#### RUFFIN GRIFFIN v. THOMAS HADLEY.

Where an abitrator disposes of matter which was referred to him, and also of matter not referred, and the two are in their nature separable, it is the duty of the Court to give judgment for that which is within the terms of the submission, and reject that which is without.

An abitrator has no right to award himself a fee for his services, unless the power to do so is expressly contained in the submission.

*83Appeal from the Superior Court of Johnston, Spring Term, 1860, Saunders, J., presiding.

After pending for several terms, the following rule of Court was entered in the cause, to wit: “All matters in dispute referred to E. G-. Haywood.” The abitrator reports his proceedings, and the evidence laid before him, and thereupon awards as follows: The arbitrator, therefore, awards to the plaintiff $93.83, with interest on $62.50, from the first day of this term until paid. He further awards, that the defendant shall pay the costs of this suit, and also the costs of the reference, including $25 to be paid to the arbitrator for 4 days, or parts of days, engaged in this arbitration; and that the clerk of the Superior Court of Johnson County do tax the costs accordingly, and do issue execution for the said costs, and for the sum aforesaid.’* The defendant excepted to this award.

1-. Because the arbitrator has not allowed him opportunity to procure witnesses;

2. Because he has not allowed the defendant’s account as a set off.

3. Because he has not allowed credits, stated and admitted by the plaintiff.

The cause was argued on the exceptions to the award-, and his Honor gave judgment as follows : “In this case the award is confirmed. Judgment according to the award for $93.83, of which sum, $62.50, is principal, and carries interest from 22 March, 1858.” From which defendant appealed-.

Miller and A. M. Lewis, for the plaintiff.

Moore, for the defendant.

Manly, J.

This cause, by a rule of the Court beiow, was referred to an arbitrator, whose award was to be a judgment of the Court. An award was, in due time, reported to the Court in favor of the plaintiff for $93.83, principal arid interest ; and for his costs to be taxed, including a fee to the arbitrator. Threó exceptions were taken by the defendant, to the award in the Court below, viz:

*841st. Because the arbitrator had not allowed the defendant opportunity to procure witnesses.

2nd. Had not allowed defendant’s account as a set off.

3rd. Had not allowed credits stated and admitted by the plaintiff.

A judgment was given, according to award, for $93.83, without noticing the award in respect to costs, or making any special disposition of them. In this Court, it is moved, in addition to the grounds below, to set aside the award for defects appearing upon its face, our attention being particularly called, in this connexion, to the award of the fee to the arbitrator.

We have considered these various grounds of objection to the award, and approve the judgment of the Court thereon. The compensation, to himself, did not lie within the terms of the matter submitted, and, consequently, was not within the scope of the arbitrator’s powers. But for that reason, the arbitrament is not void in toto. It may be bad in part, and good in part. And where an arbitrator disposes of the matter which was referred, and also of other matter not referred, and the two are in their nature separable, it is the duty of the Court to distinguish them, and give judgment for that which is within the terms, and reject that which is without; Cowan v. McNeely, 10 Ired. 5. It will be perceived by reference to the judgment of the Court, that it does not embrace the compensation in question, or indeed, any costs at all. It is a judgment simply for $93.83, awarded to plaintiff, which is precisely the judgment which ought to have been given, with the addition of the costs, that were taxable by law, against the defendant.

We did not understand the matters of exception in the Court below, to be pressed in this Court. They are, clearly, matters which might have been addressed in proper time to the abitrator’s discretion, but form no ground for the court’s interference. It is not alleged that any fraud or imposition was practiced upon the arbitrator, or that he was corrupt or partial, which might form a ground of exception to an award, when made under a rule of Court; but, the allegation is, *85merely, of certain matters in which the arbitrator mistook facts or law, or else exercised his discretion to the prejudice. Of the defendant. This does not constitute ground for setting aside an award; Eaton v. Eaton, 8 Ired. Eq. 102.

Upon the whole, the judgment below does the defendant no legal wrong. It was based upon a part of the award, clearly valid, and the only defect in it is, the omission to embrace the costs awarded, which were within the powers of the arbitrator : i. a., the taxable costs, which may now be done — the fee to arbitrator excluded.

Per Curiam,

Judgment affirmed.