Bayne against Gaylord, 3 Watts 301

The opinion of-the Court was delivered by Gibson, C. J. The award of money for extra work, not being made in pursuance of the submission, was properly excluded. The two arbitrators, appointed by the parties, were directed to appoint a third ; and it was agreed to abide by their decision, whether the work done, with the exception of alterations directed by the defendant, were in conformity to the contract. It is decisive against the award, that it was made but by the two original arbitrators, and without the concurrence of a third, to have been appointed by them.

It might admit of a question, too, whether they had power to settle the price of extra work; or whether their powers were not restricted to the specific question of conformity to the contract. For the first reason, however, the award was clearly bad and properly rejected. The remaining point is raised by an exception to the charge, and also to the verdict, or more properly, to a certificate appended to the verdict which finds a balance for the defendant. It is certain that on the principle of Heck v.

Shener, 4 Serg. & Rawle 249, malfeasance in the execution of a contract may be given in evidence to show want of consideration; but that on the principle of Gogel v. Jacoby, 5 Serg. & Rawle 117, damages for such malfeasance cannot be set off to procure the certificate of a balance authorized by our defalcation act. But I do not understand the direction to have been inconsistent with the rule in either of these cases.

The jury have, however, assumed the right to find a sum for the defendant; and it consequently results that the exception is in truth to the verdict alone, or rather, as I have said, to the certificate; for it was decided at the preceding term for the middle district, Ramsey’s Appeal, 2 Watts 228, that the finding of a sum for the defendant is no part of the verdict or award, as the case may be, and that the judgment being no more than that the defendant go without day instead of quod recuperet, gives him no lien for the sum certified, which is a distinct cause of action, and to be prosecuted by scire facias, founded not on the judgment, but on the certificate, If there is no error in that part of the finding, then, which may with technical propriety be called the verdict, why reverse the judgment which is founded on that part alone 1 The judgment is faultless; but the certificate is otherwise, and if left undisturbed would be conclusive of the original matter in the trial of a scire facias founded on it, the defence to which would necessarily be restricted to payment or some matter subsequent.

It .is, however, essentially distinct from the verdict as well as from the judgment; and being a final award in the nature of a judgment, it is the separate subject of a writ of error. Being clearly erroneous in the first instance, it is to be set aside. Judgment of the court below affirmed, and the certificate of abalance in favour of the defendant quashed.