
    Halcomb v. Flournoy.
    [October Term, 1800.]
    Awards — Construction of Statute. — If there be an order of reference made during- the pendency of a suit, the award, in pursuance thereof need not lie in Court two terms, as it is not within the act of Assembly, upon awards.
    Damages— Arbitrators—Indemnity Bond. — What damages may be estimated by arbitrators upon a bond given by the deputy to indemnify and save harmless the High Sheriff.
    Flournoy brought debt in the District Court, against John Halcomb, Philemon Halcomb jr. William Watts, and Joseph Scott jr. upon a bond, given to Flournoy as High Sheriff: with the following condition annexed:
    ! ‘The condition of the above obligation is such whereas the said John Halcomb is appointed deputy sheriff of the said county, under the said Thomas Flournoy, now if the said John Halcomb shall well and truly execute the office of deputy sheriff, and honestly, justly, and according to law collect and pay all public taxes either in money, tobacco, or other article made payable and receivable in taxes by any law now in force, or by any future law, as also all levies, officers fees, executions and other monies, tobacco, or other article collected by virtue of his said office to such person and persons having a right to demand and receive the same, within the time prescribed by law, as also save harmless and indemnified '“'the said Thomas Flour-noy, from all motions for judgments in any Court of record, and from every action, or cause of actions, that the said Thomas Flournoy, his heirs, executors and administrators may be subject to, by his said office of sheriff for the county aforesaid, then this obligation to be void or else to remain in full force power and virtue. ’ ’
    Various orders of reference were made; and at the September Court 1798, the suit was dismissed as to Watts, and the arbitrators made their award as follows:
    “Dr. John Halcomb, George Walker, Philemon Halcomb junior, William Watts and Joseph Scott junior.
    To Thomas Flournoy.
    Dec. 2, 1789. To paid on account of an execution commonwealth against Thomas Flournoy, certfs. 12S 14 8
    Oct. 11, 1792. To amount of certificates paid the treasurer on account of execution commonwealth against P. Halcomb. Cts. 86 7 4
    June 18, 1793. To paid Martin Smith for balance due by J. Halcomb sheriff for the redemption of negroes sold by Richard Bibb. Certificates. 8 14 6
    Certificates. ¿220. 16. 5
    Dec. 2, 1791. To paid treasurer on acct. of taxes for 1786. 42 10 6
    To paid clerk’s Henrico, P. Edward, and sheriff of same. 0 13 0
    Jan. 8, 1792. To paid Andrew Reynold. 4
    
    To paid William Cowan. 10
    435 *Jan. 29. To paid an execution James Tinsley against T. Flournoy. 10 15
    Oct. 11. To paid treasurer on account of execution commonwealth against P. Halcomb. 7 10 2
    Mar. 29, 1790. To paid an execution Thomas Watkins clerk of Chesterfield. 5 12 8)4
    
    To paid an execution Maurice Langhorne against Thomas Flournoy. 2 13 10 %
    
    Specie ¿83. 19. 2%.
    
    Aug. 10, 1798. To interest on money advanced to this date, & damages sustained by the plaintiff to the date of the writ, rating certificates at 18s 8. 150 Amount of cert, bro’t down. 220 16 5
    ¿454. 15. 1%.
    
    
      Credit.
    Deo. 2, 1791. By amount of sales of three negroes on execution, • Flournoy v. Holcomb and others, dated Nov’r 1st 1791, from Prince Edward court commissions deducted. 101 1 6
    By difference in amount of certificates 2s in the £ 22
    Balance due T. Flournoy August 10th 1798. 331 14 1#
    ¿4S4. IS. 7%
    
    *We certify, that agreeable to the annexed orders of the ■ District Court of Prince Edward, We this day met at the house of Quin Morton, in the county of Charlotte, the plaintiff and defendant John Halcomb being present. We proceeded to examine the vouchers produced and make a statement as will appear from the foregoing account. It appearing to us, that the plaintiff hath been put to very great trouble by frequently travelling to the city of Richmond on account of the Commonwealths judgments against him for arrears of taxes and incurred considerable expense thereby. It also appears, that his negroes taken in execution to satisfy said judgments, were kept out of his possession and service at various times, from which he sustained losses. We have allowed interest on monies advanced, and rated the damages as will be seen in the debt. We find a balance of three hundred and thirty one pounds, fourteen shillings and one penny three farthings due to the plaintiff from the defendants, and which sum we award him with costs of suit given under our hand &c.”
    The District Court gave judgment, upon the day of the return of the .award for the ,£331. 141%. awarded and costs. And the plaintiff agreed “to release ten pounds for so much paid William Cowan, and four pounds four shillings paid Andrew Rey-nold in the account aforesaid mentioned.”
    To this judgment Halcomb and the others obtained a writ of supersedeas from this Court.
    Randolph for the plaintiff.
    The court were premature in entering up judgment upon the award; which ought to have lain in court two terms, according to the express directions of the act of Assembly; for it is not shewn, that the plaintiff appeared and contested the award: Which would have altered the case.
    The item of £150. contains matters not within the submission. Eor that was of all matters in difference *between the parties in the suit; and, upon the trial, such matters would not have been permitted to go in evidence to the jury. They were no more than the ordinary cases, of expenses incurred, and inconveniences sustained, by a security. But these were never yet thought, to be a subject of damages, for which a suit could be sustained. On the contrary, they are literally damnum absque injuria; and no action lies for them.
    Wickham contra.
    Mitchell v. Kelly in this court, decided the first point; and proves, that an order of reference of this kind is not within the act of Assembly.
    The £150. damages were justly allowed; because it was a bond to save harmless, and therefore the appellee had a right to insist on being completely indemnified; which could only be done, by making compensation for his necessary expenses, and the inconveniences and losses which he had sustained, by the misconduct of the appellant. Besides arbitrators have more latitude than a court; and may decide according to equit3r.
    Randolph in reply.
    Howéver reasonable the demand, yet not being the subject of an action, it would not have been permitted to go to the jury: Whose enquiry would have been confined, by the court, to the money paid and interest; which is the only compensation and measure of damages, which the law allows, in cases of this kind.
    Cur. adv. vult.
    
