
    Greenwood Association, v. S. O. Sullivan.
    Where the condition of the bond, entered into by two parties, to submit certain matters to arbitration, was, ‘-that if i he above bound, Ac , shall jointly and severally. on, &c , submit, &c , and shall well and truly stand to, observe, perform and fulfil the award, Ac ,” “Then,” &c. 'Í he Court held, that tlie effect of the con-d tion was to make the parlies mutual suieties, and that, they were jointly and severally bound to pay whatever sum was found to be due by cither of them.
    Tried before Mr. Justice Withers, at Abbeville, Spring Term, 1847.
    Report of the presiding Judge.
    Accompanying this report is a copy of the bond of Thcmas L. Whitlock, and S. O. Sullivan, binding them to submit the matters embraced in a bill in equity by the plaintiffs against them, and a memorandum of the state of the proceedings in equity on that bill: there is also to accompany this report a copy of the award.
    It seems that Whitlock and Sullivan had successively occupied the relation of treasurers of the plaintiffs; but in that capacity they acted not jointly, but independently of each other. If the defendant be responsible at all for the sum awarded against Whitlock, (an award was made in favor of Sullivan, the defendant,) it must result from the legal effect of the terms of the bond which they executed, submitting the matter pending against thorn in equity to arbitration. It will be observe ’, that by the condition of the bond, they jointly and severally bound themselves to submit the said matters to arbitration; do the terms jointly and severally, apply to the obligation thus expressed, ‘-and shall well and truly stand to, observe, perform and fulfil the award,” &c? I supposed this to be questionable.
    If the matter had proceeded in the Court of Equity, it is supposed there would have been no joint liability, if each had been found in default; and seeing that the award required a sum to be paid to Sullivan by Thomas L. Whitlock, who was found to be their debtor. I could not reconcile this to the idea that he should be held to pay to them a large sum founded upon another’s default in the lace of the award, which adjudged that another should pay that sum; when too, defendant had not, eo nomine, become that other’s security. I supposed the terms of the condition of the bond must receive construction and become operative or not against both or either by the award; and that as to defendant, if he was ever (as to abiding by and performing the award) jointly and severally liable with Whitlock, the award in his favor should be considered a defea-sance. The cases cited by Mr. Wilson applied to those being jointly and severally bound, by terms unquestionable, against each of whom an award had been made for more or less—and I could not surmount the incongruity which would hold this defendant liable on the authority of such cases. Wherefore I granted the motion for non-suit.
    The plaintiff moved to set aside the non-suit, on the ground of error in the presiding Judge.
    Wilson, for the motion.
    Perrin, contra.
    
    State of South-Carolina, Abbeville District.
    Know all men by these presents, that Thomas L. Whitlock and Seaborne O. Sullivan, are held and firmly bound unto the “Greenville Association of Abbeville District for the pro* motion of Education,” in the sum of four thousand dollars, to be paid to William N. Blake, Treasurer of said Association, or his successors in office; to which payment well and truly to be made, we bind ourselves, jointly and severally, our heirs, executors and administrators, by these presents: Sealed with our seals and dated the 2d day of May, one thousand eight hundred and forty-five.
    Whereas, the “Greenwood Association of Abbeville District for the promotion of Education,” have filed a bill in equity against the above named Thomas L. Whitlock and Seaborne 0. Sullivan, for an account of monies received by them as late Treasurers of said Association: and whereas, the parties have this day agreed to refer the matters in dispute to the award judgment and determination of Thomas C. Perrin and John H. Wilson, Esqs., arbitrators chosen by and between ihe said parties, to award, arbitrate and determine concerning the same» in the village of Greenwood, on or before the first day of July next, and in default of their determination therein, that they shall have power to select and make choice of a third person as umpire, who alone shall hear and determine the difference.
    Now, therefore, the condition of the abo ve obligation is such, that if the above bound Thomas L. Whitlock and Seaborne O. Sullivan, shall jointly and severally, on or before the first day of July next, submit the said matters in dispute to the arbitration of the persons above named, and shall well and truly stand to, observe, perform and fulfil the award, judgment and final determination which the said Thomas C. Perrin and John H. Wilson, Esqs., or the umpire by them chosen shall make in the premises, then this obligation to be void, otherwise to remain in full forcé. Thomas L. Whitlock, [seal.]
    S. O. Sullivan, [seal.]
    Test.—J. B. Byhd, Wm. G. Coleman.
    
