#### *Sutton v. Dickinson.

December, 1837,

Bichmond.

(Absent Brooke and Brockenbrough,* J.)

Arbitration and Award † — Award Exceeds Damages Claimed — Effect.—In an action of assumpsit, the damages laid in the writ are 300 dollars ; the declaration is in blank as to the sums assumed and as to the damages ; all matters in difference in the cause are referred to arbitrators ; the arbitrators award to the plaintiff 443 dollars ; and judgment is given according to the award: Held, the award is good, though the amount awarded exceeds the damages claimed.

Same — Submission after Judgment by Default — Case at Bar. — In assumpsit, an office judgment is entered and confirmed against defendant by default, *61and writ of inquiry of damages awarded ; then, without setting aside the judgment or writ of inquiry, the parties come by their attorneys, and submit the matters in difference to arbitrators, and this submission is entered in the record : Hum), the submission is good and binding on the defendant.

Same — Award—Recitals.—Submission to arbitrators of matters in difference in a suit pending; award professing to be made, and appearing to be in fact made, pursuant to the submission, but not stating expressly that the arbitration was confined to the matters in difference in the suit; and this award held good.

A writ of capias ad respondendum was sued out of the county court of Caroline, by Dickinson against Sutton, in an action on the case ; and the damages laid in the writ were 300 dollars. Dickinson filed a declaration in indebitatus assumpsit for the price of goods, wares and merchandise sold and delivered, and on a quantum valebat for the same; but the declaration was in blank throughout, both as to the sums assumed, and as to the damages. Sutton having been arrested on the writ, and not appearing, judgment was entered against him by default, and a writ of inquiry of damages awarded. At a subsequent term, as the record stated, the parties came by their attorneys, and (without setting aside the judgment or the writ of inquiry) mutually submitted all matters *in difference between them in the case, to the final determination of two arbitrators and such umpire as they should choose in case they should disagree ; the arbitrators to proceed ex parte, in case either party should fail to attend, after receiving ten days previous notice of the time and place appointed for the arbitration &c. The arbitrators made and returned an award, in these words : “Pursuant to the annexed order of arbitration from the county court of Caroline to us directed, we have proceeded, at Golansville, agreeably to notice, to make up an award in the case of W. W. Dickinson against J. Sutton, and find a balance due to the said Dickinson plaintiff, from the said Sutton defendant, of 443 dollars, exclusive of costs. Given under our hands &c.” And this award being returned to the court, at its next succeeding quarterly term, the court ordered, that it should be made the judgment of the court; and that the plaintiff should recover against the defendant the sum of 443 dollars, and his costs of suit. Sutton applied to the circuit court for a supersedeas to the judgment; which was allowed ; but the circuit court afterwards affirmed the judgment of the county court; and to this judgment of affirmance, a supersedeas was allowed to Sutton by a judge of this court. : 1 1 1

The cause was argued here by Stanard for the plaintiff in error, and Johnson for the ’ ; defendant,

upon the following objections ¡ taken by the former—

1. That as the defendant had not entered an appearance to the action, he could have no attorney imcourt; and, if the authority of an attorney at law were a warrant to him, in any case, to submit his client’s cause to 0 i ( i 1 arbitration, yet he could only be authorized to make such reference after an appearance in court.

2. That as the blank left in the declaration for the damages could only be supplied from the writ, and thus the damages were but 300 dollars, the matters in difference *in the action, which were the only subject of reference, could not exceed that sum ; and the arbitrators, in awarding a larger sum, exceeded their authority, and so their award was void. He cited Bonner v. Charlton, 5 East 139, Pearse v. Cameron, 1 Mau. & Selw. 675.

3. That the award did not profess to be confined to the matters in difference between the parties in the particular suit, to which the authority of the arbitrators was limited.

*

He decided the cause in the circuit court.

†

See monographic *note*on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.

PER CURIAM.

The judgment is to be affirmed.