#### *Richards v. Brockenbrough’s Administrator.

May, 1823.

Arbitration and Award* — Umpirage—Term for — Case at Bar. — Where parties enter Into an arbitration bond, referring a certain matter in dispute to arbitrators, who are to make their award by a certain day. and if they should not agree, toan umpire chosen by them: upon which the arbitrators, finding that they cannot agree, choose an umpire, who makes his umpirage before the day appointed for the arbitrators to make their award; such umpirage will be *good.*

Same* — Award—Surplusage.—An award whieh inaccurately requires the surety in the arbitration bond, to pay money as well as the principal, will nevertheless be sustained. Such a clause will only be regarded as surplusage.

Same* — Same—Presumption.†—Every thing is to be presumed in iavor of an award.

This was an appeal from the superior court of King William county, where John Richards brought a suit against Newman Brockenbrough, as surviving obligor of Beale and Brockenbrough. The action was brought on an arbitration bond, executed by the said Beale and Brockenbrough to the said Richards. The condition of this bond recites, that a certain difference having taken place between Beale and Richards, the parties agree to abide by the determination and award of George Phill Young, and John Gresham, so that it be made under their hand by the first day of January, 1810; but if the said arbitrators do not agree, then they shall choose a third person, whose decision shall be binding on the parties. The condition concludes; “now if the above Pound John H. Beale and Newman Brockenbrough, do and shall well and truly stand to the award, final end and determination, of George Phill Young and John Gresham, or, if they do not agree, in opinion, then, in that case, the decision of the person that they may name or elect, then the above obligation to be void, or else to remain in full force and virtue.”

*The arbitrators not agreeing in opinion, made choice of Thomas Evans as umpire; who, on the 30th day of December, 1809, made and published his umpirage. This decision requires John H. Beale and Newman Brockenbrough, to pay to John Richards 1461. 3s. 2d. with interest from the 13th day of November, 1807, till paid ; and further awards, that the said Richards is entitled to one-half of the crop of corn, and one-half of the shucks made on the said Beale’s land, which was cultivated by them; and that the plaintiff should retain to himself, out of the said Beale’s half of the crop of corn, 55 barrels, one bushel and one peck, on account of corn sold and made use of by the said Beale, &c.

Newman Brockenbrough having died, the suit was revived in the name of Austin Brockenbrough his administrator.

Issue was joined on the plea of nil debet; and the jury found a special verdict, subject to the opinion of the court, whether the award above-mentioned, be good in law or not.

The court was of opinion, that the law was for the defendant, and gave judgment accordingly.

Richards appealed.

Wickham, for the appellant.

Stanard, for the appellee.

For the appellant,

it was contended that the award was good. The case of Taylor v. Nicolson,(a) proves, that the critical nicety of the old books, does not prevail in modern times. An umpire may make his umpirage within the time limited for making the award, (b) It may be said, that the award was against Brockenbrough, as well as *Beale, and that Brockenbrough was not a party to the award. The answer to this is, that the condition of the bond requires Brockenbrough and Beale to perform the award, and therefore, the award is in strict conformity to the submission. But, even if this part of the award is erroneous, it must be considered as mere surplusage, and may be rejected without affecting the rest of the award.

On the other side it was said, that the authorities were contradictory on this subject. Bacon’s Abridgment,(c) which contains the original authority from which the doctrines of the other books are drawn, affirms the principle, that the arbitrators cannot even choose an umpire within the time limited for rendering the award ; while in 2nd Term Reports,(d) it is said, that the umpire may be chosen before entering into an examination of the matters referred to them.^ Thus the arbitrators may choose the umpire before they make the award, and yet their power ceases from the time of choosing the umpire. The true principle is, that the umpire has no power to act until after the time limited for making the award. This doctrine is confirmed by the case of Beck v. Serjeant.(e)

The award is also erroneous in making Brockenbrough jointly liable to pay Beale’s debt. It is no sufficient answer to say, that this is mere surplusage; because an action will lie as well on the award as on the bond,(f) and in that case, would make Brockenbrough primarily responsible for a debt, for which he was only a surety.

The award is unjust and absurd as to the crop. By the award, Richards gets more than his moiety, “and may even get the whole, if Beale’s moiety should not amount to more than the quantity which Richards is directed to retain.

*

Arbitration and Award. — See monograpkicnoie on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt 684.

