#### ABRAHAM CARTER v. EDMUND SAMS.

If a cause be, by a rule of court, referred to certain arbitrators or a majority of them, an award made by a majority of the referees named, will not be vitiated by other persons not named in the rule of reference, joining in and signing the award.

The court will always intend every thing in favor of an ¿ward, and will give such a construction to it that it may be supported if possible. Therefore where the arbitrators to whom a cause was referred, returned an award stating that “we agree that E. S. (the defendant) pay all cost and assess the plaintiff’s damage to one hundred dollars,” it will be intended that the defendant is awarded to pay the one hundred dollars as well as the cost to the plaintiff. An award is sufficiently certain, that is certain to a,common intent; and the court will not intend an award to be uncertain, but the uncertainty must appear on the face of the award, or by averment. Hence, an award made under a rule of reference in a cause stating that the arbitrators “ agree that E. S. pay all cost and assess the plaintiff’s damage to one hundred dollars” is sufficiently certain, as it means that the defendant is awarded to pay to the plaintiff one hundred dollars, and also his cost expended in the cause referred.

This was an action of trespass on the case for malicious prosecution. Plea — the *general issue.*At the Spring Term, 1838, of Buncombe Superior Court, by an agreement of the parties, the following order of reference was made, to wit: “ Ordered by court, that this case be referred to Levi Baily, David Edwards, Lewis Bryant, Leonard West, and the two William Pecks, and their award or a majority of them to be a rule of court.” At the succeeding term of the court an award was returned in the following words, namely — “A..Carter v. Edmund Sams. We, the undersigned, as referees, met according to appointment, and after examination do say, after two that were chosen, refused, and Sams and Carter agreed and chose two others, and agree that Edmund Sams pay all cost and assess plaintiff’s damage to one hundred dollars ; done by us this 2d of June, *1831838,” and it was signed by four of the referees named above, and by two others. The defendant filed the following exceptions to the award — “ 1st, That the award was not according to the submission — it was made only by part of the referees acting with other persons. 2d, That the award did not set out what was to be done by the parties. It did not award that the defendant should pay to the plaintiff any amount except costs ; and the defendant objected to judgment going against him for the one hundred dollars. 3d, That the award or paper called an award was unmeaning and uncertain.” His Honor Judge Dick overruled the exceptions, and granted a judgment according to the award, from which the defendant appealed.

Dec. 1838.

No counsel appeared for either party in this court.

Daniel, Judge.

This was an action of trespass on the case, plea, *general issue.*Under a rule of court the differences in the cause were referred to six arbitrators and their award, or the award of a majority was to be the judgment of the court. In the vacation, the plaintiff and the defendant agreed to substitute two other arbitrators in the place of two of those named in the rule of reference. The award was made and signed by four of the original arbitrators, and also by the two appointed by the parties in the vacation. The plaintiff, under the rule of court, moved for judgment. The defendant filed several exceptions to the award. First, because it was made by part of the arbitrators acting with other persons. This exception was overruled by the court, and we think it was correctly overruled. In *Saulsby*v. *Hodgson,*3 Burr. Rep. 1474, the arbitrators were to choose an umpire, in case they themselves could not agree in a limited time. They did not agree within the limited time, but chose an umpire. The umpire accordingly made an award and they *joined*in it. The court were clear that this was the umpirage of the umpire alone. He was at liberty to take what advice or opinion or assessors he pleased. In *Beck*v. *Sargant,*4 Taunt. Rep. 233, the court held the same doctrine. Mansfield, Ch, Justice, said it was no more than if mere strangers had joined in the award, which could not vitiate. Heath, J. It has been *184decided in very old cases, that the circumstance of another joining with the arbitrator in making an award does not Utiate. The same opinion is given in *Bates*v. *Cooke, 17*E. C. L. Rep. 231. Second exception ; the arbitrators do not award that the defendant pay the plaintiff any amount except the cost. Answer; the arbitrators, after heading the award by the title of the suit, proceed and say that “ we agree that Edmond Sams pay all cost and assess plaintiff’s damage to one hundred dollars; done by us, this 2d day of June, 1838.” When the arbitrators assessed the plaintiff’s damage to one hundred dollars, they certainly intended that the defendant should pay it. The court will always intend every thing to support awards, and give .a construction to an award, that it may be supported if possible ; Watson on Awards, 102. — Third exception; the award is unmeaning and uncertain. Answer; the certainty now regarded in awards, is certainty to a common intent; and the court will not intend an award to be uncertain; but the uncertainty must expressly appear on the face of the award, or *by*averment. Watson.,oh.,Aw'árds, 120. To a common intent, we think this award on its face' is certain ; and there is no averment in the pleadings pointing to an uncertainty. It means that the defendant is awarded to pay to the plaintiff one hundred dollars and also his cost expended in the cause referred. Tlíé judgment must be affirmed.

Per Curiam. Judgment affirmed.