The opinion of the Court was delivered by
Parris J.In the original submission, the parties agreed that the subject matter in controversy between them, should be referred to Fisk and Aldrich, for their determination, and in case they should not agree, that they might choose one or more persons to act with them. The referees, not having agreed, did, by consent of parties, as they certify, select three other persons to act with them. The whole five met, and both parties were present and were heard ; and we think, are as much bound by the award as they would have been if the whole five had been originally named in the instrument of submission. In Matson v. Trower, Ry. & Moody, 17, Abbott C. J. held an award good, though made by an umpire, the arbitrators having no authority to appoint one, but the parties having attended and *457made no objection. They were considered as thereby recognizing the authority of the umpire. In Rison v. Berry, 4 Rand. 275, the parties agreed to submit their matters in difference to two arbitrators and an umpire to be chosen by them. The award was signed by the two arbitrators, and another person, as umpire, but it did not appear on the face of the award that the umpire was chosen by the referees. The court held the award to be good, notwithstanding. The award now under consideration, is certain and definite, and according to the terms of the submission, and there is no intimation of misbehaviour or corrupt conduct of the arbitrators. The parties might have entered into a verbal submission, and an award under it would have been good, and might have been made the foundation of an action. They have, however, taken a different course and reduced their agreement of submission to writing, nearly in the form prescribed by statute, but providing that the report may be opened by the parties or returned into court. The proof is, that the parties consented to opening and making known the award without having it returned to court. That they called on the chairman of the arbitrators, and each paid a moiety of the costs, and thereupon the award was published.
Nothing more could have been done if the report had been entered. No judgment could have been rendered in favour of either party, that could have required execution. The adjudication of the arbitrators had been fully complied with by the payment of the cost of reference.
They decided that the note, which is the subject of the present action, had been paid, and that nothing was due to the plaintiff from the defendant, either on note or account, and that each party should pay a moiety of the costs of reference. — Each patty complied with the award by paying the cost, and waived the making the report to the court, as they had reserved to themselves the right to do in the submission ; and so long as the award is not impeached, we do not perceive how its binding effect is to be avoided.
These arbitrators were chosen by the parties themselves, as their judges to decide the matter in controversy. There has been a patient hearing of the parties, as the arbitrators certify, *458and it is not denied. If the award had been in favour of the plaintiff, it would unquestionably have been a good ground of action. As it is, we think it competent evidence for the defendant, and as such was properly admitted. The exceptions are accordingly overruled.