†

Same — Award—Presumption. — Presumptions are not to he raised ior the purpose of overthrowing an award, but they are to be liberally construed so as to give et'tect and operation to the intent of the arbitrators, where it can be done, and every reasonable intendment is to be made in their support. Fluharty v. Beatty, 22 W. Va. 706, citing principal case; Smith v. Smith, 4 Rand. 95; Gas Co. v. Wheeling. 8 W. Va. 321: and Armstrong v. Armstrong, 1 Leigh 491, as authority.

To the point that every thing is to be presumed in favor of awards, the principal case is also cited in Armstrong v. Armstrong, 1 Leigh 497, 498; Pollock v. Sutherlin, 25 Gratt. 91. 95.

(a)

 l H. & M. 67.

(b)

 Kycl on Awards, 56; lb. 55; Williams’s Saunders, vol. 2, p. 133, Coppin v. Hurnard.

(c)

 1 Bac. Abr. 210, letter D.

(d)

 Vol. 2, p. 644; Roe v. Doe.

(e)

 4 Taunt. Rep. 231.

(f)

 Kyd on Awards, p. 192.

JUDGE CABELL,

May 17. — delivered the opinion of the court.

*178*This is an action of debt, brought by the appellant, John Richards, ••¿gainst Newman Brockenbrough, as surviving obligor, in a bond executed on the :21st December, 1809, to the said John Richards, by John II. Beale and the said Newman ‘Brockenbrough, for the performance of an award or umpirage to be made of matters in difference between Beale and Richards.

The condition of the bond required the arbitrators to make their award by the 1st day of January, 1810; but, if they could not agree, they were then to choose a third person, whose decision was to be binding on the parties. No time is limited, within which the umpire was to make his umpirage. The condition of the bond concludes with declaring, that the bond is to be void, “if the 'above bound John H. Beale and Newmán Brockenbrough” shall well and truly stand to the award of the arbitrators, or the umpirage of the umpire.

The arbitrators, not agreeing, chose, on the 29th. December, 1809, Thomas Evans as umpire, who, on the 30th day of the same month, rendered an award under his hand and seal. The award, after reciting the arbitration bond, the disagreement of the arbitrators, and their appointment of the umpire, directs, that John H. Beale and Newman Brockenbrough shall pay to John Richards, 1461. 3s. 2d., with interest thereon from the 13th day of Nov. 1807. It farther declares, that Richards is entitled to one half of the crop of corn and shucks made upon the said Beale’s land, cultivated by them; and that Beale is entitled to the other half of the crop of corn and shucks; but, that Richards shall retain to himself, out of the said Beale’s half of the crop of corn, fifty barrels, one bushel and one peck, for and on account of corn sold and made use of by the said Beale, which was of the said crop, as well as for and on account of certain articles furnished the said Beale for the use of his family. Newman Brockenbrough having died, the suit was revived against his administrator, Austin Brockenbrough, the appellee.

*The declaration recites the condition of the arbitration bond; states the disagreement of the arbitrators; their failure to make any award before the first day of January, 1810; their appointment of the umpire, and the substance of the award as above set forth; and then assigns as the breach of the condition of the bond, the non-payment of the above sum of 1461. 3s. 2d., with interest as aforesaid. To this declaration the defendant pleaded “ nil debet,” with liberty to give in evidence any special matter, which, if pleaded specially, would bar the plaintiff’s action.

The jury, reciting the award in haec verba, find for the plaintiff the debt in the declaration mentioned, to be discharged by the payment of 1461. 3s. 2d., with interest from 13th of November, 1807, if, in the opinion of the court, the award be good in law; otherwise, they find for the defendant. The court decided, that the law was for the defendant,' and gave judgment accordingly; from which judgment, an appeal was taken to this court..

The obj ection to this award, mainly relied on by the counsel for the appellee, is, that it was made by the umpire before the expiration of the time within which the arbitrators themselves might, according to the terms of the original submission, have made an award.

We find in the books a vast variety of questions, and much contrariety of opinion, concerning the appointment and duty of -umpires. Distinctions are taken between those cases where the umpire is named by the parties, in the submission, _ and those cases where the appointment is referred to the discretion of the arbitrators; and also, between those cases in which the umpire is directed to make his umpirage within the same period which is limited for the award of the arbitrators, and those in which a farther time is allowed to the umpire.

The case, now before us, arises on a submission, by which the appointment of the umpire was referred to the arbitrators, and by which the time limited for the umpirage of the umpire extends beyond that limited for the *award of the arbitrators; and to prevent a confusion of ideas, it may be well to premise that the remarks we may hereafter make, although they may be applicable to other cases also, are to be considered as referring only to cases growing out of such a submission, unless it may be otherwise declared.

