#### JOHN MACKEY v. WILLIAM NEILL.

All the arbitrators must concur in making an award, unless it is provided otherwise by the terms of submission:.

This was an action of debt, upon an award, tried before Heath, J., at a Special Term, June, 186.0, of Iredell Superior Court.

The following is a copy of the submission r.

“ State of North Carolina, 1 Iredell County. )

<! Know all men by these presents, that we, William Neills and John MacKey, are held and firmly bound unto the State of North Carolina, in the sum of one thousand dollars, to the true and faithful payment whereof, we bind ourselves,, our-*215heirs, executors and administrators, jointly and severally, firmly by these presents, signed with our hands, and sealed •with our seals.

“The condition of this is such, that whereas the above bounden, William Neill and John MacKey, having selected John W. Long, William Niceler and Henry Cleninger, to settle a matter of controversy, in regard to the damages sustained by the said MacKey, in a piece of land, whereon W. T. Kerr now resides. Now, if the said parties abide by the decision of the above referees, this obligation to be void, otherwise to remain in full force and effect. Given under our hands and seals, this the 1st day of April, 1859.

Signed, John MacKey, [8eali\

William Neill, [8eal.~\”

The award fixed MacKey’s damages at two hundred dollars, and was signed by only two of the arbitrators, viz': William Niceler and Henry Cleninger.

It was proved b3'’ the plaintiff, that the other referee, to wit, John W. Long, who did not sign the award, was present at the arbitration, took part in the deliberations, but disagreed with the majority, in their finding, as to the amount.

His Honor was of opinion that the suit could not be sustained upon the award signed by two only, when the submission was to three, but reserved the question. Verdict for the plaintiff, subject to the question reserved. Afterwards, upon consideration, his Honor set aside the verdict, and directed a nonsuit to be entered. Plaintiff appealed.

W. P. Galdwell, for the plaintiff.

Mitchell, for defendant.

Pearson, C. J.

It is a well settled rule of law, that all of the arbitrators must concur in making an award, unless it is provided otherwise by the terms of the submission, by inserting, “ Their award, or the award of any two of them, shall be binding, &c.,” which is the usual form.

No authority was cited, and no reason was suggested, for *216disturbing this principle of the law, and it is not necessary to enter into a discussion of the subject.

There is no error.

Per Curiam,

Judgment affirmed.