
    Turner v. Moffett.
    April Term, 1795.
    Arbitration and Award — Date of Order — Misrecitaf.—if an award, made under an order ot reference, mis-recite the date of the order, the i ndgment entered upon the award is erroneous.
    This was an appeal from the District Court of Dumfries. Moffett sued out a capias against Turner and Chilton which was served upon Turner. The declaration was upon an assumpsit against Chilton only. Turner and Moffett by consent referred the cause to arbitration under a rule of court, and agreed that the award should be made the judgment of the court. An award was made in favor of the appellee for ;£132: 5: 9, for which judgment was entered, and also for the costs.
    Marshall for the appellant.
    Contended, that the judgment ivas erroneous for two reasons, 1st, because it is against Turner, when by the appellee’s own shewing it appears, that Chilton, and not Turner was the debtor. The declaration is against Chilton only, and there is no charge against Turner. In the case oí Picket & Claj'borne, this court determined, that a confession of judgment cured the want of a declaration. But he knew of no case where the reference of a suit and an award made thereupon, had been considered as sufficient to cure the want of a declaration, much less to cure a defective one as this is.
    2dly, The judgment does not pursue the award, for the former gives costs, which the latter does not.
    Washington for the appellee.
    In answer to the first point relied upon the case of Leftwich and Stoval (ante vol. 1, p. 30) which seemed to conclude all discussion upon the question.
    As to the 2d point, the judgment is for the very sum awarded by the arbitrators, and the costs are given by the court, as the necessary consequence of the judgment.
    ^Marshall. The costs, are not the necessary consequence of the judgment’s being for the appellee; for suppose the arbitrators had awarded that the appellee should pay the costs; the judgment must in this respect have pursued the award although the judgment for the debt was in his favour.
    
      
       The principal case is distinftuislied in Ross v. Overton, 3 Call 317.
      See monographic note on “Arbitration and Award*’ appended to Bassett v. Cunningham, 9 Gratt. 084.
    
   The Court

gave no opinion upon any of the above points, observing, that the award is stated to be made in pursuance of an order of reference, the date of which is misrecited, and that the judgment upon the award is therefore erroneous. Whereupon Washington moved for and obtained a certiorari, upon a suggestion of diminution.

The judgment was reversed at the succeeding term for this error.  