Den ex dem. of Oneal v. Butler, 14 N.C. 94, 3 Dev. 94 (1831)

June 1831 · Supreme Court of North Carolina

14 N.C. 94, 3 Dev. 94

Den ex dem. of James McK. Oneal et al. v. John E. Butler.

If an action of ejectment be referred to arbitrators, an award, stating' the cause to be pending between the lessor of the plaintiff and the tenant in possession, without noticing the fictitious parties, is sufficient.

Ejectment, and after not guilty pleaded, the cause was referred to arbitrators, who made the following award:

“ We, the undersigned, to whom was referred the <e several matters of controversy, now pending in the “ court of law and court of equity, for Burke, between u James McK. Oneal, &c. (the other lessors of theplain- “ tiff) and John E. Butler, do award that John E. Butler “ hold the tract of land, as set forth in the declaration in e-jectment. And likewise, Ac.” The award then disposed of a suit in equity between the same parties.

The lessors of the plaintiff excepted to this award : 1st. Because it did not set forth the parties to the suit, they being Ben on the demise of James McK. Oneal and others v. John E. Butler.

2d. Because the award did not conform to the submission, or the rule of reference,

3d. Because the award was Void for uncertainty.

His Honor Judge Martin, on the last circuit, set aside the award, and the defendant appealed.

No counsel appeared for either party in this court.

Henderson, Chief-Justice.

The first exception goes m a mere matter of form. We think it should be disallowed, for we cannot but know, that the lessor of John Ben is the party complaining, and that John Ben is a fictitious person, used for the purpose of bringing the merits before the court; we must also know that the tenant in possession is the substantial defendant, and that Bichará, Fen is likewise a fictitious person, introduced as tbe defendant, for the same reasons that John Ben is made plaintiff. We think the award is made in the suit submitted. This disposes of the first and second exceptions ; for they arc substantially the same, presented in different forms.

We cannot perceive any uncertainty in the award, to sustain the third exception.

The judgment must tie reversed, and judgment according to the award entered for the defendants. We should also confirm the award in the suit in equity between The same parties ; hut the papers are not sent up, or not a. sufficiency of them to enable us to form a decree.

Per Curiam. — Judgment according to award.