      
      See foot-note to Mitchell v. Kelly, 1 Call 380. and monographic note on “Arbitration and Award’' appended to Bassett v. Cunningham. 9 Gratt. 684.
      The principal case is cited in Tomkies v. Downman, 6 Mnnf. 564.
    
    
      
      See monographic note on “Damages” appended to Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455.
    
    
      
      1 Call’s Rep. 379.
    
   ROANE, Judge.

Two objections are taken in this case. 1. That the award did not lie long enough in court, according to the act of 1792, but was immediately confirmed by the judgment of the court. 2. That the arbitrators, as appears by the report, allowed damages, for 'matters, not within the terms of the submission.

*Upon the first objection, it was observed by the appellees counsel, that it was decided in Mitchell v. Kelly, that the act of 1792 does not apply to orders of reference, of this kind, made during the progress of a suit, depending in court; nor, upon examination of the act, do I think it does.

As to the second objection, I observe, that one of the conditions of the bond is, to indemnify the high sheriff, from all motions, judgments &c. Now this condition, as to the indemnitjq will certainly extend to all just expenses sustained, by the appellee, in consequence of any such motion judgment &c. as well as to all actual losses, occasioned by the detention of his negroes &c. These expenses and losses, which are actual, are capable of being ascertained, by computation : And, certainly, the party cannot be said to be indemnified, that is, kept harmless, without they are allowed him.

At the same time I agree, entirely, with the appellants counsel, that the arbitrators ought not to have taken into consideration, mere speculative damages, such as for trouble, anxiety &c. and that this would lead us into an imaginary and inexhaustible field.

The question then is, upon this distinction, how stands the report of the arbitrators?

The item in the account presents nothing to impeach the award. Interest on the money advanced was certainly proper; and damages sustained may justlj be restricted, for any thing appearing to the contrary in the item, to such damages as might legally be awarded. We are not to hunt out such a sense, as that damages ma3' be understood to destroy the award; which ought to be favourably construed.

I take this, to be merely a statement of the evidence, which appeared to the arbitrators; and it does not irresistibly follow, that the damages were given on such part of the evidence as would not *warrant it; that is to say, an indemnification for the personal trouble &c. ■of the appellee. It is a just maxim, that what is useful shall not be vitiated by that which is not so: But it is not expressly stated, that the damages were given for personal trouble &c. and, if given for expenses and losses, as before mentioned, it is right.

My opinion is, that, before we overturn an award (in a case where justice seems fully attained,) it ought certainly to appear, that the award wras founded on illegal grounds. But this does not clearly appear to have been the case, in the cause now before the court; and therefore I am for supporting the award, as what is relied upon, to impeach it, is merely a statement of the evidence, which appeared to the arbitrators. Upon these grounds I am of opinion, that ,the judgment ought to be affirmed.

CARRINGTON, Judge.

This was an action, founding in damages, for breach of a covenant. The arbitrators were judges of the parties own chusing, to settle all matters in dispute between them; and it is a rule, that awards should always be construed liberally. I think the items, including the damages, stated, by them, were clearly within the submission. The award therefore, (which, although not formal, is founded in strict justice,) ought to be supported. I am for affirming the judgment.

LYONS, Judge.

I concur with the other Judges, upon the first point made, by the appellants counsel; but differ from them on the other. There is a reference to damages generally; but the principal and interest is the true measure of damages in law; and mere speculative injuries and conjectural inconveniences do not enter into the subject of damages, at all. The court never enquires how the party got the money with which he paid the debt; but merely how much he paid? And when he paid it? Therefore, these conjectural damages *being included, the award I think ought to be set aside; but there is a majority of the court for sustaining the judgment; and consequently it must be affirmed.

Judgment Affirmed.  