It was formerly held, that if arbitrators chose an umpire before the time allowed for their award was expired, such nomination was ipso facto void. So long as this opinion prevailed, it was impossible that any question could be made as to the power of the umpire; for, there could be no umpirage without an umpire. The desire, however, to favour these domestic tribunals, at length induced the courts to support such a nomination, for the purpose of establishing an umpirage made after the time when the arbitrators were to have made their award.(g) This case has been followed by a great many others, confirming the awards of umpires whip were appointed before, but did not act till after the time when the arbitrators might have made their award. And such has long been the settled law. In many of the cases alluded to, the judges said, that the umpire could not interfere before the time allowed the arbitrators had expired, (h) But, we have not seen any case, in which the point has been directly brought in issue before the English courts. In the absence of decided cases, we must be governed by principles. It becomes, therefore, important, to ascertain the grounds on which the courts have supported umpirages, made after the time allowed to the arbitrators; and, if these grounds are applicable to umpirages made before, they also ought to be supported. These grounds have not always been the same. The *179ground assigned in Watson v. Clement, Rol. p. 5, and in Mitchel v. Harris, above referred to, and also, in the case of Daws v. Moucey, 8 *Geo. H,(i) is, that by the nomination of an umpire, the authority of the arbitrators is at an end. And Sergeant Williams, the learned and accurate annotator of Saunder’s Reports, is of the opinion, (j) that that is now the settled law. If this be the true ground of decision, there is certainly as much reason for supporting an umpirage made before, as for supporting one made after the time limited, by the submission, for the arbitrators to make their award. In both cases the power of the arbitrators is at an end. In the last case it expired by efflux of time; in the first, by the act of the arbitrators themselves. But, in some of the cases, the reason assigned for supporting such an umpirage is, that although the arbitrators might, notwithstanding their nomination of the umpire, have proceeded themselves to make an award; yet, as in fact they made no award within the time, the umpirage shall be good.(k) This reason, also, applies with equal force to umpirages before and after the time allowed to the arbitrators.

We find, also, that where the time within which the umpirage is to be made, is the same with that limited to the arbitrators, if the umpire is appointed by the arbitrators, and makes his umpirage before the expiration of the time, such an umpirage will be supported. (l) We see no reason for supporting an umpirage in such a case that does not apply to that now before the court.

Where there is the same reason, there is the same law. We are, therefore, of opinion, that the first objection made to the award, is not entitled to any weight.

Nor are we inclined to allow any force to the objection, that Brockenbrough was directed to pay the money awarded, jointly with Beale. The award itself shews, that no *other matters were considered, but those between Richards and Beale. That direction was evidently, therefore, made in adherence to the informality of expression in the condition of the bond, which requires “the said John H. Beale and the said Newman Brockenbrough” to stand to the award. It can only be regarded as surplusage.

Nor is there any thing in the objection to_ that part of the award which states, that Richards shall retain to himself a portion of Beale’s share of the corn. Every thing is to be presumed in favour of an award. We are not told how much of the corn had been used by Beale, nor how many articles had been furnished for the use of his family, by Richards. There is nothing to shew, that Richards was directed to retain more of Beale’s share of the corn than he ought to have retained.

Perceiving no ground to impeach this award, we are of opinion, that the judgment is erroneous. It must, therefore, be reversed, and judgment entered for the appellant, pursuant to the verdict.

(g)

**Watson v. Clement, Rol. p. 5; Kyd on Awards, 51.

(h)

 Delaval v. Maschall, 1 Mo. 274; Sr. T. Raymond, 205; 1 Lev. 285, Mitchell v. Harris; 1 L. Raymond, 671; 12 Mod. 512; 1 Salk. 71, 72.

(i)

 Rep. Frac. 0. B. 116.

(j)

 8 vol. 138-6.

(k)

 Elliot v. Cheval, Lutw. 541. See also, Jennings v. Vandeput, Cro. Ch. 263. and Delaval v. Maschall, above cited. Kyd on Awards. 51-8-3.

(l)

 Fyall v. Varier, 1 Roll. 261, pl. 3; Godbolt, 241. Twisleton v. Travers, 1 Lev. 174; 2 Keb. 15. See also, note 7, 2 Saunders, 133; Kyd on Awards, 50.