that they exceeded their power. The latter, is chiefly applicable to bonds, submitting particular specified disputes. Here, the submission is-of all matters in difference.

The objection made to the award, as exceeding the power of the arbitrators, is founded upon a comparison of the award with the writ, and not with the submission.

The next objections relied upon, are to the execution and replevy bonds; but as these are merely ministerial acts, unconnected with the judgment, which is alone before the court, they cannot be regarded. Errors of this sort, can only be rectified by the court from whence the execution issued, subordinate perhaps to the controul of this court, but it must come by appeal from the opinion of that court, given upon motion, and cannot be taken up collaterally upon an appeal from the original judgment.

The judgment must be affirmed.  