Separate opinion of
Judge Napton.I concur with Judge Tompkins in affirming the judgment of the circuit court, after it is amended in accordance with the direction of the act concerning arbitrations — Rev. Code of 1835, p. -, sec. -.
The only material objection urged to the validity of awar<l ^5 that the submission did not authorize the first arbitrators to devolve the burthen of the award upon others without participating themselves in making the award. There is certainly much doubt and uncertainty as to the proper construction of the submission, It must not be construed strictly, but according to the pla;n meaning and intent of the parties. (See Bacon’s “Arbitration,” letter b.) 1 have been led to the conclusion that the parties to this submission intend-e¿ to authorize the arbitrators to select one or more persons to act as umpires, though the word arbitrators is used, as much from the act of the parties themselves, or any thing in the terms of the submission which might be stra¡ned to either interpretation. The bill of exceptions, which detail the entire proceedings before the ar*555bitrators and umpires, shows that the- parties were present during the whole investigation; that they examined witnesses; presented their respective accounts and offsets; and, in short, plainly acted under the impression that the matter was fairly before the umpire. They made no objection to the three persons selected by the two first arbitrators; they did not pretend that the tors had exceeded their power in the appointment those gentlemen. And who could be better judges their own meaning, in the article of submission, than themselves?
It does seem to me that the acts of the parties themselves, may be fairly resorted to by this court, to determine the true intent and meaning of their agreement, where that agreement is obscure.