      Indorsed on bond.
    
    “1845, June 27.—We do hereby agree to extend the time for the rendition of the award in this case, to wit, until the first of October next, the bond to have the same effect as if the award had been made and rendered within the time specified. Witness our hands and sea's. T. L. Whitlock, [seal.]
    S. O. Sullivan, [seal.]
    Witness.—Thos. C. Perrin.”
    The arbitrators met on the 27th June, 1845—the parties being present—they proceeded to investigate the matters submitted— and having stated the account, make the following Award:
    We, therefore, the aforesaid arbitrators, having fully considered all the matters submitted to us, do make and declare our award as follows:
    We find due. from the Greenwood Association of Abbeville District for the promotion of Education, to Seaborne O. Sullivan, the sum of twenly-four dollars, seventy-eight cents, which we award to be paid to the said S. O. Sullivan, by Thomas L. Whitlock, out of the sum due by the said Thomas L. to the Association.
    We find duo the said Association from Thomas L. Whitlock, over and above the amount awarded tobe paid by him to S. O. Sullivan, the sum of twelve hundred and seventy dollars, forty cents, and award the said sum ($1270,46) to the said Association, tobe paid by Thomas L. Whitlock, together with interest thereon from the first day of November, eighteen hundred and forty-three, till paid, and also thirty-four dollars, the costs of the suit in equity.
    Given under our hands and seals, this 3d September, eighteen hundred and forty-five. Taos. C. Perrin, [seal.]
    J. H. Wilson, [seal.]
    At the request of the presiding Judge, the following statement, in regard to the bill in equity, is made:
    A bill was filed by the Greenwood Association against Thos. L. Whitlock, S. O. Sullivan and John Logan, for an account, on the 21st April, 1845.
    
      Sub. ad resp. served on all the defendants, on the 22d April, 1845.
    No appearance entered, and no answers filed by either of the defendants.
    On the 31st May, 1845, the bill is taken pro con fesso against all the defendants.
    
      These are all the proceedings had in the case. It was not docketed at the June Term succeeding, or at any time since.
    The Commissioner, after examining the dockets and looking at all the papers in his office connected with the bill, makes the following indorsement on the bill:
    ‘‘This case has never been put on the docket, and no proceeding in the case farther than the order pro confesso against the defendants. II. A. Jones, c. e. a. d.”
    “20 March, 1847.”
   Frost J.

delivered the opinion of the Court.

By the terms of the condition, Whitlock and Sullivan are jointly and severally bound to perform the award which may be made on the matters in dispute that were submitted to arbitration. The claims of the plaintiff against the parties are distinct and personal; so that they are jointly bound to pay whatever sum may be found to be due by either of them. The effect of the condition is to make them mutual sureties. If, by separate bonds, they had jointly and severally bound themselves, for each other, to perform the award, which might be rendered against them respectively, the liability of both to perform such award would be unquestionable. The same stipulations, which would be manifest in separate instruments,are not, at the first view, so apparent when they are expressed in one. But it is clear that, by the terms of the condition, the parties are jointly and severally bound not only to submit to arbitration the claims of the plaintiff against them individually, but also jointly and severally to perform the award which may be rendered on those claims. These being personal, required a separate adjudication against each oí the parties. The award is not performed while any part of the sum adjudged to be due to the plaintiff, by either of them, remains unpaid; and it follows that neither of them is discharged of the penally, until the sum awarded to the plaintiff is paid in full. The effect of the condition of the bond depends more on the just construction of its terms than on authority. The cases of Mansell v. Burridge 7 T. R., 340, and Northumberland v. Elrickson, 5 T. R., 522, are similar in principle to the present, and support the judgment of the Court. The motion is dismissed.  