The action was continued nisi for advisement, and the opinion of the Court afterwards delivered by
Emery J.This is an action of debt on an aibitration bond, conditioned to abide the decision of three gentlemen, named in the submission, as to the settlement of the line betwixt the lots No. 16 and 17 in the fourth range East, in Baldwin, and all costs that bad arisen betwixt the parties about the premises.
In the progress of tho trial, as opened to the jury, various ob jections were interposed by tho counsel for the defendant and overruled. He objected to the reading of the submission till proof of consent that the bond should be delivered up. The execution of the bond was proved by the testimony of William Thompson. And it being written so that each severally bound himself to the other in the penal sum of 500 dollars, to abide the award; the bond was left with Thompson for safe keeping, till the parties called for it, and until they took It out of the witnessed hands by mutual agreement. Each had a copy. The witness did not know, whether he gave the bond to Mr. Swasey, *46but thinks he did. Dyer said he did not care what became of the bond, and the witness did not recollect any consent of Dyer to deliver up the bond to Swasey. The witness was summoned and required to bring the bond into Court, and he did. We cannot think that the plaintiff’s remedy upon this bond depends upon the withholding of Dyer’s consent to the delivery up of the paper to Tyler. — The paper was executed and delivered as the deed of each, to be an available security to which ever of them should have occasion to try its legal efficacy. And the witness, with whom it was left for safe keeping, could not withhold it from the summons of the Court, where the rights of the parties were to be tried. The parol proof by Thompson, as to the loss of the warrant, was also a subject of objection. The witness stated, that he made diligent search for the warrant, but could not find it. It was laid on the witnesse’s table, and the parties agreed to refer their subjects of dispute.
Here the proof of the loss was full enough to let in the parol proof of the contents of the complaint and warrant. In an action for a malicious arrest, where parol evidence was given of the loss of the information and warrant upon which the plaintiff was arrested, the plaintiff was at liberty to go into secondary evidence of their contents. Freeman v. Arkell, 3 D. & R. 669.
The plaintiff and defendant being neighbours, whose lands joined, had long been in dispute about their boundary, as is stated in the submission. They ha'd been in litigation, and had respectively incurred costs, but in a state of momentary good feeling, or possibly for the time, tired of their unprofitable prosecutions, concluded to refer those subjects, the lino and costs, to three gentlemen of respectability mutually chosen. After the matter had been decided by them, and the result was announced, and after Dyer had promised to pay the cost, he said he had part of it at home and the rest he would make out immediately. Yet when the suit is brought, he still resists. And notwithstanding the small value of the land, the subject matter in controversy, as one of the witnesses says, not five dollars, yet we must decide it according to the principles of law, applicable to subjects of this description.
*47It is a submission at common law, and not under the statute. The return therefore to any Court was unnecessary. The nature of the subject referred is disclosed in the submission. No other annexation of a demand was required.
The proposition to shew that the lino was established in tho wrong place, was, on the argument, fully considered by the defendant as a hopeless matter to be attempted. It was precisely the subject which had been decided against his client by judges of his own choosing.
We see no proof of partiality or misconduct on tho part of the referees. If any thing of tho kind existed, it comes from the frank disclosure of that gentleman, who said his prejudgment was in favor of the defendant, but he was irresistably driven from that ground by the evidence before the referees.
No imputation of unfairness rests upon him. Graves v. Fisher & al. 5 Greenl. 69.
The general principle recognized by this Court, in North Yarmouth v. Cumberland, 6 Greenl. 21, is that an awrd of arbitrators, at common law, is not examinable except on the ground of corruption, gross partiality, or evident excess of power. And this last ground of complaint is pressed upon our consideration in the objection that the referees exceeded their authority in awarding the bill of costs against Dyer, of $18, 08, in a suit in behalf of the State, on complaint of Tyler v. Dyer, on the statute. This is the most serious matter of objection.
In Maine Laws, 3d vol. ch. 235, pp. 64-5, it is enacted, “that no costs are to be taxed or allowed, by a Justice of the Peace on complaint alleging any offence against law to have been committed, for the benefit or use of the complainant as a witness, aid or constable, or in any other capacity whatsoever, nor greater fees than what are expressly established and allowed in criminal cases, by tho act establishing and regulating fees of officers and other persons therein mentioned.”
In the same Act it is provided by the 3d section, that “ where upon any examination had before any Justice of the Peace, upon complaint made, the party accused shall be ordered by such Justice to recognize to answer before any Court having jurisdiction of the offence charged, and the Grand Jury of such Court, upon *48investigation shall not find a bill of indictment against such accused party, the Justice so ordering bim to recognize shall not be entitled to receive any fees for any services rendered in said case, from the State or County,” leaving the implication, as is contended, that he is rightfully entitled to demand and receive compensation from the complainant, and hence inferring, that if paid by the complainant, it lays the foundation for reclaiming the amount from the person accused.
There are English and American authorities, which go toward ^countenancing the allowance, in an award, of great latitude.
The Court will not entertain an application for setting aside an award founded upon an indictment, at the Assizes for not repairing a road, though the question in dispute be of a civil nature. Rex v. Cotesbatch, 2 D. & R. 265.
And though an arbitrator on a question of mixed law and fact has allowed transactions apparently illegal, as premiums of insurance on a voyage to a hostile port, the court will not set aside the award. Wohlenberg v. Lageman, 6 Taunt. 254. And an award of costs is good, though the principal sum if found by a jury would not carry costs. McLaughlin v. Scott, 1 Bin. 61. It has also been said, that having submitted to a judge chosen by themselves, the parties give to his acts an authority which the courts would not allow to their own. Wood v. Griffith, 1 Swan. 56.
And arbitrators, unless terms of the submission expressly provide otherwise, are judges of both law and fact. Klein v. Catara, 2 Gal. R. 61. The plaintiff expended this bill of cost in a criminal prosecution against the defendant on the complaint of the plaintiff.
But it is manifest that this bill of cost and officer’s fees ought not to have been included. It would be dangerous to give encouragement to such allowances on references, of costs incurred in prosecutions in the name of the State to aid a civil injury. It was not costs between the parties in legal acceptation. Yet as this is plainly to be separated by the award, from the rest which is not objectionable, it does not go to destroy the whole. Gordon v. Tucker et al., 6 Greenl. 247. The line is happily settled, and the residue of costs is fairly chargeable. It comes then *49merely, on a hearing in chancery, to what amount execution shall issue on the judgment for the penalty. We think our distinction will not conflict with Smith v. Thorndike, 8 Greenl. 119, or Walker v. Sanborn, 8 Greenl. 288.
It is a settled rule of law, that in tho construction of awards no intendment shall he indulged to overturn an award, but every reasonable intendment shall be allowed to uphold it. 1 Peters, 222, Karthaus v. Ferrer & al. We think favorably of the mode of terminating controversies between neighbors, such as was adopted in this case, and feel bound to give a fair and liberal construction to support awards, as far as we can, where there is no fraud, partiality' or corruption on the part of the arbitrators. The default must stand and judgment be rendered in favor of the plaintiff for the penalty.